Federal Court of Australia

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) [2022] FCAFC 55

ORDERS

THE COURT ORDERS THAT:

1.    Writs of certiorari issue, removing into this court and quashing the following decisions of the fifth respondent, namely:

(a)    the decision made on 9 December 2020 by Commissioner Harper-Greenwell in matter AG2020/2480; and

(b)    the decision made on 11 February 2021 by Vice President Hatcher and Deputy Presidents Gostencnik and Mansini in matter C2020/7296.

2.    Writs of prohibition issue, requiring that the fifth respondent take no further steps to determine the applications that were the subject of the decisions referred to in order 1.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    I have had the benefit of reading a draft of the reasons for judgment of Snaden J. I agree with the orders his Honour proposes and generally agree with his Honour’s conclusions. As my path to those ultimate conclusions differs somewhat from that of Snaden J, it is necessary that I set out my own reasoning. It is not necessary to set out the facts and the relevant legislation, as that is set out in the reasons of Snaden J and need not here be repeated.

2    As Snaden J explains, the relevant question on this application for judicial review of a decision of the Full Bench of the Fair Work Commission in Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FWCFB 591 (Full Bench) concerns the existence of a jurisdictional fact, namely, whether the relevant enterprise agreement was at the time of its making an agreement that related to a “genuine new enterprise” in accordance with s 172(2)(b).

3    The word “new”, like most expressions, takes its colour from its surroundings. The context provided by s 172(2)(b) is that the adjective “new” is applied to an enterprise that a person or persons “are establishing or propose to establish”. A “new” enterprise must therefore be an enterprise which is not established (ie not in existence) but is in the process of being established or which is proposed to be established. That is, an enterprise that is being or will be put into existence. That context demonstrates that the word “new” is used in its sense of “[n]ot existing before; now made or existing for the first time”: Shorter Oxford English Dictionary (6th ed, Oxford University Press, 2007).

4    The text of s 172(2)(b) does not suggest that the proposed enterprise must only be new from the perspective of the person or persons establishing it. Given the meaning of the word “new” in the context in which it is used, the natural reading of the text of the provision is that the enterprise is new in the sense of being novel to persons generally, rather than merely new for the person or persons establishing or proposing to establish the enterprise. So much is confirmed by the rejection in Patrick Cargo Pty Ltd v Transport Workers’ Union of Australia (2002) 115 IR 443 at [22] of the proposition that it will be sufficient for an enterprise to be “new” that the enterprise to be established is new to the entity establishing it. Specific endorsement of that decision is found in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (Explanatory Memorandum) at [692]. Whether or not the activities of the proposed enterprise are new to its proponent is not determinative of whether the proposed enterprise is new in the sense of being generally novel, being the sense required by s 172(2)(b). Thus a project may be a “new” enterprise despite the fact that the same employer also operates other projects with the same or similar activities.

5    Next, the word “genuine” must also be brought into account. It did not appear in the predecessor provision to s 172(2)(b). It must be given some work to do: see One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 262 FCR 527 at [141] (Bromberg, Katzmann and O'Callaghan JJ). The Explanatory Memorandum at [692] said that the word “is intended to make it clear that the enterprise must be a new enterprise rather than an existing enterprise …”. The intended clarification provided by the word “genuine” must properly be understood as qualifying the word “new”. There is no reason to suppose that Parliament would have contemplated that any question would be raised about the genuineness of the proposed enterprise itself. The intended meaning of the word enterprise (which in any event is a defined term) was not the clarificatory object of the word “genuine”. Instead, the word “genuine” must be understood to have been added to emphasise that the proposed enterprise must be genuinely new or, in other words, truly authentic or really new. The word “genuine” directs attention to substance rather than form and given that the quality of being “new” is a relative concept in which questions of fact and degree are likely to arise, the use of the qualifier “genuine” tends to suggest that the proposed enterprise must be new to a substantial degree.

6    The facts of this case raise the question of whether a proposed enterprise is new in the context of an existing enterprise with at least some similarity to that which is proposed. Whether what is proposed to be established is a “genuine new enterprise” relative to that which has existed or exists will necessarily involve a comparison between what existed or exists and the enterprise which is being brought into existence. That assessment will require a characterisation of the existing enterprise, a characterisation of the proposed enterprise and a comparison of the two by reference to the essential characteristics of each. A similar approach based on an exercise of characterisation has been adopted on the question of whether a transmission of business has occurred so as to determine whether the business of a former employer is now in the hands of a successor employer: see PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648 at [15] (Gleeson CJ, Gaudron, McHugh and Gummow JJ).

7    Taking guidance from the approach utilised in PP Consultants but bearing in mind what emerges specifically from the text of s 172(2)(b), it seems to me that where an existing enterprise exists or has existed with at least some similarity to an enterprise which is or is proposed to be established, an appropriate assessment as to whether or not the proposed enterprise is a “genuine new enterprise” will involve three fundamental steps:

(1)    What is the character of the existing enterprise by reference to the essential characteristics which define it?

(2)    What is the character of the proposed enterprise by reference to the essential characteristics which define it?

(3)    Compare the two.

If the existing enterprise and the proposed enterprise substantially bear the same character, then it will usually be the case that the proposed enterprise is not a “genuine new enterprise”.

8    There will likely be questions as to what are the essential characteristics by which the comparison is to be made. That may well depend on the nature of the enterprises in question. However, ordinarily an essential characteristic of an enterprise involved in the production or provision of goods and services will be the kind of goods or services produced or provided. Additionally, the kind of plant and equipment utilised to produce those goods or services may be an essential characteristic. Furthermore, given that s 172(2)(b) operates to establish a means by which terms and conditions of employment are set, an essential characteristic will be the kind of workforce utilised to produce the goods and services in question including the nature and mix of the skills and occupations involved.

9    It should also be borne in mind that a characterisation exercise typically requires that all relevant features or factors be considered in combination and then assessed standing back from the detail in order to gain an overall impression: see in a different context Attorney General of New South Wales v Ohlsen on behalf of the Ngemba/Ngiyampaa People [2022] FCAFC 38 at [116] (Bromberg, Mortimer and Jackson JJ).

10    To some extent the submission made by Busways compared the essential characteristics of State Transit Authority of New South Wales’ (STA) enterprise with that proposed by Busways. That was done in relation to the provision of services. However, the contention of Busways that the enterprise Busways proposes to establish is a genuine new enterprise because the services it is proposed will be provided are different services to those provided by STA is unpersuasive.

11    In relation to the kind of services produced or provided, in each case those services were or are proposed to be provided to Transport for New South Wales (TfNSW). Those services, in each case, involve the management and delivery of the same transport services to the public in the same regions, utilising largely the same plant and equipment. In my view, the characterisation of the services needs to focus on the services provided to TfNSW (and not just the public) because it is services to that entity which the STA provides and the proposed enterprise will be contracted to provide.

12    Here, Busways argues that there will be some alteration to the services to be provided to passengers but ignores the fact that the management services being provided to TfNSW are not materially different. As to the services provided to the public, the detail of which is helpfully provided in the reasons for judgment of Snaden J, at best what is envisaged is an evolution or development of the same services rather than the provision of different services. Even if those services or some of them can be categorised as different, I would not regard them as or sufficiently different to deny a characterisation of the totality of the services as substantially the same as those provided by STA.

13    In any event the comparative exercise must take into account all of the essential characteristics. The evidence is that plant and equipment, most of which will remain owned by TfNSW, is very substantially the same. Likewise in relation to the nature of the workforce. Not only is there no distinction as to the skills and mix of occupations involved in the provision of services, the proposed workforce is essentially (if not wholly) the same.

14    Busways also contended that a determinative distinction between the activities conducted by STA and those to be conducted by it was that its proposed enterprise would be a business conducted for the purposes of making a profit. That submission raises for consideration the extent to which the conduct of an enterprise for profit should be regarded as an essential characteristic of an “enterprise”. That question needs to be answered in the context here provided by the definition of “enterprise” in s 12 that an enterprise means “a business, activity, project or undertaking”. That broad definition encompasses enterprises not conducted for profit. So much is made clear by the Explanatory Memorandum at [691] which stated that “[t]he definition of enterprise also permits an employer that is the Commonwealth or a State or Territory, or one of its authorities, to make a greenfields agreement in relation to a genuine new activity that it proposes to undertake”.

15    It is clear then that the conduct of an enterprise for profit is not an essential characteristic (or even a non-essential characteristic) of all categories of “enterprises”, although it may be accepted that a defining characteristic of an enterprise which is a “business” is the fact that it is conducted for profit.

16    If the submission of Busways was correct, the consequence would be that where the existing enterprise is an activity, project or undertaking but is not a business and the proposed enterprise is a business, the proposed enterprise would always be a “genuine new enterprise”. On that contention the comparison between the existing and proposed enterprise would merely be a comparison as between two of the four constituent elements of the definition of enterprise in circumstances where each element of the definition is defined to mean an enterprise.

17    To my mind the comparative exercise which is required is not a comparison as between the elements of the definition of “enterprise”. The comparative exercise must focus on whether the proposed enterprise is genuinely new. The motivation for the conduct of the proposed enterprise may or may not contribute to the characterisation of the proposed enterprise. Take for example a not-for-profit opportunity shop conducted as a retail outlet from the particular location which is taken over and conducted as a business seeking profit. The for-profit enterprise established at the same location with the same or substantially the same plant and equipment and with the same or similar workforce is not likely to bear a substantially different character than its predecessor, despite its objective of making a profit. The objective of making a profit will not in that context contribute very much to the character of the new enterprise when considered from the perspective of whether that enterprise is genuinely new.

18    That is not to say that the objective of making a profit may not contribute substantially to the character of a newly established enterprise. It may or may not. Here, Busways merely relies on the existence of the objective of making a profit as a point of difference without demonstrating from the perspective of whether or not its proposed enterprise should be regarded as “genuinely new” that the existence of a profit motive has relevantly contributed to the character of the enterprise in question.

19    In any event, even if it were accepted that the existence of a profit motive makes a relevant contribution as an essential characteristic, when all the essential characteristics that are here relevant are considered in combination and assessed standing back from the detail to take into account the overall impression made, I would not conclude that the proposed enterprise of Busways bears a substantially different character to that of the enterprise conducted by STA.

20    To the extent that Busways relied upon the conclusions reached by the Full Bench of the Commission, those conclusions are, with respect, unhelpful. There are two fundamental problems with the analysis made by the Full Bench.

21    First, the Full Bench relied upon the proposed enterprise being new to Busways. That was not the correct question. As earlier explained, the correct inquiry is whether the proposed enterprise is new in the sense of being generally novel rather than whether the proposed enterprise is new from the perspective of its proponent.

22    Second, the focus of the Full Bench of the Commission was substantially upon whether the proposed enterprise was the continuation of the same enterprise conducted by STA. In that respect, the Full Bench relied upon the fact that Busways had not acquired the activities of STA as a “going concern”.

23    Again and with respect to the Full Bench, the correct inquiry is not whether an enterprise has been continued and acquired by a successor. The correct inquiry is whether the proposed enterprise substantially bears the same character as that of the existing enterprise so as to disable the conclusion that the proposed enterprise has not existed before and is now made or existing for the first time. Whilst the acquisition of a going concern will tend to confirm that an enterprise has simply been taken over and is likely not to be new, the absence of such an acquisition does not demonstrate that the enterprise proposed is new in the sense of not previously existing or now made or existing for the first time. The means by which the bundle of activities which constituted the existing enterprise come into the hands of the proposed enterprise are not necessarily germane to the requisite inquiry because an enterprise which is a replica of a former enterprise rather than its legal successor is also capable of being characterised as not a “genuine new enterprise”.

Associate:

Dated:    7 April 2022

REASONS FOR JUDGMENT

WHEELAHAN J:

24    I have had the considerable benefit of reading in draft the reasons for judgment of Bromberg J and of Snaden J. Substantially for the reasons given by Bromberg J, I agree with their Honours’ conclusions, and with the orders that are proposed by Snaden J.

Associate:

Dated:    7 April 2022

REASONS FOR JUDGMENT

SNADEN J:

25    Part 2-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is entitled “enterprise agreements”. It provides a legislative framework for the making and enforcement of agreements that serve to regulate the terms and conditions of employment at enterprise (rather than industry or sector-wide) levels. Predominantly, such agreements are made by individual employers and their employees (or those of them as to whose employment each such agreement is intended to apply). In limited circumstances—notably, those involving the establishment or proposed establishment of what the FW Act refers to as a “genuine new enterprise”—the FW Act provides for the making of enterprise agreements as between employers and unions (or “employee organisations”, as they are known within that enactment). It is to agreements of that nature—which the FW Act describes as “greenfields agreement[s]”—that the present application pertains.

26    On 9 December 2020, the Fair Work Commission (the “Commission”) approved what is now known as the Busways, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2020 (the “EA”). The EA had earlier been made as between the first-to-third respondents (hereafter and collectively, “Busways”), on the one hand; and an employee organisation, the Transport Workers’ Union of Australia (the “TWU”), on the other. It was said to pertain to a “genuine new enterprise” that Busways was establishing or proposed to establish: namely, public transport operations for which each of the Busways entities had submitted tenders to the New South Wales government (the nature of which is explored in more detail below).

27    That approval decision (Busways, Transport Workers’ Union of Australia and Drivers Enterprise Agreement 2020 [2020] FWCA 4823 (Harper-Greenwell C)—hereafter, the “Initial Approval Decision”) drew the ire of the applicant. Like the TWU, it too is an employee organisation registered as such for the purposes of the FW Act. It represents or is eligible to represent public bus drivers in New South Wales (and elsewhere). By an appeal lodged with the Commission on 28 September 2020, it sought to have the Initial Approval Decision set aside, principally on the basis that the EA, when made, did not pertain to a “genuine new enterprise” that Busways was establishing or proposed to establish. That appeal, conducted before a bench of three Commission members, failed: Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd, Busways Eastern Suburbs Pty Ltd and Busways North West Pty Ltd t/a Busways & the Transport Workers’ Union of Australia [2021] FWCFB 591 (hereafter, the “Appeal Decision”; Hatcher VP, Gostencnik and Mansini DPP).

28    By an originating application dated 5 March 2021, the applicant moves the court for prerogative relief to have the approval of the EA set aside. Central to the application is the contention that the full bench of the Commission did not accept: namely, that the EA did not relevantly relate to a “genuine new enterprise” that Busways was establishing or proposed to establish.

29    For the reasons that follow, I accept that contention. The EA was not an agreement of a kind that could validly be approved under part 2-4 of the FW Act. The Commission did not have jurisdiction to approve it and its assumption of a statutory power to that end should be corrected by the grant of relief substantially in the forms that the applicant seeks.

Background

30    The relevant factual background can briefly be stated. It emerges without material controversy from the evidence upon which the parties relied (the particulars of which needn’t here be rehearsed).

31    Section 3C of the Transport Administration Act 1988 (NSW) establishes a New South Wales Government agency known as “Transport for NSW” (or “TfNSW”). Amongst others, its functions include contracting, on behalf of the state of New South Wales, with public transport agencies or the private sector for the delivery of public transport services, including bus services: Transport Administration Act 1988 (NSW), s 3E, Sch. 1.

32    Section 39 of the Passenger Transport Act 2014 (NSW) prohibits the provision of public bus transportation services that are “conducted according to regular routes and at regular intervals” unless they are provided pursuant to a “passenger service contract”. By s 36 of that Act, TfNSW may enter into a “passenger service contract” for the provision of a “public passenger service” (including services involving the vehicular transportation of fare-paying passengers within New South Wales).

33    At times material to this application, the provision of public bus transportation services within defined parts of Sydney was undertaken by the State Transit Authority of New South Wales. Specifically, it oversaw the provision of such services in what are known as “Region 7”, “Region 8” and “Region 9” (which incorporate Sydney’s inner north-west, its northern beaches and lower north shore, and its CBD and eastern suburbs). As will be seen, it is those three regions that assume significance in this matter.

34    Those services might fairly be described as orthodox public bus transportation services. They involve the operation of buses upon prescribed routes, according to prescribed timetables and subject to prescribed fares.

35    On or around 24 October 2019, TfNSW announced that the New South Wales government intended to invite private operators to tender for passenger service contracts covering the provision of public bus transportation in various regions within Sydney, including regions 7, 8 and 9. It is convenient to set out in full the text of that announcement:

New bus contracts to drive improved services

Published 24 Oct 2019

Bus customers will receive additional services and innovative on demand options under new contracts to lift the standard of transport across Sydney.

Minister for Transport Andrew Constance said the reform was designed to ensure the best outcomes for both customers and staff.

“Our bus drivers are the best in the world. They do an amazing job in getting people around this incredible city and play a vital role in helping to tackle Sydney’s congestion,” Mr Constance said.

“Bus patronage has increased by more than 50 per cent over the past six years. This rate of growth outstrips that of all other forms of public transport and we need to address this increasing demand as a matter of urgency.”

The NSW Government will invite the world’s leading public transport operators, Australian and international, to bid for contracts for 13 of Sydney’s bus contract regions over the next three years. This will include the three remaining State Transit operated regions.

Mr Constance said a competitive tender of all Sydney metropolitan bus contracts will enable the NSW Government to reinvest more into delivering better services to commuters.

“We know customers want more buses, more often, as well as a mix of bus services that cater to their needs. This includes high-frequency services on major routes, like the B-Line, and frequent direct options such as on-demand services for short, local trips.”

“The NSW Government will engage with the private sector to transform the current, one-size-fits-all model of service delivery, to one with multiple service types including high-capacity routes and local and on-demand travel.”

Contracts for the three remaining State Transit Regions 7, 8, and 9 – covering Ryde, Gladesville, the Northern Beaches, Lower North Shore, the CBD, and the Eastern Suburbs will be included and be put out to tender by early 2020.

The NSW Government will continue to:

own State Transit buses and all other assets such as depots,

regulate timetables, safety, and service priorities, and

set fares as they are today, under the Opal system.

The reform will also see Sydney’s ageing diesel bus fleet replaced by electric vehicles to reduce the impact of buses on the health and environment of our city.

“Making the switch to an entirely electric bus fleet will deliver huge benefits to the community in terms of reducing air and noise pollution, as well as our incredible drivers,” Mr Constance said.

“As part of this process, we will challenge the industry to begin an ambitious transformation of our bus fleet from particulate emitting diesel to zero emission buses.

“The experience of other leading European cities demonstrates that a rapid transition to zero-emission buses is possible and I have asked Transport for NSW to work with operators and bus suppliers to develop a plan to transition our fleet as part of the tender process.

“Zero-emission buses are becoming the standard with the significant environmental, health and operational cost benefits being experienced now in cities like London, Paris and Amsterdam. As a truly global city Sydney deserves the same.”

Mr Constance said there would be jobs for the majority of State Transit award staff with the new operator(s), including all bus drivers and maintenance staff, whose jobs will be guaranteed for two years. These staff will also transfer with all their accrued entitlements such as annual leave, sick leave, long service leave, superannuation and their three-year travel pass.

“Today’s announcement is not a reflection on the performance of State Transit bus drivers who have been doing an excellent job dealing with the strong surge in passenger numbers and demanding road conditions,” Mr Constance said.

“We expect more jobs for bus drivers to be created due to the extra services that will be provided.

“We have started engaging with all staff and their union representatives about today’s announcement, and will continue this right through the tender and transition process.”

36    The first of the three relevant regions to undergo the tender process was region 8. It was proposed that requests for tenders related to that region would be announced in June 2020, and that a transition to a new operator would complete by October 2021. Requests for tenders for region 7 were scheduled to be made in August 2020, with transition by December 2021. For region 9, the equivalent dates were November 2020 and April 2022. Some changes to those timings were made but need not here be recited.

37    In May 2020 (and consistently with the NSW Government’s announcement), TfNSW undertook to guarantee that new operators who commenced to provide bus services in line with those timings would, for at least two years after that commencement, retain existing operational staff on their existing employment conditions. Additionally, those employees were guaranteed recognition of their service with predecessor providers. Those guarantees were provided in writing by correspondence that TfNSW sent to the secretary of “Unions NSW”.

38    Each of the Busways entities was incorporated on 18 August 2020. The EA was made two days later, on 20 August 2020. At that time, the first respondent was preparing, or intended to prepare, for submission a tender relating to the operation of bus services within region 8, the third respondent was preparing a tender relating to the operation of bus services within region 7 and the second respondent intended to prepare and submit a tender relating to the provision of bus services within region 9.

39    By that point in time, TfNSW had already published a request for tender relating to region 8. That occurred on 24 June 2020. Equivalent documents followed in relation to regions 7 and 9 on 10 August 2020 and 27 November 2020 respectively.

40    It is necessary to record some (albeit limited) detail about the three requests for tender. Perhaps unsurprisingly, they were voluminous. Each comprised, as volume 1, an extensive document entitled “Overview & Tender Requirements”; and, as volume 3, a draft contract as between TfNSW and the incoming operator.

41    Each request for tender specified that the New South Wales government would continue to own the busses (and other assets) used to service each region and would maintain control over the applicable bus timetables. Additionally, they each recorded that TfNSW and the “Independent Pricing and Regulatory Tribunal” would continue to regulate passenger fares throughout each region. The requests stated that the incoming operators would be required “to offer employment to identified existing STA staff under their current awards and agreements” and “to work with stakeholders to ensure a smooth transition for [those] employees from a public to a private operator”. They also set out various “operational outcomes”—relating to matters such as “customer experience”, “stakeholder engagement”, “workplace relations”, and various “social and sustainability” initiatives—that the incoming operators would need to satisfy.

42    The requests also required that tenderers “provide sufficient information to enable TfNSW to determine their capability, methodology and approach to considering, designing and evaluating the benefits of additional On Demand Services”. That requirement married with the TfNSW “On Demand Public Transport Pilot Program”, a program “established to identify and test a diverse range of new service delivery models” so as to “improve customer outcomes and achieve better value for money in the delivery of public transport services”. Schedule 1A to each of the draft contracts that were contained within the requests set out the specific requirements that would be imposed upon incoming operators in relation to “On Demand Services”.

43    The request for tender “Overview and Tender Requirements” document and draft bus contract relating to region 9 foretold of additional requirements that would be imposed within that region relating to the introduction of zero-emissions busses, as well as the installation and maintenance of associated infrastructure (such as charging stations and other necessary depot upgrades).

Statutory framework

44    Section 172 of the FW Act is headed, “making an enterprise agreement”. Subject to the requirements of pt 2-4 of the FW Act, it authorises the making of agreements about (amongst other things) “…the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement”. Relevantly, it provides (and provided) as follows:

…

Single-enterprise agreements

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

…

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

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

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

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

…

Greenfields agreements

(4)    A single enterprise agreement made as referred to in paragraph (2)(b)…is a greenfields agreement.

Single interest employers

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

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

(b)    the employers are related bodies corporate; or

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

45    Presently, it is not controversial that the Busways entities were “single interest employers”, nor that the TWU was an employee organisation. The sole issue arising here under s 172 of the FW Act concerns whether the EA was made in relation to a “genuine new enterprise” that the Busways entities were establishing or proposing to establish.

46    “[E]nterprise” is defined to mean “…a business, activity, project or undertaking”: FW Act, s 12. The FW Act does not, however, define what is meant by the qualifier “genuine new” in s 172(2).

47    Section 182 of the FW Act identifies the circumstances in which an enterprise agreement is considered to have been “made”. Relevantly, s 182(3) provides as follows:

Greenfields agreement

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

48    Enterprise Agreements that are made do not begin to operate until after they are approved by the Commission. The approval of enterprise agreements is the subject of s 186 of the FW Act. Relevantly, it provides as follows:

Basic rule

(1)    If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

49    It is common ground that an application for the approval of the EA was made under s 185 of the FW Act, the terms of which need not here be replicated. Of the requirements referred to in s 186(1), only one—addressed in s 187(5)—warrants recording:

Requirements relating to greenfields agreements

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

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

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

It is not in question in this case that, in approving the EA as it did, the Commission was relevantly and properly satisfied of the matters to which s 187(5) refers.

50    For the sake of completeness, mention might be made of s 604 of the FW Act, which establishes a qualified right of appeal from decisions of the Commission constituted by single members. A person who is aggrieved by such a decision may, with permission, appeal to a “Full Bench” constituted by three Commission members, at least one of whom must be the President, a Vice President or a Deputy President: FW Act, s 618. Again, it is accepted for present purposes that the applicant was granted permission to appeal the approval of the EA and that that appeal was heard before a properly-constituted full bench of the Commission.

51    The jurisdiction of this court to award prerogative relief of the kinds that are now sought is uncontroversial: Judiciary Act 1903 (Cth), s 39B(1); FW Act, s 562. Likewise, no issue arises concerning the standing of the applicant to seek that relief.

The Commission decisions

52    As is common, the Initial Approval Decision appears to have been largely administrative by nature. The applicant played no part in it and it does not appear to have then been in contest that the EA was a “greenfields agreement” that met the requirements of s 172(2)(b) of the FW Act: Initial Approval Decision, [2] (Harper-Greenwell C).

53    That contest was the central question in issue in the subsequent appeal that the applicant brought from the Initial Approval Decision. That appeal (and related application for permission to appeal) challenged the approval on the basis that the EA was not a “greenfields agreement” because it did not relate to a “genuine new enterprise” that, at the time that it was made, the Busways entities were establishing or proposed to establish. It was not obviously in contest that, were that contention to be accepted, the Initial Approval Decision would be ripe for setting aside.

54    On appeal, the full bench of the Commission rejected that central contention. To summarise, the Commission was satisfied that the EA related to a “genuine new enterprise” that the Busways entities were establishing or proposed to establish because:

(1)    in the event that their tenders succeeded and that they subsequently began to provide bus services, they would do so with their own employees, as private operators and for profit, unlike their predecessor, the State Transit Authority of New South Wales;

(2)    one of the goals of the tender process was to “create different and innovative bus services in the future”, and to “change the current, one-size-fits-all model of service delivery…to one with multiple service types[,] including high-capacity routes and local and on-demand travel”;

(3)    achieving that goal would inevitably require that the private operators to which the relevant tenders were awarded would need to offer “different and more expansive” bus services; and

(4)    looked at as a whole, the enterprise in respect of which the EA was made was “a new, private sector operation for profit which will have different and additional services operated autonomously from direct NSW Government control [and] will, as a result, be different in the hands of the successful tenderer [and] not merely the continuation of the same business or operation”.

The present application

55    In this court, the applicant maintains the contention upon which it failed in the Commission: namely, that the EA was not, at the time of its making, an agreement that related to a “genuine new enterprise” that Busways was establishing or proposed to establish. It is common ground—and plainly the case—that if that contention is accepted, it would follow that the EA was not an agreement of a kind in respect of which the FW Act conferred upon the Commission the power of approval that it purported to exercise. It would follow that the exercise of such a power in that circumstance was beyond the Commission’s statutory competence.

56    Perhaps unsurprisingly, the evidence led in support of and in opposition to the present application largely mirrored that which was before the Commission. It comprised of:

(1)    two affidavits of David Babineau, the divisional secretary of the New South Wales branch of the applicant’s Tram and Bus Division, affirmed on 5 March 2021 and 29 June 2021, respectively; and

(2)    two affidavits of Timothy John Reid, the “Special Projects Manager” of Busways Group Pty Ltd, an entity related to the Busways respondents, affirmed respectively on 24 June 2021 and 2 August 2021.

57    The day before the hearing, the applicant filed with the court a document setting out its objections to the evidence relied upon by the Busways respondents. On the day of the hearing, Busways did the same in respect of the evidence relied upon by the applicant. Seemingly as a result of that exchange, the applicant did not read certain parts of each of the affidavits made by Mr Babineau. The parties otherwise indicated at the commencement of the hearing that they no longer pressed the objections contained in the documents that they had prepared, but were instead content for those documents to be treated as submissions as to the weight to be given to the evidence identified therein.

58    An application to suppress references to some of the evidential material was made and separately determined: Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188 (Bromberg, Wheelahan and Snaden JJ).

Meaning of “Genuine new enterprise”

59    The sole issue for determination by this court is whether or not the facts recorded above (none of which is controversial and all of which I accept as true) are sufficient to establish that the EA was made in relation to a “genuine new enterprise” that the Busways entities were establishing or proposed to establish. That, in turn, requires that attention be given to what is—and, importantly, what is not—contemplated by that phrase; and to which side of that divide the circumstances of this case fall.

60    The former inquiry involves an orthodox process of statutory construction. The principles that inform such a process are notorious and require minimal exploration. The task for the court begins with an assessment of the meaning of the words “genuine new enterprise” in s 172(2)(b) of the FW Act: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 13 [26] (French CJ, Hayne, Kiefel and Bell JJ). If those words (read in their proper context) are unambiguous, then they should be accorded their natural, clear meaning: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 265-266 [34] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

61    If, either by themselves or read in their proper context, the words in question are obscure or capable of sustaining more than one meaning, the court must embark upon a search for which of those meanings most accords with the presumptive intention that animated their enactment. The court’s task is to identify and give effect to that construction. That task may be assisted by reference to relevant extrinsic material. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, French CJ, Gummow, Hayne, Kiefel and Bell JJ) observed (at 592 [44]):

The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

62    Among those “statutory rules” are ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth). Section 15AA gives statutory voice to the long-standing instruction that courts should construe legislation so as to give effect to the evident purpose or objective for which it was made. The section provides, simply enough:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

63    Section 15AB of the Acts Interpretation Act 1901 (Cth) concerns the use that may be made of extrinsic materials during processes of statutory construction. Amongst other things, it permits judicial consideration of material that is capable of assisting in ascertaining the meaning of a statute or statutory provision that is ambiguous or obscure. Section 15AB(2) contains a non-exhaustive list of such material (which needn’t here be replicated).

64    The use in s 172(2)(b) of the FW Act of the phrase “genuine new enterprise” is curious. The significance of cumulative or coordinate adjectives (“genuine” and “new”) is plain enough. Just as a “talented young footballer” is a footballer who is both talented and young, or an “expensive French restaurant” denotes a restaurant that is both French and expensive, a “genuine new enterprise” must be an enterprise that is both “genuine” and “new”. The structure of the phrase does not constitute the former adjective as a qualifier of the latter: in other words, the phrase must be understood as a reference to enterprises that are both “genuine” and “new”, as opposed to enterprises that are “genuinely new”. Even were it otherwise, there is no obvious semantic point of distinction between an enterprise that is “genuine” and “new”, a new enterprise that is a “genuine” new enterprise, or an enterprise that is “genuinely new”.

65    Save for questions of degree, the adjective “new” doesn’t easily permit of ambiguity. Something is or will be “new” if its creation is recent or foreshadowed. Applied to the noun “enterprise”, the adjective “new” is clear enough.

66    “Genuine” is likewise unambiguous, at least in its ordinary sense. To be “genuine”, something must be, in truth, what it purports to be. The adjective imparts notions of authenticity, honesty or sincerity. Upholstery, for example, might be made from “genuine leather” (as opposed to some other material that looks and feels like leather). A person might take a “genuine interest” in something. A signature on an affidavit might genuinely be that of its deponent. In each case, the adjective is used to distinguish the noun (“leather”, “interest”, “signature”…) from others that lack authenticity; in other words, to exclude from consideration things that are contrived or not, in reality, what they purport or appear to be.

67    In the present case, both adjectives (“genuine” and “new”) serve to distinguish the noun (“enterprise”) in respect of which they are employed. In other words, to describe a thing as “genuine” or “new” is to distinguish it from similar things that are not genuine or new. What is curious about the phrase “genuine new enterprise” is that the adjective “genuine” is not one that is commonly associated with the noun “enterprise” (nor with the compound phrase “new enterprise”). Whereas it is relatively easy to identify when a footballer might qualify as a “talented footballer”, or when a restaurant might qualify as a “French restaurant”, it is comparatively difficult to identify the qualities that distinguish an enterprise (or a new enterprise) that is genuine from an enterprise (or new enterprise) that is not genuine.

68    Nonetheless, the phrase appears as it appears and it must be presumed that the Parliament intended that all of the words that comprise it were included for a reason: Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [2.43] 67-68; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ). It falls to the court to discern what was intended by the inclusion of “genuine” ahead of “new enterprise”: what, conceptually, was intended to distinguish a “new enterprise” that is genuine from a “new enterprise” that is not genuine?

69    The answer to that question does not emerge with any clarity from the text of the legislation. There is, then, an underlying or latent ambiguity to the phrase. All the more is that apparent in the present case. There can be no doubt that the enterprise in respect of which the EA was agreed was one that, at the time of that agreement, was or would be “new” at least insofar as concerned the Busways entities. None of them undertook any enterprise—certainly not anything that involved the provision of bus services—at the time that the EA was made. But, if that fact alone were sufficient to constitute their enterprise or proposed enterprise (or its constituent activities or undertakings) as a “genuine new enterprise” for the purposes of s 172(2)(b) of the FW Act, there would be no need for the qualifier “genuine”. The question remains: what is to be made of the use of that qualifier?

70    Substantial assistance is to be gained from the explanatory memorandum that accompanied the passage of what was then the Fair Work Bill 2009 (Cth). That instrument (hereafter, the “Explanatory Memorandum”) relevantly recorded as follows (at [691]-[693]):

691.     A greenfields agreement must relate to a genuine new enterprise that the employer or employers are establishing or proposing to establish. The legislative notes following subclauses 172(2) and 172(3) make it clear that a genuine new enterprise includes a genuine new business, activity, project or undertaking. They do this by referring to clause 12 which defines an enterprise as a business, activity, project or undertaking. The definition of enterprise also permits an employer that is the Commonwealth, or a State or Territory, or one of its authorities, to make a greenfields agreement in relation to a genuine new activity that it proposes to undertake.

692.     The use of the word ‘genuine’ in paragraphs 172(2)(b) and 172(3)(b) is intended to make it clear that the enterprise must be a new enterprise rather than an existing enterprise that the employer or employers acquire, or propose to acquire, as a going concern (see the decision of the AIRC in Re Patrick Cargo Pty Limited Certified Agreement 2002 (2002) 115 IR 443). In other words, a genuine new enterprise is not an enterprise that has been previously carried out by another employer. For example, a supermarket operator could not make a greenfields agreement if it acquired a chain of liquor stores in a transfer of business situation. Similarly, a new employer cannot make a greenfields agreement where it acquires or proposes to acquire an enterprise that has previously been conducted by another employer.

693.     The nature of the genuine new enterprise may nonetheless be the same or similar to the employer’s existing enterprise, particularly in the case of a new project. For example, an existing employer in the construction industry could make a greenfields agreement in relation to a genuine new construction project. However, an existing employer, such as a major retailer, could not make a greenfields agreement in relation to a new store that it is proposing to establish if that store is part of the employer’s existing enterprise.

71    From those extracts, it is apparent that the legislative intention that animated the inclusion of the word “genuine” within s 172(2)(b) of the FW Act was to distinguish enterprises that were (or were to be) new in an holistic sense (on the one hand) from enterprises that, although new to the employer party, were nonetheless in operation already when the agreement was made (on the other). It is only in respect of the former species of enterprise that the legislative scheme was intended to permit the making—and, therefore, the approval—of greenfields agreements.

72    Before this court, the Busways entities maintained that the Explanatory Memorandum passages extracted above are immaterial because they are concerned with the acquisition of businesses as “going concern[s]”. The contention continued: because the enterprises that the Busways entities were establishing or proposed to establish were not enterprises that any of them had “acquired” as a “going concern”, there was no warrant for concluding that those businesses were otherwise than “genuine new enterprise[s]”.

73    There are some difficulties with that analysis. True it is that the opening sentence in item 692 of the Explanatory Memorandum refers to the acquisition of “an existing enterprise…as a going concern”. Nonetheless, the remainder of that item is broader in its terms. The exclusionary passages that follow immediately from that first observation are particularly instructive. They make clear the legislative intention that an employer ought not to be able to make a greenfields agreement in respect of a business, activity, project or undertaking—that is to say, an enterprise—that has been previously carried out (or “conducted”) by somebody else.

74    In any event, I am not persuaded that much may be made of the use by the Explanatory Memorandum of the term “going concern”. The precise conceptual limits of that phrase are not clear. In the realm of accounting, “going concern” typically denotes a concern (usually commercial in nature, though there is no obvious reason why that must be so) that is operationally stable; in other words, one that generates or obtains enough revenue to sustain itself. I confess some difficulty in understanding why the activities or undertakings that comprise state-run public bus services—constituted significantly, as they inevitably are, by the transportation of passengers along defined routes at defined times for defined sums of money—might not relevantly qualify as a “going concern”. Here, at the time that the EA was made, the state of New South Wales was concerned, via its responsible agencies and on an ongoing basis, with those activities or undertakings.

75    Furthermore, at the time that the EA was made, the Busways entities intended (or hoped) to acquire those activities—of course, not by means of purchase but by assignment through the tender process into which they had entered. That intention (or hope), if realised, would sound in their acquisition and discharge of those functions on an ongoing basis. They would, in that eventuality, be concerned with the provision of bus services on an ongoing basis; which seems like a slightly longer way of saying that they would acquire them as a going concern.

76    In my view, the Explanatory Memorandum leaves little (if any) room for doubt. The phrase “genuine new enterprise” denotes a business, activity, project or undertaking upon which an employer proposes to commence otherwise than as the successor to an existing operator. Particularly in the case of businesses, activities, projects or undertakings that are awarded or assumed contractually by assignment (as is, or was hoped one day to be, the case here), it may be that some complexity arises in ascertaining whether an “incoming” employer fairly qualifies as a successor to a previous operator. Care may be required to distinguish an employer that succeeds to the business, activity, project or undertaking of another from one that succeeds merely to the kind of business, activity, project or undertaking in which another is (or was) engaged: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194, 208 [23] (Gleeson CJ, Hayne, Callinan and Heydon JJ). Regardless, the analysis will turn upon the proper characterisation of the enterprise (that is, the business, activity, project or undertaking, as the case may be) of an “old” or existing operator and an assessment as to whether it bears, in substance, the same character as the enterprise of the “new” or “incoming” operator. If it does, then it will usually be the case that the new operator will have succeeded to the enterprise (that is, to the business, activity, project or undertaking, as the case may be) of the former operator: PP Consultants Pty Ltd v Finance Sector Union of Australia (2000) 201 CLR 648, 655 [15] (Gleeson CJ, Gaudron, McHugh and Gummow JJ) (“PP Consultants”); Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (2001) 106 FCR 302, 310-311 [29] (Ryan, Lee and Branson JJ); Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union (2001) 109 FCR 303, 350-351 [159]-[165] (Ryan and Madgwick JJ; Beaumont ACJ dissenting).

77    All of that acknowledged, the question here remains: on the facts available, should the Busways entities be understood to have been establishing or proposing to establish a “genuine new enterprise” at the time that the EA was made?

78    The answer to that question requires some analysis of the facts.

Application to the present facts

79    As they did before the Commission, the Busways entities point to a number of factual circumstances that, they contend, accumulate to a point sufficient to constitute the enterprise in relation to which the EA was made as a “genuine new enterprise” for the purposes of s 172(2)(b) of the FW Act. Before going to them, it is prudent to make what is perhaps a self-evident observation. Whether the enterprise in relation to which the EA was made was one that the Busways entities proposed to establish otherwise than as successors to the existing operator is a mixed question of fact and law: PP Consultants, 655 [14] (Gleeson CJ, Gaudron, McHugh, and Gummow JJ). It turns at least partly upon a comparison of the bus services that, at the time that the EA was made, were provided by the state (on the one hand) with those that the Busways entities then proposed to provide in the event that their tenders succeeded (on the other).

80    There can, I think, be no doubt that, by the process of tendering out its state-run bus services to private operators, the New South Wales government sought to promote or introduce various improvements thereto. Those improvements were the subject of discussion within the public announcement reproduced above (at [35]). They were also the subject of articulation within the draft contracts that formed part of the requests for tender that TfNSW issued (and to which the Busways entities responded—see above, [41]-[43]). By their written submissions to this court, the Busways entities summarised them as follows (and consistently with the unchallenged evidence), namely:

(a)     a requirement to:

(i)     provide additional services and innovative options such as On-Demand to lift the standard of transport;

(ii)     ensure the public transport system can cope with the extra demands of population growth;

(iii)     identify and implement new, creative, and better ways to ensure people can utilise public transport to travel to their desired destination quickly, safely and easily; and

(iv)     "provide innovative solutions that better match customer needs and deliver value for money to the people of NSW.";

(b)     the contract will establish minimum service standards and performance indicators, however the operator "will have a level of autonomy in running services";

(c)     the regional transport network will continue to evolve, and the operator is required to deliver a range of services including route timetabled services, dedicated school services, on demand services, headway services, and special services such as emergency bussing, event services and planned rail and metro replacement;

(d)     the operator is required to design its operation and maintenance philosophies and its approach to customer service based on stipulated high quality customer experience outcomes;

(e)     the operator is required to provide a service plan which provides for "improved outcomes", and throughout the contract term the operator is required to work with TfNSW to implement service revisions which deliver improved customer outcomes;

(f)     the operator is required to deliver highly integrated services, including integration with other bus services and other transport modes; and actively promote and develop the services;

(g)     the operator is required to provide stipulated on demand services;

(h)     the operator may be required to purchase replacement buses and will provide on demand vehicles;

(i)     the operator may propose supplementary depots where appropriate;

(j)     TfNSW may apportion to the operator a 25% share of financial savings arising out of continuous improvement and innovation;

(k)     TfNSW may apportion to the operator 5% of the gross revenue from the sale of advertising space to third parties on buses;

(l)     the operator may use a contract bus for the purpose of providing charter services provided this does not adversely affect the provision of the other bus services required by the contract;

(m)     the operator may keep the proceeds received in connection with the disposal of a retired contract bus; and

(n)     in exchange for the operator providing the bus services in accordance with the contract, TfNSW is required to pay to the operator specified contractual payments on a monthly basis.

81    Additionally, evidence was led regarding additional obligations that were to be imposed upon the successful tenderer for Region 9; specifically, obligations related to the introduction of zero-emissions buses and the infrastructure necessary to maintain them. It was said—and, again, the unchallenged evidence sufficed to establish—that those evolutions will require changes relating to depot upgrades, electricity supply infrastructure, new vehicle acquisition and fit-out, vehicle maintenance, route scheduling and personnel development.

82    Evidence was also led about various structural changes that the privatisation of public bus services in New South Wales would warrant. An obvious example concerns the engagement of relevant staff: whereas operational staff (such as bus drivers and depot personnel) were (and, possibly, still are) employed under the “old” regime by a separate statutory agency (namely, the Transport Service of New South Wales), they would instead be employed by a new, private operator under the proposed “new” one. Perhaps just as obvious, the new private operators would, unlike the STA before them, conduct their bus services with a view to generating profit.

83    The changes to public bus services envisaged by the privatisation process upon which the New South Wales government has embarked need not be understated. There is no doubt that they should be assessed cumulatively in a manner that informs the court’s present task in determining whether or not the EA was made in relation to a “genuine new enterprise” that the Busways entities were, at the time, establishing or proposing to establish. By their nature, they incline toward a conclusion that it was.

84    Other factors, however, incline the other way. As has already been traversed, a condition binding the successful tenderers was that they would guarantee for two years the roles of existing staff—that is to say, bus drivers and others described as “operational and maintenance staff in the depots”—and would do so recognising existing periods of service and honouring existing award conditions of employment. Further, TfNSW would retain ownership in the vehicles that comprised at least the existing bus fleets. The routes to be serviced, and the schedules and fares applicable to them, would remain under TfNSW’s control.

85    Surveying that factual landscape, the task of the court distils to this: can it be said that the nature or character of the pre-tender bus services in regions 7, 8 and 9 is (or was), in substance, the same as the nature or character of the bus services in respect of which the Busways entities made the EA?

86    That question is properly answered in the affirmative. The enterprise in respect of which the EA was made involves (or is planned to involve) the provision of bus transportation services under passenger service contracts (as well as ancillary activities, such as maintenance and depot works); in other words, the transportation of customers by bus (indeed, mostly the same buses, operated by the same people) along (or predominantly along) defined routes, at (or predominantly at) defined times and for defined fares. That those services, in future, might be undertaken by private operators in search of profit, or might involve a degree of evolution and the assumption of additional responsibilities or functions is neither surprising nor sufficient to alter the essential nature of what Busways hopes to assume.

87    It follows that the enterprise in respect of which Busways made the EA bears substantially the same character as the bus service activities that, to that point, had been undertaken by the state. The enterprise that the Busways entities were establishing or proposing to establish when they made the EA was not (or was not going to be) a genuine new enterprise for the purposes of s 172(2) of the FW Act.

Conclusion

88    The Commission’s power of approval under s 186 of the FW Act is conditional upon the existence of an enterprise agreement that has been made. An agreement will only so qualify if it is of a kind the making of which is authorised by s 172. An agreement that is of some other kind is not one that the Commission can approve under s 186 of the FW Act.

89    Before the Commission, the proper character of the EA—and, more particularly, of the enterprise in respect of which it was made—was a matter of jurisdictional fact. Although the finding that the Commission made on that score involved notions of impression and degree, it was not one that this court should, as a matter of “judicial deference”, be slow to correct in the event of error: Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, 158 [59] (Gaudron J).

90    The enterprise in relation to which the EA was made was not a “genuine new enterprise” that the Busways entities were then establishing or proposing to establish. Necessarily, then, the EA was not an agreement of the kind to which s 172(2)(b) of the FW Act refers, nor could it qualify as any other species of agreement the making of which that section authorised.

91    It follows that the EA was not an agreement of a kind in respect of which s 186 of the FW Act conferred upon the Commission a power of approval. The Commission’s conclusion to the contrary—both at first instance and on appeal—was incorrect.

92    It was common ground that any such error, if made, was one that went to the Commission’s jurisdiction to do as it did. In effect, the Commission’s error led it to assume (and to purport to exercise) a power that it did not have.

Relief

93    In light of the conclusions to which I am drawn, it follows that I would grant relief sufficient to set aside the approval of the EA. By its originating application, the applicant seeks relief in the nature of certiorari directed to both of the Commission’s decisions (that is, to the Initial Approval Decision and to the Appeal Decision). There is some basis to doubt whether that is appropriate. It is to be recalled that the applicant succeeded in obtaining from the Commission permission to appeal the first-instance approval. An appeal thereafter transpired (albeit that it did not culminate in the result for which the applicant pressed). The only decision of the Commission with any “operative effect” now is the decision on appeal: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138, 147 [39] (Barker, Rangiah and Wigney JJ).

94    Nonetheless, the better course here is to grant the relief for which the applicant has moved. Provided that both are the product of jurisdictional error, prerogative relief may lie as against both an administrative appeal decision and the first-instance decision against which that appeal was unsuccessfully brought: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 [171], [174] (Katzmann and Rangiah JJ). Here, it is necessary to set aside not merely the full bench’s affirmation of the initial approval; but also the approval itself. There should be relief to that end.

95    The applicant also seeks relief in the nature of prohibition to prevent the Commission from further considering the application that was made for the EA’s approval. Historically, the writs of certiorari and prohibition developed alongside each other in the Court of King’s Bench, forming part of the process by which that court restrained courts of inferior jurisdiction from exceeding their powers. Both are available “[w]herever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”: R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171, 194 (“Electricity Commissioners”; Atkin LJ). The two species of relief are similar, both in respect of the principles that guide their availability and as to the nature of the relief that they afford. The difference between them lies largely in their timing. As Atkin LJ said in Electricity Commissioners (at 206), in a passage endorsed by this court in Grey v Health Insurance Commission [2001] FCA 1398 [6] (Finkelstein J):

I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction.

96    The applicant’s contentions in support of the grant of relief in the nature of prohibition did not rise much beyond an assertion that it should be granted. In many, if not most, instances, it will be unnecessary for both forms of relief to issue. That reflects the reality that, where a decision is quashed for the reason that it was made in excess of jurisdiction, it is unlikely that the same body would make another decision about the same matter that suffers from the same defect.

97    All the same, I am of the view that relief in the nature of prohibition should issue in this matter. Although purporting to be, the application that was made for the approval of the EA is not an application under s 185 for the approval of an enterprise agreement. It is, instead, an application for the approval of some other species of agreement in respect of which the FW Act does not confer upon the Commission any approval power. The Commission could, of course, say so itself; but the better—and, by far, most convenient—course is to prohibit any further consideration of what, as it happens, ought never to have been pursued. The relief that is sought should be granted.

98    Most likely in recognition of the limitations imposed by s 570 of the FW Act, the applicant did not seek any order for costs and none should be made.

Associate:

Dated:    7 April 2022

SCHEDULE OF PARTIES