FEDERAL COURT OF AUSTRALIA

Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FCAFC 187

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to quash the following decisions of the Fair Work Commission:

(a)    Variation of a Modern Award to include a delegates' rights term in the Building and Construction General On-site Award 2020, being order PR 774725 made on 28 June 2024;

(b)    Variation of a Modern Award to include a delegates' rights term in the Joinery and Building Trades Award 2020, being order PR 774734 made on 28 June 2024;

(c)    Variation of a Modern Award to include a delegates' rights term in the Mobile Crane Hiring Award 2020, being order PR 774740 made on 28 June 2024;

(d)    Variation of a Modern Award to include a delegates' rights term in the Manufacturing & Associated Industries and Occupations Award 2020, being order PR 774715 made on 28 June 2024;

(e)    Variation of a Modern Award to include a delegates' rights term in the Electrical, Electronic and Communications Contracting Award 2020, being order PR 774730 made on 28 June 2024; and

(f)    Variation of a Modern Award to include a delegates' rights term in the Electrical Power Industry Award 2020, being order PR 774810 made on 28 June 2024.

2.    A writ of mandamus be issued to require the Fair Work Commission to exercise its function under cl 95 of Sch 1 to the Fair Work Act 2009 (Cth) according to law.

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

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued to quash the following decisions of the Fair Work Commission:

(a)    Variation of a Modern Award to include a delegates’ rights term in the Black Coal Mining Industry Award 2020, being order PR774738 made on 28 June 2024;

(b)    Variation of a Modern Award to include a delegates’ rights term in the Mining Industry Award 2020, being order PR774716 made on 28 June 2024;

(c)    Variation of a Modern Award to include a delegates’ rights term in the Electrical Power Industry Award 2020, being order PR774810 made on 28 June 2024; and

(d)    Variation of a Modern Award to include a delegates’ rights term in the Coal Export Terminals Award 2020, being order PR774757 made on 28 June 2024.

2.    A writ of mandamus be issued to require the Fair Work Commission to exercise its function under cl 95 of Sch 1 to the Fair Work Act 2009 (Cth) according to law.

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

REASONS FOR JUDGMENT

THE COURT

1    The Fair Work Act 2009 (Cth) requires modern awards made by the Fair Work Commission to include a term providing for “the exercise of the rights of workplace delegates”. Consistent with that obligation, on 28 June 2024, the Commission made orders varying a number of modern awards to include such a term. The applicants contend that those orders were affected by jurisdictional error.

2    The applicants complain that the orders inserting the delegates’ rights term in the modern awards did not meet the Commission’s obligation in three ways. First, they say the term limited workplace delegates to representing employees of the employer of the delegate, rather than all employees in the enterprise. Second, it provided for the delegate to communicate with workers for the purpose of representing their industrial interests, rather than about their industrial interests more generally. Third, it imposed restrictions on the exercise of the delegates’ rights not provided for by the Act.

3    Whilst each of the applicants make the same complaints about the Commission’s orders, they do so in respect of the delegates’ rights term inserted into different modern awards. In proceeding NSD 1319 of 2024, the Mining and Energy Union (MEU) complain about the delegates’ rights term inserted into four modern awards operating in the mining and energy sector. In proceeding VID 960 of 2024, the Construction, Forestry and Maritime Employees Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) complain about the delegates’ rights term inserted into six modern awards operating in the construction, manufacturing and electrical sectors. The ten awards varied so as to include a delegates’ rights term are set out in the orders of this Court. The relevant parts of the term inserted into each of those awards are set out in an annexure to these reasons. The annexed term is taken from the Black Coal Mining Industry Award 2020 (BCMI Award) and is used as the illustrative clause when addressing the parties’ arguments. The delegates’ rights term is relevantly uniform across the awards.

4    The applicants seek writs of certiorari quashing the orders of the Commission with respect to the delegates’ rights term inserted into each of the ten awards. They also seek writs of mandamus requiring the Commission to exercise its function in relation to those terms in accordance with law.

5    Both applications name a number of employer organisations as respondents. Those organisations made submissions before the Commission as to the content of the delegates’ rights term. Those organisations oppose the applications in this Court and were represented in two groups. The Australian Industry Group, Master Builders Australia, Minerals Council of Australia and Coal Mining Industry Employer Group (the AIG parties) together made written and oral submissions in both matters. The Housing Industry Association Limited, National Electrical and Communications Association, Australian Chamber of Commerce and Industry, Australian Business Industrial, New South Wales Business Chamber Limited, and Australian Resources and Energy Employer Association (the HIA parties) together also made written and oral submissions in both matters.

6    The applications were supported by the Australian Council of Trade Unions (ACTU) which was named as a respondent in both proceedings, and the Australian Manufacturing Workers Union (AMWU) which was named as a respondent in the VID proceeding.

7    For the reasons that follow we have determined that the orders made by the Commission were affected by jurisdictional error in each of the three ways submitted by the applicants.

PROCEDURAL BACKGROUND

8    The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) amended the Act with effect from 15 December 2023. Those amendments included the insertion of s 350C into the Act providing for “Workplace delegates and their rights”. The Amendment Act also amended the transitional provisions contained in Sch 1 to the Act requiring the Commission to make determinations varying modern awards to include a “delegates’ rights term for workplace delegates covered by the award”. Those determinations were required to come into operation and take effect from 1 July 2024.

9    In late December of 2023, the Commission initiated a proceeding to vary modern awards to include a delegates’ rights term. The proceeding was allocated to a Full Bench of the Commission. The Full Bench invited and received written submissions from interested parties and held “consultation sessions” with those parties. On 10 May 2024, a draft delegates’ rights term was provided to the parties and they were able to make submissions on that draft.

10    On 28 June 2024, the Commission published a statement explaining that a majority of the Full Bench had decided to vary all modern awards to include a delegates’ rights term in the form annexed to that statement. On the same date the Commission made orders varying 155 modern awards, including those the subject of these proceedings, to include that term.

11    The statement also provided that the Full Bench would conduct a review of the term after 12 months of operation, and that reasons for the decision would be issued by the Full Bench in due course. To date, no review of the term has been conducted. On 17 September 2025, the Commission published a statement inviting submissions about whether it is necessary to conduct a review. No reasons of the Commission were before the Court and the applications proceeded on the basis that no reasons of the Commission have been published. Both the applicants submit, and we accept, that given the nature of the errors alleged the lack of reasons is no impediment to a determination by this Court.

12    After the Commission’s determinations, and with effect from 1 July 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) made further amendments to s 350C. Those amendments included the introduction of the concept of a “regulated business”, being a “digital labour platform operator” or “a road transport business”. The first and second applicants in the VID proceeding submit, and we accept, that the amendments made by the No. 2 Act do not bear on the constructional questions which are raised in this application. In any event, and for completeness, where there are relevant differences between the Amending Act and the No.2 Act, we have below identified both forms of s 350C.

THE WORKPLACE DELEGATES’ TERM AND THE COMMISSION’S TASK

13    The Commission’s task as described by cl 95(2) of Sch 1 to the Act was to “make a determination varying the modern award to include a delegates’ rights term”. A delegates’ rights term is defined by s 12 of the Act as “a term in a fair work instrument that provides for the exercise of the rights of workplace delegates”. The note to that definition provides, “the rights of workplace delegates are set out in s 350C, and a delegates’ rights term must provide at least for the exercise of those rights”. We accept, as the applicants contend, that the ordinary meaning of “provide for” is to “furnish or supply” or “to make arrangements for supplying” or to “make available, to yield, afford”: see Macquarie Dictionary (online) definitions 1 and 6; Oxford English Dictionary (online) definition II.6.

14    The delegates’ rights term is a term that furnishes, supplies or makes available the rights set out in s 350C. Such a term is necessary, and may be bespoke, because s 350C does not deal with all of the practical and procedural matters that may be relevant to the exercise of those rights. Accordingly, the Commission’s task was to make a determination varying an award to include a term that furnished, supplied or made available the rights provided for by s 350C.

15    That approach to the Commission’s task is consistent with the note to the definition of workplace delegates’ rights. The applicants contend that the note is part of the Act or part of the extrinsic material that can be relied upon to confirm the ordinary meaning of the text. Section 40A of the Act provides that the Acts Interpretation Act 1901 (Cth), as in force on 25 June 2009, applies to the Act. Section 13(3) of the Acts Interpretation Act at that time provided that “no marginal note, footnote or endnote to an Act… shall be taken to be part of the Act”. However, the note accompanying the definition of delegates’ rights term was contained in the text of the Amendment Act as passed by both houses of Parliament. The note is navigational in that it directs attention to a different but related section of the Act. The note is also explanatory in that it explains the operation of the section. It is not a marginal note, footnote or endnote as caught by the terms of s 13(3) of the Acts Interpretation Act at 25 June 2009: WorkPac Pty Ltd v Rossato [2020] FCAFC 84; 278 FCR 179 at [1012] (Wheelahan J) and Sydney Trains v ARTBIU (Separate Question) [2024] FCA 1479 at [48] (Wheelahan J) and Herzfeld P and Prince T, Interpretation (3rd ed, Thomson Reuters, 2024) at [5.140] cf Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 271 CLR 495 at footnote 21 (Kiefel CJ, Nettle and Gordon JJ) and Adams v Director of Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 at [30]-[31] (North, Dowsett and Rares J). In any event, there can be little doubt that the note forms part of the relevant extrinsic material.

16    That approach to the Commission’s task is also consistent with the scheme of the Act whereby ss 149E, 205A and 273(6) provide respectively for a modern award, enterprise agreement and workplace determination to include a delegates’ rights term for workplace delegates covered by those instruments. Each instrument will furnish, supply or make available the rights in a manner appropriate for that instrument. By make available, we mean make the rights available to the delegate to exercise and the imposition of corresponding obligations, as the result of the inclusion of the term in the awards.

17    That approach to the Commission’s task is also consistent with the Revised Explanatory Memorandum to the Amendment Act. That Memorandum described at [791] that the introduction of workplace rights and protections for workplace delegates was to support them in their role in representing employees in workplaces and that “it would provide for modern awards and future enterprise agreements to provide more detailed rights for specific industries, occupations and workplaces”. It also said, at [827], that the rights conferred by s 350C(3) were “specified at the level of principle, with the expectation that for most employees, modern awards and enterprise agreements would provide greater detail for particular industries, occupations, or enterprises”. We consider below the extent to which recourse may be had to the Revised Explanatory Memorandum to assist in the ascertainment of the meaning of the provision.

18    Consistent with that approach to the Commission’s task, the Commission is not authorised to limit or detract from the workplace delegates’ rights provided for by s 350C. The Commission is required to provide at least for the exercise of those rights in s 350C. Insofar as the HIA and AIG parties point to other provisions within the Act to contend that the Commission may limit the delegates’ rights term, those arguments are dealt with below.

19    That understanding of the Commission’s task informs the three errors alleged by the applicants. In relation to each of those claimed errors the applicants submit that the Commission did not meet its obligation under cl 95 of Sch 1 to the Act to make a determination varying each modern award to provide for the exercise of the rights of workplace delegates consistent with those rights as set out in s 350C. The applicants allege that the errors are jurisdictional errors because the Commission misapprehended or disregarded the nature or limits of its functions or power. It is convenient to deal with each of those alleged errors in turn.

CONSTRUCTION PRINCIPLES

20    In assessing each of the alleged errors it is necessary to construe the terms of s 350C of the Act. There was no meaningful dispute about the principles guiding that construction exercise. The starting point for ascertaining the meaning of a statutory provision is the language of the statutory text itself. The meaning of the text may require consideration of the context, including the purpose and policy of a provision and the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). Context also includes legislative history and extrinsic materials, though these cannot displace the meaning of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

21    The principles concerning the construction of an award are also relevant to the present applications. Again, there was little dispute about those principles. Construction of an award begins with considering the ordinary meaning of the words, read as a whole and in context. The words of an industrial instrument are not to be interpreted in a vacuum divorced from industrial realities. The language used is frequently couched in terms intelligible to the framers of the instrument without careful attention to form and draftsmanship that one expects to find in a statute. The framers of such documents may be more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, such that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see the principles outlined in Workpac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ) and Noorton Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120 at [52] (Raper, Hatcher and Younan JJ), which concerned enterprise agreements but have equal application to an award.

ERROR ONE – WHO CAN THE WORKPLACE DELEGATE REPRESENT?

The clause, the Act and the parties’ submissions

22    By error one the applicants complain that the workplace delegates’ term erroneously limits delegates to representing employees of the employer of the delegate, rather than all employees in the enterprise.

23    Clause 29A.5 of the delegates’ rights term relevantly provides that “a workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate”. Those eligible employees are defined at cl 29A.2 by reference to the following terms:

employer means the employer of the workplace delegate;

delegate’s organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and

eligible employees means members and persons eligible to be members of the delegate’s organisation who are employed by the employer in the enterprise.

24    The effect of cll 29A.2 and 29A.5 is to confine the delegate’s representation to members, or persons eligible to be members, who are employed by the same employer as the delegate.

25    Section 350C(1) of the Act, as it applied when the Commission performed its task, provided that a workplace delegate is “a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise”. Section 350C(2) of the Act stated: “The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with their employer”.

26    In the version of the Act as it applied after 1 July 2024, a delegate may represent either or both of:

(a)    members of the organisation who work in a particular enterprise;

(b)    members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.

27    By operation of s 350C(2), the delegate may also represent “any other persons eligible to be such members”. The applicants submit that those members, or those eligible to be members, “who work in a particular enterprise” are not limited to employees of the employer of the delegate. They say the Commission making a term which is limited in that way goes beyond the limits of its power conferred by the Act and constitutes jurisdictional error.

28    The HIA parties accept that the delegates’ rights term is limited to employees of the delegate’s employer. Nevertheless, they submit that the Commission was jurisdictionally entitled to restrict the scope of the delegates’ rights term to employees of an employer covered by the award pursuant to s 142 of the Act, which provides for incidental and machinery terms. They also submit that the Commission’s approach was consistent with what they say are limitations on the scope of any delegates’ rights term imposed by ss 149E, 205A and 273(6) of the Act.

29    The AIG parties contend that any error was within jurisdiction because the Commission was entitled to rely upon the “modern awards objective”, set out in s 134 of the Act, and decide for itself the content of the delegates’ rights term. The AIG parties also point to a number of textual considerations which they say support the term limiting the delegate to representing employees of the employer of the delegate.

Who can the workplace delegate represent - the textual considerations in section 350C(1)

30    Section 350C, as it applied when the Commission made its determinations, provided as follows:

Meaning of workplace delegate

(1) A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise.

Rights of workplace delegates

(2) The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with their employer.

Note: This section does not create any obligation on a person to be represented by a workplace delegate.

(3) The workplace delegate is entitled to:

(a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and

(b) for the purpose of representing those interests:

(i) reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and

(ii) unless the employer of the workplace delegate is a small business employer—reasonable access to paid time, during normal working hours, for the purposes of related training.

(4) The employer of the workplace delegate is taken to have afforded the workplace delegate the rights mentioned in subsection (3) if the employer has complied with the delegates’ rights term in the fair work instrument that applies to the workplace delegate.

(5) Otherwise, in determining what is reasonable for the purposes of subsection (3), regard must be had to the following:

(a) the size and nature of the enterprise;

(b) the resources of the employer of the workplace delegate;

(c) the facilities available at the enterprise.

31    The applicants draw attention to three textual considerations in s 350C(1) in support of their complaint of jurisdictional error. First, the word “work”, used in contrast to “employed”. Second, the word “enterprise”. Third, the word “workplace” in the composite phrase “workplace delegate”. The AIG parties rely upon the use of the phrase “the employer” and “their employer” in s 350C(2) to (5) in support of their argument that the delegates’ rights term permissibly limits the delegate to representing employees of the employer of the delegate.

The use of the word “work”

32    None of the members, or persons eligible to be members, referred to in s 350C(1) are described by reference to a particular employer. They are defined as members who “work” in a “particular enterprise”. “Work” used in that way does not require a connection with a particular employer or employment, and instead conveys a workplace consisting of workers who could be employed by various employers. The word “work” is used in a broad and general manner in the Act, and can encompass work that may be done as an employee, contractor, subcontractor, outworker, apprentice, trainee, student or volunteer: see, for example, s 15AB(4) and (7) in relation to “work performed under the relationship”, s 527D (“Prohibiting sexual harassment in connection with work”) and s 789FC and 789FD (“Application for an FWC order to stop bullying” and “When is a worker bullied at work?”). The use of the compound word “workplace” carries a similarly broad meaning in the Act that is untethered to a single employer: for example, cooperative workplace agreements may be made in respect of multiple employers (see s 12 definition of “cooperative workplace agreement” and s 216C regarding “Variation of cooperative workplace agreement to add employer and employees”), as can workplace determinations under s 277 (“Employers, employees and employee organisations covered by a workplace determination”).

33    We accept, as the applicants contend, that the use of the word “work” rather than “employed” supports the applicants’ construction that the phrase “members of the organisation who work in a particular enterprise” in s 350C(1)(a) is not limited to employees of the employer of the delegate.

The use of the word “enterprise”

34    The word “enterprise” is defined in s 12 of the Act as meaning “a business, activity, project or undertaking”. Read with that definition, s 350C is directed at members, or persons eligible to be members, who work in a particular business, activity, project or undertaking. In that way, the section is capable of capturing persons who work for different employers but are engaged in the same business, activity, project or undertaking.

35    The AIG parties rely upon the use of what they say is the “qualifying word ‘particular’”. They contend that that word, when given its ordinary meaning, is used to single out an individual member of a specified group or class. Accordingly, they say it was open to the Commission to adopt a meaning of “enterprise” as the “enterprise of a particular employer carried out at a distinct location”. We do not accept that the word “particular” is intended to limit the delegate’s representation to the employees of their employer. The word “particular” is used to identify that the members, or those eligible to be members, must all work at the same enterprise. It confines the class of members to those at that enterprise. It does not limit the meaning of the defined term “enterprise”. If that were intended in the manner contended for by the AIG parties, the obvious drafting choice would have been to replace the words “members of the organisation who work in a particular enterprise” with the words “members of the organisation employed by the employer of the workplace delegate”.

36    We note also that “employer” is separately defined by s 12 by reference to the first Division of each Part of the Act. The phrase “employer’s enterprise” is used a number of times in the Act. The use of that phrase suggests that “employer” and “enterprise” have distinct meanings whereby one enterprise may consist of a number of employers, or a number of enterprises could belong to one employer. Further, the Act uses “employer’s enterprise” in contradistinction to “workplace”. Section 446(2)(a) of the Act addresses the Commission’s ability to order multiple protection action ballots, including where there is a “level of disruption of the employer’s enterprise, or at the workplace”, indicating that the “employer’s enterprise” and the “workplace” are distinct.

37    Again we accept, as the applicants contend, that the use of the defined word “enterprise” supports the applicants’ construction.

The use of the title “workplace delegate”

38    The above approach to “work”, “workplace” and “enterprise”, as broader than “employed” or the “employer”, is consistent with the title given to the delegate by the section: “workplace delegate”. The delegate is the delegate for the “workplace” and not for their “employer”. This also supports the applicants’ construction.

The use of the word “employer”

39    The AIG parties contend that the reference to “employer” in s 350C(2) to (5) is a reference to the employer of the workplace delegate as the person on whom the obligations are imposed in s 350C(2) to (5). They say that supports the limitation imposed by the Commission.

40    Section 350C(2) to (5) provides for the “rights of workplace delegates”. At subs (2) those rights entitle the delegate to represent the industrial interests of members, and those eligible to be members, “including in disputes with their employer”. After 1 July 2024, this language was amended to “including in disputes with the employer or regulated business concerned”.

41    The AIG parties contend that reference to the “employer” supports the limitation imposed by the Commission. We do not accept that submission. First, the word “including” indicates that the section applies more broadly than only those disputes. Second, the use of the phrase “the employer… concerned” recognises that the dispute will be with the member’s employer, being the employer concerned in the dispute that involves the member. It does not confine the delegate to representing only those employed by the delegate’s employer.

42    Section 350C(3)(a) refers to reasonable communications with the members and with other persons eligible to be members of relevant organisations, and does not refer to any “employer”. Section 350C(3)(b)(i) refers to “reasonable access to the workplace and workplace facilities where the enterprise is being carried on”. After 1 July 2024, the language in s 350C(b)(i) was amended to read “enterprise concerned”. That description supports the applicants’ construction. Section 350C(3)(b)(ii) (or s 350C(b)(iii) in the version of the Act after 1 July 2024) refers to reasonable access to paid time off for the delegate, unless the delegate is employed by a “small business employer”. That necessarily must be a reference to the delegate’s employer, but it does not concern or restrict the scope of the delegate’s representation.

43    Section 350C(4) provides that the delegate’s employer is taken to have complied with the obligations in s 350C(3) if they have complied with the delegates’ rights term in the instrument applicable to the workplace delegate. Again, it is not surprising that this subsection would be directed at the delegate’s employer. It is that employer that is in a position to affect the workplace delegate’s activities in relation to that role, and so it is logically that employer that should be subject to relevant obligations in s 350C(3). But once again, this has nothing to do with the scope of the delegate’s representative activities. We are not satisfied that the specific reference to the “employer of the workplace delegate” in s 350C(4) supports the AIG parties’ construction.

44    Section 350C(5) sets out considerations that are relevant to the reasonableness of the entitlements provided for in s 350C(3). Section 350C(5)(b) refers to the “resources of the employer of the workplace delegate”. In the version of the Act in force after 1 July 2024, this was amended to “the resources of the employer concerned”. Since s 350C(5) relates back to s 350C(3), “employer” or “employer concerned”, sensibly understood, includes the employer of the member concerned. Only in so far as it relates to the specific reference to 350C(3)(b)(ii) (or s 350C(b)(iii) after 1 July 2024) is s 350C(5) confined to the delegate’s employer. In contradistinction, ss 350C(5)(a) and (c) refer to the “enterprise”; the difference between (b) on the one hand, and (a) and (c) on the other reinforcing the applicants’ construction.

45    We are not persuaded that any of the references to “employer” in s 350C(2) to (5) support the construction of the AIG parties.

Who can the workplace delegate represent - the contextual considerations in section 350C(1)

46    Together with those textual considerations the applicants point to two contextual considerations. First, they say that approach is consistent with the rights conferred on workplace delegates by s 350C(2). Second, they say that approach is consistent with the Revised Explanatory Memorandum accompanying the Amendment Act.

47    The rights conferred by s 350C(2) are described as an entitlement “to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with their employer” (or, in the version of the Act in force after 1 July 2024, “in disputes with the employer or regulated business concerned”). “[T]heir employer” must be referring to the employer of the member or person eligible to be a member. The right is not qualified by the member being employed by the workplace delegate’s employer.

48    The Revised Explanatory Memorandum for the Amendment Act relevantly provides at [818]- [820]:

Definition of ‘workplace delegate’: New subsection 350C(1) would define the term ‘workplace delegate’.

Section 12 of the FW Act provides that the term ‘officers of industrial associations’ can include ‘delegates’, but does not specify who would be a workplace delegate.

This new definition is intended to be sufficiently broad to capture workplace delegates across a range of employee organisations, regardless of the language used to describe the role in each organisation’s rules. The definition of ‘workplace delegate’ would recognise the role of workplace delegates in representing the interests of all workers, not just employees, who work at the relevant enterprise and who are eligible to be a member of the relevant employee organisation. The definition would not include employees of the employee organisations in workplaces generally, as a person can only be a workplace delegate in respect of the enterprise or part of an enterprise where they work, either as an employee or as a regulated worker (see new section 15G).

(Emphasis added.)

49    Section 15AB(1) of the Acts Interpretation Act provides that recourse may be had to “material not forming part of the Act [which] is capable of assisting in the ascertainment of the meaning of the provision”, in circumstances including where “the provision is ambiguous or obscure”. This material includes “any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted”: s 15AB(2)(e). Section 15AB “supplement[s], but [does] not displace, the common law”: Ravbar v Commonwealth [2025] HCA 25; 423 ALR 241 at [120] (Gordon J). Under the modern common law principles of statutory construction, regard should be had to context and purpose at the first stage, whether or not there is some ambiguity that is to be resolved, and where context should be regarded in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

50    The applicants rely on the Revised Explanatory Memorandum for the Amendment Act where it records that the role of the delegate is to represent “the interests of all workers, not just employees, who work at the relevant enterprise”. The AIG parties contend that the Revised Explanatory Memorandum “draws attention to the differences between the respective roles of workplace delegates and union officials in workplaces” and rely upon the words at [820]: “a person can only be a workplace delegate in respect of the enterprise or part of an enterprise where they work, either as an employee or as a regulated worker”. They contend that this would necessarily preclude a person from being a workplace delegate in a situation where the relevant enterprise is located elsewhere from where that person works. What this submission ignores is that the Revised Explanatory Memorandum deliberately adopts the use of “enterprise” and emphasises that the delegate is to represent the interests of “all workers, not just employees”. While we doubt that the ambiguity or obscurity necessary to support reliance on this extrinsic material pursuant to s 15AB(1) of the Acts Interpretation Act is present in s 350A to s 350C, for the purposes of the application of common law principles of statutory construction the material provides context that plainly supports the applicants’ case.

51    To that extent, then, both of these contextual considerations support the applicants’ construction that members, or those eligible to be members, “who work in a particular enterprise” is not limited to employees of the employer of the delegate.

Who can the workplace delegate represent - considerations of purpose in section 350C(1)

52    The AIG parties contend that limiting the delegates’ rights term to the delegate’s employer would best achieve the purpose or object of the legislation.

53    First, they contend that such an interpretation means that delegates for a particular enterprise would be chosen by their fellow employees. However, that assumes rather than establishes such a purpose. This approach to construction unhelpfully adopts a priori assumptions about Parliament’s intention, rather than identifying Parliament’s intention from the statutory language: see Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [26] (French CJ and Hayne J).

54    Second, and relatedly, they contend the purposes of the legislation would not be promoted because under the applicants’ construction an employee of Company A could be the delegate for employees of Company B, even though the employees of Company B may have had little or no say in the process of the appointment of the delegate. The CFMEU and CEPU submit, and we accept, that such a submission ignores the opening words of s 350C(1) that the delegate is elected or appointed “in accordance with the rules of an employee organisation”. That is, the Act does not provide for the role of members in the election of the delegate, rather that is provided for by the organisation’s rules. Those rules are able to provide that all of the members at the enterprise can have a say in the election or appointment of the delegate.

55    We are not satisfied that the matters of purpose contended for by the AIG parties support their construction or undermine the applicants’ construction.

Does section 142 permit the Commission to restrict the scope of the delegates’ rights term?

56    The HIA parties accept that the delegates’ rights term is limited to employees of the delegate’s employer. Nevertheless, the HIA parties submit that even if the scope of the term is more confined than s 350A to s 350C, as we have found that it is, the Commission was jurisdictionally entitled to restrict the scope of the delegates’ rights term to employees of an employer covered by the award pursuant to s 142(1) of the Act.

57    Section 142 of the Act is titled “Incidental and Machinery Terms”. Subsection (1) provides that modern awards may include terms that are (a) incidental to a term that is permitted or required to be in the modern award; and (b) essential for the purpose of making a particular term operate in a practical way.

58    The HIA parties submit that restricting the scope of the delegates’ rights term to employees of an employer was both incidental to a term that was required to be in the modern award (being the delegates’ rights term), and essential for the purpose of making the delegates’ rights term operate in an enforceable manner.

59    The HIA parties submit further that whether or not a term is “essential” under s 142(1)(b) is a discretionary matter for the Commission. As such, any error in the Commission’s conclusion is not jurisdictional in nature.

60    Section 142(1) is directed at terms that are incidental to a term that is permitted or required and essential for the purpose of making that particular term operate in practical way. Here the dispute is concerned with the adequacy of the required term. The Commission has not purported to make a term incidental to that required term and essential for its practical operation. Rather, the Commission has limited the scope of the required term. Section 142 is not directed to those circumstances.

61    Section 142 is designed to authorise the making of further incidental terms to give effect to the required term. To enable s 142 to limit the minimum content of a required term, here provided for by s 350C, would undermine the statutory scheme providing for those terms and their minimum content: see Part 2-3 of the Act. It would, in the words of the CFMEU and CEPU, invert the statutory scheme.

62    In the same way, it is difficult to understand in the present circumstances how imposing limits on the content of the required term, as provided for by s 350C, might be said to be “essential” for its practical operation. The HIA parties contend that it was available to the Commission to conclude that limiting the operation of the delegates’ rights term to those persons employed by an employer covered by the award, and hence ensure that it was capable of being enforced by those employees, was incidental to the term and essential to ensure its practical operation. However, if the term does not cover certain persons it cannot be enforced by them.

63    We are not persuaded that s 142 permits or authorises the Commission to limit the delegates’ rights term in the manner provided for by clause 29A.2 and 29A.5.

Do sections 149E, 205A and 273(6) limit the scope of the delegates’ rights term?

64    The HIA parties also rely on ss 149E, 205A and 273(6) of the Act, which were inserted by the Amendment Act. Section 149E provides that a modern award must include a delegates’ rights term for workplace delegates covered by the award. That requirement is repeated in s 205A for enterprise agreements, and s 273(6) for workplace determinations. The HIA parties submit that these provisions each place express limitations on the scope of any delegates’ rights term to be included in the respective statutory instruments to which they refer, despite the breadth of rights provided in s 350C. They say, for example, s 149E provides that modern awards only require a delegates’ rights term to be inserted for “workplace delegates covered by the award”. Sections 205A and 273(6) only require a delegates’ rights term be included for workplace delegates to whom an enterprise agreement or workplace determination “applies”.

65    The HIA parties contend that, by limiting the type of person to whom a delegates’ rights term applies, ss 149E, 205A and 273(6) modify or narrow the scope of eligible persons capable of exercising rights under any delegates’ rights term in a way not contemplated by s 350C. The HIA parties submit, in effect, that these provisions indicate that any delegates’ rights term will necessarily be more limited than the right conferred by s 350C.

66    It is understandable that the benefit of the term would be limited to those covered by the award or enterprise agreement. That is consistent with the scheme of the Act; an award or enterprise agreement can only impose obligations and confer rights on the persons to whom they apply and cover. It is also consistent with that scheme that the Act operates on the basis that not all employees will be covered by an award or enterprise agreement: see s 12 that defines an “award/agreement free employee” as “a national system employee to whom neither a modern award nor an enterprise agreement applies”. However, it does not follow that the limitation of the delegates’ rights term to those covered by the award means that the clause should be further limited, so that the rights of a delegate who is covered by the award are confined to representation of those covered by the award who are employed by the same employer as the delegate. We do not discern that intention or operation by ss 149E, 205A or 273(6).

67    We are not satisfied that ss 149E, 205A and 273(6) limit the delegates’ right term in the manner contended for by the HIA parties.

Does the modern awards objective entitle the Commission to determine the scope of the delegates’ rights term?

68    The AIG parties contend that the Commission undertakes its statutory task in respect of modern awards by reference to the modern awards objective contained in s 134 of the Act. That, they contend, requires a broad evaluative judgment about that objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net. Accordingly, they submit that “given [the Commission’s] statutory remit, history, purpose and the skills, knowledge and experience of its members” that it was within that remit to develop and order the term that it did.

69    The AIG parties contend further that use of the language in cl 95 of Sch 1 to the Act that the “Commission must by 30 June 2024 make a determination varying the modern award” identifies that the power that was being exercised by the Commission was under s 157(1) of the Act.

70    There are two answers to these submissions by the applicants. First, the modern awards objective applies in respect of an exercise of powers and functions under Part 2-3 and Part 2-6 of the Act. The powers and functions here being exercised were those conferred by cl 95 of Sch 1 to the Act. There is nothing in the text or context of cl 95 of Sch 1 to the Act to suggest it is to operate like an application made to vary a modern award under ss 157 and 158 of the Act. No person listed in s 158(1) made such an application. Here, the Commission was obliged to include the term, rather than consider whether it was necessary to do so. It was not required to reach the states of satisfaction contemplated by s 157(1) or s 157(2). We do not consider that the modern awards objective applies to a term inserted by operation of cl 95.

71    Second, and in any event, the scheme of the Act provides for terms that may be included in an award (Part 2-3, Div 3) and terms that must be included in an award (Part 2-3, Div 3, Subdiv C). Of those terms that must be included in an award, they vary from those that identify a subject matter that must be included (see, for example, s 148) to those that identify the subject matter and the minimum content of the term. Section 134 does not permit the Commission, in pursuit of the modern awards objective, to undermine the minimum content of terms as identified by Parliament. To adopt the approach of the AIG parties would undermine that scheme.

Conclusions on error one

72    For all of those reasons the Commission was in error to order a term that limited the workplace delegate to representing employees of the employer of the delegate, rather than all employees who work in the enterprise. We address below why that error amounts to jurisdictional error.

ERROR TWO – THE SCOPE OF THE WORKPLACE DELEGATE’S COMMUNICATIONS

The clause, the Act and the parties’ submissions

73    By error two, the applicants complain that the Commission misconstrued s 350C by providing a delegates’ rights term that limits the rights of a workplace delegate to communicating with employees of the delegate’s employer “for the purpose of representing their industrial interests” rather than communicating “with members and potential members in relation to their industrial interests” as required by s 350C(3)(a) (emphasis added).

74    Clause 29A.6 of the BCMI Award provides:

(a) A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 29A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees.

(b) A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work.

75    The MEU submits that the right conferred by s 350C(3)(a) is necessarily broad and “would extend to an array of subject matters, such as communications about trade union membership, industrial or employment matters, or health and safety matters”. It says the right should not be limited to communications whilst the delegate is engaged in representing the worker or in aid of a representative activity. The CFMEU and CEPU submit that cl 29A.6(a) is “a narrower and lesser form of communication than the entitlement conferred by s 350C(3)(a)”.

76    The HIA parties submit that this ground should be dismissed on the basis that the phrase “for the purposes of representing their industrial interests” in clause 29A.6(a) of the BCMI Award has no material difference in application compared to the phrase used in s 350C(3)(a): “in relation to their industrial interests”.

77    The AIG parties make a submission to a similar effect. They submit that it is implicit that a delegate entitled to communicate with eligible employees for the purpose of representing their interests may communicate with those employees in relation to those same interests. They say, in effect, that the Court should not accept that the entitlements conferred by cl 29A.6(a) are lesser entitlements than those described by s 350C(3)(a).

78    In the alternative, the HIA parties submit that the phrase “for the purpose of representing their industrial interests” may be read more liberally and in a manner that favours a sensible and practical industrial result, while noting that the language of the instrument “may often be imperfect”, citing Wheelahan J in King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [128]-[130]. The HIA parties further rely on the observations of French CJ, Crennan and Bell JJ in Taylor v Owners Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [38], where their Honours stated that whether a court is justified in reading a statutory provision as though it contains additional words involves a judgment of matters of degree. The judgment is answered in favour where the addition of words in the case of “simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision”. Accordingly, they submit that the provision can be read as follows:

A workplace delegate may communicate with eligible employees for the purpose of representing or potentially representing / or otherwise in relation to their industrial interests under clause 29A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees.

(Original emphasis.)

Consideration of error two

79    We consider that the two phrases within cl 29A.6 and s 350C(3)(a) have sufficiently different meanings such that cl 29A.6 can be said to limit the entitlements of the workplace delegate. “Representing”, in the context of “communication for the purpose of representing their industrial interests” in clause 29A.6(a) of the BCMI Award, means “to stand or act in the place of, as a substitute, proxy, agent” (Macquarie Dictionary (online) definition 3) or “to speak and act for by delegated authority” (Macquarie Dictionary (online) definition 4). The use of the phrase “for the purpose of” further limits the object of the communication where “purpose” ordinarily and relevantly means “the object for which anything exists or is done” (Macquarie Dictionary (online) definition 1). In other words, cl 29A.6 contemplates communications with the object of speaking and acting for the member. The words of cl 29A.6(a) may exclude communication with members to identify whether they need representation at all. They may exclude questions of the workplace delegate about the members’ industrial rights or interests more generally. They may exclude communication that might occur prior to a need for representation. These are, as the ACTU submits, matters which are central to the ordinarily understood function of a workplace delegate which fall within the scope of s 350C(3)(a).

80    The two phrases cannot sensibly be understood as having no material differences. The differences in drafting between s 350C(3)(a) and s 350C(3)(b) themselves confirm that the phrases are different: the first refers to communication with persons “in relation to their industrial interests” while the second refers to entitlements the delegate has “for the purpose of representing those interests”. If the phrases were coterminous, the section would not have used each in different places.

81    Nor can the differences between the phrases be construed as a “simple, grammatical, drafting error” such that it could be rectified by the addition of words, as contemplated in Taylor at [38]. Clause 29A.6(a) limits the scope of the right provided in s 350C(3)(a).

82    Further and in the alternative to the submissions above, the HIA parties say that s 142(1) provides a “jurisdictional gateway” to the Commission to include a term limiting the scope of the right of reasonable communication in the delegates’ rights term. They say this is subject to an understanding of the Commission’s reasons (which have not been issued) to determine what, if any, statutory power was exercised in order to include the term it did. For the reasons we have outlined above at [56]-[63], we do not consider that s 142(1) permits or authorises the Commission to limit the delegates’ rights term in the manner provided for by cl 29A.6(a). By cl 29A.6(a), the Commission has limited the scope of the required term. It did not create a term incidental to a required term.

83    The remaining submissions of the AIG parties on error two are directed to separate parts of cl 29. They first submit that the use of the phrase “under clause 29A.5” in cl 29A.6 signifies that cl 29A.6(a) should be read in conjunction with cl 29A.5. Under cl 29A.5, the delegate’s right to represent the industrial interests of eligible employees is conferred, and examples are provided of matters in which those employees have industrial interests which may involve the delegate’s representation. The AIG parties say that this reinforces the submission that communications in relation to those employees’ industrial interests would be incidental to the purpose of representing those employees’ industrial interests.

84    We do not consider that reliance on cl 29A.5 rectifies cl 29A.6. Clause 29A.5 confers on workplace delegates the right to represent the industrial interests of eligible employees in a range of workplace matters or disputes. It does not confer a right to communicate in relation to industrial interests as provided for by s 350C(3)(a). The rights conferred by s 350C(3)(a) are broader.

85    The AIG parties say further that the applicants’ argument ignores the remaining words in cl 29A.6(a) and (b), as set out at [74]. In particular, it ignores the second sentence in cl 29A.6(a): “This includes discussing membership of the delegate’s organisation and representation with eligible employees”. They contend that the clause as a whole makes plain that delegates may communicate directly with eligible employees and hold discussions with them about union membership.

86    Reliance on the second sentence of cl 29A.6(a), or cl 29A as a whole, does not cure the limitations placed on the scope of communications by the first sentence of 29A.6(a). The universe of communications that occurs in relation to workers’ industrial interests is broader than communications about union membership. That universe includes communications with workers to ascertain whether any representation is needed at all. It includes communication that may be made for the purpose of dissuading a member to make a claim. It includes questions that members might have for their delegate about industrial or safety rights. The second sentence highlights rather than resolves the limitation imposed by the use of the word “representation” in cl 29A.6.

87    We find that error two is made out.

ERROR THREE – THE RESTRICTIONS ON THE WORKPLACE DELEGATE

88    By error three, the applicants complain that cl 29A.9(a) imposes a number of preconditions and fetters on the exercise of the workplace delegates’ rights that are not provided for, and directly inconsistent with, the substantive grant of rights in s 350C.

89    Clause 29A.9(a) provides:

(a) A workplace delegate’s entitlements under clause 29A are subject to the conditions that the workplace delegate must, when exercising those entitlements:

(i) comply with their duties and obligations as an employee;

(ii) comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;

(iii) not hinder, obstruct or prevent the normal performance of work; and

(iv) not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.

90    The applicants accept that the grant of rights in s 350C is limited by a filter of reasonableness. In particular, s 350C(3)(a) and (b) states that the workplace delegate is entitled to “reasonable communication” with members and “reasonable access to the workplace and workplace facilities” (emphasis added). Section 350C(5) provides for certain factors to be considered in “determining what is reasonable for the purposes of subsection (3)”, including (a) the size and nature of the enterprise, (b) the resources of the employer of the workplace delegate and (c) the facilities available at the enterprise. The right conferred under s 350C(2), that the workplace delegate is entitled to represent the industrial interests of members and those eligible to be members, is conditioned by the prohibition in s 350A(1)(c) which provides that the employer of a workplace delegate must not “unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate” (emphasis added). Accepting that a filter of reasonableness applies to the rights conferred in s 350C, the applicants say that cl 29A.9 does not adopt that filter. Instead, it imposes absolute restrictions on the exercise of the delegates’ rights that render the performance of the delegates’ role impossible. They place particular reliance upon cl 29A.9(a)(i) and (iii).

91    The HIA and AIG parties’ submissions on this ground proceed on the same construction of s 350C. They say that the requirement of “reasonableness” as to the workplace delegates’ entitlements through ss 350C and 350A(1)(c) entitled the Commission to “have something to say about what is or is not ‘reasonable’ in a particular circumstance”, or “le[ave] it to the [Commission] to work out how those entitlements were to be exercised under modern awards”. They submit that it is therefore jurisdictionally open to the Commission to determine what is “reasonable” or “unreasonable” and set preconditions on the exercise of the workplace delegates’ entitlements accordingly.

Consideration of error three

92    We accept that the filter of reasonableness provided for in ss 350C and 350A(1)(c) authorises some express limitations in the provision of the workplace delegates’ entitlements. However, we consider that the cumulative obligations stated in cl 29A.9(a), and in particular subcl (a)(i) and (iii), extend beyond the filter of reasonableness provided for by ss 350C and 350A(1)(c) to a place where the clause is fundamentally inconsistent with the grant of rights provided in s 350C.

93    The requirement in cl 29A.9(a)(i) is that the workplace delegate must, when exercising their entitlements, comply with their duties and obligations as an employee. One of the duties of an employee is to act in the interests of the employer. Yet, pursuant to s 350C(1) and (2), the role of a workplace delegate is to represent the industrial interests of employees. Intrinsic to this is that the workplace delegate may act in the interests of the employees rather than the employer. Clause 29A.9(a)(i) is therefore at odds with the grant of rights to workplace delegates under s 350C. Significantly it is, in our assessment, absolute rather than filtered by any reasonableness. If the clause is to include the duties and obligations of employees, it should ensure that the delegates’ rights provided for by cl 29A may be exercised in a way that is inconsistent with those other employee duties and obligations only where the delegate is reasonably exercising the delegates’ rights. By its unqualified and absolute terms, cl 29A.9(a)(i) may render the execution of the workplace delegates’ rights impossible or at least impracticable.

94    Similarly, cl 29A.9(a)(iii) states that the workplace delegate must not hinder, obstruct or prevent the normal performance of work. It may be said that inherent in the workplace delegate’s normal performance of their functions in that capacity is the hindering, obstructing or preventing the normal performance of work, of themselves or others, such that this clause is not fundamentally at odds with the rights granted to workplace delegates under s 350C.

95    In any event, what is inherent in the workplace delegates’ normal performance of their role is the ability to hinder, obstruct or prevent when reasonably exercising their rights as delegate. They cannot do so in an unfettered way. Accordingly, if cl 29A.9(a)(iii) is to be included, it should also ensure that the delegates’ rights provided for by cl 29A may be exercised in a way that is inconsistent with that obligation not to hinder or obstruct only where the delegate is reasonably exercising the delegates’ rights. There is presently a restriction on any hindering, obstructing or preventing. It is that absolute restriction that imposes the erroneous limitation. The limitation on the rights of the workplace delegate exceed those provided for in ss 350C and 350A(1)(c), and gives less room for the duties identified in those sections to be performed.

96    The HIA parties submit further that, in reliance on the filter of reasonableness provided for in ss 350C and 350A(1)(c), reasonable minds may differ as to what is reasonable in the circumstance, and the task of determining what is reasonable is a task within jurisdiction. We reject this submission. The impugned conditions at cl 29A.9(a)(i) and (iii) are complete restrictions expressed in an unqualified manner. They are not themselves filtered by reasonableness. They do not provide any articulation of what may be reasonable. On a plain reading, they give less room for the duties of the workplace delegate to be performed.

97    We consider that error three is made out for those reasons.

98    Both the AIG and HIA parties made a number of additional submissions as to error three. We address these below for completeness.

99    The AIG parties submit that cll 29A.9(a)(i)-(iv) must be understood in line with the words that precede it: “A workplace delegate’s entitlements under cl 29A are subject to the conditions that the workplace delegate must, when exercising those entitlements…”. They say that, in reading cl 29A.9(a) alongside the entitlements conferred to delegates in cl 29A, “there’s no inconsistency” between workplace delegates’ entitlements and their duties. For example, workplace delegates have an entitlement to paid time off for training as a workplace delegate (cl 29A.8) and entitlements to reasonable access to workplace facilities to hold discussions (cl 29A.7); while cl 29A.6(b) stipulates that workplace delegates may communicate with eligible employees during working hours or work breaks, or before or after work. The AIG parties submit that “if the delegate exercises those entitlements, they apply regardless of what’s set out in [cl 29A.9], and [cl 29A.9] makes it very clear that it is contemplating the exercise of those entitlements”.

100    We consider that this submission misunderstands cl 29A.9(a). By its express language, cl 29A.9(a) refers to the broader entitlements under cl 29A, and provides that those entitlements are “subject to” certain limitations and conditions. By that language, the conditions in cl 29A.9(a) expressly limit the entitlements conferred by cl 29A. When reading cl 29A.9(a) in the context of cl 29, it is read as limiting the entitlements set out in cl 29A.

101    The HIA parties made two further submissions as to error three, both of which we have previously dealt with. The first is that the Commission is jurisdictionally capable of concluding that it is “essential” under s 142 of the Act to ensure that the delegates’ rights term operated in a practical way by identifying conduct of a workplace delegate that would be “reasonable”. For the reasons we have given at [56]-[63], we do not accept this submission. Clause 29A.9(a) limits the scope of the required term, rather than a term incidental to the required term. Second, the HIA parties say that it is open for the Commission to include express preconditions on the exercise of workplace delegates’ entitlements because doing so furthers the modern awards objective. For the reasons we have given at [68]-[71], we also do not accept this submission.

102    There is nothing in those additional submissions that alters our conclusion. We find that error three is made out.

JURISDICTIONAL ERROR

103    The applicants frame the errors of the Commission as jurisdictional errors in three ways. First, as a misunderstanding of its statutory task: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Second, as misapprehending or disregarding the nature or limits of its functions or powers: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 at [71]-[72]. Third, as otherwise failing to exercise the jurisdiction which has been conferred on it, for which the applicants cite Craig v South Australia (1995) 184 CLR 163 at 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). There was no dispute with those descriptions of what amounts to jurisdictional error.

104    Applying that framework to the present case, we are satisfied that by making the orders to vary the modern awards by the inclusion of its delegates’ rights term, the Commission misunderstood its statutory task set out in cl 95 of Sch 1 to the Act. It included a term that impermissibly limited the rights conferred by s 350C. That applies equally in respect of errors one, two and three.

105    We are also satisfied that by making the orders to vary the modern awards by the inclusion of the delegates’ rights term, the Commission misapprehended or disregarded the nature or limits of its functions or powers. It was not empowered to limit the rights conferred by s 350C in the way that it did. Again, that applies equally in respect of error one, two and three.

106    The CFMEU and CEPU alternatively submit that to the extent that the delegates’ rights term ordered by the Commission is construed as not limiting the rights provided for under s 350C of the Act, but only providing for the exercise of a subset of those rights, the Commission misapprehended its function and failed to exercise the jurisdiction conferred on it. Where we have found that the term did limit the rights provided for under s 350C it is not necessary for us to consider this alternative submission of jurisdictional error.

107    We are satisfied that each of the errors is jurisdictional.

SUMMARY AND RELIEF

108    In summary, we have found that in making the delegates’ rights term, the Commission went beyond the power conferred by cl 95 of Sch 1 to the Act in three respects.

109    First, the Commission impermissibly confined the scope of the rights of workplace delegates to represent members of the relevant employee organisation and any other persons eligible to be such members. It confined those rights to representation only of such persons if they are employed by the employer of the delegate. The workplace delegates’ rights conferred by s 350C of the Act are not so confined. It follows that the delegates’ rights terms must also not be confined in that way. Rather, the delegates’ rights terms must proceed on the basis that the workplace delegate is entitled to represent the industrial interests of all members of the organisation, and persons eligible to be members, who work in the enterprise or regulated business in which the delegate works, regardless of whether they are employees of the delegate’s employer.

110    Second, the Commission impermissibly confined the rights of workplace delegates to communicate with members and those eligible to be members. The delegates’ rights terms as they stand only authorise communications for the purpose of representing the industrial interests of such persons. Section 350C(3) entitles the workplace delegate to communicate with those persons in relation to those industrial interests. That is different to and wider than the phrase used in the delegates’ rights term. The term needs to adhere to the wording of s 350C(3)(a) in this respect.

111    Third, cl 29A.9(a)(i) and cl 29A.9(a)(iii) impermissibly limit the scope of workplace delegate’s rights that are otherwise provided for by the delegates’ rights term. Clause 29A.9(a)(i) does this by making those rights subject to an obligation on the part of the delegate to comply with their duties and obligations as an employee. If a clause seeking to preserve those duties and obligations is to be included at all, it should ensure that the delegates’ rights provided for by cl 29A may be exercised in a way that is inconsistent with those other duties and obligations of an employee only where the delegate is reasonably exercising the delegates’ rights provided by the clause.

112    Clause 29A.9(a)(iii) is beyond power because it requires the workplace delegate not to hinder, obstruct or prevent the normal performance of work, regardless of whether to do so is a reasonable exercise of the delegate’s rights. If a clause directed at not hindering or obstructing the normal performance of work is to be included at all, it should ensure that the delegate’s rights provided for by cl 29A may be exercised in a way that is inconsistent with that obligation not to hinder or obstruct only where the delegate is reasonably exercising the delegates’ rights.

113    For the reasons given above, writs of certiorari should issue to quash the decisions of the Commission varying the modern awards the subject of these applications to insert the delegates’ rights term. Additionally, writs of mandamus should issue requiring the Commission to exercise its function under cl 95 of Sch 1 to the Act according to law.

Associate:

Dated:    17 December 2025

ANNEXURE ONE

BLACK COAL MINING INDUSTRY AWARD 2020

29A. Workplace delegates’ rights

29A.1     Clause 29A provides for the exercise of the rights of workplace delegates set out in section 350C of the Act.

NOTE: Under section 350C(4) of the Act, the employer is taken to have afforded a workplace delegate the rights mentioned in section 350C(3) if the employer has complied with clause 29A.

29A.2     In clause 29A:

(a)    employer means the employer of the workplace delegate;

(b)    delegate’s organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and

(c)    eligible employees means members and persons eligible to be members of the delegate’s organisation who are employed by the employer in the enterprise.

29A.3     Before exercising entitlements under clause 29A, a workplace delegate must give the employer written notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election.

29A.4 An employee who ceases to be a workplace delegate must give written notice to the employer within 14 days.

29A.5 Right of representation

A workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate in matters including:

(a)    consultation about major workplace change;

(b)    consultation about changes to rosters or hours of work;

(c)    resolution of disputes;

(d)    disciplinary processes;

(e)    enterprise bargaining where the workplace delegate has been appointed as a bargaining representative under section 176 of the Act or is assisting the delegate’s organisation with enterprise bargaining; and

(f)    any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests.

29A.6 Entitlement to reasonable communication

(a)    A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 29A.5. This includes discussing membership of the delegate’s organisation and representation with eligible employees.

(b)    A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work.

29A.7 Entitlement to reasonable access to the workplace and workplace facilities

(a)    The employer must provide a workplace delegate with access to or use of the following workplace facilities:

(i)    a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible employees;

(ii)    a physical or electronic noticeboard;

(iii)    electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi;

(iv)    a lockable filing cabinet or other secure document storage area; and

(v)    office facilities and equipment including printers, scanners and photocopiers.

(b)    The employer is not required to provide access to or use of a workplace facility under clause 29A.7(a) if:

(i)    the workplace does not have the facility;

(ii)    due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or

(iii)    the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.

29A.8 Entitlement to reasonable access to training

Unless the employer is a small business employer, the employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least one day each subsequent year, to attend training related to representation of the industrial interests of eligible employees, subject to the following conditions:

(a)    In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees.

(b)    The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are:

(i)    full-time or part-time employees; or

(ii)    regular casual employees.

(c)    Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.

(d)    The workplace delegate must give the employer not less than 5 weeks’ notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.

(e)    If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.

(f)    The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether the workplace delegate’s access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld.

(g)    The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training.

29A.9 Exercise of entitlements under clause 29A

(a)    A workplace delegate’s entitlements under clause 29A are subject to the conditions that the workplace delegate must, when exercising those entitlements:

(i)    comply with their duties and obligations as an employee;

(ii)    comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;

(iii)    not hinder, obstruct or prevent the normal performance of work; and

(iv)    not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.

(b)    Clause 29A does not require the employer to provide a workplace delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees.

(c)    Clause 29A does not require an eligible employee to be represented by a workplace delegate without the employee’s agreement.

NOTE: Under section 350A of the Act, the employer must not:

(a)    unreasonably fail or refuse to deal with a workplace delegate; or

(b)    knowingly or recklessly make a false or misleading representation to a workplace delegate; or

(c)    unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the Act or clause 29A.