Federal Court of Australia

Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to quash the decision of the Full Bench of the Fair Work Commission made 2 August 2024 in matter C2024/3262.

2.    A writ of certiorari be issued to quash the decision of the Fair Work Commission made 1 May 2024 in matter AG2023/2561.

3.    A writ of mandamus be issued to compel the Fair Work Commission to hear and determine according to law the applicant’s application dated 28 July 2023 to vary the QUBE Logistics (Rail) Train Crew NSW Enterprise Agreement 2019.

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

REASONS FOR JUDGMENT

THE COURT:

1    The applicant (Qube) applied to the Fair Work Commission under s 217 of the Fair Work Act 2009 (Cth) for orders that the Commission vary with retrospective effect two enterprise agreements to remove a claimed ambiguity or uncertainty. The two enterprise agreements were the QUBE Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2015 (2015 Agreement) and the QUBE Logistics (Rail) Train Crew NSW Enterprise Agreement 2019 (2019 Agreement). The variations were sought on the ground that the Agreements were ambiguous or uncertain in their application because they did not reflect the objectively ascertained common intention of Qube, the Australian Rail, Tram and Bus Industry Union, and the employees who voted on the agreements. Qube sought orders from the Commission that the agreements should be varied so that their terms accorded with the claimed objectively ascertained common intention.

2    At first instance, the Commission constituted by a Deputy President dismissed the application: Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2024] FWCA 616 (D). In broad terms, there were two bases on which the application was dismissed. The first was that the 2015 Agreement was no longer in operation at the time Qube made its application to the Commission, and therefore in relation to that agreement Qube did not have standing under s 217 because it was no longer covered by the agreement: see Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCAFC 132; 305 FCR 554 (Qube Ports v CFMEU). The second basis was that, while the Deputy President held that there was an ambiguity or uncertainty in the application of the agreements, he did not accept that Qube had established on the facts the common understanding or intention for which it contended.

3    Qube sought permission to appeal the decision to the Commission constituted by a Full Bench. The Full Bench granted permission to appeal, but dismissed the appeal: Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2024] FWCFB 331 (FB). The Full Bench held that the Deputy President did not err in his rejection of Qube’s claimed common intention, going further to hold that any contrary finding was not available on the evidence. The Full Bench further held that the Deputy President had not erred in holding that Qube lacked standing to apply to have the 2015 Agreement varied.

4    Qube has brought this proceeding in the Court’s original jurisdiction seeking the issue of constitutional writs to quash the decision of the Full Bench, and in turn the decision of the Deputy President at first instance. Qube also seeks a writ of mandamus to require the Commission to hear and determine its application according to law.

5    We will set out Qube’s grounds of review later in these reasons. In broad outline, Qube’s case before the Court is that the Full Bench’s decision, being the decision with operative legal force, was affected by jurisdictional error on the grounds that the Full Bench misconstrued s 217 of the Fair Work Act, misunderstood the jurisdiction that was exercised by the Deputy President at first instance, and in reviewing the Deputy President’s decision reached conclusions that were irrational or illogical such as to amount to legal unreasonableness. Underlying the claimed errors of the Full Bench are claims that at first instance the Deputy President failed to engage with substantial and clearly articulated arguments advanced by Qube with the result that Qube was denied procedural fairness, or alternatively the Deputy President constructively failed to exercise the Commission’s jurisdiction.

Section 217 of the Fair Work Act

6    Section 217 of the Fair Work Act is in the following terms:

217    Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1)    The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a)    one or more of the employers covered by the agreement;

(b)    an employee covered by the agreement;

(c)    an employee organisation covered by the agreement.

(2)    If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

7    The power to vary an enterprise agreement under s 217 may be exercised by the Commission only for the purpose of removing an ambiguity or uncertainty, and only on the application of identified persons, one of whom is an employer covered by the agreement. In Qube Ports v CFMEU at [93], the Full Court (Wheelahan J, Rangiah and Snaden JJ agreeing) held that s 217 required that the employer must be covered by the agreement at the time the application for variation is made, and that past coverage did not engage the section. Therefore, an application could not be made to vary an enterprise agreement that had ceased to operate. The Full Court also held that s 217(1) authorised the making of a variation of an enterprise agreement with retrospective effect. Whether a variation should have any dimension of retrospective operation is a question for the Commission to consider if the occasion arises.

Background

8    Prior to 2015, Qube acquired a number of companies which operated New South Wales rail businesses. As a result of the transfer of business provisions in the Fair Work Act, there came to be four separate enterprise agreements that applied to Qube and various groups of employees in the rail businesses (the Transferred Agreements). The Transferred Agreements had been negotiated between different employers and different employees. Each of the Transferred Agreements provided employees with an entitlement to an hourly rate of pay that operated as a loaded rate payable for all ordinary hours of work. That is, the rates of pay were flat rates that incorporated some penalty rates, shift loadings and, in some cases, allowances. None of the Transferred Agreements incorporated the Rail Industry Award 2010 (the 2010 Award), or any other modern award. When negotiating the 2015 Agreement, the bargaining representatives attempted to consolidate the terms and conditions derived from the Transferred Agreements into one enterprise agreement that applied to Qube’s entire New South Wales rail crew.

9    As made, the 2015 Agreement provided for “Hour (sic.) Rates” in a table set out in clause 29. The corresponding clause 29 of the 2019 Agreement provided for a “Normal rate”. Those rates were payable for all hours of work, except for overtime hours and casual hours, for which there were separate rates of pay specified in the clause 29 table. The term “Hourly Rate” was defined by clause 6.1 of both Agreements to mean “the hourly rate applicable to the ‘Ordinary Hours’ component of the Remuneration and includes leave loading”. For present purposes, it may be assumed that during the operation of the 2015 and 2019 Agreements Qube paid the employees covered by the Agreements the hourly rates specified in the table in clause 29.

10    Clause 4 of the 2015 Agreement provided for the incorporation of the 2010 Award. To this end, clauses 4.1 to 4.3 provided:

4.    Relationship to Parent Award and NES

4.1    This Agreement wholly incorporates the Rail Industry Award 2010 or as varied from time to time (the Award), except for the Award Flexibility and Facilitative Provisions clauses.

4.2    Upon incorporating Award terms into the Agreement, the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of the Award. So, for example, the loadings, penalties and allowances in the Award apply to the rates of pay due under the Agreement, rather than the Award rates.

4.3    Where there is any inconsistency between the Award and this Agreement, the terms of this Agreement shall prevail.

...

11    Qube’s case before the Commission was that there was a common understanding that the rates specified in clause 29 of the Agreements were loaded rates to which Award penalties were not applicable. Some of the significant facts referred to in the findings of the Deputy President at first instance and the Full Bench were as follows.

12    In October 2023, and before bargaining was in full swing, the New South Wales members of the Union endorsed a log of claims which included a claim for weekend shift penalties. This constituted a departure from the Transferred Agreements, which provided for loaded rates. The Full Bench held that the Union’s log of claims was provided to Qube at some point in the bargaining process, but that it was unclear when this occurred.

13    The individual who negotiated the 2015 Agreement on behalf Qube was principally Mr Dan Coulton, who in the early stages was assisted by Mr Mark Owens. The Union negotiated through Mr Kevin Pryor, who was assisted by Mr Allan Barden, although there were others associated with the Union who were also involved including two delegates, Mr Rodney Rich and Mr Shayne Johnson. The negotiations proceeded on the basis that there would be separate enterprise agreements for the rail crew employees in different states. It was proposed that there would be two parts to the enterprise agreements. Part A would contain core terms, and would be negotiated at a national level. Part B would contain terms applicable to the relevant state. In relation to Part A, Mr Coulton sent an email to the Union on 29 October 2013 in which he proposed that the standardised national conditions would include provision for penalty rates.

14    The Deputy President found that a high-level meeting occurred on 22 January 2014 which was attended by Mr Owens on behalf of Qube and Mr Pryor and Mr Barden on behalf of the Union. The Deputy President found that an agreement was reached at this meeting between the representatives that clause 4 of Part A of the Agreement, which as ultimately made incorporated the Award, would provide for shift penalties and penalties for weekends. We will set out the terms of that finding later in these reasons.

15    This finding was disputed by Qube before the Full Bench on a number of grounds, but it was not disturbed on appeal. One ground on which Qube disputed the finding was that, at the time the meeting occurred, the Union had not provided Qube with any draft text of the proposed clause 4: that was to come later.

16    Further bargaining meetings occurred, and draft documents were exchanged between the bargaining representatives. The Union prepared a draft of what became clauses 4.1 to 4.3 of the 2015 Agreement, and provided it to Qube on 14 March 2014. All subsequent drafts of the 2015 Agreement, including the proposed Agreements that were put to the employees for voting on three occasions before being voted up, contained clauses 4.1 to 4.3. The Full Bench stated that there was no evidence that any explanation had been given to the employees, or in the documents before the Commission on approval, that the hourly rates in clause 29 were loaded rates, or that clauses 4.1 to 4.3 would not operate according to their terms.

17    The 2019 Agreement was in the nature of a rollover of the 2015 Agreement. It too provided for specified rates of pay in a table to clause 29 for all ordinary hours worked. The 2019 Agreement contained provisions in the same terms as clauses 4.1 to 4.3 of the 2015 Agreement, but they were the subject of an undertaking given by Qube to the Commission which had the effect of incorporating the Rail Industry Award 2020 (2020 Award) in place of the 2010 Award. That undertaking was signed by Mr Coulton as the authorised representative of Qube.

18    In late June 2023, and during a period in which the bargaining representatives were negotiating an enterprise agreement to replace the 2019 Agreement, the Union served on Qube an application filed in the Federal Court of Australia alleging historic and ongoing underpayments pursuant to the terms of the 2015 and 2019 Agreements. The alleged basis for the underpayment claims was that Qube had failed to pay penalties and allowances provided for by the terms of the Awards that were incorporated into the agreements.

Qube’s application to the Commission

19    An application under s 217 of the Fair Work Act raises two primary questions for the Commission. The first question is whether there is in fact an ambiguity or uncertainty in the agreement that can be removed by a variation. The second question is whether the Commission should exercise the power vested in it by s 217 to vary the enterprise agreement to remove the ambiguity or uncertainty, and if so, in what terms: see Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR 385 (Bianco Walling) at [49] (Flick, White and Perry JJ).

20    Qube’s application to the Commission for variation of the enterprise agreements was put on the basis that the terms of the agreements did not reflect the common intention of the parties insofar as they provided for Award penalties, loadings and allowances (Award Penalties) on top of the hourly rates specified in clause 29 of the Agreements. While s 217 does not provide in terms for the variation of an enterprise agreement on this ground, the failure of an enterprise agreement to express the common intention of the parties was held by the Full Court in Bianco Walling to be relevant to the question whether an ambiguity or uncertainty exists, and decisions of the Commission have given guidance that the ascertainment of the parties’ common intention is a matter relevant to the Commission’s discretion whether to vary an enterprise agreement, and if so on what terms.

21    As to the existence of an ambiguity or uncertainty, which is a necessary condition before the discretionary power under s 217(1) of the Fair Work Act to vary an enterprise agreement is engaged, in Bianco Walling at [68] the Full Court referred to s 578(b) under which, in performing functions or exercising powers under the Act, the Commission is required to take into account “equity, good conscience and the merits of the matter”. The Full Court also referred to s 591 under which the Commission is not bound by the rules of evidence or procedure. In consequence, the Full Court held that in discharge of its functions under s 217(1) in ascertaining whether ambiguity or uncertainty exists, the Commission is permitted to have regard to the common intention of the parties, and to the history of the relevant clause in the enterprise agreement which is the subject of the application for variation.

22    As to the relevance of common intention to the Commission’s discretion under s 217(1) to vary an enterprise agreement, there is an established line of decisions in the Commission which guide the exercise of the discretion and which refer to common intention as being one factor, and where appropriate a significant factor, to which the Commission may have regard. In Bianco Walling, the Full Court at [69] cited the decision of Watson VP in Re Australian and International Pilots Association [2007] AIRC 303; 162 IR 121 at [17] for the proposition that a significant factor for the Commission’s exercise of discretion under the corresponding provision in s 170MD(6)(a) of the Workplace Relations Act 1996 (Vic) was “the objectively ascertained mutual intention of the parties at the time the agreement was made”. The relevance of objectively ascertained mutual intention to the exercise of the power to vary under s 217 of the Act was more recently examined by Bell DP in Application by Monash [2023] FWC 1148 (Monash) (Bell DP), which was affirmed by the Full Bench on appeal in Monash University v National Tertiary Education Industry Union [2023] FWCFB 181.

23    The Commission has held that common intention may be established in a way that bears similarities to the proof of the actual common intention of parties to a contract for the purposes of the equitable remedy of rectification. However, it has been stated that s 217 is not simply a statutory analogue of rectification: see Bell DP in Monash at [142]. In relation to a non-greenfields agreement, the reasons for which s 217 cannot be a statutory analogue to the equitable remedy of rectification include that an enterprise agreement is not an inter partes agreement like a common law contract. It is an agreement in name only: Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 (Toyota) at [88] (Jessup, Tracey and Perram JJ), cited in Bianco Walling at [60]. An enterprise agreement is an instrument which, under a statutory framework, is negotiated by bargaining representatives, is voted upon by employees whom it will cover, and is then subject to approval by the Commission before it commences operation. Not all employees who will be covered by an enterprise agreement need to assent to its terms. As Bell DP observed in Monash at [148] and [149], it is not necessary that all employees vote, and it will often be unknown how employees voted let alone how employees affected by a particular clause might have voted or considered the clause, and that any requirement to identify a common understanding among a potentially disparate group of employees brings greater challenges to ascertaining the common intention of parties to a common law contract. The Full Bench in the present case recognised these differences at FB [49]–[51].

24    As to the principles for ascertaining the actual common intention of parties to a contract, they were addressed in Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 260 CLR 85 (Simic). The following passage from the judgment of Kiefel J in Simic at [42] was cited by Bell DP in Monash at [141], and by the Full Bench in the present case at FB [46]:

What is necessary to be shown is the actual intention of each of the parties. This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. It is in this sense that statements such as that of Hodgson J in Bush v National Australia Bank Ltd [(1992) 35 NSWLR 390, 406], that common continuing intention ‘must be objectively apparent from the words or actions’ of each party, may be understood.

25    In their joint judgment in Simic, Gageler, Nettle and Gordon JJ stated at [104]:

The issue may be approached by asking – what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.

(Citations omitted.)

26    Gageler, Nettle and Gordon JJ also cited Bush v National Australia Bank Ltd (1992) 35 NSWLR 390, where at 405–406 Hodgson J approved the following summary of basic principles set out by Tipping J in Westland Savings Bank v Hancock [1987] 2 NZLR 21 at 29-30:

1.    That, whether there is an antecedent agreement or not, the parties formed and continued to hold a single corresponding intention on the point in question.

2.    That such intention continued to exist in the minds of both or all parties right up to the moment of execution of the formal instrument of which rectification is sought.

3.    That while there need be no formal communication of the common intention by each party to the other or outward expression of accord, it must be objectively apparent from the words or actions of each party that each party held and continued to hold an intention on the point in question corresponding with the same intention held by each other party.

4.    That the document sought to be rectified does not reflect that matching intention but would do so if rectified in the manner requested.

27    There are four points of importance arising from Simic and the cases cited in the joint judgment at [104]. The first is that common intention must exist in the minds of the parties. The second is that there does not need to be any express or outward communication of the common intention. The third is that common intention is concerned with the subjective or actual intention of each party: see Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603 at [267] (Campbell JA, Mason P agreeing). The fourth is that the objective ascertainment of common intention of each party by reference to their words or actions is concerned with the proof of their actual intention. It is not a search for an objectively attributed common intention: see Simic at [19] (French CJ) and [48] (Kiefel J). Recourse to objectively ascertained facts in proof of actual intention serves to meet the “high standard” to which common intention must be proved in order to displace the terms chosen by the parties in the written instrument: see Simic at [41] (Kiefel J); and Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) [2019] NSWCA 11; 99 NSWLR 317 at [13]–[15] (Leeming JA). The Commission has adopted a similar approach to applications under s 217 based upon establishing a common intention. In Monash, in a passage that was cited with approval by the Full Bench in the present case at FB [47], Bell DP stated at [145]:

‘Common intention’ – however approached – for the purposes of an enterprise agreement is not lightly found.

28    As we have mentioned, Qube’s application to the Commission to vary the two enterprise agreements was advanced on the basis that, by providing for Award Penalties on top of the hourly rates specified in clause 29, the terms of the Agreements did not reflect the parties’ common intention.

29    Qube filed statements of three witnesses, each of whom was cross-examined: Mr Coulton of Qube, and Mr Rich and Mr Johnson who were Union delegates involved in the negotiations. Qube did not call Mr Owens, who had been Qube’s representative at the 22 January 2014 meeting. The Union filed a statement of Mr Pryor and a legal officer of the Union, Mr Matthews. Mr Pryor was cross-examined, but Mr Matthews was not.

30    The witnesses who were cross-examined did not impress the Deputy President. At D [26], the Deputy President stated that, with the exception of Mr Matthews, “none of the other deponents… presented as witnesses in whose evidence I could place any significant weight where uncorroborated”. Instead, the Deputy President stated at D [27] that his decision was better founded and expressed by making factual findings based on evidence of reliability, ordinarily in the form of documentation, but also uncontroverted facts, stating that the approach to fact finding described by Lee J in Transport Workers’ Union v Qantas Airways Limited [2021] FCA 873; 308 IR 244 at [16] was salient. That approach is “to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”: see Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22] (Leggatt J).

Qube’s submissions to the Deputy President

31    At the hearing before the Deputy President at first instance, counsel for Qube submitted that the Commission should not accept the evidence of Mr Pryor of the Union in relation to his meeting with Mr Owens of Qube on 22 January 2014, and should not accept that Qube had agreed to pay Award Penalties on top of the hourly rates in the 2015 and 2019 Agreements. In support of its submissions, Qube referred to what it claimed were the objective facts surrounding the negotiation of the 2015 Agreement, submitting that it was implausible that Qube had agreed to pay the Award Penalties on top of the rates in the Agreements. Qube supported the oral submissions of counsel with a 17 page document titled “Qube’s ‘Road Map’ of propositions and subsidiary findings necessary to find that Qube agreed to pay the Award penalties and loadings” (the Road Map). The Road Map comprised a series of 15 propositions that Qube submitted would have to be reconciled with any finding that Qube had agreed to pay the Award Penalties. The 15 propositions were developed by subsidiary and explanatory sub-propositions, and were supported by detailed footnote references to the written and oral evidence before the Commission. The Deputy President identified the headline propositions in the Road Map at D [82]:

(1)    Qube agreed to pay penalties on top of what were already loaded rates, giving some workers a pay rise in excess of 65%;

(2)    Qube agreed to the further 20% plus pay rise associated with adding Award penalties and loadings without doing any modelling as to the financial impact of these benefits, instead modelling on the basis that the rates were loaded and producing costings inconsistent with Award penalties and loadings being added;

(3)    Qube agreed to include Award penalties and loadings through an Award incorporation clause in so-called “Part A” of the 2015 Agreement (a) at the very first meeting (at which Qube’s main negotiator was not present); (b) without seeing any index of Part A or Part B clauses; (c) without seeing the text of the clause; (d) before Qube was even provided with a log of claims; and (e) when the [Union] was only (subsequently) seeking weekend penalties (and not seeking other Award penalties or loadings);

(4)    After supposedly agreeing to clause 4 sight unseen, Qube was provided with the index of Part A headings and responded stating that it will need to see specific wording for the proposed clauses before it could agree to them;

(5)    After Qube agreed to pay all Award penalties and loadings through an Award incorporation clause, the [Union] presented to delegates for approval, and then provided to Qube, a log of claims containing a claim for weekend penalties, but not shift penalties or other Award penalties or loadings;

(6)    Having agreed to incorporate all Award penalties and loadings, and then re-confirmed this agreement at a subsequent meeting, Qube responded to the [Union’s] log of claims seeking Award weekend penalties by rejecting the claim;

(7)    After Qube rejected the claim for weekend penalties, the [Union] did not push back or query this rejection (including on the basis that it had already been supposedly agreed), but rather agreed to remove the claim;

(8)    Qube immediately agreed to the additional 20% plus pay rise associated with adding Award penalties and loadings at the very first meeting with the [Union], before Qube was even presented with the [Union’s] log of claims, but then spent years negotiating far less significant terms, including fighting tooth and nail over small percentage increases to the South Spur Agreement rates;

(9)    Having agreed to the additional 20% plus pay rise associated with the addition of Award penalties and loadings, Qube never once referred to it in its communications with the [Union] when trying to reach a deal with the union over the next two years of bargaining, nor did Qube ever refer to it in its communications with employees over that period, including communications seeking to persuade employees to vote in support of the 2015 Agreement, at three separate votes;

(10)    Having secured the additional 20% plus pay increase associated with the incorporation of Award penalties and loadings, Qube’s biggest concession increasing take-home pay for workers that put the 2015 Agreement ahead of the PN Bulk Agreement in terms of take-home pay, the [Union] never bothered to tell employees about it;

(11)    Having secured the additional 20% plus pay increase associated with the incorporation of Award penalties and loadings, Qube’s biggest concession increasing take-home pay for workers that put the 2015 Agreement ahead of the PN Bulk Agreement (the “benchmark for success”) in terms of take-home pay, the [Union] spent years haggling over minor disagreements on small percentage increases to rates and still repeatedly encouraged employees to vote against the 2015 Agreement;

(12)    Neither Mr Pryor nor Mr Barden told the Victorian branch of the [Union] that Qube had agreed to pay Award penalties and loadings in NSW, leading the Victorian branch to strike a subsequent Victorian agreement that had essentially the same rates as the 2015 Agreement, but expressly as loaded rates (i.e. without Award penalties or loadings). This is despite Mr Barden attending the 22 January 2014 meeting where Qube supposedly agreed to pay Award penalties and loadings in NSW and him being involved in the negotiation of the Victorian agreement;

(13)    Having agreed to pay Award penalties and loadings, Qube then immediately failed to pay them throughout the life of the 2015 Agreement and then under the 2019 Agreement, whilst implementing all other agreed changes in those Agreements;

(14)    After the 2015 Agreement was approved, Pryor took no steps to make sure that employees were paid Award penalties and loadings in circumstances where he must have known that Qube was not paying them; and

(15)    Mr Pryor at all times believed that the 2015 and 2019 Agreements obliged Qube to pay Award penalties and loadings and knew since at least October 2022 that Qube was not in fact paying them. Yet until mid-2023 he was not “a hundred percent sure” there was an issue that needed to be raised with Qube.

32    Qube developed submissions before the Deputy President in reliance on the Road Map. Together with an attack on Mr Pryor’s credit, senior counsel then appearing for Qube submitted to the Deputy President by reference to the Road Map that acceptance of Mr Pryor’s account required a “series of cascading findings that are completely implausible”. Qube’s submission to the Deputy President was framed around a submission that there were two competing case theories: Qube’s case, and the Union’s case. It was submitted that there was “no in-between”. It was submitted that for the Union’s case to hold, every single one of the propositions had to be “explained away and rationalised on the balance of probabilities”. In reply submissions to the Commission, Qube submitted that the propositions in the Road Map all interacted, and that “none of the individual findings make any sense without the other findings being made consistently with them”.

33    Qube submitted to the Deputy President that the assessment of witness evidence had to be undertaken through the prism of the whole of the evidentiary record, and most importantly the inherent, or objective probabilities. It was submitted that almost all the propositions in the Road Map were “based on objective contemporaneous logic and circumstances surrounding questions of timing and things of that type”, and it was submitted that the Deputy President had to make an affirmative finding with respect to every proposition in the Road Map document in order for the Union’s version of the facts to be accepted.

34    Qube invited the Deputy President to assess the likelihood of relevant facts against the whole of the evidence. The Deputy President was given proposition (13) as an example: what was the likelihood that Qube as a reputable employer had actually agreed to pay Award Penalties, had implemented other changes under the enterprise agreements, but then over a course of seven years not paid any Award Penalties? It was submitted to the Deputy President that this was bolstered by an examination of proposition (9), which was that Qube never mentioned the Award Penalties to the employees in circumstances where the proposed 2015 Agreement was put to a vote on three occasions before it was voted up. It was also submitted that there was no objective evidence that the Union ever told its members of the large take-home pay increase that would have been secured if the bargaining representatives had actually intended to agree on Award Penalties and allowances on top of the rates of pay set out in clause 29, but instead had advised its members not to vote for the proposed 2015 Agreement. The unlikelihood that the Union had intended to agree to the payment of Award Penalties and allowances on top of the loaded rates was also supported in submissions to the Commission by proposition (12) of the Road Map, with Qube submitting that it was inconceivable that the Union would negotiate the Victorian agreement on terms that were significantly less favourable than those applicable to the New South Wales members. Qube made submissions to the Deputy President around proposition (3), submitting that it was improbable that at the first meeting on 22 January 2014 Qube would have agreed to pay Award Penalties when the documents at that point had not been drafted.

35    Much was made by Qube about a log of claims that was referred to at propositions (5), (6), and (7) of the Road Map. Qube submitted that on 14 March 2014 the Union served a log of claims on Qube that included a claim for weekend penalty rates after the alleged agreement to incorporate the Award Penalties into the proposed enterprise agreement had been reached. Qube rejected this claim, to which the Union agreed. There was a dispute as to why the Union agreed to the removal of the claim, with Mr Pryor stating that he agreed to remove the claim for Part B only, which Qube submitted found no documentary support, and was nonsensical.

36    Another point that Qube emphasised before the Commission by reference to propositions (10) and (11) of the Road Map was that if there had been an actual common intention to pay Award Penalties on top of hourly rates then, in terms which Mr Pryor accepted in cross-examination, this was “the biggest gain for employees out of that entire enterprise bargaining by a country mile”, and “the biggest uplift in take-home pay out of any claim in the enterprise bargaining”. Qube relied on Mr Pryor’s failure to convey this achievement in any of the seven “Newsflash” communications, or any other communication that the Union sent to its members after 14 March 2014 regarding developments in the bargaining of the proposed enterprise agreement.

37    In relation to the understanding of the situation that was to be attributed to the employees, the Road Map raised the following matters in propositions (9) and (10), noting that there is some overlap with the matters relevant to identifying the intention of the Union as bargaining representative:

(a)    the employees had previously been paid loaded rates under each of the four Transferred Agreements;

(b)    no communication from the Union to the employees ever identified that there was to be an agreement to pay Award Penalties on top of loaded rates, in a context where the communications identified other claims to which Qube had agreed;

(c)    in none of its communications with the employees did Qube refer to Award Penalties being payable on top of the hourly rates, in circumstances where Qube was seeking to persuade the employees to vote in support of the 2015 Agreement, which occurred only on the third occasion it was put to a vote;

(d)    Mr Coulton prepared a comparison table that he presented to employees at the New South Wales depots that showed wage rates and the foreshadowed increases under the proposed 2015 Agreement, and this table made no mention of the additional payment of Award Penalties; and

(e)    the employees continued to be paid what Qube characterised as loaded rates for a period of seven years following the making and commencement of the 2015 Agreement and then the 2019 Agreement without ever making any complaint or claiming the Award Penalties.

38    The above summary is incomplete, but it is sufficient to recount the nature of the submissions that were advanced on behalf of Qube before the Deputy President by reference to the propositions in the Road Map, relying on them to support a submission of “basic implausibility”.

39    In combination with its reliance on inherent improbabilities by reference to the propositions in the Road Map, Qube made an attack on Mr Pryor’s credit, submitting to the Deputy President that a large part of Mr Pryor’s evidence in cross-examination was “evasive, lacking in candour, recent invention, and calculated to mislead”. The submissions about Mr Pryor’s credit were developed by reference to a second document, which was an aide-mémoire on that topic. Qube submitted that the Commission should find that Mr Pryor was an unreliable witness who should not be believed.

40    Qube’s case before the Deputy President resulted in a submission that when regard was had to objective context, and other provisions of the Agreements, the rates specified in clause 29 of the Agreements were loaded rates, and that the inclusion in clause 4 of the provisions incorporating Award Penalties did not reflect the parties’ actual intention.

The Commission’s decision at first instance

41    The decision of the Deputy President was structured and divided into sections. After setting out the terms of the application, the proposed variations that were sought, the relevant provisions of the 2015 and 2019 Agreements, and some uncontroversial background, the Deputy President at D [25]–[39] addressed the evidence. As we have mentioned, the Deputy President was not impressed by the evidence of any of the witnesses who were cross-examined, stating a preference to base his decision on reliable evidence in the form of documentation and uncontroverted facts.

42    In relation to the evidence of Mr Pryor, the Deputy President addressed two criticisms that were advanced by Qube. The Deputy President stated at D [38] that there was some substance in Qube’s criticism of Mr Pryor’s evidence that it had “slipped his mind” to tell employees that he had secured a massive windfall gain in take home pay, and did not tell the employees that it was agreed to pay weekend and shift penalties because he “had other things to worry about”. The Deputy President then stated:

Those failures, however, had limited impact on the question of common intention of the parties.

43    The Deputy President came back to Qube’s reliance on Mr Pryor’s failure to publicise the significant gains achieved at D [114], stating that it was “irrelevant” and that there were clear reasons why it may be perceived that, during and after the course of a negotiation, a party may seek to downplay achievements in bargaining.

44    The second criticism of Mr Pryor advanced by Qube that the Deputy President addressed was that Mr Pryor had not taken any steps to ensure that the Award Penalties said to have been agreed to were paid. The Deputy President stated at D [39] that this criticism lacked substance, and that:

It would not be expected that a union official such as Mr Pryor should take it upon himself to assess whether recently agreed agreement provisions are being paid, absent any complaint by member(s).

45    The Deputy President also came back to this point later in his decision at D [115]–[117] to which we will refer below.

Findings of fact

46    The Deputy President set out at D [40]–[81] under a section headed “Findings of Fact” a series of findings of primary fact.

47    Amongst those findings of primary fact, the Deputy President referred at D [47] to a draft log of claims completed on 30 August 2013 by the New South Wales branch of the Union for delegate endorsement. That log of claims included a claim for weekend shift penalties.

48    The Deputy President addressed the meeting between Mr Owens of Qube, and Mr Pryor and Mr Barden of the Union, in the following terms at D [53]–[54]:

53    On 22 January 2014, a high level meeting occurred at the RTBU National Office at Trades Hall in Sydney. Qube were represented by Mark Owens, and the RTBU was represented by Mr Pryor and Mr Barden. Other bargaining representatives did not attend. I accept that Mr Pryor had taken a printed copy of the Shift Penalties Allowance Multiplier clause from the Pacific National NSW Bulk Rail Enterprise Agreement to facilitate discussions on the topic of shift penalties. Mr Pryor wrote his notes directly onto the Pacific National clause. Those notes, that were signed and dated, described where and when the meeting occurred, who attended, and included the notation:

“MO. No Rosters in Place

Agree to leave clause 4 (Part A) to cover shift penalties & weekends Make sure above Award”

54    I accept Mr Pryor’s explanation that the above notation records Mr Owens rejecting the idea of including a clause similar to the Pacific National NSW Bulk Rail Enterprise Agreement as that clause required forecast master rosters to work out applicable penalties in advance, a style of rostering Qube could not accommodate. Instead, there was agreement to allow clause 4 of Part A, which incorporates the Award, to provide for shift penalties and penalties for weekends. Further, by the notation “Make sure above award”, Mr Pryor was referring to the way shift penalties were calculated under the Rail Industry Award, which relied on a nominal classification and a formula to create an applicable hourly loading.

49    The Deputy President then referred to the further course of negotiations that various documents recorded. The Deputy President stated that the documents included various references to the Union agreeing to remove the claim for weekend and shift penalties, stating that Mr Pryor explained that the reference was to removing the claims from Part B of the enterprise agreement that would relate to New South Wales.

50    The Deputy President then referred to the exchanges of draft agreements which occurred from 24 March 2014 onwards. The Deputy President referred to the fact that the initial draft enterprise agreement provided by the Union to Qube was a significant departure from the Transferred Agreements, noting that clause 4.2 of the draft was in identical terms to that which ultimately appeared in the 2015 and 2019 Agreements. The Deputy President recounted that the proposed 2015 Agreement was then put to a vote on three occasions before it was voted up.

51    On 10 March 2016, the approval documents for the 2015 Agreement were lodged with the Commission, including Forms F16 and F17 that were completed on behalf of Qube. The Deputy President found that there was no indication in those documents that loaded rates were applicable, there was no modelling of rates on the basis that the rates were loaded rates, and there was no disclosure that weekend rates were lower than the Award rates.

52    The Deputy President made findings in relation to the 2019 Agreement more briefly, describing it as in large part a rollover of the 2015 Agreement. During the course of negotiations for the 2019 Agreement, neither Qube nor the Union made any claim to change clause 4. The only relevant way in which clause 4 was addressed was in the undertaking given to the Commission upon the application for approval, by which the reference in clause 4.1 to the 2010 Award was taken to be substituted by a reference to the 2020 Award.

53    The Deputy President then made findings that in October 2020, which was after the approval of the 2019 Agreement, Mr Matthews, who was a legal officer employed by the Union, first formed a belief that the rates of pay in the 2019 Agreement were base rates of pay that were the subject of penalties and allowances, and were not loaded rates. Mr Matthews formed that view based on the incorporation of the 2020 Award and the absence of any disclosure or modelling in the forms that were lodged with the Commission in relation to the approval to suggest that the rates were inclusive of shift penalties and loadings.

54    The question whether loadings and penalties that were provided for in the Award were payable by Qube under the enterprise agreements arose in the course of bargaining for an enterprise agreement to replace the 2019 Agreement. The Deputy President referred to an exchange of correspondence in early 2023 between Mr Matthews of the Union and Mr Coulton of Qube in relation to some amendments that Qube had proposed to clause 4.2 of a draft replacement agreement. The Union expressed concern that the proposed change to clause 4.2 would likely affect the incorporation of penalty rates into the proposed enterprise agreement. In response, Mr Coulton sent an email to Mr Matthews in which he purported to confirm that the Award provisions with respect to loadings and penalties were incorporated into the proposed enterprise agreement:

As previously explained to the RTBU, the relevant change to clause 4.2 was simply to replace the previous clause with a simplified inconsistency clause and to avoid unnecessary duplication. We do not understand your query “where else in the agreement does it say award loadings and penalties apply to EA rates?” given that loadings and penalties are dealt with in the Award which is wholly incorporated through the operation of clauses 4.1 and 4.2 in the proposed draft (with the agreement terms prevailing to the extent of any inconsistencies). Specifically, the current draft of the proposed agreement already provided to the RTBU provides as follows:

4.1    This Agreement wholly incorporates the Rail Industry Award 2020 as varied from time to time (Award), except for the Award Flexibility and Facilitative Provisions clauses.

4.2    Where there is any inconsistency between the Award and this Agreement, the terms of this Agreement shall prevail to the extent of such inconsistency.

As you would be aware, the Award provisions with respect to loadings and penalties are incorporated into the proposed agreement (as they are under the current agreement) in circumstances where the enterprise agreement is silent on loadings and penalties. In any event, as this was just to simplify the existing arrangements rather than change the substantive meaning, Qube is more than content to simply reinstate the previous clause 4.2 to address the concern.

(Emphasis in italics added.)

55    The Deputy President noted that Mr Coulton claimed not to have read or understood the above email, and there was evidence before the Commission that the email had been drafted by the solicitors then acting for Qube.

56    The Deputy President referred to some modelling undertaken by Mr Matthews of penalty rates and shift/on-call allowances that were putatively payable by reference to the timesheets and payslips over a fortnightly period of two Qube employees who were Union delegates. Mr Matthews calculated the additional remuneration at $500-700 per week. The Deputy President stated that, based on a preliminary assessment by Qube, the average estimated labour cost increase on the Union’s construction of the 2015 and 2019 Agreements was between 20% and 30%.

57    The Deputy President then referred to the service on Qube by the Union of its proceeding in this Court in relation to the claimed non-payment of Award Penalties, as incorporated into the 2015 and 2019 Agreements.

The Deputy President’s consideration

58    After making the above findings of primary fact, the Deputy President turned to Qube’s submissions. The Deputy President referred to the Road Map, setting out the 15 headline propositions that we extracted at [31] above.

59    After setting out the propositions from the Road Map, the Deputy President recorded Qube’s submission that a textual or factual ambiguity or uncertainty arose, referring amongst other things to Qube’s reliance on the Road Map in support of a submission that it was the common intention and understanding of Qube and the Union to preserve the existing operation of loaded rates without separate penalties, which is understood to be a reference to the loaded rates under the Transferred Agreements that applied prior to the commencement of operation of the 2015 Agreement.

60    The Deputy President summarised the Union’s submissions at D [85]–[93]. The Union submitted that the objectively ascertained common intention of the parties could be discerned from a textual and contextual analysis of an enterprise agreement, submitting that “common intention” was directed to the objective intent of employees who made the agreement and the employer, rather than Mr Coulton’s and Mr Pryor’s recollections of meetings. The Union submitted that the objectively determined common intent of the employees and Qube when making the 2015 Agreement was that the 2010 Award was to be incorporated in full, with the Award penalties to be applied on the rates set out in the Agreement. The Union submitted that this was apparent from:

(a)    the terms of the 2015 Agreement and provision to employees of the Award before voting on the Agreement during the access period; and

(b)    the Transferred Agreements, each of which was a standalone agreement which did not incorporate the 2010 Award.

61    The Union submitted to the Deputy President that there was no evidence that the employees were ever told that the hourly rates in the 2015 Agreement were aggregate loaded rates. It submitted that there was no document issued to employees under s 180(5) of the Fair Work Act detailing such provisions, and there was no evidence led by Qube that the rates had included components for weekend penalties, shift allowances, meal allowance or on-call allowances.

62    The Union submitted to the Deputy President that a reasonable person in the position of the employees and employer who read and considered the 2015 Agreement would have noticed material differences between it and the antecedent agreements in relation to the incorporation of the Award (with the loadings, penalties and allowances in the Award to apply to the Agreement rates) and the fact that “hourly rate” was not expressed to be inclusive of shift loadings, penalties and allowances, and they would have concluded that clause 4.2 meant what it said.

63    The Union further submitted to the Deputy President that Qube did not have standing to apply to vary the 2015 Agreement because it had ceased to be covered by the Agreement, and submitted that any retrospective variation of the enterprise agreements attracted the operation of s 51(xxxi) of the Constitution.

64    Following his summary of the parties’ submissions, the Deputy President commenced his reasons by holding that Qube did not have standing to apply to vary the 2015 Agreement under s 217 of the Fair Work Act, because the 2015 Agreement had ceased to operate. The Deputy President’s decision on standing was supported by the Full Bench’s decision in Qube Ports Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCFB 102 (Qube Ports FWCFB), the correctness of which was subsequently upheld by the Full Court in Qube Ports Pty Ltd v CFMEU.

65    The Deputy President then held that an ambiguity or uncertainty arose from “the non-application” of the disputed terms of the 2015 and 2019 Agreements in relation to the payments made to the employees covered by the agreements. This finding was in response to a submission made by Qube, in reliance on the Full Court’s decision in Bianco Walling, that an ambiguity or uncertainty in the application of the provisions arose because they did not reflect the common understanding of the parties. The Deputy President noted, however, that if the question was the proper construction and interpretation of the enterprise agreements, then there was no ambiguity or uncertainty.

66    The Deputy President then turned to the Commission’s discretion to vary the enterprise agreements to remove an ambiguity or uncertainty.

67    At D [109], the Deputy President rejected Qube’s submission that it had established on the facts that the common understanding and intention of Qube and the Union was to preserve the existence of loaded rates without separate penalties. The Deputy President stated that this disregarded the following matters:

(a)    The evidence regarding the 22 January 2014 meeting, in which I have accepted Mr Pryor’s explanation that there was agreement to allow clause 4 of Part A of the proposed agreement, which incorporated the Award, to provide for shift penalties and penalties for weekends;

(b)    From 24 March 2014, the parties each prepared and exchanged a number of versions of the Part A Core Conditions document. Each version contained versions of the clauses sought to be varied in the form finally made in the [2015 Agreement];

(c)    The proposed agreement that was subsequently provided to all employees for a vote contained the contained versions of the clauses sought to be varied in the form finally made in the [2015 Agreement];

(d)    There were in fact three votes, and on each occasion the clauses sought to be varied were in the form finally made in the [2015 Agreement]; and

(e)    On 10 March 2016, the approval documents for the [2015 Agreement] were lodged with the Commission by Qube, and those documents gave no indication of loaded rates being applicable, no modelling of rates on the basis that the rates were loaded rates, and no disclosure that weekend rates were lower than Award rates.

68    The Deputy President held at D [110] that in the above circumstances, an “objective assessment of the agreement between the parties” was that the “substantive agreement between the parties was as expressed” in the form of the 2015 Agreement as finally made. The Deputy President said at D [111] that this objective assessment would only be reinforced by a consideration of how an enterprise agreement is made under the Act, quoting some observations of the Full Bench in Monash University v National Tertiary Education Industry Union [2023] FWCFB 181 at [24] in which the Full Bench stated that the absence of traditional parties to an enterprise agreement and the fact that the making of an enterprise agreement was the product of statute, informed the significance ascribed to mutual intention, the identification of what was the substantive agreement that was made, and provided the statutory context for the exercise of the discretion to vary under s 217. The Full Bench had earlier stated that Bell DP at first instance had referred to “common intention”, which was used to capture “mutual intention”, “common understanding”, and “substantive agreement”, which the Full Bench stated had been used synonymously in various decisions of the Commission to discuss the same notion.

69    After referring to what the Full Bench had said in Monash at [24], the Deputy President stated at D [112] that with the exception of Mr Johnson and Mr Rich, who were the two Union delegates who gave evidence, it was not known what the employees who voted on the agreement thought the substantive agreement was, although it was clear that each agreement that was voted upon contained the form of words that Qube sought to have varied.

70    At D [114], the Deputy President did not accept Qube’s submission that weight should be placed on the claimed failure by Mr Pryor and the Union to publicise the significant gains that the Union had achieved, describing this as “irrelevant”. The Deputy President stated that there were clear reasons why, during and after the course of negotiations, a party might seek to downplay its achievements.

71    As for Qube’s submission that the Union took no steps to ensure that Qube paid Award Penalties to its employees in circumstances where Mr Pryor must have known that they were not being paid, the Deputy President referred at D [115]–[117] to the unchallenged evidence of Mr Matthews about the modelling that he undertook between March and May 2023 by reference to two fortnightly pay periods with respect to two employees, and to the difficulties and complexity that was involved in that modelling.

72    For the above reasons, the Deputy President declined to exercise the Commission’s power to vary either the 2015 or the 2019 Agreement.

The appeal to the Full Bench

73    Qube sought permission to appeal the Deputy President’s decision to the Commission constituted by a Full Bench.

Qube’s grounds of appeal to the Full Bench

74    Qube advanced five grounds of appeal to the Full Bench. The first to third grounds centred on claims that the Deputy President had failed to consider, or alternatively give inadequate reasons in relation to, “significant, clearly articulated and centrally relevant submissions made by Qube”, being those contained in the Road Map, and the aide mémoire relating to the evidence of Mr Pryor.

75    In the alternative, by its fourth ground, Qube claimed that the Deputy President had made errors of fact, and thereby mistook the facts in deciding not to exercise the Commission’s discretion to vary the Agreements. The specific errors of fact alleged by Qube in its notice of appeal included that:

(a)    the Deputy President erred in finding that during the meeting on 22 January 2014 attended by Mr Pryor and Mr Barden on behalf of the Union, and Mr Owens on behalf of Qube, Mr Owens agreed that Qube would pay Award shift and weekend penalties on top of the agreement rates to be negotiated, and that Qube would do so via clause 4 of Part A of the draft agreement, which clause Qube claimed did not exist at the time and, in any event, had not been provided to Qube until March 2014;

(b)    the Deputy President erred in making an implicit finding that, at all material times, Mr Pryor believed that Award Penalties were payable under the 2015 and 2019 Agreements;

(c)    the Deputy President erred in finding that Mr Pryor could not reasonably discern (and was not aware) that Qube was not paying Award Penalties just by looking at employee payslips without doing complicated modelling, despite Mr Pryor conceding in cross-examination that it was “crystal clear” from the face of the payslips that no penalties were being paid;

(d)    the Deputy President erred in finding that Mr Pryor’s failure to publicise to members the Union’s supposed achievement in getting Qube to agree to pay Award Penalties on top of pre-existing loaded rates was, in effect, a deliberate bargaining tactic to downplay achievements in bargaining, despite:

(i)    there being no evidence — or submission put by any party — that Mr Pryor was motivated by that purpose in acting that way; and

(ii)    Mr Pryor’s own explanation being that it “[m]ight have slipped [his] mind at the time” and that he “had other things to worry about”.

76    Qube’s notice of appeal to the Full Bench also claimed that the Deputy President erred in failing to find that:

(a)    Qube did not agree to pay Award Penalties during the 22 January 2014 meeting, or at any subsequent time during bargaining for the 2015 Agreement;

(b)    in the alternative, insofar as there was an agreement to that effect on 22 January 2014, that such agreement was subsequently withdrawn or revoked during subsequent negotiations and before the 2015 Agreement was made;

(c)    during bargaining for the 2015 Agreement, the Union never made a claim for Award Penalties, other than weekend penalties;

(d)    Qube rejected the Union’s weekend penalty claim and the Union agreed in writing to remove the claim;

(e)    Qube and the Union had a mutual common intention at the time when the 2015 Agreement was made, that the rates of pay in the 2015 Agreement would be loaded rates and that no Award Penalties would be payable on top of these rates, whether through clause 4 of Part A of the 2015 Agreement or otherwise; and

(f)    the above mutual intention subsisted at the time when the 2019 Agreement was made.

77    Qube’s fifth ground of appeal to the Full Bench challenged the Deputy President’s finding that Qube lacked standing to apply to vary the 2015 Agreement under s 217 of the Fair Work Act because it had ceased to be covered by the Agreement.

The Union’s notice of contention before the Full Bench

78    In response to Qube’s appeal to the Full Bench, the Union filed a notice of contention, contending that the Deputy President had been in error in finding that there was an ambiguity or uncertainty in the application of the Agreements, the existence of which was a jurisdictional fact before any discretion to vary the Agreements was engaged. The Union submitted to the Full Bench in support of its contentions that there was no evidence that the employees were ever told that the rates in the agreements were loaded rates.

79    Because the Full Bench rejected Qube’s grounds of appeal, it found it unnecessary to consider the matters raised by the Union’s notice of contention.

Qube’s submissions to the Full Bench

80    Qube’s written submissions to the Full Bench are in evidence. Qube submitted to the Full Bench that there were a number of features of the case that the Deputy President failed to deal with, which included the following:

(1)    Qube submitted that the Deputy President accepted Mr Pryor’s account of the meeting of 22 January 2014 without dealing with Qube’s submissions as to the implausibility of that account, which was developed at proposition (3) of the Road Map and in oral submissions before the Deputy President, including by reference to the absence at that time of any text to the proposed clause 4 of the draft enterprise agreement, and the absence of any claim by the Union to Award Penalties at that point.

(2)    Qube submitted that the Deputy President failed to deal with its argument referred to at (5) of the Road Map that on 25 February 2014 Mr Pryor took the Union’s log of claims to a delegate meeting for approval, which included a claim for weekend penalties, but no claims for other Award Penalties. Qube submitted that the Union provided the log of claims to it the following day, and that this was implausible if Qube had already agreed on 22 January 2014 to pay all Award Penalties.

(3)    Qube submitted that the Deputy President made no findings about a meeting on 14 March 2014 that was the subject of evidence where Mr Pryor claimed that Mr Coulton agreed to incorporate Award Penalties via clause 4 of the enterprise agreement, which Mr Coulton denied.

(4)    Qube submitted that the Deputy President failed to address a submission that was made at (6) of the Road Map, and orally, which related to Qube’s rejection of the claim to penalty rates, which was expressed as “No – should remain standard”. Qube submitted that this response was inexplicable if there had already been an agreement to pay Award Penalties.

(5)    Qube submitted that the Deputy President had referred to Mr Pryor’s explanation for the Union’s removal of the claim for weekend penalties without stating whether he accepted the explanation.

(6)    Qube submitted that the Deputy President did not deal with an argument that it had made by reference to proposition (11) of the Road Map, which was that significant time was spent by the Union haggling over minor percentage increases to rates, and that the Union had encouraged employees to vote against the 2015 Agreement on the three occasions it was put to a vote. It was submitted that this conduct could not be reconciled, if it were the case that Award Penalties were to be incorporated, which would put the terms of the 2015 Agreement ahead of the Pacific National Bulk Rail Enterprise Agreement 2013, which Mr Pryor regarded as “the benchmark for success”.

(7)    Qube submitted that the Deputy President failed to deal with evidence that after the 22 January 2014 meeting Mr Pryor had authored several Newsflashes to members of the Union with updates on bargaining which identified claims to which Qube had agreed, but which did not mention Qube’s supposed agreement to pay Award Penalties under the proposed 2015 Agreement. Qube submitted that this had occurred in circumstances where Mr Pryor had conceded in cross-examination that the supposed agreement to pay these items was “the biggest gain for employees out of that entire enterprise bargaining by a country mile” and “the biggest uplift in take-home pay out of any claim in the enterprise bargaining”. Qube had relied on this evidence in support of an argument referred to at proposition (10) of the Road Map that it was implausible for Mr Pryor not to have included an agreement by Qube to pay Award Penalties in the Newsflashes if that is what in truth had occurred.

(8)    As to the Deputy President’s finding at D [114] that there were clear reasons why a party might seek to downplay achievements in bargaining, which Qube characterised as a finding that there was a deliberate strategy to that effect, Qube submitted that there was no evidence for this finding, and nor did any party advance that explanation in submissions.

(9)    Qube submitted that the Deputy President did not deal with its submission, to which it had referred at proposition (2) of the Road Map, that its own internal modelling of the financial impact of the 2015 Agreement was based upon loaded rates of pay.

(10)    Qube submitted that the Deputy President failed to deal with a submission referred to at proposition (1) of the Road Map that the rates that were incorporated in the 2015 Agreement were increases on the loaded rates that were payable under the most beneficial of the four Transferred Agreements, being the South Spur Rail Services Pty Ltd Employee Collective Agreement 2009 (the South Spur Agreement), and that it was implausible in this circumstance that Qube had agreed to pay the Award Penalties on top of the increased loaded rates.

(11)    Qube submitted that the Deputy President had failed to deal with a submission referred to at proposition (13) of the Road Map that from the commencement of the 2015 Agreement Qube paid its employees the loaded rates for which the agreement provided, and did not pay Award Penalties, and that this was inexplicable if Qube had actually agreed to pay Award Penalties.

(12)    Qube submitted that the Deputy President failed to deal with its submission referred to at proposition (10) of the Road Map that neither the Union nor any of the employees, including any delegate who had been involved in negotiating the 2015 Agreement, had ever complained about Qube’s failure to pay Award Penalties, loadings and allowances, which showed that the Union had never told employees about such an agreement.

(13)    Qube submitted that the Deputy President had failed to deal with a submission to which Qube had referred at proposition (12) of the Road Map, which was that it was implausible that after the 2015 Agreement had been approved the Union had agreed to expressly loaded rates for the Victorian enterprise agreement that were essentially the same. Qube submitted that this was of especial significance because Mr Barden, who had been involved in negotiating the 2015 Agreement on behalf of the Union, was also involved in negotiating the Victorian agreement.

81    As to the first to third grounds of its notice of appeal more generally, Qube submitted to the Full Bench that the Deputy President failed to grapple with a key plank of Qube’s case, which was that he had to deal with each of the propositions set out in the Road Map. Qube submitted that while the Deputy President recited the propositions in the Road Map when summarising Qube’s submissions, he failed to substantively deal with them in his analysis. Qube submitted that the Deputy President dealt, in part, with only two of the propositions, being why Mr Pryor did not tell members about the “big win” in getting Qube to agree to pay Award Penalties, and his failure to complain about Qube not paying the Award Penalties. And to the extent that the Deputy President did deal with the propositions in part, Qube submitted that his findings were contrary to the evidence. Qube submitted that the inescapable conclusion was that while the Deputy President recited the propositions, he failed to consider them.

82    Qube further submitted that the Deputy President failed to deal with the matters raised in its aide mémoire concerning Mr Pryor’s credibility. At least in writing, that submission to the Full Bench was undeveloped.

83    Finally, in relation to the first to third grounds Qube submitted to the Full Bench that, if the Deputy President did consider its submissions and had rejected them, then his reasons for doing so were inadequate.

84    In support of its fourth ground of appeal to the Full Bench, Qube submitted that the Deputy President’s finding that Qube had agreed to pay Award Penalties was “glaringly improbable” and “contrary to compelling inferences” when measured against objective facts:

(1)    Qube submitted that if the rates provided for in the 2015 Agreement were unloaded rates, this would represent an implausible industrial bargain. That was because the Transferred Agreements which the 2015 Agreement replaced provided for loaded rates, and Qube had used the most beneficial of the Transferred Agreements as a base on which percentage increases were applied. Qube submitted that if the rates under the 2015 Agreement were not loaded, this would represent a more than 20% increase in pay.

(2)    Qube submitted that it was inherently unlikely that it would have agreed to pay Award Penalties through a sidewind, being an Award incorporation clause, without having seen the text of the clause and at the first high-level meeting without its lead negotiator being present.

(3)    Qube submitted that all the subsequent conduct of the parties during bargaining would be implausible if Qube had, from the outset, agreed to pay the Award Penalties.

(4)    Qube submitted that the post-approval conduct of the parties would also be implausible if there had been actual agreement to pay Award Penalties.

(5)    Qube submitted that the Deputy President’s finding of an agreement to pay Award Penalties rested on the evidence of Mr Pryor, whom Qube described as a hopeless witness who had lied and obfuscated throughout his evidence. For all the reasons it had advanced, Qube submitted that the Deputy President’s acceptance of Mr Pryor’s evidence was unsustainable, and that once his account was rejected, the objective facts pointed overwhelmingly to there being no agreement to pay Award Penalties, and to their being a common mutual intention that the rates agreed to were loaded rates.

85    As to its fifth ground of appeal to the Full Bench, Qube made a formal submission challenging the correctness of the Full Bench’s decision in Qube Ports FWCFB, but accepted that the Full Bench would follow its previous decision unless and until it was overturned by the Court.

86    In relation to disposition of the appeal to the Full Bench, Qube submitted to the Full Bench that if the matters raised by Grounds 1, 2 or 3 were upheld, then the matter should be remitted for rehearing before a different member of the Commission. If the claimed errors raised by Ground 4 were upheld, then Qube submitted that the Full Bench should itself exercise the power under s 217 of the Fair Work Act and make the variations that it sought.

The Full Bench’s decision

87    The Full Bench commenced its reasons by setting out at FB [1]–[16] uncontroversial aspects of the background to the appeal, and at FB [17]–[32] summarised the Deputy President’s reasons for the decision under appeal. The Full Bench referred at FB [33]–[36] to Qube’s grounds of appeal and to the submissions made by Qube in support. The Full Bench then referred at FB [37]–[42] to the Union’s submissions made in response and to those made in support of its notice of contention.

88    The Full Bench commenced its consideration by stating at FB [44] that the usual basis for the exercise of the discretion to vary an enterprise agreement under s 217 of the Fair Work Act, once ambiguity or uncertainty is established, is that the variations would resolve the identified ambiguity or uncertainty in a way which gives effect to the common intention or substantive agreement of the makers of the agreement in question. The Full Bench cited previous decisions of the Commission that had adopted this approach, and referred to the observations of Bell DP in Monash and his citation of [42] of the judgment of Kiefel J in Simic which we set out earlier at [24].

89    The Full Bench at FB [48] agreed with the general observations of Bell DP in Monash with the qualification that the “words or actions” of parties relevant to ascertaining common intention will include the text of the relevant provisions in the agreement which was ultimately made. The term “words or actions” referred to by the Full Bench at FB [48] was derived from the judgment of Tipping J in Westland Savings Bank v Hancock, which was cited with approval by Hodgson J in Bush v National Australia Bank Ltd, which in turn was quoted with approval by Kiefel J in Simic at [42]. It is convenient to state at this point that an assumption underlying a claim for the equitable remedy of rectification that was considered in these authorities is that the document sought to be rectified does not reflect the common intention of the parties. That is not to say that the terms of the document sought to be rectified may not be relevant to a factual enquiry as to the parties’ common intention, but the document might be the very thing that a party claims does not embody the parties’ common intention.

90    The Full Bench then stated at FB [49] that there was some difficulty in readily applying the notion of ascertaining the common intention of the “parties”, citing the observation of the Full Court in Toyota at [88] to which we referred earlier that an enterprise agreement “is an agreement in name only”, and citing the reasons of Bell DP in Monash, before stating at FB [50]:

… we consider that it is at least relevant to have regard to the terms of the agreement upon which the employees voted and any explanation given to them as to those terms prior to the vote, whether by the employer pursuant to s 180(5) of the FW Act or otherwise. Further, it will usually be appropriate to take into account the words and conduct of bargaining representatives of employees during the bargaining process for the agreement — particularly where, as here, there is only one bargaining representative which represents the large majority of employees covered by the agreement.

91    The Full Bench then referred to the variations that Qube sought, and stated at FB [52] that:

... To persuade the Commission to exercise its discretion to make such a variation, it would be necessary to establish the existence of a common intention on the part of Qube, the [Union] and the relevant employees, demonstrated by their words and actions, that clause 4.2 was to have an effect directly contrary to its plainly-expressed terms. That would obviously be a difficult task absent very clear evidence of such a common intention. ...

92    The above passage is important in framing the issue that was before the Commission.

The Full Bench’s ten key elements

93    Before it turned to Qube’s specific grounds of appeal, the Full Bench at FB [53] stated that the evidence of the contemporaneous documents and the evidence otherwise not in dispute “provided no identifiable positive support” for Qube’s claimed common intention:

We will turn to Qube’s specific grounds of appeal shortly. However, it is necessary to observe at the outset that the evidence of the contemporaneous documents and the evidence otherwise not in dispute concerning the words and actions of Qube, the [Union] and the employees in relation to the bargaining for and the making of the 2015 Agreement provide no identifiable positive support for the proposition that there was a common intention that the Award penalties were not to apply to the hourly rates in the agreements. Indeed, the evidence favours the contrary proposition. ...

94    The Full Bench then referred to ten “key elements” of the evidence that favoured the proposition, contrary to Qube’s case, that there was no common intention that Award Penalties were not to apply to the hourly rates in the Agreements. In summary, the elements of the evidence to which the Full Bench referred were as follows:

(1)    The first point was that the Full Bench stated at FB [54] that the terms of the 2015 Agreement represented a clear departure from the four Transferred Agreements, which provided for loaded rates of pay, and which did not incorporate the terms of any applicable Award.

(2)    Secondly, the Full Bench referred at FB [55] to the Union’s log of claims of 30 August 2013, which was endorsed by the Union’s members in October 2013, and the claim for the payment of weekend shift penalties. The Full Bench stated that this represented a clear intention on the part of the Union to depart from the position prevailing under the Transferred Agreements.

(3)    Thirdly, the Full Bench referred at FB [56]–[57] to an email from Mr Coulton to the Union dated 29 October 2013, which referred to the proposal to separate state-based enterprise agreements, which would have national conditions in Part A, and state-based conditions in Part B. In cataloguing the type of conditions that would be in Part A Mr Coulton referred to “penalty rates” which the Full Bench stated disclosed that Qube intended that the common conditions in Part A would deal with penalty rates, and that clause 4 of the 2015 Agreement in its final form was developed as part of the Part A conditions.

(4)    Fourthly, at or by the time of the commencement of bargaining, the National Office of the Union had developed a “National Model Enterprise Agreement 2013” that included a provision which incorporated a relevant Award. The Full Bench at FB [59] inferred that this model provision formed the basis on which clauses 4.1 to 4.3 of the 2015 Agreement was drafted.

(5)    Fifthly, the Full Bench referred at FB [60]–[61] to Mr Pryor’s note of the meeting on 22 January 2014 with Mr Owens of Qube. We set out the text of the note at [48] above within the extract of D [53] of the Deputy President’s reasons. The Full Bench stated that, notwithstanding Qube’s general attack on Mr Pryor’s credibility, there was no challenge of substance to the authenticity of the note. However, the Full Bench stated in footnote number 45:

It was put to Mr Pryor in cross-examination that ‘…you’ve made up a reason to explain a note that you’ve added after the event’. He denied this. The matter was not pursued beyond this: transcript, 7 December 2023, PNs 1940–1952.

As to the contents of the note, the Full Bench stated that the words, “Agree to leave clause 4 (Part A) to cover shift penalties & weekends”, were to be understood as meaning that it was agreed that clause 4 would deal with the subject matter of shift and weekend penalty rates, which was consistent with the fact that the Union had advanced claims about these subject matters, and consistent with the terms of clause 4.2 of the 2015 Agreement. The Full Bench further stated that the note also recorded Mr Owens rejecting the inclusion of a clause requiring forecast master rosters to work out applicable penalties in advance, which was a style of rostering which Qube could not accommodate, and that this further supported the proposition that the note correctly recorded an agreement reached at the 22 January 2014 meeting.

(6)    Sixthly, the Full Bench at FB [62]–[65] referred to correspondence passing between the Union and Qube following the 22 January 2014 meeting, which included the exchanges of drafts of what became the 2015 Agreement in respect of which Qube expressed no concerns in relation to the text of clauses 4.1 to 4.3. The Full Bench considered that the Union’s claim to weekend shift penalties and loadings had been resolved by Qube’s agreement to deal with them in clause 4 of the Part A conditions.

(7)    Seventhly, the Full Bench at FB [66] referred to Mr Coulton’s evidence that at the bargaining meetings he attended clause 4 was never discussed, or raised by either party, and did not change. The Full Bench referred to Mr Coulton’s evidence that “No-one ever said or stated what the clauses were supposed to do, nor how they were supposed to operate (if at all)”, and stated that this evidence was, “by itself, destructive of the proposition that there was a common intention that clause 4.2 would not operate in accordance with its terms”.

(8)    Eighthly, the Full Bench at FB [67] referred to the fact that the employees voted on the proposed 2015 Agreement three times before it was voted up. The Full Bench referred to Qube’s obligation under s 180(5) of the Fair Work Act to take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the employees prior to each vote. The Full Bench referred to the terms of clause 4.2 of the proposed agreements, and to its express provision for the payment of Award Penalties, and stated that it might reasonably have been understood by the employees as intended to have effect according to its terms. The Full Bench stated that there was no evidence that any explanation to the contrary was ever provided to the employees. And apart from the quantum of increases in hourly rates, there was no written explanation of the effect of the terms of the proposed agreements in evidence. The Full Bench referred to evidence of Mr Coulton about his meetings with the employees at the depots, but he did not give any evidence that he explained the effect of clause 4.2, or that the rates were loaded rates. The Full Bench stated that Mr Coulton’s evidence was merely in the negative, that is, that he did not at any stage say that Award Penalties would be payable in addition to hourly rates. The Full Bench concluded the eighth element as follows:

There is therefore no basis to conclude that the employees, when they voted to make the 2015 Agreement, had any clear basis for understanding that clause 4.2 would not have effect according to its terms because the ‘Hour Rates’ in the agreement were loaded rates.

(9)    Ninthly, the Full Bench at FB [68] referred to Mr Coulton’s Form F17 declaration that accompanied the application for approval of the 2015 Agreement upon which the Commission had relied in its decision of 29 March 2016 for the purpose of its consideration of the Better Off Overall Test (the “BOOT”) in approving the Agreement. The declaration identified the 2010 Award as the reference instrument, and Mr Coulton declared, amongst other things, that the Agreement did not contain any terms that were less beneficial and were not conferred by the reference instrument. The Full Bench stated that the declaration was not consistent with the position that, despite the plain wording of clauses 4.1 and 4.2, the effect of the 2015 Agreement was that it excluded the Award Penalties.

(10)    Finally, at FB [69] the Full Bench addressed Qube’s argument that the Victorian enterprise agreement, which contained loaded hourly rates that were essentially the same as those under the 2015 Agreement, supported its claim that there was a common intention that the rates under the 2015 Agreement would likewise be loaded rates. The Full Bench rejected this argument, stating that the Victorian agreement expressly provided that the rates were loaded rates, and that this indicated that where Qube and the Union had a common intention that hourly rates be loaded rates which displaced Award entitlements, this was expressly and unambiguously stated in the agreement.

The Full Bench rejected Qube’s Road Map submission as “fundamentally misconceived and not relevant”

95    The Full Bench stated at FB [70] that the above points provided the context in which Qube’s grounds of appeal were to be considered. The Full Bench stated that the Deputy President was not required to refer in his decision to every piece of evidence and every contention advanced by the parties, with much depending upon the importance of the submission to the claims being made. The Full Bench added that the fact that a submission was not expressly addressed in the Deputy President’s decision did not mean that it was not considered, and that an inference would not readily be drawn in that respect in what the Full Bench described as “otherwise plainly a comprehensive decision”. For this proposition, the Full Bench cited authority that included the Full Court’s decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]–[47] (French, Sackville and Healy JJ).

96    At FB [71], the Full Bench referred to Qube’s central contention, consistent with the approach in s 217 matters, that it was the “objective common intention” of Qube, the Union, and the relevant employees, that the rates in the 2015 Agreement were loaded rates which excluded Award Penalties. The Full Bench stated that it was plain that the Deputy President had considered this case:

It is plain that the Deputy President considered this case by reference to the evidence concerning the history of the bargaining for and the making and approval of the 2015 Agreement and, at [109], rejected it. His reasons for doing so are made apparent in [109]–[117]. In this way, we consider that the Deputy President properly discharged his duty to consider and address Qube’s case.

97    The Full Bench’s statements at FB [72] are central to a consideration of the submissions advanced by the parties to the Court on this application. It was there that the Full Bench rejected Qube’s Road Map submission as “fundamentally misconceived and not relevant”. Because of the importance of these statements, we will set out FB [72] in full:

We do not consider that any appealable error arises from the fact that the Deputy President did not, in his decision, make express findings in respect of each of the 15 propositions contained in Qube’s Road Map submission. That submission was, in our view, fundamentally misconceived and not relevant to the central question of whether the common intention contended for by Qube was demonstrable. The premise of the submission was that each proposition would have to be accepted in order to accept the RTBU’s case that Qube had agreed to pay the Award penalties and loadings. However:

(1)    Qube was the applicant in the matter and bore the burden of persuading the Commission that the contended-for common intention existed. It was not entitled to succeed on the mere basis of a non-acceptance of the RTBU’s case.

(2)    The issue for determination was not what Qube had agreed, or not agreed, to do in the 2015 Agreement. Objectively, what Qube had agreed to was what was expressed in the terms of the 2015 Agreement. What subjective intention might be imputed to Qube as to what it thought it was agreeing to was irrelevant to the search for common intention. Common intention, as earlier discussed, is to be ascertained from what is objectively apparent from the words or actions of each party, not from what one party says was in their mind. It may be accepted that Mr Coulton at least did not consciously intend that the Award penalties would be payable upon the rates contained in the 2015 Agreement (or the 2019 Agreement). However, that is not evidence of common intention, and the outcome which prevailed is better explained by inadvertence and a lack of diligence on the part of Qube.

(Emphasis in italics added.)

98    In the alternative to its rejection of Qube’s Road Map submission as “fundamentally misconceived and not relevant”, the Full Bench considered that the Deputy President was alive to the submission, stating at FB [73] that Qube had sought to frame the case in “a particular and ... impermissible way”:

In any event, it is apparent that the Deputy President was alive to Qube’s Road Map submission, since he set it out in full in the decision at [82]. That submission, as explained, sought to frame the case in a particular and, in our view, impermissible way, but the Deputy President was not obliged to adopt that framing of the case in the structure and reasoning of his decision. The factual matters adverted to in the submission were generally dealt with by the Deputy President in his findings of fact at [40]–[81] and then considered through the prism of a correct understanding of the principles applicable to the ascertainment of common intention at [105]–[117]. In doing so, we consider that Deputy President properly discharged his duty to consider Qube’s case.

(Emphasis in italics added.)

99    At FB [74], the Full Bench held that Qube’s submissions to the Deputy President concerning Mr Pryor’s credibility were plainly addressed in the decision, and substantially accepted. The Full Bench referred to the Deputy President’s general finding that he could not place any significant weight on the evidence of any witness other than Mr Matthews, and to the two criticisms of Mr Pryor’s evidence that the Deputy President had addressed at D [37]–[39]. The Full Bench stated that the Deputy President was correct to state at D [38] that the evidence of Mr Pryor that it had “slipped his mind” to tell the employees about the massive windfall gain had limited impact on the question of common intention, and to conclude at D [114] that it was irrelevant.

100    At FB [77](3) and (4) the Full Bench stated:

(3)    It is contended that the Deputy President erred in finding that ‘Qube agreed to pay Award Penalties’. The Deputy President did not make any finding in such terms nor, for the reasons earlier explained, was this the relevant issue. The critical finding that the Deputy President did make was that Qube had not established its case of common intention.

(4)    Further to (3), Qube contends that it was implausible for various reasons that it agreed to pay the Award penalties. The question of implausibility is one which arises only from Qube’s subjective perspective. An objective analysis of the words and actions of the parties during the bargaining and approval process render it entirely plausible that there was, objectively assessed, a common intention for the Award penalties to be paid — particularly in circumstances where the [Union] made a claim for weekend penalties to be paid and Qube agreed to a provision which in express terms provided for Award penalties to be paid on the agreement rates.

101    At FB [75], the Full Bench stated that Qube’s focus on the evidence of Mr Pryor was in any event something of a “straw man”. The Full Bench stated that Mr Pryor’s evidence, except where corroborated by contemporaneous documents or other evidence, had very little relevance to the outcome. The Full Bench stated that the Deputy President’s reasons at D [109]–[117] made it apparent that the conclusion that Qube had failed to establish the common intention for which it contended was not dependent on any aspect of Mr Pryor’s evidence that was not corroborated by documents or Mr Matthew’s unchallenged evidence.

102    For the above reasons, the Full Bench rejected Qube’s first to third grounds of appeal, which rested on claims that the Deputy President had failed to consider its case, or alternatively had not given adequate reasons for rejecting it.

The Full Bench rejected the claimed errors raised by Ground 4

103    The Full Bench then turned to Qube’s fourth ground of appeal, which alleged specific errors in fact-finding by the Deputy President to which we have referred at [75]–[76] above. The Full Bench rejected each of the grounds.

104    At FB [77], in five sub-paragraphs, the Full Bench rejected challenges by Qube to several findings of fact:

(1)    The first point that the Full Bench addressed at FB [77] was Qube’s claim at 4(d) of its notice of appeal that the Deputy President had erred in finding at D [114] that Mr Pryor’s failure to publicise obtaining Qube’s agreement to pay Award Penalties on top of loaded rates was, in effect, a deliberate tactic to downplay achievements in bargaining. The Full Bench stated that the Deputy President had not made this finding, and had simply said that there were clear reasons why it may be perceived that, during and after the course of a negotiation, a party may seek to downplay achievements in bargaining. The Full Bench held that this statement was made in support of the Deputy President’s primary conclusion that the issue was irrelevant, with which conclusion the Full Bench agreed. The Full Bench stated that the issue was irrelevant because:

As we have discussed earlier, the position is that there was no evidence that the employees were told anything by Qube, or the [Union], about the meaning of clauses 4.1 or 4.2, nor is there any evidence that they were told by anyone that the rates in the 2015 Agreement were loaded rates. In the face of the text of the agreement upon which they voted, there is no basis to conclude therefore that the employees held the common intention which Qube seeks to ascribe to them.

(2)    The second point that was addressed at FB [77] was Qube’s claim at 4(c) of the notice of appeal to the Full Bench that the Deputy President had erred in finding that Mr Pryor could not reasonably discern (and was not aware) that Qube was not paying Award Penalties just by looking at employee payslips without doing complicated modelling, despite Mr Pryor conceding in cross-examination that it was “crystal clear” from the face of the payslips that no penalties were being paid. The Full Bench held that the Deputy President had made no such finding, and had referred to the unchallenged evidence of Mr Matthews about the difficulty in identifying Qube’s non-payment of the penalties and allowances.

(3)    The third point that the Full Bench addressed at FB [77] was a claim by Qube that the Deputy President had erred in finding that “Qube agreed to pay Award Penalties”. Qube had submitted to the Full Bench that this finding was “glaringly improbable”, and “contrary to compelling inferences”. The Full Bench held that the Deputy President did not make any finding in such terms, and nor was it the relevant issue, stating:

The Deputy President did not make any finding in such terms nor, for the reasons earlier explained, was this the relevant issue. The critical finding that the Deputy President did make was that Qube had not established its case of common intention.

(4)    The fourth point involved Qube’s claim that it was implausible that it had agreed to pay Award Penalties. The Full Bench rejected this claim, stating:

The question of implausibility is one which arises only from Qube’s subjective perspective. An objective analysis of the words and actions of the parties during the bargaining and approval process render it entirely plausible that there was, objectively assessed, a common intention for the Award penalties to be paid — particularly in circumstances where the [Union] made a claim for weekend penalties to be paid and Qube agreed to a provision which in express terms provided for Award penalties to be paid on the agreement rates.

(5)    The fifth point was Qube’s submission that the Deputy President had found that Qube had agreed to pay Award Penalties based upon the evidence of Mr Pryor who was “a hopeless witness who lied and obfuscated throughout his evidence”. The Full Bench did not accept this submission, stating:

For the reasons already explained, the actual outcome determined by the Deputy President was not dependent on the evidence of Mr Pryor except where corroborated by the documents or other evidence. In respect of the Deputy President’s findings concerning the 22 January 2014 meeting, he relied upon Mr Pryor’s evidence on the basis that it was corroborated by a contemporaneous note of the meeting made by Mr Pryor […]. Qube has not advanced any submission as to why the Deputy President was not entitled to do so.

105    At FB [78]–[79] the Full Bench addressed factual findings that Qube claimed the Deputy President had erroneously failed to make. The Full Bench addressed in particular the claim that the Deputy President should have found that Qube and the Union had a mutual common intention at the time the 2015 Agreement was made that the rates of pay specified in the Agreement would be loaded rates to which no Award Penalties were applicable, and that this intention subsisted at the time the 2019 Agreement was made. The Full Bench rejected this claim, stating at FB [79]:

This contention of error is rejected. The analysis of the objective evidence concerning the parties’ words and actions during the bargaining, making and approval of the 2015 Agreement which we have earlier set out makes it clear that the Deputy President did not err in his non-acceptance of Qube’s case as to common intention. We do not consider that any contrary finding was available on the evidence.

The Full Bench rejected the claimed error in relation to standing raised by Ground 5

106    Finally, the Full Bench rejected Qube’s claimed error of law in relation to its standing to apply under s 217 to vary the 2015 Agreement which was raised by its fifth ground of appeal. The Full Bench stated that the Deputy President did not err in following the Full Bench’s decision in Qube Ports FWCFB. As we have mentioned, the correctness of that decision was subsequently upheld by the Full Court of this Court.

Qube’s grounds of review in this application

107    Qube’s grounds of review of the Full Bench’s decision were set out in an affidavit of its solicitor. The grounds differentiate between claimed jurisdictional errors at first instance, and claimed jurisdictional errors by the Full Bench on appeal. The relevance of the claimed first instance errors is that Qube submitted that if the Full Bench’s decision was quashed, then the Deputy President’s decision should in turn be quashed. Qube’s grounds of review are as follows:

First Instance Error 1:

[The Deputy President] denied Qube procedural fairness and constructively failed to exercise jurisdiction by failing to consider significant, clearly articulated and centrally relevant submissions made by Qube — being the Qube Roadmap and attendant oral submissions that explained and expanded on the Qube Roadmap.

First Instance Error 2:

At [95]–[97] and [119] of the First Instance Decision, [the Deputy President] erred in finding that, on proper construction of s 217, Qube did not have standing to apply to vary the 2015 Agreement.

Full Bench Error 1:

At [66], [72], [72](2), [74], [77](1), [77](3) and [77](4) of the Appeal Decision, the Full Bench proceeded on the basis that:

(a)    in exercising the discretion under s 217 of the FW Act whether to vary an enterprise agreement to remove ambiguity or uncertainty, the subjective intentions of the bargaining representatives for that enterprise agreement (here, being Qube and [the Union]) as to its meaning and effect were irrelevant; and

(b)    rather, it was only the objective common intention that was relevant.

In proceeding on this basis, the Full Bench misconstrued s 217 and fell into jurisdictional error by:

(c)    misunderstanding the jurisdiction exercised by [the Deputy President] under s 217 of the FW Act, which was to be reviewed on appeal;

(d)    misunderstanding or misconstruing the nature of an opinion which the Full Bench had to form in discharging its appellate function; and

(e)    asking itself the wrong question in a way which affected its purported exercise of its appellate function.

Full Bench Error 2:

The Full Bench made the following findings that were irrational, illogical, not based on findings or inferences supported by logical grounds and could not be reached logically or rationally on the available material:

(a)    that the Qube Roadmap, and the propositions in it, were irrelevant to the question of common intention for the purposes of s 217 (at [72], [74], [77](1) and, implicitly, [61]);

(b)    that [the Deputy President] did not fail to consider the Qube Roadmap and did not fail to give adequate reasons (at [71]–[73]).

Full Bench Error 3:

At [81] of the Appeal Decision, the Full Bench erred in finding that, on proper construction of s 217, Qube did not have standing to apply to vary the 2015 Agreement.

Qube’s submissions

108    Qube framed its submissions by drawing attention to the distinction made in the authorities concerning the equitable remedy of rectification between the objective or presumed mutual intention of the parties to an instrument, and the parties’ subjective or actual intention.

109    Qube submitted that its Road Map was centrally relevant to its case before the Commission. It submitted that the Road Map identified objective uncontroversial facts, and posited a series of factual propositions calculated to expose the implausibility of Mr Pryor’s account that Qube had agreed to pay Award Penalties at the 22 January 2014 and 14 March 2014 meetings, and to show that, on the contrary, both Qube and the Union must have had a mutual intention that the rates in the 2015 Agreement would be loaded rates. Qube highlighted several propositions in the Road Map on which it had relied to support its case that the cumulative effect of the propositions made it implausible that Qube had expressed agreement to pay the Award Penalties at the meetings as Mr Pryor had claimed, and that the conduct of Qube and the Union during and after bargaining could not be reconciled with either Qube or the Union intending that Award penalties would be payable on top of the agreed hourly rates.

Qube’s submissions - First Instance Error 1

110    Qube submitted that the Deputy President had accepted Mr Pryor’s account of the 22 January 2014 meeting, and found that at this meeting Qube had agreed to pay the Award Penalties through the Award incorporation clause. It was submitted that the Deputy President made his findings about what was agreed at the 22 January 2014 meeting based upon Mr Pryor’s evidence without dealing with Qube’s submissions as to the implausibility of that finding, having regard to the surrounding circumstances identified in the Road Map. The finding that some agreement was reached at the 22 January 2014 meeting led the Deputy President to conclude that Qube had failed to prove that it and the Union had a mutual intention that the rates specified in the 2015 Agreement would be loaded.

111    Qube submitted that the force of its Road Map submission was the cumulative impact of each proposition, which in its submission pointed to the implausibility that there was an actual common intention to pay the Award Penalties on top of the loaded rates, which represented an increase on the loaded rates in the South Spur Agreement which had provided for the highest loaded hourly rates of the four Transferred Agreements. It was submitted that while the Deputy President identified the 15 propositions in the Road Map, he attempted to grapple with only two of them. It was submitted that with those two exceptions, the Deputy President failed to consider and have regard to them. Qube acknowledged that it may not have succeeded in the end, but submitted that it did not get a hearing on the merits because its Road Map submission was not considered. Qube submitted that this failure amounted to a denial of procedural fairness or a constructive failure to exercise jurisdiction and constituted jurisdictional error.

Qube’s submissions – Full Bench Error 1 – misconstruction of s 217

112    Qube submitted that while the Full Bench correctly identified that the search for mutual intention of the parties is concerned with ascertaining the parties’ actual, subjective intentions inferred from objective evidence, it misunderstood the nature of this inquiry. Qube submitted that the Full Bench was preoccupied with evidence of objective or presumed intention, and regarded evidence of the parties’ subjective intention as irrelevant. Qube placed particular reliance on what the Full Bench said at FB [72](2) of its decision, which we set out under [97] above. In relation to the Full Bench’s statement that Qube’s subjective intention was “irrelevant”, Qube submitted that far from being irrelevant it represented one half of the parties’ mutual intention.

113    Qube submitted that the Full Bench’s preoccupation with objective intention, and its dismissal of Qube’s subjective intention as being not relevant to the parties’ actual common intention, was also evident from FB [77](4) of its reasons, to which we referred at [104] above. Qube submitted that it was also apparent that the Full Bench had not considered the Road Map to be relevant to whether Mr Pryor’s evidence of the 22 January 2014 meeting should have been accepted, because the Full Bench upheld the Deputy President’s findings as to that evidence at FB [61], before addressing the Road Map which, as we have noted, the Full Bench dismissed as being “fundamentally misconceived and not relevant”.

114    There were other aspects of the Full Bench’s decision on which Qube relied as showing that the Full Bench had misunderstood the nature of the case that Qube had advanced. Qube had submitted in the Road Map that Mr Pryor’s failure to inform the employees of the “massive windfall gain” was a fact that supported its case on common intention, yet the Full Bench at FB [74] and [77](1) interpreted the Deputy President’s consideration of this issue as involving a conclusion that it was “irrelevant”, which the Full Bench said was correct.

115    Qube submitted that the Full Bench’s finding at FB [66] (see [94](7) above) betrayed that the Full Bench was addressing objective mutual intention. In that part of its reasons, the Full Bench said that Mr Coulton’s evidence that clause 4 of the proposed 2015 Agreement was not discussed at the bargaining meetings he attended was “by itself, destructive of the proposition that there was a common intention that clause 4.2 would not operate in accordance with its terms”. Qube also submitted that the Full Bench’s rejection at FB [77](3) of its claim that the Deputy President had erred in finding that it had agreed to pay the Award Penalties, on the ground that this was not the relevant issue, also betrayed a misunderstanding of the case.

116    Qube submitted that the approach of the Full Bench involved a misconstruction of s 217 of the Fair Work Act. That was because, Qube submitted, on a proper construction of s 217 the parties’ subjective intentions and understanding – inferred from objective evidence – were relevant and significant factors in the exercise of the discretion whether to vary an enterprise agreement. Qube submitted that the error was jurisdictional because it involved the Full Bench misunderstanding the jurisdiction that had been exercised by the Deputy President, misunderstanding or misconstruing the nature of an opinion that it had to form in discharging its appellate function, and asking itself the wrong question in a way that affected the purported exercise of its appellate function.

Qube’s submissions – Full Bench Error 2 – legal unreasonableness

117    Qube submitted that the Full Bench’s rejection of the Road Map as being irrelevant should be characterised as irrational, illogical, or not based on findings or inferences supported by logical grounds, such that it cannot be said to be possible for this finding to have been made logically or rationally on the available material, and submitted that the error was therefore jurisdictional.

Qube’s submissions – First Instance Error 2 and Full Bench Error 3 – standing

118    Qube made only a formal submission in support of its claim that the Full Bench had erred in holding that Qube did not have standing to apply under s 217 to vary the 2015 Agreement because it had ceased to be covered by the agreement at the time the application to the Commission was made. Qube accepted that this Court would follow the Full Court’s previous decision in Qube Ports v CFMEU. Shortly after the hearing of this application, the High Court refused an application for special leave to appeal the Full Court’s decision: see Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] HCADisp 42.

The Union’s submissions

119    The Union disputed several aspects of the underlying facts and circumstances on which Qube relied in its application to the Commission. The Union pointed to the elements of the case which the Full Bench identified at FB [53]–[70] of its reasons and which we have summarised at [94] above. The Union disputed Qube’s submission that the Union’s claim for penalties made in February 2014 was limited to weekend penalties, submitting that the contemporaneous documents supported that the claim was for weekend penalties and other Award penalties.

120    The Union submitted that Qube’s submissions did not take account of the fact that the Deputy President had made adverse credibility findings about Mr Coulton, as well as the Union’s witness Mr Pryor. The Union submitted that Qube had not grappled with the fact that the Deputy President had supported his acceptance of Mr Pryor’s evidence about the 22 January 2014 meeting by reference to the note that Mr Pryor made, and submitted that it was never put to Mr Pryor that the note was a fabrication or inauthentic, referring to FB [61] which we have summarised at [94](5) above.

121    The Union also referred to the evidence in cross-examination of the Union delegate Mr Rich, who said that the claim for weekend penalties was not pressed because the Award was incorporated. It was submitted that this evidence fell to be evaluated with other evidence, including the fact that Mr Coulton caused both the 2015 and 2019 Agreements to be put to a vote with the incorporation of the Awards, without informing the employees that there was an intention that the Award Penalties would not apply

122    The Union submitted that the email of Mr Coulton to Mr Matthews of the Union during the course of negotiating the replacement for the 2019 Agreement, relevant parts of which we extracted under [54] above, was “devastating” to Qube’s case. Other factual matters relied on by the Union included the evidence of Mr Matthews about the difficulties in ascertaining whether the wages that were paid included Award Penalties, and the evidence about the Victorian enterprise agreement, which it submitted did not assist Qube’s case. In relation to the subsequent making of the Victorian enterprise agreement relied on by Qube in the Road Map, the Union turned the significance of this around and submitted that it was an instance where, if there was an intention that the rates provided for in the enterprise agreement be loaded rates, then the agreement expressly provided for it. In making this submission, the Union relied on the Full Bench’s reasoning at FB [69] (see [94](10) above), which made the same point. The Union submitted that the significance of the Victorian agreement as a point against Qube’s submissions as to common intention was compounded by the fact that Qube put the 2019 Agreement to the employees for a vote, retaining the references in clause 4 to the incorporation of Award terms.

123    The Union accepted that the Road Map was a significant part of Qube’s case. It submitted that the Road Map was directed to what inferences should be drawn from the evidence that was before the Commission. The Union submitted that the Commission was not required in its reasons to record every feature of the evidence that it had considered. It was submitted that it was clear that the Commission at first instance and on appeal was aware of the Road Map, and that the Commission took into account those matters that were significant to the reasoning in which it engaged. It was submitted that the Commission’s preference for some evidence over other evidence did not amount to jurisdictional error, and that Qube’s complaint was no more than that the Commission did not draw the inferences that Qube had sought. It was submitted that the Commission had therefore acted within power, and did not make any error of a jurisdictional nature.

124    The Union further submitted that the Commission addressed the issue that it was required to address, namely whether there was a relevant common intention based upon the material that was before the Commission. It was submitted that the Commission made no jurisdictional error in giving weight to the evidence of Mr Pryor and not giving weight to the other matters advanced by Qube.

125    Turning specifically to the grounds of review that Qube advanced, the Union addressed first the claimed Full Bench errors on the basis that the Full Bench’s decision was the operative exercise of power by the Commission.

The Union’s submissions – Full Bench Error 1 – misconstruction of s 217

126    The Union submitted that the first claimed Full Bench error was premised on an unfair and erroneous parsing of the Full Bench’s analysis.

127    The Union emphasised that it was necessary for any errors of the Commission to be material in order for an error to be jurisdictional. The Union submitted that Qube’s case paid insufficient regard to the actual intention of the employees who voted on the Agreements. It was submitted that Qube’s Road Map document paid scant attention to the position of the employees, and what intention was to be attributed to them. It was submitted that, within the scheme of the Act, ascertaining the intention of the employees was critical because of their role in voting when making enterprise agreements, and also in voting on any amendments to an enterprise agreement.

128    In relation to FB [72], which was submitted by Qube to be a primary source of the errors in the Full Bench’s decision, the Union submitted that the Full Bench was to be taken as conveying that the Road Map was irrelevant because it was directed to the Union’s case that there was an agreement for the Award Penalties to be paid, whereas the correct issue was directed to common intention on which Qube bore an onus.

129    The Union submitted that it was not to be inferred that the Full Bench had misunderstood the relevant principles that were engaged by Qube’s case, because at FB [51] it had set out material extracts of Qube’s written submissions at first instance, and at FB [44]–[48] the Full Bench extracted the relevant authorities, which included a reference to the judgment of Kiefel J in Simic at [42]. It was submitted that at FB [52] the Full Bench had correctly framed the issue that had been raised by Qube’s application to the Commission for variation of the enterprise agreements in the terms that we have extracted under [91] above.

130    The Union relied on the 10 elements of the case to which the Full Bench referred at FB [54]-[69] and which we summarised at [94] above. The Union submitted that these elements militated overwhelmingly against Qube’s case theory. The Union relied on the Full Bench’s conclusion at FB [79] that the analysis of the objective evidence which the Full Bench had earlier set out made it clear that the Deputy President did not err in his non-acceptance of Qube’s case as to common intention, and that it did not consider that any contrary finding was available on the evidence.

131    In relation to Qube’s challenges to the Full Bench’s reasoning at FB [72](2) and [77](4), the Union submitted that it was plain that when considered and viewed in context, and having regard to the reasons as a whole, the reference at FB [72](2) to ascertaining “common intention” from what is “objectively apparent from the words and actions of the parties” was not a reference to objective or imputed intention, but to actual intention objectively ascertained by reference to what was said and done by the parties. The Union submitted that the Full Bench was correct to say that what Qube, through its senior manager Mr Coulton, may have thought it was agreeing to was not evidence of common intention. The Union submitted that an uncommunicated expectation or view cannot ground a “mutual intention”.

132    In relation to Qube’s challenge to FB [77](4), the Union submitted that it must be read in light of what the Full Bench said at [77](3). It was submitted that the Full Bench observed that Qube had failed to establish its case of common intention and that the Deputy President was correct not to make findings about what Qube had, in its own mind, agreed to. It was submitted that FB [77](4) built on FB [77](3) by observing that an objective appraisal of the evidence pointed to it being entirely plausible that the Union and Qube had agreed to a claim for weekend penalties. It was submitted that all that the Full Bench was saying, consistently with the approach in Simic, was that the evidence, objectively assessed, did not establish the common or mutual subjective intent contended for by Qube.

133    The Union submitted that none of the various paragraphs relied upon by Qube was consistent with the idea that the Full Bench embarked on a search for imputed or objective intention. It was submitted that the Full Bench’s reasons were congruent with inferring from objective evidence whether there was an actual agreement or subjective common intention that penalties, loadings and allowances would be incorporated into the hourly rates.

134    As to the Full Bench’s reference to the Road Map being “misconceived”, the Union submitted that the propositions in the Road Map were misconceived for the reasons given by the Full Bench at FB [72]. It was submitted that the propositions in the Road Map deflected from the task of ascertaining whether Qube had established a mutual intention as to how clause 4 of the 2015 Agreement was to operate. In particular, the Union submitted that the Road Map had been advanced by Qube on a premise that was fundamentally flawed. It submitted that the persuasive burden fell on Qube to establish that there was a mutual intention, evinced by the objective evidence, between it and the voting group of employees that penalties, loadings and allowances were incorporated into the hourly rates. It was submitted that the Road Map was neither here nor there insofar as the establishment of Qube’s case was concerned. The Union supported the Full Bench’s statement that what Qube thought it had agreed to was irrelevant to establishing a common intention, submitting that the burden of Qube’s case was to establish, by reference to the objective evidence, that both it and the voting group of employees had agreed to the incorporation of Award Penalties into the hourly rates, and that the Road Map was entirely irrelevant to this.

135    On the question of materiality, the Union observed that “Full Bench Error 1” as framed by Qube (see [107] above) referred only to the common intention of the bargaining representatives, being Qube and the Union, and made no reference to the intention of the employees who made the agreements by voting upon them. Moreover, the Union submitted that the appeal to the Full Bench was an appeal by way of rehearing, and that the Full Bench had concluded that on the objective evidence Qube had not established the common intention for which it had contended. It was submitted that any error by the Full Bench in its consideration of the Road Map was therefore not material to the result.

136    The Union also submitted that Qube could not have established the common intention contended for given the adverse credit findings made by the Deputy President about all of Qube’s witnesses, which it was submitted were not challenged on appeal to the Full Bench.

The Union’s submissions – Full Bench Error 2 – legal unreasonableness

137    The Union submitted that a challenge to a conclusion based upon illogicality or irrationality is not easily established, and pointed to the high bar that the authorities require be met. It otherwise made submissions supporting the way in which the Full Bench treated the Road Map, and addressing the topic of materiality which we have summarised above.

The Union’s submissions - First Instance Error 1

138    In relation to the first instance decision, the Union submitted that Qube’s claim that the Deputy President had not considered its arguments based on the Road Map had a tendency to slide into merits review.

139    The Union submitted that an important component of Qube’s case was that Mr Pryor’s evidence in relation to the agreement at the 22 January 2014 meeting to incorporate the Award was untruthful. Complementing this was Qube’s case that Mr Coulton’s evidence that there had been no such agreement (notwithstanding he had not been at that meeting), that it had been agreed by the Union that the hourly rates were loaded rates, and that clause 4 was never discussed or raised, should be accepted. The Union submitted that the Road Map and the attack on Mr Pryor were directed to these issues.

140    The Union submitted that it was unnecessary for the Deputy President to deal discretely with each item in the Road Map, or each of the matters that were claimed to undermine Mr Pryor’s credibility. The Union submitted that because the Deputy President had dealt directly with Mr Pryor’s credibility and extracted the propositions from the Road Map, it should be inferred that he was seized of all the various matters relied on by Qube and had considered them.

141    The Union again submitted that Qube’s submissions failed to deal with the materiality of the claimed errors affecting the Deputy President’s decision. The Union submitted that once the Deputy President accepted the evidence about the claimed agreement reached on 22 January 2014, Qube’s case fell away, and any failure to consider the Road Map and associated oral submissions was immaterial.

The Union’s submissions – Full Bench Error 3 and First Instance Error 2 - standing

142    Because Qube accepted that the Court would follow the decision in Qube Ports v CFMEU, it was unnecessary for the Union to develop any submissions on this point.

Consideration

143    The powers of the Commission under s 607 of the Fair Work Act on an appeal to the Full Bench include the power to admit further evidence, and to take into account any other information or evidence. An appeal to the Full Bench is therefore in the nature of an appeal by way of rehearing: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ) in relation to the corresponding provisions in the Industrial Relations Act 1988 (Cth). The subject matter of an appeal by way of rehearing is the orders that were made, and not the reasons for the decision: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [34] (Kiefel CJ, Gordon and Steward JJ). And the powers of the Commission under s 607(2) in relation to an appeal are exercisable for the correction of some legal, factual, or discretionary error.

144    The issue before the Deputy President at first instance was whether the discretionary power under s 217 of the Fair Work Act should be exercised. Therefore, on appeal to the Full Bench the principles in House v The King (1936) 55 CLR 499 applied. Those principles include that a discretionary decision may be found to be in error if the decision-maker mistook the facts, or failed to take account of some consideration that the decision-maker was required to take into account. Overlying these principles are other principles concerning the lawful discharge of the Commission’s statutory function, and whether there has been compliance with the express and implied conditions attaching to the conferral of the Commission’s functions and powers. Those conditions, such as the obligation to accord procedural fairness, are informed by the exhortations in s 577 of the Fair Work Act, which include that the Commission must perform its functions and exercise its powers in a manner that is fair and just, and by the mandatory considerations that are set out in s 578, which include the objects of the Act, and equity, good conscience and the merits of the matter.

145    The Road Map submission was significant to Qube’s case, as it reflected an accumulation of detail that Qube submitted supported its case. It formed the basis of a submission by Qube to the Deputy President that the evidence of Mr Pryor that Qube had agreed to pay Award Penalties at the 22 January 2014 meeting should not be accepted because it could not be reconciled with a large body of consequential propositions which, on Qube’s case, were founded on objective circumstances and other established facts. A submission of this type to a tribunal of fact in support of a claim that the evidence of a witness should not be accepted is entirely conventional. In Fox v Percy [2003] HCA 22; 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ referred at [31] to judges limiting their reliance on the appearance of witnesses, and reasoning their conclusions, as far as possible, “on the basis of contemporary materials, objectively established facts and the apparent logic of events”.

146    As to evidence of conversations relating to the formation and terms of agreements, in Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 277 CLR 115 at [46], Gordon J stated:

In making factual findings of a term or terms of such a contract, the evidence of witnesses as to words written or spoken by the parties (and their knowledge of relevant matters at the time of the contract) must be weighed alongside the objective surrounding facts (which are undisputed or which are established by other objective evidence) and also with the apparent logic of events.

147    Amongst the citations in the footnote to the above passage was a reference to Fox v Percy and to the reasons for judgment of Smith, Moses and Hallett LJJ in Maggs (t/a BM Builders) v Marsh [2006] EWCA Civ 1058; [2006] BLR 395 at [26], who stated in relation to the proof of oral terms of a contract:

… Determining the terms of an oral contract is a question of fact. Establishing the facts will usually, as here, depend upon the recollections of the parties and other witnesses. The accuracy of those recollections may be tested and elucidated by things said and done by the parties or witnesses after the agreement has been concluded. Receiving evidence of such words or actions does not mean that the judge is losing sight of his task of deciding what the parties agreed at the time of the contract. It is simply helping him to decide whose recollection is right. It is not surprising to me that the editor of Lewison should observe that there is nothing in the authorities to prevent the court from looking at post contract actions of the parties. As a matter of principle, I can see every reason why such evidence should be received.

148    The above observations, while made in the context of the evaluation of evidence relating to the terms of an oral contract, were equally applicable to the evaluation of the evidence of Mr Pryor, who was subject to the Deputy President’s general assessment that he would not place any significant weight on the evidence of the witnesses who were cross-examined where uncorroborated. Mr Pryor claimed that Qube had agreed at the meeting on 22 January 2014 to include the Award Penalties in the enterprise agreement. The Road Map and the associated oral submissions invited the Deputy President to test that evidence against all the objective surrounding facts and the subsequent conduct of the relevant parties in much the same way that is the subject of the guidance in the cases cited above. And in evaluating the combined force of surrounding circumstances, it is usually desirable to reflect on the accumulation of detail, because as Tadgell JA observed in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141:

A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944; Shepherd v R (1990) 170 CLR 573 at 579-80.

149    There are several features of the Deputy President’s path of reasoning that should be noted. The first is that at D [54] the Deputy President accepted Mr Pryor’s evidence, based upon a note that Mr Pryor took, that at the meeting on 22 January 2014 there was agreement to allow clause 4 of Part A of the proposed enterprise agreement to provide for shift penalties and penalties for weekends. In making this finding, the Deputy President did not weigh Mr Pryor’s evidence against the other circumstances to which Qube had referred in the Road Map on which it relied as pointing to the improbability that Qube would have agreed to this term at that meeting, or at all, in combination with loaded rates.

150    The Deputy President did, however, consider two criticisms of Mr Pryor’s evidence that went to one of the propositions raised by the Road Map, being Mr Pryor’s failure to inform the employees of the supposed achievement in having Qube agree to pay Award Penalties. We referred earlier at [42] to the Deputy President’s reference at D [38] to Mr Pryor’s evidence that it had “slipped his mind” to tell employees that he had secured a massive windfall gain in take home pay, and did not tell those employees that it was agreed to pay weekend and shift penalties because he “had other things to worry about”. The Deputy President said that there was substance in Qube’s criticism of this evidence, but that the failures “had limited impact on the question of common intention”. The Deputy President did not explain why these failures had limited impact on common intention, and it is unclear why they would have only a limited impact. Mr Pryor’s failure to publicise the gains that had been achieved would be the very sort of objective fact one would think would be relevant to ascertaining actual common intention at the time the Agreement was made. Its relevance was at least threefold. It was relevant first to whether Qube had ever expressed agreement in the course of bargaining to pay the Award Penalties on top of loaded rates. Secondly, it was relevant to Mr Pryor’s own subjective understanding of what had been negotiated and agreed. And thirdly, the absence of any communication by Mr Pryor of this supposed achievement in the bargaining process was relevant to what inferences might be drawn in relation to the employees’ understanding.

151    The second criticism of Mr Pryor’s evidence to which the Deputy President gave consideration was that Mr Pryor did not ever check whether Qube was paying Award Penalties on top of the hourly rates, stating at D [39] that this criticism “lacked substance”, and referring to the difficulties that Mr Matthews had encountered in modelling two fortnightly pay periods for two employees.

152    The key passages in the Deputy President’s decision to reject Qube’s case are at D [109]–[117]. At D [109]–[110], to which we referred at [67]–[68] above, the Deputy President rejected Qube’s submission that it had established that it was the common intention of Qube and the Union to preserve loaded rates without penalties. The four matters to which the Deputy President referred at D [109](a)–(d) were in the nature of mutual expressions of intention, three of which involved the proposed 2015 Agreement itself. This is reinforced by the Deputy President’s reference at D [110] to “an objective assessment of the agreement between the parties”.

153    Qube’s case was that the 2015 Agreement did not express the common intention of Qube and the Union, and was the subject-matter of Qube’s application for variation. While the terms of the proposed 2015 Agreement were relevant to ascertaining actual intention, the Deputy President did not at D [109] appear to direct attention to the actual intention of Qube, and the actual intention of the Union by reference to the combined force of the other surrounding circumstances that were the subject of the Road Map submission. And the leading factual matter to which the Deputy President referred at D [109](a) was his acceptance of Mr Pryor’s evidence as to the agreement that he claimed was reached at the 22 January 2014 meeting, which had been the subject of a finding earlier in his decision at D [54] before the Deputy President referred to and summarised Qube’s Road Map submission. In Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 (S20/2002) at [14] Gleeson CJ observed that decision-makers commonly express their reasons sequentially, but that does not mean that they decide each factual issue in isolation from the others. However, the structure of the Deputy President’s reasons in this case show that he decided to accept the evidence of Mr Pryor in relation to the 22 January 2014 meeting without addressing the central submission advanced by Qube as to why that evidence should not be accepted, namely the cumulative force of the Road Map. The Deputy President’s acceptance of Mr Pryor’s evidence was then the first of the five reasons set out by the Deputy President at D [109] supporting his rejection of Qube’s case.

154    At D [111]–[117], the Deputy President addressed the intention of the employees who voted on the Agreement, in terms that we summarised at [68]–[71]. It is not clear from D [114] of the Deputy President’s reasons why he considered that Mr Pryor’s failure to publicise the significant gains achieved, and to spend vastly more time seeking to negotiate significantly smaller gains, was “irrelevant”.

155    As we have indicated at [32], Qube’s submission to the Deputy President was based on a dichotomy between Qube’s case theory and the Union’s case theory, without the possibility of any case “in-between”. This submission seems to have proceeded on an underlying premise that the Commission was required to make complete findings of fact on each of the propositions in the Road Map. That is not the case. What the Commission was required to do was to address the propositions put to it by Qube, as those propositions were relevant to the application. Qube was entitled to emphasise, by way of its submissions, the difficulties of the Union’s case that it considered would persuade the Commission to find in its favour. Such submissions fell for consideration by the Commission.

156    Judicial guidance as to the standard of consideration required by decision-makers suggests that decision-makers must fully turn their minds to the substance of each relevant submission. In Tickner v Chapman (1995) 57 FCR 451, Kiefel J made the following observations at 495–496, in the context of an application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and an express statutory requirement to “consider” a matter:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them… A mere summary of them cannot suffice for this purpose…

157    Though the level of engagement and the degree of effort required by a decision-maker to consider a submission adequately will necessarily depend upon the length, clarity and degree of that submission, the standard expected is that a decision-maker will read, identify, understand and evaluate the submission, by bringing their mind to bear upon the argument that has been put forward: Plaintiff M1 2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (Plaintiff M1) at [24]–[25] (Kiefel CJ, Keane, Gordon and Steward JJ). This is not to suggest that a decision-maker cannot discriminate in the assessment of the submissions by affording differing levels of weight and persuasive quality to them. A decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials: Plaintiff M1 at [25].

158    The propositions in the Road Map that related to the actual intention of the parties were clearly relevant to Qube’s application to the Commission and required careful consideration. That the Deputy President set out the propositions from the Road Map at D [82] in a high-level summary did not demonstrate an adequate consideration of those submissions. In our view, the Deputy President’s reasons at D [109] show the inadequacy of his consideration of those submissions.

Consideration of the Full Bench’s decision

159    The Full Bench’s summary at FB [44]–[53] of the relevant principles that were applicable was largely unexceptionable. The Full Bench made appropriate references to the principles identified in Simic in relation to ascertaining the common intention of parties for the purposes of the equitable remedy of rectification. For our part, we would emphasise the four points of importance arising from Simic and the cases cited in the joint judgment at [104] to which we referred at [26Error! Reference source not found.] above, including that common intention may exist in the minds of the parties, and there need not be any formal communication or outward expression of common intention. Citing the Full Court’s decision in Toyota, the Full Bench noted the difficulties in readily applying those principles to ascertaining the common intention of parties to a non-greenfields enterprise agreement. At FB [44] the Full Bench referred to giving effect to the common intention or substantive agreement of the makers of the agreement in question, which then informed the framing of the issues at FB [52] to which we referred at [91] above, and to which the Full Bench returned at FB [71].

160    Before the Full Bench addressed Qube’s specific grounds of appeal, it stated at FB [53] that the evidence of contemporaneous documents and the evidence not otherwise in dispute “provide no identifiable positive support for the proposition that there was a common intention that the Award penalties were not to apply to the hourly rates in the agreements”, and “the evidence favours the contrary proposition”. The Full Bench then set out the 10 elements of the case which we summarised at [93]–[94] above.

161    We turn now to FB [72]. The Full Bench’s treatment of Qube’s Road Map submission as “fundamentally misconceived and not relevant” must be assessed in its surrounding context. Further, in evaluating the Full Bench’s reasons for its decision the Court should not be “astute to discern error”: Plaintiff M1 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ).

162    To describe Qube’s Road Map submission as “fundamentally misconceived and not relevant” employed strong language. In context, one misconception identified by the Full Bench lay in the idea that the Deputy President was required to make express findings in relation to each of the 15 propositions in the Road Map, and that each proposition would have to be accepted in order to accept the Union’s case that Qube had agreed to pay the Award Penalties. This understanding of the Full Bench’s reference to the fundamental misconception is supported by the first and third sentences of FB [72] and sub-paragraph (1). That understanding is also supported by the terms of the title to the Road Map to which we referred at [31] above, “Qube’s ‘Road Map’ of propositions and subsidiary findings necessary to find that Qube agreed to pay the Award penalties and loadings”. By calling the document a ‘road map’, Qube suggested that a single, linear path of reasoning ought to be followed. This understanding is also supported by the terms of Qube’s oral submissions made to the Deputy President to which we referred at [32] above, in which it was said that every single one of the propositions had to be “explained away and rationalised on the balance of probabilities”.

163    We see no relevant error in the Full Bench critiquing the Road Map as being based upon two flawed premises, namely that the Deputy President was required to make findings as to every proposition referred to in the Road Map, and the assumption that every proposition had to be explained away or rationalised on the balance of probabilities. For one thing, the Commission is not a Court, and is not bound by the rules of evidence. But even where rules of evidence apply, it is the relevant fact in issue that must normally be proven on the balance of probabilities, and not every circumstantial fact that might support or detract from the existence of the fact in issue. In the same way, some circumstantial facts will be important to the determination of an application, but there will nonetheless be other, collateral matters that will not need to be determined, because their resolution is not relevant to the path of reasoning that is ultimately adopted.

164    As Dawson J observed in Shepherd v The Queen (1990) 170 CLR 573 at 580 in the context of proof of intention beyond reasonable doubt, “[T]he probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately”. When it comes to proof of actual intention for present purposes, this invites consideration of the combined weight of circumstantial facts, for it is the essence of a circumstantial case that the items of evidence must be considered in their totality.

165    However, we consider that the Full Bench erred in characterising the Road Map submission by the compound phrase “fundamentally misconceived and not relevant”. That description was informed by the statements in FB [72](2) which we extracted earlier. For convenience, we will set out that paragraph in the form of numbered sentences –

1.    The issue for determination was not what Qube had agreed, or not agreed, to do in the 2015 Agreement.

2.    Objectively, what Qube had agreed to was what was expressed in the terms of the 2015 Agreement.

3.    What subjective intention might be imputed to Qube as to what it thought it was agreeing to was irrelevant to the search for common intention.

4.    Common intention, as earlier discussed, is to be ascertained from what is objectively apparent from the words or actions of each party, not from what one party says was in their mind.

5.    It may be accepted that Mr Coulton at least did not consciously intend that the Award penalties would be payable upon the rates contained in the 2015 Agreement (or the 2019 Agreement).

6.    However, that is not evidence of common intention and the outcome which prevailed is better explained by inadvertence and a lack of diligence on the part of Qube.

166    Sentences 1 and 2 of FB [72](2) are not controversial. The terms of the 2015 Agreement must be taken, in an objective sense, to have been agreed by Qube. And in the absence of any variation, the Agreement must be complied with according to its terms.

167    Sentence 3 involves, in our respectful view, a misunderstanding by the Full Bench of the principles referred to in the authorities that were the subject of the parties’ submissions. The subjective intention of Qube was directly relevant to, and a necessary step towards, ascertaining whether there was some common intention that was at variance with the terms of the Agreement. The authorities cited in Simic make clear that intention for these purposes is concerned with what was in the minds of the parties, and that the claimed intention need not be the subject of any formal communication or outward expression of accord. What is required is that “each party held and continued to hold an intention on the point in question corresponding with the same intention held by each other party”: Bush v National Australia Bank Ltd at 405–406 (Hodgson J).

168    Sentence 4, by itself, does not disclose error, provided it is understood as referring to the quality of evidence to prove intention that is normally required to displace the written terms of an instrument, namely objective facts. But those objective facts may point to what one party had in its mind because, depending on the circumstances, that may be one necessary element of proving common intention.

169    The statement in sentence 5 that Mr Coulton did not consciously intend that the Award penalties would be payable upon the rates contained in the 2015 Agreement may be a finding of intention. The Full Bench does not take the next step and state whether that intention is to be attributed to Qube. Instead, at sentence 6 the Full Bench states that the finding about Mr Coulton’s intention “is not evidence of common intention”. That statement cannot be explained if the Full Bench had been proceeding by reference to the principles referred to in Simic. While it is true that Mr Coulton’s intention, by itself, was not the common intention, it was capable of being a component of the common intention. The Full Bench therefore misunderstood the authorities to which it referred.

170    The conclusion that the Full Bench had misunderstood what might be relevant to the ascertainment of common intention is supported by surrounding context. At FB [74] and [77](1), it held that the Deputy President had been correct to reject Qube’s criticisms of Mr Pryor’s evidence that it had “slipped his mind” to tell the employees about the “massive windfall gain” that had been achieved. The Deputy President did not explain why this had limited impact on the question of common intention and why it was irrelevant. The Full Bench did not explain this either.

171    Another contextual feature is FB 77(3) and (4) which we have set out at [100]. The Full Bench stated that the Deputy President had not made a finding in terms that “Qube agreed to pay Award Penalties”. We note, however, that the Deputy President did find at D [110] that an “objective assessment of the agreement between the parties” was that the “substantive agreement between the parties” was as expressed in the form of the 2015 Agreement as finally made. The Full Bench stated that the finding was not the relevant issue. However, for reasons that we have explained, the subjective intention of Qube, what it thought it had agreed to, and the claimed implausibility that it had agreed to pay Award Penalties were relevant issues. The Full Bench evidently considered that these issues were not relevant, because it stated at FB [77](4) that the question of implausibility “arises only from Qube’s subjective perspective”. The Full Bench stated further that:

An objective analysis of the words and actions of the parties during the bargaining and approval process render it entirely plausible that there was, objectively assessed, a common intention for the Award penalties to be paid — particularly in circumstances where the [Union] made a claim for weekend penalties to be paid and Qube agreed to a provision which in express terms provided for Award penalties to be paid on the agreement rates.

172    One is therefore left with the strong impression that, when viewing the Full Bench’s reasons as a whole, the Full Bench regarded objective evidence of common intention as being confined to evidence involving mutual dealings, and it was on this basis that Mr Coulton’s intention was put to one side, and why the evidence of established facts about what Mr Pryor did was regarded by the Full Bench as irrelevant. The Full Bench’s 10 “key elements”, as identified above at [94], are consistent with this impression. It is also evident throughout that analysis that the Full Bench misunderstood that it was required to consider objective pillars relevant to intention beyond mutual dealings between Qube and the Union. Instead, the Full Bench appears to have regarded evidence of subjective or actual intention as irrelevant.

173    It is therefore reasonably clear that the reasoning in FB [72](2) contributed to the Full Bench treating the Road Map as “fundamentally misconceived and not relevant”.

174    Further, even upon acceptance of the criticisms that can be levelled at the basis on which the Road Map was expressed before the Deputy President, its substance could not reasonably be characterised or dismissed as misconceived or irrelevant. It may be said that the presentation by Qube of the form of the Road Map was misconceived, in that it was said that the Commission was required to make a series of findings in order to reach a conclusion. It was not so required. We agree with the Full Bench’s conclusion at FB [73] that the Deputy President was not obliged to deal with the structure of the Road Map submission in the way it was framed. By presenting its submissions in the form of the Road Map, Qube was not entitled to require the Deputy President to reason his decision in a particular way. However, the Deputy President was required to deal with the relevant submissions made by Qube in support of its application. The Road Map was a significant submission by Qube as to the surrounding facts and circumstances that fell to be considered.

175    We consider that the substance and force of the Road Map submission was not considered by the Deputy President, or by the Full Bench. As to the Deputy President, we have expressed our conclusion at [153] that the Deputy President did not at D [109] appear to direct attention to the actual intention of Qube, and the actual intention of the Union by reference to the combined force of the surrounding circumstances that were the subject of the Road Map submission.

176    As to the Full Bench, it concluded at FB [53], before addressing Qube’s grounds of appeal, that there was no identifiable support for Qube’s claimed common intention. Now, as we mentioned earlier by reference to the observations of Gleeson CJ in S20/2002, it is often wrong to assume that a decision-maker by expressing reasons sequentially has decided factual issues in isolation from others. That is the situation here in relation to the Full Bench, where we consider that the Full Bench decided the factual issues set out at FB [54]–[69] having already decided that the Road Map submission was “fundamentally misconceived and not relevant”, and where its consideration was largely focused on the terms of mutual dealings, and not on the probabilities that each of Qube, the Union, and the employees had the actual intention for which Qube contended, which was advanced on the premise that the 2015 Agreement did not express that intention. The Full Bench’s reasons convey that it did not give adequate consideration to the force of Qube’s Road Map submission in its consideration of other issues. On the contrary, its dismissal of the submission as “misconceived and not relevant” shows that it did not engage with the submission on the basis it was put, and it did not consider a central plank of Qube’s case.

The identification of the Full Bench’s error

177    A failure to engage substantively with the submission of an applicant is liable to form the basis of jurisdictional error. In limiting its consideration of common intention, the Full Bench overly narrowed the relevant field of its inquiry, which speaks to a misunderstanding of the relevance of the submission that the Commission was being asked to consider. As was the case in Bianco Walling, the Commission may fall into jurisdictional error by erroneously limiting its consideration of evidence and surrounding circumstances, including in relation to common intention: see [115]–[116]. Here, the Commission’s approach to what it could take into account resulted in the exclusion of a relevant submission made by Qube. By treating the Road Map as “fundamentally misconceived and not relevant”, the Commission failed to consider a key aspect of Qube’s case.

178    We now return to Qube’s grounds of review. As explained above, the proper characterisation of the Full Bench’s error is expressed as a failure to address a key part of Qube’s case due to the overly narrow approach that was adopted by the Commission. However, Qube’s written submissions did not express the alleged jurisdictional error in this way. Rather, Qube’s written submissions suggested that the error was a misunderstanding or misconstruction of s 217 (see Full Bench Error 1). It is difficult to understand how the alleged error could be of such a character. It must be borne in mind that s 217 does not provide, in terms, for the variation of an enterprise agreement on the ground of common intention. As the authorities we have canvassed show, common intention is relevant to the question whether an ambiguity or uncertainty exists, as well as to the Commission’s discretion to vary an enterprise agreement. But it is not an express statutory component of s 217. Nonetheless, Qube ultimately advanced its case before the Court in more appropriate terms. Senior counsel for Qube confirmed in oral submissions that a more accurate description of the jurisdictional error alleged by Qube was a failure to engage with a central plank of Qube’s argument, which was relevant to the Commission’s task in respect of s 217.

179    For these reasons, we are satisfied that the Commission fell into error by failing to engage with the submissions put to it by Qube in exercising its power under s 217 of the Fair Work Act. Whether this error is jurisdictional depends on whether the error was material to the Commission’s decision, which is dealt with later in these reasons.

180    Full Bench Error 2, which alleges legal unreasonableness, requires the meeting of a high threshold and a stringent test: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [108], [113] (Gageler J). A legally unreasonable decision is one that lacks an evident and intelligible justification: Li at [76] (Hayne, Kiefel and Bell JJ). The question whether the Commission’s decision reached this threshold has only one correct answer. Nonetheless, it is a question of degree on which reasonable minds may differ. Any illogical or irrational reasoning, or the absence of an intelligible foundation, must involve more than emphatic disagreement with the result by a reviewing court: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

181    In discharging the Court’s function to review decisions made by the Commission, the Court must not exceed its supervisory role by undertaking a merits review. Notwithstanding that the Full Bench failed to engage fully with Qube’s case, it could not be said that the appropriate characterisation of its decision is that it was legally unreasonable. Although the Full Bench erred in confining its consideration of common intention, the Full Bench provided comprehensive reasons as to its decision that evidenced an intelligible path of reasoning. Such an error does not, in our view, reach the level of stringency required by the test for legal unreasonableness. We accept the Union’s written submissions on this point as to the difficulty in making out legal unreasonableness and consider that Full Bench Error 2 has not been made out.

182    As to First Instance Error 2 and Full Bench Error 3 relating to Qube’s standing to apply to the Commission to vary the 2015 Agreement and to which we referred at [118], there was no submission that the Court should not follow Qube Ports v CFMEU, and accordingly those grounds have not been established.

The Full Bench’s error was material

183    Having found that the Full Bench erred in narrowing its field of inquiry and failing to engage with a central plank of Qube’s case, it is necessary to determine whether this error was material. In most cases, and as is the case here, an error will not be jurisdictional unless it is material to the decision that has been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [45] (Bell, Gageler and Keane JJ).

184    The materiality of an error in administrative decision-making is to be assessed by reference to the realistic possibility of a different outcome. In order for the Full Bench’s error to have been material, it must be shown that there is a realistic possibility that the Full Bench could have reached a different conclusion had the error not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152 (LPDT) at [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 (Nathanson) at [1]. Materiality is an ordinary question of fact to be determined by inferences drawn from the evidence and in respect of which the applicant bears the onus of proof: SZMTA at [46] (Bell, Gageler and Keane JJ).

185    A statute which contains an express or implied condition to be observed during the decision-making process is ordinarily to be interpreted as incorporating a “threshold” of materiality in the event of non-compliance: LPDT at [7]. This threshold has been described as being undemanding: Nathanson at [33] (Kiefel CJ, Keane and Gleeson JJ). However, in assessing whether the threshold of materiality has been met, a court must not intrude into the fact-finding function of the decision-maker: SZMTA at [48].

186    It was for Qube to demonstrate that, had the Full Bench engaged with its submissions in relation to the Road Map and common intention, it could have realistically reached a different conclusion. We accept Qube’s submission that it is not the role of this Court to speculate as to what the Full Bench could have decided, had it taken into consideration the Road Map and its propositions in relation to common intention. To do so would be to embark upon an impermissible exploration of the merits of Qube’s case. This is particularly so in circumstances where the Road Map invited careful consideration of an array of circumstantial evidence. The Court need only be satisfied that the Full Bench could have reached a different outcome. In this case, we consider that such a different outcome was realistically possible, given the weight that Qube assigned to the contents of the Road Map in presenting its case and the importance of the Commission’s findings as to the intention of the parties in the context of the application before it.

187    The Union submitted that Qube’s Road Map was focused on the intention of the bargaining representatives and Qube, with little regard to the intention of the employees covered by the Agreements. The Union submitted that this suggested that even if the Commission had erroneously failed to consider the Road Map, its consideration could not have resulted in Qube succeeding because the Road Map did not properly advance the required argument on intention. There was some force in this submission, and it is supported by the eighth element of the Full Bench’s reasoning at FB [67]. It is uncontroversial that it is the employees, not the bargaining representatives, who make an enterprise agreement: Toyota at [88]. The employees ultimately vote on the terms of a proposed enterprise agreement, including any amendments. However, it cannot be said that, had the Full Bench not considered the Road Map to be irrelevant, there was no realistic possibility of it arriving at a different outcome as to the intention of the makers of the Agreements. The whole case might have been approached through a different lens. It might have been open to the Commission to find, by way of inference, that the intention of the bargaining representatives was consistent with the intention of the employees in circumstances where the Union was the sole employee bargaining representative for a large majority of the relevant workforce and had provided information to the employees in relation to the progress of bargaining for the 2015 Agreement, and that intention carried over in relation to the 2019 Agreement. Whether any such findings should have been made would require a detailed consideration of all the evidence and the submissions of the parties, and is not a question for this Court to consider save that we find that Qube has met the undemanding threshold to establish materiality.

188    For these reasons, we consider that the Full Bench’s error was material to its decision. Accordingly, its decision was affected by jurisdictional error.

The decisions of the Full Bench and the Deputy President should be quashed

189    Given that the Full Bench’s decision was affected by jurisdictional error, it follows that it should be quashed. An administrative decision affected by jurisdictional error is regarded, in law, as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [53]. In other words, jurisdictional error has the result that a decision has no legal consequences. Accordingly, the finding of jurisdictional error in the Full Bench’s decision reinstates the Deputy President’s decision at first instance, as the Full Bench was required to confirm, quash or vary that decision: s 607(3) Fair Work Act.

190    Qube challenged both decisions of the Commission. In its written submissions, Qube correctly identified that it could not seek to impeach the Deputy President’s decision unless its challenge to the Full Bench’s decision was successful. Qube submitted that, were this Court to find that the Full Bench’s decision was affected by jurisdictional error, it should also find that the Deputy President’s decision was also affected by jurisdictional error and should also be quashed.

191    If this Court were to quash the Deputy President’s decision, Qube submitted that there would be nothing to remit back to the Full Bench. In those circumstances, Qube submitted that the matter should go back to the Commission to start afresh and be heard on the merits.

192    The Union submitted that the Full Bench should be required to consider its notice of contention, which raised the question whether the Deputy President erred in finding that there was an ambiguity or uncertainty that engaged the Commission’s power to vary under s 217 of the Fair Work Act.

193    Therefore, the issue remains as to whether the Deputy President’s decision should also be quashed for reason of being affected by jurisdictional error.

194    In its written submissions, Qube claimed that at first instance the Deputy President denied Qube procedural fairness, or alternatively constructively failed to exercise the Commission’s jurisdiction, in failing to consider the Road Map and its associated oral submissions (First Instance Error 1). The Deputy President, like the Full Bench, was required to consider the submissions put to it by Qube through the Road Map, which invited consideration of the evidence against the objective surrounding facts and subsequent conduct of the parties. As explained at [145]–[158] above, the Deputy President did not do so, which constituted a failure to engage with a clearly articulated argument put by Qube. Such a failure has been recognised as amounting to a denial of procedural fairness or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 [24]–[25] (Gummow and Callinan JJ), [95] (Hayne J). We accept Qube’s submission that, in this case, it is unnecessary for us to distinguish between these two categories of jurisdictional error.

195    In our view it would not be appropriate to remit to the Full Bench for consideration the issue raised by the Union’s notice of contention where the Deputy President’s findings of fact, upon which any consideration by the Full Bench might be based, are affected by a jurisdictional error in the nature of a denial of procedural fairness.

196    For the same reasons explained in relation to the Full Bench’s decision, we consider that the Deputy President’s error was also material to his decision and is therefore jurisdictional. On this basis, we consider that the Deputy President’s decision was affected by jurisdictional error and should be quashed.

Conclusions

197    A writ of certiorari should issue to quash the decisions of the Full Bench and the Deputy President at first instance. Additionally, a writ of mandamus should issue to require the Commission to hear and determine Qube’s application to vary the 2019 Agreement according to law. There is no utility in requiring the Commission to hear the application to the extent that it concerned the 2015 Agreement, because Qube lacked standing to make the application. Qube did not seek costs of the application: see Fair Work Act, s 570.

Associate:

Dated:    2 June 2025