Federal Court of Australia

Central Goldfields Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2025] FCAFC 59

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 17 January 2025 be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 27 November 2024, the third respondent (the “Commission”) made what is known as a single interest employer authorisation under div 10 of pt 2-4 of the Fair Work Act 2009 (Cth) (the “FW Act”). That authorisation (the “SIEA”) binds the present applicant (“CGSC”) and the second respondent, both of which are local government entities established by the Local Government Act 2020 (Vic). The Commission made the SIEA on the application of the first respondent (the “ASU”), which is an organisation of employees that is registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth), whose members include a number of CGSC’s employees.

2    By an originating application filed in this court on 17 January 2025, CGSC moves for relief under s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”); principally for prerogative relief to have the SIEA removed into this court and quashed. For the reasons that follow, that relief should not be entertained and the originating application should be dismissed.

Background

3    CGSC read two affidavits in support of its application, each sworn by solicitors. The first contained the relevant record of the proceeding before the Commission. The second—an affidavit sworn on 18 March 2025 by Ms Lindy Christine Richardson—deposes to the issuing of notices under s 78B of the Judiciary Act to the attorneys-general of the states and the Commonwealth. It will be necessary to return to that affidavit shortly; but, in the meantime, the following matters of relevant background emerge without controversy from the record of the proceedings before the Commission.

4    The Central Goldfields Shire is located in central Victoria. In the course of administering it, CGSC has had occasion to engage employees, including some whose engagement suffices to make them eligible for membership of the ASU. Since 1996, it has been party to—indeed, the sole employer party to—enterprise-level agreements made with its employees or their representatives.

5    Since 2009, those instruments have been negotiated and made pursuant to pt 2-4 of the FW Act. Until relatively recently, pt 2-4 of the FW Act made only limited provision for the making of enterprise-level agreements that could cover multiple employers. That changed in 2023, when the Commonwealth enacted the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). That enactment brought into being a range of provisions that include those upon which the ASU’s application to the Commission was founded. Their apparent and intended effect is to facilitate the compelling of multiple and otherwise unrelated employers to engage in enterprise-level bargaining as though a collective.

6    Seeking to capitalise on those provisions, the ASU made an application to the Commission on 2 July 2024 for what ultimately became the SIEA. Attention will shortly turn to the statutory framework that underpinned that application. For now, it suffices to note that the matter came before a full bench of the Commission, which, on 27 November 2024, resolved to make the SIEA: Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council [2024] FWCFB 444 (hereafter, the “Commission’s Decision”; Gibian VP, Clancy DP, Connolly Commr).

7    The SIEA took effect on that day (27 November 2024). It contemplated “…a proposed enterprise agreement to cover the employers and employees as specified [therein]”. CGSC was one such employer. By its terms, the SIEA’s effect would cease upon the earlier of the making of the proposed enterprise agreement or on 27 November 2025 (or a later date, if any extension thereto were granted).

8    CGSC filed the present application on 17 January 2025. Not long thereafter, it filed a separate interlocutory application, by which it sought to expedite the hearing of the matter. Plainly, that course was accommodated; and the matter was made the subject of a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth), whereby the court’s jurisdiction to hear it fell to be exercised by a full court.

The statutory framework

9    Part 2-4 of the FW Act is entitled “enterprise agreements”. Excepting definition and object sections, it commences with s 172, which authorises the making of agreements about certain employment-related matters. It provides for various types of agreement; but the type of present significance is the one for which s 172(3) makes provision. That subsection permits two or more employers to make a “multi-enterprise agreement”: that is, an enterprise agreement with those of their employees who are proposed to be “covered” thereby (that statutory conception of coverage is the subject of provision located elsewhere in the FW Act and can be ignored for present purposes).

10    Section 172(5) of the FW Act applies if a single interest employer authorisation operates in respect of a proposed enterprise agreement. In that circumstance, the employers to whom the proposed enterprise agreement (and the authorisation) relates are prohibited from making any enterprise agreement other than a multi-enterprise agreement.

11    Single interest employer authorisations are the subject of div 10 of pt 2-4 of the FW Act. Of present significance are ss 248 and 249, which relevantly provide as follows:

248 Single interest employer authorisations

(1)    The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:

…

(b)    a bargaining representative of an employee who will be covered by the agreement.

…

249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

(1)    The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a)    an application for the authorisation has been made; and

(b)    the FWC is satisfied that:

…

(v)    the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

…

…

Common interest employers

(3)    The requirements of this subsection are met if:

…

(b)    it is not contrary to the public interest to make the authorisation.

…

(3AB)    If:

(a)    the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b)    an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

…

Operation of authorisation

(4)    The authorisation:

(a)    comes into operation on the day on which it is made; and

(b)    ceases to be in operation at the earlier of the following:

(i)    at the same time as the enterprise agreement to which the authorisation relates is made;

(ii)    12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

12    The references in pt 2-4 of the FW Act to “employer[s]” are references to what the FW Act defines as “national system employer[s]”: FW Act, s 170. Division 3 of pt 1-2 of the FW Act sets out what is and is not a “national system employer”. For the most part, s 14(1) of the FW Act (which is within that division) defines the concept in a way that traces the limits of Commonwealth legislative power.

13    Division 2A of pt 1-3 of the FW Act extends the act’s operation throughout the states that, prior to 1 July 2009, referred to the Commonwealth certain legislative powers under s 51(xxxvii) of the Constitution. Section 30D of the FW Act (which is within div 2A) provides as follows:

30D Extended meaning of national system employer

(1)    A national system employer includes:

(a)    any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and

(b)    a holder of an office to whom subsection 30E(2) applies.

(2)    This section does not limit the operation of section 14 (which defines a national system employer).

Note:    Section 30H may limit the extent to which this section extends the meaning of national system employer.

14    Section 30B of the FW Act identifies what is and is not a “referring State”. It is not presently in doubt that Victoria is one such state, a reality that arises from its passage in June 2009 of the Fair Work (Commonwealth Powers) Act 2009 (Vic). By that enactment (the “Referral Act”), Victoria referred to the Commonwealth its powers to legislate with respect to, amongst other things, “…[(1)] terms and conditions of employment, including…terms and conditions of employment contained in instruments (including instruments such as awards, determinations and enterprise-level agreements) [and (2)] bargaining in relation to terms and conditions of employment”: Referral Act, s 4(1).

15    The Referral Act was amended with effect from 1 January 2010. Although the referred subject matters were not altered (at least not in any way that bears upon this application), the amendments nonetheless introduced what remains now as s 3A, which provides (and provided) as follows:

3A Fundamental workplace relations principles

The following are the fundamental workplace relations principles under this Act—

(a)    that the Commonwealth Fair Work Act should provide for, and continue to provide for, the following—

(i)    a strong, simple and enforceable safety net of minimum employment standards;

(ii)    genuine rights and responsibilities to ensure fairness, choice and representation at work, including the freedom to choose whether or not to join and be represented by a union or participate in collective activities;

(iii)    collective bargaining at the enterprise level with no provision for individual statutory agreements;

(iv)    fair and effective remedies available through an independent umpire;

(v)    protection from unfair dismissal;

(b)    that there should be, and continue to be, in connection with the operation of the Commonwealth Fair Work Act, the following—

(i)    an independent tribunal system;

(ii)    an independent authority able to assist employers and employees within a national workplace relations system.

16    The same amending legislation also introduced s 7A into the Referral Act, which stipulates minimum periods that must transpire before Victoria can revoke what it has referred. Section 6(1) of the Referral Act contemplates (amongst other things) the revocation of the “amendment reference”, which is earlier defined in a way that, for the purposes of s 51(xxxvii) of the Constitution, authorises the Commonwealth Parliament to enact amendments to the FW Act that are about the matters already referred. Section 7A(1) of the Referral Act provides, subject to subsection (2), that the revocation of that reference can take effect no less than six months after it is proclaimed. Section 7A(2) authorises a shorter minimum period of three months if the Governor in Council is minded to declare that the FW Act is proposed to be or is amended “…in a manner that is inconsistent with one or more of the fundamental workplace relations principles…”

The Commission’s decision

17    The present application focuses upon the requirement established by s 249(1)(b)(v) and (3)(b) of the FW Act (namely, that it not be contrary to the public interest to make a single interest employer authorisation). It is convenient to limit the consideration of the Commission’s Decision to the extent that it touched upon that question.

18    Beneath the heading, “Is it not contrary to the public interest to make the authorisation?”, the Commission began its analysis by noting the “combined effect of ss 249(1)(b)(v) and 249(3)(b)” of the FW Act, namely that (Commission’s Decision, [67]):

…for the obligation to make an authorisation to arise, the Commission must be satisfied that it is not contrary to the public interest to do so. Where an employer employed 50 employees or more at the time the application was made, s 249(3AB) means that it is presumed that the requirements of subsection (3) are met, unless the contrary is proved. This includes the public interest requirement in s 249(3)(b).

19    Noting that both of the employers against which the ASU’s application had been brought employed more than 50 employees, the Commission next acknowledged that it was for the employers to establish (if they sought to contend) that it would be contrary to the public interest for the authorisation to be made. The Commission observed (Commission’s Decision, [69]-[72], references omitted):

[69]    It has long been recognised that the expression “in the public interest” imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”. In which direction the public interest points may not be easy to discern. Ascertainment in any particular case of where the public interest lies may require a balancing of countervailing public interests. In Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393, for example, Mason CJ, Wilson and Dawson JJ said (at 395):

… Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute initiated by the E.T.U.’s log of claims. The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction if that course was likely to maintain the marked improvement in industrial relations in the industry that had occurred since the dispute arose and thereby contribute to industrial peace and an efficient power supply.

[70]    In identifying matters that may be relevant to an assessment of the public interest, a distinction is often drawn between matters affecting the public interests and the private interests of the parties. In Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, the Full Bench explained (at [23]):

The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them

[71]    The distinction between matters that affect the public interest as opposed to the private interests of the parties will often not be clear. A consideration may affect both the interests of the public at large and the interests of one of more of the parties to the proceedings. The interests of the public might also be affected as a result of the impact of an authorisation on one of the parties. The assessment of whether the making of an authorisation is contrary to the public interest will depend, very much, on the facts of a particular case.

[72]    Section 249(3AB), when it is applicable, means it must be proved that there is some consequence that would result from making an authorisation that could lead to the conclusion that it is contrary to the public interest to do so. Of course, the identification of one consideration or consequence of making an authorisation that might be said to be contrary to the public interest may not be sufficient. It will, in such a case, be necessary to assess the whole of the facts and circumstances to determine whether, as a whole, it had been proved that making an authorisation would be contrary to the public interest.

20    The Commission was then careful to rehearse the matters that CGSC had advanced in support of its contention that it would be contrary to the public interest for it to make the authorisation. Four such matters were raised and all were separately addressed. For present purposes, it is convenient only to focus upon the second such matter, which the Commission summarised and addressed as follows (Commission’s Decision, [81]-[86], references omitted):

[81]    The second reason advanced by Goldfields Council is that making a single interest employer authorisation would be contrary to the fundamental workplace relationship principles set out in the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector made in 2009 (the National Agreement) and the Fair Work (Commonwealth Powers) Act 2009 (Vic) (the Referral Act)…

[82]    The same two principles are set out at clause 1.2 of the National Agreement which records that the parties acknowledge that the “National Workplace Relations System” will be built on those principles, amongst others.

[83]    The direct relevance of the fundamental workplace relations principles is dependent on Goldfields Council being a national system employer only by reason of the referral of powers by Victoria. A local council in Victoria is a body corporate. Whether it is a “constitutional corporation” for the purposes of the Act in that it is a “trading or financial corporation” requires the application of the “activities test”. The outcome of the application of that test to local government has been mixed, and there is at least some uncertainty in relation to that question in any particular case. No evidence was before the Full Bench in this matter which would permit the application of the activities test. Goldfields Council relied on the statement of agreed facts which recorded that it is covered by the Victorian Local Government Award 2015 which only covers a “State reference public sector employer”.

[84]    That appears to us to be an unsatisfactory basis to determine the constitutional status of Goldfields Council. Fortunately, however, it is not necessary to resolve that question. Even accepting that Goldfields Council is covered by the Act only by reason of the referral of powers by Victoria, the fundamental workplace relations principles do not, in themselves or together with other considerations, suggest that it would be contrary to the public interest to make the authorisation.

[85]    The ACTU submitted, and we accept, that only operative effect of the fundamental workplace relations principles in the context of the Referral Act is that Victoria may withdraw its referral of powers to the Commonwealth on three months’ notice instead of six months’ notice if the Act is amended in a manner that is inconsistent with the principles. That demonstrates that the fundamental workplace relations principles could not provide a basis to construe the Act itself or limit the manner in which the Commission exercises its powers or discretions under the Act. The remedy, if powers are conferred on the Commission the exercise of which would be inconsistent with the fundamental workplace relations principles, is that Victoria could withdraw its referral. The principles do not justify the Commission exercising its powers in a manner other than as required by the terms of the Act itself.

[86]    In any event, the two principles relied upon do not support a finding that it would be contrary to the public interest to make the authorisation. The principle referred to in s 3A(a)(ii) of the Referral Act refers to principles of freedom of association and the protection of the rights of individuals to join and be represented by a union and participate in collective activities. The making of a single interest employer authorisation does not affect the principles of freedom of association. The principle referred to in s 3A(A)(iii) of the Referral Act refers to the Act providing for collective bargaining at the enterprise level. For the reasons set out above with respect to the relevance of the object of the Act and the objects of Part 2-4, that principle does not suggest, as a general matter, that it is contrary to the public interest to make a single interest employer authorisation in any particular case.

21    Ultimately, the Commission recorded its conclusion as to whether or not the making of the SIEA would be contrary to the public interest (Commission’s Decision, [92]):

…we are not satisfied that the reasons relied upon by Goldfields Council, individually or taken together, prove that it is contrary to the public interest to make the authorisation sought by the ASU. The presumption in s 249(3AB) has not been displaced. Accordingly, we are satisfied that it is not contrary to the public interest to make the authorisation for the purposes of s 249(3)(b) of the Act.

The present application

22    The present application proceeds upon two grounds, which find expression as follows in CGSC’s affidavit material (specifically paragraphs 5-7 of the affidavit of Ms Kirsten Sullivan, sworn 17 January 2025):

Ground 1

5.    The Commission misunderstood the nature of the task that it was required to perform as set out in ss 249(1)(b)(v) and 249(3)(b) of the Fair Work Act 2009 (Cth) (FW Act): see in particular D[79]. The public interest criterion in s 249(3)(b) required the Commission to engage in a balancing or weighing exercise of all matters before it which may and may not suggest that a single interest authorisation would be contrary to the public interest: see D[69] (and the authority quoted therein). The Commission did not perform this balancing or weighing exercise. The presumption in s 249(3AB) did not change the nature of this exercise, it only placed a persuasive onus on Council to demonstrate that a single interest authorisation was contrary to the public interest once all matters before it were balanced against one another.

Ground 2

6.    In purporting to perform the task set out in ss 249(1)(b)(v) and 249(3)(b) of the FW Act, the Commission erred in its consideration of the fundamental workplace relations principles in ss 3A(a)(ii) and (iii) of the Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act): see in particular D[85]-[86]. The error was in the Commission's construction of the effect of these fundamental workplace relations principles: it was an error to read down principle (ii) to only refer to “principles of freedom of association” (D[86]), and an error to read principle (iii) as if it referred to collective bargaining at common-interest level, in addition to bargaining at an enterprise-level.

7.    Properly construed, the fundamental workplace relations principles are to the effect that the FW Act should provide Council a choice as to whether it engages in collective bargaining with other employers operating other enterprises, and the employees performing work for those employer at the other enterprises.

Ground one: failure to weigh considerations

23    CGSC’s first challenge to the Commission’s Decision rests upon its assertion that the Commission misunderstood how it was properly to assess whether or not the making of the SIEA would be contrary to the public interest. The Commission’s error is said to have inhered in its search for “some consequence that would result from making an authorisation that could lead to the conclusion that it is contrary to the public interest to do so”: Commission’s Decision, [72]. CGSC maintains that, instead, the Commission ought to have weighed the various considerations that were said to have borne upon whether or not the making of the authorisation was or was not in the public interest.

24    By its written submissions filed in support of the application, CGSC maintained as follows (references omitted):

The Full Bench appears to identify its duty to conduct this balancing exercise at DB[69] and [72], but the reasoning that follows (and the test that it erected) makes clear that it did not engage in this exercise. The Full Bench’s task was not one of merely considering and then dismissing the Council’s arguments in a vacuum because they did not create “some consequence.”

The High Court considered the notion of “public interest” in federal industrial law in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393. At issue was the Conciliation and Arbitration Commission’s discretionary power to decline to deal with an industrial dispute, if dealing with it was “not necessary or desirable in the public interest”. Mason CJ, Wilson and Dawson JJ identified that this criterion required a balancing exercise to be undertaken (at 395):

[“]Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute … The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction.”

Brennan J (dissenting in the result) likewise found the public interest criterion as requiring “the balancing of competing public interests” (at 397). Justice Deane (concurring in the result) also found (at 400): “[the Commission’s] ultimate decision to refrain from a further hearing of that part of the dispute was reached as a result of a weighing process involving a number of identified public interest considerations.”

In short, every member of the High Court agreed that a public interest criterion in federal industrial law requires the balancing or weighing exercise. There is no reason to doubt that this balancing test has not been re-enacted in the criterion found in s 249(3)(b) of the FW Act. Indeed, and given the specialised and politically sensitive field that is industrial relations, it is “no fiction” to attribute the drafter of s 249(3)(b) with the knowledge of the High Court’s ruling in Re Queensland Electricity Commission, and it would be an “astonishing” proposition to say that the draftsperson was unaware of it.

25    As CGSC freely conceded, the Commission was alive to the High Court’s observations in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393. Indeed, it referred to them expressly (at [69]) after recognising that the “[a]scertainment in any particular case of where the public interest lies may require a balancing of countervailing public interests”. That notwithstanding, CGSC maintains that the Commission proceeded, instead and in error, to engage in a search for “some consequence” that could have supported the conclusion that CGSC urged it to draw. That, so CGSC maintains, involved the application of a different test to that which the High Court endorsed in Re Queensland Electricity Commission.

26    The Commission’s error, as CGSC casts it, was said to have been material, because, had it conducted its analysis consistently with the manner that the authorities contemplate—which is to say, had it weighed the various considerations holistically instead of indulged its search for “some consequence” that reflected contrariety to the public interest—it might well have accepted that the making of the authorisation would have been contrary thereto.

27    We do not accept that the Commission’s reasoning can fairly be impugned in the way that CGSC seeks to impugn it. It is plain that the Commission appreciated that its assessment of whether the making of the SIEA might be contrary to the public interest required the weighing of factors that tended each way. It said so twice: initially at [69] and again in the concluding words of [72] of its decision. There is nothing about its recognition of a need to identify “some consequence” capable of supporting a conclusion that the making of the SIEA was contrary to the public interest that is inconsistent with that.

28    Particularly is that so given the import of s 249(3AB) of the FW Act. As the Commission observed, that section served here to establish a rebuttable presumption that it would not be contrary to the public interest to make the SIEA. Necessarily, then, contrariety to the public interest required that there be something capable of rebutting that presumption; in other words, something “…that could lead to the conclusion that it [would be] contrary to the public interest” to make the authorisation. Absent the identification of some consequence arising from the making of an authorisation that was inimical to the public interest, the presumption established by s 249(3AB) of the FW Act could not have been rebutted.

29    That was the basis upon which the Commission conducted its public interest assessment and there was no error in its proceeding in that way.

30    Having so concluded, no issue of materiality arises. Nonetheless, we should wish to address what was said on that score, if only at a headline level. It is trite to observe that any error affecting the Commission’s “public interest” assessment will fall short of jurisdictional error that warrants prerogative relief if there is no realistic prospect that the Commission’s Decision could have been different had it not been committed: Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 103 [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), 107-8 [46] (Gageler J).

31    The only considerations that were said to weigh in favour of the view that the making of the SIEA would be contrary to the public interest were the four considerations that CGSC advanced (to which repeated reference has already been made). The Commission considered all of them and, as to each, concluded that they did not support a conclusion that the making of the SIEA would be contrary to the public interest. That the Commission didn’t consider them holistically, or weigh them as against considerations that might have tended in the other direction, is not obviously a matter of any significance. If none of the matters that CGSC advanced was sufficient; and if there were no others that were said to warrant the conclusion for which it had agitated, then it is, to say the least, difficult to see how the Commission might have been minded to form a different view about contrariety to the public interest had it engaged in what is said to have been the correct mode of analysis.

32    That being the case, the prospect that the decision might have been different but for the error that CGSC alleges does not obviously strike as “realistic”, even on the “undemanding” standard of “reasonable conjecture” that assessments of materiality involve.

33    For obvious reasons, it is unnecessary to say any more than that. CGSC’s first ground of challenge to the Commission’s Decision is not made good.

Ground two: the fundamental workplace relations principles

34    By its second ground of challenge, CGSC maintains that the Commission misunderstood the significance to the public interest of the “fundamental workplace relations principles” established by s 3A of the Referral Act.

35    A matter of some significance to that ground is the factual assertion that CGSC is a “National System Employer” only by operation of div 2A of pt 1-3 of the FW Act (and, in particular, s 30D(1)). It will be necessary later to return to that proposition. In the meantime, it suffices for the purposes of understanding what is advanced to presume that CGSC is such an employer (hereafter, a “Referral-only Employer”).

36    CGSC maintains that the Commission wrongly failed to appreciate that the “fundamental workplace relations principles” for which s 3A of the Referral Act provides serve as a constraint upon what the Commonwealth is at liberty to legislate with respect to employers that, in the absence of referrals under s 51(xxxvii) of the Constitution, its legislative powers would not otherwise be competent to bind. Specifically, it is put that s 3A of the Referral Act operates as a bar upon the enactment of laws that authorise measures that serve to prevent the right of Referral-only Employers in Victoria to choose whether or not to participate in collective activities. That, it is said, is a matter that ought to have inclined the Commission to the view that the making of the SIEA would have been contrary to the public interest.

37    Before the Commission, CGSC did not submit that there was any want of power to make the SIEA under the FW Act. Instead, it maintained that such power as did exist ought not to (indeed, could not) be exercised because the result would be contrary to the public interest. That was said to be so because the making of the SIEA was inherently offensive to the “fundamental workplace relations principles”.

38    Before this court, CGSC went somewhat further to suggest that the “fundamental workplace relations principles” serve to constrain the legislative powers that the Referral Act bestows upon the Commonwealth Parliament; and that, absent consent, the FW Act does not—indeed, could not—authorise the making of a single interest employer authorisation upon a Referral-only Employer. Perhaps it was for that reason that CGSC was minded to serve notices under s 78B of the Judiciary Act (above, [3]); although, at the hearing of the application, it was conceded that they were not strictly necessary.

39    There are a number of ways to address the contentions that CGSC advances. First (and at the most basal factual level), it is not established that CGSC is a Referral-only Employer. The court was not taken to any evidence to substantiate that proposition and it is plain from its reasons that the Commission did not draw that conclusion one way or the other (Commission’s Decision, [83]-[84]). There is, before this court, evidence of a fact agreed as between the parties before the Commission that CGSC is and was covered by the Victorian Local Government Award 2015. CGSC maintains that that instrument qualifies as a “State reference public sector modern award” for the purposes of div 8 of pt 2-3 of the FW Act. The Commission appears to have accepted as much (Commission’s Decision, [83]). If it is the case that the Victorian Local Government Award 2015 is, as was submitted, a “State reference public sector modern award” for the purposes of div 8 of pt 2-3 of the FW Act, then it would necessarily follow that CGSC must be a Referral-only Employer. So much must follow from s 168E of the FW Act, which holds that such an award can only cover “State reference public sector employers” (s 168E(2)) and that “State reference public sector employers” are employers that (amongst other things) qualify as “national system employer[s]” only by reason of (relevantly) s 30D of the FW Act (s 168E(4)).

40    It doesn’t much matter.

41    The “fundamental workplace relations principles” do not delimit or constrain the scope of the legislative powers that s 4 of the Referral Act expressly and unambiguously refer to the Commonwealth. That was the conclusion of the Commission and, respectfully, it was correct. Division 10 of pt 2-4 of the FW Act concerns matters that are unquestionably within the scope of that referral. It operates according to its terms.

42    That observed, it is strictly unnecessary to critique the Commission’s supplementary finding that “…[t]he principle referred to in s 3A(a)(ii) of the Referral Act refers to principles of freedom of association and the protection of the rights of individuals to join and be represented by a union and participate in collective activities[, upon which the making of a single interest employer authorisation would not infringe]”. There may well be reason to doubt that proposition. The “principle referred to in s 3A(a)(ii) of the Referral Act” extends, by its terms (howsoever laden with imprecision they might be), to promote the preservation by the FW Act of “…genuine rights and responsibilities to ensure fairness [and] choice…”, including in the form of “…the freedom to choose whether or not to…participate in collective activities”. It is in the very nature of a single interest employer authorisation—at least one that is made over the objection of an employer that will be covered thereby—that employers may be compelled to bargain as though part of a collective with other employers; and that they may be compelled to refrain from other forms of bargaining.

43    It may well be that a case may be made that those realities sit uneasily with the aspiration to which s 3A(a)(ii) of the Referral Act gives effect. By s 7A of the Referral Act, that falls to the Victorian Governor in Council to declare and there is no suggestion, much less any evidence, that any such declaration has been made or acted upon.

44    Again, though, none of that matters.

45    The issue of the SIEA’s consistency (or otherwise) with the “fundamental workplace relations principles” was a matter that CGSC raised solely in the context of the Commission’s assessment of the public interest (specifically, as to whether or not its making would be contrary thereto). That the Commission might incorrectly have construed those principles is irrelevant for present purposes. What was put was that it would be contrary to the public interest to make the SIEA because doing so would be obnoxious to them. The Commission considered that submission and rejected it. If it was wrong to do so, its error was classically one within jurisdiction. No occasion arises now to correct it via a grant of prerogative relief.

46    For any of those reasons, CGSC’s second ground of challenge is not made good.

Disposition

47    The originating application should be dismissed. It is likely that s 570 of the FW Act applies such that there should be no order as to costs. If we are wrong about that, the first respondent is at liberty to make an application in the usual way. In the meantime, there should be no order as to costs.

Associate:

Dated:    29 April 2025