FEDERAL COURT OF AUSTRALIA

Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Originating Application for relief under s 39B of the Judiciary Act 1903 (Cth) is allowed.

2.    A writ of certiorari issue to the Second Respondent, the Fair Work Commission, to remove to this Court and to quash the decision and orders of:

(a)    the Full Bench made on 22 February 2016 in matter numbers C2015/6904 and C2015/6909.

(b)    Deputy President Bull made on 22 September 2015 in matter number AG2015/3510.

3.    A writ of prohibition issue to the Fair Work Commission prohibiting it from proceeding further on the decision and orders made by Deputy President Bull made on 22 September 2015 in matter number AG2015/3510.

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

REASONS FOR JUDGMENT

JESSUP J:

1    In this proceeding, the applicant, Shop, Distributive & Allied Employees Association, applies for writs of certiorari to quash two decisions of the Fair Work Commission (“the Commission”) made under the Fair Work Act 2009 (Cth) (“the FW Act”), namely:

    the decision made on 22 September 2015 by Bull DP to approve the ALDI Regency Park Agreement 2015 (“the agreement”) pursuant to s 186 of the FW Act;

    the decision made on 22 February 2016 by a Full Bench of the Commission to dismiss the applicant's appeal against the decision by Bull DP.

The respondents are ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) (“ALDI”) and the Commission itself, which has filed a submitting appearance.

2    ALDI operates a chain of retail stores using a business model which was described by the Full Bench, lifting a passage from the reasons of Boulton J in an earlier decision (Re Aldi Foods Pty Ltd [2013] FWC 3495 at [22]), as follows:

On the evidence in the proceedings, ALDI has traditionally operated each of its regions as distinct undertakings. Each region has its own Managing Director and group of operational directors, and operates and reports as an independent profit centre. The only national function is the buying function, except in relation to fresh produce which is sourced locally by each region. ALDI’s business development plan, applied internationally as well as in Australia, is to start with a distribution centre in an area and then to grow the number of stores serviced by that distribution centre.

3    In the period leading to the decisions which are challenged in this proceeding, ALDI was in the course of establishing a new region in South Australia, to be called the “Regency Park” region (“the region”). Construction of the distribution centre for the region was under way, but, according to a provision of the agreement to which the Full Bench referred, the only two stores which traded in the region were serviced by a distribution centre in an adjoining region.

4    In this state of things, ALDI canvassed its existing staff, employed in other regions, for expressions of interest in working in the region. From those who did express an interest, ALDI selected a number to whom offers of employment in the region were made, and those offers were accepted. Each of the resulting contracts, of which there were 17, contained the following introductory paragraph:

I am pleased to advise that Aldi Stores (a limited partnership) wishes to offer you ongoing employment as [position] in our new Regency Park region in South Australia, commencing when the new region opens. At this stage, we anticipate this will occur around October 2015, however you may be invited to commence in the new region earlier than this time, depending on the need to train new employees. You will continue to be employed until that date in your current region and will be covered by that region’s enterprise agreement.

5    Subject to the applicant’s arguments in this case, it was with these 17 employees that ALDI proceeded to make the agreement under Pt 2-4 of the FW Act. ALDI requested them to vote for the agreement under s 181(1), 16 of them cast a valid vote, and 15 of those were in favour. Application for the approval of the agreement by the Commission was made under 185(1), and the agreement was duly approved by Bull DP in the first of the decisions which the applicant now challenges. The applicant itself was not involved in this process. Subsequently, the applicant was given permission to appeal against the approval decision of Bull DP, but its appeal from that decision was dismissed by the Full Bench in the second of the decisions which it now challenges.

6    The applicant’s jurisdictional challenges to these decisions are based on three grounds: first, that the agreement was not validly made under the FW Act, and could not be approved by the Commission, because it had not been made with employees employed at the time who would be covered by the agreement within the meaning of s 172(2)(a), secondly, that the Commission, at both levels, misapplied the provisions of the FW Act in being satisfied that the agreement passed the better off overall test for the purposes of s 186(2)(d), and thirdly, that the notice of employee representational rights given by ALDI under s 173 of the FW Act was not in the form prescribed by the regulations as required by s 174(1A)(c).

7    The applicant’s first ground requires consideration of a number of provisions of the FW Act which relate to the making and approval of enterprise agreements.

8    Subsection (2) of s 172 of the FW Act deals with single-enterprise agreements which the relevant employer may make, either with employees (para (a)) or with one or more employee organisations (para (b)). It provides as follows:

(2)    An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a)    with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b)    with one or more relevant employee organisations if:

(i)    the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii)    the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

By subs (4), an agreement made under para (b) of subs (2) is described as a “greenfields agreement”.

9    Under s 180(2)(a) of the FW Act, the employer must take all reasonable steps to ensure, amongst other things, that “the employees … employed at the time who will be covered by the agreement” are given a copy of the agreement and certain other material.

10    By s 181(1) of the FW Act:

(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.

11    Section 182 of the FW Act sets out when an enterprise agreement is “made”. The case of a single-enterprise, non-greenfields, agreement is covered by subs (1), which provides:

(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.

In what appears to be treated as the normal case, when a greenfields agreement is “made” is the subject of subs (3), as follows:

(3)    A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

12    By s 186(1) of the FW Act, if an application to the Commission for approval of an enterprise agreement has been duly made, the Commission must approve the agreement if the requirements of ss 186 and 187 are met. One of those requirements is that stated in s 186(2)(a), namely:

(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; ….

13    What constitutes genuine agreement for the purposes of s 186(2)(a) is the subject of s 188, which provides as follows:

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)    the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)    subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii)    subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)    the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)    there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

14    On 22 September 2015, Bull DP approved the agreement under s 186 of the FW Act. In his written decision to do so, the Deputy President made no reference to the issues that are now controversial. He was, of course, dealing with an uncontested application under s 185, and his attention had not been drawn to any such issues. He noted that “15 out of 17 employees voted to approve the agreement”.

15    The point which now finds expression in the applicant’s first ground in this court was put to the Full Bench as the proposition that the agreement should, and under the FW Act could only, have been made as a greenfields agreement on the basis that ALDI’s operations in the region were to be a new enterprise within the meaning of s 172(2)(b) and that ALDI had not yet employed any of the relevant employees. In its decision of 22 February 2016, the Full Bench said that whether or not the agreement could, and should, have proceeded to approval as a greenfields agreement was not the issue. It said:

The Agreement was purported to be made as a single enterprise agreement with employees rather than a Greenfields agreement. The critical question is whether the criterion for a single enterprise employee agreement is satisfied – not whether an agreement could have been made as a Greenfields agreement with an employee organisation. The essential requirements are whether the employees who voted to approve the agreement are “employees who are employed at the time the agreement is made and who will be covered by the Agreement” (s 172(2)) and whether the employees who voted were “employees of the employer… that will be covered by the agreement” (s 182(1)). In our view the concepts are relevantly identical. Two elements are involved. The employees must be employed at the time the agreement is made and they must be covered by the agreement. Both elements involve questions of fact.

16    Following the approach which was understood to have been endorsed in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, the Full Bench said that that approach entailed two elements:

The first involves determining whether the persons are employees, while the second entails determining whether the employees will be covered by the agreement after it is made. Application of the agreement is not relevant.

17    The Full Bench expressed its conclusion as follows:

In the facts of this case we are of the view that the employees who accepted on-going employment in the Regency Park region were employed by ALDI at the time the agreement was made. Further, as their employment comprehended work within the scope of the Regency Park Agreement they were covered by the Agreement. It was legitimate and necessary for them to be included in the group of employees asked to approve the agreement. The resultant agreement was made under s 182(1). It was a single enterprise agreement available to be made under s 172(2)(a). The Agreement has been genuinely agreed to by the employees covered by the Agreement.

18    What the Full Bench meant by the “scope” of the agreement is apparent from the following passage early in its reasons:

The scope of the Agreement covers employees of ALDI in ALDI’s Regency Park Region in South Australia (and parts of NSW and Victoria). Clause 5 of the Agreement contains the following explanation of its scope:

ALDI operates Regions based on a Distribution Centre and stores within that Region.

The Regency Park Region is defined as the Distribution Centre operated by ALDI in Gallipoli Drive Regency Park (“The Distribution Centre”), and all ALDI Stores which operate in South Australia and the Broken Hill City Council Local Government Area in New South Wales and the Rural City of Mildura Local Government Area in Victoria.

At the time of commencement of this Agreement, the Regency Park Region will include the stores listed in Schedule 5. This Agreement will apply to these stores and any new stores which open in the Regency Park Region as defined in this clause.

The Full Bench proceeded to identify two stores listed in Sched 5 to the agreement.

19    It was submitted on behalf of the applicant that the Full Bench was wrong in point of law in concluding that the agreement was capable of approval under Div 4 of Pt 2-4 of the FW Act. It was said that, at the relevant time, there were no employees covered by the agreement, since the agreement was referable only to the region, and those who were contracted to work there had not commenced to do so. Thus, at the point where the Commission considered the matter required by s 186(2)(a) – notionally by Bull DP and actually by the Full Bench – it was not open for it to be satisfied that there were any employees who “will be covered by the agreement” within the meaning of ss 172(2)(a), 181(1) and 182(1); and it was not, therefore, open for it to be satisfied that the agreement had been genuinely agreed to within the terms of s 188. The applicant’s point was that the expression “will be covered by the agreement” referred to the state of affairs that would come into existence upon the giving of approval to the agreement – at which time, on the facts of the present case, there would still be no employees covered by the agreement – rather than to a state of affairs that might be expected to come into existence at some time in the future, such as when the presently-contracted employees later commenced work of the kind that would be regulated by the agreement.

20    In my view, this submission on behalf of the applicant skates over some rather important matters and distinctions. The question for the Commission was whether the agreement covered the 17 employees of ALDI who had contracted to work, but who had not commenced working, in the region. As the Full Bench recognised, the starting point must be s 53(1) of the FW Act, which provides that an enterprise agreement “covers” an employee “if the agreement is expressed to cover (however described) the employee ….” In the present case, the agreement contained no provision which, in terms, expressed its “coverage”. But that was not fatal, since s 53 contemplated that an agreement might do so in some way other than expressly.

21    That no-one other than existing employees who will be covered by the agreement are admitted to the voting process for the approval of an enterprise agreement is not a jurisdictional fact apropos the Commission’s task under s 188 as read into s 186(2)(a). Rather, it is one of the matters given to the Commission itself to decide. It is not justiciable as such in this, or any other, court. The applicant accepts that, but contends that the Full Bench made an error of law on the face of the record or misapprehended its statutory task.

22    I do not think so. The very questions which the Full Bench identified as constituting its task – whether the persons are employees, and whether they will be covered by the agreement after it is made – are unobjectionable. They align closely with the applicant’s argument in this court. They bespeak neither an error of law nor a misapprehension of the statutory task.

23    The real gravamen of the applicant’s complaint, as it seems to me, is with the Full Bench’s conclusion that, as the employment of the 17 persons “comprehended work within the scope of the Regency Park Agreement they were covered by the Agreement”. Here the Commission has considered whether the presently-employed persons were covered by the agreement, which is exactly what the Commission must do under the statute. It has decided that they were, on the basis that their employment comprehended work within the scope of the agreement. If it was clear, on the record, that that approach departed from the statute, the applicant would have had a case. But it is not.

24    The requirements of s 53 are not terminologically prescriptive: they allow for the coverage of an agreement to be identified in ways other than by reference to an explicit statement of coverage in terms. In putting the matter this way the legislature has, in my view, shown a tolerance for the different, and at times idiosyncratic, formulae which employers and employees tend to use when articulating the bases of the agreements which they reach. To identify the “coverage” of an agreement made in such a legislative and institutional environment is, in my view, pre-eminently a matter for the specialised tribunal.

25    The Full Bench held that the 17 relevant employees were covered by the agreement – that is, were so covered from the point when the agreement was made within the meaning of s 182(1) of the FW Act. The case which the applicant sought to ventilate in this court involved taking issue with the correctness of that holding. That project went beyond demonstrating that the Full Bench had made an error of law on the face of the record or had misapprehended its statutory task, and is not open to the applicant in a proceeding of the present kind.

26    I would reject the applicant’s first ground.

27    The applicant’s second ground relates to the better off overall test. Here the key provision of the FW Act is s 193(1), which provides as follows:

(1)    An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

On the facts of the present case, the “test time” was when the application for approval of the agreement by the Commission had been made under s 185 of the FW Act.

28    When the agreement was before Bull DP for approval, the Deputy President gave conventional consideration to the question whether it passed the better off overall test as required by s 186(2)(d) of the FW Act. He did have a concern about that matter, but accepted an undertaking from ALDI under s 190. He concluded:

Taking into account the substantially higher rates of pay under the Agreement in comparison to the Award, management employees and employees who would otherwise be covered by the Road Transport Award and Storage Award 2010 receive 5 weeks annual leave as opposed to 4 weeks under the Awards, and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall.

29    On appeal in the Commission, the Full Bench admitted further evidence, led by the applicant, pursuant to its power under s 607(2)(a) of the FW Act. It is now submitted on behalf of the applicant that it was apparent from all of the evidence before the Full Bench, including the newly admitted evidence, that, based on the rosters actually worked by the employees who voted to approve the agreement, 40% of them would not be better off, and some of them would be “significantly worse off”, under the agreement than they would be under the relevant modern award.

30    In its decision of 22 February 2016, the Full Bench said:

[56]    The SDA submits that the BOOT was not properly applied because rosters that were submitted as typical were not in operation at the relevant operations because they had not, at that time commenced. It submitted an analysis of entitlements which it submitted established that open ended provisions reserve a discretion in the employer that raise questions as to whether the agreement passes the BOOT.

[57]    ALDI submits that the Agreement, as with other ALDI Agreements contains the following clause that it submits contains a mechanism for ensuring that it meets the BOOT:

The remuneration paid for each classification has been set to ensure employees are better off overall under this Agreement than under the relevant Modern Award which would otherwise apply. Where an Employee considers they are not better off overall under this Agreement than under the relevant Modern Award, they may request a comparison of the benefits received for a nominated period of time under this Agreement and the benefits which would otherwise be provided under the relevant Modern Award. Any shortfall in total remuneration which would otherwise be payable under the Modern Award will be paid to the Employee in the next pay period after the review is completed. If the Employee and ALDI cannot reach agreement on the remuneration which should be paid, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve the matter.

[58]    This clause creates an enforceable right to payments to employees equal to or higher than those contained in the award. There is no limitation on its availability. The position is clearly distinguishable from the undertaking considered by a Full Bench in CEPU v Main People [[2015] FWCFB 4467]. In our view the Deputy President properly considered the BOOT and reached a decision based on a sound analysis. It has not been demonstrated that there is any appealable error in the decision under appeal. We dismiss this ground of appeal.

The provision of the agreement set out in para 57 of the Full Bench decision was cl 13.

31    It was submitted on behalf of the applicant that cl 13 could not cure a failure to pass the better off overall test. The relevant award required payment weekly or fortnightly: it did not require an employee “to raise questions about payment with his or her employer”, or “to wait”. By contrast, it was submitted, cl 13 provided for a process which relied upon “individual employees forming a view that they are not better off overall under the agreement than under the award and then bringing the matter to the attention of the employer and if necessary, the Commission.” On the Full Bench’s analysis, “any agreement which provided below award rates of pay could be saved by such a provision no matter how egregious the failure.” The purpose of the better off overall test was to ensure that employees did not make bargains for terms and conditions below the safety net. A provision which sought to save such a bargain “by providing a process which at the very least affects the timeliness of the payment of wages” could not save an agreement that would otherwise fail the test. It was submitted that the Full Bench did not compare the agreement with the relevant award. Rather, it compared the award with the agreement “as it operated subject to the exercise of contingent rights.”

32    Moreover, it was submitted on behalf of the applicant, even if an employee’s rights under cl 13 were successfully exercised, he or she would not be better off, first because cl 13 required no more than that the “shortfall” be paid (ie resulting only in parity rather than a “better off” outcome), secondly because the exercise of rights under cl 13 would necessarily lead to a delay in payment, which is a detriment, and thirdly because entitlements under the agreement were dependent upon the employee taking action, whereas the award gave “an absolute entitlement.”

33    Under Div 4 of Pt 2-4 of the FW Act, whether a proposed enterprise agreement passes the better off overall test is a matter for the satisfaction of the Commission, in the terms both of s 186(2) and of s 193(1). Absent jurisdictional error, that question cannot be re-litigated in a court. The test is hypothetical, the questions being whether each employee, and each “prospective award covered employee”, would be better off overall if the agreement applied to him or her than if the relevant award did. These questions must be asked “as at the test time”, that is, as at the time when the relevant application was made for the Commission’s approval of the agreement concerned. But neither s 193(1) nor any other provision of the FW Act gives content to the phrase “better off overall”. That is entirely a matter for the satisfaction of the Commission.

34    In the present case, the Full Bench had before it a contest on the question whether employees and prospective award covered employees would be better off overall under the agreement than they would be under the relevant award. The applicant’s case involved detailed calculations as to the remuneration that certain individuals would receive under each alternative form of regulation. Whether the result of these calculations was such as would compromise a conclusion, otherwise available, that each employee and prospective award covered employee would be better off overall under the agreement was a matter for the Commission to decide.

35    The operation of cl 13 of the agreement was obviously a significant element in the Full Bench’s reasoning under s 193(1), and it lay at the centre of the applicant’s jurisdictional challenge in this court. Predominantly, that challenge was premised on a characterisation of the Full Bench’s reasoning as involving two stages, first, whether, by reference to the substantive terms and conditions being compared, each employee and prospective award covered employee would be better off under the agreement, and if not, secondly, whether cl 13 “cured” that problem or “saved” the agreement. I would not accept that characterisation. The way the applicant seeks to put it does not reflect the Full Bench’s reasoning. Rather, the presence of cl 13 in the agreement was taken into account in the Full Bench’s assessment of the “overall” benefits and detriments that would result from each employee being covered by the agreement instead of the award. The Full Bench’s reasoning involved a single intellectual process, not a two-stage one which involved the discovery of a problem and then consideration of the means to cure it as the applicant proposed.

36    It gets the applicant nowhere, in its case in this court, to point to respects in which an employee’s rights under cl 13 would be inferior to the rights which he or she would have under the award. If that were the case, there is nothing to suggest that the Full Bench was not conscious of it and assigned an appropriate weighting to it in its application of the better off overall test.

37    I also reject the applicant’s submission that the Full Bench’s approach meant that any agreement which provided below award rates of pay could be saved by a provision such as cl 13, no matter how egregious the failure. Its reasons contained no such indication, and nothing to that effect was implicit. If there were a case in which the detriments likely to be experienced by employees covered by a proposed enterprise agreement, by comparison with the relevant award, were egregious, doubtless that circumstance would be placed on the scales for its appropriate contribution. The reasoning of the Full Bench in its decision of 22 February 2016 would not stand in the way of a conclusion in such a case that the agreement did not pass the better off overall test.

38    I would reject the applicant’s second ground.

39    The applicant’s third ground relates to the notice of employee representational rights for which s 173 of the FW Act provides. Such a notice was duly given in the circumstances of the present case, but it is now contended that the notice was not in the form prescribed by the regulations, as required by s 174(1A) of the FW Act.

40    Section 174(1A) provides as follows:

(1A)    The notice must:

(a)    contain the content prescribed by the regulations; and

(b)    not contain any other content; and

(c)    be in the form prescribed by the regulations.

41    The Fair Work Regulations 2009 (Cth) require the use of the following form for the purposes of s 174(1A):

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low paid authorisation applies — include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[If the employee is covered by an individual agreement-based transitional instrument — include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

•    the nominal expiry date of your existing agreement has passed; or

•    a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].

42    The notice provided by ALDI in the present case followed the prescribed form in terms, save that the final paragraph, under the heading, “Questions?”, read as follows:

If you have any questions about this notice or about enterprise bargaining, please speak to either your leader, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission lnfoline on 1300 799 675.

The one respect in which this notice departed from the prescribed form was in the use of the word “leader” in place of the word “employer”.

43    In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210, a Full Bench of the Commission held that compliance with the form prescribed for the purposes of s 174(1A) of the FW Act was mandatory, and that a failure to comply would invalidate the notice. In such a case, there would be no reference point for the operation of s 181(2) – which requires that the employer’s request to employees to approve a proposed agreement not be made until at least 21 days after the s 173 notice – and the Commission could not, therefore, be satisfied of the matter specified in s 188(a)(ii), with the result that it could not be satisfied that the agreement was genuinely agreed to by the employees concerned for the purposes of s 186(2)(a).

44    In the applicant’s submission, we should follow Peabody and hold that the agreement was not such as the Commission could approve under s 186 of the FW Act.

45    The difficulty with that submission is that it treats compliance with s 174(1A) as a jurisdictional fact apropos the approval of the putative enterprise agreement which follows from the bargaining process in question. That is not the case. As the Commission’s reasoning in Peabody demonstrates, ultimately compliance with s 174(1A) is something of which the Commission must be satisfied. It is a matter left to the decision of the Commission itself. It is true, of course, that, if the Commission’s decision on the matter in a particular case proceeded on a legally erroneous reading of the requirements of s 174(1A), that may open the way to an application of the kind that the applicant presently makes in other departments of this case. But that did not happen here, for the very reason that no-one submitted, either to Bull DP or to the Full Bench, that the requirements of s 174(1A) had not been complied with.

46    What appears to have happened is that, subsequently to the decision of the Full Bench, ALDI itself brought this minor terminological departure of the notice of employee representational rights which it was accustomed to use from the form prescribed in the regulations to the attention of the Commission, and sought to make the necessary correction in relation to a notice used in the setting of a different enterprise agreement altogether. Taking note of this development as it did, the applicant adopted the point as its third ground in this proceeding. It justifies its failure to raise the point before the Full Bench on the basis that, at the time, it was not aware of what it now says was a mistake in the terms used in ALDI’s notice.

47    I would not accept that justification. The applicant sought, and was granted, the right to appeal from the decision of Bull DP, and proceeded to prosecute an appeal on grounds of its own choosing. It seems to have made productive use of such procedures as were available to require ALDI to produce documents to sustain those grounds. It did not challenge the notice of employee representational rights. That too was its own choice. The Commission having completed its statutory task, with the assistance of the applicant’s contribution, it is now too late for the applicant to say that it has since uncovered (by whatever means) a new argument which it might have put, but which it did not put, to the Full Bench.

48    The remedies which the applicant seeks are discretionary ones. Whatever might be the strength of its third ground considered as a legal proposition in isolation, because it does not involve a jurisdictional fact, and in the light of the procedural history of the matter to which I have referred, I would, in the exercise of the court’s discretion, decline to grant the relief sought insofar as this ground is relied on.

49    I would make one parting observation. Ex hypothesi, an employer which resorts to s 173 of the FW Act will, in the usual case, be a corporation. Read literally, the injunction in the form in the regulations that an employee who has any questions should “speak to … your employer” is a challenging one. If, as is contemplated, speaking is involved, one would imagine that the addressee would inevitably be a flesh and blood servant or agent. At least within reasonable bounds, for the employer to have nominated the individual to whom it intends that questions should be addressed would not, in my view, amount to a departure from the prescribed form, even if strict compliance were necessary. Had the Full Bench’s attention been drawn to the issue which the applicant now seeks to agitate, it would not, therefore, have been in error, jurisdictionally, to have read s 174(1A) as permitting the reference to “leader” as used by ALDI on the facts of the present case.

50    I would reject the applicant’s third ground.

51    It follows from what I have written that, insofar as the Application in this proceeding involves a jurisdictional challenge to the decision of the Full Bench, I would dismiss it. The result would be that the appeal from the decision of Bull DP remains validly dismissed.

52    Where would that leave the applicant’s jurisdictional challenge to the decision of the Deputy President? Each of the first and second grounds related to the way in which the Full Bench had disposed of arguments that were put to it on appeal by the applicant. Since the applicant did not appear before Bull DP, and since neither of these grounds involved a jurisdictional fact, they could not sustain the challenge to his decision. And the basis upon which I would reject the third ground applies, of course, as much in relation to that decision as it does to the decision of the Full Bench.

53    I would dismiss the Application.

Associate:

Dated:    29 November 2016

REASONS FOR JUDGMENT

KATZMANN J:

54    I have had the good fortune to read the judgments of Jessup J and White J in draft. I agree with White J’s conclusions and, with one qualification, with his Honour’s reasons and the orders his Honour proposes. The qualification relates to two matters relating to ground 3 of the application, which is the ground that concerns the notice of employee representational rights (“the notice”).

55    First, as it was fully argued, is of general importance (indeed there are other applications for the approval of enterprise agreements pending in the Fair Work Commission which turn on its resolution), and there is no decision of this Court which deals with the point, I would answer the first question raised by ground 3. That question is whether strict compliance with the content and form requirements for the notice is necessary. I would answer the question in the affirmative.

56    Secondly, I respectfully decline to join in the parting observation made by Jessup J at [49].

57    I shall shortly explain why. Before I do, however, it is convenient to refer to the relevant legislative provisions.

58    An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement is required to take all reasonable steps to notify each employee who will be covered by the agreement and is employed at the notification time for the agreement of the right to be represented by a bargaining representative: Fair Work Act 2010 (Cth) (“FW Act”): s 173(1). The content and form of the notice is prescribed by s 174(1A), which provides:

The notice must:

(a)    contain the content prescribed by the regulations; and

(b)    not contain any other content; and

(c)    be in the form prescribed by the regulations.

59    There is a form prescribed by reg 2.05, which appears in Sch 2.1 to the Fair Work Regulations 2009. Regulation 2.05, however, prescribes the notice for the purposes of subs 174(6), not subs 174(1A).

60    Subsection 174(6) read:

The regulations may prescribe other matters relating to the content or form of the notice or the manner in which employers may give the notice to the employees.

61    Section 174(6) was repealed by the Fair Work Amendment Act 2012 (Cth) (“Amendment Act”), effective 1 January 2013, following a wide-ranging review of the Act. This was the legislation which inserted subs 174(1A) in the FW Act. But the Amendment Act also introduced a savings provision the effect of which is to treat reg 2.05 as a regulation which was made for the purposes of subs 174(1A). That savings provision now appears in the FW Act as item 8 of Pt 4 of Sch 3. It states:

Regulations that:

(a)    were made for the purposes of subsection 174(6) before the commencement of Part 5 of Schedule 4 to the amending Act; and

(b)    were in force immediately before that commencement;

continue in force (and may be dealt with) after that commencement as if they had been made for the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the amending Act).

Consequently, the form prescribed by reg 2.05 for the purposes of the former s 174(6) is taken to be prescribed for the purposes of s 174(1A).

62    The form that ALDI sent to its employees conformed to the terms of Sch 2.1 in all but one respect: it substituted for the word “employer”, in the second line of the paragraph under the heading “Questions?”, the word “leader”. The relevant part of the prescribed form reads as follows:

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].

63    Two questions arise. The first is whether, by sending a notice with this alteration, ALDI failed to comply with s 173. The second is whether non-compliance invalidates the agreement.

64    Turning then to the first question, the substitution of the word “leader” for the word “employer” meant that the form distributed to employees was different from the form prescribed by s 174(1A)(c) and reg 2.05. It also meant that the notice did not contain the content prescribed by the regulations (contrary to s 174(1A)(a)) and contained content not prescribed by the regulations (contrary to s 174(1A)(b)).

65    Yet ALDI submitted that it had complied with s 173 because s 25C of the Acts Interpretation Act 1901 (Cth) (“Interpretation Act”) provides that “[w]here an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient”. Section 2 of the Interpretation Act, however, provides that the application of a provision of that Act to a provision of another Act is subject to a contrary intention.

66    It may be accepted that ALDI substantially complied with the form. But in the case of s 174(1A), substantial compliance will not do. Section 25C of the Interpretation Act does not apply because the contrary intention is manifest. Nothing less than strict compliance is sufficient. This is apparent from the language of s 174(1A), which makes clear that the notice must contain no more and no less than the content prescribed by the regulations. It is also apparent from the legislative history. Section 174(1A) was introduced for the purpose of eliminating confusion about whether strict or substantial compliance was required. As the Explanatory Memorandum to the Bill which became the Amendment Act reveals (at [147]):

The amendment responds to Panel recommendation 19. The amendment is intended to eliminate confusion about whether employers may modify the content or form of the notice of employee representational rights. The amendment would make clear that the notice must contain only the content prescribed by the regulations and no other content except that which the regulations require an employer to insert or omit.

67    The “Panel recommendation” to which this paragraph refers can be found in Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation (Department of Education, Employment and Workplace Relations, Canberra, 2012). This was a full-scale review of the Fair Work legislation, commissioned by the government of the time. Recommendation 19 arose from a submission by a number of unions that modifications and additions to the prescribed form should not be permitted under the Act. Examples were given to the Panel in which it was alleged that employers had sought to encourage employees to extinguish their rights to be represented by their union. The Panel noted that the approach of what was then Fair Work Australia (now the Commission) was to require only substantial compliance with the notice requirements and said that:

The s. 173 notice is an integral element in the bargaining regime. To eliminate confusion and any opportunities for malpractice, we recommend that the Government amend s. 174 of the FW Act to make it clear that a bargaining notice may only contain the requirements as specified in the section and its attendant regulations.

68    It is well established that the Court may have regard to the reports of law reform bodies to ascertain the mischief which a statute is intended to cure: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. Here the mischief is plain, as are the means the legislature chose to cure it. Section 174(1A) requires strict compliance. In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042; 242 IR 210 a five-member bench of the Commission, the President presiding, came to the same conclusion. The Commission correctly observed at [19] that the meaning of s 174(1A) is “clear and unambiguous” and “consistent with the context and mischief to which the provision is addressed”.

69    It follows that, as a result of the omission of the word “employer” and the substitution of the word “leader”, the notice was not in the prescribed form and ALDI failed to comply with s 173(1) of the FW Act (read with s 174(1)–(1A)) by giving notice in the required form.

70    It seems to me that if ALDI’s management wished to designate an appropriate person or persons to whom questions could be directed, it could have done so by other means, for example, in an accompanying document. But in my respectful opinion s 174(1A) requires that there be no alteration in form or content. The Act does not allow for exceptions for administrative efficiency or convenience.

71    I agree, however, with Jessup J that the question is not whether the notice did or did not satisfy the requirements of s 174(1A), but whether the Deputy President fell into jurisdictional error in being satisfied that the agreement had been “genuinely agreed” to within the meaning of s 186(2). I also agree that, if the Commissioner reached that state of satisfaction on in incorrect understanding of the law, that may lead to jurisdictional error: see, for example, Wei v Minister for Immigration and Border Protection [2015] HCA 51; 327 ALR 28 at [33]–[35]. But there is no need to reach a final view about whether the defective notice caused the Commissioner to fall into jurisdictional error because, for the reasons given by Jessup J at [46]–[48], relief on this ground should be refused in the exercise of the Court’s discretion.

72    Consequently, despite my conclusions that strict compliance with s 174(1A) is required and that the substitution of “leader” for “employer” did not amount to strict compliance, I would dismiss ground 3 of the application.

Associate:

Dated:    29 November 2016

REASONS FOR JUDGMENT

WHITE J

73    This judgment concerns an application for certiorari and prohibition under s 39B of the Judiciary Act 1903 (Cth) in respect of two decisions of the Fair Work Commission (the FWC). The first, made under Pt 2-4 of the Fair Work Act 2009 (Cth) (the FW Act) by Bull DP on 22 September 2015, gave approval to an enterprise agreement entitled “ALDI Regency Park Agreement 2015” (the Regency Park Agreement): [2015] FWCA 6373. The second is the decision of the Full Bench of the FWC to dismiss the applicant’s appeal against the decision of Bull DP: [2016] FWCFB 91.

74    The evidence on the application was wholly documentary, comprising a Statement of Agreed Facts (the SOFA) and affidavits. None of the deponents of the affidavits was required to attend for cross-examination. The FWC, which is the second respondent to the proceedings, filed a submitting notice.

Background circumstances

75    The applicant is the Shop, Distributive and Allied Employees’ Association (the SDA), a registered organisation of employees.

76    The first respondent, ALDI, is establishing retail operations in Australia. By early 2015, it had stores at various locations in New South Wales, Victoria and Queensland. It was then commencing the construction of stores in South Australia and Western Australia.

77    The evidence indicates that ALDI organises its operations on a regional basis, with the regions comprising those stores supplied from a single distribution centre. It seems that each region is regarded as a separate undertaking. ALDI contemplated establishing a Regency Park Region, with that Region to comprise a distribution centre then under construction at Regency Park (a suburb of Adelaide), initially stores at Seaford Heights and Parafield Gardens (also suburbs of Adelaide) and, in due course, other stores in South Australia, in Broken Hill and in Mildura.

78    In April 2015, ALDI sought expressions of interest to work in the Regency Park Region from its existing employees in regions in New South Wales, Victoria and Queensland. A number of ALDI employees expressed interest in doing so. In late May 2015, ALDI made written offers of employment to some of those providing expressions of interest. Seventeen of ALDI’s employees accepted the offers.

79    ALDI’s offers of employment to each of the employees commenced with the following:

I am pleased to advise that ALDI Stores (A Limited Partnership) wishes to offer you ongoing employment as [position identified] in our new Regency Park region in South Australia, commencing when the new Region opens. At this stage, we anticipate this will occur around October 2015, however you may be invited to commence in the new Region earlier than this time, depending on the need to train new employees. You will continue to be employed until that date in your current Region and will be covered by that Region’s Enterprise Agreement.

(Emphasis added)

80    The letters also contained provisions by which the employee could accept the offer, in the following terms:

I accept this offer of employment in the terms outlined. …

I understand that I will be able to participate in the negotiation of a new Enterprise Agreement to cover Regency Park. I understand that I will be advised of the date on which I will transfer to Regency Park, and that I will continue in my current role under my current terms and conditions of employment until that date.

81    As can be seen, ALDI’s agreement with the 17 employees provided that their employment in the Regency Park Region would not commence until the new Region opened or, perhaps, shortly before that if they were to participate in the training of new employees. It also indicated that, until that time, the employees were to continue working in their current roles, that is, in the region and enterprise in which they were currently employed.

82    The 17 employees communicated their acceptance of the offers of employment in the Regency Park Region to ALDI in either late May or early June 2015, using the form provided.

83    Shortly afterwards, ALDI commenced the process to conclude, under Pt 2-4 of the FW Act, an enterprise agreement for the Regency Park Region with the 17 employees. On 12 June 2015, it provided to the 17 employees, in purported compliance with s 173 of the FW Act, a document entitled “Schedule 2.1: Notice of Employee Representational Rights” (NERR). On 8 July 2015, ALDI provided to the 17 employees a copy of its proposed Regency Park Agreement. The employees voted on the Agreement in the period from 17 to 21 July 2015. Fifteen of the 16 valid ballot votes were in favour of the enterprise agreement.

84    Subsequently, on 4 August 2015, ALDI applied to the FWC, pursuant to s 185 of the FW Act, for approval of the Regency Park Agreement. Bull DP gave that approval on 22 September 2015 on the papers and without a public hearing. The materials before the Court did not indicate whether the making of the application, or the time at which the FWC would consider it, had been made known publically.

85    Bull DP found that there had been compliance with ss 173 and 174 of the FW Act and that the employees had genuinely agreed to the agreement, at [5]. After accepting, pursuant to s 190 of the FW Act, an undertaking from ALDI on one matter, he concluded:

[11]    Taking into account the substantially higher rates of pay under the Agreement in comparison [with] the Award, management employees and employees who would otherwise be covered by the Road Transport Award and Storage Award 2010 receive 5 weeks annual leave as opposed to 4 weeks under the Awards, and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall.

[12]    I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

Bull DP went on to order, in accordance with s 54(1) that the agreement operate from 29 September 2015, being seven days after his approval of it.

86    The SDA did not participate in the proceedings in the FWC before Bull DP. The Court was told from the Bar table that this was because it had been unaware of ALDI’s application. It was not suggested that anything turned on the SDA’s non-participation in the proceeding at first instance in the FWC, although it does explain why the matters agitated before the Full Bench and before this Court were not raised before Bull DP.

87    As at 22 September 2015, ALDI was not conducting any operations at all in the Regency Park Region. Its distribution centre and the proposed stores at Seaford Heights and Parafield Gardens were still under construction or, at least, not trading. None of the employees who voted on the Agreement was, at the time, employed in the Regency Park Region, although each was an employee of ALDI in another Region.

88    The SDA and the Transport Workers’ Union of Australia (the TWU) filed notices of appeal in the FWC against the decision of Bull DP. The appeal was heard by the Full Bench on 20 November 2015 and, as previously noted, was dismissed.

Jurisdictional error

89    On applications of the present kind, an applicant must demonstrate jurisdictional error. Absent fraud or error of law on the face of the record, orders by way of certiorari and prohibition are available only when jurisdictional error is established: Craig v The State of South Australia (1995) 184 CLR 163. Jurisdictional error will exist if the FWC misconceives its role, misunderstands the nature of its jurisdiction, misconceives its duty, fails to apply itself to the question required by the FW Act, or misunderstands the nature of the opinion which it is to form: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31]. Legal unreasonableness is another form of jurisdictional error.

90    The SDA asserted jurisdictional error by the FWC of three kinds. I will consider each separately.

The 17 employees were not employees “covered by the Agreement”

91    An enterprise agreement cannot come into operation until it has been approved by the FWC (s 54(1) of the FW Act).

92    Section 186(1) of the FW Act requires the FWC, on an application for approval of an enterprise agreement under s 182(4) or s 185, to approve the agreement “if the requirements set out in this section and s 187 are met”. It then contains a number of matters about which the FWC must be satisfied, including (relevantly):

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

(b)    if the agreement is a multi-enterprise agreement:

(i)    the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii)    no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c)    the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d)    the agreement passes the better off overall test.

…

Requirement that the group of employees covered by the agreement is fairly chosen

(3)    The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A)    If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

…

(Emphasis added)

93    As can be seen, s 186(2)(a) requires that the FWC be satisfied in respect of a non-greenfields enterprise agreement that the agreement has been genuinely agreed to by the employees “covered by” the agreement.

94    Section 187(5) contains the corresponding requirement in respect of a greenfields agreement:

(5)    If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a)    the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b)    it is in the public interest to approve the agreement.

(Emphasis added)

95    Whereas s 186(2)(a) and (b) refer to employees “covered by” a non-greenfields enterprise agreement, s 187(5) requires in the case of a greenfields agreement that the FWC be satisfied that the relevant employee organisations are entitled to represent the industrial interests of a majority of the employees who “will be covered” by the agreement in relation to work to be performed under it.

96    ALDI had taken the view that the Regency Park Agreement was not a greenfields agreement and had not followed the procedures required by the FW Act for the making of such an agreement. The FWC also dealt with the application for approval on the basis that the Regency Park Agreement was not a greenfields agreement and, accordingly, on the basis that the function exercised by Bull DP on 22 September 2015 was that required by s 186 of the FW Act.

97    The term “has been genuinely agreed” appearing in s 186(2)(a) is elaborated in s 188 of the FW Act, which provides:

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)    the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)    subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii)    subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)    the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)    there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(Emphasis added)

98    The SDA’s submissions on this ground of its application focused on the term “employees covered by the agreement” in s 186(2)(a) and in the opening lines of s 188. It emphasised the contrast in tense used in those provisions with the term “who will be covered by the agreement” used in s 187(5) and in other provisions in Pt 2-4. The former term indicated, the SDA submitted, employees who are actually covered by the enterprise agreement on its making, and not employees who would potentially, or even probably, become covered by it at some time in the future upon the happening of a contingency. The SDA submitted that, as at the date the Regency Park Agreement had purported to be made, and for that matter as at the date of ALDI’s application to the FWC, there were no employees who were “covered by” the Regency Park Agreement, with the consequence that, had the FWC addressed the correct question, it would not have been open to it to be satisfied of the matters required by s 186(2)(a) and s 188. It contended that the FWC had failed to recognise this requirement of ss 186 and 188 and had thereby committed jurisdictional error by not addressing the issue required by the FW Act.

99    In order to assess the SDA’s submission, it is necessary to consider other provisions in Pt 2-4 of the FW Act and, in particular, the statutory scheme concerning enterprise agreements.

The statutory scheme

100    The subject matter of Pt 2-4 of the FW Act is enterprise agreements. As the name implies, these are agreements containing terms and conditions of employment of employees in an enterprise. The term “enterprise” is defined very widely to mean “a business, activity, project or undertaking” (s 12). An enterprise agreement may accordingly be an agreement containing terms and conditions of employment in an enterprise of any of these kinds. It may be either a single-enterprise agreement or a multi-enterprise agreement (s 12).

101    Section 172 provides for these two kinds of enterprise agreements. Subsection (1) indicates the matters which may be the subject of an enterprise agreement “made in accordance with this Part”. Subsections (2) to (6) concern the making of an enterprise agreement. They provide:

Single-enterprise agreements

(2)    An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a)    with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b)    with one or more relevant employee organisations if:

(i)    the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii)    the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:    The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements

(3)    Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a)    with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b)    with one or more relevant employee organisations if:

(i)    the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii)    the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note:    The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

(4)    A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5)    Two or more employers are single interest employers if:

(a)    the employers are engaged in a joint venture or common enterprise; or

(b)    the employers are related bodies corporate; or

(c)    the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

Requirement that there be at least 2 employees

(6)    An enterprise agreement cannot be made with a single employee.

102    Section 172(2) concerns the position of a single employer and of two or more employers who are “single interest employers”. The concept of “single interest employers”, which is governed by ss 247-251 of the FW Act, is not material in this case and need not be considered further. Section 172(2) contemplates that a single employer may make a single enterprise agreement in two ways: if the employer has employees at the time the agreement is made who will be “covered by” the agreement, with those employees (subs (2)(a)); or, if the agreement relates to a genuine new enterprise which the employer is establishing or proposing to establish and the employer has not employed any of the persons who will be necessary for the normal conduct of that business and who will be “covered by” the agreement, with one or more relevant employee organisations (subs (2)(b)). The circumstance contained in subs (2)(b)(ii) is the converse of the circumstance in subs (2)(a). That follows from both the language and structure of the provision.

103    Section 172(3) provides counterpart provisions with respect to two or more employers. It is not said to have been engaged in the present case.

104    Agreements of the kind specified in s 172(2)(b) and s 172(3)(b) are “greenfields agreements” (s 172(4)).

105    Sections 173 and 174 require an employer contemplating entering into an enterprise agreement (other than a greenfields agreement) to give written notice to each employee “who will be covered” by the agreement of their entitlement to appoint a bargaining representative as well as of other matters. Sections 176 to 178A govern the appointment and revocation of appointment of bargaining representatives of employees “who will be covered by the agreement”. By s 181(1), an employer may request the employees “employed at the time who will be covered by the agreement” to approve the agreement by voting on it. Section 180 contains provisions requiring an employer which intends to ask “employees employed at the time who will be covered by the agreement” to provide or make available to the employees specified information concerning the proposed agreement and the way in which the vote will be conducted.

106    Section 182 identifies when an enterprise agreement is made. Subsections (1) and (3) provide:

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.

…

Greenfields agreement

(3)    A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

The effect of subs (1) is that the enterprise agreement is made when a majority of those employees of the employer at the time who will be covered by it have cast a valid vote for approval.

107    Section 185 identifies the persons who must apply for the approval of the FWC and regulates the manner in which the application must be made.

108    Sections 186 and 187 implicitly vest power in the FWC to approve enterprise agreements, but circumscribe the exercise of the discretion involved. The relevant provisions have been set out earlier in these reasons.

Covering an employee

109    The FW Act elaborates the concept of an enterprise agreement “covering” an employee in a number of provisions. It draws a distinction between the “coverage” of an enterprise agreement, on the one hand, and its “application” on the other.

110    Section 51 provides that an enterprise agreement does not give a person an entitlement, nor impose obligations on a person, unless the agreement “applies” to the person. Section 52 specifies the conditions necessary for an enterprise agreement to “apply” to an employee. One condition is that the agreement is “in operation” (subs (1)(a)). Another is that the agreement “covers” the employee (subs (1)(b)).

111    The circumstances in which an enterprise agreement “covers” an employee are identified in s 53. Subsection (1) provides that an enterprise agreement “covers” an employee or an employer if the agreement “is expressed to cover (however described) the employee or the employer”. Thus, the coverage by an enterprise agreement of an employee turns on the terms of the enterprise agreement itself. It can indicate whether particular employees, or classes of employees, are included or excluded.

112    The words in parenthesis in s 53(1) “however described” indicate that there may be more than one way by which an enterprise agreement may be expressed so as to cover an employee or an employer. Those ways are elaborated in s 256A:

256A How employees, employers and employee organisations are to be described

(1)    This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

(2)    The employees may be specified by class or by name.

(3)    The employers and employee organisations must be specified by name.

(4)    Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

(a)    a particular industry or part of an industry;

(b)    a particular kind of work;

(c)    a particular type of employment;

(d)    a particular classification, job level or grade.

113    I take s 256A to be applicable to Pt 2-4, even though that Part does not contain any express requirement that an enterprise agreement specify the employees covered, or who will be covered, by it. Such a requirement is probably implicit in ss 186 and 187 in order that the FWC can be satisfied of the matters specified in ss 186(2)(a), (3), (3A) and in s 187(5). At the very least, s 53(1) permits an enterprise agreement to specify the employees and employers covered by it.

114    Section 256A indicates that, while an enterprise agreement may identify the employees covered by it by name, it is not necessary to do so. The employees may instead be identified by class (subs (2)) and the class may be described in a variety of ways (subs (4)). However, the underlying requirement is that, however described, an enterprise agreement is to cover persons, and not abstractions such as classifications or positions.

115    Returning to s 53, it is to be noted that subs (1) is expressed in the present tense. It seems to contemplate that a determination must be able to be made as to whether an employee is or was, at any particular time, covered by the enterprise agreement. This includes the time at which the agreement is made.

116    Section 53(6) provides that “a reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment”.

117    The effect of these provisions is that the coverage of an industrial agreement is wider than its application. An agreement may cover an employee even though it does not apply to the employee because, for example, the agreement has not yet come into operation (s 52(1)(a)), its application was excluded by some other provision in the FW Act (s 52(1)(c)), or because only one enterprise agreement can apply to an employee at a particular time (s 58(1)). Employees will have entitlements under an industrial agreement only if the agreement “applies” to them. Coverage by the enterprise agreement is a necessary, but not sufficient, condition for the existence of such entitlements.

The Full Bench decision

118    The present issue was not considered by Bull DP, no doubt because it was not raised before him.

119    The Full Bench rejected a submission by the SDA and the TWU that the appeal should be determined by first determining whether the Regency Park Region was a “genuine new enterprise” and, if so, by then concluding that an enterprise agreement could be made only as a greenfields agreement. The Full Bench considered that the critical question was whether the agreement was of a kind contemplated by s 172(2)(a) and identified the essential elements of an agreement contemplated by that provision:

[33]    … The essential requirements are whether the employees who voted to approve the agreement are “employees who are employed at the time the agreement is made and who will be covered by the agreement” (s.172(2)) and whether the employees who voted were “employees of the employer … that will be covered by the agreement” (s.182(1)). In our view the concepts are relevantly identical. Two elements are involved. The employees must be employed at the time the agreement is made and they must be covered by the agreement. Both elements involve questions of fact.

(Emphasis added)

120    As can be seen, the Full Bench appears to have elided in this passage the concept of employees “who will be covered” by an agreement and the concept of those who are, as a matter of fact, “covered by” the agreement. Contrary to its understanding, there could be no employees “covered by” the agreement until it had been made. It is only employees who “will be covered by the agreement” who can make an agreement (s 172(2)(a)) and vote to approve it (ss 180 and 181).

121    The Full Bench noted that in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139, an earlier Full Bench had, on an appeal involving different issues from those arising in this case, upheld a submission similar to that advanced by the SDA. The Full Bench in Cimeco said:

[41]    The expression “will be covered by the agreement” in this context does not indicate future likelihood [but] rather it expresses a determinate or necessary consequence.

The Full Bench in Cimeco went on to conclude that those who would be covered by the enterprise agreement at some time in the future on being “mobilized” to work in the relevant region were not within the expression “employees who will be covered by the agreement” for the purposes of ss 180 and 181.

122    The Full Bench in the present case decided not to apply the construction adopted in Cimeco, taking the view that it had been supplanted by the reasoning of the Full Court of this Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297.

123    CFMEU v John Holland also involved issues which were different from those raised on the present application. In particular, it concerned the question of whether “the group of employees covered by the agreement” had been “fairly chosen”, as required by s 186(3) and (3A). The Full Court held that the term “the group of employees covered by the agreement” referred to the whole class of employees to whom the agreement might apply in the future, and not just those who had voted on it (Besanko J at [2], Buchanan J at [34]-[41]).

124    The Full Bench of the FWC in the present case considered that the expression “employees … who will be covered by the agreement” in s 172(2)(a) and its cognate in s 182(1) should be given the same meaning:

[41]    Hence for the purposes of giving logical and consistent meaning to common phrases in the Act we consider it appropriate to apply the approach adopted by the Federal Court in relation to the fairly chosen test. That approach, in over view, supplants the approach adopted in Cimeco. The Federal Court’s approach entails two elements. The first involves determining whether the persons are employees, while the second entails determining whether the employees will be covered by the agreement after it is made. Application of the agreement is not relevant.

[42]    In the facts of this case we are of the view that the employees who accepted on-going employment in the Regency Park region were employed by ALDI at the time the agreement was made. Further, as their employment comprehended work within the scope of the Regency Park Agreement they were covered by the Agreement. It was legitimate and necessary for them to be included in the group of employees asked to approve the agreement. The resultant agreement was made under s.182(1). It was a single enterprise agreement available to be made under s.172(2)(a). The Agreement has been genuinely agreed to by the employees covered by the Agreement. The first ground of appeal must therefore fail.

(Emphasis added)

125    Again, it can be seen that in these passages the Full Bench elided the concepts of “will be covered by” and “covered by”.

126    As the Full Bench recognised, it is usually appropriate to presume that terms appearing in more than one provision in an enactment are used with a consistent meaning: The Registrar of Titles of Western Australia v Franzon (1975) 132 CLR 611 at 618; Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154, (2005) 145 FCR 523 at [14]. However, the presumption can be displaced by indications of a contrary intention.

127    In my opinion, there are such indications in s 186(2). First, as noted by Buchanan J in John Holland at [38], the group of employees to which s 186(3) and (3A) refer is “a wider group (corresponding to potential coverage) than the group of present employees who wish to bargain or whose immediate interests are those being represented”. That is to say, there is a relevant distinction between s 186(2), on the one hand, and s 186(3) and (3A), on the other. The latter subsections are concerned with the composition of the group of employees covered by an enterprise agreement and the manner by which the group was chosen. Section 186(2), on the other hand, is concerned with the different question of whether those within that group have genuinely agreed to it. These different subject matters and different contexts make it less likely that the term “covered by” is used with the same meaning in the three provisions.

128    Secondly, satisfaction by the FWC that the employees “covered by the agreement” have genuinely agreed to it would, in many cases, be very difficult, if not impossible, to attain if the employees in question are the whole class of employees to whom the agreement might apply in the future. It is not readily to be expected that the Parliament intended that the FWC had to be satisfied that all employees who might during the life of an enterprise agreement become covered by it had genuinely agreed to it.

129    In these circumstances, I consider that it was not appropriate for the Full Bench to apply the reasoning in John Holland in construing s 186(2)(a).

Consideration

130    ALDI emphasised in its submissions the fact that the 17 employees asked to vote on the enterprise agreement were current employees. This meant, it submitted, that they satisfied the description in s 172(2)(a) of employees “who are employed at the time the agreement is made”. Further, because the 17 employees had accepted ALDI’s offers of employment in the Regency Park Region, they were at the time employees “who will be covered by the agreement” for the purposes of s 172(2)(a) and ss 180 and 181. It was immaterial that they would not actually commence in the Regency Park Region until the Distribution Centre and the initial two stores opened. The Full Bench had accepted this submission.

131    The SDA emphasised the change in the terminology used in ss 186 and 188 compared with that used in ss 172 to 181. The latter uses prospective terminology “employees who will be covered”, whereas the former uses the present tense “covered by”. The use of the present tense and the fact that the FWC is to consider whether employees have genuinely agreed to the enterprise agreement indicates, the SDA submitted, a requirement that there be at least some employees actually (and not prospectively) covered by the enterprise agreement at the time it is made.

132    In my opinion, a number of features of the FW Act support this construction.

133    First, to my mind, it is a natural understanding of the language of s 186(2)(a) that it refers to the genuine agreement of the employees whom the enterprise agreement expresses itself to cover and who are in fact covered by it. There may be a question as to whether the employees to whom s 186(2)(a) refers are those who were covered at the time the agreement was made or includes those who have become covered by it by the time of the FWC’s consideration of the approval application. It is not necessary for the resolution of the present application to determine that question.

134    The matters listed in s 188 to which the FWC is to have regard in determining whether there has been genuine agreement to an enterprise agreement seem, with the possible exception of (c), to be of an objective kind. Nevertheless, it is the genuineness of the agreement by particular persons which the FWC is to assess, these persons being the employees “covered by” the agreement. There is, accordingly, an inherent requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is implicit in s 186(2)(a) that there be persons covered by the agreement whose genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the FWC. Persons who will become covered by the agreement only at some time in the future do not answer that description, even if they did, by some means, vote to approve it.

135    Further, in my opinion, the expressions “will be covered” and “covered by” in the scheme established by Pt 2-4 are counterpoints. Sections 172 to 181 use the former expression because they are concerned with the sequence of events until an enterprise agreement is made and because a contemplated enterprise agreement cannot cover anyone until it is made. The immediate change to the present tense following the final step in the sequence, that is, the making of the agreement (s 182), is an indication that those whom it was previously contemplated would be covered by the agreement are now, on the making of the agreement, covered by it (subject of course to the approval the FWC and the commencement of operation of the agreement pursuant to s 54). The change in terminology occurs because the work done by the term “will be covered” is complete. Because the two expressions are counterpoints, the expression “who will be covered by the agreement” is a reference to those who, upon the making of the agreement, are covered by it and is not a reference to those who, at some future time will become covered by it.

136    Section 187(5) continues to use the expression “will be covered by” in relation to greenfield agreements because, by definition, there are no employees “covered by” such agreements at the time they are made.

137    The terms of s 53(1) require consideration of the statement in the Regency Park Agreement of the employees covered by it. Clauses 3, 4 and 5 provide (relevantly):

3.     Parties to the Agreement

This Agreement is made between [ALDI] and all employees of ALDI who are employed to work under the classifications set out in Clause 5, and who are employed in ALDI’s Regency Park Region (“Employees”).

4.    Duration of the Agreement

This Agreement will commence operating in the first full pay period occurring at least 7 days after it is approved by the Fair Work Commission. It will expire four (4) years after the date of commencement unless terminated by agreement or replaced in accordance with the Act.

5.    Operation of the Agreement

ALDI operates Regions based on a Distribution Centre and stores with that Region.

The Regency Park Region is defined as the Distribution Centre operated by ALDI in Gallipoli Drive Regency Park (“The Distribution Centre”), and all ALDI stores which operate in South Australia and the Broken Hill City Council Local Government Area in New South Wales and the Rural City of Mildura Local Government Area in Victoria.

At the time of commencement of this Agreement, the Regency Park Region will include the stores listed in Schedule 5. This Agreement will apply to these stores and any new stores which operate in the Regency Park Region as defined in this clause.

This Agreement will apply to the following classifications of Employees of ALDI employed in the Regency Park Region:

•    Employees engaged in a retail store operated by ALDI (“a Store”) in the positions of Store Manager, Assistant Store Manager, Store Management Trainee, Store Assistant, and Stock Replenisher;

•    Employees engaged in the Distribution Centre operated by ALDI in the positions of Warehouse Operator, Warehouse Mechanic, Warehouse Caretaker, and Palletiser; and

•    Employees engaged in the transport and distribution operations of ALDI (“Transport and Distribution”) in the position of Transport Operator, operating from the Distribution Centre.

…

138    The Regency Park Agreement was signed by 16 employees, each of whom described himself or herself as “an Employee who will be covered by the Agreement” (Emphasis added).

139    As can be seen, cl 3 is an identification of the parties to the Regency Park Agreement. On its face, there appear to be some difficulties with this description of the employee parties because, although they are described as persons who “are” employed in the classifications set out in cl 5 and who “are” employed to work in the Regency Park Region, none of the signatories was, at the time he or she signed the agreement, so employed. Each was at that time still working in some other Region of ALDI and, as a consequence, in a classification to which the Regency Park Agreement could not apply. However, those considerations can be put to one side for present purposes.

140    Although the fourth paragraph in cl 5 uses the word “apply” and not the word “cover”, it seems to be an identification by class and position of the employees whom the agreement covers. It is appropriate to proceed on that basis, first, because it was common ground and, secondly, because there is, in any event, no other statement of coverage in the Agreement.

141    As can be seen, the description of coverage in cl 5 is expressed in the future tense. It specifies that the agreement “will apply” to the specified classifications of employees. This form of expression was necessary because, at the time the enterprise agreement was made, the Distribution Centre at Regency Park and the Stores at Seaford Heights and Parafield Gardens were still under construction. The agreement had therefore to speak to the future. The employee signatories recognised that this was so by describing themselves as employees who “will be” covered by the agreement. This was an express (and correct) recognition that they would become covered by the agreement only at some time in the future.

142    The point that the Regency Park Agreement did not in fact cover any actual employees at the time it was made or at the time of the application for approval to the FWC is revealed in a related way. Clause 5 refers to employees in classifications comprised of identified positions. However, at the relevant times, there were no employees actually in those positions. The 17 employees were then occupying other positions in other enterprises which were within the coverage of other enterprise agreements.

143    The consequence is that there were no employees actually “covered by” the Regency Park Agreement at the time it was made, at the time of the application to the FWC, or at the time the agreement was approved. Counsel for ALDI acknowledged that that was so.

144    The further consequence is that neither Bull DP nor the Full Bench undertook the task required by s 186(2)(a) in the way it required. They could have discharged that task only by first satisfying themselves that there were employees “covered by” the Regency Park Agreement in the sense required by Pt 2-4. Instead, the Full Bench considered whether the enterprise agreement had been genuinely agreed to by employees who “will be” covered by the agreement at some time in the future upon the happening of a contingency because it elided the concepts of “will be covered by” and “covered by”. The Full Bench overlooked that the work of the expression “who will be covered by the agreement” had been completed upon the making of the agreement in accordance with s 182.

145    There is another line of reasoning which may indicate that the Regency Park Agreement is not an enterprise agreement of the kind contemplated by s 172(2)(a). This line of reasoning arises from the indications in the FW Act, and in Pt 2-4 in particular, that the enterprise agreement contemplated by s 172(2)(a) is one made by an employer with existing employees working in the enterprise to which the enterprise agreement will relate.

146    One of the objects of the FW Act is the “achieving [of] productivity and fairness through an emphasis on enterprise-level collective bargaining” (s 3(f)). The Guide to Pt 2-4 contained in s 169 includes at its commencement the statement that an enterprise agreement is made at “the enterprise level”. Likewise, s 171(a) states that an object of Pt 2-4 is to provide a framework enabling collective bargaining in good faith, particularly at “the enterprise level”, for enterprise agreements which deliver productivity benefits. There is accordingly an emphasis on the making and negotiation of enterprise agreements at the enterprise level. Putting to one side the case of a greenfields agreement, this seems to assume implicitly that enterprise agreements are made in relation to existing enterprises and with existing employees working in them. The notion that there should be “collective bargaining in good faith” provides some support for this view.

147    Reasoning of this kind would support the inference that s 172(2)(a) refers, implicitly, to employees who are employed in the enterprise at the time the agreement is made and who will be covered by the agreement, and that it is only in relation to genuine new enterprises in which there are no such persons that the employer may negotiate an enterprise agreement with one or more relevant employee organisations.

148    Another possible indication to the same effect is the concept of a “single enterprise” used in the FW Act. Section 172 does not use the term “single enterprise”: only the term “single-enterprise agreement”. The definition of “single enterprise” in s 12 of the FW Act refers the reader to s 168A. Section 168A(3) provides (relevantly) that a single enterprise is “a business, project or undertaking that is carried on by an employer”. That definition replicates substantially, but not wholly, the definition of “enterprise” in s 12. The matter of significance for present purposes is the use of the present tense in “is carried on”, thereby implying an existing business, project or undertaking. If that be accepted, it may be but a short step to conclude that the reference to employees “who are employed at the time the agreement is made” in s 172(2)(a) and its cognates in ss 180 and 181 is a reference to employees who are employed by the employer in the enterprise to which the enterprise agreement is to relate, and not to employees employed in some other enterprise of the employer.

149    However, the SDA did not contend that the present application should be determined by the Court adopting this view of Pt 2-4. Accordingly, the resolution of the present application does not require a decision to be made on this line of reasoning. It is appropriately left to an occasion when the matter does arise for determination and when the Court will receive full argument.

150    I consider that the SDA has made good the first ground in its application.

Ground 2: The “better off overall” test

151    Section 186(2)(d) requires the FWC to be satisfied that an enterprise agreement submitted for approval satisfies the “better off overall test” (the BOOT). Section 193(1) provides some specification of the matters about which the FWC must be satisfied for an enterprise agreement to pass the BOOT.

When a non-greenfields agreement passes the better off overall test

(1)    An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

152    The “test time” to which s 193(1) refers was, in this case, the date on which ALDI applied to the FWC for approval of the Regency Park Agreement, namely, 4 August 2015.

153    As can be seen, s 193(1) requires the FWC to be satisfied that each award employee would be “better off overall” if the agreement applied to the employee than would be the case if the relevant modern award applied to that employee. The FW Act does not otherwise indicate the content of the requirement that the employee be better off overall, although it is implicit that it requires that the employee be “better off” and not just “no worse off”.

154    Bull DP was satisfied, upon ALDI providing an undertaking pursuant to s 190 of the FW Act concerning one matter, that the Regency Park Agreement satisfied the BOOT.

155    On the appeal to the Full Bench, the SDA challenged that finding. It sought, and was granted, leave to adduce further evidence on the question. That evidence included comparisons of the entitlements of 10 of the 17 signatories under the General Retail Industry Award 2010 (GRIA) and under the Regency Park Agreement. It was common ground that the GRIA was the relevant modern award for the purposes of s 193(1). The comparisons were said to indicate that 40% of the employees would, under the Regency Park Agreement, receive less than they would under the GRIA and, in some cases, significantly less.

156    The Full Bench dealt with the SDA’s submissions concerning the BOOT in the following way:

[56]    The SDA submits that the BOOT was not properly applied because rosters that were submitted as typical were not in operation at the relevant operations because they had not, at that time commenced. It submitted an analysis of entitlements which it submitted established that open ended provisions reserve a discretion in the employer that raise questions as to whether the agreement passes the BOOT.

[57]    ALDI submits that the Agreement, as with other ALDI Agreements contains the following clause that it submits contains a mechanism for ensuring that it meets the BOOT:

“The remuneration paid for each classification has been set to ensure employees are better off overall under this Agreement than under the relevant Modern Award which would otherwise apply. Where an Employee considers they are not better off overall under this Agreement than under the relevant Modern Award, they may request a comparison of the benefits received for a nominated period of time under this Agreement and the benefits which would otherwise be provided under the relevant Modern Award. Any shortfall in total remuneration which would otherwise be payable under the Modern Award will be paid to the Employee in the next pay period after the review is completed. If the Employee and ALDI cannot reach agreement on the remuneration which should be paid, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve the matter.”

[58]    This clause creates an enforceable right to payments to employees equal to or higher than those contained in the award. There is no limitation on its availability. The position is clearly distinguishable from the undertaking considered by a Full Bench in CEPU v Main People. In our view the Deputy President properly considered the BOOT and reached a decision based on a sound analysis. It has not been demonstrated that there is any appealable error in the decision under appeal. We dismiss this ground of appeal.

(Citation omitted)

157    The clause quoted by the Full Bench in [57] and on which it relied for the first conclusion in [58] is not a freestanding clause in the Regency Park Agreement. It forms part of cl 13. In order to avoid confusion, I will refer to the clause on which the Full Bench relied as “the make-good clause”.

158    Paragraph 58 indicates that the Full Bench had a two-fold basis for dismissing the appeal concerning the BOOT: first, the significance it attached to the make-good clause; and, secondly, its view that the decision of Bull DP was not affected by “appealable error”.

159    The SDA submitted that the reasons of the Full Bench concerning the BOOT reveal jurisdictional error in three respects. The first was that, although s 193(1) required the FWC to be satisfied that each employee would be better off overall if the Regency Park Agreement applied than he or she would be under the GRIA, the Full Bench had not addressed that matter, illustrated by the fact that it had not engaged with the further evidence bearing on it.

160    The second was that the FWC’s reliance upon the make-good clause was unreasonable in the legal sense. The SDA referred in this respect to R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430-1 in which Latham CJ held that, when the exercise of a statutory power is conditioned upon a decision-maker forming a particular opinion, the opinion must be such as may be formed by a reasonable person with a correct understanding of the relevant law.

161    The SDA’s third contention was that the reasons of the Full Bench in [58] indicated that it had misconceived and had accordingly not discharged its appellate task. Its reception of the further evidence had meant that the fate of the appeal did not turn on whether the SDA had established “appealable error” by Bull DP. Instead, the Full Bench had been required to assess the matter afresh on the evidence before it. The fourth and fifth sentences in [58] indicated that, instead of discharging that task, the Full Bench had determined the matter by considering whether there was appealable error in the decision of Bull DP.

162    As there was some overlap between the first two contentions, it is convenient to consider them together. In my opinion, these contentions have some force and I would uphold them.

163    As already noted, s 193(1) requires the position of each award employee to be considered. When the approval of an enterprise agreement by the FWC is contested and one of the protagonists identifies a matter or matters on which the entitlement under the enterprise agreement is inferior to the entitlement arising under a relevant modern award, it is to be expected that the FWC will, in the usual course, make an assessment of whether the alleged detriment does exist and, if so, its nature and extent. Once that assessment has been made, the FWC may consider any counter-balancing features which may warrant the conclusion that, despite the identified detriments, the employee is nevertheless better off overall.

164    In the present case, the approach just outlined would have required the FWC to assess the detriments alleged by the SDA. This is especially so given that ALDI had disputed that the alleged detriments did in fact exist. It had previously provided materials to Bull DP to support its contention that the BOOT was satisfied. There were accordingly issues of fact to be determined by the FWC bearing upon the satisfaction of the BOOT, but the Full Bench did not address those matters. At least to this extent, the FWC appears not to have carried out an aspect of the task required of it by s 193(1) of the FW Act. That is not necessarily indicative of jurisdictional error because an analysis of the kind outlined may not be necessary in every case. Much may depend on the context and circumstances of a given case.

165    This makes it pertinent to have regard to the Full Bench’s reliance on the make-good clause. It can be inferred that the Full Bench proceeded on the basis that the entitlement and means of redress for which the make-good clause provides made it unnecessary for it to engage in the kind of analysis outlined above. However, in my respectful opinion, this approach involved one of the forms of unreasonableness discussed by Latham CJ in Hetton Bellbird Collieries, by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, and by the Full Court of this Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, (2016) 237 FCR 1. As explained in these authorities, Parliament is to be taken to have intended that statutory powers will be exercised reasonably (Li at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88]-[89] (Gageler J); Stretton at [4]-[8] (Allsop CJ), and Hetton Bellbird Collieries at 430-1 (Latham CJ)).

166    The legal unreasonableness of the Full Bench decision, in the sense discussed in these authorities, is apparent on the face of its own reasons. In [58], the Full Bench characterised the make-good clause as creating an enforceable right to payments to employees equal to or higher than those contained in the GRIA. With due respect, the quoted clause cannot reasonably be regarded as creating a right to higher payments. The Full Bench does not explain how that could be so. On its face, the make-good clause creates, at best, an enforceable entitlement only to the shortfall between the employee’s payment entitlement under the Agreement and the employee’s corresponding entitlement under the GRIA. It does not create any entitlement to a payment under the Agreement which is superior to an entitlement under the GRIA. The Full Bench’s understanding of the clause to the contrary is, in my respectful opinion, not only wrong but unreasonable in the legal sense.

167    It is possible that the Full Bench included the words “or higher than” in [58] by way of a flourish, so that it would be reasonable for them to be ignored. I am prepared to accept that that may be so. I am also prepared to assume (for the purpose of dealing with this aspect of the matter only) that the Full Bench was correct in characterising the make-good clause as creating an enforceable right to payments “equal to” those contained in the GRIA. Even on these bases, I consider, respectfully, that it is evident that the Full Bench has not addressed itself to the criterion required by s 193(1). Alternatively, I would conclude that its conclusion is legally unreasonable. The requirement in s 193(1) is that each employee be better off overall. That is the matter which must be considered by the FWC. An entitlement to a payment which is no more than equal to the award entitlement cannot, by definition, satisfy that statutory condition. If the BOOT is to be satisfied when the payments to which an employee is entitled under the GRIA and the Regency Park Agreement are equivalent, the latter would have to contain provisions which are in other respects superior to those in the GRIA. That is especially so as the process contemplated by the make-good clause by which the employee may enforce the entitlement to the “shortfall” may well be protracted and inconvenient, with the consequence that the employee will not receive his or her true entitlements in the timely way contemplated by the GRIA, that is, weekly or fortnightly (cl 23). This would mean that although the employee may ultimately receive the payment equivalent to that for which the GRIA provides, the circumstances in which he or she receives it are less advantageous. One would expect, in those circumstances, that the Regency Park Agreement would have to provide for some counter-balancing (and superior) entitlement if the BOOT is to be satisfied.

168    The Full Bench did not engage in any analysis of these matters. It is not easy, with respect, to identify any rational basis upon which it could be concluded that the make-good clause could, without more, be regarded as justifying a conclusion that the BOOT was satisfied. As indicated, this warrants the conclusion that the Full Bench did not address the correct question or, alternatively, that if it did, the conclusion it reached by reference to the make-good clause is legally unreasonable.

169    I also consider that the SDA’s third contention concerning the Full Bench’s consideration of the BOOT should succeed. As already noted, the Full Bench concluded in [58] that Bull DP had properly considered the BOOT and had reached a decision based on a sound analysis. It went onto say that the SDA had not demonstrated any “appealable error”.

170    In my respectful opinion, these passages indicate that the Full Bench misunderstood its function. Once it had received the further evidence, the exercise of its appellate function was not constrained by the need to identify error by Bull DP. Instead, it was required to give its own decision on the evidence before it. See Coal & Allied Operations Pty Ltd at [14]-[15]. By misunderstanding its task in this way, the Full Bench did not exercise its jurisdiction as required by law.

171    I add that there was some disagreement between the parties on the hearing in this Court as to whether the Full Bench had in fact received all the further evidence on the hearing of the appeal. When the SDA sought in the FWC to adduce some of the further evidence, ALDI objected to it. The Full Bench did not rule on the admission of the evidence at that time but said that it would do so later. There is no indication that the Full Bench ever gave the foreshadowed ruling. However, in [3] of its reasons, the Full Bench recorded:

At the hearing of the matter the SDA, the TWU and ALDI sought and were granted leave to adduce fresh evidence that was not before Deputy President Bull. That evidence comprised witness statements and documents concerning the operations covered by the Agreement and the engagement of employees in those operations.

172    That passage reflects an understanding by the Full Bench that it had granted leave to all three parties before it to adduce all the further evidence. It can therefore be inferred that the Full Bench reached its decision on the basis that all the further evidence had been received.

173    I accept, of course, that the question of whether the BOOT was satisfied in any case is a matter for the FWC, but it must deal with the matter in the way required by the FW Act, and it has not done so.

174    For these reasons, I consider that the SDA has made good the contention that the decision of the Full Bench concerning the BOOT was affected by jurisdictional error. In the light of this conclusion, it is both unnecessary and inappropriate to consider the SDA’s more broadly based submission that a mechanism of the type contained in the make-good clause could not reasonably be regarded as satisfying the BOOT.

Ground 3: The alleged invalidity of the NERR

175    In my opinion, the SDA’s contention that the decision of the Full Bench is affected by jurisdictional error by reason of a defect in the NERR should be rejected. I respectfully agree with the reasons of Jessup J in [39]-[48] concerning this ground.

176    The reasons of Katzmann J on the question of whether a notice given pursuant to s 174 must conform strictly with the prescribed form do appear to have some force, but I would prefer not to express a concluded view on that issue until it is necessary to do so.

Summary

177    For the reasons given above, I consider that the SDA has established jurisdictional error by the FWC in two respects. First, in the decision of Bull DP on 22 September 2015. The jurisdictional error lies in the failure of the Deputy President to address the question required by s 186(2)(a), namely, whether the ALDI Regency Park Agreement 2015 had been genuinely agreed to by employees “covered by” the agreement.

178    Secondly, the decision of the Full Bench is affected by jurisdictional error in the same way as was the decision of Bull DP and by its failure, in relation to the appeal concerning the BOOT, to address itself to the question required by s 193(1) of the FW Act, alternatively, by the legal unreasonableness of its decision on that topic, and by its failure to discharge its appellate function in the way required by the law.

179    I would issue the writs of certiorari and prohibition sought by the SDA. If a writ was being issued only in respect of the Full Bench decision concerning the BOOT, it would be appropriate for the matter to be remitted to the FWC for further consideration according to law. However, the first basis for the issue of the writs makes that course inappropriate.

Associate:

Dated:    29 November 2016