FEDERAL COURT OF AUSTRALIA

ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019] FCAFC 35

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This proceeding concerns the form of notice required to be given to employees engaged in the process of negotiating an enterprise agreement under the Fair Work Act 2009 (Cth), known as a notice of employee representational rights. The two notices given to employees in the present case were not in precisely the same format as that prescribed by the Fair Work Regulations 2009 (Cth). The departure from the prescribed format led a Deputy President of the Fair Work Commission to dismiss applications for approval of the two proposed enterprise agreements to which the notices related. Permission was given to appeal the two decisions to the Full Bench of the Commission, but that appeal was dismissed.

2    The matter now comes before this Court in its original jurisdiction as to judicial review and declaratory relief, by way of an amended originating application brought by ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership). The first respondent is the Shop, Distributive and Allied Employees’ Association (SDA). The second respondent is the Fair Work Commission. The Commission has filed the conventional submitting appearance.

3    For the reasons that follow, the amended originating application must be dismissed.

The issue in dispute

4    The relevant scheme of the Act and Regulations may be summarised as follows, using the compilations of each that were in force at the time that the two notices in question were posted at the two ALDI worksites to which they related, being 24 August 2015 for the Minchinbury store and 18 January 2016 for the Derrimut store. It is necessary and appropriate to confine consideration to the regime that was in place on those two dates. This is particularly so given that s 188 of the Act, a key provision relevant to the issue in dispute, has been amended since the appeal hearing. The amendment, by the insertion of a new subsection (2) to s 188, effectively allows there to be procedural or technical errors in relation to the approval of an agreement, where the Commission is satisfied that employees covered by the agreement were not likely to have been disadvantaged by such errors. Apart from s 188, there have been no changes to relevant parts of the Act other than where noted below.

5    Part 2-4 in Chapter 2 of the Act deals with enterprise agreements, with Divisions 2, 3 and 4 dealing, respectively, with making enterprise agreements, bargaining and representation during bargaining, and the approval of enterprise agreements by the Commission.

6    Section 172(1) in Division 2 of the Act provides that an enterprise agreement may be made in accordance with Part 2-4, listing the matters which may be addressed in such an agreement.

7    Division 3 of Part 2-4 is headed “Bargaining and representation during bargaining”. The two key relevant provisions are:

(1)    Section 173(1), which provides that an employer that will be covered by a proposed enterprise agreement, other than a greenfields agreement (i.e., for a new work site), “must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee” who will be covered by the agreement and who is employed at the time of notification.

(2)    Section 174, which relevantly provides under a subheading “Notice requirements” 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.

(1B)    When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

8    A live issue in this proceeding is the extent to which the mandatory requirements for the content of a notice in s 174(1A)(a) and (b) must be strictly observed in order to be valid. (Section 174(1A)(c) is concerned with form and not with content, which is not presently in issue.) That is, a key question is whether there was any room at all for departure from the requirement that the notice contain the content prescribed by the Regulations and not contain any other content, and if so, whether the departure that took place in this case was permissible. If that departure was permissible, such that the Full Bench erred in finding the two notices invalid, the questions that arise are:

(1)    was that a jurisdictional error amenable to being set aside?;

(2)    if not, is remedy of a declaration as to validity available and appropriate?

9    The issue of the validity of the notices turns on the requirements under the Act, both express and implied. Division 4 of the Act is headed “Approval of enterprise agreements”. The relevant key provisions are:

(1)    Section 186(1), which provides that the Commission “must approve” an agreement “if the requirements set out in this section and section 187 are met”.

(2)    Section 186(2)(a), which requires the Commission to be “satisfied that … the agreement has been genuinely agreed to by the employees covered by the agreement”. Not surprisingly, the matters in respect to which the Commission must be “satisfied” are tied back to the steps that must be undertaken prior to the approval of the enterprise agreement being sought, especially in relation to obtaining the agreement of employees.

(3)    Section 188, which between 1 January 2013 and 11 December 2018 provided as follows (emphasis in original):

When employees have genuinely agreed to an enterprise agreement

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.

10    Thus s 188(a)(ii) provided, as part of the requirement that an enterprise agreement has been “genuinely agreed” to by the employees covered by it, that the employer complied with s 181(2). Section 181(2) in turn required that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given. It is implicit that to be such a notice, it must be valid. That is, employees must be given a valid notice, not merely an invalid notice, before the 21 days starts to run.

11    ALDI’s contention that an invalid notice would suffice cannot be accepted in the absence of any compelling argument as to why that could fall within the scope, purpose and object of the notice provisions. Rhetorically, what is the point of having a tightly regulated notice provision, which is an integral part of the process leading to seeking approval for an enterprise agreement, if the notice requirements can be thwarted by deploying an invalid notice? It is not as though there are degrees of invalidity. Ultimately, a notice is invalid or it is valid, such that permitting an invalid notice to be used would sanction the use of a notice that might bear little resemblance to what was required, and force a substantial inquiry into whether consent by employees was genuine in the face of an invalid notice.

12    Regulation 2.05 of the Regulations provided, at the relevant time:

For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.

13    The above reference in reg 2.05 to subsection (6) of s 174, instead of to subsection (1A) of s 174, was a mistake. Subsection (6) of s 174 had been repealed in 2012. The mistake was rectified with effect from 3 April 2017 by the Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017 (Cth): see item 1 in Schedule 1. Notwithstanding that error, which was not mentioned by the Full Bench, nor by any party to this proceeding, reg 2.05 must be read as an effective prescribing of the form in Sch 2.1 for the purposes of s 174(1A), not a nonsense in literally prescribing the form for the purposes of a non-existent s 174(6). Any other interpretation would be absurd. A number of authorities of considerable weight support the reading of a provision in the way that must have been intended when an obvious drafting error such as this has taken place:

(1)    In Hall v Jones (1942) 42 SR (NSW) 203 at 208, Jordan CJ (with whom Halse Rogers and Street JJ agreed) said of a statutory notice concerning the declaration of a quarantine order that referred to “cattle, horses, sheep and goats”, instead of using the term “all stock” in the statute bestowing the notice giving power, that more general words in the statute should be given a more restrictive meaning, rendering the notice valid, because “a Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense”.

(2)    In Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630, all five Justices of the High Court sitting on the appeal said of a provision that, read literally, did not permit a criminal appeal court to order a retrial if a conviction was quashed that:

It is, however, apparent that a simple grammatical mistake was made in the drafting of the sub-section, and that if the strict grammatical sense of the words is adhered to it would lead to an absurdity. In these circumstances the court is entitled to attribute to the provision the meaning which it was obviously intended to have.

(3)    In Dome Resources NL v Silver [2008] NSWCA 322; 72 NSWLR 693 at [31]-[32], Basten and Bell JJA said of an erroneous cross-reference in a statute to “subsection (1A)”, instead of to “section 200G(2)” that the correct reference should be understood to apply, especially as the error had later been corrected by an amendment.

14    Section 174(1A)(a) and (b) required that the notice “contain the content prescribed by the regulations” and “not contain any other content”. Schedule 2.1 provides the prescribed content of the notice. At the time of the notices being provided to the applicant’s employees, being 24 August 2015 and 18 January 2016, the notice read as follows, with the key word in the second last line underlined and marked in bold (the reference to s 174(6) in the third line is to be read as a reference to s 174(1A) following [13] above):

Schedule 2.1—Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[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].

15    The two ALDI notices in issue were provided on 24 August 2015 and on 18 January 2016. They each had the following as the very last portion, again with the key word in the second last line underlined and marked in bold:

Questions?

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 Infoline on 1300 799 675.

16    The only difference between the prescribed form of notice and the notices that were given is that the employees were being told to direct any questions to “your leader” instead of “your employer”. The Full Bench found that this difference invalidated the two notices. Before turning to that decision and to the antecedent decision of the Deputy President, it is convenient to consider prior authority concerning s 174(1A) upon which reliance was placed by the Full Bench, as well as a number of other cases relied upon by ALDI to support its argument.

Prior authority on s 174(1A)

17    The issue of the correct construction of s 174(1A) came before the Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042, 242 IR 210. The Full Bench, comprised of Ross J as President, Hatcher VP, Ashbury and Gostencnik DPP and Simpson C, concluded (at [46]-[47], footnote omitted):

In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity. We agree with the Minister’s submissions on this point, that is:

A mandatory template is provided in the Regulations. The provisions make it clear that there is not scope to modify either the content or the form of the Notice other than as set out in the template.

Taking into account the considerations identified in Project Blue Sky we have concluded that the legislative purpose of s 174(1A) is to invalidate any Notice which modifies either the content or form of the Notice template provided in Sch 2.1 of the Regulations. …

18    The correct construction of ss 173 and 174(1A) and the validity of a notice that did not comply with reg 2.05 was also considered in Shop, Distributive and Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, 245 FCR 155 (SDA v ALDI Foods). The validity of a notice given to employees in that case was one of a number of issues resolved by that Court. The notice in that case followed the form prescribed by Schedule 2.1 (being the prescribed form in place between 1 January 2013 and 2 April 2017, so the same as applied in this case), save for the last paragraph which was expressed as follows:

Questions?

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 Infoline on 1300 799 675.

19    Different views were expressed in SDA v ALDI Foods as to the validity of such a notice and whether “strict compliance” with s 174(1A) was required:

(1)    Jessup J concluded that “whatever might be the strength” of the argument that there had been non-compliance with reg 2.05, relief should be refused in the exercise of the Court’s discretion. His Honour nevertheless made the following observations (at [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.

(2)    Katzmann J took a different view, concluding that compliance with s 173 required “strict compliance”. Her Honour expressed her reasons as follows (at [64]-[66]):

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)).

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.

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.

(3)    Katzmann J then referred to the Panel recommendation and continued (at [69]-[70]):

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.

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.

(4)    The third member of the Court, White J, expressed no concluded view but observed (at [176]) that the “reasons of Katzmann J … appear to have some force”.

20    ALDI, in the present matter, points out that Peabody Moorvale did not consider any issues of triviality, or typographical or insignificant errors, with that case being concerned with the notice being constituted by three separate documents, thereby including other content in breach of s 174(1A). That is correct, but it should be observed that this is a case in which the prescribed form was departed from quite deliberately, by reason of the way in which ALDI conducts its business.

21    ALDI also relies upon a number of cases in which minor departures from the Schedule 2.1 form were either found to be more than trivial or were not, of themselves, an impediment to approval, even if other defects were, citing:

(1)    Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2015] FWCFB 3337; 250 IR 1, in which the notice omitted a description of the proposed coverage of the agreement: while the Full Bench noted at [38] that when a notice contains, for example, a minor typographical error, there may be room for judgment as to whether that invalidates the notice. That did not, however, need to be considered because the omission in that case was not “minor or insignificant”.

(2)    KCL Industries Pty Ltd [2016] FWCFB 3048; 257 IR 266 in which the notice reconstructed the first paragraph into two sentences, described the Fair Work Commission as Fair Work Australia and, in the last paragraph, referred to the Fair Work Infoline instead of the Fair Work Commission Infoline: the Full Bench found the third error invalidated the notice, noting that the first might be considered a triviality and that the second was not a failure to comply.

(3)    Other decisions where the same Deputy President of the Commission found a departure from the prescribed form did not render a notice invalid, focussing on whether the error had misled the employees:

(a)    where the employer did not include its legal name on the notice by omitting the reference to “Pty Ltd”: Cruise Whitsundays Pty Ltd [2016] FWCA 377; and

(b)    where the employer had referred to the title of the proposed agreement incorrectly by including “2015 – 2017” instead of “2015 – 2018”: Prosegur Australia Ltd [2016] FWCA 1327.

(4)    Maritime Union of Australia v MMA Offshore Logistics Pty Ltd [2017] FWCFB 660; 263 IR 81, in which the notice referring to the telephone number of the Fair Work Ombudsman instead of the Commission’s Infoline number was considered an invalidating defect because the correct number was a source of information about enterprise bargaining and the purpose of the form would be frustrated if a different and incorrect telephone number could be validly inserted, such that this was not trivial so as to attract Jessup J’s characterisation in SDA v ALDI Foods.

The decisions of the Deputy President

22    It was the departure from the form prescribed that led the Deputy President of the Commission to refuse approval. In refusing approval of the Derrimut agreement in the present case, the Deputy President concluded in ALDI Foods Pty Ltd as General Partner of ALDI Stores (a Limited Partnership) [2017] FWC 6956 that:

(1)    the decision of the Full Bench in Peabody Moorvale concluded that compliance with s 174(1A) was mandatory: [12];

(2)    the observations of the Full Court in SDA v ALDI Foods were obiter and that the decision of the Full Bench in Peabody Moorvale remained “binding on Commission members”: [16] and [19];

(3)    the notices given were not “valid” notices: [22]; and

(4)    where “a valid notice has not been issued by the employer, the Commission cannot be satisfied that s.188(a)(ii) has been met, with the result that the Commission cannot be satisfied that the Agreement was genuinely agreed to for the purposes of s 186(2)(a)”: [21].

23    The Deputy President reached similar conclusions in relation to the Minchinbury Agreement at [11]–[25] of ALDI Foods Pty Limited as General Partner of ALDI Stores (a Limited Partnership) [2017] FWC 6958.

The decision of the Full Bench

24    Permission to appeal the decisions of the Deputy President was sought pursuant to s 604 of the Act. Section 604(2) provides that, without limiting when the Commission may grant permission, it must grant permission if it is satisfied that “it is in the public interest to do so.” In seeking permission, ALDI identified the “public interest” requirement as “the proper construction of section 174 of the FW Act”. It sought to emphasise the large percentage of employees who had agreed. Permission to appeal was granted.

25    During the hearing before the Full Bench, evidence was adduced from Mr Jakupec, the Managing Director of ALDI Stores’ Regency Park Region, directed to a submission that the departure from the prescribed form was a “trivial” departure and occasioned no confusion to employees. Mr Jakupec in his affidavit sought to explain the use of the term “leader” in the notice given to employees and the departure from the prescribed form by stating that:

The language used, describing an ALDI representative as a leader is our language used extensively within the business.

26    The Full Bench summarised Mr Jakupec’s evidence and concluded (in part) as follows (at [26]-[28] of [2018] FWCFB 2485):

We have determined that evidence of Mr Jakupec should be admitted in the appeal because of its utility in ascertaining the practical effect of the use of the word “Leader” in Aldi’s notice notwithstanding that the evidence could have been but was not adduced at first instance. Having regard to that evidence, we do not consider that the substitution of the word “Leader” for employer in the final paragraph of the prescribed NERR [notice of employee representational rights] leaves unaltered the intended meaning and effect of the notice. That paragraph is intended to inform the recipient of the NERR of various avenues in which he or she may make further queries about the notice or enterprise bargaining generally. It leaves the recipient with the choice as to which of the identified source or sources of further information are to be availed of, if any, and in respect of the employer, leaves it at large to the recipient as to the manner in which any inquiry is to be directed to the employer.

Aldi’s modified NERR is plainly intended to require the recipient to address any inquiries to it about the notice or enterprise bargaining to a specified category of person, namely the employee’s Leader. As the evidence of Mr Jakupec demonstrated, that may mean that the inquiry is to be made to a person who may have limited knowledge of these matters, such as a store assistant acting-up in the position of Deputy Manager. In relation to Personnel Leaders, it requires contact to be made with a person who is not usually located in the employee’s store and who may not be readily accessible by telephone. It also does not contemplate the query being made of other categories of manager including the Regional Managing Director. This is notwithstanding that Mr Jakupec himself, who was a Regional Managing Director, said he often visited stores in his region and had regular contact with employees on the shop floor, and as a senior manager had a significant degree of knowledge concerning enterprise bargaining. Without commenting upon the operational merits of Aldi seeking that inquiries arising from the NERR be directed to Leaders only, it is clear that the purpose of Aldi’s modification to the prescribed NERR was to alter its effect by explicitly restricting the avenues by which any question to it as the employer might be communicated or directed. No such limitation would apply if the prescribed word “employer” was used in the NERR, since the employee would have the discretion as to which person representing the employer they directed any inquiry as contemplated by the last paragraph in the NERR.

For this reason, we do not consider that the modification can be excused as a triviality on the basis of the de minimis principle. We therefore consider that, in relation to both decisions the subject of the appeals, the Deputy President was correct in concluding that Aldi’s NERRs did not comply with the prescribed form and must consequently be regarded as invalid.

27    In reaching this conclusion, the Full Bench:

(1)    proceeded “on the basis that the approach taken in Peabody Moorvale … should be followed”: [24];

(2)    assumed “without deciding, that Peabody Moorvale leaves some room for the application of the de minimis principle” and that “a minor variation in wording might not constitute a departure from the prescribed form or lead to invalidity”: [24]; and

(3)    concluded that the “modification” in the form of wording in the notice in the present case could not “be excused as a triviality on the basis of the de minimis principle …”: [28].

The competing arguments

28    ALDI relies on s 25C of the Acts Interpretation Act 1901 (Cth) to displace the literal meaning of s 174(1A) by reason of substantial compliance with the formal requirements of Schedule 2.1. Section 25C, titled “Compliance with forms”, 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(2) of the Acts Interpretation Act provides that its application is subject to a contrary intention.

29    ALDI’s reliance on s 25C was misplaced for the reasons given by Katzmann J in SDA v ALDI Foods, reproduced at [19(2)] above. Katzmann J was correct to conclude that s 174(1A) constitutes a clear displacement of s 25C. ALDI’s reliance on the reasoning of four judges in MZIAC v Minister for Immigration and Border Protection [2016] FCAFC 25; 237 FCR 156 in relation to s 25C in the context of very different provisions in the Migration Act 1958 (Cth), none of which displaced the operation of s 25C, was similarly misplaced and does not assist ALDI.

30    ALDI also relies upon the purpose of ss 173 and 174, which it characterises as being to “ensure that employees are aware of their right to be represented during bargaining” and to submit that it did not appear to be part of that purpose that “employees be advised of multiple sources of information in relation to their right to be represented”, and so formed “no part of the requisite statutory content of the form and appears to be something the drafter of the form felt of utility”. While acknowledging the explanatory memorandum quoted by Katzmann J above at [19(2)], ALDI submits that the introduction of s 174(1A) addressed a concern that employees be informed of their right to be represented by a union and not discouraged from so doing, with one example being where an employer provided a slip at the bottom of the notice allowing employees to nominate a particular, non-union, bargaining representative. ALDI submits that when the purpose of the Act is considered, it is difficult to come to the conclusion that the legislature intended to invalidate the genuine agreement of employees to an enterprise agreement merely because there was an error in the form notifying them of their right to be represented. This argument must be rejected. It seeks to address the express requirements of s 174(1A) by reliance on implied purposes which might be seen to be contrary to that express language. That elides, rather than addresses, the task at hand.

31    ALDI also points out that notwithstanding the invalidity found, neither the Full Bench nor the Commissioner had any difficulty characterising it as the necessary form of notice. This was said to beg the question as to whether the requirement in s 188, not to call for a vote on the agreement until 21 days after a notice under s 173 was issued, could properly be read as a reference to a notice that is valid for the purposes of s 174(1A). ALDI relies upon Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23; 228 FCR 225, characterising it as a decision in which this Court was called upon to deal with a situation where the employer did not agree to the enterprise agreement. Sections 185(2) and 185(5) of the Act and cl 2.06A of the Regulations require that an agreement be signed by a person with the authority of the employer to sign. Despite that, ALDI submits, an employee with apparent authority was held in Kaizen to have entered the agreement on behalf of the employer and so the employer was bound. By reference to an extract from Kaizen at [132]-[133] (per Buchanan and Jagot JJ), ALDI characterises the Full Court’s decision as being that, notwithstanding the requirement that the employer genuinely consented to an enterprise agreement at the time of its approval (which the Act and Regulations require to be the subject of evidence), a failure to consent must be overlooked by the Commission. ALDI submits that by contrast, in this case, the Commission has found that all that was done in reliance upon both parties’ genuine consent to an agreement can be put at nought by a “typographical” error in a form that does not even relate to the content of the agreement, which is said to be a rather inconsistent approach to the statutory purpose.

32    There are two answers to ALDI’s argument based on Kaizen. The first is that this is not the correct way to characterise their Honour’s reasoning in Kaizen. The effect of those paragraphs in full, and for that matter of the decision as a whole, is not that the Full Court considered agreement by an employer as unnecessary, but rather that the necessary agreement was achieved by agency. The employer could not subsequently disavow that. At least implicitly, there was compliance with the requirement of a valid notice. Secondly, whatever may be the argument about mere typographical errors, the departure in this case was not of that character, but rather a deliberate choice and decision by ALDI not to comply with the exact content of the prescribed form.

33    ALDI also relies upon the cost and inconvenience in having to repeat the approval process, and to the dramatic consequences that may exist in other cases. That much may be acknowledged, but cannot make any useful contribution to the determination of the present application.

34    By way of additional submissions made in writing after the hearing of the application, in response to a request by the Court, ALDI made further submissions and furnished its submissions and the transcript of argument before the Full Bench. The questions addressed were:

(1)    whether ALDI’s submissions went beyond s 174 of the Act and an argument that the Full Bench of the Commission misconstrued that section; and

(2)    the power of the Court to make the declarations sought.

35    The substance of the argument advanced on the first topic was that the Full Bench was exercising jurisdiction under s 604 of the Act in relation to an appeal from two decisions of a single member, being decisions under s 186 of the Act not to approve two enterprise agreements. The Deputy President determined that he could not be satisfied, for the purpose of s 188, that employees genuinely agreed to the enterprise agreements in question in each case. ALDI submits that the grounds in each appeal before the Full Bench (heard together and the subject of a single decision) directly raised the question of whether the Commission ought to have been satisfied that employees genuinely agreed for the purposes of s 188 of the Act. As referred to above at [25]-[26], the Full Bench allowed further evidence in hearing the two appeals together by way of rehearing, and made detailed reference to part of that evidence.

36    ALDI submits that, having permitted additional evidence to be adduced, the Full Bench was bound to have regard to that evidence in determining whether Deputy President Bull fell into error in failing to achieve the requisite satisfaction. ALDI submits that the Full Bench was specifically addressed on the question of whether employees genuinely agreed to the relevant agreement in each case, citing the relevant paragraphs of its written submissions. ALDI submits that the Full Bench was addressed on the fact that any departure from the form, in the context of the overwhelming evidence, would of necessity be insubstantial or trivial, given the purpose of the legislation. ALDI complains that, rather than having regard to the evidence for the purpose of determining whether employees genuinely agreed, or whether, having regard to the legislative purpose, any departure from the form was insubstantial or trivial, the Full Bench apparently disregarded the evidence of agreement and understanding and instead focussed on inferred confusion and a statutory intention unexpressed in the legislation or any secondary materials supporting the legislation.

37    The problem with ALDI’s further submission in this Court, seeking to broaden the inquiry before the Full Bench and thereby endeavouring to give a jurisdictional error flavour to what was decided and not decided, is that it overlooks the terms of its written submissions before the Full Bench. Those written submissions were in the following terms (at [4]):

The grounds of appeal may be summarised as follows:

(a)    The use of the word “leader” in place of the word “employer” is not a departure from the prescribed NERR form where an employer is required to nominate an individual it intends to respond to questions on the proposed agreement and the substitution of the nominated representative of the employer for the word “employer” did not detract from, but rather enhanced, the statutory objective of the NERR and it was not a departure which, having regard to the statutory purpose of the NERR, could properly be regarded as invalidating the form;

(b)    To the extent the substitution of the word “leader” in place of the word “employer” might involve a departure from the prescribed NERR, any such departure was a triviality with which section 174(1A) of the Fair Work Act 2009 (the FW Act) might not be concerned.

38    Thus, it may be seen that ALDI sought to have the Full Bench answer the precise question that it did answer, albeit that its argument as to the correct answer did not prevail. In any event, the Full Bench cannot be compelled to answer such a question in any particular way. There is no substance to the contention that the Full Bench did not answer the more limited question as to the validity of the notices by reason of the departure from Schedule 2.1 being trivial, and related arguments. That is particularly so as the Full Bench did not regard the departure to be trivial. There was no misconstruing of s 174(1A) in a jurisdictional sense.

39    It was common ground that this Court has the power to give declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth). In support of that common position, ALDI cites Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2; see also ResMed Limited v Australian Manufacturing Workers’ Union (No 2) [2015] FCA 537; 243 FCR 366 at [46]-[47].

40    The amended originating application, on its face, seeks declarations in respect of three other sites, not the two dealt with by the Full Bench:

Alternatively, AN ORDER declaring that: Upon its true meaning and interpretation, section 188 of the Fair Work Act 2009 did not prevent the Fair Work Commission, determining that employees genuinely agreed to the Enterprise Agreements set forth hereunder merely because the Notice of Employee Representational Rights provided to, employees prior to the making of the Agreement departed from the prescribed form in that it used the term “leader” rather than the term “employer”:

(i)    ALDI Jandakot Agreement 2015:

(ii)    ALDI Regency Park Agreement 2015;

(iii)    ALDI Brendale Agreement 2015.

41    As will be seen, the live issue is not whether this Court has the necessary power, but whether the necessary error was present, and if so, whether, as a matter of discretion, declaratory relief should be granted. It is important to note that the relief is sought to affect the outcome of pending applications by the SDA for permission to appeal in respect of the other three ALDI sites. Presumably that is to ensure that an error that is not found to be jurisdictional is not repeated.

42    The parties were divided on whether or not the power to make declarations should be exercised. The SDA submitted that this Court should not make a declaration regarding the meaning of s 188 so far as the Jandakot, Regency Park and Brendale Agreements are concerned because those agreements are not in evidence, and not all of the bargaining representatives in respect of those agreements are parties to this proceeding. The SDA submits that it is an inappropriate exercise of the power to make declarations in such an evidentiary void, and without the proper parties having notice. The SDA further submits, by specific reference to the circumstances of the three sites, that the declarations would additionally be inappropriate given that this would:

(1)    usurp the jurisdiction of the Full Bench, which has already been engaged for the Jandakot Agreement;

(2)    usurp the jurisdiction of the Full Bench, which is sought to be engaged for the Regency Park Agreement; and

(3)    entail declaratory relief being given in respect of the Brendale Agreement for which there is, as yet, no crystallised controversy.

43    The SDA’s remaining arguments in response can be reduced to a few simple propositions without doing any injustice to the submissions made in support of them:

(1)    the issue before this Court is jurisdictional error, not any issue of the overarching purpose of the provisions in issue;

(2)    it was open and indeed correct for the Full Bench to find that s 174(1A) required strict compliance;

(3)    even if strict compliance might not encompass trivial matters, it was open to the Full Bench to find that the departure from Schedule 2.1 was not trivial;

(4)    there was no error on the part of the Full Bench, let alone jurisdictional error;

(5)    the decision of the Full Bench was confined to the operation of s 174(1A), such that this is the limit of the issue before this Court.

Jurisdictional error and declaratory relief

44    The present application for relief in this Court was expressed to be one brought under s 39B of the Judiciary Act 1903 (Cth). Relief was sought in the nature of a writ of certiorari quashing the orders made by the Full Bench. In addition to s 39B, reliance was also placed upon s 562 of the Act, which confers jurisdiction on this Court over matters arising under the Act, and s 563 of the Act, which requires that the jurisdiction so bestowed to be exercised in the Fair Work Division of this Court. The application was amended at the outset of the hearing to add a claim for a declaration to the effect that, upon a proper construction of s 188 of the Act, the use of the term “leader” in the form of notice given to ALDI’s employees would not prevent the Commission concluding that employees had genuinely agreed to a proposed enterprise agreement expressed in those terms. Leave to amend was not opposed and was granted.

45    It is common ground that:

(1)    in order to obtain a writ in the order of certiorari quashing the decisions of the Full Bench, jurisdictional error had to be established, and that accordingly an error within jurisdiction would not suffice; and

(2)    the success or failure of the argument as to jurisdictional error was not determinative of the jurisdiction of this Court to grant declaratory relief.

The decisions of the Full Bench – the absence of jurisdictional error

46    In contrast to the two decisions of the Deputy President as to whether the Commission could be “satisfied” as to whether the employees had “genuinely agreed” to the proposed enterprise agreement in the face of a notice which did not comply with s 174, the decision of the Full Bench covering both decisions was confined to the question as to the validity of the two notices. That was in accordance with the written submissions advanced by ALDI, albeit in the context of identifying what that conclusion had led to on the part of the Deputy President in refusing approval of the two proposed enterprise agreements. The Full Bench, having found no error by the Deputy President in relation to the invalidity of the notice, did not proceed to determine whether an invalid notice would preclude a state of “satisfaction” being reached for the purposes of s 186. The decision that was made dismissing the appeals therefore left the Deputy President’s decision in that regard intact. No jurisdictional error has been argued in the Full Bench not going further; nor could there have been unless that could have been shown to constitute a failure to exercise jurisdiction, which was not attempted to be demonstrated by ALDI and seems inherently unlikely in any event. As already observed, the Full Bench did not have to answer the questions posed in any particular way, provided it was within jurisdiction and there was no basis for saying that such jurisdiction had not been exercised merely by not exploring every alternative remedy that might be hinted at.

47    Any jurisdictional error on the part of the Full Bench, accordingly, had to be found in its interpretation and application of s 174(1A) to the notice given to the employees. Its decision-making process proceeded upon the basis that there had to be strict compliance with the terms of s 174(1A), but that “a minor variation in wording might not constitute a departure from the prescribed form or lead to invalidity” (at [24]).

48    Any error as to the construction of s 174(1A) would be an error within jurisdiction and hence not susceptible of review upon the basis of jurisdictional error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194. That is because an error in the construction of s 174(1A), or indeed of any other provision of the Act, will ordinarily involve only the erroneous exercise of jurisdiction within the ambit of that jurisdiction, rather than in some way reflecting going beyond the metes and bounds of that jurisdiction. It is part and parcel of the jurisdictional task of the Commission, in common with many executive decision-makers, that they interpret and apply the laws that they are charged with administering, such as the Act, including making decisions that affect rights. An error in doing so, be it factual or legal, will be an error of that character and no more, unless it affects the very jurisdiction being exercised, and does so in a way that is sufficiently material to have the quality or character that crosses the line into jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [29]-[30], [40] and [72]; see also Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [23]; and Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 at [44], endorsing the materiality principle identified by the plurality (Bell, Gageler and Keane JJ) in Hossain at [29]-[31], and discussing that principle further at [44]-[50]; but cf Nettle and Gordon JJ at [84] ff, especially at [93]-[95].

49    At the time of the decision in Coal and Allied, s 45 of the Workplace Relations Act 1996 (Cth) provided for an appeal to a Full Bench from an order made by a single member of the Commission. In allowing an appeal from a decision of a Full Court of this Court, Gleeson CJ, Gaudron and Hayne JJ concluded (at [29]-[32], footnotes omitted):

… the Full Court held that the Full Bench of the Commission fell into jurisdictional error by treating an appeal under s 45 as an appeal of the kind which obliged the Full Bench to determine, in the absence of error on the part of Boulton J, whether there was or was not a circumstance within the meaning of s 170MW(3) of the Act. It may be noted that, had the Full Bench proceeded on that basis, it would have exceeded its jurisdiction. It would not have failed to exercise its jurisdiction, whether actually or constructively.

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(1) and (3).” To misconceive the role of the Commission under s 170MW of the Act (assuming that that is what the Full Bench did) does not constitute jurisdictional error on the part of the Full Bench.

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.

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.

50    The decision made by the Full Bench as to the correct construction and application of s 174(1A) to the notice given in the present case was the very basis upon which permission to appeal was advanced and the very subject-matter of decision-making entrusted by the legislature to the Commission. Any argument that the Full Bench were stepping outside the jurisdiction entrusted to it by the legislature must therefore be rejected.

51    The Full Bench’s conclusion that the “modification” to the notice in the present case was not “trivial” would, if erroneous, even more readily be classified as an error within jurisdiction.

52    Although it may be accepted that “illogicality” or “irrationality” may in some circumstances constitute jurisdictional error, no jurisdictional error is demonstrated where a conclusion reached is one open to be made: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]. Crennan and Bell JJ further observed (at [135]):

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here ...

53    The conclusion that the departure from the prescribed form was not “trivial” was one open to be reached by the Full Bench. Any argument that this conclusion of itself reached the extremity necessary to constitute jurisdictional error by reason of “irrationality” or “unreasonableness” must be rejected.

54    Even if the possibility of jurisdictional error loomed, this Court would be reluctant to find that error, and would more readily exercise the discretion not to intervene even if it were found to exist. The finding was made by a body of persons having special expertise in the area of industrial law and its myriad of applications and nuances, few of which would necessarily or readily be apparent to this Court. It is, accordingly, a finding from which this Court would depart with considerable hesitation and reservation. The finding that a departure from the legislatively mandated requirement is not, on the particular facts and circumstances prevailing, “trivial” is a value-laden assessment as to achieving the practical substance of that requirement when deciding whether or not to approve an enterprise agreement. This Court would be reluctant for that reason to second-guess such an assessment, especially as it does not involve any suggestion of the adoption of one of “several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result”: see the passage from Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [42], quoted below at [56].

55    In the United States, it has been concluded that a Court may express “deference” to the construction of regulatory provisions and fact-finding by a specialist decision-maker: Chevron USA Inc v Natural Resources Defense Council 467 US 837 (1984). The Chevron doctrine has not been adopted in Australia. Rather, the High Court has decided that the “weight to be given to the opinion of [a] tribunal in a particular case will depend upon the circumstances”: City of Enfield at [47], quoted more fully at [58] below; see also Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 110; 169 FCR 202 at [13]-[15].

56    In City of Enfield, Gleeson CJ, Gummow, Kirby and Hayne JJ stated (at [42]):

An undesirable consequence of the Chevron doctrine may be its encouragement to decision-makers to adopt one of several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result. In a situation such as the present, the undesirable consequence would be that the decision-maker might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding of jurisdiction from judicial examination. Commentary upon Chevron has seen it as indicative of a “delegalisation” of the administrative process; Professor Werhan writes that:

“Except for the unusual case in which Congress unambiguously has settled the particularised meaning of an enabling act, Chevron gives agencies, not courts, the dominant role in interpreting and enforcing legislative authority. The Court accomplished this role reversal by reconceptualising the process under which ambiguous statutes are interpreted. Before Chevron, the traditional approach viewed the interpretation of ambiguous laws to be a ‘question of law’ [See 5 USC §706 (1994)]; after Chevron, this task became simply a ‘policy choice.’ [See Chevron (1984) 467 US 837 at 844-845]. Having transformed the legal into the political, the Justices ceded interpretative authority to the agencies.”

[Werhan, “Delegalising Administrative Law” [1996] University of Illinois Law Review 423, at p 457. See also Merrill, “Judicial Deference to Executive Precedent”, Yale Law Journal, vol 101 (1992) 969, at pp 993-998.]

57    Gleeson CJ, Gummow, Kirby and Hayne JJ in City of Enfield went on to consider, as a pathway to a different approach, the fundamental distinction between the judicial and executive function in Australia, stating (at [43]) that “an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers”. This observation was made by reference to the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, who in turn had relied upon the United States Supreme Court decision of Marshall CJ in Marbury v Madison (1803) I Cranch 137 at 177; 5 US 87 at 111. The well-established principle from Quin at 36 that “[t]he merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone” was described by their Honours as the “product not of any doctrine of ‘deference’, but of basic principles of administrative law respecting the exercise of discretionary powers”. Their Honours:

(1)    cited the warning by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 that“[t]he limited role of a court [in] reviewing the exercise of an administrative discretion must constantly be borne in mind”;

(2)    drew attention to the leading case on beneficially reading executive decisions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272;

(3)    referred to the leading case on restraint by the High Court in ordinarily not making a declaration that has the effect of usurping executive decision-making, in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576-578, 597-598); and

(4)    noted the observation by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77 that there is not even an error of law in an administrative or executive decision-maker making a wrong finding of fact.

58    The position in Australia was summarised by Gleeson CJ, Gummow, Kirby and Hayne JJ in City of Enfield (at ([47], omitting footnote):

The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. A similar view appears to be taken by the Supreme Court of Canada.

59    A “restrained approach” may thus be required when reviewing findings made by a tribunal “having expertise in making assessments”: Attorney-General (NSW) v XY [2014] NSWCA 466 at [159] per Basten JA. Such a “restrained approach” is especially appropriate in the present case when considering the finding made by the Full Bench that the departure from the prescribed form in the present case was not “trivial”. It is not a conclusion that can be disturbed as a matter of jurisdictional error, or alternatively that should be disturbed in the exercise of discretion and restraint.

Section 174 and the need for strict compliance

60    The rejection of the challenge to the decisions of the Full Bench on the basis that they expose no jurisdictional error nevertheless leaves open the questions posed by the claim for declaratory relief introduced at the hearing of the application. That claim must also be rejected. That is because s 174(1A) should be construed in the manner suggested by Katzmann J in SDA v ALDI Foods.

61    Although it is not necessary to express any concluded view as to whether departures from the form as prescribed that are in fact “trivial” may not render a notice invalid, particularly in light of the introduction of s 188(2) since this application was heard, s 174(1A) was otherwise a section that required strict compliance. The difficulties envisaged by Jessup J in SDA v ALDI Foods and the consequences which follow from such a conclusion may readily be accepted. However, either the legal requirements create the obligation and such difficulties as may flow, or they do not. Such difficulties are not, at least in this case, of any moment to the determination of what was required. The reasons expressed by Jessup J in SDA v ALDI Foods and the difficulties exposed by Senior Counsel, no matter how persuasive, fail to adequately answer:

(1)    the unequivocal statutory language employed in s 174(1A), including the use of the terms “must” and the statutory mandate that a notice “must … not contain any other material”; and

(2)    the legislative background from which s 174(1A) emerged, as outlined by Katzmann J in SDA v ALDI Foods.

62    Even if it were to be assumed that s 174(1A) would have permitted “substantial compliance”, which is far from clear given the emphatic language in that provision, the finding made by the Full Bench that the “modification” effected in the present notice was not “trivial” would itself preclude the grant of declaratory relief. This application did not fall within the rare category of case in which, even if error of a non-jurisdictional kind had been found to exist, it was appropriate to grant the alternative remedy of declaratory relief, usurping the role of the Commission, including the authority to make errors within jurisdiction: see Guo at 578-9, 598-600. As Mason J pointed out in Peko-Wallsend at 40:

It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.

63    Declaratory relief would in any event have been refused in the exercise of discretion because it was sought in relation to enterprise agreements that were not the subject of the appeal to the Full Bench, were not in evidence (even if they are likely to be have been relevantly identical to those which were in evidence) and may affect persons who were not parties and were not given an opportunity to be heard.

Conclusions

64    The decision of the Full Bench as to the construction and application of s 174 of the Act to the notices given to employees in the present case was not affected by any jurisdictional error.

65    Without deciding whether “trivial” departures from the form prescribed by Schedule 2.1 of the Regulations would have rendered a notice “invalid”, s 174(1A) of the Act was otherwise a section that required strict compliance, which was not observed by ALDI. Even if the Full Bench’s conclusion that the departure was not “trivial” was incorrect, and even if trivial departures were permitted by s 174(1A) prior to the introduction of s 188(2), it is not for the Court to side-step the requirement for jurisdictional error to be established by the device of granting a declaration in this case, let alone to do so for notices that were not before the Full Bench in the decision under challenge.

66    It follows that the application for orders quashing the decisions of the Full Bench and the application for declaratory relief should both be refused. The application must therefore be dismissed.

Associate:    

Dated:    1 March 2019