FEDERAL COURT OF AUSTRALIA

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 11

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

THE COURT DECLARES THAT:

1.    The consequence of the order made by Deputy President Gooley on 25 March 2014 (PR548952) is that the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 is taken not to have been approved on 27 September 2013 and did not commence operation on 4 October 2013.

2.    The Teys Bros (Beenleigh) Pty Ltd/AMIEU Production Departments Enterprise Agreement 2010 did not cease to operate on 4 October 2013.

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

REASONS FOR JUDGMENT

BUCHANAN J:

Background

1    The Fair Work Act 2009 (Cth) (“the FW Act”) provides a mechanism for the making, approval and enforcement of “enterprise agreements”. One condition for approval is that the Fair Work Commission (“the FWC”) must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement” (s 186(2)(a)).

2    The applicant in proceeding QUD 224 of 2014 (“Teys”) made an application for approval of an agreement entitled Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 (“the 2013 Agreement”).

3    On 27 September 2013 Deputy President Asbury issued a decision approving the 2013 Agreement ([2013] FWCA 7477). Pursuant to that approval, the 2013 Agreement came into apparent effect on 4 October 2013 (FW Act, s 54(1)). On 4 October 2013 Deputy President Asbury issued (as she had foreshadowed in the earlier decision) a further decision ([2013] FWC 7804) explaining her reasons for rejecting the contention of the Australasian Meat Industry Employees Union (“the AMIEU”) that the 2013 Agreement was not genuinely made.

4    Those reasons concerned the fact that 21 of the employees who were regarded as entitled to vote in a ballot to approve the terms of the 2013 Agreement (FW Act, s 182) were alleged by the AMIEU to be ineligible to vote for the 2013 Agreement. Seventeen of those employees were alleged to be ineligible to vote because they performed the role of Trainee Supervisor.

5    Clause 1.3 of the 2013 Agreement provided:

1.3    Coverage & Scope

This Agreement shall apply to all Employees employed by Teys Australia Beenleigh Pty Ltd who are engaged in stock receival and preparation, production, and cleaning operations at the Beenleigh plant whose work is covered by the classifications contained in this agreement.

This Agreement does not seek to, nor does it cover, Employees engaged in repair and maintenance, administrative and clerical, laboratory, first aid, managerial and/or supervisory work.

6    Those performing the role of Trainee Supervisor (and others) were alleged by the AMIEU to be employed in “administrative and clerical, … managerial and/or supervisory” work. It was accepted that some at least of the 17 Trainee Supervisors voted, and all may have voted. As the margin for approval of the terms of the agreement was only 16 votes, Deputy President Asbury concluded that if Trainee Supervisors (and others) were not eligible to vote, then the outcome of the ballot may have been different.

7    Deputy President Asbury concluded that the Trainee Supervisors (and others) were eligible to vote. She took the view that participation in those roles was a “temporary redeployment” of production workers who were:

[55]    … being assessed as suitable for promotion to salaried supervisory positions and are being provided with structured training to undertake supervisory tasks, …

8    The AMIEU appealed. On 4 March 2014 a Full Bench of the FWC published a decision ([2014] FWCFB 1313) in which it said it proposed to uphold the appeal.

9    It is clear from the reasons of the Full Bench that it came to the view that the conditions for approval had not yet been found by Deputy President Asbury (upon a proper view of the statutory requirements) to be established. It appears from the reasons of the Full Bench that it came to the view that Deputy President Asbury should not have approved the 2013 Agreement for the reasons she gave because she could not (or should not) have then been satisfied that the statutory conditions for approval had been met. Those features of the Full Bench decision are directly relevant to some matters to be discussed in greater detail in due course.

10    In the argument before the Full Bench an issue arose about whether the decision to approve the 2013 Agreement should be set aside ab initio or prospectively. That question was delegated to a member of the Full Bench (Deputy President Gooley). The question of whether the 2013 Agreement should be approved, after taking into account the reasons of the Full Bench was to be remitted to Deputy President Asbury.

11    On 25 March 2014, Deputy President Gooley made an order (PR548952) in the following terms:

Appeal against decision [[2013] FWCA 7477; [2013] FWC 7804] of Deputy President Asbury at Brisbane on 27 September 2013 in matter number AG2013/8000.

[1]    Further to the Decision1 of the Full Bench of 4 March 2014, the Fair Work Commission orders that:

A.    The Decision2 and approval Decision3 of Deputy President Asbury issued on 27 September 2013 in matter AG2013/8000 are quashed; and

B.    The application (AG2013/8000) for approval of the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 is remitted to Deputy President Asbury to be dealt with in accordance with the Decision of the Full Bench dated 4 March 2014.

[2]    This order takes effect from 25 March 2014.

_________________________

1 [2014] FWCFB 1313.

2 [2013] FWC 7804.

3 [2013] FWCA 7477.

12    Teys has challenged the Full Bench decision issued on 4 March 2014 and the order made by Deputy President Gooley on 25 March 2014. Teys alleges jurisdictional error on the part of the Full Bench and seeks that its decision and the order of 25 March 2014 be set aside.

13    A further issue has also arisen about the interaction between Order [1]A (“quashing” the two decisions of Deputy President Asbury) and Order [2] (the date of effect of 25 March 2014).

14    Section 58 of the FW Act provides (relevantly here):

58    Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)    Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2)    If:

(a)    an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)    another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; …

…

then:

…

(e)    if the earlier agreement has passed its nominal expiry date— the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

…

(Emphasis in original.)

15    An earlier enterprise agreement, covering the same employees as the 2013 Agreement, came into operation on 1 January 2010 and passed its nominal expiry date on 31 December 2012 (“the 2010 Agreement”). Teys contends that because the two decisions of Deputy President Asbury to which reference has so far been made were only quashed with effect from 25 March 2014, the imputed operation of the 2013 Agreement from 4 October 2013 until that date means that the 2010 Agreement ceased to apply on 4 October 2013 and “can never … apply again” (FW Act, s 58(2)). The significance of this contention about the true meaning and effect of Deputy President Gooley’s order on 25 March 2014 is that if the 2010 Agreement ceased to apply on 4 October 2013, and can never apply again, then in any period thereafter where the 2013 Agreement did not apply the less beneficial terms of the federal Meat Industry Award 2010 (Cth) applied.

16    The contention has prompted the AMIEU to seek declarations from the Court that the true effect of the order made by Deputy President Gooley on 25 March 2014 is that s 58(2) does not operate on the 2010 Agreement as claimed by Teys. Rather, the AMIEU argues that on 25 March 2014 the 2013 Agreement was quashed for all purposes, and the 2010 Agreement therefore continued to apply on and after 4 October 2013.

17    The position is further complicated by the fact that on 10 April 2014 Deputy President Asbury issued two further decisions in which she again approved the 2013 Agreement ([2014] FWCA 2453) (with apparent operative effect from 17 April 2014) and explained her reasons ([2014] FWC 2449), having taken into account the decision of the Full Bench on 4 March 2014. There was a further appeal. Notwithstanding the fact that the present proceedings awaited hearing in this Court, on 18 September 2014 a differently constituted Full Bench, by majority upheld the appeal ([2014] FWCFB 5643). The Full Bench made an order on 18 September 2014 (PR555611) “quashing” the latest two decisions of Deputy President Asbury. That Full Bench order was expressed to take effect on 18 September 2014.

18    None of the latest two decisions of Deputy President Asbury or that Full Bench decision is the subject of any claim for relief in the present proceedings.

No. QUD 224/2014

19    This proceeding was commenced by Teys on 22 May 2014. The AMIEU is the first respondent, and the FWC is the second respondent. Teys seeks writs of certiorari and prohibition against the FWC for the purpose of quashing the Full Bench decision given on 4 March 2014 and the order made by Deputy President Gooley on 25 March 2014 and prohibiting further reliance on either of them. The effect of making such orders would, however, not be to reinstate the approval of the 2013 Agreement decided by Deputy President Asbury on 27 September 2013, because there were some further issues not decided by the Full Bench which would require its attention. Success for Teys might render the other proceedings at present before the Court (No. QUD 326/2014) academic, but that would depend on the outcome of the resumed appeal process in the FWC. It would mean that the second Full Bench decision was at least seriously compromised, if it could survive at all.

No. QUD 326/2014

20    This proceeding was commenced by the AMIEU in the Federal Circuit Court of Australia on 8 May 2014. It was transferred to this Court on 23 June 2014 on the application of the respondent, Teys.

21    The AMIEU seeks declarations to the effect that the order made by Deputy President Gooley on 25 March 2014 had the consequence that the first two decisions of Deputy President Asbury “were set aside ab initio and had no force or effect”, that the 2013 Agreement is deemed not to have been approved on 27 September 2013, that it did not come into effect on 4 October 2013, that the 2010 Agreement did not cease to apply on 4 October 2013 and that rates and conditions of employment continued to be regulated, after 4 October 2013, by the 2010 Agreement.

22    Teys opposes the relief sought. As I have already said, Teys’ position is that the 2010 Agreement ceased to apply on 4 October 2013, that the order made by Deputy President Gooley had no effect on the operation of the 2013 Agreement until 25 March 2014, that s 58 of the FW Act has the effect that the 2010 Agreement can never apply again and that (subject presumably to a correct view of the operation of the order made by the Full Bench on 18 September 2014) in the period from 25 March 2014 to 17 April 2014 (when Deputy President Asbury’s further approval decision of 10 April 2014 took effect) the Meat Industry Award 2010 applied.

23    The Minister for Employment has intervened in this proceeding (but not in No. QUD 224/2014) under s 569 of the FW Act. Section 569(1) provides:

569    Minister’s entitlement to intervene

(1)    The Minister may intervene on behalf of the Commonwealth in proceedings before a court (including a court of a State or Territory) in relation to a matter arising under this Act if the Minister believes it is in the public interest to do so.

24    The Minister’s argument (briefly stated) is that the 2013 Agreement applied from 4 October 2013 to 25 March 2014, as submitted by Teys. However, the Minister disputes Teys’ proposition that the 2010 Agreement had no application after 4 October 2013. The Minister argues that the overall statutory scheme has the effect that the 2010 Agreement commenced to operate again from 25 March 2014.

25    It must follow from this submission (if it is accepted as correct) that the 2010 Agreement ceased again to operate on 17 April 2014 (when Deputy President Asbury’s second approval decision took effect under s 54(1)) and recommenced for a further (third) period on 18 September 2014 (when the later Full Bench order was expressed to take effect). That view of the statutory scheme would require a significant restriction to be imposed on the operation of s 58 of the FW Act.

26    As earlier indicated, the particular issues raised by No. QUD 326/2014 only require resolution if the claims for relief in No. QUD 224/2014 are rejected.

The hearing arrangements

27    The Chief Justice directed that each application be dealt with by a Full Court. In light of their common background they were listed together for hearing at the same time by the same Full Bench, although there were separate submissions and oral arguments in each matter.

Three preliminary matters

28    It is convenient to mention, at this point, three areas of possible uncertainty which should be borne in mind in the discussion which follows. At present it will suffice simply to introduce these issues. Specific resolution of particular aspects may await the later discussion, where it is necessary.

29    The first preliminary matter concerns the nature of the decision issued by Deputy President Asbury on 4 October 2013.

30    Deputy President Asbury initially issued two decisions (and later issued a further two decisions). The first was a short decision stating approval of the 2013 Agreement. The second was a longer decision (foreshadowed in the first decision) issued seven days later (when the approval would normally take effect under s 54(1)) which gave detailed reasons for the first decision.

31    The Full Bench announced in its decision of 4 March 2014 that it would “quash the Deputy President’s decision to approve” the 2013 Agreement. Deputy President Gooley’s order made on 25 March 2014, on the other hand, stated that it quashed both “decisions” initially made by Deputy President Asbury. There is some doubt about the efficacy of an order which is expressed to “quash” reasons given by a decision-maker which are plainly separate from the decision itself.

32    Chapter 5 of the FW Act deals with “Administration”. Part 5-1 of Ch 5 deals with the Fair Work Commission. Division 3 of Pt 5-1 deals with “Conduct of matters before the FWC” and Subdivision D of Div 3 deals with “Decisions of the FWC”.

33    In subdivision D, s 598 provides (relevantly here):

598    Decisions of the FWC

(1)    A reference in this Part to a decision of the FWC includes any decision of the FWC however described. …

…

(3)    A decision of the FWC that is described as an order must be made by order.

(4)    A decision of the FWC that is not described as an order may be made by order.

34    Neither decision of Deputy President Asbury was described as an order.

35    Decisions under some parts of the Act (e.g. Part 2-4 which deals with approving enterprise agreements) must be in writing (s 601(1)). Section 601(2) then provides:

601    Writing and publication requirements for the FWC’s decisions

…

(2)    The FWC may give written reasons for any decision that it makes.

…

(Emphasis added.)

36    The decision given on 27 September 2013 was a decision approving an enterprise agreement, and was therefore required to be given in writing (s 601(1)).

37    However, Deputy President Asbury’s second decision on 4 October 2013 consisted entirely of reasons. It was called a “decision” but it does not appear to have had any separate force or effect from the approval decision issued seven days earlier. The distinction between a decision or order and the reasons for a decision or order is often an important one. Normally, in a judicial context at least, the reasons for an order made by a court are not regarded as part of the judgment itself. In R v Ireland (1970) 126 CLR 321, for example, Barwick CJ said (at 330):

In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court’s reason for decision and thus form a precedent.

38    In any event, it seems unnecessary that an order be made “quashing” the written reasons and, on one view at least, not appropriate to do so. There is normally no purpose served by purporting to expunge the reasons for an order from the record, even if it is necessary to “quash” an order.

39    Even in a more traditional case where certiorari is sought, it is only available to quash the legal effect or consequences of a decision or order (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 at [25]).

40    Reasons for a decision generally carry no separate legal effect, and they did not do so in the present case.

41    The second preliminary matter concerns the powers exercised by the Full Bench on appeal.

42    The central question for attention in QUD 224/2014 is whether the Full Bench made a jurisdictional error in the performance of its appellate functions under the FW Act (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (“Coal and Allied”) at [31]).

43    The appeal was permitted by s 604 of the FW Act (in Chapter 5, Part 5-1, Division 3, Subdivision E) which provides (relevantly here):

604    Appeal of decisions

(1)    A person who is aggrieved by a decision:

(a)    made by the FWC (other than a decision of a Full Bench or an Expert Panel); …

…

may appeal the decision, with the permission of the FWC.

(2)    Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note:    Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

…

44    The powers granted by s 607(3) of the FW Act include:

607    Process for appealing or reviewing decisions

…

(3)    The FWC may do any of the following in relation to the appeal or review:

(a)    confirm, quash or vary the decision;

(b)    make a further decision in relation to the matter that is the subject of the appeal or review;

(c)    refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:

(i)    require the FWC Member to deal with the subject matter of the decision; or

(ii)    require the FWC Member to act in accordance with the directions of the FWC.

45    The Full Bench decided (as expressed in its own written reasons) that Deputy President Asbury’s approval decision should be quashed (s 607(3)(a)), it refrained (although invited to do so) from making a further decision itself about the subject of the appeal before it (s 607(3)(b)), it referred the question of what order to make on the appeal to Deputy President Gooley (s 607(3)(c)(i)) and it remitted the question of entitlements to vote (and therefore the question of whether the 2013 Agreement had been genuinely made) to Deputy President Asbury to deal with again in accordance with the views expressed by the Full Bench (s 607(3)(c)(ii)). All of those steps are ones expressly authorised by the FW Act as powers which the Full Bench may exercise on appeal.

46    In the present case, it is the nature of the power in s 607(3)(a) which has come under specific attention. In particular, there is a question to be considered about the meaning of the term “quash”.

47    The catalogue of specific powers stated in s 607(3)(a) repeats a formulation which appeared in relation to appeals before the statutory predecessors of the FWC: the Australian Industrial Relations Commission (Workplace Relations Act 1996 (Cth), s 120(7)(a), before that the Industrial Relations Act 1988 (Cth), s 45(7)(a)) and the Conciliation and Arbitration Commission (Conciliation and Arbitration Act 1904 (Cth), s 35(9)(c)).

48    Clearly enough, one analogue of the traditional formulation using “quash” is “set aside”. Some statutes expressly provide for overturned acts or decisions to be set aside “ab initio” or from some other or later time (see eg. Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(a)). Even in a case where an act or decision is expressly set aside ab initio, or in any way retrospectively, the order which accomplishes that result obviously has no legal force or effect until it is actually made. Whether such an order has a retrospective effect after it is made (which is what is really at issue in the debate in the present case) depends upon the true meaning and effect of its terms, seen in the light of the statutory (or other) authority to make it.

49    The third preliminary matter concerns the notion of coverage of enterprise agreements, and the rights of employees who will be covered by an enterprise agreement to participate in the process by which such an agreement is made, if employed at that time.

50    Section 52 of the FW Act provides that an enterprise agreement applies to employees if it covers them. Section 53(1) then provides:

53    When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1)    An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

(Emphasis in original.)

51    A number of provisions connected with making enterprise agreements refer to employees who will be covered by an enterprise agreement having particular rights to participate in the agreement-making process and, in particular, having a right to vote upon the terms of a proposed enterprise agreement (see generally ss 172-180 and especially ss 181 and 182, referred to hereunder).

52    Section 256A of the FW Act assigns a statutory meaning to the concepts that an employee is covered, or will be covered, by an enterprise agreement that is relevant to the present case, as follows:

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.

…

(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.

53    It will be useful to bear in mind this statutory guidance in the discussion about the reasoning of the Full Bench hereunder. The Full Bench itself referred expressly to s 256A.

The Full Bench decision under challenge

54    The central question before Deputy President Asbury, as I earlier remarked, was whether 21 particular employees were entitled to vote for or against the proposed 2013 Agreement because they were persons, employed at the time, “who will be covered by the agreement”.

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

181    Employers may request employees to approve a proposed enterprise agreement

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

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

182    When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

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

(Emphasis in original.)

57    The Full Bench granted permission to appeal, and upheld the appeal, because it was satisfied that Deputy President Asbury had made two particular errors in the reasons expressed in her decision of 4 October 2013. The Full Bench said in its conclusions:

[26]    We are satisfied that the Deputy President erred in her interpretation of the expression ‘will be covered’ by the agreement, in s.181(1), and in having regard to anteriorly derived notions of fairness in construing the coverage of the Agreement. On that basis we will grant permission to appeal, uphold the appeal and quash the Deputy President’s decision to approve the Agreement.

58    Identification of those two errors persuaded the Full Bench that it was not necessary to deal with other challenges raised by the appeal.

59    It is relevant to note that the Full Bench did not decide that the 2013 Agreement could not (or should not) be approved even though some of the additional challenges, if upheld, may have had that consequence. The Full Bench confined itself to upholding two specific challenges to Deputy President Asbury’s reasons and to deciding that the reasons she had given did not, in view of the errors it found, provide a sufficient basis for approval. As I earlier remarked, it seems to follow from this reasoning that the 2013 Agreement should not have been approved when it was. Despite any possible uncertainty about that issue, the order which was made was not (and was not to be) in any way provisional. It was clearly intended to cancel the approval, place it at nought and require consideration of whether the 2013 Agreement should be approved to be undertaken again.

60    Before I refer to, and set out, the Full Bench reasoning which has been challenged by Teys as disclosing jurisdictional error it is convenient to make some further points about the statutory scheme, as these will be relevant to a proper appreciation of the effect of the order made by Deputy President Gooley on 25 March 2014.

61    Section 54(1) of the FW Act has the effect that an enterprise agreement comes into effect seven days after it is approved by the FWC (or on a later date of operation as specified in the agreement). The consequence of setting aside an approval will often be, therefore, that the statutorily assigned commencing date (seven days after approval) has been affected. This may have consequential effects for the life or duration of an enterprise agreement because s 186(5) of the FW Act prescribes the following requirement:

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

…

Requirement for a nominal expiry date etc.

(5)    The FWC must be satisfied that:

(a)    the agreement specifies a date as its nominal expiry date; and

(b)    the date will not be more than 4 years after the day on which the FWC approves the agreement.

…

62    That assessment must be made at the time that approval is being considered.

63    The facility for parties to make an agreement for up to four years may also have other consequences. Although enterprise agreements may continue in force after their nominal expiry date has passed, the period until the nominal expiry date has passed carries with it particular consequences. For example, a later enterprise agreement cannot begin to apply (s 58(2)(d)(i)). Industrial action which is not “protected” industrial action is unlawful (s 417).

64    The statutory arrangements, therefore, contemplate defined and definite commencing and expiry dates and a known and fixed nominal life for enterprise agreements.

65    These matters are all, obviously enough, well known to the FWC. They are fundamental to the work which it does. They must be borne in mind in assessing what the Full Bench intended as the consequence of the exercise of its own powers.

66    The Full Bench reasoning about the two errors which it found were made is set out in the following paragraphs of its decision:

[13]    The first issue raised by the appellant ((i) at paragraph [7] above) is directed at paragraph [47] of the decision subject to appeal in which the Deputy President says:

“[47]    The AMIEU essentially submits that the term “will” has a fixed intent and purpose. I do not accept that submission. In my view, the use of the term “will” is to ensure that employees who are reasonably identifiable at the time the ballot is conducted, and who will, or will likely be, covered by the Agreement during its operation, have an opportunity to vote and to be afforded the other rights pursuant to the pre-approval process for the agreement.”

[14]    The appellant submits that the Deputy President made an error in deciding that employees who ‘will likely be covered by the Agreement during its operation have an opportunity to vote’.

[15]    The phrase ‘will be covered by the agreement’ in s.181(1) does not indicate future likelihood but rather expresses a determinate or necessary consequence. As Katzmann J observed in CFMEU v FWA:

“Objectively, the intention of the legislature in using the expression was to ensure that the employer could only make an agreement with those employees who were named or described in the agreement and whom the agreement purported to cover.”

[16]    The respondent submits that the Deputy President’s reasoning at paragraph [47] of the decision must be read in context:

“Membership of the group or class of employees to be covered, or excluded from coverage, under a particular agreement is fluid and may at a later time result in an employee no longer being covered by an agreement for a number of reasons, such as, for example promotion to a supervisory position. Trainee Supervisors were at the time of voting engaged in the group to be covered - they had neither been offered contracts of employment from the different employing entity, nor were they undertaking management or supervisory work as properly understood under clause 1.3 other than from time to time as trainees with a mere prospect of being offered future employment as a supervisor. The principal purpose for which they were employed in the production operations was to perform work within the classifications contained in the Agreement and they were not excluded from coverage by reason of the exclusionary part of clause 1.3.

The reference in paragraph [47] to ‘or will likely be’ is thus no more than a reflection of the evidentiary issue before the Tribunal and was not a misapplication of the test. The reasoning in the Decision as a whole is further illustrative of the absence of any error.”

[17]    The decision subject to appeal must be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:

“The reasons under challenge must be read as whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”

[18]    Giving full force to his Honour’s observations we are not persuaded that paragraph [47] of the Deputy President’s decision can be characterised as a verbal slip. The Deputy President expressly rejected the AMIEU’s submission as to the meaning of the expression ‘will be covered by the agreement’ in s.181(1) and concluded, erroneously, that “the use of the term ‘will’ is to ensure that employees who are reasonably identifiable at the time the ballot is conducted and who will, or will likely be, covered by the Agreement during its operation have an opportunity to vote”.

[19]    The Deputy President’s view is confirmed at paragraph [48] where she observes that ‘the term ‘will’ should not be narrowly construed’. Further, the test posited at paragraph [47], that is future likelihood that the relevant employees will be covered by the Agreement, is then applied by the Deputy President at paragraph [57] of the Decision:

“[57]    I am also of the view that employees paid and classified as production workers at various levels of the Agreement can be temporarily assigned to perform incidental tasks such as assisting co-workers from non-English speaking backgrounds, at the behest of Teys, by interpreting for those co-workers. The evidence is that the employees engaged in these temporary assignments have now returned to their roles as production workers or will likely do so during the term of the Agreement...” [emphasis added]

[20]    It seems to us that the erroneous test adopted at paragraph [47] of the Decision was central to the Deputy President’s reasoning process and to her conclusion.

[21]    The appellant also submits that the Decision discloses a further error, at paragraph [50].

[22]    At paragraphs [49] to [65] of the Decision the Deputy President sets out her reasons for concluding that the Agreement covered all of the employees that the AMIEU submitted were not eligible to vote. Importantly, those reasons include the observation at paragraph [50] that:

“To accept the argument of the AMIEU with respect to the disputed employees would result in a situation where those employees would not be entitled to the benefits of either the Agreement or the Award. Such an outcome would be neither fair nor sensible.”

[23]    The task at first instance was to determine who ‘will be covered’ by the Agreement by reference to the terms of the Agreement, and in particular clause 1.3. Anteriorly derived notions of what would be fair or sensible are irrelevant to the task of construing the Agreement. As Madgwick J observed in Kucks v CSR Limited:

“But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[24]    It follows that we agree with the appellant’s submission and the Deputy President erroneously had regard to what would be a fair or sensible outcome in determining the coverage of the Agreement.

(Emphasis in original.) (Endnotes omitted.)

67    Teys’ case is that the Full Bench itself made errors in those passages and that the errors made by the Full Bench were jurisdictional in nature.

68    In its written submission, Teys argued:

3.    Jurisdictional error on the part of the Full Bench in the First Appeal Decision

3.1    Teys Australia has to demonstrate that the Full Bench fell into jurisdictional error in order to succeed. The Full Bench is only amenable to certiorari for an error of that kind.

3.2    The Full Bench could only exercise its appellate powers under s.607 of the FW Act if there was actual error on the part of the primary decision-maker. The exercise of the Full Bench’s appellate powers required the identification of error. The mistaken identification of error when none existed is a jurisdictional error. The Full Bench was not authorised to decide those questions wrongly because the actual existence of error is a precondition to the exercise of appellate powers. The issues of law before the Full Bench being matters of interpretation and construction did not involve the exercise of any discretion, they allowed for only one correct answer, which was either yes or no.

3.3    Teys Australia submits that the Full Bench fell into jurisdictional error on the basis that it identified and acted upon errors in circumstances where no errors existed.

(Emphasis added.) (Footnotes omitted.)

69    Teys relied particularly on the following passages from the High Court judgment in Coal and Allied:

14    Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

…

17    Because a Full Bench of the Commission has power under s 45(6) to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45.

(Footnotes omitted.)

70    Despite Teys’ reliance on the judgment of the High Court in Coal and Allied, in my respectful view the submissions set out above are contrary to the statements by the majority judgment in Coal and Allied relevant to this issue. It should be noted that in [14] their Honours (Gleeson CJ, Gaudron and Hayne JJ) referred only to the need for a court or tribunal to be “satisfied” there was error. Although there seems to be a clearer statement in support of Teys’ submission in [17], when that paragraph is read in the context supplied by the nature of the appeal as a rehearing it is apparent that their Honours were dispelling the notion referred to earlier (at [15]) that the appeal in Coal and Allied was an appeal where a fresh decision could be made, on further evidence, without a prior conclusion of error (such as in Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267).

71    Their Honours said, in that connection (at [15]):

15    The provision considered in Brideson [No 2] conferred power on the Commission to take further evidence, a provision which is indicative of an appeal by way of rehearing. It also required the Commission to “make such order as it [thought] fit”. The latter requirement indicated that the Commission’s appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it.

(Footnote omitted.)

72    In Coal and Allied, Gleeson CJ, Gaudron and Hayne JJ went on to say (at [30]-[32]):

30    The Full Court concluded that the Full Bench of the Commission fell into jurisdictional error because it proceeded on the basis that the decision of Boulton J was attended by appealable error when it was not. And it did so, in the view of the Full Court, because of its “fundamental misconception ... of the Commission’s role arising from the combined operation of s 170MW(l) and (3)”. To misconceive the role of the Commission under s 170MW (assuming that that is what the Full Bench did) does not constitute jurisdictional error on the part of the Full Bench.

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

32    In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution.

(Footnotes omitted.)

73    I understand those passages to mean that a correct conclusion on appeal, about the existence of an error made by a single member from whom the appeal is brought, is not a necessary pre-condition to jurisdiction. Such an error may well be (and would have been in that case) an error within jurisdiction.

74    I would therefore not accept that the Full Bench would make a jurisdictional error if it wrongly concluded that Deputy President Asbury’s decision or reasons disclosed errors in her understanding or application of s 181 of the FW Act or otherwise.

75    To examine whether the Full Bench made a jurisdictional error in relation to the exercise of its appellate powers it is necessary to evaluate the matters about which it was critical by bearing in mind its own task on the appeal. However, in deference to Teys’ argument, I propose to first examine whether, as Teys argued, it is apparent that the Full Bench itself made errors of analysis and wrongly found error by Deputy President Asbury.

76    Deputy President Asbury was not exercising a discretion when she approved the 2013 Agreement; she was intending to obey a statutory command. If the persons who were eligible to vote (including the 21 disputed employees, amongst whom were the 17 Trainee Supervisors) were persons who, within the meaning of s 181(1) and s 182(1) were persons who “will be covered by” the 2013 Agreement then Deputy President Asbury was (at least so far as this particular issue is concerned) obliged to approve the 2013 Agreement, notwithstanding the objection of the AMIEU.

77    In my respectful view, when it examined Deputy President Asbury’s reasons the Full Bench did not pay sufficient regard to the overall context in which the particular passages it extracted ([47], [48] and [57]) appeared. The reference in those passages to what would “likely” happen during the life of the 2013 Agreement appear to me to be plainly observations about the particular individuals then carrying out the disputed roles. However, equally plainly, the burden of the discussion was focussed (correctly, with respect) on whether those persons fell within the classes of persons to be covered by the 2013 Agreement.

78    Thus, Deputy President Asbury said (at [49]):

[49]    Applying the principles of construction relevant to industrial instruments, I am of the view that the Agreement in the present case covers all of the employees that the AMIEU asserts were not eligible to vote. …

and (at [52]-[53]) referring to the Meat Industry Award 2010 as an aid to interpretation of the 2013 Agreement:

[52]    Further the Award is expressed at clause 4.3(c) to exclude “employees engaged to undertake managerial duties and responsibilities at the level of foreman and above” (emphasis added). In order to be excluded from the coverage of the Award, employees undertaking managerial duties and responsibilities at the level of foreman and above, must be specifically engaged to do so.

[53]    This is consistent with the practice of Teys to enter into common law contracts of employment with Supervisory Staff and to employ such persons under a separate entity to that which employs production employees. In my view, but for the Agreement there would be no question that the Award would cover Trainee Supervisors and the other disputed employees, who are substantively employed as production workers and are undertaking tasks either as Trainees or on a temporary basis.

(Emphasis in original.)

and (at [55]-[56]):

[55]    To construe the Agreement as excluding production workers who are being assessed as suitable for promotion to salaried supervisory positions and are being provided with structured training to undertake supervisory tasks, would be contrary to the objects of the Agreement. Similarly a production worker who is undergoing training in workplace health and safety or quality control, is covered by the Agreement.

[56]    Further, the use of the term “engaged” in clause 1.3 is consistent with the Award provision referred to above. In my view, unless and until production employees who are in the role of Trainee Supervisors, or undergoing workplace health and safety training, are specifically engaged as Supervisors or Workplace Health and Safety Officers, in accordance with the arrangements customarily used by Teys to engage salaried staff, they are covered by the Agreement.

(Emphasis added.)

and (at [58]-[61]):

[58]    The fact that there is no classification for Trainee Supervisors or Interpreters in the Agreement does not change my view. It is trite to say that an employee cannot be removed from the coverage of an industrial instrument by a simple change of title.

[59]    A temporary redeployment does not change the employee’s substantive classification, particularly in circumstances where the employee can at any time, at the discretion of Teys, be required to perform production work. This is apparent from the evidence that some employees are performing the role of Tutors, and are considered to be covered by the Agreement, notwithstanding that there is no classification for Tutors in the Agreement.

[60]    In the present case, a boner or a slicer would not be removed from the coverage of the Agreement by having his or her job designation changed to “knife artisan”. Further the fact that Trainee Supervisors wear hats of a particular colour, or carry two way radios, does not change the fundamental nature of their employment.

[61]    The question of whether an instrument covers an employee requires more than a quantitative assessment of the time spent carrying out various duties. What is determinative is the circumstances in which the person is employed and the principle purpose of the employment. In the present case, the Trainee Supervisors, interpreters and persons being trained to undertake quality control or workplace health and safety, are principally employed as production workers, and Teys has the right at any time to return them to such roles.

(Emphasis added.) (Endnote omitted.)

79    In my view, Deputy President Asbury’s principal conclusion was that employees in the disputed roles were production workers, temporarily deployed to particular duties but not substantially engaged in non-production roles, who continued to be covered by the proposed agreement and to whom the proposed agreement would apply unless they were in the future substantively engaged in a different role, at which time the 2013 Agreement would no longer apply to them.

80    It is true that Deputy President Asbury also said, quite early in this analysis (in passages which I passed over in the earlier extracts):

[49]    … I have reached this conclusion for the following reasons. …

[50]    The Agreement is beneficial in that it delivers wage increases and provides for terms and conditions of employment for production employees. I am satisfied that employees are better off overall under the Agreement than they would be under the Meat Industry Award 2010. To accept the argument of the AMIEU with respect to the disputed employees would result in a situation where those employees would not be entitled to the benefits of either the Agreement or the Award. Such an outcome would be neither fair nor sensible.

81    I doubt that those observations truly merit their description by the Full Bench as “anteriorly derived notions of what would be fair or sensible”, but whether or not that is so, they do not seem to me to detract from the effect of the rest of the analysis.

82    That analysis seems to me, with respect, to be one which led directly to the conclusion that the disputed employees were eligible to vote. I do not share the view of the Full Bench that the analysis was based on any apparent error of construction or other legal error. However, even on a correct application of the relevant provisions, evaluation and judgment about the particular work of Trainee Supervisors and others was required. That was another area of challenge on the appeal. Apart from the textual criticisms which I have discussed, the Full Bench did not directly engage with that question; that appears to be amongst the matters put aside as unnecessary to decide.

83    If it was a matter for this Court to decide, I would not agree with the Full Bench that Deputy President Asbury’s reasons displayed any misunderstanding or misapplication of the requirements or operation of s 181 of the FW Act. However, that is not the issue at hand.

84    The question is whether the Full Bench made a jurisdictional error in the performance of its own functions on appeal, even if it did (as I would respectfully conclude) make errors in its conclusions.

85    The Full Bench decided that the reasons given by Deputy President Asbury for deciding that the disputed employees were eligible to vote were either insufficient or insufficiently cogent (it does not matter which for present purposes). The Full Bench decided, therefore, that the exercise committed to the FWC under s 186 had not been properly performed. Completion of that task was remitted to Deputy President Asbury.

86    The Full Bench was exercising a supervisory role contemplated by the FW Act. It was entitled to form its own view of the requirements and operation of s 181 for the purpose of carrying out its own functions, even though its opinion would not be legally conclusive (Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148-9). More importantly, assessment by the Full Bench of whether the reasons of Deputy President Asbury constituted a sufficient foundation for her conclusions involved questions of judgment. In my view, it was open to the Full Bench in the performance of its own role on appeal to conclude, even incorrectly, that an adequate foundation for approval had not been established and to remit that question for further consideration. I can see no jurisdictional imperative requiring the Full Bench to take a different course or to dismiss the appeal.

87    Despite my disagreement with the Full Bench’s analysis, therefore, I am not able to conclude, as Teys argued, that the Full Bench made a jurisdictional error in the performance of its own functions. If it made an error, then that was an error within jurisdiction in my view.

88    For completion I should observe that in the present proceedings no particular complaint or challenge was made about the fact that the order of 25 March 2014 purported to quash Deputy President Asbury’s reasons for decision. No separate attention need, therefore, be given to that feature of the procedure followed by the FWC. Even if, for the reasons given earlier, it was an error for Deputy President Gooley to have ordered that the decision of 4 October 2013 be quashed, and even if that might be regarded as a jurisdictional error, it would not, in any event, provide an occasion for relief in the present case as it had no separate practical consequence from the order to quash the approval decision of 27 September 2013.

89    It follows that the application in QUD 224/2014 should be dismissed.

The AMIEU challenge

90    This involves some different issues, and there is no clear cut path of statutory construction which yields a completely satisfying answer or analysis. Nevertheless, in my respectful view the position in the present case is sufficiently clear if the correct focus is applied.

91    As I earlier indicated, the statutory catalogue of powers on appeal to “confirm, quash or vary” a challenged decision or act has a long and unvarying history. However, whatever traditional ideas might be associated with the legal action of “quashing” a decision or act (e.g. through an order in the nature of certiorari) the concept in the present context must be accommodated to two fundamental considerations. First, the FWC is not (and its predecessors were not after 1956) a court; it is an administrative tribunal of a particular kind. The FWC may not expunge matters from the record, however its powers on appeal may be described. Secondly, the FW Act is based on quite different constitutional underpinnings than the statutory schemes from most of the period from 1904.

92    In that context, enterprise agreements are not truly consensual bargains between negotiating parties. For the reasons explained in Toyota Motor Corporation Australia Limited v Marmara (2014) 222 FCR 152 (at [88]-[89]) enterprise agreements approved under the FW Act have more of a “legislative” character than a contractual one. The task of the FWC is to ensure compliance with statutory objectives and conditions, rather than principally to endorse a free-standing and independent bargain.

93    That makes it unlikely that the task of the FWC in relation to the approval of enterprise agreements, including on appeals, could include any form of temporary or provisional approval in the absence of satisfaction about compliance with the statutory requirements. It is clear in the present case that there was nothing temporary or provisional intended by the Full Bench as an order dealing with the appeal; the approval decision was to be quashed.

94    It must also be remembered that the power of industrial tribunals to make retrospective orders (including on appeals) has not seriously been doubted for a very long time (see e.g. Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) (1935) 54 CLR 470).

95    In the present case, neither party nor the Minister argued that the order made by Deputy President Gooley could not take effect before the date on which it was made – 25 March 2014. However, both Teys and the Minister argued that the date of operation chosen was deliberately not retrospective as precisely that question was argued before Deputy President Gooley (and earlier the Full Bench) as a matter of discretion. The Full Bench said:

[28]    During the course of the proceedings on 11 December 2013 counsel for Teys submitted that if, contrary to his submissions, we concluded that the Deputy President had erred and the decision to approve the Agreement must be set aside then a question would arise as to whether the Agreement should be set aside ab initio or prospectively. We indicated that if we reached such a conclusion we would provide the parties with an opportunity to be heard before finalising the order arising from our decision. We propose that Deputy President Gooley settle the order arising from our decision after providing the parties with an opportunity to be heard, with recourse to the Appeal Bench [if] necessary.

96    If the Full Bench truly had a discretion to leave the 2013 Agreement in operation until the date of the order disposing of the appeal, that would be a powerful indication in favour of the position taken by Teys and the Minister that the 2013 Agreement applied from 4 October 2013 to 25 March 2014.

97    However, in my view the scheme of the FW Act does not allow that conclusion. Even though the order made by Deputy President Gooley was expressed to take effect on the day it was made (an approach which, in any event, accords with reality) that does not signify that until that time the 2013 Agreement could be regarded as having a valid but only temporary operation.

98    The question of the effect of the order made on 25 March 2014, and its consequence for the operation of the 2010 Agreement, may be considered first by considering the consequences for the 2013 Agreement.

99    As I earlier indicated, there are a number of statutory indications that an enterprise agreement is intended to have a single fixed period of operation, with its nominal life commencing seven days after its approval.

100    Upon the arguments advanced by Teys and the Minister on this point, the 2013 Agreement has had at least two such temporary and inconclusive periods of existence, each of which has been terminated because of a view by a Full Bench that satisfaction of a statutory condition has not been established.

101    I am not able to accept the thesis that the 2013 Agreement has come into existence (more than once) despite the conclusions that the necessary statutory conditions have not been fulfilled. If it had done so, the consequences would be significant and unintended.

102    The issue is illuminated by the operation of ss 54 and 58 of the FW Act. Section 58 was set out earlier but it is convenient to set it out again in the context given by s 54:

54    When an enterprise agreement is in operation

(1)    An enterprise agreement approved by the FWC operates from:

(a)    7 days after the agreement is approved; or

(b)    if a later day is specified in the agreement—that later day.

(2)    An enterprise agreement ceases to operate on the earlier of the following days:

(a)    the day on which a termination of the agreement comes into operation under section 224 or 227;

(b)    the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note:    Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3)    An enterprise agreement that has ceased to operate can never operate again.

58    Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)    Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2)    If:

(a)    an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)    another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; …

…

then:

…

(e)    if the earlier agreement has passed its nominal expiry date— the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

…

(Emphasis in original.)

103    In my view, those provisions are intractable. It does not matter that they might operate inconveniently in this case or other cases. If the correct view is that the 2013 Agreement commenced to operate on 4 October 2013 and was then quashed on 25 March 2014, then in my view the 2013 Agreement could never operate again.

104    It is clear that the conclusion of the Full Bench was that the 2013 Agreement should not have been approved by Deputy President Asbury on 27 September 2013 for the reasons that she gave. I see no support for the proposition that the Full Bench intended (or should be taken to have intended) that the 2013 Agreement should operate between 4 October 2013 and 25 March 2014.

105    Furthermore, the circumstance on which s 54(1)(a) may have operated to yield a commencing date of 4 October 2013 (i.e. approval on 27 September 2013) was set aside (i.e. quashed). From 25 March 2014 it must be taken that the approval did not exist for the purpose of s 54(1)(a).

106    The 2013 Agreement therefore did not commence to operate and it did not cease to operate. If it had ceased to operate, (having once been approved and commenced to operate) it could never operate again – s 54(3). In those circumstances it clearly could not have been approved again by Deputy President Asbury and it would have been irrelevant of a later Full Bench to set aside the later approval.

107    In my view, once the Full Bench, through the order made by Deputy President Gooley, quashed the decision to approve the 2013 Agreement (and therefore the approval itself) the 2013 Agreement had no effective operation from 4 October 2013, or from any other date until (potentially) 17 April 2014 pursuant to Deputy President Asbury’s second approval on 10 April 2014, but that approval has now been set aside also.

108    The conclusions I have expressed about what I see as the inevitable effect of the order made on 25 March 2014 to give effect to the Full Bench decision make it unnecessary to explore in any greater depth whether the innate character of an order to “quash” a decision under s 607(3)(a) of the FW Act carries the necessary consequence that the decision is set aside ab initio, or may be set aside from some later time. As I have attempted to explain, once the approval decision was set aside, it was the FW Act itself which had the consequence that the 2013 Agreement could not be considered to have commenced operation, or later ceased operation.

109    As the 2013 Agreement neither commenced to operate on 4 October 2013, (nor ceased to operate thereafter) no difficulty exists concerning the 2010 Agreement. Once the order was made on 25 March 2014 quashing the approval decision on 27 September 2013, it must be taken that the 2010 Agreement continued to operate beyond 4 October 2013. Subject to any challenge that might be brought against the second Full Bench decision on 18 September 2014, the 2010 Agreement has not effectively been replaced at any stage by the 2013 Agreement.

110    For those reasons I would make declarations to the general effect sought by the AMIEU.

111    I would not, however, make the declarations in the terms actually sought by the AMIEU, some of which do not take into account the second Full Bench decision on 18 September 2014. No challenge to that decision is before us on the present applications. In the circumstances, only a declaration which makes clear the position at 4 October 2013 should be made. I would make declarations in the following terms:

(1)    The consequence of the order made by Deputy President Gooley on 25 March 2014 (PR548952) is that the Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 is taken not to have been approved on 27 September 2013 and did not commence operation on 4 October 2013.

(2)    The Teys Bros (Beenleigh) Pty Ltd/AMIEU Production Departments Enterprise Agreement 2010 did not cease to operate on 4 October 2013.

Associate:    

Dated:    12 February 2015

REASONS FOR JUDGMENT

logan j:

112    I have had the advantage of reading in draft the reasons for judgment of Buchanan J with which I understand Katzmann J agrees.

113    For convenience, I employ the abbreviations which Buchanan J has chosen to adopt. I gratefully adopt his Honour’s summary of the background facts, the course of proceedings before the FWC, the issues raised and the submissions of the parties, including the intervener, in these two proceedings in the Court’s original jurisdiction.

114    Buchanan J has also set out pertinent extracts from the FW Act and summarised the submissions made by the parties (including the intervener).

115    As s 20(2) of the Federal Court of Australia Act 1976 (Cth) permits, that original jurisdiction is being exercised by a Full Court following a direction by the Chief Justice on the basis that the two matters are of sufficient importance to warrant the Court being so constituted.

QUD 224/2014

116    Buchanan and Katzmann JJ are disposed to deal with the merits of the application to this Court made by Teys on 22 May 2014 for orders under s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) in the nature of prohibition and certiorari to issue so as to prohibit further proceedings by the FWC and to quash the decision of a Full Bench of the FWC given on 4 March 2014 and that of the FWC constituted by Deputy President Gooley on 25 March 2014.

117    For the reasons which follow, I respectfully differ as to the appropriateness, in the events which have transpired, of dealing with that application on that basis. Because that difference cannot affect the disposition of the application, it has not proved necessary to re-open the proceedings so as to offer the parties an opportunity to make submissions on whether, as I consider it ought to be, the application should be dismissed on discretionary grounds.

118    It is a feature of the course of proceedings before the FWC that, even after Teys applied to this Court for orders under s 39B(1) of the Judiciary Act, the FWC continued to exercise its jurisdiction. It did so even after the FWC, by its solicitor, filed a submitting appearance in this Court on 2 June 2014. By that appearance, the FWC “[submitted] to any order the Court may make in these proceedings” but reserved a right to be heard in respect of costs. On 18 September 2014, a Full Bench of the FWC (differently constituted from that which made the decision of 4 March 2014), by majority, upheld an appeal from the decision of the FWC constituted by Deputy President Asbury made on 10 April 2014 again to approve the 2013 Agreement.

119    The members of the FWC are each officers of the Commonwealth for the purposes of s 39B of the Judiciary Act, as they are for the purposes of the paramount, constitutionally entrenched original jurisdiction exercisable by the High Court under s 75(v) of the Constitution. That there was an inherent tension between the filing of a submitting appearance to an application for prohibition by a respondent FWC constituted by officers of the Commonwealth and that FWC continuing to exercise the very same jurisdiction the exercise of which was sought to be prohibited seems not, with all due respect, to have occurred to the FWC. In accordance with contemporary practice, the FWC as an institution, rather than its members by name, was named as respondent both to the application for certiorari and also prohibition but it was against all and each of its members that prohibition would issue in the event that cause was found, not merely those members who had constituted the Full Bench for the purpose of making the decision of 4 March 2014 and Deputy President Gooley in respect of the consequential decision of 25 March 2014. It was the FWC and thus each of its members which had filed the submitting appearance.

120    When the FWC’s Full Bench chose to embark on a continued exercise of jurisdiction after the FWC had been served with the application for prohibition and certiorari and after it had filed a submitting appearance, it also seems not to have occurred to Teys to seek interlocutory injunctive relief to prevent the continued exercise of jurisdiction pending the hearing and determination of the s 39B application (or, perhaps, to cite the members of the FWC for an alleged contempt of this Court, given that they had earlier filed a submitting appearance). Instead, both Teys and the AMIEU acquiesced in the continued exercise of jurisdiction by the FWC.

121    The practice followed in the High Court in respect of an application under s 75(v) for a constitutional writ is to require the officer of the Commonwealth named as a respondent to show cause before the Court why that writ ought not to issue: r 25.01 and Sch 1, Form 12, High Court Rules 2004 (Cth) (“High Court Rules”). This replicates, in the current practice of that court, a longstanding practice in respect of applications for prerogative writs. A two-step process is involved. An applicant must first persuade a judge that the application has sufficient merit to warrant the named respondents being required by order to show cause before a Full Court why the prerogative writ ought not to issue. Under the current High Court Rules, such applications must be made on notice: r 25.03. In this way, any opposition to the relief sought by a respondent is identified at an early stage and the need, if any, for interlocutory injunctive relief or a suitable undertaking so as to preserve the efficacy of the proceeding is exposed.

122    In contrast, this Court’s current practice does not incorporate such a two-step process: r 31.11(1), Federal Court Rules 2011 (Cth) (“Federal Court Rules 2011”) and Form 69. A directions hearing follows the serving of the application but that is not for the purpose of obtaining an order to show cause, only for pre-trial directions, which may include the granting of interlocutory relief. The obligation for the respondent officer of the Commonwealth to show cause arises only at any trial fixed after the directions hearing. Even so, where the respondent officer of the Commonwealth signifies to the Court either at the directions hearing or beforehand that he or she will abide any order of the Court save as to costs, that implicitly carries with it an intimation that that officer will not thereafter act in a way which would render the orders sought futile.

123    In relation to prohibition, it may well be that an advantage of an explicit provision for a two-step process is that it better brings home to a respondent officer of the Commonwealth that an application has been made for a an order requiring that officer to show cause before the Court why he or she should not be prohibited from continuing to exercise a claimed jurisdiction. That, in turn, it might be hoped, would make the ramification of a choice not to show cause at trial but instead to abide the court’s order more obvious. That ramification is that one will refrain, pending the fate of the application, from exercising the claimed jurisdiction.

124    The submitting appearance filed by the FWC ought to have resulted in a temporary cessation of the exercise of jurisdiction by the FWC with the AMIEU, as the other named respondent, then being the active party contradictor showing cause why the FWC could lawfully continue to exercise jurisdiction.

125    Even though it was aggrieved by the decision of the Full Bench of 4 March 2014 and the consequential remitter order made by Deputy President Gooley on 25 March 2014, Teys did not apply for prohibition and certiorari until 22 May 2014. In the meantime, acting on the remitter order of 25 March 2014, Deputy President Asbury had at least purported to exercise the FWC’s jurisdiction by again approving the 2013 Agreement. Upon the making of that approval order, the remitter order became wholly spent.

126    The Federal Court Rules 2011 do not contain a time limit within which an application under s 39B for orders in the nature of prohibition and certiorari must be sought. But there must be something left to prohibit. Further, even in the absence of a prescribed time limit, prohibition and certiorari are discretionary remedies and delay is always a relevant consideration in relation to whether to grant the relief sought: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 421-422; Ex parte Malouf; Re Gee; Ex parte Malouf; Re Gee (1943) 43 SR (NSW) 195 at 201-202; R v Williams; ex parte Lewis [1992] 1 Qd R 643 at 658.

127    Here, the Full Bench decided on 4 March 2014 to allow the appeal against the order which Deputy President Asbury made on 27 September 2013 approving the 2013 Agreement but delegated to one of its members, Deputy President Gooley, the task of making consequential orders. This he did on 25 March 2014, quashing the approval decision and remitting the matter to Deputy President Asbury to deal with it in accordance with the reasons of the Full Bench. Deputy President Asbury has now dealt with the matter afresh and the resultant order has, on the evidence before us, itself been the subject of an appeal to the Full Bench which, on 18 September 2014, quashed the order which had again approved the 2013 Agreement.

128    The proceedings before Deputy President Asbury on remitter and the subsequent Full Bench appeal were conducted on the basis that the FWC had jurisdiction to order that remitter and on the basis that the Full Bench might lawfully hear and determine the appeal against Deputy President Asbury’s further approval decision. They were so conducted before the Full Bench even though there was a then extent application for prohibition and certiorari.

129    In these circumstances, my view is that the Court ought not to embark upon a consideration of the merits of the application for prohibition and certiorari in respect of the decisions of 4 March 2014 and 25 March 2014. I refrain from expressing a view on the merits. The remitter order made as a consequence of the allowance of the appeal by the first Full Bench is, as I have observed, spent. The parties have allowed proceedings to progress in the FWC both before and after remitter on the basis that the remitter was valid. Orders under s 39B in the nature of prohibition and certiorari should be refused as a matter of discretion. The application should be dismissed accordingly.

130    That has the consequence that the claim for declaratory relief made by the AMIEU ought to be determined on the basis that each of the orders made by the FWC was valid.

QUD 326/2014

131    The AMIEU filed its application for declaratory relief in the Federal Circuit Court 8 May 2014. That application was transferred to this Court on 23 June 2014. Thus the application for declaratory relief was made following the approval order made by Deputy President Asbury on 10 April 2014 but prior to the quashing of that order by the Full Bench on 18 September 2014.

132    Though the Court was informed of the circumstance and outcome of this second Full Bench proceeding, the parties did not in their submissions address what ramifications that outcome had for the relief sought in the declaratory proceedings. Nor was there any amendment of the relief sought in those proceedings so as to take account of this later development. In effect, even though it is now known that the FWC’s second approval decision has been quashed, the parties would have the Court grant declaratory relief on the basis that this has not occurred.

133    Edwards v Santos Ltd (2011) 242 CLR 421 serves as a reminder of the breadth of this Court’s declaratory jurisdiction and its permissible invocation even where the controversial course of action was but foreshadowed. That case did not call into question the statement in In Re The Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 (1921) 29 CLR 257 at 267 that the judicial power of the Commonwealth found in Ch III of the Constitution does not extend to the deciding of abstract questions.

134    The order made by the Full Bench on 18 September 2014 included the following statement, “This order comes into effect on 18 September 2014.” If, lawfully, the Full Bench might make an order quashing with only prospective effect the order made on 10 April 2014 approving the 2013 Agreement, there would be nothing abstract about deciding whether to grant any of the declaratory relief sought by the AMIEU.

135    As it happens, in exercising the power of making consequential orders delegated to him on 4 March 2014 by the earlier Full Bench, Deputy President Gooley added a like statement in the quashing order made on 25 March 2014 in respect of Deputy President Asbury’s earlier approval decision. That quashing order, too, was stated to come into effect on the day on which it was made.

136    Determining whether, in the light of events which have subsequently transpired, some of the relief sought is in respect of an abstract question therefore necessarily involves determining whether, on the allowing of an appeal, the power conferred on the FWC by s 607(3)(a) of the FW Act to quash the decision under appeal extends to so doing only prospectively.

137    Another issue between the parties was whether, even if quashing had no anterior operation, on the true construction of the FW Act, the 2013 Agreement nonetheless operated after its approval in fact. That issue is not rendered abstract by the order made by the Full Bench on 18 September 2014, because a like issue is in any event raised by the quashing on 25 March 2014 of the earlier approval decision.

138    It might first be observed that there is nothing in the FW Act which expressly confers power upon the FWC, when disposing of an appeal to a Full Bench, to order that the quashing of the decision under appeal shall only have prospective effect. That absence of express provision might be contrasted with s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“AD(JR) Act”), which adds in respect of this Court’s power to quash or set aside the decision or part of the decision under review, “with effect from the date of the order or from such earlier or later date as the court specifies”.

139    The origins of that provision may be traced to a recommendation as to remedies in respect of statutory judicial review found in paragraph 263(a) of the Commonwealth Administrative Review Committee Report (popularly known as the “Kerr Committee”) in 1971 but there is no explanation either in that report or in the Explanatory Memorandum for the later Bill which became the AD(JR) Act as to why the power to fix a particular operational date was added. It may very well be, however, that the addition was so as to vary what was assumed to be the common law position, which is that “invalidity operates from the date of the impugned decision”: Nguyen v Minister for Health and Ageing (2002) 121 FCR 89 at [8] per Weinberg J, referring with approval to a statement to that effect in the then edition (2nd ed, 2000) of Aronson and Dyer, Judicial Review of Administrative Action, a statement repeated in the current edition (5th ed, Aronson and Groves, 2013) (“Aronson and Groves, 2013”) of that work (at p 710, para 10.420).

140    As a matter of ordinary English, “quash” when used as a verb and in relation to a decision usually means “To annul, to make null or void”: OED Online 2014, quash, Oxford Dictionary (Oxford University Press) http://www.oed.com/view/Entry/156099?rskey=HHOQEn&result=

3&isAdvanced=false viewed 11 February 2015. Context, which is always relevant in statutory construction, can however dictate that the word “quash” have what Winn J in Hancock v Prison Commissioners [1960] 1 QB 117 at 125 described as a “less drastic meaning”. Thus, in the context of a statutory power granted to a Court of Criminal Appeal to quash a sentence and substitute another, his Lordship construed the word as meaning rendered null and void from the time of the appellate court’s order onwards, rather than what he took to be the ordinary meaning, which was void ab initio.

141    If the relief it offers is granted, the prerogative writ of certiorari, calls up for quashing the recorded decision of a subordinate court, a tribunal or an official. An order of certiorari “almost always operates retrospectively”: Aronson and Groves 2013, at para 12.30; Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277 per Aickin J; Ruddock v Taylor (2005) 222 CLR 612 at [160] per Kirby J (in observations not affected by his Honour’s dissent as to the outcome in that case). In these authorities one finds the common law position with respect to quashing stated.

142    Context does not, in my view, dictate that any “less drastic” meaning be given to the word “quash” where it appears in s 607(3)(a) of the FW Act. The jurisdiction being exercised by the Full Bench was the hearing of an “appeal” (and the related application for permission to appeal) under s 604 of the FW Act. One remedy which may be granted in such a proceeding is the quashing of the decision under appeal. The alternatives to quashing, also specified in s 607, are to confirm or vary the decision or to make a further decision in relation to the matter that is the subject of the appeal. Ancillary remitter orders may also be made: s 607(3)(c) of the FW Act. None of these suggest that the remedy of quashing under s 607 is to have any effect other than to set at nought, on and from the date it was made, the decision under appeal.

143    Further, as used in s 607(3)(a) of the FW Act, “quash” cannot both carry its usual as well as its “less drastic” meaning.

144    In Ha v New South Wales (1997) 189 CLR 465 at 503-504 and 515 (“Ha”), the High Court held that the exercise of the judicial power of the Commonwealth under Ch III of the Constitution did not extend to the prospective overruling of cases. Necessarily, that means that the High Court’s power under s 73 of the Constitution to hear and determine an appeal from a particular judgement, decree or order does not extend to the prospective over-ruling of that judgement, decree or order. That is the position in relation to the exercise of Commonwealth judicial power. It is no part of this case to explore how the power found in s 16(1)(a) of the AD(JR) Act to fix an operative date in relation to the quashing of an administrative decision sits with Ha.

145    The FWC does not exercise judicial power but that does not mean that one reason why a power of prospective over-ruling was denied in Ha is completely irrelevant. It was said (at 504):

If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law. This would be especially so where, as here, noncompliance with a properly impugned statute exposes a person to criminal prosecution.

Why, in the absence of clear language in the FW Act, is it any less a perversion of the appeal jurisdiction conferred on the FWC by s 604 and the powers exercisable under s 607 in such a proceeding for a quashing order, when made, necessarily to annul ab initio the decision under appeal? Contravention of an enterprise agreement exposes the contravener to a civil penalty: s 50 and Pt 4-1, FW Act. If the enterprise agreement is one which ought not to have been approved such that it is quashed on appeal, it is no less a perversion of the appeal jurisdiction not to construe s 607(3)(a) such that the quashing of the decision approving the enterprise agreement renders what would otherwise have been contravening, anterior conduct blameless.

146    It follows that when, on 25 March 2014 and, for that matter, on 18 September 2014, the FWC exercised the power to quash an earlier decision, that decision became void ab initio. Insofar as the statement in the quashing orders as to when the order came into effect purported to give those orders only prospective operation, the FWC had no power so to order. Those paragraphs are severable. The quashing orders when made had the effect of quashing ab initio the FWC decisions which were the subject of those orders.

147    As a matter of construction, there is nothing in s 54(1) of the FW Act which suggests that the reference to an “enterprise agreement approved by the FWC” is a reference to an agreement in fact approved by the FWC, as opposed to an agreement lawfully approved. If the FWC did by order approve an enterprise agreement then that approval would take effect according to its terms unless and until it was quashed on appeal. If quashed, there would then be and never have been an approval order and so nothing with which s 54(1) could engage. The enterprise agreement referred to in s 58 of the FW Act is one which has been approved by the FWC and then come into operation in accordance with s 54. If that approval has been quashed such that there is not and has never been an approved enterprise agreement, there is nothing with which s 58 can engage. Construing s 54 in this way does not create any tension as between s 54 and s 58.

148    What follows from this in relation to the claimed declaratory relief?

149    Paragraph 3 of the claim for declaratory relief is premised upon the validity of Deputy President Asbury’s approval decision of 10 April 2014. The declaration sought ought not to be granted, because that premise no longer exists in light of the quashing order made on 18 September 2014. The declaration is sought in respect of an abstract question.

150    The same applies to paragraph 4 of the claim for declaratory relief, which is also premised upon the existence of an enterprise agreement with which s 58 of the FW Act might engage. Given that the second approval of the 2013 Agreement has since been quashed, there is nothing with which that section may engage.

151    Paragraph 5 seeks a declaration that the remuneration and conditions of the employees of Teys, for the period from 4 October 2013 until 17 April 2014 are determined by the terms of the 2010 Agreement. The latter date has been selected on the basis of a premise which no longer exists. The AMIEU deliberately chose not to seek and neither did the respondents insist upon the amendment of the claim for declaratory so as to take account of the later development represented by the quashing order made on 18 September 2014. It would be misleading, in light of that later development and its effect in law to grant declaratory relief in the terms sought. For the 2010 Agreement did not cease to operate on 17 April 2014. For these reasons, I would decline to grant the relief sought in paragraph 5.

152    Paragraphs 1 and 2 of the claimed declaratory relief are not rendered abstract by the Full Bench order of 18 September 2014. They focus on the ramifications of the allowing of the appeal against the first approval order and its quashing by the order made on 25 March 2014. I would grant declarations in the terms sought in these paragraphs but, for the reasons given, otherwise dismiss the application for declaratory relief. I accept that an alternative way of giving voice to these sentiments in respect of the application for declaratory relief is for the Court to make orders in the terms proposed by Buchanan J.

Associate:    

Dated:    12 February 2015

REASONS FOR JUDGMENT

KATZMANN J:

153    I agree with Buchanan J that the application by Teys Australia Beenleigh Pty Ltd (“Teys”) (proceeding QUD 224 of 2014) must be dismissed and that the Australasian Meat Industry Employees Union (“AMIEU”) is entitled to declaratory relief along the lines it seeks in proceeding QUD 326 of 2014. I do so for the reasons his Honour gives. I only to wish to add some brief observations concerning Teys’ application in the first matter.

154    The second error, it will be recalled, was said to appear in para 50 of Asbury DP’s reasons where she said:

To accept the argument of the AMIEU with respect to the disputed employees would result in a situation where those employees would not be entitled to the benefits of either the Agreement or the Award. Such an outcome would be neither fair nor sensible.

155    The Full Bench ([2014] FWCFB 1313 at [23]) considered that this was erroneous because “anteriorly derived notions of what would be fair or sensible are irrelevant to the task of construing the Agreement”, referring to the oft-cited remarks of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184 (“Kucks”). I doubt very much, however, whether Asbury DP was importing any anteriorly derived notion of what would be fair or sensible. It is well accepted that it is open to the Commission when construing an industrial instrument to settle on a meaning that is open from the text and context which will avoid injustice or inconvenience, as Madgwick J, himself, pointed out in Kucks (at 184) in a passage not mentioned by the Full Bench:

The search is for the meaning intended by the framer(s) of the document … [I]t is justifiable to read the award to give effect to its evident purposes, having regard to [the context of the relevant industry and industrial relations environment] … And meanings which avoid inconvenience or injustice may reasonably be strained for …

156    In any event, like Buchanan J, I am of the opinion that, if the Full Bench erred, its error was within jurisdiction.

157    The nub of Teys’ argument was that the errors went to jurisdiction because the Full Bench mistakenly found error where there was none. That was said to be a jurisdictional error because the existence of error was a precondition to the exercise of appellate powers. While it is necessary for the Full Bench to be satisfied that the primary decision-maker erred, it does not follow that a mistaken finding of error goes to jurisdiction. Teys relied upon the statement of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 where the Court said that if an administrative tribunal (like the Fair Work Commission), which lacks authority to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with law:

falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

158    Here, however, Teys pointed to no error of law causing the Full Bench to identify a wrong issue. It did not suggest that the Full Bench had asked itself the wrong question or ignored relevant material or relied on irrelevant material. At its highest, its case was that the Full Bench had reached a mistaken conclusion. Not every mistaken conclusion will amount to jurisdictional error. In making the errors attributed to it, the Full Bench was not exceeding its authority or powers. It correctly identified the questions it had to determine and applied the relevant law. The allegedly mistaken conclusion was said to be based purely on a misconstruction of the Deputy President’s reasons. It is not a jurisdictional error for an administrative tribunal to misconstrue the reasons of the primary decision-maker.

Associate:    

Dated:    12 February 2015