Federal Court of Australia

Australian Rail Track Corporation Limited v Australian Rail, Tram and Bus Industry Union [2024] FCAFC 170

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, removing into this Court and quashing the decision of the third respondent made on 15 March 2024 in matter B2023/783.

2.    A writ of prohibition issue, restraining the third respondent from taking any further steps to determine the application in matter B2023/783.

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

REASONS FOR JUDGMENT

COLLIER J:

1    I have had the great benefit of reading in draft the reasons of Katzmann J and Snaden J. I agree with them and the orders they propose.

Associate:

Dated:    20 December 2024

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

2    Industrial action may lawfully be undertaken during bargaining for a proposed enterprise agreement but in certain circumstances it may be halted upon the Fair Work Commission making a “termination of industrial action instrument”. If such an instrument is made and if, after a period of 21 days (or such further period as the Commission may allow), “the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement”, s 266(1) of the Fair Work Act 2009 (Cth) (FW Act or Act) requires the Commission to make an “industrial action related workplace determination” or, put simply, to arbitrate the dispute, as quickly as possible.

3    This proceeding is concerned with the meaning of the words that “the bargaining representatives… have not settled all of the matters that were at issue during bargaining for the agreement”. More particularly, it is concerned with whether an industrial action related workplace determination can, let alone must, be made after the proposed agreement which gave rise to the “matters at issue” has been put to a vote of employees who would be covered by the agreement, has received majority support from them and is therefore taken to have been made, and the agreement has been approved by the Commission over the objection of some of the bargaining representatives. The question has never previously come before the Court for consideration and arises in apparently unprecedented circumstances.

4    The question is raised by an application brought by Australian Rail Track Corporation Ltd (ARTC) for judicial review of a decision of a Full Bench of the Commission. The Full Bench decided by a majority (Easton DP dissenting) that, despite the fact that the enterprise agreement had been made and approved, the bargaining representatives had not settled all the matters in issue between them during bargaining for the Australian Rail Track Corporation NSW Enterprise Agreement 2023 (2023 Agreement), and therefore the Commission had jurisdiction to make an industrial action related workplace determination.

5    ARTC seeks a writ of prohibition to prohibit, alternatively an injunction to restrain, the Commission from exercising jurisdiction and a writ of certiorari quashing its decision, alternatively, a declaration that the Commission’s decision that it had jurisdiction is of no legal effect.

6    The application is supported by an affidavit of Matthew James Kelleher, a partner in the law firm which acts for ARTC.

7    ARTC contends that the majority of the Full Bench fell into jurisdictional error because, on a proper construction of s 266(1)(c), the Commission did not have jurisdiction to make a workplace determination. The basis for the contention, as explained by Mr Kelleher in his affidavit, is as follows:

At the level of jurisdictional fact, all matters at issue during bargaining were settled by the making, and approval, of the 2023 Agreement. The settlement was reached by the voting process prescribed by Part 2-4 of the FW Act. The FW Act provides no role for bargaining representatives after the making and approval of an enterprise agreement, and there is nothing to settle between themselves in this situation. Bargaining representatives do not have a legal status nor a legal capacity beyond that prescribed by the FW Act.

8    For the reasons given below, that contention is correct.

Section 266

9    Section 266 provides:

When the FWC must make an industrial action related workplace determination

Industrial action related workplace determination

(1)    If:

(a)    a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b)    the post-industrial action negotiating period ends; and

(c)    the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.

Note:    The FWC must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)).

Termination of industrial action instrument

(2)    A termination of industrial action instrument in relation to a proposed enterprise agreement is:

(a)    an order under section 423 or 424 terminating protected industrial action for the agreement; or

(b)    a declaration under section 431 terminating protected industrial action for the agreement.

Post-industrial action negotiating period

(3)    The post-industrial action negotiating period is the period that:

(a)    starts on the day on which the termination of industrial action instrument is made; and

(b)    ends:

(i)    21 days after that day; or

(ii)    if the FWC extends that period under subsection (4)—42 days after that day.

(4)    The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a)    all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and

(b)    those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.

10    “Protected industrial action” is defined in s 408. Relevantly, it includes industrial action organised or engaged in by a bargaining representative of an employee who will be covered by the agreement against an employer who will be covered by the agreement “for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to be only about, permitted matters” and meets certain other requirements (s 409(1)). Protected industrial action can only be taken during bargaining for a proposed enterprise agreement that is not a proposed greenfields agreement or cooperative workplace agreement.

The facts

11    ARTC is a Commonwealth government business enterprise, which operates the Australian freight rail network and is the employer of over 2,200 workers who assist in managing the transit of hundreds of passenger and freight trains across the network.

12    On 9 December 2022 ARTC issued a notice of employee representational rights to commence bargaining for a new enterprise agreement (the proposed agreement) to replace the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2019 (2019 Agreement). It is common ground that the issue of the notice marked the commencement of the bargaining process.

13    The employees covered by the proposed agreement included a small group of operational workers, being those employees defined in the 2019 Agreement as “network control employees” and “infrastructure maintenance employees”, and a larger group mostly made up of office staff.

14    The bargaining representatives for the proposed agreement were ARTC; four employee organisations and four employees, one of whom represented a cohort of eight employees including herself.

15    The four employee organisations were the Australian Municipal, Administrative, Clerical and Service Union (ASU), the Australian Rail, Tram and Bus Industry Union (RTBU); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the “Unions”); and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA)

16    The Unions served their log of claims on 5 April 2023 and ARTC served its final log of claims on 7 June 2023. ARTC did not agree to a number of the Unions’ claims.

17    Some nine bargaining meetings were held over five months, the last on 22 June 2023.

18    Between 13 and 19 June 2023 the Unions filed applications for protected action ballot orders and on 16 and 21 June 2023 the Commission made the orders.

19    All proposed forms of industrial action were endorsed in the protected action ballots.

20    On 28 June 2023 ARTC decided to put the proposed agreement to a vote of employees over the opposition of some of the bargaining representatives.

21    On 30 June 2023 the RTBU, the ASU and the CEPU served notices on ARTC of their intention to take protected industrial action. The proposed action, which was planned to start six days later, included action notified by the RTBU which consisted of an unlimited number of consecutive 72-hour work stoppages. On the day it received the notices, ARTC applied for an order under s 424 of the FW Act to terminate or suspend the proposed action.

22    On 4 July 2023 the Commission made an order terminating the protected industrial action consisting of the unlimited number of consecutive 72-hour stoppages of work for an indefinite period on the ground that it threatened to endanger the welfare of the NSW population: Australian Rail Track Corporation Limited T/A Australian Rail Track Corporation v Australian Rail, Tram and Bus Industry Union, Australian Municipal, Administrative, Clerical and Services Union [2023] FWC 1636. Although the order was limited to a particular kind of industrial action, it appears to be common ground that its legal effect was to preclude any bargaining representative from taking any further protected industrial action in support of their bargaining claims.

23    Voting on the proposed enterprise agreement took place on 6 and 7 July 2023. A majority of employees who would be covered by the proposed agreement (64%) voted in favour of it. As the agreement was a single enterprise agreement, the agreement was made on 7 July 2023 when the votes were counted and the ballot declared (FW Act, s 182(1)).

24    On 14 July 2023 ARTC applied to the Commission for approval of the agreement, in accordance with s 185(1) of the Act.

25    On 1 August 2023, the RTBU and the ASU applied for a workplace determination under s 266 of the Act to apply to ARTC and “its employees engaged as Network Control Employees (as defined in EA), Integrated Live Run Schedulers, Depot Staff, Signal Electricians, and Maintenance and Infrastructure Staff not covered by the ARTC NSW Infrastructure and Maintenance Enterprise Agreement 2022” (s 266 application). The basis for the s 266 application was described in the form in which it was lodged in the following way:

At the conclusion of the post-industrial action negotiation period, and notwithstanding the new enterprise agreement, a number of matters remained unresolved between the bargaining representatives for the purposes of section 266, namely in respect of:

a.    The scope of the proposed agreement, including the expansion into additional workgroups;

b.    Sick leave;

c.    The terms of the dispute settlement procedure;

d.    Pay rates for Civic Workgroup Leaders and Signal Workgroup Leaders’

e.    Career and pay progression for Depot and Admin Staff;

f.    Time off in lieu for work performed on a public holiday; and

g.    Long service leave.

26    On 9 August 2023 a directions hearing took place before the President of the Commission. At the directions hearing, counsel for ARTC foreshadowed that ARTC would contend that the Commission had no jurisdiction to make a workplace determination if that enterprise agreement was approved under Pt 2-4 Div 4 of the Act. The President made directions to program a hearing relating to the workplace determination but granted liberty to apply if ARTC wished to press its contention in the event that the agreement was approved.

27    The RTBU and the ASU, supported by the CEPU, raised several objections to the proposed agreement and opposed its approval. APESMA opposed approval until such time as the objections made by the RTBU and the ASU were resolved by the Commission. The objections included: that the group of employees covered by the agreement were not “fairly chosen” for the purposes of s 186(3) of the Act; that reasonable steps were not taken to explain the terms of the agreement contrary to s 180(5); that the voting window (the period between the time the ballot opened and the time it closed) was too short such that employees were disenfranchised; and that there was no genuine agreement because employees did not understand what they were voting on. But none of the Unions filed any evidence in support of their contentions or grounds of opposition.

28    No application was made to defer the hearing of the approval application or to expedite the hearing of the s 266 application.

29    On 8 September 2023 the Commission, constituted by Deputy President Boyce, conducted a hearing to deal with the objections to the approval of the agreement. In a reserved decision, published on 25 September 2023, the Deputy President rejected all the objections and, having satisfied himself that the statutory preconditions for approval had been met, approved the agreement: Re Australian Rail Track Corporation NSW Enterprise Agreement 2023 [2023] FWCA 3097. As the approval was given on 25 September 2023 and the agreement did not specify a later date, the effect of s 54(1) of the Act is that the agreement operated from 2  October 2023. In his reasons for decision Boyce DP recorded that:

The RTBU, CEPU, ASU, and APESMA, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers each of these organisations.

30    On 3 October 2023 ARTC applied to the Commission for an order that the application for an industrial action related workplace determination be dismissed for want of jurisdiction and the programming orders made on 9 August were vacated.

31    The Full Bench heard ARTC’s jurisdictional challenge on 24 October 2023 and published its decision (D) some five months later. By consent, on 5 April 2024 the Full Bench ordered that “the further progress of the respondents’ application” be stayed pending the determination of the judicial review application and any appeal.

The argument before the Full Bench

32    There was no dispute that paras (a) and (b) of s 266(1) were satisfied. The Commission’s order of 4 July 2023 terminating the protected industrial action was a “termination of industrial action instrument” within the meaning of s 266(2). The post-industrial action negotiating period started that day (s 266(3)(a)) and, as no extension of time was granted, it concluded on 25 July 2023, being 21 days after the making of the instrument (s 266(3)(b)).

33    Nor was there a dispute that the bargaining representatives for the proposed agreement had not settled all the matters that were at issue during bargaining for the agreement. On the face of things, that suggests that para (c) was also satisfied. ARTC contended otherwise because “the matters that were at issue during bargaining for the agreement” were settled by the making of the 2023 Agreement and once an agreement is made (and approved), there is no role for the bargaining representatives. The contrary argument advanced by the respondents (the ARTU and the ASU) was accepted by the majority of the Full Bench. For that reason it is convenient to refer to the majority’s reasons at this point which largely adopted the respondents’ argument.

The majority’s reasons

34    The majority (Grayson DP and Crawford C) did not accept that the making of the 2023 Agreement had the effect of settling all matters that were at issue during bargaining for the agreement. They accepted the respondents’ argument that there was no textual or contextual support for ARTC’s contention and did not accept that on an ordinary reading of s 266(1)(c) the process of employees “making” an agreement under s 182(1) has the effect that the bargaining representatives have “settled” all matters for relevant purposes (at D[75]).

35    The majority drew attention to the different legal processes with which ss 182 and 266(1)(c) are concerned (at D[70]–[72]). The majority considered that the absence of the phrase “or a new agreement made” in s 266(1)(c) was “telling” (at D[73]). The majority also considered that s 266(4) was significant as it “highlights the central role of bargaining representatives once a termination of industrial action instrument is made” and the absence of any role for employees who would be covered by the proposed agreement unless they were appointed bargaining representatives (at D[74]). The majority pointed to the “express and unambiguous” language of s 266(1)(c) which requires that “the bargaining representatives for the agreement have not settled all of the matters that were at issue…” (original emphasis) (at D[76]). The majority considered that the use of the term “bargaining representative” was significant and that the term “settled” had been deliberately used to signify how agreement is reached inter partes under s 266(1)(c), rather than the language used in s 182 which defines when an agreement is reached between an employer and the relevant employees (at D[77]). The majority noted the matters in dispute between ARTC and the respondents when the termination instrument was made and found it difficult to see how any of them had been “settled” between the bargaining representatives during the post-industrial action negotiating period that followed the making of the termination instrument when ARTC refused to meet with the respondents to discuss the outstanding matters (at D[78]). The majority remarked that, while the majority vote of the employees had the effect of making the 2023 Agreement, it did not settle the matters in dispute between ARTC and the respondents (at D[78]).

36    The majority accepted the respondents’ argument that the legislative history supported this construction (at D[81]) and that the instrument interaction rules in s 278 were consistent with it (at D[92]). They also considered that this interpretation was consistent with the overarching object of the FW Act to provide “a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians [including] by … achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action” (at D[100]).

37    The majority rejected ARTC’s submission that bargaining would have continued if the agreement had not been made on the ground that the ability of the respondents to take industrial action had been removed by the termination instrument (at D[82]–[83]). They considered that the employer’s right to request that employees vote for a proposed agreement “operates subject to the employee bargaining representatives having the right to settle issues during the post-industrial action negotiating period and to have outstanding matters arbitrated by the Commission” (at D[83]). They held that “the bargaining process between the bargaining representatives is brought to an end by the making of the order terminating industrial action” (at D[100]). They noted that ARTC had referred to the objects of Pt 2-4, but did not consider them to be “determinative” since s 266 was in Pt 2-5. They observed (at [101]):

The role of determinations is to operate in a situation where enterprise level collective bargaining has been occurring but has hit a roadblock of sufficient significance that the intervention of the Commission is required (including the suspension or termination of industrial action causing significant damage to the Australian economy, endangering life, personal health or welfare of the population or part of it, or where bargaining has become intractable) …

38    The majority accepted that the construction they favoured could “in some limited circumstances” lead to the Commission issuing a determination after an enterprise agreement had been made by employees and approved by the Commission but did not accept that that result was anomalous or unintentional (at D[104]). They also accepted that it could be considered “undemocratic” to allow a determination of the Commission to override the terms of the 2023 Agreement when the majority of employees covered by the agreement had voted in favour of it, but observed that the Act gives the Commission significant power to set terms and conditions of employment, including the power to “override the wishes of [the] majority” by deciding not to approve the agreement if the requirements of ss 186 and 187 are not met and declining to make a majority support determination if it does not considers the determination is reasonable in all the circumstances (at D[106]).

The minority view

39    Deputy President Easton’s minority opinion is neatly summarised in his reasons at D[4]:

In my view the Commission does not have any power or obligation to make a workplace determination in these circumstances. The Fair Work Act 2009 (Cth) (FW Act) confers significant rights and obligations upon bargaining representatives. Those rights and obligations only relate to the bargaining process and to the agreement approval process. The FW Act does not otherwise confer rights upon bargaining representatives that extend beyond the bargaining process. When the Australian Rail Track Corporation NSW Enterprise Agreement 2023 (2023 Agreement) was made the bargaining for that agreement necessarily ceased even though some bargaining representatives were not satisfied with the agreement made. Section 266 of the FW Act cannot be divorced from the bargaining process and does not apply after the bargaining ceases. The dissatisfied bargaining representatives cannot make an application for a workplace determination after the agreement has been made.

Jurisdiction

40    It is common ground that the content of para (c) is a jurisdictional fact, that is to say, a fact which conditions the exercise of the Commission’s jurisdiction (R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430–432 per Latham CJ) or a criterion, satisfaction of which enlivens the exercise of the statutory power (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [43] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ)). This means that if, on a proper construction of s 266(1)(c), that fact was absent, then the Commission would exceed its jurisdiction were it to proceed to make a determination; relief of the kind ARTC seeks is available; and, absent some discretionary reason for refusing it, it should be granted. As the Court is required to determine for itself whether the fact exists, no deference to the decision-maker’s finding of fact is permissible and “strictly speaking” the Commission’s finding is irrelevant: see Enfield at [39] ff and James Hutton, “Satisfaction as a Jurisdictional Fact” in Neil Williams (ed), Key Issues in Judicial Review, (Federation Press, 2014) p 57).

Principles of construction

41    The duty of a court is to give the words of a provision in a statute the meaning the legislature is taken to have intended them to have and a court construing a provision must strive to give meaning to every word in it: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]–[71], [78] (McHugh, Gummow, Kirby and Hayne JJ).

42    The task of statutory construction starts and finishes with the text but the text must be read in context: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The context includes the context of the provision in question in the statute as a whole (Project Blue Sky at [69]) and the legislative history, which may shed light on the legislative purpose, and extrinsic materials. The “context, general purpose and policy of a provision and its consistency and fairness” are said to be “surer guides” to the meaning of the provision than “the logic with which it is constructed”: Project Blue Sky at [69]: But understanding context is only useful to the extent that it assists in determining the meaning of the text, and the meaning of the text cannot be displaced by the legislative history or the extrinsic materials: Consolidated Media Holdings at [39].

43    Where different interpretations are available, the interpretation that would best achieve the purpose or object of the Act, whether or not that purpose is expressly stated in the Act, is to be preferred to every other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. As Gleeson CJ observed in Carr v Western Australia (2007) 232 CLR 138 at [5]:

That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem.

44    On the other hand, where a provision in a statute has a discernible purpose, and a literal meaning of its words does not conform” to that purpose, “it is entirely appropriate for the courts to depart from the literal meaning”: R v A2 (2019) 249 CLR 507 at [37] (Kiefel CJ and Keane J). A construction that avoids an apparently irrational or unjust result is to be preferred: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at [48] (French CJ, Hayne, Crennan and Kiefel JJ).

Consideration

45    In its analysis of the contentious paragraph, ARTC began with the text, arguing that in its ordinary meaning to “settle” a matter is to decide to resolve it. That much was uncontroversial.

46    ARTC submitted that the phrase “matters that were at issue during bargaining for the agreement” is a reference to the terms and conditions the subject of the negotiations that preceded the making of the termination of industrial action instrument. That much was also uncontroversial, at least to the extent that it was a reference to items of negotiation yet to be agreed. As the respondents submitted, however, neither of these submissions grappled with what they contended was the critical part of the text, namely, “the bargaining representatives for the agreement have not settled all the matters …”.

47    I accept the respondents’ argument that the text indicates that the question is whether the bargaining representatives for the agreement have not settled all the matters in issue during negotiations rather than whether the making (or approval) of the agreement has had that effect. There is nothing irrational or absurd about that construction once the provision is considered in context and its true purpose identified.

48    To discern the legislative purpose or intention, it is convenient to first explore the legislative history before examining the other contextual matters to see if that sheds any light on the subject.

49    The respondents’ submissions contained a helpful summary of the legislative history which, save for one matter, was uncontentious, the substance of which is largely replicated below. The summary itself appears to have been taken from the respondents’ submissions to the Full Bench of the Commission, for it begins with the following observation:

The current provisions are the product of a steady evolution in the processes by which employee terms and conditions are set, and in particular a changing conception of the role of trade unions and this Tribunal.

50    As the respondents pointed out, a limited ability for unions and employers to enter into enterprise-level (including multi-enterprise) agreements separate from the traditional award making powers (subject to the supervisory jurisdiction of a federal industrial tribunal) was introduced by the Industrial Relations Act 1988 (Cth) (IR Act). Section 115 of the IR Act gave parties to an industrial dispute the ability to apply to the Australian Industrial Relations Commission (AIRC) for certification of agreements they had reached on “the terms for the settlement of all or any of the matters in dispute”. If the AIRC was of the opinion that the agreement was in the interests of the parties subject to certain qualifications, the AIRC was required to certify the agreement unless it was of the opinion that it would be contrary to the public interest. The respondents described this as “the first tentative step toward enterprise level determination of wages and conditions, although a clear preoccupation with centralised wage fixing remained”.

51    The next step was taken with the passage of the Industrial Relations Reform Act 1993 (Cth), which made substantial amendments to the IR Act. Henceforth, awards “largely began to function as a minimum safety net of terms and conditions”. As the respondents put it, “the primary focus of the regime [became] the making and regulation of enterprise agreements”. Unlike the current regime, however, these enterprise agreements were made by the parties to an industrial dispute through the employer and the relevant employee organisations, with obligations to directly consult employees. Part VIB of the IR Act, entitled “Promoting Bargaining and Facilitating Agreements”, was inserted by the Reform Act. Part VIB Div 4 introduced the statutory concept of a “bargaining period” (s 170PD) during which protected industrial action could take place provided certain procedural requirements were met and which could be suspended or terminated by the AIRC in certain circumstances (s 170PO). If the AIRC terminated a bargaining period initiated by an organisation of employees on a ground contained in s 170PO(1)(b), the AIRC was required to immediately exercise its powers to prevent or settle the industrial dispute (s 170PP).

52    The IR Act was repealed in 1996 with the enactment of the Workplace Relations Act 1996 (Cth) (WR Act). Part VID of the WR Act provided for a new form of agreement, Australian workplace agreements (AWAs), which unlike certified agreements could be negotiated with individual employees. It was this legislation which introduced the concept of a “bargaining agent”. A new section, s 170VK provided that an employee or employer could appoint a person to be his or her bargaining agent “in relation to the making, approval, variation or termination of an AWA”.

53    When the WR Act came into force, it permitted an employer, in the absence of a pre-existing industrial dispute, to make certified agreements with organisations of employees which had at least one member in the employer’s business (s 170LJ) and directly with employees, regardless of whether they were members of a trade union (s 170LK). Section 170LK also introduced the concept of a notice of representational rights and imposed obligations on employers before making a certified agreement to “confer” with employee organisations at the request of their members. The Act maintained the concept of bargaining periods, which could be suspended or terminated by the AIRC, but expanded the circumstances in which the AIRC could do so (s 170MW). The WR Act also retained the obligation of the AIRC to exercise its powers once it terminated a bargaining period. That obligation was contained in s 170MX, the first predecessor of s 266 of the FW Act. Section 170MX provided:

(1)     This section applies if a bargaining period is terminated on the ground set out in subsection 170MW(3) or (7).

(2)     As soon as practicable, the Commission must begin to exercise the conciliation powers mentioned in section 170MY:

(a)     to facilitate the making of an agreement under Division 2 or 3; or

(b)     otherwise to settle any matter or issue that could be covered by such an agreement.

This subsection applies even if the Commission has already attempted conciliation during the bargaining period.

(3)     If, after exercising conciliation powers as required by subsection (2), the Commission is satisfied that:

(a)     the negotiating parties have not settled the matters that were at issue during the bargaining period (whether or not by making an agreement); and

(b)     it is not likely that further conciliation will result in the matters being settled within a reasonable time;

the Commission must, if it considers it appropriate, exercise the arbitration powers mentioned in section 170MY to make an award that deals with the matters.

(4)     Despite any other provision of this Act, those arbitration powers may only be exercised by a Full Bench.

(5)     In exercising those arbitration powers, the Full Bench must have regard to the following:

(a)     the matters that were at issue during the bargaining period;

(b)     the merits of the case;

(c)     the interests of the negotiating parties and the public interest;

(d)     how productivity might be improved in the business or part of the business concerned;

(e)     the extent to which the conduct of the negotiating parties during the bargaining period was reasonable;

(f)     any relevant principles formulated by a Full Bench for the purposes of this subsection.

(6)     Subsection (5) does not, by implication, limit the matters to which the Full Bench may have regard.

(Emphasis added.)

54    The immediate predecessor of s 266 was s 503 of the WR Act. It was introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (at which point it was s 113C), which commenced on 27 March 2006. Section 503 appeared in Div 8 of the WR Act, which is concerned with “workplace determinations”. Section 503 is headed: “When a Full Bench must make workplace determinations”. It provides as follows:

(1)    The Commission must make a determination (a workplace determination) under this section if:

(a)    the negotiating period has ended; and

(b)    the negotiating parties have not settled the matters at issue (whether or not by making a workplace agreement).

(2)    The workplace determination can be made only by a Full Bench.

(3)    The Full Bench must make the workplace determination as quickly as practicable after the end of the negotiating period.

(4)    For the purposes of paragraph (1)(b), the negotiating parties are taken not to have settled the matters at issue if:

(a)    the negotiating parties make a workplace agreement purporting to settle the matters at issue; and

(b)    the workplace agreement is not approved in accordance with section 340.

(5)    Workplace determinations are not legislative instruments.

(Emphasis added.)

55    Section 500 provided that Div 8 applies if a bargaining period has been terminated on the ground set out in s 430(3) or because a declaration has been made under Div 7. Section 430 imposed a duty on the AIRC to suspend or terminate a bargaining period if it [was] satisfied of one of a number of circumstances, including those described in s 430(3). They are similar, and in some respects identical, to the circumstances mentioned in ss 423 and 424 of the FW Act.

56    “Matters in issue” was defined in s 501 as “the matters that were at issue during the bargaining period”. “Bargaining period” was not defined but evidently referred to the period discernible from Div 2 of Pt 9 (Industrial Action). “Negotiating period” was defined in s 502(1) as:

the period that:

(a)     starts on the day on which the bargaining period was terminated; and

(b)     ends:

(i)    if the Commission has not extended the period under subsection (2)—21 days after that day; or

(ii)    if the Commission has so extended the period—42 days after that day.

57    So what can be made of the legislative history?

58    This legislative history is of limited assistance but it does shed some light on the meaning of the question at the heart of the present dispute — whether an industrial action workplace determination can be made after a proposed enterprise agreement has been made or approved.

59    It is apparent that the words appearing in s 266(1)(c) are derived from s 503 of the WR Act. It is difficult to know whether the draftsperson overlooked the fact that, unlike negotiating parties, bargaining representatives do not make an enterprise agreement, but it is unlikely that this was an oversight. Certainly some attention was paid to the suitability of the previous terminology because of the removal of the bracketed phrase from that appeared in s 503(1)(b) of the WR Act, which was plainly inapt to describe the activities of bargaining representatives.

60    Thus, the legislative history appears to confirm the conclusion I have independently reached, namely, that, when s 266(1)(c) refers to the bargaining representatives not having settled the matters that were at issue during the bargaining period, the legislature meant what it said. But acceptance of that proposition does not resolve the present dispute.

61    It is evident that under the WR Act the Full Bench could only make a workplace determination before a workplace agreement was made. While the FW Act did introduce major changes to workplace relations law, there is no particular reason to think that it was the intention of the FW Act to expand the powers of the Full Bench to make determinations of this nature after the making of an agreement.

62    The objects of the Act, contained in s 3, do not suggest it was. The most pertinent object is in para (f) which reads:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(f)    achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action [.]

63    Part 2-5 contains no statement of objects and the Court was not taken to any extrinsic material that would assist.

64    The respondents’ position in this regard, though eloquently argued, was based on little more than speculation.

65    The real clues to the interpretation of s 266(1) are buried in the statute itself. Thus, it is to the statutory context which I now turn.

66    On the question of statutory context, it is first necessary to understand of the role of bargaining representatives in the legislative scheme.

67    Section 266 appears in Pt 2-5 of the Act, which is entitled “Workplace determinations” and deals exclusively with that subject. As bargaining representatives are creatures of Pt 2-4, entitled “Enterprise Agreements”, their function and roles are defined by the terms of Pt 2-4. Consequently, s 266 must be read in the context of the limited roles assigned to bargaining representatives in Pt 2-4. It is that statutory context that supplies the temporal component of s 266(1)(c). Apart from its inclusion in the Dictionary in s 12, which merely refers one to various provisions in Pt 2-4, the term “bargaining representative” first appears in Pt 2-4 Div 3. Division 3, as explained in the guide to Pt 2-4 in s 169, deals with the rights of employees to be represented by a bargaining representative during bargaining for a proposed agreement, and the persons who are bargaining representatives for the agreement. Division 8 provides for the Commission to facilitate bargaining by making bargaining orders, intractable bargaining declarations, majority support determinations and scope orders. It also permits bargaining representatives to apply for the Commission to deal with bargaining disputes.

68    The objects of Pt 2-4 are set out in s 171, the substance of which reads as follows:

The objects of this Part are:

(a)    to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b)    to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i)    making bargaining orders; and

(ii)    dealing with disputes where the bargaining representatives request assistance; and

(iii)    ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

69    The Act provides for several types of enterprise agreements. The 2023 Agreement is a “single-enterprise agreement (other than a greenfields agreement)” in that it relates to an employer and its employees in a single enterprise and does not relate to a genuine new enterprise. An employer that will be covered by a proposed enterprise agreement of this kind is required to take all reasonable steps to give notice to each employee who will be covered by the agreement and is employed at the notification time for the proposed enterprise agreement (as defined) of the right to be represented by a bargaining representative (s 173). The persons who are bargaining representatives for such a proposed enterprise agreement are set out in s 176. They include employers that will be covered by the agreement; employee organisations the members of which will be covered by the agreement, and persons appointed in writing as such by employees and employers. An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment (s 178). The appointment may be revoked (by written instrument) (s 178A). As I mentioned earlier, an enterprise agreement is made when a majority of employees who are covered by the proposed agreement vote in favour of the agreement (s 182).

70    There is no provision which expressly defines the term of the appointment. That said, the obvious purpose of the appointment of a bargaining representative is to represent one or more employees or employers in bargaining for a proposed enterprise agreement. There is no apparent reason why a bargaining representative would be needed after bargaining ceases and the agreement is made and approved. It was common ground that the only roles the Act gives the bargaining representatives are representing parties during bargaining for a proposed agreement and obtaining (or raising arguments with respect to) the approval of the agreement once it is made.

71    Bargaining representatives come into existence, as ARTC put it, once they are appointed and after the enterprise bargaining process has begun. They are obliged to bargain over a proposed enterprise agreement in good faith (s 228). Where bargaining representatives are in dispute and cannot resolve the dispute themselves, they may apply to the Commission to deal with the dispute. The Commission’s role in facilitating bargaining is the subject of Div 8. A bargaining representative for a proposed enterprise agreement may apply to the Commission for a bargaining order under s 230 (s 229); an intractable bargaining declaration under s 235 (s 234); a majority support declaration under s 237 (s 236); and scope orders (s 238). A bargaining representative may also apply to the Commission to deal with a dispute about the agreement if they are unable to resolve the dispute themselves and, in the case of a single-enterprise agreement, one bargaining representative may apply irrespective of whether the other bargaining representatives agree, although the capacity of the Commission to arbitrate the dispute requires the agreement of the bargaining representatives (s 240). If a majority of eligible employees vote in favour of the proposed agreement, the bargaining representatives must submit the agreement to the Commission for approval (s 185(1)) and undertake certain ancillary procedural steps (ss 179, 185A).

72    After an agreement is made, a bargaining representative that is an employee organisation can apply to the Commission to have the enterprise agreement cover it so that it can enforce the terms on behalf of the employees covered by it (s 539(2)), but only before the Commission approves the agreement (s 183). Section 183 provides as follows:

Entitlement of an employee organisation to have an enterprise agreement cover it

(1)    After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.

(2)    The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.

Note:    The FWC must note in its decision to approve the enterprise agreement covers the employee organisation (see subsection 201(2)).

73    There is no role for a bargaining representative after an enterprise agreement is approved.

74    I respectfully disagree with the view of the majority of the Full Bench (at D[77]) that the term “settled” was deliberately used to signify how agreement is reached inter partes under s 266(1)(c) in preference to the language used in s 182 which defines when an agreement is reached between an employer and the relevant employees. As I have observed, the use of the verb “settled” is a legacy of the language in the WR Act where the equivalent of bargaining representatives settled matters in dispute during bargaining by the making of an agreement.

75    Unlike the majority, I do not consider that the absence from s 266(1)(c) of the phrase “or a new agreement made” is “telling”. Rather, I consider that the more likely explanation is that Parliament did not conceive of a role for industrial action related workplace determinations after the making and approval of a proposed agreement because it goes without saying that bargaining for a proposed agreement necessarily ceases with the making and approval of the new agreement.

76    Moreover, unlike the majority I see nothing of significance in s 266(4). That subsection (read with s 266(3)) imposes a duty on the Commission to extend the post-industrial action negotiating period, which ordinarily ends 21 days after the termination of industrial action instrument is made, for a further 21 days if all the bargaining representatives for the agreement jointly apply for an extension within the initial 21 days and “those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement”. If anything, s 266(4) supports ARTC’s case.

77    Nor do I share the majority’s opinion (at D[98]) that “a ‘bargaining period’ and a ‘negotiating period’ are two distinct creatures of the legislation and accordingly provide different roles for bargaining representatives”. “Bargaining period” is not a defined term. It appears to be retained from the predecessor provisions in the IR Act and WR Act. The expression only appears in s 235, which deals with when the Commission may make an intractable bargaining declaration as part of a broader expression of “the minimum bargaining period”. “Negotiating period” appears more frequently (in ss 235A, 269 and 274) as part of the expression “post-declaration negotiating period”, and, in s 258 (which contains the guide to Pt 2-5) and ss 266 and 267 as part of the expression “post-industrial action negotiating period”. There is no bright line between a bargaining period and a negotiating period. A bargaining period is one in which the bargaining representatives may engage in negotiations over the terms of a proposed enterprise agreement. So, too, is a negotiating period. The only difference is that protected industrial action cannot be taken in the “post-declaration negotiating period”. I accept the respondents’ submission that this “removes a significant industrial right and point of leverage”. I also accept, in substance, the respondents’ submission that an industrial action related workplace determination is the legislative quid pro quo for the removal of that right. But that begs the question about when such a determination can be made.

78    The respondents referred to s 278(1A), which is headed “Interaction with an earlier enterprise agreement” and provides that:

If:

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

(b)    a workplace determination that covers the employee in relation to the same employment comes into operation;

the enterprise agreement ceases to apply to the employee in relation to that employment, and can never so apply again.

79    The respondents submitted that, where the specified circumstances arise, s 278(1A) has the effect that the application of the enterprise agreement is “excluded” regardless of whether the enterprise agreement has reached its nominal expiry date. They argued that “[t]his expressly reflects an intention to permit workplace determinations to still be made in circumstances where a current enterprise agreement is operative, which in context must include contemplation of ones made as part of the bargaining process to which the determination is attached”.

80    It is true that s 278(1A) permits workplace determinations to be made in circumstances where an enterprise agreement is operative, even if an enterprise agreement has reached its nominal expiry date. But it does not necessarily follow that s 278(1A) reveals that Parliament contemplated that workplace determinations would be made in circumstances where not all matters at issue during the bargaining process for that agreement were settled by the bargaining representatives for an agreement which has only just been made and approved. Section 278(1A) has work to do without ascribing to it the posited intention. Bargaining for a new enterprise agreement may begin before the nominal expiry date of the enterprise agreement it is proposed to replace. Indeed, that is precisely what occurred in the present case. Bargaining for the 2023 Agreement commenced six months before the nominal expiry date for the 2019 Agreement. Section 266 plainly applies in circumstances where a majority of eligible employees do not vote in favour of the proposed agreement. It would also apply in circumstances in which the conditions in s 266(1)(a) and (b) are satisfied but the proposed agreement has not been put to a vote. If a workplace determination is made in either of those circumstances, any enterprise agreement the proposed agreement was intended to replace would cease to apply to the employees it covered and the workplace determination would take its place. In the former case, bargaining for the proposed agreement could resume. In the latter case, there is no reason why bargaining for a new enterprise agreement could not begin immediately thereafter.

81    I return to the text of s 266.

82    As Easton DP observed at D[48] of the decision, the only matters that can be “at issue” during the post-industrial action bargaining period are matters about a proposed agreement, and the only matters that can be “settled” are matters about a proposed agreement. Once a majority of the eligible employees votes in favour of the agreement and the agreement is made and approved, it is no longer a proposed agreement. I also respectively agree with Easton DP that, while some of the bargaining representatives might not have been satisfied with the terms of the 2023 Agreement and some of the issues they raised during the bargaining process might not have been settled before then, the bargaining representatives have no capacity to settle matters that remain in issue after the agreement was made (at D[49], [53]).

83    Bargaining for a proposed enterprise agreement ends with the making of the agreement. Among the factors the Commission is required to take into account in deciding which terms to include in a workplace determination are “incentives to continue to bargain at a later time” (s 275(h)). That is a strong textual indication that the legislature did not intend that industrial action related workplace determinations were to be made after the proposed agreement is made and approved and before bargaining for a new enterprise agreement begins.

84    For these reasons I am of the opinion that, properly construed, the phrase in s 266(1)(c) — “the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement” — means that the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the proposed agreement by the end of the post-industrial action negotiating period and before the approval of the enterprise agreement.

Conclusion

85    The Commission does not have jurisdiction under s 266 to make an industrial action related workplace determination because the Commission’s jurisdiction was spent once the proposed agreement was made and approved.

86    Accordingly, writs of certiorari and prohibition should be issued to quash the decision of the Full Bench and prohibit it from proceeding to exercise that jurisdiction.

87    There should be no order as to costs.

Associate:

Dated:    20 December 2024

REASONS FOR JUDGMENT

SNADEN J:

88    I have been fortunate to have read in draft the reasons of Katzmann J. I respectfully agree with the orders that her Honour proposes and am generally in agreement with the reasons for which she proposes them. I wish to add to them only marginally.

89    The sole issue for the court’s consideration concerns the proper construction of s 266(1)(c) of the Fair Work Act 2009 (Cth) (the “FW Act”); more specifically, whether, at the conclusion of the “post-industrial action negotiating period” that was here triggered by the making of a “termination of industrial action instrument”, there remained “matters that were at issue during bargaining” that “the bargaining representatives for the agreement [had] not settled”.

90    The question arises upon an unusual sequence of events. That sequence began with the commencement of bargaining in late 2022 as to the terms of an enterprise agreement that was proposed to be made under pt 2-4 of the FW Act. That bargaining transpired as between the applicant employer (“ARTC”) and various “bargaining representatives” of its employees, including the first and second respondents (collectively, the “Unions”).

91    As is laid out more fulsomely in Katzmann J’s reasons, that bargaining was attended by a proposal that ARTC’s employees (or at least some of them) would partake of protected industrial action, which led the third respondent (the “Commission”) to make an order under s 424 of the FW Act (hereafter, the “s 424 Order”). That order qualified as what s 266(1) of the FW Act refers to as a “termination of industrial action instrument”: FW Act, s 266(2). Thereupon, the bargaining parties entered what s 266(3) of the FW Act refers to as a “post-industrial action negotiating period”.

92    A few days prior to the making of the s 424 Order, ARTC had advanced a proposed enterprise agreement for the approval of its relevant employees (some of whom were amongst those for whom the Unions acted as bargaining representatives). Despite the Unions’ counselling against it, that approval was given and the agreement was thus “made”: FW Act, s 182(1). That (the making of the agreement) occurred a few days after the s 424 Order was made; that is to say, after the commencement of the post-industrial action negotiating period. The enterprise agreement thus made (hereafter, the “2024 EA”) was later the subject of an application for approval by the Commission (the “Approval Application”), which—again, over the objection of the Unions—was granted.

93    On 1 August 2023—after the Approval Application was made but before it succeeded—the Unions petitioned the Commission to make what pt 2-5 of the FW Act refers to as a “workplace determination”. They did so on the footing that the statutory criteria that mandate the making of an “industrial action workplace determination” were existent. One of those criteria—expressed in s 266(1)(c) of the FW Act—is that “the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement”.

94    For reasons neither known nor material, the Commission did not speedily proceed to make a workplace determination as the Unions had requested (and, indeed, it still has not done so, the parties having agreed that no further steps should take place until the present application is determined). That was so despite the aspiration recorded at the conclusion of s 266(1) of the FW Act (namely, that a determination ought to be made “as quickly as possible” after the end of the post-industrial action negotiating period). Instead, the Commission progressed more speedily with the Approval Application (which succeeded in September 2023).

95    A few days after the Commission allowed the Approval Application, ARTC applied for an order to dismiss the Unions’ request of 1 August 2023 that the Commission make a workplace determination. That application (the “Jurisdictional Objection”) was made upon the footing that the Commission lacked jurisdiction to make such a determination because, from the point that the 2024 EA was made, bargaining had ceased and there were no longer any matters that were at issue.

96    As s 616(4) of the FW Act contemplates, the Jurisdictional Objection came before a full bench of the Commission. By majority (Grayson DP and Crawford C), the Commission dismissed it. As Katzmann J does, I consider that it was wrong to do so; and, moreover, wrong in a way that attracts prerogative relief of the kinds for which ARTC moves. That relief should be granted.

97    In order that it might be said, upon the conclusion of a post-industrial action negotiating period, that there remain matters unsettled by the bargaining representatives that were at issue during bargaining, it must first be the case (as it almost inevitably will be) that bargaining for a proposed enterprise agreement has not, to that point, concluded. Insofar as the FW Act speaks of “bargaining for the agreement”, that can only be understood as a reference to the efforts of bargaining representatives to negotiate terms for inclusion within a proposed enterprise agreement; and, more specifically, to efforts engaged in between the point in time that bargaining for such an agreement commences and the point in time that it ceases. Logically, a matter will, at any given point, be “at issue during bargaining” only insofar as it is identifiable as something that has been advanced but not agreed for inclusion within a proposed enterprise agreement (which is to say, an agreement not yet made).

98    Necessarily, then, if at the conclusion of a post-industrial action negotiating period, bargaining for a proposed enterprise agreement has concluded—whether because an actual agreement has been made or because bargaining representatives have agreed that they no longer wish to continue bargaining—there can be, at that point, no matters that were at issue during bargaining that remain for the bargaining representatives to settle.

99    The Unions seek to counter that proposition by emphasising what is said to be the role that s 266(1)(c) assigns exclusively to bargaining representatives. To avoid the making of an industrial action related workplace determination, it is not, they submit, sufficient to show that matters at issue during bargaining were settled; what must be shown is that they were settled by the bargaining representatives. In circumstances where, as here, there were matters to which bargaining representatives did not agree (notwithstanding the collective agreement of the group that included those for whom they acted as bargaining representatives), it should follow that the criteria outlined by s 266(1)(c) of the FW Act is satisfied.

100    There can be no doubt that the words in which s 266(1)(c) is couched are capable of supporting the construction for which the Unions contend (and with which the Commission, by majority, agreed). Nonetheless, to construe the section in that way is to assign to it a meaning that is inconsistent with the context within which it appears and the broader statutory scheme of which it is part.

101    As to the latter—and as counsel for the Unions properly conceded—the FW Act discloses an unmistakable preference for wage outcomes that are bargained over wage outcomes that are arbitrated. As much is reflected in the place that enterprise agreements assume within the hierarchy of workplace instruments that are able to be made under the FW Act; and, particularly, in their elevation above modern awards (FW Act, s 57). That, of course, reflects a broader objective of the FW Act, expressed in s 3: being the promotion of economic prosperity and social inclusion by (amongst other things) “…achieving productivity and fairness through an emphasis on enterprise-level collective bargaining…”.

102    It is also reflected in the way that workplace determinations yield to enterprise agreements made later in time. Section 278(1) of the FW Act holds that a workplace determination will yield—which is to say, will cease to “apply” in respect of a given employee (and in relation to his or her particular employment)—in circumstances where an enterprise agreement covering that employee (in relation to that employment) comes into operation. Whereas the application of an enterprise agreement is (subject to exceptions) guaranteed at least until it reaches its nominal expiry date (FW Act, s 58(2)), the application of a workplace determination may be comparatively short-lived, no matter how far into the future it is expressed nominally to expire.

103    The construction favoured by the Unions (and by the majority of the Commission) would, at least in the highly unusual circumstances of this matter, invert that reality, in that it would subordinate the application of a recently-made, in-term collective bargain to that of an arbitrated workplace determination. There is nothing in the text or context of the FW Act to suggest that that is a consequence that s 266(1)(c) was intended to accommodate.

104    As to that, the Unions refer to s 278(1A), which contemplates that a workplace determination should apply in preference to an otherwise applicable enterprise agreement that is in force at the point that it (the determination) is made. That is consistent with the course that they hope here to chart; and serves, so they submit, as relevant context that should aid in supporting the construction of s 266(1)(c) that they advance. There is nothing in s 278(1A) of the FW Act that limits the expressed preference for workplace determinations to enterprise agreements that have nominally expired.

105    The point is not without attraction: if the parliament had intended that a workplace determination should apply in preference to an operative (and applicable) enterprise agreement only if the latter’s nominal expiry date had passed, it could have said so. That is true, so far as things go. But it is abundantly clear that the purpose animating the inclusion of s 278(1A) was to plug a gap established by s 279. That (latter) section provides that, subject to exceptions, the FW Act applies to operative workplace determinations in the same way as it applies to operative enterprise agreements. One such exception, however—established by s 279(2)(d)—is s 58, which deals with the way in which enterprise agreements interact with each other.

106    Section 58(1) of the FW Act provides that only one enterprise agreement can apply to a particular employment situation at any given time. Where multiple operative enterprise agreements cover the same employment situation, s 58(2) provides for the application of the one that was made earliest in time and that has yet to pass its nominal expiry date.

107    Prior to the insertion of s 278(1A) in 2023—which is to say, for the 14 years that the FW Act operated without it—there was no provision explaining how workplace determinations should interact with enterprise agreements that were in force at the time that they were made. Thus, where the Commission terminated protected industrial action taken (as it almost always is) in support of a proposed enterprise agreement that was to replace an existing agreement—which, in that circumstance, necessarily had to have passed its nominal expiry date—the FW Act made no provision for how (or even whether) the resultant workplace determination should apply in preference to that existing instrument.

108    Section 278(1A) rectified that oversight. The fact that it does not, by its terms, refer specifically to enterprise agreements that have passed their nominal expiry date far more likely reflects that, in virtually every conceivable case (but, remarkably, not in this one), the only enterprise agreement having application at the point that a workplace determination is made will be the expired one that the parties had hoped to replace. Particularly given the speed with which s 266(1) of the FW Act contemplates that a workplace determination should be made, it is unlikely in the extreme that that failure to advert in s 278(1A) specifically to expired agreements reflects some parliamentary acknowledgment that workplace determinations should apply to the exclusion of agreements that have application in the highly unusual circumstances of this case: namely, ones that were made over the objection of some bargaining representatives after protected industrial action was terminated, and that were approved and became operative before any workplace determination was progressed.

109    What is meant, then, by the reference in s 266(1)(c) of the FW Act to the existence, at the expiry of a post-industrial action negotiating period, to matters that were at issue during bargaining that the bargaining representatives are yet to settle? Should it be understood to contemplate no more than that there remain at that point bargaining matters that are at issue; or does it go further and contemplate not merely the removal from those who are to be covered by a proposed agreement of their right to self-determine its terms but also the subordination of their wishes in that regard to those of their bargaining representatives (and, as in this case, the bargaining representatives of the minority that opposed the agreement’s making)? Does it conform to the statutory right of employees and employers to make enterprise agreements over the objection of their bargaining representatives; or does it effectively confer upon bargaining representatives some elevated right of veto?

110    In the absence of a very clear expression of legislative intent that it should be the latter, the former aligns much more effortlessly with the objectives of the statutory architecture of which s 266(1) forms part and should, thus, be preferred.

111    Respectfully, the Commission’s conclusion that it has jurisdiction under the FW Act to make an industrial action related workplace determination in the circumstances that this matter presents was wrong. It was accepted that any such error would be material and, therefore, one of jurisdiction; and that its correction here would warrant the grant of prerogative relief. I respectfully agree with the orders that Katzmann J proposes.

Associate:

Dated:    20 December 2024