FEDERAL COURT OF AUSTRALIA

Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The applications be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1 Three judicial review applications are brought to this Court by three employers who were made the subject of a single interest employer authorisation pursuant to s 249 of the Fair Work Act 2009 (Cth) by the Full Bench of the Fair Work Commission: Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Pty Ltd (t/as Delta Coal) [2024] FWCFB 253; 334 IR 245 (primary judgment or FB). The effect of this authorisation is such that, against their will, these employers are required to bargain with a small cohort of their respective employees and the employees’ industrial representative, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA, who applied for the authorisation and is the respondent to each of the applications for review) to enter into an enterprise agreement.

2 The employers operate underground black coal mines: Wambo Underground Coal Mine operated by Peabody Energy Australia Coal Pty Ltd; Ulan No 3 Underground Coal Mine operated by Ulan Coal Mines Pty Ltd; and, Narrabri Coal Mine operated by Whitehaven Coal Mining Ltd. These employers, though the applicants to these proceedings, will be hereafter described as the “respondent employers” to aid readability given they were so described in this way in the primary judgment. APESMA had also sought for a fourth employer, Greater Southern Energy Pty Ltd, which operates the Chain Valley Colliery (Delta Coal) to be included in the authorisation. The Commission found key differences between Delta Coal and the three applicants and accordingly did not include Delta Coal in the authorisation (for reasons explained below).

3 The genesis for this dispute appears to arise in part, from the recently enacted “single interest employer authorisation” provisions, under Pt 2-4 of the FW Act and how they sit (somewhat uncomfortably) within the rest of the legislative scheme. The provisions mark a significant departure away from the concept of collective (single enterprise) bargaining where such agreements arise from the joint will of employers and employees (and their representatives) at the enterprise level.

4 Each of the three employers, Ulan, Peabody and Whitehaven, seek various forms of relief under s 39B of the Judiciary Act 1903 (Cth), and or under s 562 of the FW Act (and with respect to Whitehaven, under ss 21–23 of the Federal Court of Australia Act 1976 (Cth)) for writs of certiorari quashing the primary judgment and the single interest employer authorisation dated 23 August 2024 made pursuant to s 249 of the FW Act. Additionally, Ulan seeks a writ of mandamus to issue to the Commission requiring it to determine the application according to law or a declaration that the primary judgment and authorisation are void and of no effect. Peabody seeks relief in similar terms. These three proceedings were ordered to be heard together before the Full Court.

5 These applications concern judicial review and therefore this Court is to consider, not the merits of the underlying dispute nor social policy as to whether different employers should be forced to bargain for the purpose of entering into collective agreements with their employees, other employers and unions against their will, but rather whether the Commission’s decision, by making the authorisation, was vitiated by jurisdictional error. The applications therefore concern whether the Commission construed s 249 correctly, namely what it needed to be satisfied of in order to make the authorisation and attended the task as required by the statute. Challenge is made of how the Commission understood various of the criteria under this provision and attended to its statutory task.

6 For the reasons which follow, each of the applications must fail.

The relevant statutory provisions

7 As observed at the outset, the provisions, under Pt 2-4, mark a significant departure away from industrial laws since 1904, which have recognised the concept of collective (enterprise) bargaining where such agreements arise from the joint will of employers and employees (and their representatives) at the enterprise level.

8 Whilst the Conciliation and Arbitration Act 1904 (Cth) allowed for the registration of collective agreements, it was not utilised by parties as a result of perceived restrictive interpretations of the legislative scheme by the High Court: Creighton and Stewart’s Labour Law (Federation Press, 7th edn, 2025) at [14.03]. It was not until 1988 when the original (enterprise) agreement-making provisions came into being: Industrial Relations Act 1988 (Cth). Those provisions were the subject of refashioning and refinement from 1992 onwards, however, always on the basis that such agreements would be entered voluntarily at the single-enterprise level.

9 Part 2-4 of the FW Act proscribes circumstances in which enterprise agreements may be made and, without being exhaustive, specifies the nature of and representation during the bargaining of those agreements, the process of approval of such agreements, the tests to be applied for such agreements to be approved and what is required to be contained in those agreements.

10 The Part is informed by its objects contained in s 171, as follows:

171  Objects of this Part

The objects of this Part are:

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

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

(i)    making bargaining orders; and

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

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

11 The Part is also informed by the overall objects of the FW Act as contained in (the then) s 3:

3 Object of this Act

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

(a)     providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b)     ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c)     ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d)     assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e)     enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

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

(g)     acknowledging the special circumstances of small and medium-sized businesses.

12 Section 172 authorises the creation of a number of types of agreements as between an employer, or two or more employers that are related employers (in a single-enterprise agreement) (s 172(2)) or two or more employers that are not related employers (in a multi-enterprise agreement) (s 172(3)). Section 172(5) precludes employers, who are the subject of a single interest employer authorisation, from making any enterprise agreement other than a single interest employer agreement.

13 These proceedings concern a single interest employer authorisation, such an authorisation is made in the following circumstances:

249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

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

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

(b)     the FWC is satisfied that:

(i)     at least some of the employees that will be covered by the agreement are represented by an employee organisation; and

(ii)     the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and

(iii)     if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and

(iv)     if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and

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

(vi)     if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(1AA)     If:

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

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

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

Additional requirements for application by employers

(1A)     The requirements of this subsection are met if:

(a)     the employers that will be covered by the agreement have agreed to bargain together; and

(b)     no person coerced, or threatened to coerce, any of the employers to agree to bargain together.

Additional requirements for application by bargaining representative

(1B)     An employer is covered by this subsection if:

(a)     the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b)     the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c)     the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and

(d)     a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e)     subsection (1D) does not apply to the employer.

(1C)     For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(1D)     This subsection applies to an employer if:

(a)     the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or

(b)     the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single-enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

Franchisees

(2)     The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:

(a)     franchisees of the same franchisor; or

(b)     related bodies corporate of the same franchisor; or

(c)    any combination of the above.

Common interest employers

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

(a)     the employers have clearly identifiable common interests; and(b)     it is not contrary to the public interest to make the authorisation.

(3A)     For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(a)     geographical location;

(b)     regulatory regime;

(c)     the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(3AB) If:

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

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

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

Calculating number of employees

(3AC)     For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(a)     employee has its ordinary meaning; and

(b)     subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c)     a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d)     associated entities of the employer are taken to be one entity.

Operation of authorisation

(4)     The authorisation:

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

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

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

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

14 Notably, as is apparent from the above, such an authorisation can be, in effect, imposed upon employers by the Commission, and impede their ability to choose who they bargain with and who agreements are made with. These provisions were enacted as part of a suite of new provisions made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The previous provisions had only allowed for a single interest authorisation where the employers in question agreed to bargain together (i.e. they made the application (former s 248)) and fell within one of two categories: where they carried on similar business activities under a franchising agreement or where a declaration was made by the Minister, based on a range of criteria (former s 249(1)(c)).

15 The circumstances in which the former Ministerial declaration could be declared were contained in the former s 247(4):

In deciding whether or not to make the declaration, the Minister must take into account the following matters:

(a)     the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

(b)     the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

(c)     whether the relevant employers are governed by a common regulatory regime;

(d)     whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

(e)     the extent to which the relevant employers operate collaboratively rather than  competitively;

(f)     whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;

(g)     any other matter the Minister considers relevant.

16 Sections 248, 249A to 252 contain various restrictions, conditions and content with respect to the authorisation.

17 Section 248 provides:

248 Single interest employer authorisations

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

(a)     those employers;

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

(2)    The application must specify the following:

(a)     the employers that will be covered by the agreement;

(b)     the employees who will be covered by the agreement;

(c)     the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

18 Sections 249A and 250 provide:

249A Restriction on making single interest employer authorisations

The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.

250 What a single interest employer authorisation must specify

What authorisation must specify

(1)    A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

(a)    the employers that will be covered by the agreement;

(b)    the employees who will be covered by the agreement;

(c)    the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;

(d)     any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

(2)    If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.

(3)     The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

(a)     the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b)     the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c)     on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(4)     If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.

19 The revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) described the significance of the change in the industrial landscape in the following terms:

…

1006.     Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:

* removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;

* providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;

* permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and

* inserting new Subdivision AD — Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.

…

1066.     New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term “common interest employers” would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.

20 There are a number of aspects of these provisions which are worthy of mention because they inform the motivation for this application and how the Court is to consider whether the Full Bench’s decision is vitiated by jurisdictional error.

21 First, the new statutory regime under Pt 2-4, which in effect, can force multiple employers to engage in bargaining at a multi-enterprise level goes against the historical capacity to engage, voluntarily, at an enterprise level, to bargain terms and conditions of employment, tailored to the enterprise.

22 Secondly, the regime allows for employers to be so forced where the conditions, applicable in different circumstances, of s 249 are met. Given the application is made by a bargaining representative, under s 248(1)(b), and the employers to be covered by the authorisation do not consent, the conditions of s 249(1B) must be met, namely that the employer employed at least 20 employees at the time that the application for authorisation was made, the employer has not made or is named in an application for such an authorisation that has not yet been decided in relation to the employees that will be covered by the agreement, and the majority of employees who are employed by the employer at a time to be determined by the Commission and who will be covered by the agreement want to bargain for the agreement, and the circumstances described in s 249(1D) do not apply (the employer is covered by an enterprise agreement that has not passed its nominal date of expiry or there has already been agreement to bargain for a proposed single-enterprise agreement).

23 Further, s 249 requires, given these employers are not under the same franchise (for which s 249(2) would apply) that the employers have clearly identifiable common interests (taking into account the matters identified in s 249(3A)) and it is not contrary to the public interest to make the authorisation (s 249(3)) and if so, the operations and business activities of each of those employers are reasonably comparable (s 249(1)(b)(vi)).

24 Thirdly, however, notably, ss 249(3AB) and 249(1AA) establish a presumption (in certain circumstances) that the requirements of s 249(3) (that the employers have common interests and the authorisation would not be against the public interest) and s 249(1)(a)(iv) (that the operations and business activities of each of those employers are reasonably comparable) are met. These presumptions apply in the circumstances of this case and their existence (and whether they were displaced) goes some way to inform a critical reading of the Full Bench’s decision.

25 Fourthly, the determination of whether the authorisation conforms with the statutory demands of the provision requires of course, the obvious, that particular consideration is given to the content of the application, who it is made by and its scope (the relevant employers and employees it is intended to cover). Section 248(2) requires that the application must specify the employers that will be covered by the agreement, the employees who will be covered by the agreement and the person (if any) nominated by the employers to make the application if the authorisation is made. The scope of the proposed agreement (as contained in the application) will inform the task of the Commission when determining whether the preconditions are satisfied, including those about which contention has arisen by this review, namely whether the presumption of clearly identifiable common interests, the authorisation is not contrary to the public interest and the operations and business activities of each of those employers are reasonably comparable, is displaced by the employers.

The application which was the subject of the decision under review

26 Critically, the application sought for the authorisation to cover a small number of employees holding particular statutory positions or positions that ensure the statutory requirements of mining operations are met (such that each of the employers were compelled to employ them), namely:

(a)    Deputies, including where known as Crew Supervisors;

(b)    Undermanagers, including where known as Shift Undermanagers;

(c)    Shift Engineers, including where known as Mechanical or Electrical Shift Engineers, Mechanical or Electrical Shift Supervisors, Mechanical or Electrical Supervisors, Trade Supervisors, Shift Trades Supervisors, Maintenance Supervisors, or Leading Hands at Chain Valley Colliery only; and

(d)    Control Room Operators, including where known as Control Room Officers, Control Room Supervisors, Senior Control Room Officers or Senior Control Room Operators.

27 As to the potential number of employees (who would be covered by the authorisation) holding these positions at each mine site, the Full Bench found that, as at February 2024, there were 46 Ulan employees, of a workforce of approximately 250 employees and 43 Whitehaven employees of a workforce of between 470 to 530, who held these positions (FB[159] and FB[173] respectively). There was no finding as to the number of Peabody employees who held these positions.

The decision under review

28 The Full Bench was required to determine whether to make the single interest employer authorisation sought by APESMA and opposed by each of the respondent employers, namely Ulan, Peabody, Whitehaven and Delta Coal. Ultimately, the Full Bench made the authorisation, pursuant to s 249 of the FW Act with respect to all of the respondent employers save for Delta Coal.

29 The Full Bench, identified at FB[57], the criteria it said it was required to consider when determining whether to make the authorisation (about which no issue is taken on appeal):

* whether a valid application has been made;

* whether at least some of the SIEA Employees are represented by an employee organisation;

* whether the parties have had the opportunity to express their views;

* whether, given the absence of consent, each of the Respondent Employers employed at least 20 employees at the time that the application was made;

* whether any Respondent Employer has made an application for a single interest employer authorisation that has not yet been decided in relation to the SIEA Employees;

* whether a Respondent Employer is named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees;

* whether a majority of the SIEA Employees who are employed by each Respondent Employer want to bargain for the proposed agreement;

* whether s 249(1D), which concerns the existence of an “in-term” enterprise agreement, applies to any of the Respondent Employers;

* whether the requirements of s 249(3) have been met, that is:

* whether the Respondent Employers have clearly identifiable common interests; and

* whether it is not contrary to the public interest to make the Authorisation;

* if s 249(3) has been met, whether the operations and business activities of the Respondent Employer are reasonably comparable with those of the other Respondent Employers;

* whether the circumstances contemplated in ss 250(3) and (4) – which in general terms contemplate that an authorisation would not be made

* where bargaining is already underway for an enterprise agreement that would cover the same employees – apply; and

* whether the proposed agreement covers employees in relation to general building and construction work, noting that if it does, the Authorisation cannot be made.

30 Thereafter, the Full Bench, identified those matters about which there was no dispute, at FB[58], namely:

* A valid application was made.

* At least some of the employees who will be covered by the proposed agreement are represented by an employee organisation, namely APESMA.

* Each party to the application has had an opportunity to express their views.

* Each of the Respondent Employers employed at least 20 employees at the time that the application was made.

* None of the Respondent Employers are named in a single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees.

* The proposed agreement will not cover employees in relation to general building and construction work.

* The proposed authorisation specifies each of the matters required by s 250(1) of the FW Act.

* The circumstances contemplated in ss 250(3) and (4) do not apply.

31 Then, the Full Bench crystallised what remained, namely, the “major issues in dispute”, at FB[59]:

* Whether a majority of the employees who are employed by each of the Respondent Employers at a time determined by the Commission and who will be covered by the agreement want to bargain for the agreement – Majority Support.

* Whether each of the Respondent Employers have clearly identifiable common interests – Clearly Identifiable Common Interests.

* Whether it is not contrary to the public interest to make the authorisation – Public Interest.

* Whether the operations and business activities of each of the Respondent Employers are reasonably comparable with those of the other employers that will be covered by the agreement – Comparable Operations and Business Activities of Respondent Employers.

* Whether Delta Coal and the SIEA Employees who will be covered by the proposed agreement are covered by an enterprise agreement that had not passed its nominal expiry date – Delta Coal Agreement coverage.

(Emphasis in original.)

32 As will become apparent below, each of the first four major disputed issues, referred to above, are the subject of this application for review.

33 Ultimately, the Commission was satisfied that it must make the authorisation, where that authorisation covered all the respondent employers save for Delta Coal, under s 249 of the FW Act, and that a majority of employees wanted to bargain for the agreement and that the respondent employers had not displaced the presumption that each of the respondent employers had clearly identifiable common interests, the authorisation was in the public interest and their operations and business activities were reasonably comparable. Detailed consideration will be given to each of these aspects of the Full Bench’s reasons when dealing with each of the related grounds of review below.

The applicants’ arguments before this Court

34 As adverted to above, each of the applicants’ applications before this Court variously assert jurisdictional error and legal unreasonableness in the Full Bench’s findings by reference to the “major issues in dispute” identified by the Full Bench (with the exception of Delta Coal) at FB[59] (extracted at [31] of these reasons above).

35 There was imprecision in the way that each applicant formulated the alleged jurisdictional error and overlap between them. As a consequence, the Court asked that the applicants confer and provide to the Court before the hearing, a list of issues to be determined, under the umbrella of each of the four disputed findings.

Issues to be determined

36 As a consequence, the applicants identified the following issues to be determined by reference to the major issues in dispute identified before the Full Bench:

(a)    Did the Commission fail to form the state of satisfaction required under ss 249(1)(b)(v) and 249(3)(a) of the FW Act as to whether the respondent employers have “clearly identifiable common interests”? (Peabody Ground 1; Whitehaven Grounds 1–8; Ulan Ground 3);

(b)    Did the Commission fail to afford Peabody procedural fairness and/or fail to form the required state of satisfaction as to the “clearly identifiable common interests” requirement, by failing to consider Peabody’s submission that there were not clearly identifiable common interests as between Peabody and Ulan given the conflict of commercial interests of their respective corporate groups? (Peabody Ground 2; Ulan Submissions [67]));

(c)    Did the Commission fail to form the state of satisfaction required in ss 249(1)(b)(v) and 249(3)(b) of the FW Act as to whether it was not contrary to the public interest to make the authorisation? (Peabody Ground 3; Whitehaven Ground 12; Ulan Ground 5).

(d)    Did the Commission fail to form the state of satisfaction required in s 249(1)(b)(vi) of the FW Act as to whether the operations and business activities of the respondent employers are reasonably comparable? (Peabody Ground 4; Whitehaven Grounds 9–10; Ulan Ground 4); and

(e)    Did the Commission fail to form the state of satisfaction required in ss 249(1)(b)(iv) and 249(1B)(d) of the FW Act as to whether a majority of the employees who are employed by each employer who will be covered by the proposed enterprise agreement want to bargain for that agreement? (Ulan Grounds 1 and 2; Whitehaven Ground 11).

37 As will be seen by how each issue is dealt with below, the questions required to be determined were further refined at hearing.

Nature of the jurisdiction

38 It is worthwhile noting the constraints of this Court’s jurisdiction.

39 This Court’s jurisdiction, when dealing with decisions of the Commission, is limited to reviewing those decisions to determine whether there is jurisdictional error.  It is not to enter in the merits of those determinations. The Commission, alone, has been vested with responsibility for undertaking (in this case, the highly evaluative task) and assessing all relevant matters and reaching the relevant conclusions necessary to make the determinations. This Court’s task is confined to whether the Commission’s decision is vitiated by jurisdictional error: Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; 253 FCR 368 at [8].

40 As will be apparent from the review grounds, the applicants urged upon this Court to find that the Commission had engaged in various forms of jurisdictional error. Relevant, to those grounds, it is worthwhile noting a number of additional matters.

41 The necessary “restraint” in the conduct of judicial review involves both a reading of the reasons under challenge as a whole, considered fairly and without the use of a fine appellate tooth comb: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291 per Kirby J.

42 The rationale for reading reasons as a whole includes the presumption that decision-makers ordinarily review the whole of the evidence and consider all of the issues before they write, such that this must be taken into account when reading the reasons and therefore passages of the decision sought to be impugned should not be read in isolation: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [76] per Bell P.

43 An inference ought not be too readily drawn that a Tribunal failed to consider an issue where the reasons are otherwise comprehensive and the issue has been identified at some point. Consideration must be given to whether it was unnecessary to make a finding on a particular matter because it was subsumed in findings of greater generality or there was a factual premise upon which the contention was based which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47].

44 However, the Court must not “fill in gaps in the path of reasoning”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; 297 FCR 1 at [61].

45 It is for the primary decision-maker to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power absent any statutory indication: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at [39]–[41] per Mason J.

46 The question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act, it may also be determined by implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend at [39]–[44] per Mason J.

The Common Interest Requirement

There was no constructive failure to consider the actual different terms and conditions of employment (Issue 1)

Competing positions

47 The parties’ competing positions may be summarised in the following way.

48 The central thesis of the respondent employers (led by Peabody) was that the evident purpose of the s 249(3)(a) criterion was that there be clear homogeneity of the employers’ interests relevant to bargaining (common objectives, priorities and tolerances). It was through this prism of homogeneity that the relevance and importance of interest must be viewed, otherwise, commercial and other employer interests can be cast at a level of generality and abstraction, even if they relate broadly to bargaining, which is impermissible. It is said to be impermissible, and impermissibly so in this case, because the Commission, effectively “climbed over” and failed to engage with the differences as between the employers’ interests, by constructing common interests according to an overly general, high level abstract analysis that refashioned actual differences, in a reductive way, creating artificial commonality.

49 Whitehaven generally agreed with the submissions of Peabody and further submitted that the level of common interest, to which Parliament was concerned within s 249(3)(a), was commonality in wages or salaries (and increases or decreases), hours of work, patterns and rosters of work, and other incentives, allowances and bonuses. Whitehaven referred to its extensive unchallenged evidence of the very different (as a consequence of its location) terms and conditions of employment applicable to its Narrabri mine for which it was said that the Commission failed to engage because it considered the evidence at such a high degree of generality such that it failed to take account of a material consideration, misconstrued the statutory criterion and failed to apply itself to the relevant question.

50 Ulan agreed with the submissions of both Whitehaven and Peabody and echoed their submissions. Further, Ulan emphasised the commercial and industrial conflict of interests as between Peabody and Ulan during bargaining and submitted that the Full Bench should have come down to the next level of analysis and looked at the “conflicts versus commonality of interests” as between the relevant employers.

51 By contrast, APESMA submitted that, by and large, the Commission accorded with the approach urged by the respondent employers. APESMA submitted that the Commission was entitled, as it did, to undertake the evaluative exercise, with particular regard to the nature of the authorisation sought, namely the narrow scope of the positions of the relevant employees, being specialised and essential staff in each of these mines mandated by legislation. The statutory compulsion to have these employee positions, the concomitant narrowness of the field for determining the terms and conditions of these particular staff, and where the staff formed a small cohort, had a bearing on the degree to which differences would displace the presumption.

Consideration

52 Any consideration of the Full Bench’s reasons, in a judicial review context, must be considered through the prism of the FW Act and what the Full Bench was, by statutory command, tasked to do. The legislative scheme and the text of s 249 reveal the following about the common interest requirement:

(a)    the determination of whether the respondent employers have discharged their burden of displacing the presumption requires consideration of what is meant by the expression “common interests” and “reasonably comparable” within the statutory context;

(b)    guidance as to their meaning is derived from the text, the statutory scheme and the evident purpose of the provision;

(c)    however, given that the expression “common interest” is not defined, it is a term of broad import;

(d)    the matters identified by Parliament, as may be relevant in the determination of common interest, point to respondent employer characteristics that may assist in determining whether the respondent employers have some common interests which will assist in the facilitation of bargaining;

(e)    however, Parliament has left to the Commission the determination of these issues, by reference to these broad concepts, where such a task is an evaluative one;

(f)    the focus of the inquiry, where there is a need to displace the presumption, will involve consideration of what are said to be the circumstances of difference as between each of the respondent employers where the legislation assumes by their size there will be commonality;

(g)    whether there is commonality or difference is a highly evaluative exercise not based on mathematical formulae and one directed to the scope of the proposed enterprise agreement the subject of the authorisation application; and

(h)    the scope informs the task not only of identifying commonality but also difference and the ultimate landing on whether the presumption is displaced. For example, where the application concerns a small cohort of employees that, by statutory command, the employer is required to employ, this will inform questions of commonality and the influence on that question of difference (for example, mine life, retention, economic management etc). If an employer has no choice but to engage employees performing duties of this kind, for which there is statutory prescription as to the duties the employees are required to perform, this will have bearing on the determination of whether the presumption is displaced, and whether the fact of mine life, retention issues and level of the profitability of the mine and the ability to absorb labour costs, are differences of the kind that displace the presumption.

53 The Full Bench identified correctly the test:

345     … that we are required to consider is whether the Respondent Employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the SIEA employees.

(Emphasis added.)

54 In the same paragraph, the Commission went on to state that the effect of the operation of ss 249(3) and 249(3AB), where there is opposition to the claimed authorisation, the Commission must assess the evidence and determine:

(a)    whether the factors relied upon as interests are demonstrated by the evidence;

(b)    whether there are, in fact, relevant interests in relation to bargaining for an enterprise agreement as between the respondent employers; and

(c)    whether these interests are common or different as between the respondent employers.

55 No serious challenge was made to this portion of the reasons, nor could there be. As will be apparent from the below, the challenge arose principally as to the Commission’s claimed (purported) application of (or failure to apply) these principles rather than with respect to the principles themselves.

56 Part of the attack was made as to the level of satisfaction. For example, Peabody submitted that the evident purpose of the s 249(3)(a) criterion is that the Commission is satisfied that there is a clear homogeneity of the employers’ interests relevant to bargaining (common objectives, priorities and tolerances). As to what “clear homogeneity” means or the level of abstraction allowed, ultimately is dependent upon the circumstances of each case, it is an evaluative exercise. However, the Full Bench did accept, as Peabody submitted, that the common interest criterion was directed to whether the parties ought to be required to bargain together, and therefore the relevance and importance of interests are those that facilitate bargaining. As the reasons below illustrate, the Full Bench understood and gave greater weight to those interests which did this. The difficulty for the respondent employers was that the Full Bench was ultimately of the view that their evidence did not establish that the purported differences would curtail the facilitation of bargaining.

57 Peabody also submitted that although the authorisation creates an avenue by which a proposed agreement can cover more than one enterprise, the purpose is to facilitate bargaining focused on the needs of each of those enterprises. We do not accept that the purpose is so focused. The needs of those enterprises form a part of but not the totality of the Commission’s overall assessment. As to those needs and whether they demonstrate commonality, it is a question of fact and degree to be determined in the circumstances of the particular case and, in particular, by reference to the scope of the authorisation sought. In order to glean the legislation’s purpose, consideration must be given to the evident broadening of the field by this new regime and the powerful indicator which comes from the creation of the presumption. It is presumed that employers with more than 50 employees will have common interests.

58 What is acutely apparent from the outset, and evident in the first sentence of FB[345], is that the Full Bench’s focus, when considering whether the respondent employers have joint, shared, related or like characteristics, qualities, undertakings or concerns, was upon those factors that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the employees that are the subject of the application: FB[345]. The Full Bench recognised that the task extends beyond considerations at the macro or conceptual level and warrants close attention to “what the discernible interests of the parties are at the level of the enterprise”, again emphasising those interests “that are directly relevant to the proposed bargaining”: FB[348]. The task requires, as articulated by the Full Bench and which the parties accepted and urged upon this Court, a “broad, evaluative approach” and the undertaking of a “qualitative assessment consistent with the objects of the FW Act”: FB[348].

59 The respondent employers challenged how the Full Bench ultimately cast the level of interests, claiming they were purportedly considered at a level of generality and abstraction (even if they relate broadly to bargaining) which was impermissible. The respondent employers also claimed that the Full Bench failed to take into account their evidence as to their characteristics and attributes.

60 However, it was apparent that, from the outset, the Full Bench was cognisant of the possible degree of granulation of interest and (for reasons later exposed) did not err in the way that they determined whether the respondent employers had displaced the presumption that they had clearly identifiable common interests. At FB[346], the Full Bench acknowledged a few, of the innumerable permutations:

346    It is likely that when notionally identifying interests amongst employers subject to an application of this kind, some interests will be common and some interests will not be common. It is possible that an employer will have some highly specific interests which are shared by no other employer. Similarly, the same employer may have, at least at the conceptual level, very broad interests which may be shared across many employers in a range of vastly different industries and circumstances. There is also no guidance in s.249(3) as to whether the identification of different interests negates such a finding.

61 As a consequence, the Full Bench noted importantly the following, at FB[347]:

347     We consider that the mere existence of more than one common circumstance that could be relevant to an interest held between the relevant employers would not be sufficient to meet the terms of s.249(3)(a) of the FW Act. The requirement for the existence of common interests is intended to be a qualifier in the context of provisions that may result in multiple employers being required to bargain together under a single interest employer authorisation and it should be applied in a manner that gives effect to its purpose. It would, for example, not be intended that the consideration of ‘common interests’ was applied in a purely mathematical way such that being both a national system employer and subject to the FW Act, with the associated interests that arise from this, meant that employers have ‘common interests’ and should be compelled to bargain together. The provisions must also be applied in a manner consistent with the objects of the FW Act. The statutory framework has as its overall object the provision of ‘a balanced framework for cooperative and productive workplace relations’ including by ‘… achieving productivity and fairness through an emphasis on enterprise – level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action’. In that light, it cannot have been contemplated, for example, that the fact of all employers being in the same industry and covered by the same modern award would be enough in itself to constitute ‘common interests’ for the purposes of making an authorisation of the nature sought in this application. Such an outcome would, for example, be discordant with a system that also provides for modern awards covering employees at the industry and occupational levels and reinforces that these (common) circumstances are not in themselves interests, at least for the purposes of a single interest employer authorisation application.

(Emphasis added.)

62 Accordingly, of significance, the Full Bench in effect noted that the determination of “common interests” is evaluative and qualitative, not undertaken by mathematical analysis and informed by the achievement of the objectives of the FW Act. Indeed, the Full Bench appears to acknowledge, that by setting the test for determining commonality too low, for example, by the identification of the fact of the employers being in the same industry and covered by the same modern award, would not be enough and would be inconsistent with the legislative scheme.

63 The Full Bench then, at FB[349], went on to consider what “common or different interests are said to arise”. The Full Bench referred, immediately thereafter, to its earlier “various findings about the nature and context of each of the Respondent Employers” (FB[349]). This is a reference to the earlier section, entitled “5. The circumstances of the Respondent Employers”, described to constitute “broad findings about the Industry and the circumstances of the Respondent Employers” (FB[109]–[203]).

64 Peabody submitted that the matters relevant to determining common interest in s 249(3A): being, geographical location (s 249(3A)(a)), regulatory regime (s 249(3A)(b)), nature of enterprise and terms and conditions of employment  (s 249(3A)(c)), were determined by the Full Bench to be not necessarily interests per se, but as characteristics that are capable of informing interests. Peabody submitted that this is “right at a theoretical and grammatical level”, but that, when looking to the Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) before the Senate at [79], it was clear Parliament’s intention was that those matters would be of significant moment in determining common interest:

79     Determining whether the relevant employers have clearly identifiable common interests will likely require evidence to be provided of a range of characteristics of the employers, including the nature, size and scope of operations, the terms and conditions of employment across the organisations, the relevant regulatory regime and geographical location.

65 Passages from the Supplementary EM were also relied upon for how those matters relevant in s 249(3A) bear upon the presumption in s 249(3AB). It was submitted that relevant matters (interests, characteristics or attributes) negativing the proposition are relegated as not being interests or not being inconsistent with the abstract and general interests identified. We do not accept this. Regardless of the taxonomy attributed to the matters referred to in s 249(3A), ultimately, it is a matter for the Commission, informed by the FW Act’s terms, context and purpose, to determine whether the presumption is displaced.

66 The Full Bench then summarised the submissions of each of the parties before repeating its earlier heading “Consideration of the clearly identifiable common interests requirement”: FB[338].

67 For the reasons which follow, we reject the respondent employers’ claim that the Full Bench ultimately misapprehended the nature of the inquiry, in that it cast the identification and comparison of employer interests at a thematic level that was too general and abstract, such that actual differences were collated into themes of commonality.

68 The Commission was required to undertake a broad evaluative exercise in order to reach the requisite state of satisfaction. This Court must read the reasons as a whole without looking astutely to find error in the ways that the Full Bench expressed itself in reaching that state of satisfaction: Wu Shan Liang at 271–272 per Brennan CJ, Toohey, McHugh and Gummow JJ, at 291 per Kirby J. A fair reading of the decision reveals that the Commission did adopt the approach it had articulated at FB[348].

69 The scope of the authorisation has particular significance in this case. The intended coverage of the proposed enterprise agreement informs the task not only of identifying commonality but also of difference and the ultimate landing on whether the presumption is displaced. It is evident that the Commission, when considering what is required by the relevant inquiry as to whether the employers have clearly identifiable common interests, attended to that task, by giving specific consideration as to those employees who were the subject of the application (as it was required to do): FB[342].

70 The Commission then noted that the employees to be covered by the authorisation were limited to those appointed (at FB[344]):

to one of four senior, or relatively senior roles that are either required by the relevant mining safety legislation or undertake functions that are required. It is therefore necessary to have regard to the intended coverage of the enterprise agreement when examining the interests of Respondent Employers.

71 By extension, as adverted to above, the Commission then concluded that the relevant inquiry involved considering whether the respondent employers had joint, shared, related or like characteristics, qualities, undertakings or concerns that would impact or influence them in relation to “bargaining for an enterprise agreement that will cover the SIEA employees [those proposed to be covered by the authorisation]” (emphasis added): FB[345].

72 The Commission’s reasons must be read as a whole and consideration be given to the number of different places, in the lengthy judgment, that salient findings of fact were made which were applicable to more than one of the statutory criteria being assessed, with the consequence that the Commission, made reference to the existence, in short hand, as it was permitted to do, to those earlier relevant findings of fact.

73 At the outset of its consideration of “which common or different interests are said to arise”, the Commission referred specifically to its earlier findings about the nature and context of each of the respondent employers: FB[349]. Those findings at FB[109]–[203] revealed that the Commission considered, in detail, the large volume of evidence relied upon by the respondent employers as to their differences and made specific findings with respect to their individual circumstances, as to the life cycles of their mines and different mining methods, their employees and certain aspects of their employment arrangements including differences in their roles and rostering.

74 The Commission identified the employees who were subject of the authorisation as a “small component” of the total mining industry workforce in New South Wales of 25,336 full-time equivalent workers: FB[118]. The Commission identified Peabody as using a longwall operation (FB[136]), having a “relatively short” anticipated remaining mine life (FB[138]), requiring truck transportation to its treatment plant and then train transport to Newcastle, totalling a round-trip journey of 11.5 hours (FB[140]). The Commission identified geological challenges for Peabody (FB[141]) and that the coal being sold is predominately sent to customers in Asia (FB[142]). It also identified Peabody’s difficulty in attracting and retaining employees, as it is not near any “attractive lifestyle factors” (FB[146]), and that its workforce predominately commutes on a daily basis. Most employees work three days on, four days off, with 12-hour shifts (FB[147]). The Commission also identified Ulan as operating a longwall operation (FB[150]), that the coal is transported by train to Newcastle totalling a 22.7 hour round trip (FB[156]) and geological challenges (FB[157]). The Commission also identified Ulan as selling coal predominately to customers in South East Asia (FB[158]).  It identified that Ulan does not foster or encourage a Drive In Drive Out workforce but makes investment, and encourages staff to live, in local areas (FB[161]–[162]). Ulan’s staff do 10-hour shifts over four days or three 12-hour shifts (FB[164]). The Commission identified Whitehaven as operating a longwall mine (FB[168]), processed onsite and transported by train to Newcastle, totalling a 27 hour roundtrip (FB[169]). The Commission identified geological challenges affecting Whitehaven’s operations (FB[170]), that coal is predominately sold to customers in Asia (FB[171]). It identified its workers as comprising some living locally and others who DIDO, and Fly In Fly Out (FB[174]). It identified ongoing challenges in attracting and retaining employees (FB[175]). Whitehaven’s employment roster was more varied: some SIEA employees worked seven days on, seven days off, some four-days on, three-off (FB[175]–[184]). With respect to Delta, it identified the operation as located on the central coast (FB[187]), as a bord and pilar mine (FB[192]), that the coal is not washed and is not exported but used by the power station in the vicinity of the mine (FB[193]–[194]). Delta’s employees live locally, and its location gives it a significant recruitment advantage (FB[203]).

75 The Full Bench then made a substantial number of additional findings, as to each of the itemised matters, in s 249(3A): FB[350]–[415]. The Commission made findings with respect to their geographic locations of operation (and the concomitant feature of transportation) (FB[351]), that all of Ulan, Peabody and Whitehaven transport coal by rail to Newcastle over great distances over several hours. With respect to the “nature of the enterprises to which the Agreement will relate”, the Full Bench made findings regarding the characteristics of each employer, the economics of longwall mining (FB[362]–[365]), the customer base of each employer (FB[366]–[376]), the relative mine life of each of the relevant mine sites and the differing geology (which has had an impact on scale, production limits and mine life) (FB[377]–[386]). In relation to the “terms and conditions of employment” in each enterprise (FB[387]), reference was made to earlier findings regarding “workplace characteristics” (FB[389]), then thereafter additional findings regarding the attraction and retention issues and how each employer respondent sought to attract skilled labour in part by reference to the differing terms and conditions of employment, differing rostering arrangements, contractual terms and bonus and incentive schemes (FB[391]–[415]).

76 Whitehaven sought to support its submission, as to the importance of its evidence as to difference and how these matters were precisely the types of matters that influence and shape enterprise bargaining, by reference to its unchallenged evidence in the proceedings illustrative of difference. However, it omitted from its submissions reference to the fact that the Commission had made detailed findings regarding this evidence. Again, a close reading of the decision reveals that specific and detailed consideration was given to each employer’s circumstances comparative to the other employers. For example, so much is clear from FB[391], where express attention is given to, among other things, the fact that “Ulan has also had difficulty attracting and retaining employees because of the remote location”. Specific consideration was given to differences in where workforces were located: Ulan was identified as not fostering DIDO but encouraging staff to live locally (FB[161]-[162]), and Peabody’s staff were identified as predominantly commuting on a daily basis (FB[146]), ultimately, its consideration of this evidence (and what it identified as specific evidence from each “about attraction and retention issues”: FB[391], [472]), led to a conclusion that each suffer challenges in attracting and retaining staff: FB[655].

77 The Commission then returned to consideration of whether the respondent employers had displaced the presumption that they did have clearly identifiable common interests. The Commission stated that it placed “significant weight upon interests where they are likely to impact or influence the respondent employers in relation to bargaining for an enterprise agreement that will cover SIEA Employees”: FB[469] (emphasis added).  No issue was taken with that approach in this review.

78 Ulan and Whitehaven challenged the Commission’s finding, at FB[476], that the “specific terms and conditions of employment” are “not interests but means of achieving specific intentions or requirements” of the respondent employers. That reasoning was said to be also inconsistent with the Commission’s statement of the statutory test as “interests” being “characteristics, qualities, undertakings or concerns” (emphasis added): FB[345]. It was submitted that that reasoning demonstrates that the Commission ignored, or did not have proper regard to, key terms and conditions (such as salaries and bonuses, and conditions of employment related to attracting employees to regional and remote areas) that would be relevant to the employers’ interests (including, in relation to bargaining). This submission is rejected.

79 The Full Bench acknowledged the “different terms and conditions at each of the mines” in the context of summarising the broad submission of the respondent employers: FB[470]–[471]. The Commission had made detailed findings earlier as to their differences. Properly understood, as considered more fulsomely below, at FB[477]–[478], the Full Bench summarised the detailed matters previously considered and taken into account at FB[387]–[415], as outlined above.

80 The Full Bench importantly hereafter, narrows in on a pivotal fact: that there is a requirement, by statute, that they each employ this small cohort of employees under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW), stating further that, at FB[471]:

471    … The Respondent Employers cannot operate their respective mines without such personnel. This is the case regardless of issues which may affect the profitability and productivity of the mines. To employ persons in these roles, the Respondent Employers must provide conditions of employment which will attract prospective employees and retain current employees.

81 It is clear that this fact had significant import in the Commission’s reasoning. It was open for it to. There was no challenge to this fact nor to the aspects of the Commission’s reasoning that identify this fact as being critical.

82 It is from this fact that the Commission then considered the commonality of the employers in needing to attract and retain these safety critical, (in part) statutorily-mandated staff. Whilst the Commission immediately thereafter accepted that they had each “proactively” sought to attract staff in different ways, ultimately, there was a common goal, addressed by different means.

83 It was a matter for the Commission to determine whether the respondent employers’ evidence of difference displaced the presumption. Ultimately, the Commission was not persuaded that they had. If an employer has no choice but to engage employees of this kind, this will necessarily have bearing on the determination of whether the presumption is displaced, and whether the fact of mine life, retention issues and level of the profitability of the mine and the ability to absorb labour costs, are differences of the kind apt to displace the presumption.

84 A careful review of each of the respondent employers’ claimed “differences” (pressed upon this Full Court) reveals that the Commission made specific reference to the associated submissions, made specific, detailed findings with respect to the respondent employers’ evidence of these “differences” in its reasons, and did engage with the substance of the submission.

85 Peabody referred to various aspects of the Full Bench’s reasoning, said to exhibit the error. The Court’s attention was drawn to FB[477]–FB[479]:

477 In our view, the evidence establishes that the Respondent Employers’ approach to conditions of employment indicates that the Respondent Employers generally want to:

i.     negotiate individually with employees in relation to significant aspects of their employment conditions such as annual remuneration by providing individual contracts of employment;

ii.     incentivise employees to perform well both at an individual level and as part of the business they are working for by providing annual bonuses;

iii.     incentivise employees to engage in shift work and work additional hours by compensating them for doing so;

iv.     implement rosters which maximise the productivity of the mine, are attractive to employees and provide for employees to have at least three consecutive days off after each roster period.

478 In addition, there was evidence that Peabody, Ulan and Whitehaven have a specific interest in overcoming attraction and retention challenges so they each have sufficient SIEA Employees to operate their respective businesses and to fulfil regulatory requirements. Peabody, Ulan and Whitehaven apply GAE arrangements to the majority of their SIEA Employees whereas Delta Coal does not. This suggests that Delta Coal has an interest in recognising and applying award conditions which may not be shared in the same manner by the other Respondent employers.

479     We find that the intentions or wishes of the Respondent Employers as described above will impact or influence each of them in relation to bargaining for an enterprise agreement that will cover SIEA employees, rather than the conditions of employment which are the means by which the Respondent Employers’ intentions are achieved.

86 Peabody submitted that these paragraphs, and in particular, the Full Bench’s conclusions in FB[477], reveal an impermissibly abstract analysis that takes the inquiry away from the relevant “prism” of identifying common interests to see whether an authorisation would facilitate enterprise bargaining at the enterprises concerned, and instead would cover any employer in the industry. Peabody submitted that the generalised expression, in FB[477], that the employers “generally want to” undertake those specific aspects is a reductive approach that errs in impermissibly reducing actual differences between the employers into an artificial commonality of such a high level of generality that it could apply to any participant in the New South Wales underground coal industry.

87 The legislation calls for the specialist tribunal to make an evaluation on a spectrum. The Commission’s reasons carefully, and repeatedly, wrestle with the spectrum of analysis, correctly not adopting any fixed position, but rather returning to the facts of the particular case and to the statutory context. The respondent employers’ reliance on FB[477] of the reasons is misplaced. The respondent employers fail to consider the whole of the reasoning process. The paragraph needs to be read together with the paragraphs that precede it, which provide the context for the Commission’s conclusions.

88 The Full Bench determined correctly that the expression “common interests” should be construed in the following way:

(a)    in accordance with its ordinary meaning within the context and purpose of the FW Act: FB[340];

(b)    where “common” means shared, joint, united and shared or joint and, at least at a conceptual level, “interests” means “concernment”, “business concerns or cause”, “goals, principles and business concerns” and “characteristics or matters that impact or influence the organisation”: at FB[340];

(c)    as to the matters “that may be relevant in determining whether the employers have a common interest” listed in s 249(3A) (namely geographical location, regulatory regime and nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises), they may inform the determination of whether the employers have common interests but more is required to be established than that they have these matters in common: FB[339];

(d)    for “common interests” to be “clearly identifiable”, they must be “plainly discernible or recognisable” but need not be self-evident: FB[341];

(e)    consideration may be given to where the employees work who are the subject of the application: FB[342];

(f)    however, given the interests of the employer may not be limited to the specific place of work (here, a particular mine site), the inquiry is to be performed at the company or entity level including, it appears from their reasons, to consider in a more expansive way, “the operations and interests of the [r]espondent employers beyond the [workplace]”: FB[342];

(g)    however, again, “each mine” is potentially relevant to determining the employers’ interests given s 249(3A)(c) refers to the “enterprise”, which is defined in the FW Act to include “a business, activity, project or undertaking”;

(h)    in determining whether there are such interests, account must be taken of the purpose of the provision: the authorisation of bargaining: FB[343];

(i)    regard must be had to the intended coverage of the enterprise agreement when examining the respondent employers’ interests: FB[344];

(j)    determining the sway of “highly specific” or “broad interests which may be shared across many employers in a range of vastly different industries and circumstances” is left to the Commission, and is not to be determined by mathematical deduction but by reference to the overall object of the provision: FB[346]–[347]; and

(k)    the Commission’s task, in identifying those interests, extends beyond the macro or conceptual level and warrants close consideration of the discernible interests of the parties at the enterprise level: FB[348].

89 The Full Bench identified and considered the various matters that each of the employers raised, emphasising at FB[470] and FB[474] that the inquiry into how those matters (summarised at FB[469]) are considered in the context of common interest is to be guided by the fact of the small cohort of employees sought to be covered:

470     It is logical to commence our inquiry about matters which impact or influence the Respondent Employers in relation to bargaining by examining the current terms and conditions in the enterprises where the SIEA Employees work and whether they give rise to clearly identifiable common interests. APESMA submitted that the Respondent Employers have have [sic] clearly identifiable common interests because they have the same regulation in respect of the employment of their employees, including the SIEA Employees, namely by the FW Act, the CMI (Long Service Leave) Administration Act and the Black Coal Award. The Respondent Employers broadly submitted that the different terms and conditions at each of the mines are matters which weigh against a conclusion that the Respondent Employers have clearly identifiable common interests.

…

474     Putting to one side the conditions of employment that are intended to address the challenges of attracting employees to work in regional and remote areas, the Respondent Employers demonstrated a common approach to conditions of employment in many respects. All of the Respondent Employers employed SIEA Employees pursuant to individual contracts of employment and their production and engineering employees pursuant to enterprise agreements. All of the SIEA Employees are paid an annual salary which is inclusive of most award entitlements and receive superannuation at superannuation guarantee contributions rates. All of the SIEA Employees are eligible to receive annual bonuses which are contingent on specific conditions being met, which generally include business and personal performance measures. All of the Respondent Employers have arrangements in place to pay at least some of the SIEA Employees additional remuneration which recognises shift work and work performed in addition to the usual roster. All of the Respondent Employers, apart from Delta Coal, have GAE or similar arrangements with the majority of their SIEA Employees.

(Emphasis added.)

90 By reference to the commonality of those features of employment identified at FB[474], as APESMA submitted, the Full Bench undertook the evaluative task of considering whether these matters are, in a true sense, common interests for the purpose of making the authorisation. Parliament contemplated that it would be for the Full Bench, as a specialist industrial tribunal, to evaluate common interest, as a matter that sits on a spectrum and necessarily involves a value-laden decision.

91 To the extent that it was submitted that the Full Bench regarded the differences in specific terms and conditions of employment as immaterial (with reliance on the first paragraph of FB[474]), such a submission is unsustainable given at FB[387]–[415] the Full Bench detailed these differences, and then at FB[470]–[480], explained that despite the differences there were commonalities and it reached the ultimate conclusion at FB[480]. A fair reading reveals that the Full Bench considered the differences as being a relevant consideration, took those differences into account and concluded at FB[480] that despite those differences the respondent employers’ evidence revealed that they “broadly have the same approach to terms and conditions which are underpinned by some interests which are common to each organisation and others which are common to Peabody, Ulan and Whitehaven only”: FB[480].

92 It was open for the Full Bench to conclude that the bargaining for this small cohort of employees, holding statutorily mandated positions, could be viewed differently from a circumstance where the proposed authorisation would cover all employees at a particular mine site. The limited size and nature of the cohort has direct bearing on whether the presumption would be displaced. For example, generalised evidence concerning the potential economic impact of disruption arising from bargaining may be less persuasive (in disproving the presumption) given the relative number of employees that will be covered by the agreement (and therefore involved in the bargaining) by comparison to the entire workforce. Similarly, the identification of different economic factors (labour costs, haulage costs, production costs) may not be sufficient to displace the presumption, if the evidence does not persuade the Commission that those factors will come to the fore (and impede bargaining) given the limited number of employees involved.

93 We can discern no error in the Commission’s search for and identification of “interests”. It was open for the Commission to conclude, in the circumstances of this case, that the existence of different terms and conditions of employment at each mine, did not mean that the presumption was overcome. The Commission identified a material, undisputed common concern (the need for each of their organisations to employ these types of employees (FB[471]) which remained a concern regardless of issues concerning profitability and productivity. It also identified a common concern, as being the challenges (albeit different between them) of attracting and retaining employees and how they each addressed this challenge differently: FB[472]–[473]. It was open for the Commission to identify these concerns as “interests” rather than treat as “interests” the different responses or approaches to these concerns (namely each of their terms and conditions of employment). Further, the Commission identified a number of common approaches undertaken by the employers to these employees as indicated in common aspects of their terms and conditions (FB[474]–[475]). To the extent that this analysis was undertaken at a higher level than the employers would have liked, this was ultimately, a matter to be determined by the Commission in the circumstances of this case.

94 It was obvious that the Commission determined the appropriate level of analysis by reference to the peculiar circumstances of this case, as reinforced in its reasoning, at FB[476], that the terms and conditions, in all cases, were for the purpose of ensuring that each employer could employ sufficient numbers of these particular kinds of employees as required by statute. Accordingly, the Commission concluded, in this case (noting it had identified at FB[377] that it might not always be the case), the specific terms and conditions that applied to the relevant employees were not “interests” but means of achieving their specific intentions or requirements. Regardless of the taxonomical designation, it is clear that these “means” were considered. It was open for the Commission to consider whether these intentions or requirements were likely to significantly impact or influence each of the employers in relation to the bargaining of the particular enterprise agreement that would cover this small cohort of employees.

95 What is clear is that ultimately, the Commission was not persuaded, given the commonality of intention and requirement (as required by statute), that the differences in the terms and conditions of employment displaced the presumption. No jurisdictional error can be discerned from this approach.

96 To the extent that similar attacks were made of the Commission’s reasoning concerning the “nature of the enterprises to which the agreement relates” (FB[481]–[489]), no error can be detected. Ulan submitted that the Commission dismissed as “attributes” rather than “interests” (FB[483], [492]) significant tranches of evidence (FB[393], [402], [409], [444]–[445]). This evidence was relevant to the consideration of common interests given the express terms of ss 249(3A)(a) and (c). It was submitted that dismissing “attributes” was also inconsistent with the Commission’s proper construction (FB[345]) of “interests” as “characteristics, qualities, undertakings or concerns”. We do not accept this submission for the following reasons.

97 The Full Bench considered the specific nature of each enterprise and identified the key differences. The Full Bench then described, at FB[486], what it understood to be the relevant respondent employers’ submission:

We understand the submissions of the Respondent Employers in relation to whether the nature of their respective enterprises give rise to a common interest to be broadly that their different production levels and margins establish that they do not have common interests. Production and profitability are influenced by location, mine life, mining method, equipment, transport considerations, geology, customers, production, all of which vary between the Respondent Employers and potentially lead to different interests. However, Ulan Whitehaven and Peabody have not shown how their different circumstances with respect to production and profitability are relevant to bargaining with the SIEA Employees.

(Emphasis added.)

98 The Full Bench then reasoned, at FB[487], that whilst the commercial purposes of employers may be relevant to bargaining, the evidence did not establish that the respondent employers’ commercial interests and activities had “meaningfully influenced” the employment conditions of the limited number of relevant employees intended to be covered by the authorisation. The respondent employers’ criticisms fail to grapple with the central thread of the Commission’s reasoning (the determination of interests through the narrow prism of the intended coverage of the agreement) and that they bear the onus of disproving the presumption.

99 The Full Bench went on to give an example of an aspect of Peabody’s evidence and the cessation of work at its mine in 2020 for two months, but indicated why, as it was open to, it was not persuaded by this evidence, in the context of identification of difference, because “there was no evidence which established that the pay and core conditions of Peabody’s SIEA Employees was reduced or altered in any way at that time or at any other time because of Peabody’s operations”: FB[487].

100 Again, it was not a case of “dismissing attributes” but rather of not being persuaded that the evidence displaced the presumption where, as the Full Bench identified, at FB[488], it was of the view given the “relatively small and distinct group of employees at each enterprise” that the attraction and retention of these employees was the “overriding matter” which has influenced pay and conditions amongst the respondent employers “not just commercial purpose, and it seems likely that this is an interest that will persist in a bargaining context”.

101 Ulan submitted that the Commission inconsistently took into account the “different commercial purpose” of Delta as a key reason to conclude it did not meet the common interests requirement (FB[492]). In contrast, the Commission had earlier found that Ulan had different commercial purposes and different interests to Peabody and Whitehaven (FB[482]) but discounted these differences. We do not accept that such a course was not open to the Full Bench, we can discern no jurisdictional error in its approach, the complaint impermissibly attacks the merits of the decision.

102 Peabody then submitted that the Full Bench also failed to properly consider the relevance of the geographical locations of the mines as it related to common interest and “climbed over” the evidence which illustrated real difference, at FB[491]:

491     The differences which the Respondent Employers point to which arise from geographical locations relate to employment conditions as well as geological features and transport costs which can alter the pace and cost of production. Although the Respondent Employers are located in different parts of New South Wales, two of the Respondent Employers, being Ulan and Whitehaven experience attraction and retention issues because of their remote and regional locations, so they have a common interest in overcoming these issues, as noted above. Geological features and transport costs are relevant to the Respondent Employers’ commercial interests and activities. We have already found that in the case of Ulan, Whitehaven and Peabody there is insufficient evidence to establish that differences in commercial interests and activities are sufficiently relevant to bargaining for an agreement which will cover the SIEA Employees so as to overturn the rebuttable presumption.

103 We reject this submission. It is clear that the Full Bench did not “climb over” the evidence, but rather was not persuaded by it, when considering the very narrow cohort of employees to be covered by the proposed agreement. It was not a question of failing to consider but rather finding that the respondent employers’ evidence did not displace the presumption.

104 Peabody then submitted that the conclusion drawn by the Full Bench at FB[492] was critical in demonstrating the error in their reasoning approaching the task of common interest at too high a level of generality:

492 We have considered all of the evidence and submissions of the parties in relation to the requirements of s.249(3) and we are not satisfied that…Ulan, Whitehaven and Peabody have established that they do not have clearly identifiable common interests with each other in relation to bargaining for an enterprise agreement to cover the SIEA Employees. Ulan, Whitehaven and Peabody were unable to make the requisite connection between the (different) interests they identified and the facilitation of bargaining. In many cases where Ulan, Whitehaven and Peabody claimed differences between them, such as conditions of employment, a closer examination of these matters revealed them to be attributes, rather than interests, and gave rise to interests that are common. Our examination of the evidence revealed that Ulan, Whitehaven and Peabody have common interests arising from the terms and conditions of employment of the SIEA Employees and the regulatory regime which mandates their employment. However, in the case of Delta Coal, it has established that its sole commercial purpose is not to make profits but to cover its costs of providing a reliable supply of thermal coal to Delta Electricity which is comprehensibly different to the commercial purpose of Ulan, Whitehaven and Peabody. There is no evidence that Delta Coal experiences the same nature of attraction and retention issues as Ulan, Whitehaven and Peabody such that it needs to provide enhanced pay and conditions to overcome these challenges. It operates in a stable financial environment which is likely to result in different bargaining priorities compared to Ulan, Whitehaven and Peabody. We accept that Delta Coal does have some common circumstances that relate to interests with the other Respondent Employers. However the significance of the different commercial purpose of Delta Coal compared to the other Respondent Employers, its different interests with respect to employees and the probable effects of these matters in bargaining, combined with all of the other points of distinction here, leads us to conclude that Delta Coal has demonstrated that it does not have clearly identifiable common interests, compared to the other Respondent Employers, as contemplated by s.249(3)(a) of the FW Act.

(Emphasis added.)

105 We can discern no error in this aspect of the Full Bench’s reasoning. To be properly understood, FB[492] must be read with FB[339] where the Full Bench explained that circumstances and matters can be an interest but are not necessarily a common interest. The Commission also explained that some circumstances are not interests but might be matters relevant to determining whether employers have a common interest. As submitted by APESMA, such an approach is entirely consistent with the terms of s 249(3A), which refer in sub-s (c), to “terms and conditions of employment” as a matter that “may be relevant to determining whether the employers have a common interest” (emphasis added). Had the legislature intended for, inter alia, terms and conditions of employment to be an interest, the legislation would have said so.

106 For these reasons, issue 1 (and the associated grounds) fail.

The Commission did not fail to afford Peabody procedural fairness or fail to consider a centrally relevant submission regarding a commercial conflict of interest that arose between two of the relevant employers (Issue 2)

107 For the reasons which follow, we do not accept that the Commission failed to afford Peabody procedural fairness and/or failed to form the required state of satisfaction as to the “clearly identifiable common interests” requirement, by failing to consider Peabody’s centrally relevant submission that there were not clearly identifiable common interests as between Peabody and Ulan given the conflict of commercial interests of their respective corporate groups (Peabody Ground 2; Ulan submission [67]).

108 As recently observed by the Full Court in Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [156]–[157]:

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].

109 Peabody submitted that Glencore Group (of which Ulan is part, and to which Ulan’s interests were attached) has significant holdings in two other mines in direct competition with Peabody’s Wambo Mine. These competing mines are all in the Hunter Valley, producing high quality thermal coal into the same niche segment of the Asian export market. Glencore Group stood to benefit commercially if multi-employer bargaining progressed in a way that adversely affected the Wambo Mine or its operations. Peabody relied on this uncontested evidence as the basis for a submission that such a commercial conflict weighed strongly against the Commission being satisfied of the requisite commonality of interests between Peabody and Ulan.

110 In this case, Peabody accepted that the Full Bench expressly referred to the particular submission (and related evidence) on two occasions, at FB[432] and FB[633], extracted as follows:

432     Peabody submitted that there are material differences in the terms and conditions of employment: different rosters, use of FIFO and/or DIDO, some use GAE arrangements and others do not, and the production bonus arrangements may be very different. There is also the additional complexity that the Ulan Mine is part of the Glencore Group, which also has material interests in both the HVO Mine and Mt Owen/Glendell Mine Complex in the Hunter Valley. Neither of those mines is covered by this application. Both of those mines produce coal that is sold into the same niche segment of the thermal coal market that purchases coal from the Wambo Mine. This leaves the clear potential for a conflict of commercial and industrial interests of Peabody with those of Ulan/Glencore during bargaining. Commercial benefits could flow to Ulan/Glencore if bargaining progresses in a way that weakens Wambo.

…

633    Peabody’s Wambo mine in the Hunter Valley predominantly produces thermal coal for export. The Hunter Valley has a reputation for producing some of the highest quality thermal coal and customers in Japan have designed their generators and other systems specifically to operate on the high-quality coal produced from the Hunter Valley region. At Peabody’s Wambo Mine, the ROM coal, being raw coal from the mine, is extracted from the mine, sent to the surface using a conveyor and transported by truck for approximately 2.5 kilometres where it is washed at a CHPP to remove impurities. Peabody’s main competitors in the market for coal of the type produced by Wambo are other thermal coal producers in the Hunter Valley region who produce thermal coal with similar characteristics. There are only approximately five or six other mines who would be able to produce comparable coal to the coal extracted from Wambo Mine including two open cut mine complexes located in the Hunter Valley owned by Glencore.

(Footnotes omitted.)

111 It was submitted, by both Peabody and Ulan, that despite the Full Bench providing comprehensive reasons, there is no reference in the decision to this submission being taken into account in the Commission’s consideration of the s 249(3)(a) criterion as part of its “Consideration” (FB[467]–[491]) and “Conclusion” (FB[492]).

112 Accordingly, the essence of Peabody’s complaint (and as submitted by Ulan) appears to be that because the Full Bench’s reasoning process in respect of the submission is not expressly set out in its final deliberation, it should be inferred that it was not considered. We reject this contention.

113 As observed in WAEE at [47], an inference that a matter was not considered should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. The Full Court, in WAEE, went on to observe that it may be unnecessary for the Court to make a finding on a particular matter where it is subsumed in findings of greater generality.

114 Here, the Full Court was not furnished with the submissions of the parties below. We are not satisfied that such an inference ought be drawn in the circumstances where the submission and related evidence was referred to in two aspects of the reasons. Further, it was clear from the Full Bench’s reasoning, that it was not persuaded that the respondent employers had displaced the presumption by reason of differences in related matters such as commercial purpose and economics. The Full Bench was tasked with undertaking a highly evaluative exercise. It was open for the Commission to find, regardless of the existence of a commercial conflict, it was not dispositive one way or another, as to whether the burden had been discharged, where it sat within the context of an authorisation, which concerned the employment of statutorily-mandated staff.

The public interest requirement

The Commission did not fail to take into account a relevant consideration, namely the public interest requirement, as it has not been established that it applied an erroneously narrow construction of the requirement nor in a manner contrary to the objects of the FW Act (Issue 3)

115 The third issue arising from the application was ultimately framed by the parties as whether the Commission failed to take into account a relevant consideration, namely the public interest, when determining whether the respondent employers had displaced the presumption that it was not contrary to the public interest to make an authorisation (by combined operation of s 249(3) and the presumption under s 249(3AB)). The respondent employers submitted that in order to achieve the requisite state of satisfaction, the Full Bench, in error, narrowly construed the public interest as a negative impact on any “broader” economic or competitive considerations (FB[504]-[505]) rather than considering whether the authorisation would also facilitate enterprise bargaining “at the enterprise of those employers”.

116 Rather, it was submitted that the Commission ought to have found that the public interest criterion calls for a consideration of the interests of APESMA, its members, the employers, as well as broad public considerations. It was said that, by taking the (erroneously) narrow view as to what is relevant to the public interest issue, the Commission fell into error and misconstrued the statutory criterion in s 249(3)(b) of the FW Act.

117 Alternatively, it was submitted that the Commission’s consideration was legally unreasonable given the bare conclusion (FB[503]) that the subject authorisation for the proposed enterprise agreement if made, “would meet” an important object of the FW Act; that is, achieve “productivity and fairness”, as it was not supported by any findings made on the evidence. This argument was ultimately amalgamated within the broader submission above and the submissions relied upon with respect to it were the same.

118 The Full Bench commenced this aspect of its reasoning by distilling the respondent employers’ claim in the following way:

496    The Respondent Employers claim that it is contrary to the public interest to make the authorisation because enterprise bargaining is unlikely to be facilitated in an efficient manner, the authorisation would be contrary to the objects of the FW Act which give priority to single enterprise agreements, and they should not be constrained in the flexibility they currently have in relation to the employment arrangements for SIEA Employees.

119 No issue was taken by the parties as to the accuracy of this summary. The Court has not been provided with a copy of the parties’ submissions below nor a full transcript of the proceedings and therefore is not able to understand, with any particularity, the force of the respondent employers’ submissions. For example, it is not known what the submission was, by reference to the evidence, as to what was said to give rise to “inefficiency”, what particular aspects of the objects of the FW Act were relied upon and what was the claimed “flexibility” said to be curtailed. This lacuna creates difficulty upon review.

120 The determination of whether the presumption that the authorisation was not contrary to the public interest has been displaced, requires consideration of what the respondent employers, by their evidence, have proved to the contrary.

121 The Full Bench’s reasons do not refer to what evidence, if any was relied upon, by the respondent employers to support each aspect of their submissions. Neither Peabody nor Whitehaven, in this review, in their written or oral submissions, pointed to what evidence they relied upon below, and on review, as providing flesh to the bones of their broad claims. Ulan provided an aide memoire to the Court. Peabody referred to an aspect of Ulan’s submission which had referred to evidence said to assist. The Ulan aide memoire referred to different aspects of the evidence and submissions of the parties but not in a way that made it clear as to what was the true and precise gravamen of the submission (by reference to the evidence) made by the parties to the Full Bench.

122 The parties do not submit that the Full Bench failed to take into account a relevant consideration or particular evidence, rather at a higher level, the attack is waged against the Full Bench not accepting the respondent employers’ concerns that enterprise bargaining is unlikely to be facilitated in an efficient manner and impeding on the flexibility of the employment arrangements of its employees (FB[504]). However, as to whether these are “interests” pertaining only to the respondent employers and fall outside the public interest criterion depends on how those interests were described and what the evidence revealed.

123 The Full Bench, when searching of the breadth of what interests or circumstances fell within the scope of “public interest”, cited the High Court’s observations in O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ (which itself referred to Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 per Dixon J), that the expression, “classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable”: FB[497]. It then made reference, at FB[498], to the reasoning of a Full Bench in the former Australian Industrial Relations Commission in Re Kellog Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at [23]:

The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.

124 Whilst a reference was made to this decision, it is unclear from the Full Bench’s reasoning as to whether it adopted, for the purposes of the application before it, what was said about matters that should be taken into account in determining whether something is in the public interest; and, specifically, that there is a clear distinction between the public interest and the interests of the parties.

125 The Full Bench went on at FB[500] to extract paragraph [1023] from the Explanatory Memorandum to the first iteration of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) (the legislation references do not correlate with the Act as it was later made), which was said to “relevantly state”:

The requirement in new paragraph 249(3)(f) [it is not contrary to the public interest to make the authorisation] would provide the FWC with scope to consider all the relevant circumstances and the broader public interest of making the authorisation. For example, the FWC could consider the broader economic ramifications of making the authorisation. The public interest would be likely to favour the making of authorisations that inhibit a ‘race to the bottom’ on wages and conditions while discouraging the making of authorisations that could adversely affect competition on the basis of factors such as quality (including service levels) and innovation. The views of the employers and employee bargaining representatives obtained under new paragraph 249(3)(e) [the employers and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the authorisation] could be relevant to the FWC’s consideration of the public interest, including whether they support the authorisation being made. For example, if an employee organisation did not support an authorisation being made, its reasons for not supporting the authorisation would be a relevant factor to consider.

126 We have amended this extract from the Commission’s reasons to include, in full, details of the cited then applicable provisions. It is not clear why the Full Bench relied upon this extract given the very different form the Bill was in at the time of this first Explanatory Memorandum. There were subsequent substantial amendments to the Bill and three further amended and supplemental explanatory memorandums. The next iteration of the Bill, when read a third time, created a form of s 249(3) [Item 634A] which is identical to that as made (though other subsections in s 249 were added thereafter).

127 The Revised Explanatory Memorandum stated:

1073.     Item 634A would repeal subsection 249(3) (employers that may bargain together for an agreement) and substitute it with new subsections 249(3) and (3A). New subsection 249(3) would provide that the requirements of this subsection are met if:

* the employers have clearly identifiable common interests; and

* it is not contrary to the public interest to make the authorisation.

1074.     For example, when considering whether it would be contrary to the public interest to make the authorisation, the FWC would have regard to the objects of the FW Act (contained in section 3), such as whether making the variation will promote productivity and economic growth while being far to working Australians, and the objects of Part 2-4 (contained in section 171), such as whether approving the variation promotes collective bargaining in good faith, particularly at the enterprise level.

128 The expression “in the public interest” imports a discretionary value judgment made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable”: O’Sullivan at 216. The determination of whether something is in or not in the public interest may be difficult to establish. The assessment may require balancing countervailing public interests; and, therefore, turn very much on questions of fact and degree: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27 at [7]; 61 ALJR 393 at 395 per Mason CJ, Wilson and Dawson JJ. At times, a distinction is drawn between matters affecting the public interest and the private interests of the parties: Re Kellogg Brown at [23]; Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26; 303 FCR 153 at [214] per Chief Justice Mortimer (but with whom Rangiah J at [246] and O’Bryan J at [329] disagreed). However, as to whether such a distinction is permissible depends on the content and purpose of the particular legislative scheme. There is often no clear bright line between matters that affect the public as opposed to private interests. The interests of the public might be affected by the effect of the imposition of the authorisation on one or more party, as the Revised EM contemplates.

129 In Central Goldfields Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2025] FCAFC 59, the Full Court stated at [27] with respect to the public interest requirement under s 249(3)(b) of the FW Act, that it is for the Commission to undertake an assessment of whether the making of the authorisation might be contrary to the public interest by “weighing of factors that tended each way”. Where the presumption in s 249(3AB) applies, it is for the employer to identify some consequence arising from the making of the authorisation that is “inimical to the public interest”: at [28]. The phrase is not intended to be susceptible to precise definition: Gomeroi at [213].

130 The Full Bench considered the nature of the industry and its significant impact upon the New South Wales and Australian economies but found that there was no evidence establishing that the making of the authorisation would have a detrimental effect on the role of the respondent employers in the contributions made by the industry: FB[501]–[502].

131 This was what the Full Bench was required to do, as observed by the Full Court in Central Goldfields at [28], albeit with respect to s 249(3AB) but which can be applied by analogy:

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

132 Much criticism was made by the employers of the Full Bench’s conclusions at FB[504] and [505], which state:

504     In relation to the Respondent Employers’ concerns that enterprise bargaining is unlikely to be facilitated in an efficient manner, and that the flexibility of the employment arrangements for SIEA Employees may be undermined by an authorisation, these are matters which pertain to the Respondent Employers’ interests rather than matters which affect the public as a whole.

505     Given the nature and scope of bargaining that is anticipated here, the making of the Authorisation would not negatively impact any broader economic or competitive considerations.

133 It was submitted that although the Full Bench noted the respondent employers’ concerns, at FB[496], it did not make any findings regarding those concerns, which ought to have been part of the mix of considerations. It is notable that the Full Bench specifically referred to Peabody’s, Whitehaven’s and Ulan’s submissions as to lack of efficiency at FB[75], [83] and [98] respectively. Those submissions were in broad, vague terms without reference to evidence.

134 Peabody submitted that the Full Bench, at FB[504]–[505], wrongly regarded as irrelevant the submission that, given the respondent employers’ competitive relationship, their lack of collaboration and the associated complexities and inefficiencies around confidentiality, the making of the authorisation would not facilitate efficient enterprise bargaining. Similarly, it charged the Full Bench with wrongly ignoring that the authorisation could undermine the flexibility of employment arrangements for the relevant employees, and the inefficiencies that arose from the fact of their different employment terms and conditions. It was submitted that there is a public interest in the legislated enterprise level bargaining objectives being pursued in relation to each and every enterprise.

135 The FW Act does not require the Commission to have regard to any particular considerations in deciding whether the authorisation is not contrary to the public interest. The respondent employers must thereafter establish by reference to the subject matter, scope and purpose of the FW Act, that the Commission was obliged to take into account their concerns that the enterprise bargaining is unlikely to be facilitated in an efficient manner and the purported effect of the flexibility of the employment arrangements. As to whether they can establish this depends on how, with precision, their claims are articulated, and supported by evidence. There is nothing before the Full Court, nor evidence from the submissions made to the Commission (save for a brief aide memoire by Ulan), that this was done and if it was, how it was done, such that it can aid their claims before this Court.

136 The Ulan aide memoire contained scattered references from a number of different parts in the Full Bench’s lengthy reasons. None of them reveal any detailed, pointed submission by reference to evidence which establishes that account was required to be taken of the respondent employers’ vague claims. To the extent that reference was made to, for example, a short portion of Whitehaven’s oral submissions (noting this Court only has a heavily redacted transcript), a broad submission was made about the FW Act requiring the promotion of productivity and fairness, but nothing was said about how the authorisation would not achieve this. Ulan included at the end of the aide memoire a further, short, statement that the SIEA employees need flexibility to respond to their own operational circumstances in a volatile market and that it is in the public interest that they not be constrained. In a similar vein, the Ulan aide memoire, provided to the Commission, makes broad claims without evidentiary foundation, for example, the “significant differences between the SIEA Employers … will affect the priorities during bargaining and detract from the FW Act objective of single enterprise bargaining that promotes productivity and flexibility” with reference to how and to what degree and with no reference to any evidence.

137 Peabody submitted, that the public interest and the interests of parties are distinct, but they can coincide and overlap. It was submitted that the fact that the employers may have a commercial interest in that point of the bargaining, in the Full Bench’s view, being less efficient, does not mean that it was to be disregarded. There can be a coincidence between employers’ interests and the public interest. The employers had a private interest in any bargaining that they were forced to engage in not being an inefficient bargaining process. That could coincide with a public interest in facilitating bargaining. It was submitted that an authorisation that permits bargaining and forces the employers to participate in that bargaining that is likely to be inefficient – as contended for by the employers – goes to this question about whether it is contrary to the public interest.

138 The alleged “problem” with the Full Bench’s reasoning at FB[504]–[505] was that the Commission treated these matters as “mutually exclusive and did not consider economic or competitive considerations in the proposed bargaining and how that might work contrary to the legislative objects of facilitating enterprise bargaining”.

139 However, the difficulty with this bold submission, and it must be rejected, is that it has not been established, by reference to how the case was run below, that this was the submission below; that is, what the alleged concerns were as to the unlikelihood that the bargaining would be facilitated in an efficient manner and what the evidence was as to the effects of the curtailment of flexibility and whether it was the submission of the parties (supported by evidence) that in the facts of this case, there would be economic or competitive flow on effects.

140 It was further submitted by Ulan that the authorisation would be contrary to the objects of the FW Act, which give priority to single enterprise agreements, and they should not be constrained in the flexibility they currently have in relation to the employment arrangements for the SIEA employees. It emphasised the fact that the Full Bench was dealing with substantial private businesses with commercial interests of their own, competing against each other, with legislative obligations and disparate commercial interests in protecting their material. Ulan relied on the purported relevant EM (being the first EM which precedes substantial amendments made to the Bill), which as extracted in the Full Bench decision at FB[500], indicated Parliament’s intention that the Commission will “consider all the relevant circumstances and the broader public interest of making the authorisation” and that the views of the employers are not to be regarded as irrelevant.

141 The Full Bench addressed the submission (agitated on appeal by Ulan) as to whether the authorisation would be contrary to the objects of the FW Act and concluded that, at FB[503]:

503    … the authorisation of multi-enterprise bargaining is consistent with the promotion of collective bargaining which achieves productivity and fairness at the level of the enterprise, subject to the express provisions giving some priority to single enterprise agreement. We therefore do not accept that the authorisation would be contrary to the objects of the FW Act. Further, we note that there is no evidence of any history of bargaining between the Respondent Employers and the SIEA Employees or intention on the part of the Respondent Employers to engage in bargaining in the future with the SIEA Employees. If made, the authorisation would meet an important object of the FW Act which is designed to achieve productivity and fairness.

142 As referred to above, it may be accepted, in determining what is taken into account for the purpose of ascertaining whether the public interest is served by making the authorisation, that consideration be given to the context and purpose of the FW Act, informed by the various objects of the FW Act. Ulan placed significant regard on the objects in ss 3(a), 3(f) and 171 of the FW Act (extracted above) which emphasise productivity, “flexibility for businesses” and the primacy of enterprise agreements (and associated bargaining) at the enterprise level (as opposed to by reference to multi-enterprise agreements) that deliver productivity benefits.

143 As to the latter argument, the submission that the FW Act’s objects are referring exclusively to single-employer enterprise bargaining and exclude multi-employer enterprise agreements is rejected. The Full Bench correctly observed at FB[46] that “… the import of the objects of the FW Act for present purposes is that the legislation promotes collective bargaining which achieves productivity and fairness through collective bargaining at the level of the enterprise, including where authorised and subject to the express provisions giving some priority to single enterprise agreements, at a multi enterprise level.”

144 By operation of the rebuttable presumption, it was for the employer respondents to prove why the public interest would not be served, and why, based on evidence, the FW Act’s objects would not be achieved. The making of generalised submissions as to the Act needing to promote efficient enterprise-level bargaining obviously was not sufficient to the Commission, to rebut the presumption. It was open, as a matter of law, for the Commission to so decide.

145 For the same reasons, we reject the hollow submission that the Commission wrongly failed to consider all relevant circumstances, take into account the achievement or otherwise (through the making of the authorisation) of flexibility for businesses and productivity, or take account of the submissions and evidence of the employers. Again, we are not satisfied that it has been established that the Commission failed to consider all the articulated relevant circumstances.

146 As to whether matters such as whether bargaining would be facilitated in an efficient manner, and the flexibility of the current employment arrangements would be relevant to whether the objects of achieving productivity, productive workplace relations and flexibility for businesses in the FW Act are achieved, would depend on how the submission was framed and the evidence relied upon (cf FB[504]). None of which was exposed from the Commission’s reasoning nor was it established that the submission was made and ignored. To the extent that reference was made to discrete findings made in various aspects of the judgment, without more, we are not persuaded that the Commission erred, on the case run before it, adopting the approach articulated in its reasons.

147 For these reasons, no error can be discerned from the Commission’s reasons in this respect.

Reasonably comparable operations and business activities

The applicants have failed to establish that the Full Bench committed jurisdictional error in how it applied the criterion in s 249(1)(b)(vi) (the reasonably comparable criterion) (Issue 4)

148 The fourth issue considered at hearing was whether the Full Bench committed jurisdictional error in how it considered and applied the criterion in s 249(1)(b)(vi), namely, that the operations and business activities of each of those employers are “reasonably comparable” with those other employers that will be covered by the agreement.

Competing positions

149 Whitehaven submitted that the Full Bench, when identifying “key similarities” of the respondents at FB[654] and [655], misconstrued the statutory criterion in s 249(1)(b), by focusing its comparison at a very general level and not considering each of the differences that had been raised in evidence and submissions being centrally relevant to the issues. Alternatively, by not considering the actual differences to form a view on reasonable comparability, the Commission failed to apply itself to the relevant question such that it exceeded its authority or powers, could not have properly reached the requisite state of satisfaction, and/or misunderstood the nature of the opinion it was to form. Further, it submitted, without elaboration, that the Commission placed undue emphasis on the operative regulatory (largely safety related) regime, submitting it was “difficult to see how safety regulations concerning mines would have any meaningful bearing on enterprise bargaining”.

150 In a similar vein, Peabody submitted that the “key similarities” do not indicate reasonable comparability “in any sense relevant to the facilitation of bargaining”. Further, Peabody submitted that the Commission imposed “too high a bar when it failed to regard Peabody’s unique end of life circumstances as sufficient to establish that its operations and business activities were reasonably comparable with those of the other relevant employers” and “diminished those differences to matters that ‘may mean that activities at the Wambo mine are less productive’”. It was submitted that the Commission did not see it as necessary to determine those differences as it effectively required Peabody’s Wambo mine to be on the cusp of ceasing production before the presumption in s 249(1AA) could be rebutted.

151 Ulan submitted that the Full Bench misconstrued the expression “reasonably comparable” by finding that the operations and business activities, at a high level of generality was similar enough to be “capable of being compared”. The word “reasonably” informs the level of similarity, equivalency or likeness, and conveys a higher degree of such terms than the word “comparable” alone. Ulan submitted that, by this erroneous construction, the Commission approached (and incorrectly applied) the comparison at too high a level of abstraction rather than adopting the “proper test” said to be “fairly, logically or rational (sic) similar, alike or generally equivalent, upon an actual comparison having been conducted”. It was submitted that the Commission also “conflated” operations and business activities (FB[557], [563]ff, [654]– [655]).

152 APESMA submitted that the Full Bench properly construed s 249(1)(b)(vi) and reviewed in detail the various factors advanced by the parties and was ultimately not persuaded that each of the respondent employers had rebutted the presumption.

Consideration

153 It is worthwhile repeating the terms of the relevant provision, s 249(1)(b)(vi) (which identifies as a consideration of which the Commission must be satisfied):

(vi)     if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(Emphasis added.)

154 It is also worthwhile placing the sub-section in its legislative context. The test only arises if the Commission is satisfied that the respondent employers have clearly identifiable common interests and the authorisation is not contrary to the public interest. As with those preconditions, by operation of s 249(1AA), there is a presumption, where the subject employers employ more than 50 employees, that the respondent employers’ operations and business activities are reasonably comparable.

155 The test concerning reasonable comparability is clearly a different one from that concerning common interest. As to whether it is more stringent than the requirement for common interests will depend on the facts of the case. While the “common interests” test calls for a broader enquiry, and allows for consideration of the interests at enterprise (i.e. mine) level, as well as the broader operations of a corporate group (if the interests of the separate corporate entities overlap), the reasonably comparable issue is concerned with the relevant respondent employing entities, and the enquiry is targeted at each of their “operations” and “business activities”. There is likely to be an overlap in evidence, submissions and weight given to the factors taken into account as to whether there are clearly identifiable common interests and the reasonable comparability question.

156 As to each of those terms, the Full Bench, at FB[545], correctly acknowledged that they are discrete but intrinsically linked concepts. The Full Bench described in active terms that “operations” should be taken to mean “how” that employer operates, in terms of its industrial activity, work and production processes; and “business activities” should be taken to mean “what” that employer does in terms of the goods and services it provides or sells, or its trading activities.

157 As to the expression “reasonably comparable”, the Full Bench found that in order to be comparable, they needed to be “capable of being compared” and whilst not needing to be the same, the “operations” and “business activities” needed to be “sufficiently similar”: FB[546]. The “reasonably” qualifier was said to import a level of judgment, as to the question of fact, determined objectively, of whether the operations and business activities were sufficiently similar: FB[547]. We accept that the test requires that the business activities and operations be more than capable of being compared, but that they need to be comparable, meaning, sufficiently similar, like or generally equivalent.

158 The requirement that they are “reasonably” comparable imports a higher degree of focus. An objective assessment must be undertaken as to whether the employers’ operations and business activities are comparable through the prism of bargaining together, the intended purpose of the provision and the broader objects of the FW Act. Properly construed (and as submitted by Whitehaven), “reasonably comparable” means that both the operations and business activities of the employers, understood broadly, are generally equivalent, alike or similar, such that joint bargaining will be facilitated.

159 The Supplementary EM which included this amendment described the amendment in the following terms, at [70]–[75] ([72] omitted as not necessary to include):

70.     New subparagraph 249(1)(b)(vi) would require the FWC to be satisfied that, in respect of each employer that is a common interest employer, the operations and business activities of that employer are reasonably comparable with those of other employers that would be covered by the proposed agreement that relates to the single interest employer authorisation.

71.     Employers of very different size, scope and scale might, depending on all the circumstances, be found to have clearly identifiable common interests for the purpose of bargaining together. This amendment would ensure that the FWC must also be satisfied that the operations and business activities of an employer are reasonably comparable with the other employers. It may be open to the Fair Work Commission to conclude that despite two employers of a similar size, scope and scale operating in the same industry, they are not ‘reasonably comparable’ once the full extent of their business activities and operations are considered.

…

73.     The matters specified in subparagraph 249(1)(b)(vi) concern whether relevant employers are reasonably comparable in terms of their operations and business activities. Such evidence is likely to concern the nature and size of the employers, and their operations and business activities. While some of this information may be available – at least in part – to employees, particularly in smaller enterprises, much of it will only be known to the employer or to employees only as it pertains to their role, i.e. in a partial or fragmentary way. This is particularly acute in terms of the nature of the employer’s enterprise, the employer’s business activities and operations. In most cases, such information will be most readily available to employers or their bargaining representatives.

74.     These are considerations which must be balanced in determining who should bear the burden of establishing that the relevant test is met or not met. Having regard to the burden that could be imposed on enterprises with 20 to 49 employees, it is appropriate in such cases to require employees and their bargaining representative/s to establish that the relevant test is met when making the application for the authorisation.

75.     In respect of employers with 50 or more employees, due to their increased size and complexity of their operations, they are more likely to be in a position to provide the relevant evidence going to these matters. In such circumstances, it would also be much more difficult for employees and their representatives to provide sufficient evidence to establish that the test is met. It is appropriate therefore that the amendments provide for a rebuttable presumption and an opportunity for employers (with 50 or more employees) to establish that the relevant test is not met in relation to their business.

160 The Full Bench, after extracting the Supplementary EM summarised what it understood to be Parliament’s intention, about which no issue was raised upon review.

161 Ultimately, there was no apparent dispute as to the Full Bench’s statements of general principle as to how to construe the provision, but rather by its application of that construction to the provisions.

162 What is called for by this Court is a substantive rather than form-driven review of the Commission’s reasons. The reviewing court will need to take into account “the whole of the reasons, read in the context of the representations made and other information available”: DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [45] per Bromberg and Mortimer JJ (emphasis added). As observed above, the Full Bench’s reasons ought be read as a whole and fairly without “an eye keenly attuned to the perception of error”: Wu Shan Liang at 271–272 per Brennan CJ, Toohey, McHugh and Gummow JJ approving Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287 per Neaves, French and Cooper JJ, and see 291 per Kirby J. There is a difficulty in this respect. The applicants did not provide the Court with their submissions below nor a complete transcript. To the extent that the Court was able to glean the submissions as advanced by reference to the evidence below, it is only from what is summarised by the Full Bench in its reasons. No party suggested that those summaries were less than fulsome. What they reveal is that the respondent employers, at a very broad level, made submissions as to how the provision was to be interpreted. Unlike with respect to the public interest argument, no aide memoire was provided as to what specific submissions, written or oral, were otherwise made below.

163 The Commission observed, at FB[553], that the assessment of whether the differences (identified by the respondent employers) are enough to displace the presumption includes the identification of both differences and similarities. The Commission thereafter identified, by reference to the Minerals Council of Australia’s submissions and the respondent employers’ submissions, the features or factors relevant in the assessment. The Commission thereafter, adopting the features identified at FB[557]–[558] (relied upon by the respondent employers, as to respectively how each employer operates and what each employer does), detailed the evidence of each of the parties (from FB[563]–[649]).

164 In those paragraphs, the Full Bench identified features that were similar or different as between each of the respondent employers. Therefore, the Full Bench considered the large volume of evidence, according to the features, which had been identified by each of the respondent employers, as being relevant, and indicative of distinction, as to their respective operations and business activities.

165 The Full Bench then, under the heading “Consideration – Are the Respondent Employers’ ‘operations’ and ‘business activities’ reasonably comparable?” set out its conclusions at FB[650]–[668]. Those conclusions should be read having regard to all that precedes it, namely, the distillation of principle, the summary of the parties’ submissions and its findings with respect to each of the key features. Therefore, we reject the submission that the differences were not assessed. It is apparent that particular attention was given to them from FB[563]–[649]. Furthermore, the conclusions concerned whether the respondent employers had displaced the presumption. Further attention was given to the differences, at FB[652] regarding their unique corporate and ownership structures, and key differences of Peabody (FB[657]–[662]) and those of Delta Coal (FB[663]).

166 The Full Bench emphasised that the “reasonably comparable” test was concerned with the respondent employer entities and their operations and business activities; as opposed to the position that those entities occupied within broader corporate group structures: FB[652].

167 Further, the Full Bench was of the view that greater weight should be given to those differences in operations and business activities “to the extent that these relate to the proposed coverage of the Authorisation … to the work performed by the SIEA Employees proposed to be covered by the agreement and are connected to bargaining”: FB[653]. None of the parties suggested there was an error in this approach, and there could not be.

168 From this more focused perspective, the Full Bench then identified “key similarities”, which included the specific functions of the SIEA employees, which are either required by the relevant mining safety legislation or are required for operating the mines, including coordinating mine site activities, resourcing allocation, maintenance, emergency management and day-to-day management (FB[5]-[9]; FB[654]).

169 The Full Bench having identified the key similarities between all respondent employers, and then particularly as between Peabody, Ulan and Whitehaven (FB[654]–[655]), determined that having considered the similarities and differences, they were not persuaded that Ulan and Whitehaven had rebutted the presumption (FB[656]) and then went on to consider separately Peabody’s position.

170 The respondent employers variously submitted that the evaluative process, required by Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ, was not undertaken, there was an alleged impermissible conflation of “business interests” with “operations”, and what the Commission identified as “key similarities” were purported to be expressed at a high level of generality such as to render the question meaningless. Emphasis was placed on that portion of the Explanatory Memorandum which contemplated that despite two employers of a similar size, scope and scale operating in the same industry, they are not reasonably comparable and that the “full extent” of the circumstances, were required to be taken into account. This involves getting down to the detail of offers, wages, terms and conditions of employment, as well as trading activities, which include factors such as profitability, economics, productivity, competition with other employers and labour costs, including what the actual terms and conditions of employment are. Reference was made to the Full Bench’s reasoning, at FB[562], and it was alleged that the Full Bench failed to attend to the task as it had described: that it failed to engage with the factors which bore on the proposed enterprise bargaining, and to weigh and assess them.

171 All the respondent employers submitted that the Full Bench was required to consider the full extent of the business activities and operations of the three employers in the context of the proposed enterprise bargaining. The Commission should have considered the purported differences, and it should have given particular weight to matters that would have borne on enterprise bargaining. Whitehaven referred to the differences between the mines and in reliance on Ulan’s submissions made its own submission that, as to Peabody, the Full Bench found it was the employing entity and had a mining lease over the relevant mine, but that it did not own or operate the relevant mine (FB[354], [441], [482], [565]–[567]). As to Whitehaven, the Full Bench found it had a limited operational function as an employing entity and in contracting with suppliers and service providers, and it did not operate any coal mines (FB[84], [482], [360], [573]). Whitehaven referred to the Full Bench’s consideration of the methods of mining, at FB[582]–[585] and mine environments, at FB[587], and Peabody’s different stage of mine life and the transport differences resulting in very different rail and haulage costs (at FB[606]).

172 As to Ulan, Ulan submitted that the Full Bench found that not only was it the employing entity, but that it held all legal and beneficial title to the land and other assets relevant to the mine, operated the relevant mine, had a community investment program for Mudgee (in proximity to the mine), was conducting housing development activities, was (unlike Peabody and Whitehaven) a party to coal sale and supply contracts and undertakes exploration activities (FB[161], [358], [393], [481], [569]–[570]). Further, it found “…that the nature of Ulan’s operations is wider than the other three Respondent employers” (FB[482]). What this was said to demonstrate was that the Full Bench did consider the differences between the mines.

173 This review calls for a substantive rather than form-driven review of the Commission’s reasons. The reviewing court will need to take into account the whole of the reasons, read in the context of what can be gleaned as to how the matter was run below.

174 To the extent that the allegation concerns the attribution of weight to various matters, the power conferred by s 249(1) is broad, the assessment highly evaluative, involving matters of judgment and weighing of various factors without statutory fetter as to attribution, save for the achievement of the purpose of the provision.

175 When viewed as a whole, the reasons reveal specific consideration was given to the differences but that the Commission, in the highly evaluative exercise, was not persuaded that the presumption was displaced. As will be apparent from my reasons, with respect to the respondent employers’ submissions below, it is apparent that, contrary to what is required of this Court, the respondent employers have sought to criticise isolated aspects of the Commission’s reasons without considering them as a whole.

176 It is clear the Commission discharged its evaluative task by synthesising the material proffered by the parties into a cogent (but long-form) way, that properly identifies and weighs similarities and differences as between the employers. We reject the allegation that all the Commission did was merely note the evidence. This is best illustrated by the Commission’s consideration of the differences between Peabody, Ulan and Whitehaven and its ultimate conclusions with respect to Delta. It is clear that there is a symmetry between the Commission’s findings at FB[564]–[649] and its ultimate conclusions arising from its consideration and synthesis of that evidence at FB[650]–[668]. There is subtlety in the arc of reasoning that ultimately leads to the conclusions but that subtlety is ultimately borne out by how the Commission distinguishes the circumstances of the respondent employers (in part as between them also) and Delta (about which it was satisfied that the rebuttal had been made out).

177 The Commission identified Peabody, Whitehaven and Ulan as sharing the common characteristics of being large-scale (at FB[659]), longwall mining operations (at FB[585], [655]) in remote locations with little lifestyle attraction (at FB[578]–[581], cf FB[581]) (and accordingly have challenges in attracting and retaining staff: at FB[655]) with sophisticated transportation (at FB[602], [665]; see also FB[603]–[606]) and equipment (at FB[601]) for the export market. By contrast, Delta was of small-scale production for local consumption (at FB[630]; see also FB[575]) in a regional town centre (at FB[581]) (with less attraction and retention issues: at FB[665]), with cheaper, less automated (at FB[601]) and more labour-intensive production methods of bord and pillar mining (at FB[586]). The result being the Commission finding, that although there were differences as between Peabody, Ulan and Whitehaven in, for example, Peabody’s smaller longwall operation resulting in lower yields (at FB[648]) anticipated mine life (at FB[631]), the additional use of trucks, and certain geological challenges, these differences, when weighed, do not displace the commonality they share, but not so with respect to the operations of Delta.

178 The Commission identified that unlike Peabody, Ulan and Whitehaven (FB[564]–[573]), Delta “exists for a different purpose” (FB[576]); namely, to “supply thermal coal at a set price to its single customer within the same corporate group; a co-located domestic power station”: FB[575]. Delta does not export coal, nor does it transport coal over long distances. This analysis is picked up in the following consideration of location of operation, where similarities are identified as between Peabody, Ulan and Whitehaven operating in remote locations (FB[577]–[580]), whereas Delta “compared with the other Respondent Employers … is located significantly closer to a major regional centre and the coast”: FB[581]. So, too, in its consideration of methods of mining, Peabody, Ulan and Whitehaven were identified as using the more costly, specialised method of coal extraction of longwall mining, whereas Delta Coal uses the more labour intensive, less efficient and less capital intensive bord and pillar operation: FB[581]–[585]. The Commission was also attentive to differences as between the three mining operations. In its consideration of the costs of production, including capital and maintenance costs associated with operation, it gave note to the fact that, although all of Peabody, Ulan and Whitehaven use longwall mining operations: FB[613], “Peabody is different from Ulan and Whitehaven in that Peabody’s Wambo Mine activities are concerned with a smaller longwall operation relative to its peers and at a different stage of the mine’s life”: FB[615]. Peabody, Ulan and Whitehaven’s mining operations were also identified as similar in respect of the equipment used, being “highly automated and can largely be run from the surface if required”: FB[601]. This was identified as distinct from Delta, which requires manual input for almost every function from a worker located within metres of the machinery. So, too, in respect of distribution channels, Peabody, Ulan and Whitehaven all transport coal by rail to a port in Newcastle for export: FB[602]. However, differences in the transport process with respect to each mining operation were identified in that Peabody’s operation includes the use of trucks to a facility for washing and crushing before train transport, whereas coal extracted from Ulan No 3 is transported by train, and Whitehaven’s Narrabri mine has a wash plant on site: FB[602]–[607].

179 The Commission gave consideration to the respondent employers’ operations pursuant to a unique corporate and ownership structure, but ultimately gave it little weight, forming the view that the broader corporate group structure rises no higher than being of “some relevance in understanding what the Respondent Employers do and why they do it”: FB[652]–[653]. Correlatively (and, without discernible error) the Commission formed the view that greater weight should be given to factors which actually attend to the work performed by the employees proposed to be covered by the authorisation: FB[653].

180 The Commission identified and gave consideration to Peabody’s unique characteristics with respect to its smaller longwall operation, lower yield, use of older equipment and differing contractual arrangements: FB[658]. It identified the significance of vast size and scale of business operations, considering that “[i]t could not reasonably be said, for example, a small business is reasonably comparable with a large multi-national corporation”: FB[659]. However, it considered that “Peabody, Ulan and Whitehaven are all large, sophisticated businesses that export to international markets”.

181 It is clear that the Full Bench understood, that as part of its determination of whether the respondent employers’ operations were reasonably comparable, that included how the respondent employers source and accommodate their workforce, rostering arrangements and terms upon which the workforces are engaged (footnoting three paragraphs of Peabody’s and Ulan’s submissions). The Commission, at FB[609], referred to the fact of detailed findings that had been made earlier in its reasons regarding the shift rosters and general employment arrangements (evident from FB[387]–[415]), and that they had had regard to this evidence where relevant.

182 Consideration did not appear to be given to the final sentence in FB[562] which is instructive: “The context of the proposed bargaining, in this case for an agreement to cover the SIEA Employees, is particularly relevant”. It evinces how the Commission approached the inquiry as one that was in respect of a particular cohort of employees. It is obvious from the content of the Full Bench’s reasons that this was critical to its analysis.

183 We can discern no error in the Commission’s treatment of the differences between small and large multinational businesses as a factor that weighs against business operations being seen to be reasonably comparable. Nor is any error to be found in its conclusion that the large-scale nature and “substantial similarities in the work activities being performed” by the employees for each of Peabody, Ulan and Whitehaven should be given significant weight in favour of not rebutting the presumption of reasonable comparability (FB[659]).

184 Whitehaven made submissions with respect to FB[577]:

577 The SIEA Employees the subject of the application will carry out the operational activities of the Respondent Employers at one of four different sites, depending on who employs them.

185 Whitehaven submitted that these employers are clearly not next door to each other, or operating out of the same building, but operate across NSW in different places. This submission misunderstands the import of the Full Bench’s reasons: The Commission was ultimately of the view (as evident from FB[653] and [654]), which was open to it, that the employees will carry out like operational activities at each site, given the fact that they are employed in like positions. As a consequence, there were similarities across the board as to this aspect of each of the respondent employers’ operational activities.

186 Whitehaven referred to the Full Bench’s conclusions at FB[654] in three respects. First, that “although the detailed functions of the respective SIEA employees may vary from mine to mine, the general descriptions of the positions of the relevant employees are similar”. It submitted that the Full Bench gave zero consideration to the cost of labour, presumably one of the most fundamental issues in an enterprise bargain. Secondly, Whitehaven emphasised the Full Bench’s further findings at FB[654] that “each of the SIEA roles are important positions that are either required by the relevant mining safety legislation or undertake functions that are required”, was a conclusion that in effect covers all mines. Thirdly, it challenged the finding that “while their challenges are unique to the environments in which they are mining, they all confront different stressors associated with the geology of their mines and environment in which they are mining” (FB[654]). It submitted that this was a difference, not a similarity. It was submitted that the geology of the three mines was the subject of much evidence. The point the respondent employers made was that these challenges were different depending on where the mine was and its own particular circumstances. That affected, for example, some mines having retention bonuses, whereas other mines did not. Whitehaven’s Narrabri mine had the best wages or the best conditions ahead of the others. They were factors that clearly bore on enterprise bargaining, but they were lumped in together. The analysis by the Full Bench was said to be conducted at such a general level that the differences between employers were, to use a neutral word, not taken into account. The conditions of employment, the economics, the coal quality, the prices, and geologies were matters that set the priorities and agendas of those employers involved in bargaining at an enterprise. They were not taken into account and this failure constituted jurisdictional error.

187 We do not accept that any error can be discerned from the Full Bench’s reasoning at FB[654] and [655]. This reasoning cannot be read in isolation from the rest of its reasons. It is clear that its conclusions as to what were similarities was by reference to all the relevant parts of its reasons which precede it. For example, as to the attack on the Full Bench’s finding that “[e]ach of the SIEA roles are important positions that are either required by relevant mining safety legislation or undertake functions that are required”, there had been detailed findings as to what the employees did and what their terms and conditions of employment were.

188 It was open for the Commission to ultimately determine what were differences and similarities. It did so in a detailed way (as described above). The reasoning in FB[654] and [655] cannot be impugned by consideration of it in isolation from the rest of the decision. The categorisation, by reference level, is a matter of judgment, dependent on the nature of the application before it (the terms of authorisation) and the facts of the particular case.

189 Accordingly, to the extent that there were criticisms, at FB[659] about references to the substantial similarities in the work activities being employed by the SIEA employees, it was open for the Commission to make such findings and to classify them as similarities in the operations of the respondent employers because they have direct bearing on the matters that would be the subject of potential negotiation. It was relevant for the Commission to have regard to, when considering the operations of the employers, the particular functions that are engaged in by particular employees as part of those operations, especially if the particular cohort of employees are the subject of the application that has been considered by the Full Bench.

190 Criticism was made of the Full Bench taking into account applicable state regulatory regimes which applied to all the respondent employers: FB[610]. Whether or not these particular regimes were excluded from the FW Act under s 27 is not to the point: They are an issue relevant to matters that may arise in bargaining and also have bearing on the operation of the three employers.

191 In a similar vein, Peabody’s submissions mirrored those of Whitehaven and Ulan with respect to the Full Bench’s reasons up until specific consideration was given to Peabody’s predicament from FB[658]ff. Peabody submitted that the Commission imposed too high a bar when it failed to regard Peabody’s unique end of mine life circumstances as sufficient to establish that its operations and business activities were not reasonably comparable with the other employers. It is apparent that the Full Bench accepted those differences (FB[658]). However, it was submitted that the Commission “diminished” those differences to matters that “may mean that activities at the Wambo Mine are less productive”: FB[659]. It was submitted that the Commission did not see it as necessary to determine the extent of those differences as it effectively required Peabody’s Wambo mine to be on the cusp of ceasing production before the presumption in s 249(1AA) could be rebutted.

192 Peabody submitted that its evidentiary case had more profound differences referred to at FB[658]:

658     Peabody’s Wambo Mine has a number of unique characteristics that distinguish it from the Ulan No. 3 Mine and Narrabri Mine. These are largely driven by its anticipated life of mine and include:

* a small longwall operation relative to its peers resulting in higher costs of production relative to the other Respondent Employers;

* a significantly lower yield ratio, being the percentage of extracted coal that is saleable;

* the use of much older equipment resulting in less efficient extraction, higher maintenance costs and greater loss of productive time when the equipment is serviced compared to the Ulan No. 3 Mine and Whitehaven’s Narrabri Mine which utilise more modern equipment;76

* differing contractual arrangements with customers regarding the percentage of its coal produced is committed to sale under long-term fixed price contracts.

193 Peabody’s submission is rejected for reasons similar to those above. It is evident that the Commission gave specific consideration to the very evidence of difference Peabody urged upon it. It was open for the Commission to find, within its highly evaluative remit, that despite that difference, it was ultimately not persuaded that the employers were not reasonably comparable within the circumstances of this case. The reasons make clear that the Commission understood that it was required to determine whether these differences bore directly upon the facilitation of bargaining at the enterprise level. To the extent that the Full Bench placed significant weight on “substantial similarities in the work activities being performed by the SIEA employees”, it was open for the Full Bench to do this. It is clear that the inquiry was not limited to this but rather that ultimately, the Commission was not persuaded that this difference, and those others that it identified, were sufficient to rebut the presumption.

Majority Vote Requirement

The Full Bench did not err in its findings as to the majority support requirement (Issue 5)

194 As part of the Commission determining whether an authorisation must be made, where the application was made by a bargaining representative under s 248(1)(b), the Commission also had to be satisfied either that each employer consented to the application or the conditions of s 249(1B) were met: s 249(1)(b)(iv). Those conditions included the following:

Additional requirements for application by bargaining representative

(1B) An employer is covered by this subsection if:

(a)    the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b)    the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c)    the employer is not named in a single interest employer authorisation in relation to the employees that will be covered by the agreement; and

(d)    a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e)    subsection (1D) [an extant agreement had not passed its nominal expiry or there has been agreement in writing to bargain for a single-enterprise agreement] does not apply to the employer.

(Emphasis added.)

195 As is evident from the above, condition (d) requires that the Commission be satisfied that a majority of the employees who will be covered by the agreement want to bargain for the agreement.

Competing positions

196 Ulan and Whitehaven accepted that the evidence supported the factual conclusion a majority of the relevant employees voted in favour of bargaining for a single interest employer enterprise agreement: FB[53], [216], [237].

197 The gravamen of the dispute is whether that vote needed to be genuine and/or informed (cf. FB[240]) and whether that vote (to the extent it expressed a “want to bargain”) was vitiated by misrepresentations made by APESMA.  The Full Bench’s conclusions on those fronts were said to be legally unreasonable. As submitted by Whitehaven, the real question before the Commission was whether the relevant employees were properly informed of the course they were supporting and its implications for them (and the options they were foregoing). It was submitted that the Commission did not adopt their construction (by reference to the need for employees to be properly informed) nor attend the question Whitehaven posed, as it ought to have done and apply it to the facts, such that the Commission failed to consider a material consideration.

198 By contrast, APESMA submitted that to succeed with this ground, Whitehaven and Ulan needed to establish that the Commission erred when it reached satisfaction that a majority of the relevant employees “want to bargain for the agreement” within the meaning of s 249(1B)(d). Notably, s 249(1C) permits the Commission to use any method it considers appropriate when evaluating if there is a majority. The majority support criterion is addressed in the Full Bench’s decision from FB[215]–[293]. The key conclusions reached are set out at FB[237]–[240] and [287]–[289]. It is submitted that the words of s 249(1B)(d) do not include consideration of whether there was “genuine and/or informed” support for the agreement or a wish or desire to bargain. Had the legislature intended for those terms to apply it would have used them in the provision, which it did in s 186(2)(a). APESMA submitted that the allegation of legal unreasonableness could not be made out given the stringency of the test.

Consideration

199 Where an application for an authorisation is made by a bargaining representative and is not consented to by each employer who is covered by the proposed application, there are additional requirements, under sub-s 249(1B), that need to be satisfied: FW Act s 249(1)(b)(iv).

200 Those additional requirements include, that the Commission be satisfied, with respect to each of the employers (who will be covered by the single interest employer authorisation) that the majority of their employees (who are employed at a time to be determined by the Commission) and who will be covered by the agreement, want to bargain.

201 It is for the applicant to the proposed authorisation to prove this fact to the Commission’s satisfaction.

202 It is a matter of some moment. It is apparent, by the terms of this provision and the legislative scheme, that significant powers and privileges are afforded to bargaining representatives (in this case, APESMA) which must not be abused.

203 Here, APESMA communicated extensively with the SIEA employees, without the knowledge of the respondent employers, for many months prior to conducting a ballot (which, again, was without the knowledge of the respondent employers). APESMA was not required to put the respondent employers on notice of its proposed course. However, by not doing so, its communications with employees, attempting to persuade them to agree to bargain for the authorisation, went unchecked and without any contradictor. Again, the scheme allows for this, but it does so where the FW Act includes penal provisions for a person knowingly or recklessly making a false or misleading representation about the workplace rights or the exercise or effect of the exercise of a workplace right, by another person: FW Act s 345.

204 As will be apparent from the following, the communications of APESMA were less than the standard one would expect and contained broad claims (as to the benefits of the proposed authorisation) which were either inaccurate or capable of being misleading. They were made without the knowledge of the respondent employers and therefore, there was no circumstance for correction. No doubt, these two features of the circumstances leading up to the vote provide the genesis for Ulan and Whitehaven’s grievance.

205 As already observed however, it is not for a review Court to remedy actual or perceived unfairness, nor to descend into the merits: Its remit is confined to the identification of jurisdictional error. The focus therefore is on whether the Full Bench correctly construed what it was required to be satisfied of in s 249(1B)(d) and thereafter attended to its task in a manner consistent with the task required of it.

206 Central to Ulan and Whitehaven’s submission was the conclusion of the Full Bench at FB[240] that it should not be implied that the expression included the notion of “genuine” or “informed”
support. The paragraph is extracted in full:

240     In the absence of requirements with s.248(1B)(d) [sic] akin to ‘genuine’ or ‘informed’ support, we do not consider that these notions should be implied into the provision. However, in this case the Respondent Employers contend that the process leading to the Ballot involved misrepresentations and that APESMA provided inaccurate, incomplete or one-sided information which invalidated the employees’ apparent consent and it is appropriate to consider whether the Ballot here is an accurate reflection of the employees’ desire to bargain. Consistent with the approach adopted by the Commission to the consideration of support for bargaining in a majority support determination application, this may, where relevant and appropriate, involve an assessment as to whether the Ballot was falsely derived or the responses achieved by duress or coercion. We add that there is no suggestion of the latter in this case. The notion of being falsely derived may include consideration as to whether any material misrepresentation was involved in garnering backing for the proposal that would vitiate the apparent support. That is, whether the otherwise apparent wish to bargain itself is vitiated, bearing in mind that the statutory test remains whether the majority wish to bargain. Matters relevant to the consideration of alleged misrepresentations, and potentially more generally, may include the nature of the information provided to the employees, the nature of the Ballot questions and what may reasonably be implied from an affirmative answer, taking into account the circumstances and nature of the employees involved.

(Footnotes omitted.)

207 A number of matters may be deduced from this aspect of the Full Bench’s reasoning.

208 First, the Commission rejected the proposition that, in order to be satisfied of majority support under s 249(1B)(d), it needed to be satisfied that the support was “genuine” or “informed”. It rejected this proposition for two reasons (evident from the two footnotes to the first sentence). The first basis for rejection was the absence of any such requirement in the text of the provision by contrast to other provisions in the FW Act. Footnote 280 made reference to ss 186(2)(a) (where the Commission must be satisfied that agreement has been “genuinely agreed to”) and  188 (in determining whether an agreement has been genuinely agreed, it must take into account the matters in s 188B). Section 188B(3) prescribes a number of matters which must be taken into account, inter alia, including explaining to employees the terms of a proposed enterprise agreement.

209 The second basis for rejection was in fn 281, which stated “See by analogy the approach of the Full Bench in National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [53]”. That decision concerned a challenge to a protected ballot order, under s 437 of the FW Act. In that case, the respondent University had claimed that there was ambiguity in the questions of the protected ballot order, such that, the Union’s proposed questions did not satisfy the requirements of s 437(3)(b); namely, that the application specified the question or questions to be put to the employees who are to be balloted. The Full Bench, in that decision, found that the requirement of s 437(3)(b) will be satisfied if the application specifies a question or questions capable of being answered “yes” or “no’: at [53]. A question meets these requirements if it is expressed and understood in ordinary “industrial English”: There is no requirement for legalism, technicality or pedantry. The Full Bench went to on find that the questions do not need to be “interrogated to identify ambiguity in aid of enabling ‘informed consent’” which was said to go beyond the text of the statute. It was said at [53]:

The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result….

210 It is not clear from the Full Bench’s reasoning, under review before the Court, what of the many matters discussed in the Curtin University decision were relied upon.

211 Secondly, whilst the Commission did not consider that these notions of “genuine” or “informed” consent could be implied, it did nonetheless consider that the requisite state of satisfaction might not be achieved, where APESMA provided inaccurate, incomplete or one-sided information which was said to involve a “[b]allot [that] was falsely derived or the responses achieved by duress or coercion” (FB[240]), where “falsely derived” could include “any material misrepresentation”.

212 Thirdly, in this context, the Commission referred to the very kinds of evidence relied upon by Ulan and Whitehaven in support of their contention, namely, the nature of the information provided to the employees, the nature of the Ballot questions and what may reasonably be implied from an affirmative answer, taking into account the circumstances and the nature of the employees involved.

213 Ulan and Whitehaven submitted that while the words “genuine” and/or “informed” are not expressly used in s 249(1B)(d), properly construed, the words “want to bargain” must mean a wish or desire to bargain that is genuine and/or informed, and not induced by misrepresentation. Ulan submitted this construction is supported by the objects of the FW Act and the good faith bargaining requirements that promote fairness, good faith and avoiding conduct that undermines freedom of association.

214 We do not accept that the Commission erred in its construction of the provision. It is clear from its reasons, at FB[240], and how it ultimately dealt with the alleged deficiencies or claimed misrepresentations, that the Commission understood, as part of its determination of whether APESMA had satisfied the Court that the employees “want to bargain”, consideration should be given to all of the circumstances leading up to the ballot, including what was communicated to employees as to the process and potential effect of bargaining.

215 The legislative scheme calls for the Commission, in a number of circumstances, to be satisfied that a majority have cast a vote, without being exhaustive, see for example, ss 182(1), 209, 216A, 216BA, 216C, 216CB, 216D, 216DC, 216E, 221, 237 of the FW Act.

216 It is apparent from these provisions, as with s 249(1B)(d), that Parliament has left to the Commission to determine how it will be satisfied that the majority of employees want to bargain without the degree of prescription required in other parts of the Act. This is demonstrated by contrasting this provision with others in the Act. For example, s 186(2)(b)(i) requires that the “agreement has been genuinely agreed” and apparently noting the ambiguity of the expression “genuinely agreed” thereafter sets out at s 188B what is to be taken into account when determining whether an enterprise agreement has been genuinely agreed. Furthermore, a different approach was adopted in the drafting of s 216EB which specifically requires, in addition to being satisfied of the majority vote, that there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation.

217 The use of adjectival descriptors, such as “informed”, “properly informed” or “genuine” may or may not be helpful in a particular case given the level of subjectivity and therefore associated uncertainty of those terms. Ultimately, it is a question for the Commission to be satisfied of whether the majority “want to bargain”. Upon review, the Court is concerned with whether, upon considering what s 249(1B)(d) required, the Commission attended to that task as required by the statute.

218 Ulan submitted that the authorities that have considered the words “want to bargain” in the FW Act (albeit, in a different provision) also support this construction. See, Australian Education Union v Mambourin Enterprises Ltd (t/as Mambourin) [2020] FWC 3760 at [99] (referring to “genuine reflection of the employees’ wishes”); Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 988 at [67] (referring to “true and genuine wants” of the employees); Re Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 6388 at [49] (referring to a “genuine indication”); and CEPU v South 32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [115], [126] (referring to “genuine reflection” of the employees’ wishes). Reliance was also placed on the Full Court’s reasoning in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [156]. The Full Court (albeit, considering a different statutory provision) indicated that the object in the FW Act of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if voting employees have no basis for appreciating the nature of what they are voting for. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Edlyn Foods Pty Ltd [2011] FWA 7928 at [7], in considering whether majority support existed, it was said that it would not be proper to accept a petition for majority support where the proposition put to employees was “in some way confusing or not clear”: at [7]. Further, it was submitted, in South 32 ([95]–[133] and [130]–[133] in particular) the Commission concluded that the CEPU’s incorrect representations made to the employees before the petition that had a legal flavour (e.g. representations to the effect that, without an EA, employment conditions could be reduced, and that contracts could be unilaterally terminated such that employees would be reverted to the relevant Award) indicated the majority support requirement could not be met.

219 Whatever descriptors are used, the evidence reveals, consistent with the various approaches taken by the Commission, in the above-mentioned cases, that close attention was given by the Full Bench to the circumstances, in order to establish whether the applicable statutory requirement was met.

220 What is evident from the consideration of the Full Bench’s reasons is that it did, in fact, consider, in detail, APESMA’s communications with the employees, acknowledged regrettable deficiencies and inaccuracies in this regard, but was ultimately satisfied, upon a review of all the circumstances, including the communications, that the requirements of s 249(1B)(d) had been met. It is clear that it did consider whether the employees understand what they were voting for, the process and effect of the proposed authorisation.

221 The Full Bench, at FB[241], makes clear that, by its consideration of the chronology of events that occurred thereafter, it was not intended to be exhaustive. It identified what it understood to be of “immediate relevance” which included  the formal meetings with the SIEA employees between April and November 2023 (FB[242]), a flyer issued encouraging participation in the campaign (FB[243], an email sent in May 2023, which linked a flyer (FB[244], a set of FAQ prepared for a meeting on 19 May 2023 (FB[246]) and was subsequently provided to employees (FB[247]), subsequent communications with employees before meetings conducted between June and November 2023 (FB[249]–[253]). The Full Bench then extracted the two resolutions carried at the meeting on 18 November 2023 (FB[255]), and subsequent communications to Ulan SIEA employees on 28 November 2023 (FB[256]).

222 Reference was then made to the fact that Vero Voting, an external provider, opened voting on 24 November 2023, what employees, who voted in the ballot, were provided with, namely a log of claims for a “New South Wales Multi-Employer Agreement” (FB[258]–[261]), the ballot question (FB[262]) and the ballot results (FB[263]).

223 A review of Ulan’s aide memoire below and further aide memoire and chronology provided to this Court reveal that, whilst there are some differences, the Full Bench’s description of the key events (FB[242]–[266]), reveals that the material allegations of misrepresentation (as identified in particular communications), were identified and considered by the Full Bench.

224 At hearing, Ulan took this Court to a number of parts of the chronology and submitted that, when, taken together, it is clear there was a constant theme in APESMA’s communications – that an enterprise agreement was necessary to provide legal protection for the employees’ conditions, and that an individual contract did not legally protect them. Ulan then took the Court to evidence of a witness before the Full Bench, who spoke to the contractual employment benefits which were on offer, and submitted that they are very favourable, such that, it would appear there is no substance in the suggestion or allegation that the redundancy entitlements were inferior. Ulan submitted that the information that was provided to the employees by APESMA prior to the ballot was inaccurate and misleading.

225 What is clear from the Full Bench’s reasoning is that it assessed all the evidence and was ultimately satisfied that the majority of the employees wanted to bargain (as reflected in the ballot). This is not to say that the Full Bench proceeded on the premise that the provision of the ballot results was sufficient in the circumstances nor that it was not required to consider the relevant communications.

226 It is apparent from the Full Bench’s reasons that it considered the submissions and evidence.

227 Consideration was given to the fact of APESMA advocating for the SIEA application (FB[269]) and to the allegation of the employees not being provided with sufficient or accurate information about the proposed ballot process, namely, the length of time the process would take and that each employer would have to agree to put a proposed agreement out for the approval of the employees (FB[270]–[274]). The Full Bench engaged with, but dismissed, the allegation that APESMA had misrepresented to employees that the “raising of industry standards” was a guaranteed outcome of the enterprise agreement negotiations: FB[275].

228 Ulan and Whitehaven particularly criticised the Full Bench’s consideration of the allegations of the purported misrepresentation as to the “strength” and enforceability of common law contracts (that is to say, their susceptibility to variation or replacement) vis-a-vis enterprise agreements. Ulan submitted that the Full Bench did not properly consider the “free rein” that APESMA had to provide employees with information such that it was unable to be corrected by the employers. It appears the Commission was entirely cognisant of this fact, as it adverted to at FB[276].

229 As to the comparable enforceability, Ulan made much of the APESMA communications regarding the need to secure, by operation of an enterprise agreement, redundancy entitlements. On Ulan’s case, there was no need for such security, as there were express contractual redundancy entitlements. It was suggested that the Full Bench’s reasoning, in part, at FB[280], appears to be erroneous, as it infers that the SIEA employees’ redundancy entitlements were contained in “policies…susceptible to unilateral changes”. As to whether or not this was established on the facts, it is not for this Court, upon judicial review, to descend into merits review.

230 It was apparent that the Full Bench recognised the regrettable circumstance that APESMA made bald assertions that common law contracts are not enforceable and can legally be unilaterally changed: FB[281]. However, the Full Bench, went on to state that such statements “must be considered both within the context of the entire communications and information, and the implications of such contracts in the relevant workplaces including those set out above”: FB[281]. It was open for the Full Bench to consider the statements within the entire context, including (contrary to Ulan’s submissions) by reference to the fact that the SIEA Employees were senior managers and persons with significant responsibilities and where some of them had enterprise bargaining experience: FB[267].

231 Ulan submitted that it is difficult to see how the context of the entire communications can alter the fact that it was incorrectly put to the employees that their common law contracts were not enforceable and that they can be unilaterally changed. This difficulty of understanding why the Commission did not accept their position does not demonstrate error. The Commission went on at FB[282] to state, whilst both instruments are enforceable, there are marked differences:

282    Further, although both forms of instrument are enforceable and disputes about them can be subject to enforcement proceedings, there are many relevant differences. These include that an enterprise agreement must be undertaken following a statutory collective employee approval process, must meet various safety net and other requirements, and does not operate without the approval of the Commission. Further, an enterprise agreement must contain an appropriate dispute resolution process and enforcement proceedings can more readily be undertaken on a collective basis.

232 As a consequence, the Full Bench, concluded that the “ease of enforceability differs significantly”. Such a conclusion was open to the Full Bench and more importantly that it would have been reasonably understood, on the question of comparative enforceability, that it “was the practical experience of APESMA rather than the strict legal position”: FB[283].

233 Ulan referred to an aspect of the Full Bench’s ultimate conclusion at FB[288]:

288     We also do not accept that the information provided by APESMA when considered as a whole was misleading or inaccurate. It did not attempt to describe the detailed operation of the proposed bargaining, but it did provide a broad overview with links to appropriate information. There is also no sound basis for a finding that the Ballot results were falsely derived or unsound, or anything to suggest that the views of the employees have changed after the conduct of the Ballot.

234 Ulan submitted that ultimately, there were inaccuracies in the information provided to employees and that there was a sound basis for finding that the ballot results were falsely derived or unsound. For the reasons already given with respect to the cumulative findings and reasoning leading to this conclusion, we reject this submission. We can discern no jurisdictional error.

235 For the same reasons, we reject the submission that the Commission’s conclusions were legally unreasonable.  On the contrary, the findings that the Commission made about the existence and standard of employee consent rested upon evident and intelligible foundations.  It is simply not the case that those findings were beyond what was open to a reasonable decision maker.

Conclusion

236 For these reasons, all three applications must be dismissed. Section 570 of the FW Act likely prohibits the making of any order as to costs but, to the extent that there might be reason to deviate from that usual position, the parties shall be at liberty to so advise.

Associate:

Dated:    5 September 2025

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