FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited [2019] FCAFC 109

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

FLICK J:

1    In December 2018, there was filed in this Court an Originating Application for relief under Section 39B of the Judiciary Act 1903. The Applicants were the Construction, Forestry, Maritime, Mining and Energy Union (the “CFMMEU”) and the Association of Professional Engineers, Scientists and Managers, Australia. There were a number of Respondents, the First Respondent being Anglo American Australia Limited (ACN 004 892 371) (“Anglo American”).

2    The Applicants sought to quash a determination of the Full Bench of the Fair Work Commission (the “Commission”) made on 22 October 2018. That determination was expressed to be part of a “4 yearly review of modern awards” and “[f]urther to the Full Bench decision issued by the Fair Work Commission on 26 September 2018 [[2018] FWCFB 5996]”. In the October 2018 determination, the Commission purported to vary cl 18 of the Black Coal Mining Industry Award 2010 (the “Black Coal Award”), namely the “accident pay” provision. In very summary form, before this Court the Applicants sought to contend that:

    the Commission lacked any jurisdiction to make the October 2018 determination by reason of an earlier decision it had made in February 2015 ([2015] FWCFB 644) or, in the alternative, when it published a later decision in August 2015 ([2015] FWCFB 3523, (2015) 252 IR 384); and

    the Commission failed to make findings and reasons to support its October 2018 determination.

3    It has been concluded that:

    the former argument fails

and that:

    such reasons as were given by the Commission do not expose jurisdictional error.

4    The argument as to whether the Commission had completed its four yearly review, and thereby exhausted the power to undertake such a review, depends primarily upon both (the now repealed) s 156 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) and an understanding of the issues to which the February 2015 and August 2015 decisions were directed.

5    The latter argument depends upon s 601 of the Fair Work Act, the manner in which that provision has been construed and a review of the reasons provided by the Commission, for its October 2018 determination, in its September 2018 decision.

6    Subject to the following observations, concurrence is otherwise expressed with the joint reasons for decision of Kerr and O’Callaghan JJ. Indeed, gratitude is extended to their Honours for their more detailed exposition of the facts and issues posed for resolution.

The Fair Work Act

7    The legislative background to the provisions of present relevance may be traced back to the award modernisation process which commenced in 2008. At that stage the process was regulated by the former Workplace Relations Act 1996 (Cth) and review was undertaken by the predecessor to the Fair Work Commission, namely the Australian Industrial Relations Commission. The mammoth nature of the modernisation task to be undertaken and the process itself was summarised by Collier, Bromberg and Katzmann JJ in National Retail Association v Fair Work Commission [2014] FCAFC 118, (2014) 225 FCR 154 at 156 (the “National Retail Association case”) as follows:

[2]    From April 2008, an award modernisation process (award modernisation) was conducted by the Australian Industrial Relations Commission (AIRC), the predecessor of the FWC. Award modernisation was a process regulated by Part 10A of the former Workplace Relations Act 1996 (Cth) (WR Act). Broadly speaking, the award modernisation process resulted in more than 1500 industrial awards being reviewed by the AIRC and replaced with some 120 industry and occupation-based “modern awards”. The award modernisation process largely pre-dated the enactment of the Fair Work Act 2009 (Cth) (FW Act). However, the commencement of the operation of the modern awards was timed to coordinate with the commencement of the scheme for award regulation enabled by the FW Act.

8    The Part of the Fair Work Act of present relevance is Pt 2-3. That Part is headed “Modern awards”. The “Guide” to that Part, as set forth in s 132, states (inter alia) that “[t]his Part provides for the FWC to make, vary and revoke modern awards…”.

9    Within Pt 2-3, those provisions of central relevance to the task previously entrusted to the Commission to undertake a four yearly review of modern awards are ss 134, 156 and 157.

10    Section 134 sets forth the “modern awards objective” as follows:

134    The modern awards objective

What is the modern awards objective?

(1)    The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a)    relative living standards and the needs of the low paid; and

(b)    the need to encourage collective bargaining; and

(c)    the need to promote social inclusion through increased workforce participation; and

   (d)    the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da)    the need to provide additional remuneration for:

(i)    employees working overtime; or

(ii)    employees working unsocial, irregular or unpredictable hours; or

(iii)    employees working on weekends or public holidays; or

(iv)    employees working shifts; and

(e)    the principle of equal remuneration for work of equal or comparable value; and

(f)    the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g)    the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h)    the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2)    The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

    (a)    the FWC’s functions or powers under this Part; and

(b)    the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

(note omitted)

11    Section 156 is the provision which formerly required the Commission to conduct “4 yearly reviews of modern awards”. It provided as follows:

156    4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

(1)    The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

What has been done in a 4 yearly review?

(2)    In a 4 yearly review of modern awards, the FWC:

(a)    must review all modern awards; and

(b)    may make:

(i)    one or more determinations varying modern awards; and

(ii)    one or more modern awards; and

(iii)    one or more determinations revoking modern awards; and

(c)    must not review, or make a determination to vary, a default fund term of modern award.

Variation of modern award minimum wages must be justified by work value reasons

(3)    In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.

(4)    Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a)    the nature of the work;

(b)    the level of skill or responsibility involved in doing the work;

(c)    the conditions under which the work is done.

Each modern award to be reviewed in its own right

(5)    A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.

(notes omitted)

12    When undertaking a “review” required by s 156, the Commission is exercising a “modern award power” (as defined by s 134(2)) and is accordingly required to “ensure” that the modern award being reviewed “provide[s] a fair and relevant minimum safety net of terms and conditions”, taking into account those matter set forth in s 134(1).

13    Section 157 confers power upon the Commission to vary an award if necessary to achieve “modern awards objectives”. It provides (in part) as follows:

157    FWC may vary etc. modern awards if necessary to achieve modern awards objective

(1)    The FWC may:

(a)    make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or

     (b)    make a modern award; or

     (c)    make a determination revoking a modern award;

if the FWC is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

(2)    The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:

(a)    the variation of modern award minimum wages is justified by work value reasons; and

(b)    making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.

(3)    The FWC may make a determination or modern award under this section:

(a)    on its own initiative; or

(b)    on application under section 158.

(notes omitted)

14    Part 5-1 of the Fair Work Act is directed (inter alia) to the establishment of the Commission and its powers. Within Pt  5-1, s 590 provides as follows:

590    Powers of the FWC to inform itself

(1)    The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)    Without limiting subsection (1), the FWC may inform itself in the following ways:

   (a)    by requiring a person to attend before the FWC;

(b)    by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)    by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)    by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)    by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

   (f)    by conducting inquiries;

   (g)    by undertaking or commissioning research;

   (h)    by conducting a conference (see section 592);

   (i)    by holding a hearing (see section 593).

15    The provision of the Fair Work Act relevant to the need for the Commission to explain the basis upon which it makes its decisions is s 601. That section provides, in part, as follows:

601    Writing and publication requirements for the FWC’s decisions

   (1)    The following decisions of the FWC must be in writing:

(a)    a decision of the FWC made under a Part of this Act other than this Part;

(b)    an interim decision that relates to a decision to be made under a Part of this Act other than this Part;

(c)    a decision in relation to an appeal or review.

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

(3)    A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.

…

The duty of undertaking a four yearly review – s 156

16    The task entrusted to the Commission by s 156 of the Fair Work Act was a task to “review” an award which it (or its predecessor) has already previously considered.

17    It was a task required to be undertaken unconfined by any necessity to first consider whether there has been any material change in circumstances since the award was first made: Shop, Distributive and Allied Employees Association v Australian Industry Group [2017] FCAFC 161, (2017) 253 FCR 368 (the “Shop, Distributive and Allied Employees case”). In rejecting an argument that the Commission had there exceeded its power by not considering whether there had been any material change in circumstances such that an award no longer met the “modern awards objectives”, North, Tracey, Flick, Jagot and Bromberg JJ there reasoned (in part) as follows at 377 to 379:

[23]     … In short, the FWC considered that a determination varying an award may be warranted if it is established that there has been a material change in circumstances since the making of the award under review, but the FWC’s power to do so is not conditioned on it being satisfied that there has been such a change in circumstances.

 [24]    The FWC’s conclusion in this regard is correct.

[25]    First, it may be accepted that the word “review” takes its meaning from its context and may mean merely “reconsideration in the light of changed circumstances” ... This, however, is not the natural and ordinary meaning of the word which is simply “survey, inspect, re-examine or look back upon” (Macquarie Concise Dictionary (3rd ed)). ...

[26]    The present context is different. The FWC is not called upon to consider or reconsider the decision of another body by s 156. It is reviewing modern awards. …

[27]    It is apparent from s 156(1) that the next review was required to start as soon as reasonably practicable after each fourth anniversary of the commencement of Pt 2-3 of Ch 2. Thus, the statutory scheme required a review starting in 2012 and again in 2014 (followed by another review starting on 1 January 2018 and so on).

[28]    In other words, under s 156 the FWC is necessarily reviewing awards that it (or its predecessor) had already reviewed. In this context, it is the FWC which is in control of every review as required. There is nothing in this context to justify giving “review” a more confined meaning than its natural and ordinary meaning given that the review process is always controlled by the FWC.

[29]    Second, nothing in the text of s 156 supports the meaning which the applicants give to “review”. ...

[30]    Third, no other provisions of the Fair Work Act indicate that the FWC must be satisfied that there has been a material change in circumstances since the award under review was made or reviewed before the power under s 156(2)(b)(i) is engaged. The modern awards objective in s 134(1) applies to any such exercise of power (by s 134(2)(a)) but s 134(1) also does not identify any state of mind the FWC must hold. Rather, it imposes a function on the FWC to ensure that modern awards satisfy the requirements of that provision (that is, together with National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions taking into account (a) to (h)).

...

(citations omitted)

It was there further recognised that the Commission could bring to bear its own expertise when making a decision, an expertise entrusted by the Legislature to the Commission and not the Courts. The Court thus went on to refer to (inter alia) Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (“Enfield”) and then further observed (at 400 to 401):

[109]    This general acknowledgment that a statutory context may indicate a legislative intention that the assessment of an expert decision-maker may be accorded “greater weight” upon an application for judicial review has been embraced in the industrial law context (for example, [(R v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees’ Union, (1981) 153 CLR 376 at 390]. When referring to a decision of the Commission established under the former Conciliation and Arbitration Act 1904 (Cth), Mason J observed:

The weight to be given to the Commission’s decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission’s knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.

[110]    This passage was subsequently endorsed by Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 411. Subject to a qualification as to the evidence being “in all significant respects … substantially the same”, the passage was also endorsed by Gleeson CJ, Gummow, Kirby and Hayne JJ in Enfield at [49]. See also to the same effect Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [126] per Buchanan J.

[111]    In the context of the present decision-making statutory regime, judicial recognition can be given to the expertise of the FWC, especially in circumstances where the legislature has expressly left to the FWC the task (for example) of “ensur[ing] that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions” (s 134(1)). The task of ensuring that modern awards comply with the standards set by s 134(1) and the task of making a judgment as to what is “fair and relevant” is not entrusted by the legislature to this Court.

[112]    Whilst retaining ultimate judicial oversight of decisions of statutory decision-makers, “great weight” can be given to the factual assessments made by the Full Bench in the present matter.

18    In undertaking the review required by s 156, it has been said that the task entrusted to the Commission is one requiring an “evaluative judgment”: Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [29], (2017) 252 FCR 337 at 347 per Allsop CJ, North and O’Callaghan JJ (“Anglo American Metallurgical Coal”). When considering a particular decision of the Commission regarding what was referred to as a “cap” on a redundancy scheme under the Black Coal Award, the Court there described the functions being discharged by the Commission as follows (at 346 to 347):

[28]    The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

[29]    Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.

[30]    It is necessary to see how the Commission approached this task. The decision contained 67 paragraphs. It is important to appreciate that by s 601, the Commission was not required to give written reasons, though under s 601(2) it may do so. Naturally, to the extent that reasons given display a misunderstanding of the statutory task, that may ground a conclusion of jurisdictional error. If, however, such reasons as are given do not completely explain the conclusion reached, jurisdictional error is not demonstrated by such inadequacy.

Their Honours further concluded with respect to such reasons as were given in part (at 350):

[50]    Some reasons were given in [63] and [65]. These were the product of the broad evaluative judgment as to the modern awards objective in the light of all the material produced before the Commission. The fact that such reasons might have been inadequate to explain the views of the Commission does not lead to the conclusion that there were no reasons, or that matters raised by the parties were not considered. ...

[51]    The reasons are not elaborate, but they do not reveal a failure by the Commission to direct itself to the statutory task, or fairly deal with the matters raised by the parties.

Those observations, obviously enough, apply with equal force to that aspect of the four yearly review being undertaken by the Commission in the present proceeding.

19    And finally, when undertaking the review required to be undertaken by s 156, there was no impediment in the path of the Commission considering discrete aspects of an award in one decision and another aspect in another decision: cf. National Retail Association case [2014] FCAFC 118, (2014) 225 FCR 154. In that case the Commission had varied the General Retail Industry Award 2010. In doing so the Commission was undertaking a “review” of modern awards under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). One of the arguments resolved by the Full Court was whether the Commission, when undertaking its “review” under Item 6 of the transitional provisions and when considering the “modern award objectives” as required by Item 6(2), was required to undertake a single “holistic” review of all of the terms of an award. In rejecting the argument, Collier, Bromberg and Katzmann JJ concluded, in part, (at 171 to 172):

[84]    By ground (i), the [National Retail Association] contended that Item 6 required that the entirety of each modern award be assessed holistically against Item 6(2) considerations. In support of its contention that a holistic assessment was mandated, the NRA relied upon the terms of Item 6(2A) and in particular the phrase “in its own right”. …

[85]    Read in its proper context, the phrase upon which the [National Retail Association] relies does not have the meaning that the [National Retail Association] ascribes to it. …

[86]    That the review of each modern award must focus on the particular terms and the particular operation of the particular award does not suggest that the review of that award was intended to be confined to a single holistic assessment of all of its terms. The conclusion that a modern award fails to comply with the modern awards objective may be based upon a single offending provision. There is no reason in principle why the FWC could not come to that conclusion without reviewing the entire award. Nor can we discern any reason why the review of a modern award was intended to be confined to a single holistic exercise. In fact, there are a number of reasons why we consider that such a course was not intended.

[87]    First, the words of Item 6(3) empower the FWC to “remedy any issues identified in the review”. The emphasis there given to the rectification of “any issues” does not support the proposition that a holistic rather than an issues-based approach was intended. More relevantly, those words do not suggest that an issues-based approach was intended to be excluded. Further, the phrase “identified in the review” (emphasis added) is more suggestive of the power conferred being exercisable in the course of the review rather than it being unavailable until the review of the whole award has been completed.

[88]    Secondly, a requirement for a single holistic assessment of each modern award would create the practical problems which the FWC identified in the passage from Re Modern Awards Review 2012, which we have set out at [29] above. It should not be assumed that, in requiring the FWC to conduct the very substantial task of reviewing all modern awards, Parliament intended to impose practical constraints upon the manner in which that task was to be performed, unless such constraints served a useful purpose. No such purpose is apparent to support the constraint for which the NRA contends. Further, the very wide procedural discretion conferred on the FWC, to which we referred at [18], suggests that Parliament intended to confer upon the FWC a great deal of flexibility in the way the transitional review was to be conducted.

[89]    It is clear from the factual context we set out at [30]-[31] that the FWC’s review of the Retail Award was conducted through a number of different hearings in which different applications dealing with different aspects of the award were determined. …

[90]    Whilst it is clear that, by the decision under challenge, the FWC did not review the entirety of the Retail Award, we are not persuaded that the approach taken by the FWC was inconsistent with the statutory task required of it by Item 6.

[91]    We therefore reject ground (i).

Albeit a decision confined to the manner in which the Commission could undertake a “review” under the transitional provisions, it is respectfully considered that this decision supports a construction of s 156 such that the Commission may undertake a review by considering different aspects of an award in separate determinations and may consider different aspects of the same provision of an award in separate determinations. It was not the intention of Parliament to impose upon the Commission when undertaking a four yearly review “practical constraints upon the manner in which that task was to be performed”: cf. National Retail Association case [2014] FCAFC 118 at [88], (2014) 225 FCR at 172.

20    These are the principles of general application to the resolution of the present proceeding.

Clause 18 of the Black Coal Award

21    Prior to its determination in December 2014, the reasons for which were published in the February 2015 decision of the Commission, cl 18 of the Black Coal Award provided as follows:

18.    Accident pay

An employee in receipt of weekly payments under the provisions of applicable workers compensation legislation will be entitled to receive accident pay from the employer subject to the following conditions and limitations:

18.1    Payment to be made during incapacity

An employer must pay, or cause to be paid, accident pay during the incapacity of the employee, within the meaning of the applicable workers compensation legislation:

   (a)    until such incapacity ceases; or

(b)    until the expiration of a period of 78 weeks from the date of injury;

whichever event will first occur, even if the employer terminates the employee’s employment within the period.

18.2    Meaning of accident pay

For the purposes of this clause accident pay means:

(a)    For the initial period of 39 weeks from the date of injury, a weekly payment representing the difference between the weekly amount of compensation paid to the employee under the applicable workers compensation legislation and the weekly amount that would have been received by virtue of this award had the employee been on paid personal leave at the date of the injury (provided the latter amount is greater than the former amount).

(b)    For a further period of 39 weeks a weekly payment representing the difference between the weekly amount of compensation paid to the employee under the applicable workers compensation legislation and the rate prescribed from time to time for the classification of the incapacitated employee at the date of the injury (provided the latter amount is greater than the former amount).

18.3    Pro rata payments

In respect of incapacity for part of a week the amount payable to the employee as accident pay will be a direct pro rata.

18.4    When not entitled to payment

An employee will not be entitled to any payment under this clause in respect of any period of paid annual leave or long service leave, or for any paid public holiday.

18.5    Redemptions

In the event that an employee receives a lump sum in redemption of weekly payments under the applicable workers compensation legislation, the liability of the employer to pay accident pay as herein provided will cease from the date of such redemption.

18.6    Damages independent of the Acts

Where the employee recovers damages from the employer or from a third party in respect of the said injury independently of the applicable workers compensation legislation, such employee will be liable to repay to the employer the amount of accident pay which the employer has paid under this clause and the employee will not be entitled to any further accident pay thereafter.

18.7    Calculation of period

The 78 week period commences from the first day of incapacity for work, which may be subsequent to the date of injury. Intermittent absences arising from the one injury are to be cumulative in the assessment of the 78 week limitation.

18.8    Clause ceases to operate

This clause ceases to operate on 31 December 2014

22    It is this clause which occupied the attention of the Commission when making its February 2015 decision and the determination now under challenge – the October 2018 determination.

The February 2015 decision – a completed review?

23    The Applicants’ argument that the Commission lacked any jurisdiction or power to make any further decision in September 2018, and thus the determination in October 2018, by reason of it having exhausted its four yearly “review” function in February 2015 should be rejected.

24    The argument is rejected for three reasons, namely:

    when undertaking its four yearly review, the Commission is not required to make only one determination – s 156(2)(b)(i) expressly providing that the Commission “may make one or more determinations varying modern awards”;

    there is nothing inherent in the task of undertaking a “review” that would require the Commission to resolve in one determination all aspects of a particular term of a modern award but rather the legislative intent was not to place “practical constraints” upon the manner in which the Commission saw fit to proceed (cf. National Retail Association case [2014] FCAFC 118 at [88], (2014) 225 FCR at 172); and

    the February 2015 decision of the Commission was a decision confined to a consideration as to whether the sunset provision in cl 18.8 of the Black Coal Award should be deleted.

25    It is the latter reason which should be briefly developed.

26    The February 2015 decision of the Commission was preceded by a number of earlier “Issues Papers” or “Statements” issued by the Commission as to the manner in which it was intending to conduct its four yearly review. One “Issues paper” was thus published in January 2014 stating (inter alia):

Process for the 4 Yearly Review of Modern Awards

[23]    The 4 yearly review of modern awards will be primarily conducted by one Full Bench of the Commission over a period of 18 months. While one ‘core’ Full Bench will conduct the Review, the composition of the Full Bench will vary depending on the group of awards being reviewed. In some cases, individual Members may deal with specific awards or specific issues and provide a report back to the Full Bench. The review will follow the form of the original Part 10A award modernisation process, in that parties will be required to make submissions to a Full Bench on an award by award basis, rather than by application.

[24]    The 4 yearly review will consist of an initial stage which considers the legislative framework under which the Review will be undertaken and identify common issues, followed by an award stage which reviews the awards in four groups.

A further “Statement” was issued by the President (Ross J) on 4 June 2014. That Statement itself referred to the fact that in “a Statement and Directions issued on 17 March 2014, a number of common issues were identified including Transitional/sunsetting provisions relating to accident pay, redundancy and district allowances…”.

27    It is against this background that the February 2015 decision is to be understood.

28    The identification by the Commission of the issues resolved in that decision expressly make explicit that it was a decision confined to the deletion of cl 18.8 of the Black Coal Award. The decision ([2015] FWCFB 644) itself thus states (in part) as follows:

[1]    These matters concern the transitional provisions dealing with accident pay, district allowances and redundancy entitlements which were inserted into most modern awards pursuant to the decision of the Award Modernisation Full Bench in the Award Modernisation Decision 2008. The transitional provisions were expressed to operate for a period until 31 December 2014 (the sunset provisions), during which time the parties would have the opportunity to give consideration to the future award regulation of those entitlements.

[2]    As part of the 4 yearly review of modern awards, the following applications were made in relation to the relevant transitional provisions:

•    ...

•    An application by the Mining and Energy Division of the Construction, Forestry, Mining and Energy Union, (CFMEU) to delete the sunset provision in the accident pay provision in the Black Coal Mining Industry Award 2010 (the Black Coal Award); and

•    …

(footnotes omitted)

The decision thereafter (inter alia) addresses each of the applications made and further identifies the subject-matter of the decision of present relevance as follows:

The Black Coal Mining Industry Award 2010

[65]    The CFMEU sought the deletion of the sunset provision (clause 18.8) from the accident pay clause in the Black Coal Award.

[66]    The clause in the Black Coal Award is not in the same terms as the model accident pay clause inserted into most modern awards by the Award Modernisation Full Bench. Clause 18 of the Black Coal Award sets out the accident pay entitlement in substantially the same terms as in the award it was intended to supersede and applies to all employees within the coverage of the award. However a sunset provision was included in the modern award when it was made.

(footnote omitted)

The Commission goes onto address the submissions made and concludes as follows:

[72]    For these reasons, we decided to remove the sunset provision in clause 18 of the Black Coal Award.

29    Even though the Commission may have had submissions and other materials before it which could have enabled it to review other provisions of cl 18, the Commission did not then do so. It confined its decision to (relevantly) the deletion of cl 18.8. Section 156(2)(b)(i) of the Fair Work Act expressly empowering it to make more than one “determination”. There was no statutory imperative imposed upon the Commission when reviewing cl 18 of the Black Coal Award (or any of the other awards it was considering) to review cl 18 in its entirety. It could, and did, confine its “review” to the “sunset provision” in cl 18.8.

30    Having made its February 2015 decision, the Commission thereafter remained free to further undertake its “4 yearly review” and to turn its attention to other aspects of the “accident pay” provisions of both the Black Coal Award and other modern awards presenting “common issues”.

31    The jurisdiction or power to undertake its “4 yearly review” was not exhausted by the February 2015 decision.

The August 2015 decision – a completed review?

32    In the event that the February 2015 decision of the Commission was held not to have completed at least that part of the 4 yearly review of cl 18 of the Black Coal Award, the fall-back position for the Applicants was that the Commission completed its review process in August 2015: [2015] FWCFB 3523, (2015) 252 IR 384.

33    That fall-back position is also rejected.

34    So much it is respectfully concluded follows from the fact that it was no part of the August 2015 decision of the Commission to consider cl 18 of the Black Coal Award; the subject-matter of the August 2015 decision of the Commission was the insertion into awards of accident pay provisions as opposed to the deletion or revision of existing accident pay provisions. Clause 18 was an existing provision.

35    Again, so much is apparent from the terms of the decision of the Commission itself.

36    The Commission identifies at the outset of its reasons the subject-matter of its August 2015 decision as follows:

Fair Work Commission

[1]    The Fair Work Act 2009 (Cth) (the Act) provides that the Commission must conduct a 4 yearly review of modern awards (s 156(1)). As part of the present 4 yearly review, applications have been made by several unions to vary modern awards to include provisions for accident make-up pay.

[2]    The applications relate to some 37 modern awards and seek to insert into those awards an entitlement to accident make-up pay applying to all employees covered by each award.

And, in making its August 2015 decision, the Commission expressly rejected as follows a submission that the Commission should not entertain the union applications (at 420 to 421):

(i)    Preliminary matters raised by some employer groups

[148]    There were several preliminary matters and objections raised by employer groups in relation to the union applications.

[149]    The Ai Group submitted that the Commission should not entertain the union applications as they are closely connected with the accident pay claims which were considered and rejected by the Full Bench in the decisions made on 31 October 2014 and 11 February 2015. It was submitted that the present applications are an abuse of process and, having regard to estoppel principles akin to those applied in the courts, should be rejected by the Commission.

[150]    We recognise that there are a range of similar issues raised by the ACTU applications which were determined by the Full Bench in the October 2014 and February 2015 decisions and the issues which now arise for determination in regard to the present union applications. However we consider that there are also some fundamental differences between the applications and the considerations relevant to the determination of the present applications.

[151]    The initial applications were for the deletion of sunset provisions in transitional accident pay clauses in various modern awards. The effect of the deletion of those sunset provisions would have been to continue in operation the accident pay entitlements under pre-reform instruments. This would mean that the application of the accident pay provisions in the modern awards would continue to be ascertained having regard to the terms of awards and instruments, most if not all of which were no longer in operation. The Full Bench rejected that approach for a variety of reasons, including that the maintenance of accident pay provisions in modern awards in those terms would not contribute towards ensuring that there is a simple, easy to understand and stable modern award system and would have adverse impacts in terms of the regulatory burden on business.

(footnotes omitted)

The Commission went on to resolve the applications then before it, namely the applications to insert accident pay provisions into awards, in part, as follows (at 436 to 437):

Conclusions

…

[211]    In general we consider that the safety net accident pay entitlement should only apply for a period of 26 weeks from the time of incapacity for work due to injury or illness.…

[212]    We recognise that there are special circumstances relating to the awards in the first category listed earlier in this decision. The pre-reform instruments in these industries provided a generally applicable accident pay entitlement of 39, 52 or 104 weeks. The accident pay provisions in those awards provided what might be considered to be a clear national standard for the particular industries as described in the Award Modernisation Decision 2008. For similar reasons as were given in relation to the Black Coal Mining Industry Award 2010 we have decided that the previous accident pay entitlements in these award areas should be maintained as part of the minimum safety net. However, having regard to the evidence and submissions in the present proceedings, and given the purpose of modern awards in setting minimum terms and conditions for employees in particular industries or occupations consistent with the statutory objectives, we do not consider that the accident pay entitlement in any of the awards should exceed 52 weeks. We consider that there is a difference in inserting such provisions in awards by arbitral determination at this time and in the context of the present proceedings and a decision to maintain provisions which were still in operation in an award. We do not consider that it is necessary for the minimum award safety net to provide for a period beyond 52 weeks. In so deciding, we note that the evidence presented suggests that there is considerable scope in some of the industries for the safety net entitlement to be supplemented through collective bargaining.

The September 2018 decision and the October 2018 determination – an absence of reasons

37    The subject matter of the September decision and the October 2018 determination was the question as to whether cl 18 of the Black Coal Award should be varied by reducing the period of accident pay from 78 weeks to 52 weeks. The Commission in the September 2018 decision determined that (inter alia) the period should be reduced. The October 2018 determination put this decision into effect.

38    This was a question which had not been “reviewed” by the Commission in either its February 2015 decision or its August 2015 decision.

39    In the event that it was concluded that the Commission retained jurisdiction or power to undertake a further review, the Applicants shifted the ground of their challenge to the adequacy of the reasoning provided in September 2018 decision and therefore the October 2018 determination.

40    As the terms of the October 2018 determination make clear, that determination is “further” to the decision previously made in September 2018. The reasons for the October 2018 determination are therefore to be found in the September 2018 decision: [2018] FWCFB 5996.

41    The contention advanced on behalf of the Respondents is that those reasons:

    adequately explain the basis upon which the Commission proceeded;

and, in any event:

    any inadequacy fails to expose jurisdictional error.

Both contentions are accepted.

42    The September 2018 decision of the Commission is structured by reference to what it describes as:

    an “Introduction” (at paras [1] to [6]);

    the “Background” (at paras [7] to [13]);

    “The Statutory Framework” (at paras [14] to [30]);

    “The BCMI Award provision regarding Accident pay” (at para [31]);

    “The CMIEG’s case” (at paras [32] to [45]);

    “The AiG case” (at paras [46] to [47]);

    “The Unions’ case” (at paras [48] to [58]);

    its “Consideration of the issues” (at paras [59] to [75]); and

    its “Conclusion” (at para [76]).

43    It is sufficient for present purposes to set forth as follows that part of the decision of the Commission addressing, in part, its “[c]onsideration of the issues” (without alteration):

[70]    Mr Vickers’ evidence regarding the accident pay clauses in 145 enterprise agreements applying to employees of coal mining companies which were analysed by his staff indicated that 92 of those enterprise agreements had varied the approach to accident pay provided for in the BCMI Award, primarily by way of significant enhancements to the Award provision. This points to there already being considerable bargaining in respect of accident pay which is particularly relevant in respect of s.134(1)(b) of the Act.

[71]    Having regard to the above analysis and the material before the Commission, we have concluded that the current accident pay clause in the BCMI Award in providing 78 weeks accident pay exceeds what is necessary for the Award to provide fair and relevant safety net of minimum terms and conditions. Consistent with the conclusion reached by the Full Bench in the August 2015 Decision, we consider that a period of 52 weeks provides an appropriate safety net for accident pay in this industry. In coming to that view, we have had regard to the history of accident pay in the industry, the industry’s relative safety performance and as set out below the modern awards objective. Accordingly, we intend to vary the BCMI Award to reduce the period of accident pay from 78 to 52 weeks.

[72]    As to the second element of the CMIEG’s application, i.e. that the periods of accident pay payable at the paid personal leave rate and the employee’s “classification rate” both be reduced from 39 weeks to 26 weeks, the material before the Commission indicates that the bulk of the negative impact on injured workers arises from the reduction of the period of accident pay payable at the paid personal leave rate. Having particular regard to the modern awards objective requirement that modern awards provide a “fair and relevant minimum safety net of terms and conditions” (emphasis added), we do not intend to vary the Award in this respect in the terms sought by the CMIEG. Rather we intend to vary the Award to reflect the alternative approach which the CMIEG acknowledged at the hearing was open to the Commission, i.e. we intend to maintain the basis on which the first 39 weeks of accident pay is paid and reduce from 39 to 13 weeks the period of accident pay which is paid at the employee’s “classification” rate. This approach will minimise the impact of our decision on affected employees.

[73]    Finally, we note that, consistent with the clarification provided by the CMIEG in its oral submissions, the variations will only apply to injuries which occur on or after the date on which the variation commences operation. In other words, the variations will not affect the existing entitlement to 78 weeks accident pay of an employee who is currently injured and currently receiving the entitlement.

[74]    With regard to the modern awards objective, the variations we intend to make are, as previously noted, likely to encourage collective bargaining [s.134(1)(b)] and, if anything, are likely to impact positively on employment costs and the regulatory burden [s.134(1)(f)]. The proposed variations will also contribute to ensuring a simple, easy to understand, stable and sustainable modern award system [s.134(1)(g)]. Beyond that, the other elements of the modern awards objective are either neutral considerations [ss.134(1)(a), (d) and (h) – with regard to s.134(1)(a) being a neutral consideration we base our view on the Unions’ submission referring to the generally high level of income in the industry as being one of the special features of the industry] or are not relevant in this case [ss.134(1)(c), (da) and (e)].

[75]    In summary, the variations to the accident pay provision of the BCMI Award which we have outlined above will as required by the modern awards objective ensure that BCMI Award, together with the NES, provides a fair and relevant safety net of minimum terms and conditions.

44    The reason for setting forth this part of the Commission’s decision is to put paras [74] and [75] into context. Paragraph [74] directs specific attention to three of the matters that are to be taken into account when considering the “modern award objectives”, namely:

    “the need to encourage collective bargaining” (s 134(1)(b));

    “the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and regulatory burden” (s 134(1)(f)); and

    “the need to ensure a simple, easy to understand, stable and sustainable modern award system” (s 134(1)(g)).

Other matters to be taken into account pursuant to s 134(1) were characterised by the Commission as “either neutral considerations … or … not relevant in this case”: [2018] FWCFB 5996 at [74].

45    In seeking to challenge such reasons as were provided by the Commission in respect to the three matters it specifically identified, the Applicants contended (inter alia) that there was no evidence to support any assessment (at para [74]) that the variations to be made to cl 18 were:

    “likely to encourage collective bargaining”; or

    “likely to impact positively on employment costs and the regulatory burden”; or

    to “contribute to ensuring a simple, easy to understand, stable and modern award system”.

The reasons of the Commission, so the Applicants contended, were but mere conclusory statements without explanation. For example, with respect to whether the variation of the award was likely to encourage collective bargaining, the evidence of Mr Vickers, referred to at para [70], it was said, provided no evidence of that finding. It was further contended that the only reference to the need to ensure a “stable” modern award system, other than in the summary of the Coal Mining Industry Employer Group’s submissions at para [35], was to be found at para [23] of the Commission’s decision. A reference, it was said during oral submissions, made “in a context which points the other way” to the conclusion reached.

46    Two initial difficulties with the Applicants’ contention, however, are:

    it divorces the reasoning of the Commission in the present decision from such prior reasons and consideration as the Commission had given to the issues thrown up by the four yearly review it was undertaking, albeit a review process which had previously addressed other issues arising in respect to (in particular) the February and August 2015 decisions, and the familiarity which the Commission acquired as part of conducting that review; and

    it divorces the reasoning at paras [70] to [74] from the detailed exposition by the Commission of “The CMIEG’s Case” (particularly at para [35] where the Commission summarises the CMIEG submissions directed to s 134) and its exposition of “The Unions’ case” (particularly its exposition as to “key aspects of the Unions’ oral submissions” at para [54]).

When explaining the basis upon which it proceeded in September and October 2018 the Commission was not required, either by reason of any statutory provision or by reason of the issues then being resolved, to set forth in any greater detail than it did the knowledge and familiarity which it had acquired throughout its review process.

47    Such reasons as were given by the Commission in September 2018, when read in context, are considered to be an adequate explanation as to the basis upon which it proceeded.

48    A further difficulty, and a much more fundamental difficulty confronting the Applicants, is that even if it were to be assumed that the decision of the Commission was not adequately explained, “jurisdictional error is not demonstrated by such inadequacy”: Anglo American Metallurgical Coal [2017] FCAFC 123 at [30], (2017) 252 FCR at 347 per Allsop CJ, North and O’Callaghan JJ.

49    The present proceeding, with respect, is not the occasion to consider whether a failure on the part of the Commission to adequately explain a decision which has been reached when exercising its powers and functions under other provisions of the Fair Work Act may expose jurisdictional error. It may nevertheless be noted that, even in the absence of a statutory requirement to provide reasons, error may be exposed where (for example) a submission of central relevance to a claimant’s case is required to be taken into account and has not been: cf. Soliman v University of Technology, Sydney [2012] FCAFC 146 at [53] to [55], (2012) 207 FCR 277 at 294 to 295 per Marshall, North and Flick JJ. Where the Commission has voluntarily provided reasons, a Court may draw inferences as to what was and was not considered and may conclude that jurisdictional error is exposed by reason of a failure to complete a statutory task: One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [180] to [209], (2018) 277 IR 23 at 62 to 68 per Bromberg, Katzmann and O’Callaghan JJ. But the availability of any such argument necessarily depends upon close attention being given to the statutory context in which a decision is made. In the present proceeding, that context is one characterised by the Commission not only:

    not being required by any statutory provisions in the Fair Work Act to give reasons for its decision (s 601) and not being subject to any further statutory requirement to provide (for example) a statement of findings on material questions of fact or a reference to the evidence: cf. Shop, Distributive and Allied Employees case [2017] FCAFC 161 at [99], (2017) 253 FCR at 398 to399;

but rather characterised by the Commission:

    having a duty to “review” an award which it has previously considered (s 156);

    not being required to reach any particular state of mind (Shop Distributive and Allied Employees Association case [2017] FCAFC 161 at [30], (201) 253 FCR at 379) when exercising its “modern award powers” (s 134(2)) but merely to “take into account” those matter specified in s 134(1);

    being called upon to make an “evaluative judgment” or a “broad evaluative judgment”: Anglo American Metallurgical Coal [2017] FCAFC 123 at [29] and [50], (2017) 252 FCR at 347 and 350;

and to do so in a context where:

    the task being exercised by the Commission is one entrusted by the Legislature to the Commission and being one where the Commission can bring to bear its own expertise (cf. Shop Distributive and Allied Employees Association case [2017] FCAFC 161, (2017) 253 FCR 401) including, in the present proceeding, its prior familiarity with the award that it is presently reviewing.

50    On the facts of the present case, no jurisdictional error is exposed in the September 2018 reasons for decision of the Commission and thus no error in the October 2018 determination.

CONCLUSIONS

51    The issue resolved in the September 2018 decision and the October 2018 determination, namely (inter alia) the variation of the Black Coal Award to reduce the period of accident pay from 78 to 52 weeks, could potentially have formed part of the earlier decisions of the Commission in February and August 2015. But that issue was not then resolved.

52    There was no impediment to the Commission proceeding to make a number of decisions when undertaking its four yearly review of the Black Coal Award. And the February and August 2015 decisions of the Commission did not exhaust the power or jurisdiction of the Commission to ultimately make its decision in September 2018 and its determination in October 2018.

53    When making its September 2018 decision and October 2018 determination the Commission adequately explained the basis upon which it proceeded. Any inadequacy in the reasons it provided would not in any event have exposed jurisdictional error.

THE ORDER OF THE COURT IS:

The Originating Application filed on 14 December 2018 is dismissed.

Associate:    

Dated:    27 June 2019

REASONS FOR JUDGMENT

KERR AND O’CALLAGHAN JJ:

introduction

54    The applicants, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) and the Association of Professional Engineers, Scientists and Managers, Australia (the APESMA) (together, the Unions) apply pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court Act 1976 (Cth) for judicial review of a 26 September 2018 decision of a Full Bench of the Fair Work Commission (the FWC or the Commission) to vary the accident pay provisions of the Black Coal Mining Industry Award 2010 (the BCMI Award) by reducing the period of accident pay from 78 to 52 weeks. See 4 Yearly Review of Modern Awards – Accident Pay – Transitional Provisions [2018] FWCFB 5996. The decision was made as part of the FWC’s “4 yearly review of modern awards”, pursuant to (the now repealed) s 156 of the Fair Work Act 2009 (Cth) (the FW Act).

55    The CFMMEU represents miners in the black coal mining industry. The APESMA represents staff workers in that industry.

56    There are thirteen corporate respondents to the application. They are the various black coal mining companies who appeared as a group (represented by an unincorporated body called the Coal Mining Industry Employer Group (the CMIEG)) before the FWC, at the hearing held in respect of their application to vary the BCMI Award. One of the respondents, BHP Billiton Limited, was separately represented on the hearing of this application.

57    The Unions seek writs of certiorari and mandamus quashing the decision and requiring the Commission to re-determine the proceedings on the grounds that the FWC did not have jurisdiction to make the variation to the award; failed properly to consider and resolve competing submissions; and made factual findings in the absence of evidence.

58    For the reasons that follow, we would dismiss the application.

the facts

59    The BCMI Award was made by the Australian Industrial Relations Commission in 2010. The history of the BCMI Award, and the introduction of award modernisation and of “modern awards” is summarised in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at 338-347, [4]-[29] (Allsop CJ, North and O’Callaghan JJ). As explained in that decision:

    a modern award is not an instrument the product of agreement, or conciliation and arbitration as representing all the terms and conditions of employment of identified employees – rather, together with the National Employment Standards its purpose is to provide a fair and relevant minimum safety net of terms and conditions ([18], [22], [23]);

    other terms and conditions beyond a minimum are to be the product of enterprise bargaining, and enterprise agreements under Pt 2-4 of the FW Act ([23]);

    a 4 yearly review is a review of the modern award as a whole and is a review at large ([28]); and

    in conducting a 4 yearly review it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) of the FW Act and any other consideration consistent with the purpose of the modern award objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net ([29]).

60    In its original form, the BCMI Award included accident pay provisions together with a “sunset” clause which provided that the accident pay clause would cease to operate on 1 January 2014.

61    The FWC commenced its 4 yearly review of modern awards pursuant to s 156 of the FW Act on 24 January 2014.

62    By virtue of s 581 of the FW Act, the President of the FWC is responsible for ensuring that the FWC performs its functions and exercises its powers in a manner that is efficient and adequately serves the needs of employers and employees throughout Australia. The President can also give directions as to the manner in which the FWC is to perform its functions and exercise its powers (s 582(1)), including about the conduct of 4 yearly reviews of modern awards (s 582(4)(a)).

63    Pursuant to the power given to him under s 582, on 24 January 2014, the President published an “issues paper”. The paper announced that the 4 yearly review of modern awards would be conducted primarily by one Full Bench of the Commission over a period of 18 months, but that the composition of the Full Bench would vary depending on the group of awards being reviewed. The paper also announced that the 4 yearly review would consist of an initial stage, which was to consider the legislative framework under which the review would be undertaken and identify “common issues”, followed by an award stage which was to review the awards in 4 groups. The BCMI Award was listed as forming part of group 1.

64    On 17 March 2014 the President of the FWC published a document entitled “Statement and Directions” concerning common issues. Among other things, that document provided:

5.    A matter will not necessarily be regarded as a common issue just because variations are sought to more than one award. ‘Common issues’ are likely to be proposals for significant variation or change across the award system, such as applications which seek to change a common or core provision in most, if not all, modern awards.

6.    A matter identified as a common issue will be referred to a Full Bench for determination in a ‘stand alone’ proceeding, as distinct from having the issue determined on an award by award basis during the award stages of the review. The Full Bench will be responsible for managing the proceedings for the common issue. This may result in the Full Bench issuing determinations varying particular modern awards or issuing statements of principle that may be considered when reviewing individual modern awards.

7.    To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying modern award’s [sic] and the determination taking effect in the award phase.

8.    On the basis of discussions during the 26 February conference the following matters will be regarded as common issues, at this stage of the Review:

….

•    Transitional/sunsetting provisions relating to accident pay …

9.    These matters will constitute the initial list of common issues to be determined in the Review. The list of common issues is not closed …

65    In October 2014, the FWC considered an application by the first applicant (then called the CFMEU) to remove the sunset provision in the BCMI Award and applications by the Australian Council of Trade Unions (the ACTU) seeking removal of model transitional provisions, including relating to accident pay, as part of the 4 yearly review.

66    The CFMEU and ACTU applications were consolidated and heard together in October 2014 by a Full Bench.

67    The CFMEU application was opposed by employer interests, including the CMIEG, which filed written submissions in support of the position adopted by the main employer participant, the Australian Industry Group.

68    On 31 October 2014, the FWC (Boulton J, SDP, Kovacic DP and Bull C) published a decision (4 Yearly Review of Modern Awards — Transitional Provisions [2014] FWCFB 7767), which decided that the sunset clause contained in clause 18.8 of the award be deleted with effect from 31 December 2014. The FWC said that it would publish reasons for that decision later.

69    Those reasons were published on 11 February 2015. See 4 Yearly Review of Modern Awards – Transitional Provisions [2015] FWCFB 644; (2015) 248 IR 1.

70    Before turning to the content of those reasons it is necessary to record the contents of two other documents caused to be published by the FWC. The first is a statement (4 Yearly Review of Modern Awards [2014] FWC 8583) from the President, dated 1 December 2014, which provided:

5.    To ensure that the rights of all interested parties are protected the review of a particular award will not be finalised until all of the common issues have been determined. While the review of a particular award will not be finalised until all of the common issues have been determined, this will not preclude a determination being issued varying one or more modern awards and those determinations taking effect before the completion of the Review.

71    On 16 December 2014, Boulton J, SDP, Kovacic DP and Bull C published directions which relevantly provided that any further or amended applications to vary awards in respect of accident make-up pay be made by 22 December 2014.

72    Returning now to the reasons published on 11 February 2015. After referring to the Unions’ evidence regarding the merits of the accident pay provisions and their submissions that the provisions were a necessary part of a fair and relevant minimum safety net of terms and conditions, having regard to the matters referred to in s 134 of the FW Act, as well as the employer’s submissions, the Full Bench concluded as follows:

71.    As stated in our decision, we consider that the accident pay provision in the Black Coal Award provides a clear national standard for the particular industry as described in the Award Modernisation Decision 2008. In this regard, there was a significant amount of material presented by the CFMEU in the proceedings regarding the history and application of the provision and relevant decisions of industrial tribunals. The application of the provision is understood in the industry and does not depend on reference to other industrial instruments. The provision does not in our view include State-based terms or conditions of employment contrary to s.154 of the Act. As stated above, we do not consider that the fact that the provision may operate in the context of different State workers’ compensation schemes, and that the level of make-up payments may therefore vary for workers in different States, would of itself lead to the conclusion that the provision contravenes s.154.

72.    For these reasons, we decided to remove the sunset provision in clause 18 of the Black Coal Award.

73    On 19 December 2014 the Full Bench made a determination varying the BCMI Award by deleting the transitional provision.

74    Several unions later applied to vary particular awards (but not the BCMI Award) by inserting accident pay provisions. Those applications were determined in August 2015. See 4 Yearly Review of Modern Awards – Transitional Provisions [2015] FWCFB 3523; (2015) 252 IR 384 (Boulton J, SDP, Kovacic DP and Bull C). The Full Bench in that decision determined to include accident pay provisions in some awards but not others, adverting to the various circumstances of different industries, reasoning as follows:

211.    In general we consider that the safety net accident pay entitlement should only apply for a period of 26 weeks from the time of incapacity for work due to injury or illness. This is the period of accident pay entitlement under many of the pre-reform instruments to which we have been referred. We consider that this is the appropriate period to be included as part of the minimum safety net in the awards unless there are special circumstances relating to particular awards which warrant a departure from this standard…

212.    We recognise that there are special circumstances relating to the awards in the first category listed earlier in this decision. The pre-reform instruments in these industries provided a generally applicable accident pay entitlement of 39, 52 or 104 weeks. The accident pay provisions in those awards provided what might be considered to be a clear national standard for the particular industries as described in the Award Modernisation Decision 2008. For similar reasons as were given in relation to the Black Coal Mining Industry Award 2010 we have decided that the previous accident pay entitlements in these award areas should be maintained as part of the minimum safety net. However, having regard to the evidence and submissions in the present proceedings, and given the purpose of modern awards in setting minimum terms and conditions for employees in particular industries or occupations consistent with the statutory objectives, we do not consider that the accident pay entitlement in any of the awards should exceed 52 weeks. We consider that there is a difference in inserting such provisions in awards by arbitral determination at this time and in the context of the present proceedings and a decision to maintain provisions which were still in operation in an award. We do not consider that it is necessary for the minimum award safety net to provide for a period beyond 52 weeks. In so deciding, we note that the evidence presented suggests that there is considerable scope in some of the industries for the safety net entitlement to be supplemented through collective bargaining.

(Emphasis added, footnotes omitted).

75    By letter dated 22 September 2015, solicitors acting on behalf of CMIEG requested an opportunity to put submissions to the FWC about the limitation of accident pay entitlements in the BCMI Award to a period of 52 weeks, “consistent with the decision of the Full Bench of the Commission dated 18 August 2014”. The letter, which was copied to the CFMEU and APESMA, explained that “[t]he CMIEG and other parties interested in the [BCMI Award] have not had an opportunity to be heard as to whether or not the 52 week limitation period, determined by the Commission in its consideration of accident pay as a common issue, should apply to the [BCMI Award]. This circumstance arises simply because the Full Bench determined the application in respect of the [BCMI Award] in its decision of 31 October 2014, which was in advance of and therefore separately from its consideration of the other applications in respect of accident pay provisions which led to its decision of 18 August 2015”.

76    The Unions opposed the request on the basis that the Commission was functus officio in light of the October 2014 decision.

77    In its decision of October 2016 (see 4 Yearly Review of Modern Awards – Accident pay – Transitional Provisions [2016] FWCFB 6841) the Full Bench (Watson VP, Kovacic DP and Bull DP) rejected the Unions’ contention and ruled that the CMIEG’s application could be heard and determined. (By this time Boulton J had retired. He was replaced by Watson VP). Under the heading “Background”, the Full Bench set out the procedural history, as follows:

3.    In 2013 the CFMEU made an application to the Commission seeking removal of the transitional provision attached to the accident pay provision of the BCMI Award. This application was not made in connection with the Commission’s four yearly review of modern awards. CMIEG was one of a number of parties to oppose this application.

4.    On 24 January 2014 the Commission issued an issues paper as part of the 4 yearly review of modern awards which among other things invited parties to make submissions outlining any claims they wished to pursue that would affect multiple modern awards, the so called ‘common issues’. Both the CFMEU and CMIEG made submissions in response to that issues paper, with the CFMEU’s submission concluding as follows:

13. … the CFMEU notes that no party is precluded from addressing the substance of accident pay provisions in modern awards (including the Black Coal Industry Award 2010) in the normal way during the 4 yearly review. However, given the common nature of the sunset provision and the specific time constraint that attaches to it, a special approach to the matter is justified and necessary.

5.    A further issues paper followed on 24 February 2014 with a Statement and Directions regarding the common issues issued on 17 March 2014. That Statement and Directions foreshadowed the release of a background paper on the transitional provisions common issue.

6.    The Background Paper was issued on 2 June 2014 and stated in respect of the BCMI Award:

[13] The CFMEU and the Coal Mining Industry Employer Group proposed that the Commission should deal with the issue of the appropriate accident pay provisions to replace the present transitional provisions as a ‘common issue’ in the review. The CFMEU had previously made a separate application to vary the Black Coal Mining Industry Award 2010 outside the Review on 27 September 2013 …

7.    A further Statement was issued on 4 June 2014, with Directions issued on 15 July 2014.

8.    The CFMEU application regarding the BCMI Award was heard by the Full Bench at the same time as it dealt with a series of applications made by the Australian Council of Trade Unions (ACTU) seeking removal of model transitional provisions dealing with accident pay, district allowances and redundancy from various awards, as part of the Commission’s 4 yearly review. The CMIEG did not appear at the hearings (29-31 October 2014) regarding the ACTU’s applications or at any of the programming conferences held prior to those hearings.

9.    In September 2014 a number of unions made applications to insert accident pay and/or district allowances provisions into a number of awards. No such application was made in respect of the BCMI Award. Those applications were heard after the ACTU’s applications seeking the removal of the model transitional provisions had been heard and determined.

(Footnotes omitted).

78    Under the heading “Should the CMIEG application be heard?” the Full Bench found as follows:

21.    As will be evident from the above chronology, which sets out key aspects of the history, the process for considering award matters in the 4 yearly review has been exhaustive and complex. Certain common issues have been dealt with as a convenient way to consider matters on a consistent basis. Nevertheless, it has been acknowledged that specific award circumstances warrant different outcomes and processes have been adopted to consider those industry circumstances. It is understandable that these processes may have led to some confusion or that matters may not have been fully considered in the various proceedings that have been conducted.

22.    With particular regard to the BCMI Award we note that the CMIEG:

•    contended in its submission of 30 January 2014, which was provided in response to the issues paper issued by the Commission on 24 January 2014, that “… the Commission should deal with the issue of the appropriate accident pay provisions to replace the present transitional ones as a common issue in the 4 yearly review of all modern awards”;

•    did not appear at any of the Full Bench proceedings regarding transitional/sunsetting provisions relating to accident pay, redundancy and district allowances;

•    provided a written submission to the Full Bench on 5 September 2014 which supported the Ai Group’s submissions and submitted that whatever was decided for modern awards generally in relation to transitional issues should also apply to the Award; and

•    did not make any application regarding the BCMI Award in response to the Full Bench’s Directions of 16 December 2014.

23.    With regard to the grounds relied upon by the CMIEG as the basis for the Full Bench to review the maximum period of operation of the accident pay provision in the BCMI Award, we would observe that:

•    we see no power in either ss.602 and 603 of the Act under which the Full Bench can either vary or re-open its decisions of 31 October 2014 and 11 February 2015;

•    as stated in the Full Bench’s decision of 11 February 2015 “… we consider that the accident pay provision in the Black Coal Award provides a clear national standard for the particular industry as described in the Award Modernisation Decision 2008”; and

the various union applications to insert accident pay provisions in a number of awards were foreshadowed prior to “the substantive proceedings leading to the Full Bench’s decision of 31 October 2014”, though the Full Bench also acknowledged the different character of those applications.

24.    The Full Bench acknowledged in the August 2015 decision the difference between its decision to insert accident pay provisions into a number of awards and its earlier decision to effectively maintain the existing accident pay provision in the BCMI Award ... However, we note that:

•    the Full Bench’s consideration of the accident pay clause in the BCMI Award was limited to the deletion of the transitional provision, i.e. the question of whether the 78 week maximum period continued to be appropriate was not canvassed by any party;

•    s.156(2)(b)(i) of the Act provides that in a 4 yearly review of modern awards the Commission may make “one or more determinations varying modern awards”; and

•    the 4 yearly review of modern awards is still ongoing.

25.    In this instance, the employers in the coal industry wish to be heard in relation to a matter that has not been considered by the Commission in relation to the BCMI Award. We consider that the Commission has jurisdiction to deal with this question as part of the 4 yearly review as its powers are conferred in broad terms and particularly in circumstances where the 4 yearly review is still ongoing.

26.    Further, we consider that it is appropriate to hear from the parties to ascertain whether changes of the type sought should be made. Such a course will allow the parties to advance their respective provisions and allow the Commission to consider the matter as part of the 4 yearly review. Such a course is consistent with the Commission’s statutory responsibilities and does not involve any prejudice to any party.

27.    The parties are directed to confer on appropriate further directions for the hearing and determination of whether a 52 week limitation period concerning accident pay entitlements should apply to the BCMI Award. A telephone directions hearing will be conducted in the week of 24 October 2016.

(Footnotes omitted).

79    The decision the subject of this application was made on 26 September 2018 (the 2018 decision). See 4 Yearly Review of Modern Awards – Accident Pay – Transitional Provisions [2018] FWCFB 5996 (Kovacic DP, Bull DP, Bissett C). By this time, Watson VP had retired. Bull DP and Kovacic DP were part of the Full Bench at all relevant times. The Commission decided to vary the BCMI Award to reduce the period of accident pay from 78 to 52 weeks (and to reduce the period of accident pay paid at the employee’s “classification rate” from 39 to 13 weeks), to apply only to injuries which occurred on or after the date on which the variations were to commence operation. A draft determination reflecting the intended variations was attached to the decision. Interested parties were given until 17 October 2018 to comment on it.

80    On 22 October 2018 the Full Bench varied the BCMI Award as follows:

A. Further to the Full Bench decision issued by the Fair Work Commission on 26 September 2018 [[2018] FWCFB 5996] the above award is varied as follows:

1. By deleting clause 18.1 and inserting the following:

18.1 Payment to be made during incapacity

An employer must pay, or cause to be paid, accident pay during the incapacity of an employee, within the meaning of the applicable workers compensation legislation:

(a) until such incapacity ceases; or

(b) until a period of:

(i) 78 weeks has expired from the date of the injury for injuries that occurred before 1 November 2018; or

(ii) 52 weeks has expired from the date of the injury for injuries that occurred after 1 November 2018;

whichever event occurs first, even if the employer terminates the employee’s employment within the period.

2. By deleting clause 18.2 and inserting the following:

18.2 Meaning of accident pay

For the purposes of clause 18, accident pay means:

(a) Initial 39 week period – regardless of when injury occurred

For the initial period of 39 weeks from the date of injury, a weekly payment representing the difference between the weekly amount of compensation paid to the employee under the applicable workers compensation legislation and the weekly amount that would have been received by virtue of this award had the employee been on paid personal leave at the date of the injury (provided the latter amount is greater than the former amount).

(b) Subsequent period – injury occurred before 1 November 2018

For a further period of 39 weeks a weekly payment representing the difference between the weekly amount of compensation paid to the employee under the applicable workers compensation legislation and the rate prescribed from time to time for the classification of the incapacitated employee at the date of the injury (provided the latter amount is greater than the former amount).

(c) Subsequent period – injury occurred on or after 1 November 2018

For a further period of 13 weeks a weekly payment representing the difference between the weekly amount of compensation paid to the employee under the applicable workers compensation legislation and the rate prescribed from time to time for the classification of the incapacitated employee at the date of the injury (provided the latter amount is greater than the former amount)

3. By deleting clause 18.7 and inserting the following:

18.7 Calculation of the period of incapacity

(a) The period of incapacity for work starts on the first day of incapacity, which may be after the date of injury.

(b) Intermittent absences arising from the one injury are cumulative when assessing the period of incapacity.

B. This determination comes into operation from 1 November 2018. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after 1 November 2018.

This application

Ground One – Jurisdiction

81    Section 156 (now repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth)) provided as follows:

156    4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

(1)    The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

What has to be done in a 4 yearly review?

(2)    In a 4 yearly review of modern awards, the FWC:

(a)    must review all modern awards; and

(b)    may make:

(i)    one or more determinations varying modern awards; and

(ii)    one or more modern awards; and

(iii)    one or more determinations revoking modern awards; and

(c)    must not review, or make a determination to vary, a default fund term of a modern award.

82    It is also convenient here to set out s 134 of the FW Act:

The modern awards objective

What is the modern awards objective?

(1)    The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

  (a)    relative living standards and the needs of the low paid; and

  (b)    the need to encourage collective bargaining; and

(c)    the need to promote social inclusion through increased workforce participation; and

(d)    the need to promote flexible modern work practices and the efficient and productive performance of work; and

  (da)    the need to provide additional remuneration for:

   (i)    employees working overtime; or

(ii)    employees working unsocial, irregular or unpredictable hours; or

   (iii)    employees working on weekends or public holidays; or

   (iv)    employees working shifts; and

(e)    the principle of equal remuneration for work of equal or comparable value; and

(f)    the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g)    the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h)    the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2)    The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

  (a)    the FWC’s functions or powers under this Part; and

(b)    the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

83    Section 138 of the FW Act is entitled “Achieving the Modern Awards Objective”. It provides:

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

84    As the Full Court said about the interaction of those three provisions in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at 346-347:

28.    The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

29.    Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.

85    The Unions submitted in this application that s 156 authorises the Commission to conduct “a 4 yearly review of modern awards” (emphasis added). That means, they say, that it may only conduct “a single review” of awards, not “a series” of reviews and that by the proceedings which culminated in the October 2014 decision and the 19 December 2014 determination, the Commission, having “reviewed” the accident pay provisions of the BCMI Award had “thereby exhausted” its power of review under s 156.

86    The Unions submitted that “… the legislature specified that award provisions could be reviewed once every four years. In doing so it set out to ensure that parties were not exposed to the risk which manifested in this case, that is, that there would be a series of reviews of the same provision each demanding the expenditure of significant resources and each running the risk that award conditions would be varied”.

87    The Unions also contended that “[i]t was not suggested that the Commission could have or should have varied the [BCMI] Award pursuant to some other power (for example, the power to vary awards outside the four yearly review pursuant to s 157(1))”. That subsection provides:

FWC may vary etc. modern awards if necessary to achieve modern awards objective

(1)    The FWC may:

(a)    make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or

  (b)    make a modern award; or

  (c)    make a determination revoking a modern award;

if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.

88    For those reasons, the Unions submitted that “[b]y purporting to review the [BCMI] Award accident provisions in 2017, the Commission fell into jurisdictional error by purporting to exercise a power which it did not have”.

89    The respondents submit that the meaning of the word “review” is not to be given a more confined meaning than its natural and ordinary meaning, viz to “survey, inspect, re-examine or look back upon”, citing Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 378, [25]-[28] and 381, [38] (North, Tracey, Flick, Jagot and Bromberg JJ).

90    Secondly, the respondents submit that the statutory task is not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, but is a review at large to ensure that the modern awards objective is being met. It is not, they contend, necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective, but it must review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the modern awards objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net, citing Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 383, [45].

91    Thirdly, the respondents submit that the modern awards objective in s 134(1) applies to any such exercise of power (by reason of s 134(2)(a)) but s 134(1) also does not identify any state of mind the Commission must hold, citing Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 379, [30]. Rather, it imposes a function on the Commission to ensure that modern awards satisfy the requirements of that provision (that is, together with National Employment Standards, to provide a fair and relevant minimum safety net of terms and conditions taking into account ss 134(a)-(h)).

92    Fourthly, the respondents submit that the Unions’ contention that the Commission had concluded the review of the BCMI Award by the October 2014 decision is wrong. They submit that that decision did not determine the application of the CMIEG which was the subject of the 2018 decision. In that regard they rely on the following passages from the October 2016 decision, in which the Full Bench stated:

24.    … However, we note that:

•    the Full Bench’s consideration of the accident pay clause in the BCMI Award was limited to the deletion of the transitional provision, i.e. the question of whether the 78 week maximum period continued to be appropriate was not canvassed by any party;

•    s.156(2)(b)(i) of the Act provides that in a 4 yearly review of modern awards the Commission may make “one or more determinations varying modern awards”; and

•    the 4 yearly review of modern awards is still ongoing.

25.    In this instance, the employers in the coal industry wish to be heard in relation to a matter that has not been considered by the Commission in relation to the BCMI Award. We consider that the Commission has jurisdiction to deal with this question as part of the 4 yearly review as its powers are conferred in broad terms and particularly in circumstances where the 4 yearly review is still ongoing.

93    The respondents stress that the Unions did not seek to challenge the October 2016 decision, and that in the 2018 decision, the Full Bench (again) dealt with the contention advanced by the Unions that the Commission had already determined the issue of accident pay in the BCMI Award (at [59]-[61] of the 2018 decision). In referring to the October 2016 decision, the Full Bench (again) held that the quantum of accident pay had not been the subject of consideration by the Commission previously and, as the matter had not been determined previously, there was no impediment to determining the CMIEG’s application before it (at [61] of the 2018 decision). That conclusion, the respondents submitted, was plainly correct.

Ground One – Consideration

94    In our view, s 156 of the FW Act did not impose an obligation of the type contended for by the Unions to preclude it as a matter of jurisdiction from hearing the CMIEG’s 22 September 2015 application.

95    The textual foundation for the Unions’ submission is the presence of the word “a” before the word “review”. But to read the phrase “a review” as if it were limited to “a single review”, in the sense the Unions urge, is at odds with what the Full Court (Collier, Bromberg and Katzmann JJ) said in National Retail Association v Fair Work Commission (2014) 225 FCR 154 at 171-172, [86]-[90] about s 156. In that case the Full Court dismissed a jurisdictional challenge to a decision made by the Commission to vary a clause of the General Retail Industry Award 2010 to require that 20-year-old retail employees who had worked for an employer for more than six months be paid adult rates. That decision was part of an initial two year review and was required by transitional provisions in Part 2 of Schedule 5 of the FW Act. The Full Court dismissed a challenge to the decision on the ground that Item 6(2) of Part 2 of Schedule 5 (which required the FWC to consider whether the modern awards achieve the modern awards objective and were operating effectively, without anomalies or technical problems arising from the award modernisation process) required the entirety of each modern award to be assessed “holistically”, reasoning as follows:

86.    That the review of each modern award must focus on the particular terms and the particular operation of the particular award does not suggest that the review of that award was intended to be confined to a single holistic assessment of all of its terms. The conclusion that a modern award fails to comply with the modern awards objective may be based upon a single offending provision. There is no reason in principle why the FWC could not come to that conclusion without reviewing the entire award. Nor can we discern any reason why the review of a modern award was intended to be confined to a single holistic exercise. In fact, there are a number of reasons why we consider that such a course was not intended.

87.    First, the words of Item 6(3) empower the FWC to “remedy any issues identified in the review”. The emphasis there given to the rectification of “any issues” does not support the proposition that a holistic rather than an issues-based approach was intended. More relevantly, those words do not suggest that an issues-based approach was intended to be excluded. Further, the phrase “identified in the review” (emphasis added) is more suggestive of the power conferred being exercisable in the course of the review rather than it being unavailable until the review of the whole award has been completed.

88.    Secondly, a requirement for a single holistic assessment of each modern award would create the practical problems which the FWC identified in the passage from Re Modern Awards Review 2012 [(2012) 223 IR 49]… It should not be assumed that, in requiring the FWC to conduct the very substantial task of reviewing all modern awards, Parliament intended to impose practical constraints upon the manner in which that task was to be performed, unless such constraints served a useful purpose. No such purpose is apparent to support the constraint for which the NRA contends. Further, the very wide procedural discretion conferred on the FWC, to which we referred at [18] [including ss 576E(1), (3) and (4) of the FW Act], suggests that Parliament intended to confer upon the FWC a great deal of flexibility in the way the transitional review was to be conducted.

89.    It is clear from the factual context … that the FWC’s review of the Retail Award was conducted through a number of different hearings in which different applications dealing with different aspects of the award were determined. It is apparent from the content of the decision in the present case that the FWC understood that, as part of the transitional review of the Retail Award, it was tasked with determining whether or not it should vary the Retail Award pursuant to the power conferred upon it by Item 6. It is also apparent from the decision that the focus of the FWC’s review of the Retail Award was on clause 18 and that the ultimate conclusion it reached that the Retail Award was not achieving the modern awards and minimum rates objectives … was based upon its opinion that the rate of pay for 20-year-old employees provided by clause 18 was not “a fair and relevant minimum safety net”.

90.    Whilst it is clear that, by the decision under challenge, the FWC did not review the entirety of the Retail Award, we are not persuaded that the approach taken by the FWC was inconsistent with the statutory task required of it by Item 6.

(Emphasis added).

96    The same reasoning rejecting any notion that a statutory review is intended to be confined to a single, “holistic” review is equally applicable to a 4 yearly review conducted under s 156 of the FW Act.

97    As the respondents submitted (see [89] above), the Full Court also made clear that the word “review” in s 156 was not to be accorded the confined meaning contended for by the Unions in Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 378, [25]. In that case, the Full Court held that “the natural and ordinary meaning of the word … is simply ‘survey, inspect, re-examine or look back upon’”, citing the Macquarie Concise Dictionary, 3rd ed. The Full Court then continued:

28.    … [U]nder s 156 the FWC is necessarily reviewing awards that it (or its predecessor) had already reviewed. In this context, it is the FWC which is in control of every review as required. There is nothing in this context to justify giving “review” a more confined meaning than its natural and ordinary meaning given that the review process is always controlled by the FWC.

…

30.     … no other provisions of the Fair Work Act indicate that the FWC must be satisfied that there has been a material change in circumstances since the award under review was made or reviewed before the power under s 156(2)(b)(i) is engaged. The modern awards objective in s 134(1) applies to any such exercise of power (by s 134(2)(a)) but s 134(1) also does not identify any state of mind the FWC must hold. Rather, it imposes a function on the FWC to ensure that modern awards satisfy the requirements of that provision (that is, together with National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions taking into account (a) to (h)).

98    There accordingly was no obligation on the Commission to conduct its 4 yearly review of the terms of the BCMI Award in a single holistic way. It is clear that all of the parties, including the Unions, understood that the 4 yearly review of the BMCI Award would be (and was) undertaken consistently with the statement issued by the President dated 1 December 2014. That statement, along with an earlier statement issued by the President, had made it clear that a number of “common issues” (that is, issues that were not unique to a particular award, but common to all or most awards) would be dealt with in grouped tranches, before the review of the BCMI Award would be finalised.

99    We accept the gravamen of the Unions’ submission that Parliament’s reference in s 156(1) to the FWC being required to “conduct a 4 yearly review … starting as soon as practicable after each 4th anniversary of the commencement of [the Part of the Act in which that provision was found]” (emphasis added), is as a reference to a singular review. However, having regard to the reasoning of the Full Court in National Retail Association v Fair Work Commission (2014) 225 FCR 154 we can identify no error in the BCMI Award (and all other modern awards) being reviewed in the staggered manner adopted.

100    In our view, the fact that the FWC also has power to vary modern awards outside the 4 yearly review is no reason to read s 157 as limiting the otherwise broad and facultative language of s 156.

101    We therefore do not accept the Unions’ separate, but related, submission that having “reviewed the accident pay provisions of the [BCMI] Award” and made its decision in February 2015 to delete the sunset clause, or alternatively its decision in August 2015 to include accident pay in other awards, the Commission’s power further to review the BCMI Award was “exhausted”. As to the February decision, the Commission always understood that in deciding to remove the sunset clause it was deciding no more and no less than whether that clause should remain in the BCMI Award. As it said in the October 2016 decision, “the Full Bench’s consideration of the accident pay clause in the BCMI Award was limited to the deletion of the transitional provision, i.e. the question of whether the 78 week maximum period continued to be appropriate was not canvassed by any party …”. And, of course, consistently with that approach, the only determination that it made in 2014 was to delete clause 18.8 (the sunset clause). That had also been the Unions’ then understanding. The CFMEU Mining and Energy Division (as it then was) made a submission to the FWC dated 3 February 2014 in respect of the 4 yearly review in which it proposed that the FWC give early attention to the “common issue” of the sunset provisions relating to accident pay that had been inserted into modern awards by a Full Bench of the (then) Australian Industrial Relations Commission in 2008. At [13] the Union submitted:

In proposing this course the CFMEU notes that no party is precluded from addressing the substance of accident pay provisions in modern awards (including the Black Coal Industry Award 2010) in the normal way during the 4 yearly review…

102    As to its August 2015 decision, the Commission was not asked to consider, and did not consider, the BCMI Award. It concerned itself only with the insertion into other awards of accident pay provisions. It follows that no issue of the FWC being “functus officio” arises.

103    The clauses in the BCMI Award that dealt with the question of the quantum of accident pay thus remained open for later resolution.

104    For those reasons, in our view, no jurisdictional issue of the type contended for by the Unions arises.

Ground Two – No proper, genuine and realistic consideration

105    The Unions contend that “[t]here is nothing in the [2018] Decision which exposes the way in which the Full Bench weighed up the competing considerations relevant to the question of whether the [BCMI] Award comprised a fair and relevant minimum safety net, and no explanation as to why the Full Bench concluded that the competing considerations lead to the conclusion which they reached. To take the most obvious example, the [2018] Decision does not explain why the Full Bench concluded that the variation would promote collective bargaining nor does it grapple with the competing submissions on the point”.

106    The Unions contend that there is a “lacuna” in the reasons because the Full Bench did not give “proper, genuine and realistic” consideration to the question of whether the BCMI Award as varied achieved the modern awards objective, and did not “engage in an active intellectual process directed at that claim or criteria”, citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 360-364, [29]-[46] (Griffiths, White and Bromwich JJ). The Unions say that as a result, the Full Bench failed to discharge its statutory task.

Ground Two – Consideration

107    We do not accept those submissions. As the Full Court said in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at 347, [29], in making a variation pursuant to s 156(2) of the FW Act, the question whether the terms of an award, or the terms of a variation, are necessary to achieve the modern awards objective, is one which involves an “evaluative judgment”. That question, unlike the issues that arise in cases like Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 upon which the Unions placed much reliance, does not “address a jurisdictional fact about the need for change, but [is] to review the award and evaluate whether the posited terms with a variation met the objective” (Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at 349-350, [46]). As French CJ said in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 179, [57] “[w]hen a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court”. See too One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 356 ALR 535 at 554, [100] (Bromberg, Katzmann and O’Callaghan JJ) (“Not all conditions precedent or criteria for the exercise of a statutory power or discretion are jurisdictional facts. That depends on whether, as a matter of statutory construction, Parliament intended that the question of satisfaction of the conditions or criteria be left to the administrative decision-maker or, in the final instance, to a court on judicial review”.)

108    It is also important to appreciate in this case “that by s 601, the Commission was not required to give written reasons, though under s 601(2) it may do so” and that “to the extent that reasons given display a misunderstanding of the statutory task, that may ground a conclusion of jurisdictional error. If, however, such reasons as are given do not completely explain the conclusion reached, jurisdictional error is not demonstrated by such inadequacy”: Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at 347, [30].

109    Along the same lines, the Full Court in National Retail Association v Fair Work Commission (2014) 225 FCR 154 at 174-175, [109] explained that the factors listed in (a) to (h) of s 134(1) of the FW Act:

109.    … are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor (“relative living standards and the needs of the low paid”)? …

110.    The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective.

110    With those considerations in mind it is necessary next to see how the Commission approached that task in the 2018 decision.

111    The 2018 decision comprises 76 paragraphs. By way of background, the Full Bench referred to the CFMEU’s 2013 application for removal of the transitional provision in respect of accident pay (see [77]-[78] above), the 19 December 2014 determination deleting it, and then quoted in detail from the 11 February 2015 decision (which gave the detailed reasons for the 19 December 2014 determination). See the 2018 decision at [7]-[12].

112    Having set out the procedural history before August 2015, the Full Bench continued:

In subsequent developments, on 18 August 2015 the Full Bench handed down its decision (the August 2015 Decision) concerning the various union applications to insert accident pay and/or district allowance provisions into a number of awards. In the absence of any further application(s) relating to the BCMI Award, the Award was not considered in the proceedings which lead to that decision.

(Emphasis added).

113    The Full Bench then set out the statutory framework (including ss 3, 134 and 156 of the FW Act) and set out extracts from Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 381, [38] and Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at [28]-[29] (set out above at [97] and [59] of these reasons respectively), noting that those passages reflected the approach that it would adopt. See [14]-[29] of the 2018 decision.

114    The Full Bench then set out the whole of clause 18 of the BCMI Award, and having done so, set out in detail CMIEG’s submissions (at [33]-[45], occupying almost 10 pages) and the Unions’ submissions (at [48]-[58], occupying 5 pages).

115    The CMIEG’s submissions in chief were, relevantly, summarised as follows:

34.    The CMIEG also contended that the accident pay provision of the BCMI Award did not meet the modern awards objective for a number of reasons including that:

•    the accident pay entitlements contained in the BCMI Award are more generous than those contained in any other modern award;

•    the evidence discloses inter alia that:

-    the rate/frequency of injuries for the coal mining industry as recorded by Safe Work Australia (SWA) for serious injuries is ranked 67 out of 190 industries when sorted from the highest average incidence rate to lowest average incidence,

-    the average time lost to serious injuries in the coal mining industry is no worse and is in fact better than other industries,

-    there are industries like coal mining that are hazardous by their nature without having warranted differential treatment as to accident pay provisions, and

-    the methods and processes for rehabilitation and return to work of injured workers have improved substantially over time since the introduction of accident pay;

•    in light of the above evidence the alleged rationale underpinning the January 1980 CIT decision no longer prevails;

•    the issue of whether clause 18 of the BCMI Award is a “fair and relevant minimum safety net” was not considered as part of the award modernisation process, adding that the provision among other things provides entitlements that erect an overly high threshold which discourages any genuine bargaining and productivity trade-offs; and

•    its proposed variation provides a benefit which is consistent with the purpose of accident pay provisions.

35.    With regard to the modern awards objective, the CMIEG posited that its proposed variation satisfied the modern awards objective as:

•    it would encourage collective bargaining by imposing a more relevant safety net as a platform for enterprise bargaining [s.134(1)(b)];

•    the imposition of a more relevant safety net would encourage genuine collective bargaining and associated productivity trade-offs [s.134(1)(c)];

•    it would bring the BCMI Award closer in line with other modern awards for similar industries [s.134(1)(e)];

•    it would impact on productivity, employment costs and the regulatory burden and employment growth by encouraging collective bargaining and productivity trade-offs [ss.134(1)(f) and (h)];

•    it would ensure a simple, easy to understand, stable and sustainable modern award system by bringing the BCMI Award closer in line with other modern awards for similar industries [s.134(1)(g)]; and

•    ss.134(1)(a) and (d) do not arise in this case.

116    The Unions’ submissions in chief were, relevantly, summarised as follows:

48.    The Unions opposed the CMIEG’s application on several grounds including that the matter had been recently decided by the Commission and in view of the potential impact on employees.

49.    Drawing on the underlined text in extract from the August 2015 Decision (set out at paragraph [13] above), the Unions submitted that at the same time as determining that a maximum accident pay entitlement of 52 weeks for other awards was appropriate the Full Bench also determined that the BCMI Award should not have such a cap because it considered the Award to be in a different category to the awards before it. The Unions further submitted that it was clear from paragraph [212] of the August 2015 Decision that the underlined text [see the bolded text at [74] above] was not a finding intended to apply to the BCMI Award. The Unions also submitted that the Full Bench reached its conclusions “having regard to the evidence and submissions in the present proceedings” and that no new event had occurred post the August 2015 Decision. The Unions contended that for these reasons, or for reasons that included these reasons, the Commission should refuse the CMIEG application.

50.    The Unions posited that the CMIEG’s case relied on the proposition that the accident pay provisions of the BCMI Award should be reduced because they were inconsistent with other modern awards, adding that the CMIEG had not identified any financial, economic, industrial, practical or other imperative for change. The Unions also posited that the CMIEG had not contended that employers were unduly burdened by the current level of benefit.

51.    The Unions also made a number of observations regarding the CMIEG’s case. Those observations included that:

•    the proposition that the variation sought should be made because the accident pay provision in the BCMI Award was higher than other awards has no proper basis and does not engage the modern awards objective;

•    no evidence had been led by the CMIEG that any employers would be encouraged to collectively bargain if the accident pay standard were reduced, describing the suggestion as nonsensical and hypocritical;

•    the CMIEG’s submissions do not identify the consequences of the variation sought nor does the CMIEG attempt to identify the detriment to employees caused by the withdrawal of benefits; and

•    the CMIEG did not address the impact of the proposed change on employers, e.g. the CMIEG did not contend that premiums will be reduced, that employers were unable to meet their existing Award obligations or that there is a need for the relief sought.

(Footnotes omitted).

117    The Full Bench then recorded the substance of some of the evidence relied upon by the Unions (not the subject of any cross examination), as follows:

58.    Mr Simm deposed inter alia in his witness statement that the coal mining industry had traditionally been regarded as a high priority and unique industry with respect to occupational health and safety. In particular Mr Simm referred to coalmine specific occupational health and safety legislation, specific coalmine workers’ compensation and specific coalmine working conditions such as accident pay. Mr Simm further deposed that occupational health and safety in the coal industry is approached from many directions, adding that removing or diluting any one of them is a detriment to the prevention or treatment of occupational health and safety in the coal industry.

Ms Bolger in her witness statement referred to the 2014 Employment and Remuneration Survey Report prepared by APESMA’s Collieries Staff Division which showed that 80.2% of APESMA members have their terms and conditions set by a written common law contract and some 15.5% of Staff are covered by an enterprise agreement. Ms Bolger deposed that a review of employment contracts applicable to Staff and available to APESMA indicates that 73% of the contracts analysed either made no mention of accident pay or did not contain an accident pay entitlement above that of the BCMI Award, with 27% of the contracts analysed that contained an accident pay clause all providing that accident pay is paid as if Staff are at work or on paid sick leave. Ms Bolger deposed that the lack of enterprise agreement coverage of Staff is the product of a number of factors, foremost being the in-principle opposition of employers to enterprise bargaining. Against that background, Ms Bolger opined that the attitude of employers and therefore the prevalence of enterprise bargaining in respect of Staff was unlikely to be affected in any material degree by the introduction or otherwise of the 52 week cap on accident pay sought by the CMIEG in this case.

(Footnotes omitted).

118    The relevant reply submissions by the CMIEG were described in these terms:

36.     … With regard to the Unions’ contention that its application should be refused because the matter had been recently determined by a different Full Bench, the CMIEG submitted inter alia that to the extent there was any doubt that the Commission had not determined the CMIEG’s application or not examined the merits of the accident pay provision in the BCMI Award it was quelled by the 2016 Decision … [citing 24]-[26] of that decision set out at [78] above].

119    The Full Bench then dealt with those submissions under the heading “Consideration of Issues”, firstly with the “jurisdiction” point, relevantly as follows:

59.     We deal firstly with the Unions’ contention that the issue of accident pay in respect of the BCMI Award has already been determined by the Commission. In particular we note that … the then CFMEU applied to delete the transitional provision which was inserted in the BCMI Award (see paragraph [2] of the October 2014 Decision and paragraph [65] of the February 2015 Decision). We further note that in those Decisions the Full Bench also stated that it considered “that the accident pay provision in the Award provides a clear national standard for the particular industry as described in the Award Modernisation Decision 2008” (see paragraph [7] of the October 2014 Decision and paragraph [71] of the February 2015 Decision).

…

60.    The Full Bench in the October 2016 Decision stated as follows:

“[24] The Full Bench acknowledged in the August 2015 decision the difference between its decision to insert accident pay provisions into a number of awards and its earlier decision to effectively maintain the existing accident pay provision in the BCMI Award (see underlined text in the above extract from the August 2015 decision). However, we note that:

•    the Full Bench’s consideration of the accident pay clause in the BCMI Award was limited to the deletion of the transitional provision, i.e. the question of whether the 78 week maximum period continued to be appropriate was not canvassed by any party …” (Underlining added in original)

61.    Nowhere in the decisions referred to above is there anything pointing to the issue of what quantum of accident pay is appropriate for the BCMI Award having been the subject of consideration by the Commission. This does not support a finding that the issue of accident pay in respect of the BCMI Award has been determined by the Commission. Accordingly, consistent with the October 2016 decision, we see no impediment to the Commission determining the CMIEG’s application.

120    The Full Bench then turned to consider the merits of the issues, as follows:

68.    The above evidence does not support a finding that the particular injury risks associated with the industry and the special regime for regulation of safety, workers’ compensation and accident pay warrant a minimum safety net in respect of accident pay in the black coal industry which is in advance of other industries.

One of the other grounds on which the Unions opposed the CMIEG’s application was that it would have a negative impact on injured workers, particularly in terms of loss of income. While it was not disputed that the CMIEG’s proposed variation would impact on employees, the estimates of the reduction in payments that would result varied between those provided by the Unions and the CMIEG. Specifically, the estimated reductions varied from $6,850 to just over $50,000. Further, it is clear from the parties’ respective estimates that the greatest reduction stems from the reduction in the period which an employee receives accident pay at the paid personal leave rate from 39 weeks to 26 weeks. In its oral submissions, the CMIEG, without urging such an approach, acknowledged that an alternative approach open to the Commission would be to reduce the cap on accident pay from 78 to 52 weeks but not alter the basis on which the first 39 weeks of accident pay is paid. The Unions in their oral submissions noted that this would reduce from 40% to in the order of 30% of workers who would be affected by the reduction in entitlements.

…

70.    Mr Vickers’ evidence [on behalf of the CFMEU] regarding the accident pay clauses in 145 enterprise agreements applying to employees of coal mining companies which were analysed by his staff indicated that 92 of those enterprise agreements had varied the approach to accident pay provided for in the BCMI Award, primarily by way of significant enhancements to the Award provision. This points to there already being considerable bargaining in respect of accident pay which is particularly relevant in respect of s.134(1)(b) of the Act.

71.    Having regard to the above analysis and the material before the Commission, we have concluded that the current accident pay clause in the BCMI Award in providing 78 weeks accident pay exceeds what is necessary for the Award to provide fair and relevant safety net of minimum terms and conditions. Consistent with the conclusion reached by the Full Bench in the August 2015 Decision, we consider that a period of 52 weeks provides an appropriate safety net for accident pay in this industry. In coming to that view, we have had regard to the history of accident pay in the industry, the industry’s relative safety performance and as set out below the modern awards objective. Accordingly, we intend to vary the BCMI Award to reduce the period of accident pay from 78 to 52 weeks.

72.    As to the second element of the CMIEG’s application, i.e. that the periods of accident pay payable at the paid personal leave rate and the employee’s “classification rate” both be reduced from 39 weeks to 26 weeks, the material before the Commission indicates that the bulk of the negative impact on injured workers arises from the reduction of the period of accident pay payable at the paid personal leave rate. Having particular regard to the modern awards objective requirement that modern awards provide a “fair and relevant minimum safety net of terms and conditions” (emphasis added [in original]), we do not intend to vary the Award in this respect in the terms sought by the CMIEG. Rather we intend to vary the Award to reflect the alternative approach which the CMIEG acknowledged at the hearing was open to the Commission, i.e. we intend to maintain the basis on which the first 39 weeks of accident pay is paid and reduce from 39 to 13 weeks the period of accident pay which is paid at the employee’s “classification” rate. This approach will minimise the impact of our decision on affected employees.

73.    Finally, we note that, consistent with the clarification provided by the CMIEG in its oral submissions, the variations will only apply to injuries which occur on or after the date on which the variation commences operation. In other words, the variations will not affect the existing entitlement to 78 weeks accident pay of an employee who is currently injured and currently receiving the entitlement.

74.    With regard to the modern awards objective, the variations we intend to make are, as previously noted, likely to encourage collective bargaining [s.134(1)(b)] and, if anything, are likely to impact positively on employment costs and the regulatory burden [s.134(1)(f)]. The proposed variations will also contribute to ensuring a simple, easy to understand, stable and sustainable modern award system [s.134(1)(g)]. Beyond that, the other elements of the modern awards objective are either neutral considerations [ss.134(1)(a), (d) and (h) – with regard to s.134(1)(a) being a neutral consideration we base our view on the Unions’ submission referring to the generally high level of income in the industry as being one of the special features of the industry] or are not relevant in this case [ss.134(1)(c), (da) and (e)].

75.    In summary, the variations to the accident pay provision of the BCMI Award which we have outlined above will as required by the modern awards objective ensure that BCMI Award, together with the NES, provides a fair and relevant safety net of minimum terms and conditions.

Conclusion

76.    For all the above reasons, we have decided to vary the BCMI Award to reduce the period of accident pay from 78 to 52 weeks and to reduce the period of accident pay paid at the employee’s “classification rate” from 39 to 13 weeks. We do not intend to vary the basis on which the first 39 weeks of accident pay is paid. The variations will only apply to injuries which occur on or after the date on which they commence operation. A draft determination reflecting our intended variations is attached to this decision. Interested parties have until 17 October 2018 to comment on the draft determination. The final variation will take effect on 1 November 2018.

121    In our view, it is plain that the Full Bench properly understood the nature of the task that it undertook, summarised the competing submissions and the evidence before it, including the history of accident pay in the black coal mining industry and the industry’s relative safety performance, and considered that the accident pay clause in the BCMI Award in providing 78 weeks accident pay exceeded what was necessary for it to provide a fair and relevant safety net of minimum terms and conditions. The FWC was required to resolve an inherently contentious issue. It was for the FWC, not this court, to evaluate the competing contentions that were advanced. It formed the view, consistent with the August 2015 decision, that a period of 52 weeks provides an appropriate safety net for accident pay in the industry and that the variation was necessary for the BCMI Award to meet the modern awards objective of a fair and relevant minimum safety net. In doing so, it directed itself to the statutory task and dealt with the matters raised by the parties. No error in its understanding of its statutory legal task is revealed in its reasons. No jurisdictional error is disclosed.

Ground Three – No evidence

122    The Unions contend that there was nonetheless jurisdictional error in the Commission’s conclusion (at [74] of its reasons) that the variations were “likely to encourage collective bargaining [s.134(1)(b)]”. The Unions contend that “there was no evidence to support the proposition that variation would encourage collective bargaining. The only evidence directed to that matter was the unchallenged evidence lead by the Unions to the effect that the variation would have no impact whatever on collective bargaining”.

Ground Three – Consideration

123    In our view, that submission fails at the first hurdle. The Commission referred to the evidence of Mr Vickers, on behalf of the Unions, at [70] of its reasons. That evidence was given in a witness statement that included the following:

… the removal of accident pay as part of the Modern Award safety net would increase the incentive amongst all employers to seek to bargain away this entitlement in the course of enterprise bargaining. In particular, I am concerned about the possibility of employers in enterprise bargaining viewing the removal of an entitlement to accident pay as an easy way of reducing costs.

(Emphasis added).

124    In any event, the Commission was entitled, in coming to the view that the accident pay variation from 76 weeks to 52 weeks was necessary for the BCMI Award to meet the modern awards objective of a fair and relevant minimum safety net, to take into account, including pursuant to s 590 of the FW Act (“The FWC may … inform itself in relation to any matter before it in such manner as it considers appropriate”), submissions about the impact of the variation, including a submission from CMIEG (among many from the parties about other matters) that the variations would likely to encourage collective bargaining. See Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at 327, [77] per Jessup J (“So long as there was some evidence – understood in the Commission as including factual material asserted in oral submissions – the majority was entitled to rely on it …” (emphasis in original)).

125    In this case, submissions about collective bargaining were made in writing and orally, and made the point on a number of occasions, that the 76 week period erected a “ceiling”, not a minimum, safety net standard, and that it did not therefore encourage collective bargaining as to the terms of the BCMI Award. It was also submitted that the imposition of a lesser period would, on the other hand, encourage genuine collective bargaining and associated productivity trade-offs. The Unions, of course, submitted to the contrary, but it was for the Commission to come to its view on the matter.

126    The notion that the FWC may rely on submissions, even if they are not founded on evidence in a strict sense, is consistent not only with the notion that an administrative decision maker to whom the determination of facts has been assigned is within jurisdiction to decide the facts rightly or wrongly, but more importantly with the judicial recognition given to the expertise of the FWC, especially in circumstances of cases, like this, where the legislature has expressly left to the FWC the task of ensuring that modern awards provide a fair and relevant minimum safety net of terms and conditions. See Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 at 401, [111]. The Commission is a specialist tribunal. The task of making assessments and reaching the requisite state of satisfaction about whether the variations would or would not, among many other things, likely encourage collective bargaining, is entrusted to it (not to the courts), and, in doing so, it may inform itself in such a matter that is appropriate, without being bound by the rules of evidence or procedure (s 591), and without the need to give reasons (s 601(2)).

127    In our view, therefore, ground 3 must fail.

Disposition

128    We would therefore dismiss the application.

Associate:    

Dated:    27 June 2019

SCHEDULE OF PARTIES