Federal Court of Australia

Ambulance Employees Association of Western Australia Incorporated v United Workers’ Union [2026] FCAFC 62

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the second respondent removing into this Court and quashing the decision made on 6 December 2024 by the Full Bench in matter C2024/4538.

2.    A writ of certiorari issue to the second respondent removing into this Court and quashing the decision made on 17 June 2024 by a Deputy President in matter D2023/6.

3.    A writ of mandamus issue to the second respondent requiring it to hear and determine according to law the first respondent’s application for summary dismissal of the applicant’s application for registration as an organisation.

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

REASONS FOR JUDGMENT

JACKSON AND DOWLING JJ:

1    We have had the advantage of reading Snaden J’s reasons for decision in draft. We agree with his Honour that the Full Bench of the Fair Work Commission fell into jurisdictional error because it did not embrace the construction of Part 2 of the Fair Work (Registered Organisations) Act 2009 (Cth) that the AEAWA now advances. That is so even though, to be fair to the Full Bench, that construction was not put to it (and was only identified by the Full Bench itself as a possible alternative construction, towards the end of its reasons).

2    We write separately to Snaden J because our reasoning for accepting the AEAWA’s construction of the Act differs from his Honour’s. But his exposition of the background, the provisions of the Act and the issues permits us to move directly to set out our reasoning. Save as indicated below, all defined terms in these reasons are as given by Snaden J.

The constructional choice raised on the AEAWA’s case

3    The question raised on the AEAWA’s case is whether Part 2 should be read to permit an enterprise association that is not ‘federally registrable’ under s 18C, but that falls within the ordinary meaning of ‘association of employees’ and is federally registrable under s 18B, to be eligible to apply for registration under s 19.

4    The respective positions of the AEAWA and the UWU pose a constructional choice. The choice appears in the following words in the chapeau to s 19(1): ‘an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation’. The AEAWA contends that the qualifying words ‘that, under section 18, may apply for registration as an organisation’ qualify not only the term ‘an association’ appearing before the parentheses, but also the term ‘enterprise association’ appearing within the parentheses. The UWU contends that the qualifying words modify only the first of these terms – ‘an association’ – and that ‘enterprise association’ inside the parentheses has the meaning given by the definition of that term in s 6 and s 18C(1), unaffected by the qualifying words. If that is right, then as an enterprise association, the AEAWA will be unable to be registered under s 19, and as an enterprise association that is not federally registrable, it will be unable to be registered under s 20.

Resolving the constructional choice – text and context

5    If the chapeau is considered from the point of view of ordinary syntax, it is perhaps more natural to read the qualifying words as applying only to ‘an association’ before the parentheses (here we respectfully differ from Snaden J). That is because parentheses often signify that the words they contain are an aside that is out of the main flow of the sentence. But it is still reasonably open to read the qualifying words the other way, in accordance with the AEAWA’s construction. For the following reasons, in the context of Part 2 as a whole, the AEAWA’s construction is what Parliament intended.

6    Part 2 appears in Chapter 2, which in s 17, the ‘Simplified outline’ of the Chapter, is described as dealing with ‘the types of employer and employee associations that can be registered and the conditions for their registration (see Part 2)’. This does not mention enterprise associations separately. Since they are plainly not employer associations, this implies that enterprise associations are a type of employee association. There are no definitions of ‘employer association’ or ‘employee association’ in the Act that would contradict that implication. As Snaden J explains (at [69]-[73]), those terms therefore carry their ordinary meaning. That meaning must, of course, be understood in the context of the Act.

7    Part 2 is simply titled ‘Registration’. It is broken into four divisions: ‘Division 1—Types of associations that may apply for registration’; ‘Division 2—Registration criteria’; ‘Division 3—Prohibited conduct in relation to formation or registration of employee associations’; and ‘Division 4—Registration process’. It is followed by Part 3 concerning ‘Cancellation of registration’, and Part 4, which merely provides that the powers of the FWC under Ch 2 are exercisable only by the President, a Vice President or a Deputy President.

8    Division 1 commences with s 18, which provides:

Any of the following associations may apply for registration as an organisation:

(a)     a federally registrable association of employers;

(b)     a federally registrable association of employees;

(c)     a federally registrable enterprise association.

9    This section, considered alone, does not say that these three categories of association are mutually exclusive, in the sense (relevantly) that an association that falls under paragraph (c) cannot also fall under paragraph (b). Section 18 does not speak in terms of categories at all; its focus is on individual associations and the characteristics an association must have in order to be able to apply for registration as an organisation. Further, since ss 18A to 18C proceed to set out detailed criteria for what is in each case a ‘federally registrable’ association of the relevant class, and s 18C also gives a definition of ‘enterprise association’, it would be premature to assume that the three classes of associations are mutually exclusive. Whether that is so is likely to depend on the detailed provisions of ss 18A to 18C.

10    We acknowledge that it would not be fatal to the AEAWA’s case to read paragraphs (a), (b) and (c) as mutually exclusive categories anyway, since the AEAWA does not fall into (c) in any event. But we mention the above reading of s 18 because it points away from any assumption that a given association at a given time cannot be both an association of employees and an enterprise association for the purposes of the Act.

11    Turning then to ss 18A to 18C, they are evidently designed to ensure that an association that is eligible to apply to be registered as an organisation under the Act has the requisite qualities to fall under one of the constitutional heads of power that authorises the scheme for which the Act provides. This concern with constitutional validity is explicit in s 18D, which modifies the scope of ss 18A, 18B and 18C depending on various views that might prevail as to the scope of Parliament’s legislative powers.

12    This is important, because it indicates that on a straightforward, linear reading of Part 2, where Div 1 is given a function that accords with its provisions and its place in the Part before Div 2, it is Div 1 that is concerned with limiting the kinds of associations that may apply for registration. The function of Div 2 is then to provide criteria against which the FWC is to assess any given application by an association that, under s 18, may apply for registration. If an association falls into one (or more) of the classes in s 18 as explicated in ss 18A to 18C (modified if necessary by s 18D), then it is eligible to be assessed by reference to the criteria that apply. Division 2 is thus not to be understood as having any function of making an association ineligible to apply after the earlier conferral of eligibility in Div 1. This understanding of the function of each of Div 1 and Div 2 is confirmed by the title of each: ‘Division 1—Types of associations that may apply for registration’; and ‘Division 2—Registration criteria’. Those titles form part of the Act: AI Act s 13(2)(d).

13    Putting s 19(1) in its context in this way demonstrates why the better construction is that advanced by the AEAWA. The conclusion that s 19 and s 20 are complementary follows from the respective functions of each of the Divisions, understood in context. Division 1 describes the kinds of associations that have the necessary constitutional connection to the legislative powers of the Commonwealth Parliament to be capable of registration under the Act, so as to be regulated by it. And of course, in using the terms ‘association of employers’ and ‘association of employees’ and in defining and using the term ‘enterprise association’, Div 1 also confines the Act to its industrial subject matter. Division 1 performs those functions by providing that only associations that fall within the classes it delineates are eligible to apply for registration. Division 2 then sets out what criteria eligible associations must fulfil in order to make it mandatory for the FWC to register them. It is unlikely that Parliament intended that Div 2 should also, in the course of fulfilling that function, further limit the kinds of associations that are eligible to be assessed against those criteria.

14    That is further confirmed by the fundamental canon of construction that the Court ‘should strive, if it is fairly open, to prefer a construction which is harmonious with the other provisions of the legislation’: see e.g. Eremin v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 69 at 75, citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297. Consistently with that, King’s Counsel for the UWU properly accepted that if the choice is between two reasonably open constructions, the one that does not leave a gap or lacuna in the scheme of the legislation is to be preferred. For reasons described by Snaden J at [40], the construction put by the UWU does not give s 19 and s 20, or Pt 2 as a whole, a harmonious operation. The construction put by the AEAWA does.

15    However, for the latter construction no ‘striving’ (or, as Snaden J says, no straining) is required. All that is required is to give s 19(1) an ordinary grammatical meaning that is reasonably open and to read the section as a whole and in its context, including the context provided by the accompanying provisions of s 20.

16    The effect of this reading is that s 19 sets out the criteria for registration of federally registrable associations of employers and federally registrable associations of employees that are not federally registrable enterprise associations, and s 20 does the same for federally registrable enterprise associations. It does this without requiring the defined term ‘enterprise association’ to be read other than in accordance with its definition.

17    This also makes sense at the level of the text of s 19(1) if the words in parentheses are understood as a carve out from the operation of the section, as the AEAWA submitted. For since the term ‘association … that, under section 18, may apply for registration as an organisation’ can only be referring to a federally registrable association of employers, a federally registrable association of employees or a federally registrable enterprise association, it would be incongruous to carve out of that, not the third of these classes of association, but the wider category of any enterprise association; even though that would capture associations that do not fall within the class from which it is carved out. The carve out in the parentheses is better understood as being qualified by the words ‘that, under section 18, may apply for registration as an organisation’, just like the concept from which it is carved out.

18    It might be asked why, if that is its effect, the drafter did not simply use the defined term ‘federally registrable’ to indicate this, including inside the parentheses in the chapeau to s 19(1). The explanation proffered by Senior Counsel for the AEAWA was that the drafter wanted to avoid the incongruity of describing associations as federally registrable in Div 2, when the outcome of the application of the criteria in that Division may be that they are not registered after all. It may also be a product of the drafter’s wish to tie the application of the criteria to s 18, as the provision that confers entitlement to apply for registration, rather than to the definitional provisions of ss 18A to 18C. That wish is expressed in each of s 19(1) and s 20(1).

19    Whatever the reason, it cannot be denied that in s 20, the phrase ‘an enterprise association that, under section 18, may apply for registration as an organisation’ can only be referring to an enterprise association that is ‘federally registrable’ within the meaning of s 18C. This makes it clear that, for whatever reason, the drafter intended to avoid the use of ‘federally registrable’ in Div 2. The equivalent language of s 19(1) should be read in the same way. Nothing, then, turns on the drafter’s choice not to use the defined term ‘federally registrable’ in s 19(1) (or anywhere in Div 2).

Resolving the constructional choice – legislative purpose

20    The above deals with two of the three important matters to be addressed in statutory interpretation, namely text and context. As for the third, purpose, we accept, for the reasons explained by Snaden J at [76] to [81], that the applicant’s construction is more consistent with the purpose that may be drawn from Australia’s signature and ratification of various international conventions. However, that purpose, relevantly expressed as the right to form employee associations, is put at a general level and does not reveal how far the Act might go in pursuing it.

21    Similarly, in the legislation itself, s 5(4) of the Act describes a purpose to promote and protect the economic and social interests of employers and employees though the formation of employer and employee organisations. But as with the international treaties, the broad objectives in s 5 do not shed light on how far the legislature has chosen to go in Part 2 of Chapter 2 in order to effectuate that purpose, or the balance Parliament has decided to strike when reconciling it with other, perhaps competing, objectives: see Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5]-[7] (Gleeson CJ). Those matters are better revealed in Part 2 of Chapter 2 itself.

22    The Part evinces an intention to provide for the registration and regulation of associations of employers and associations of employees. The class of enterprise associations is included in this objective, but is treated separately. As Snaden J explains (at [82]), the purpose of that separate treatment is evident from a comparison of the criteria in s 19 with those in s 20. The latter are less exacting. If an association of employees is eligible to make application for registration as a federally registrable enterprise association, it may take advantage of that. We agree with Snaden J that there is no apparent reason why the legislature would wish to see that associations that do not qualify for that advantage, but otherwise come within the ordinary meaning of the term ‘association of employees’ and are federally registrable in that character, would not be able to apply for registration.

23    We should mention for completeness that the Court was taken through the legislative history of the present provisions, including extrinsic material such as explanatory memoranda, but none of that affected our conclusions above, and it is not necessary to describe it here.

The UWU’s submissions

24    In its submissions, the UWU emphasises the need to give the defined term ‘enterprise association’ its defined meaning. But with respect, that is no answer to the AEAWA’s construction because that construction does give the defined term its defined meaning. King’s Counsel for the UWU sought to characterise the AEAWA’s construction as modifying the meaning of the term, but that is not what it does. It takes the term as it finds it, but reads it together with the rest of s 19(1) so that the provision only applies to federally registrable associations in the defined class of ‘enterprise associations’. This does not modify the meaning of that term; it simply confines the effect of the section to a subset of the associations covered by it. The UWU’s position was concisely captured in the oral submission: ‘we want to preserve the unity of the concept of “enterprise association”, without loading it automatically with federal registrability’ (ts 53). But the construction set out above does not load it ‘automatically’; rather, it gives effect to additional words which, in s 19(1), modify the meaning of the provision as a whole.

25    No doubt recognising the importance of the constructional choice to its argument, the UWU sought to deny its existence, and went so far as to submit that the AEAWA’s reading of s 19(1) was not open. But as explained above at [5], as a matter of ordinary grammatical meaning we do not accept that the AEAWA’s reading was not open. And to the extent that the UWU’s construction relies on the definition of ‘enterprise association’, for the reasons just given it is misconceived.

26    The UWU’s submissions also put considerable emphasis on the proposition, found for example in HFM043 v Republic of Nauru [2018] HCA 37; (2018) 92 ALJR 817 at [24], that the task of construction is to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it. But the construction above means that there is no gap that needs to be remedied and nothing that needs to be repaired. All that need be done is to read the provisions as a whole and harmoniously in their context, consistently with the purpose disclosed by the legislation itself.

27    The UWU also specifically took issue with the proposition that an enterprise association within the meaning of the Act could also be an association of employees within that meaning. But the only textual basis for that submission was that the legislation identifies the two concepts separately. King’s Counsel for the UWU properly accepted that, as a matter of logic, an association can satisfy both the description ‘association of employees’ and the definition of enterprise association. That being so, as outlined above and by Snaden J, the fact that the two concepts are identified separately is readily explicable by the intention, evident from a comparison between the criteria in s 19 and those in s 20, to provide for a less exacting path to registration for enterprise associations.

28    It is consistent with that for an enterprise association that is not federally registrable as such to be able to seek to satisfy the more exacting requirements of s 19, provided it meets the ordinary meaning of ‘association of employees’ and is federally registrable in that character. There is no textual indication that the two concepts are mutually exclusive. To the contrary, the text suggests otherwise: see [9] to [10] above. In any event, the UWU did not rely on the asserted mutual exclusivity as support for its main submission as to the proper construction of Div 1 and Div 2 of Part 2.

Conclusion as to the construction of section 19(1) of the Act

29    For those reasons, we agree with Snaden J that the Full Bench erred in its construction of s 19(1) of the Act, in particular by applying the definition of ‘enterprise association’ to that term where it appears in that provision, without also applying the qualifying words ‘that, under section 18, may apply for registration as an organisation’. We will return to the consequences of that error shortly.

The VAU’s case

30    Turning to the further or alternative case put by the VAU as intervener, we agree with Snaden J, for the reasons his Honour gives, that the differences in the text of s 18B and s 18C of the Act on the one hand, and the legislation under consideration in Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327 on the other hand, are such as to render the opinions of the Full Court in that case inapplicable to the legislation as it now stands. We further agree with Snaden J that the current text of the Act does not lend itself to the construction advanced by the VAU. We would not find that the Full Bench fell into jurisdictional error on the basis that the VAU puts.

Disposition

31    While acknowledging the force of the concerns that Snaden J raises about the proper form of relief here, on balance we consider that the appropriate course is for certiorari to issue to quash both the decision of the Full Bench and that of the Deputy President who decided the matter at first instance. That is the relief that the AEAWA seeks, and to which it has established an entitlement, and we see no discretionary reason not to grant it.

32    The outcome will be that both decisions are quashed. As a result, they are properly to be regarded as no decisions at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [51]-[53] (Gaudron and Gummow JJ, McHugh J agreeing). We have not been directed to any aspect of the Act, or of the Fair Work Act 2009 (Cth), indicating that the decisions would still have some legal effect (the application for summary judgment was brought by the UWU under s 587(1)(c) of the latter Act).

33    Nevertheless, as Snaden J says, the applications that led to the decisions will not be quashed. The AEAWA’s application for leave to appeal from the decision of the Deputy President to grant summary judgment will become incompetent, however, as it will be an application for leave to appeal from a decision that is taken not to have been made. It can effectively be treated as a nullity; whether there is any need for a procedural step to be taken in recognition of that is a matter for the FWC and the parties. But the UWU’s application for summary judgment will stand (the fact that the Deputy President ultimately proceeded on his own motion under s 587(3)(a) of the Fair Work Act so as to remove the need to resolve questions of the UWU’s standing does not change that).

34    So, as is commonplace, the orders of this Court will require the FWC to determine the UWU’s application for summary judgment according to law. That differs from the relief sought by the AEAWA, which was to require the determination of its application for registration according to law. It is the decision to allow the UWU’s application for summary judgment that has been quashed, and that must now be determined in accordance with these reasons. The parties may of course reach an agreement that removes the need for that step, but that is a matter for them.

35    We agree with Snaden J’s observation about costs under s 329 of the Act.

Associate:

Dated:    8 May 2026

REASONS FOR JUDGMENT

SNADEN J:

36    The applicant (the “AEAWA”) is an association whose objects include the promotion of the industrial interests of ambulance employees in Western Australia. In August 2023, it made an application to the second respondent (the “FWC”) for orders under ch 2 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the “Act”); specifically, for an order that it be registered thereunder as an organisation (within the meaning given by the Act to that term). That application was opposed by the first respondent (the “UWU”), which, by an application of its own, sought orders akin to summary judgment; essentially on the footing that the AEAWA was not an association that could be registered under ch 2 of the Act. That (UWU) application succeeded and, although it was given permission to appeal, an appeal by the AEAWA from that decision was dismissed: Ambulance Employees Association of Western Australia v United Workers’ Union [2024] FWCFB 451 (the “Full Bench Decision”).

37    Central to the Full Bench Decision was the FWC’s acceptance that the AEAWA is not an association that is eligible for registration as an organisation. By an application made to this court on 19 March 2025, the AEAWA moves for prerogative relief directed to the Full Bench Decision (and, consequentially, to the FWC’s decision at first instance). It maintains that that central proposition is incorrect; and that, by concluding otherwise, the FWC made an error of jurisdiction, which this court should correct on judicial review.

38    By orders made by consent on 15 May 2025, Victorian Ambulance Union Incorporated (the “VAU”) was granted leave to intervene in the proceeding. For reasons that are different to those advanced by the AEAWA, it also contends that the FWC was wrong to conclude as it did; and that this court should, on judicial review, correct that error by granting the prerogative relief for which the AEAWA moves.

39    For the reasons that follow, the FWC’s conclusion that the AEAWA was not an association eligible for registration as an organisation under the Act was wrong. The error was one of jurisdiction and this court should, accordingly, grant the prerogative relief for which the AEAWA moves.

The statutory framework

40    Chapter 2 of the Act is entitled, “registration and cancellation of registration”. It makes provision for the registration of certain types of associations as “organisation[s]”. Part 2 of ch 2 is entitled “Registration”. It comprises of multiple divisions, div 1 of which is entitled, “types of associations that may apply for registration”. It commences with s 18, which provides (and, at the material time, provided) as follows:

18 Employer and employee associations may apply

Any of the following associations may apply for registration as an organisation:

(a)     a federally registrable association of employers;

(b)     a federally registrable association of employees;

(c)     a federally registrable enterprise association.

41    The concepts to which s 18 refers—“federally registrable association of employers”, “federally registrable association of employees” and “federally registrable enterprise association”—are the subject of elaboration in ss 18A, 18B and 18C respectively. Section 18B provides (and provided) as follows (numbering original):

18B Federally registrable employee associations

(1)     An association of employees is federally registrable if:

(a)     it is a constitutional corporation; or

(b)     some or all of its members are federal system employees.

(3)     An association of employees is not federally registrable if it has a member who is not one of the following:

(a)     an employee;

(b)     a person specified in subsection (4);

(c)     an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee eligible for membership of the association;

(d)     an officer of the association.

(4)     The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

(a)     are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b)     are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c)     are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d)     are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

…

42    Section 18C of the Act provides (and provided) as follows:

18C Federally registrable enterprise associations

(1)     An enterprise association is an association the majority of the members of which are employees performing work in the same enterprise.

(2)     An enterprise association is federally registrable if:

(a)     it is a constitutional corporation; or

(b)     some or all of its members are federal system employees; or

(c)     the employer or employers in relation to the relevant enterprise are constitutional corporations; or

(d)     the relevant enterprise operates principally within or from a Territory; or

(e)     the relevant enterprise is engaged principally in trade or commerce between Australia and a place outside Australia; or

(f)     the relevant enterprise is engaged principally in trade or commerce among the States; or

(g)     the relevant enterprise is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(h)     the relevant enterprise is engaged principally in the supply of postal, telegraphic, telephonic or other like services; or

(i)     the relevant enterprise is engaged principally in banking (other than State banking not extending beyond the limits of a State); or

(j)     the relevant enterprise is engaged principally in insurance (other than State insurance not extending beyond the limits of a State); or

(k)     the relevant enterprise is in Victoria, and the provisions of this Act that would apply to the association (both before and after registration), fall within the legislative power referred to the Commonwealth under the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria.

(3)     An enterprise association is not federally registrable if it has a member who is not one of the following:

(a)     an employee performing work in the relevant enterprise;

(b)     a person specified in subsection (4) performing work in the enterprise;

(c)     an independent contractor performing work in the relevant enterprise who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be:

(i)     an employee who could be characterised in the way mentioned in paragraph (a) of the definition of federal system employee in section 6; and

(ii)     an employee who would be eligible for membership of the association;

(d)     an officer of the association.

(4)     The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

(a)     are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b)     are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c)     are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d)     are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

…

43    Division 2 of pt 2 of ch 2 of the Act is entitled, “registration criteria”. It comprises of ss 19 and 20, which provide (and provided) as follows:

19 Criteria for registration of associations other than enterprise associations

(1)     The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a)     the association:

(i)     is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii)     is an association for furthering or protecting the interests of its members; and

(b)     in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c)     in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d)     in the case of an association of employees—the association has at least 50 members who are employees; and

(e)     the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(f)     the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(g)     the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h)     a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i)     the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

(j)     subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i)     to which the members of the association could more conveniently belong; and

(ii)     that would more effectively represent those members.

(2)     If:

(a)     there is an organisation to which the members of the association might belong; and

(b)     the members of the association could more conveniently belong to the organisation; and

(c)     the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

(3)     Without limiting the matters that the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

(4)     In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

(5)     The FWC must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.

20 Criteria for registration of enterprise associations

(1)     The FWC must grant an application for registration made by an enterprise association that, under section 18, may apply for registration as an organisation if, and only if:

(a)     the association:

(i)     is a genuine association of a kind referred to in paragraph 18(c); and

(ii)     is an association for furthering or protecting the interests of its members; and

(b)     the association is free from control by, or improper influence from:

(i)     any employer, whether at the enterprise in question or otherwise; or

(ii)     any person or body with an interest in that enterprise; or

(iii)     any organisation, or any other association of employers or employees; and

(c)     the association has at least 20 members who are employees; and

(d)     the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(e)     the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(f)     the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(g)     the FWC is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

(h)     a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i)     the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

(1A)     For the purposes of paragraph (1)(b), if a person or body has an interest in the enterprise in question, the FWC may decide that, despite the interest, the association is free from control by, or improper influence from, the person or body.

Note:     The FWC could conclude that the association was free from control etc. by the person if, for example, the nature of the person’s interest was not such as to give the person a major say in the conduct of the enterprise or if the person did not have a significant management role in the association.

(2)     In applying paragraph (1)(d), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

44    Part 3 of ch 2 of the Act is entitled, “Cancellation of registration”. It makes various provision for the circumstances in which the registration of an organisation might be brought to an end. Amongst them is s 30, which relevantly provides (and provided) as follows:

30 Cancellation of registration on technical grounds etc.

(1)     The FWC may cancel the registration of an organisation:

…

(c)     on the FWC’s own motion, if:

…

(v)     the organisation is not, or is no longer, a federally registrable association.

…

45    Section 6 of the Act contains a number of definitions that are relevant to this application:

6 Definitions

…

enterprise means:

(a)     a business that is carried on by a single employer; or

(b)     a business that is carried on by related bodies corporate, at least one of which is an employer; or

(c)     an operationally distinct part of a business mentioned in paragraph (a) or (b); or

(d)     a grouping of 2 or more operationally distinct parts of a business mentioned in paragraph (a) or (b).

Whether bodies corporate are related is to be determined in accordance with the principles set out in section 50 of the Corporations Act 2001.

…

enterprise association has the meaning given by subsection 18C(1).

…

Fair Work Act means the Fair Work Act 2009 and includes regulations made under that Act.

…

federally registrable:

…

(b)     in relation to an association of employees—has the meaning given by section 18B; and

(c)     in relation to an enterprise association—has the meaning given by section 18C.

federal system employee means:

(a)     a national system employee within the meaning of section 13 of the Fair Work Act; or

(c)     an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee who could be characterised in the way mentioned in paragraph (a).

federal system employer means a national system employer within the meaning of section 14 of the Fair Work Act.

…

FWC means the Fair Work Commission.

…

organisation means an organisation registered under this Act.

Note:     Organisations registered under the Workplace Relations Act 1996 immediately before former Schedule 1B of that Act commenced are taken to be registered under that Schedule (and therefore under this Act) (see the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002).

46    Chapter 6 of the Act concerns “membership of organisations”. Amongst its provisions of present relevance is s 171A, which provides as follows:

171A Cessation of membership if member is not an employee etc.

(1)     If a person is a member of an organisation and the person is not, or is no longer:

…

(b)     if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or

(c)     if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);

the person’s membership of the organisation immediately ceases.

(2)     Subsection (1) has effect despite anything in the rules of the organisation.

47    There is one other section of the Act that warrants noting. Section 5 provides (and provided) as follows:

5 Parliament’s intention in enacting this Act

(1)     It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2)     Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3)     The standards set out in this Act:

(a)     ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)     encourage members to participate in the affairs of organisations to which they belong; and

(c)     encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)     provide for the democratic functioning and control of organisations; and

(e)     facilitate the registration of a diverse range of employer and employee organisations.

(4)     It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

(5)     Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.

Note:     The Fair Work Act contains many provisions that affect the operation of this Act. For example, provisions of the Fair Work Act deal with some powers and functions of the Fair Work Commission and of the General Manager. Decisions made under this Act may be subject to procedures and rules (for example, about appeals) that are set out in the Fair Work Act.

Background

48    By the Full Bench Decision, the FWC uncontroversially summarised the matters of relevant background (as they stood in June 2024) as follows:

[3]     The background to the application is as follows. The AEA was formed by a group of paramedics, ambulance officers, transport officers and communications centre staff employed by St John Ambulance Western Australia Limited (St John Ambulance) in around 2014. St John Ambulance is the largest employer of workers engaged in ambulance and patient transport services in Western Australia and is contracted to provide ambulance and patient transport services to the Western Australian government. The AEA became incorporated on 31 October 2014 under the Associations Incorporation Act 1987 (WA) and continues to be incorporated under what is now the Associations Incorporation Act 2015 (WA).

[4]     The eligibility of persons to join the AEA is governed by rules 9 to 12 of its rules. Rule 9 sets out eligibility by “Industry” in the following terms:

Eligibility – Industry rule

The AEAWA shall consist of an unlimited number of members who work as employees in or in connection with the ambulance industry anywhere in the State of Western Australia.

[5]     Rule 10 sets out eligibility by “Occupation” in the following terms:

Eligibility – Occupations rule

The AEAWA shall consist of an unlimited number of members who work as employees in the following occupations anywhere in the State of Western Australia: student ambulance officer, ambulance officer, ambulance paramedic, medic, ambulance driver, communications officer, station manager, trainer, critical care paramedic, clinical support paramedic, community paramedic.

[6]     Rules 11 and 12 [set] out the AEA eligibility of employees and officers of the AEA and independent contractors. The AEA’s rules limit eligibility for membership to persons in Western Australia. The evidence filed by the AEA indicated that it has no plans to operate in any other State or Territory.

[7]     The AEA currently has approximately 1,079 members. At the time of the hearing before the Deputy President, all but three members of the AEA were employed by St John Ambulance. The evidence indicated that those three members had left their employment with St John Ambulance and were now employed performing ambulance work for other employers. The three employees remained members of the AEA despite working for other employers.

[8]     On 15 August 2023, the AEA applied for registration. The application was made by completing a Form F56 entitled “Application by an association of employees (other than an enterprise association) for registration as an organisation”. The application referred to s 18(b) of the RO Act being a reference to a “federally registrable association of employees”. The application did not, on its face, suggest that the AEA was seeking to be registered as a “federally registrable enterprise association” for the purposes of s 18(c) of the RO Act.

The Full Bench Decision

49    Central to the AEAWA’s contention that it was able to apply for registration as an organisation was the proposition that it was a federally registrable employee association. At first instance, it accepted both that it was an “enterprise association” (within the meaning given to that phrase by s 18C(1) of the Act) and that it was not a federally registrable enterprise association. The former was so because the majority of its members were employees of the same enterprise. The latter was so because not all of its employee members were employees of the same enterprise. Those realities accepted, it maintained nonetheless that it was also an association of employees; and, more significantly, a federally registrable association of employees that was capable of being registered in that capacity. That contention was not accepted: the FWC at first instance held that the AEAWA was an enterprise association and that s 19 of the Act had no application to enterprise associations (whether federally registrable or not).

50    On appeal to the full bench, the AEAWA disclaimed the suggestion that it was an enterprise association. It did so on the basis that the VAU now advances in this application: namely, that the requirement in s 18C(1) of the Act that “…the majority of the members [be] employees performing work in the same enterprise” is properly to be understood as a reference to a requirement contained within an association’s rules. It submitted that the section does not call for analysis of an association’s actual membership. Rather, it said, an association would qualify as an enterprise association only if its rules required that a majority of its members be employees who perform work in the same enterprise.

51    That contention was based upon observations made by this court in Australian Education Union v Lawler (2008) 169 FCR 327 (hereafter, “Lawler”; Moore, Lander and Jessup JJ). For reasons that needn’t here be explored, the FWC did not accept it. It concluded (Full Bench Decision, [71]):

…The question of whether an association is an enterprise association for the purposes of s 18C(1) of the RO Act must be assessed by reference to the actual membership of the association rather than the categories of persons eligible to become members. The consequence is that the AEA was an enterprise association at the time its application was dealt with by the Deputy President and, accordingly, not able to be registered under s 19(1). It accepts it was not a federally registrable enterprise association by reason of the operation of s 18C(3)(a) and was not able to be registered under s 20(1) of the RO Act. The Deputy President was correct to find that the AEA could not satisfy the requirements for registration.

52    The full bench of the FWC was alive to the alternative pathway that now features as the AEAWA’s central contention. Toward the conclusion of its reasons, it noted (Full Bench Decision, [72]-[73]):

[72]     The Full Bench raised with the parties whether there is an alternative available construction of the RO Act that might permit the AEA to become registered. At first instance, the AEA contended that the reference to an “enterprise association” in s 19(1) should be read as a reference to a federally registrable enterprise association. If that construction was correct, an association such as the AEA, which is an enterprise association but not a federally registrable enterprise association, could seek registration under s 19(1). Such an association would need to satisfy the additional requirements for registration in s 19(1) but would at least have the potential to become registered.

[73]     Although the AEA made that submission to the Deputy President, neither party embraced the construction on appeal. The parties were correct not to do so. Where the RO Act wishes to refer to a federally registrable enterprise association, it expressly says so. Section 19(1) refers only to an “enterprise association” and not to a “federally registrable enterprise association” and can only sensibly be read as encompassing any enterprise association. Furthermore, s 6 provides that “enterprise association has the meaning given by subsection 18C(1)”. If that definition is applied in s 19(1), the Commission cannot grant an application for registration by any enterprise association under that section even if it is not a federally registrable enterprise association. There is no basis not to apply the definition in the context of s 19(1) and, as a result, the AEA cannot be registered under that section because it is an enterprise association as described in s 18C(1).

The present application

53    The present application is one for relief under s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”). The AEAWA maintains that the Full Bench Decision was a product of jurisdictional error, in that the FWC wrongly construed ss 18B, 18C and 19 of the Act. It moves for relief in the nature of certiorari (to have the Full Bench Decision removed into this court and quashed) and mandamus (to require that the FWC redetermine the AEAWA’s appeal according to law). The application is supported by a solicitor’s affidavit, in which is recorded the grounds upon which the AEAWA moves. Those grounds needn’t be replicated: it suffices to observe that the AEAWA maintains that the relevant provisions of the Act, properly construed, are apt to contemplate that an association might simultaneously be an enterprise association and an employee association; and that the exclusionary reference in s 19 to “an enterprise association” applies only to enterprise associations “…that, under section 18, may apply for registration”. It qualified, it says, as a “federally registrable association of employees” that was capable of being registered under s 19; and it maintains that the FWC was wrong to conclude otherwise (and to permit the summary dismissal of its application for registration on that basis).

54    At this juncture, it is convenient to mention the VAU. It is an association not dissimilar to the AEAWA, save that it is based in Victoria. Like the AEAWA, most—but not all—of its members are employees who perform work in the same enterprise. In April 2024, it made a registration application of its own. The UWU objected to it on grounds equivalent to its successful objection to the AEAWA’s application: it maintained that the VAU was an enterprise association that was ineligible for registration because it was not a federally registrable enterprise association. On 8 May 2025, the FWC agreed to stay the VAU’s application for registration pending the outcome in the present matter.

55    The VAU’s contentions in this matter mirror those that the AEAWA advanced before the full bench (which it does not now press): it maintains that the AEAWA was not an enterprise association at all, because, properly construed, the reference in s 18C of the Act to “the majority of the members” calls for analysis not of the actual human members of an association but, rather, the requirements of its rules. The submission continues: only if an association’s rules contemplate that a majority of its members are to be employees performing work in the same enterprise can the association properly be understood to be an enterprise association.

56    The court’s task is a familiar one of statutory construction. At issue is whether the provisions of pt 2 of ch 2 of the Act, properly construed, are apt to contemplate the registration of an association whose members are mostly (but not solely) employees who perform work in the same enterprise. As might already be appreciated, three questions are posed for the court’s consideration: first, does the AEAWA fall within the statutory conception of an “enterprise association”; second (and if it does), do the relevant provisions contemplate that an association might simultaneously qualify as an enterprise association and as an association of employees; and, third, does s 19 foreclose upon applications for the registration of enterprise associations that are not federally registrable enterprise associations?

57    There is no material dispute about the principles that should guide the court in construing the relevant statutory provisions. The court’s task is to take the words that the provisions employ and ascribe to them meanings that the legislature should be presumed to have intended that they ought to have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

58    That task starts and finishes with a statute’s text, read in its proper context: Federal Commission of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). That context includes the position of the provision as it appears in the statute as a whole: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ). Preference should be afforded to the construction that best achieves the objects of the statute: Acts Interpretation Act 1901 (Cth) (“AI Act”), s 15AA.

59    In divining a legislative intention, the court may have regard to relevant extrinsic materials: AI Act, s 15AB. Instruments of international law might assist in identifying the mischief toward which statutory provisions might be presumed to have been directed: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (hereafter, “Teoh”), 286-8 (Mason CJ and Deane J).

60    At the risk of repetition, the first of the three questions stated earlier arises only by reason of the submissions advanced by the VAU. The AEAWA accepts that it is and was an enterprise association (and, more specifically, an enterprise association that was not a federally registrable enterprise association). The remaining questions—the only questions that arise on the case that the AEAWA advances—turn upon the proper construction of ss 18, 18B and 19 of the Act.

61    The UWU concedes that the errors that the AEAWA and VAU attribute to the FWC would, if they were made, suffice to render the Full Bench Decision a product of jurisdictional error that is amenable to prerogative relief. That concession was properly made and no more need be said of it.

62    It is convenient first to address the case that the AEAWA advances.

The proper construction of pt 2

63    Sections 19 and 20 of the Act do not confer standing to make applications for registration. Rather, they identify the criteria that regulate when the FWC must grant applications validly brought before it. Those criteria differ according to the type of application that is made; but standing to make them is solely the preserve of s 18. It permits application by one of three species of entity: a federally registrable association of employers, a federally registrable association of employees and a federally registrable enterprise association.

64    Sections 19 and 20 of the Act are the only provisions of pt 2 that identify the criteria that must be satisfied in order that the FWC might grant an application brought under s 18. Necessarily, then, they are complementary by operation: s 19 covers applications to which s 20 does not apply; and s 20 covers applications to which s 19 does not apply.

65    With that acknowledged, the attraction of the AEAWA’s construction is apparent. Section 20 stipulates the criteria that apply to applications that are made by enterprise associations that, under s 18, may apply for registration (in other words, federally registrable enterprise associations); and s 19 stipulates the criteria that are applicable to applications of other kinds. Syntactically, the qualifying words in the chapeau to s 19(1)—“…that, under section 18, may apply for registration as an organisation…”—apply equally to both parts of the preceding phrase, “…an association (other than an enterprise association)”. The criteria that the section identifies apply to applications made by associations that:

(1)    under s 18, may apply for registration; and

(2)    are not enterprise associations that, under s 18 of the Act, may apply for registration.

66    On the UWU’s construction of the section—and the construction to which the FWC was drawn (albeit summarily and without the benefit of considered argument)—the chapeau to s 19(1) should be read so as to identify the criteria applicable to applications for registration by associations that, under s 18, may apply for registration; but only if they are not enterprise associations. So to read the section is to apply the qualification that appears after the parenthesis in a way that is arbitrarily selective and untethered to the standard English conventions by which such a qualification should ordinarily be read.

67    That conclusion is not altered by the content of the headings to ss 19 and 20 of the Act. Necessarily, they offer no more than a limited synopsis of the subject matter of the sections: Australian Prudential Regulation Authority v Holloway (2000) 104 FCR 521, 537 [50] (Mansfield J). If anything, they confirm the complementary nature of the provisions.

68    What then arises for the court’s consideration is the more nuanced question: can an enterprise association simultaneously qualify as an association of employees? If ss 18B and 18C are properly understood to create mutually exclusive categories (as the UWU contends), then the proper construction of s 19(1) becomes somewhat moot: if an enterprise association that is not a federally registrable enterprise association is incapable of being a federally registrable association of employees, then it will not have standing under s 18 to apply for registration.

69    Again, that question turns upon the application of orthodox canons of statutory construction. The Act does not define what is or is not meant by the terms “association” and “association of employees”. References to those terms in pt 2 of ch 2 of the Act would, in the usual course, be understood as references to the concepts as they are generally understood according to the ordinary meanings of the words: Masson v Parson (2019) 266 CLR 554, 572 [26] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

70    It is difficult to see how—and the UWU did not contend that—the AEAWA could fall beyond what is ordinarily conceived of as an “association”. It was established as an incorporated association under state legislation. The objects articulated in its rules provide for it to protect and advance its members’ interests, including by taking lawful steps to vindicate their workplace rights, and by advocating for improvements to their wages and conditions.

71    There could be no real doubt that the AEAWA is an association of employees within the ordinary English meaning of that noun phrase. In order, then, that the AEAWA might not be an association of employees of a kind to which s 18B of the Act refers, it would need to be that the employment of that phrase in that section should properly be understood to convey a meaning other than that ordinary English meaning.

72    Why that should be so is not apparent. Had it been the intention of the legislature to exclude “enterprise associations” from what the statute recognises as “associations of employees”, one might expect to have seen it manifest in the language that was employed.

73    Conceptually, all enterprise associations are associations of employees. The former is a species of the latter. Not only are there no contextual cues in the statute or any relevant extrinsic material that suggest to the contrary—that is to say, that suggest the mutual exclusivity upon which the UWU’s contention rests—there is ample reason to incline to the contrary view.

74    The first is to be found in s 5 of the Act. It specifies the Act’s objects: to enhance workplace relations and reduce the adverse effects of industrial disputation; and to “…assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations…”. Those objects are to be achieved, in part, by the setting of certain standards under the Act, which are relevantly recognised as, “…facilitat[ing] the registration of a diverse range of employer and employee organisations”.

75    If pt 2 of ch 2 of the Act were to operate as the UWU contends, the result would be an obvious contraction in the range of employee associations that might qualify for registration. It would exclude from registration associations whose membership happens to predominate within a single enterprise. It would do so no matter how slim that majority might be. Particularly (although not only) in duopolistic industries would such a qualification be potentially significant and limiting. An association with 99 members, 50 of whom are employees of a single enterprise, would be excluded from registration; but would not be if only one of those 50 were to resign. There is no apparent reason of policy that might sensibly underpin such an arbitrary point of distinction.

76    Relatedly, Australia is a state party to several international conventions that express aspirations similar to those that find expression in s 5 of the Act. On 28 February 1973, for example, Australia ratified ILO Convention (No 87) concerning Freedom of Association and Protection of the Right to Organise, adopted 9 July 1948, 68 UNTS 18 (entered into force 4 July 1950), arts 2 and 11 of which provide:

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

…

Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.

77    Similar protections are afforded by the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 22(1) of which provides:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

78    Article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) commits state parties (including Australia) to ensuring:

…[t]he right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.

79    In Teoh, 286-8, Mason CJ and Deane J observed:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute…

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party…at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law… The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then the construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations…

80    Those orthodox propositions of statutory construction date back at least to the observations of O’Connor J in The Jumbunna Coal Mine, NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363. There is no shortage of supportive High Court authority: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 526 [8] (French CJ).

81    As with the statutory objects, the constructional proposition that underpins the UWU’s contention (and the conclusion upon which the Full Bench Decision is premised) sits uneasily with the aspirations that are recorded in the instruments of international law referred to above.

82    Sections 19 and 20 reflect a self-evident justification for the manner in which the Act distinguishes federally registrable enterprise associations from federally registrable associations of employees. The criteria for registration of the former are, for want of a better description, less exacting (at least overall) than those that apply to registration of the latter. An enterprise association need not have as many members and need not establish (even at a general level) the absence of a more effective alternative organisation to which its members might more conveniently belong. So to recognise, though, is not to identify any legislative policy reason why enterprise associations that are not federally registrable should be denied registration altogether. As I have observed, no such reason of policy is apparent.

83    That by itself, however, is not dispositive. As the UWU contended, the court should not strain to remedy what are perceived to be the adverse consequences that arise from a given construction: Peter Greensill Family Co Pty Ltd v Federal Commissioner of Taxation (2021) 285 FCR 410, 442-3 [70] (Davies, Moshinsky and Colvin JJ). There, citing Ganter v Whalland (2001) 54 NSWLR 122, 131 [36] (Campbell J), their Honours noted that courts are “not justified in using an anomaly as a reason for rejecting what otherwise seems the correct construction” lest they “risk taking over the function of making policy choices which properly [belong] to the legislature”.

84    Here, there is no relevant “strain”. Even accepting that another construction might be available, the interpretation of ss 18B, 18C and 19 that the AEAWA prefers cannot be impugned as one that is not reasonably open or is inconsistent with the language that the legislature has seen fit to use: HFM043 v Republic of Nauru (2018) 92 ALJR 817, 820 [24] (Kiefel CJ, Gageler and Nettle JJ). If the text admits of a choice between available constructions, the court’s task is to make one. In that environment, considerations of consequence do no more than confirm what is preferrable, taking account of text, context and purpose.

85    The AEAWA is (and was) an enterprise association (albeit not a federally registrable enterprise association). It is (and was) also an association of employees, some of whose members are (and were) federal system employees. That being so, it is (and was) a federally registrable association of employees. Nothing in s 19(1) precludes its registration and the FWC was wrong to conclude otherwise (and to sanction the summary dismissal of the AEAWA’s application on that basis). The Full Bench Decision was reached in consequence of that error, which the parties have mutually and correctly categorised as one of jurisdiction. Prerogative relief to correct it should issue.

The VAU’s contention

86    Having so concluded, it may be unnecessary to address the contentions advanced by the VAU (which, I note, the AEAWA neither adopted nor disclaimed). Nonetheless and in deference to the submissions that were ably advanced, I would offer the following observations.

87    In Lawler, this court granted relief on judicial review to set aside a decision of what was then the Australian Industrial Relations Commission (the “AIRC”). That decision concerned an application by the Australian Principals Federation (the “APF”) for registration pursuant to the provisions of sch 1B to the Workplace Relations Act 1996 (Cth) (the “WR Act”). Despite opposition by an existing union (the “AEU”), that application succeeded at first instance and a full bench of the AIRC dismissed a subsequent appeal. The APF’s rules contemplated the retention of membership by persons who, although intending to regain employment in a relevant capacity as a school principal, in fact were no longer so employed.

88    In opposition to the APF’s registration, the AEU submitted that registration was not available because, by their terms, the APF’s rules contemplated membership by persons who did not fall within one of the categories for which s 18(1)(b) of sch 1B to the WR Act provided. That section limited registration to associations whose members were employees who (for constitutional purposes) were able to engage in industrial disputes, or otherwise fell within nominated categories materially similar to those now prescribed by s 18B(3) of the Act.

89    The AEU’s contention was that the APF was not, at the relevant time, an association of the kind referred to in s 18(1) of sch 1B to the WR Act because its rules contained no provision for the automatic termination of the membership of any person who had ceased to be employed within a role that fell under the APF’s purview. The result, so the submission continued, was that the APF could not be described as an association consisting only of employees and the categories of persons referred to in the numbered subparagraphs of s 18(1)(b) of sch 1B to the WR Act.

90    After referring to ancestral provisions in earlier legislation and to some authorities that had considered them, Jessup J (with whom Moore J agreed at 331 [2] and Lander J at 340 [29] and 350 [87]) concluded that, properly construed, the references in s 18(1)(b) to “members” were references “…not to the flesh and blood persons who happened to be members of an applicant association at the time of registration, but to the capacity of such an association in accordance with its rules, to accept persons as members”: Lawler, 417 [261] (Jessup J). In reaching that conclusion, his Honour was animated by the prospect that, “[m]erely by ensuring that its actual membership at the point of registration was confined to persons of the kind described in s 18(1)(b), an applicant might, over the long term, accept as members persons who had ceased to be and, for that matter, persons who never were, employees”: Lawler, 417 [261].

91    The VAU submits that a similar construction should be applied to both the equivalent parts of s 18B of the Act (on the one hand) and their facsimiles in s 18C(1) and (3) (on the other). The result, so the contention continues, would be that the reference in s 18C(1) to, “…the majority of the members…” is properly to be understood as a reference to the majority of those whom the association’s rules contemplate may be admitted as members.

92    There are at least two reasons to reject that contention.

93    The first is that the statutory architecture differs markedly from that which this court considered in Lawler. The court there was not concerned with a provision in terms similar to what is now s 18C (or, for that matter, s 18B). Moreover, the very vice that led the court to the conclusions recorded above has since been statutorily addressed. The court’s conclusion was at least partly premised upon the absence of an automatic measure that removed from the ranks of the APF’s membership those who were no longer within the categories of people in respect of whom the statute confined access to registration. That was addressed by the passage of the Act and, in particular, s 171A, which operates to effect precisely the kind of purge whose absence in Lawler was telling.

94    Moreover, s 18(1)(b) of sch 1B to the WR Act employed terms different to those that find expression in s 18B of the Act. Whereas the former spoke of an association whose members “are” within identified categories, the latter is concerned (in the disqualifying sense for which sub-s (3) provides) with an association that “has” members of certain kinds. Although not in any sense definitively, that language perhaps more capably invokes notions of present possession than its predecessor.

95    Second and in any event, the question that confronted the court in Lawler was very different to that which confronts this court now. Section 18(1)(b) of sch 1B to the WR Act identified the totality of the cohort from which an association’s membership might be drawn. By nature, it more easily lent itself to the rules-based analysis that the court preferred than what is now stated in s 18C(1). The present provision—and its reference to the majority of an association’s members—calls attention more readily to the identity of an association’s actual members, rather than to who might be its members from time to time consistently with its rules.

96    Acceptance of the VAU’s contention necessarily means that, in order to qualify as an enterprise association, an association’s rules must require that a majority of members be employees who perform work in the same enterprise. It is difficult to conceive of how such a rule might operate. Perhaps it might operate to prevent the addition of a member who is an employee who performs work in a different enterprise if, by his or her admission, the requisite majority might be lost. But what might occur if that requisite majority were jeopardised by the retirement or automatic purging of an existing member? How might such a rule accommodate the potential need (in order that the majority might be maintained) to terminate the membership of a person who does not feature in the majority? How might the rules select who that person should be? All of these questions have potential answers; but it strikes as quite unlikely—and there is no extrinsic basis for supposing—that the statute was designed to limit its conception of enterprise associations to associations whose rules are directed to answering them.

97    The FWC was correct to reject the contention that the VAU now advances.

Disposition

98    By its originating application, the AEAWA seeks relief in the nature of certiorari directed to both the decision of the FWC at first instance and the Full Bench Decision on appeal, as well as in the nature of mandamus to compel the FWC to determine its substantive registration application according to law.

99    It is to be recalled that the decision at first instance concerned an application made by the UWU for relief in the nature of summary judgment. The AEAWA’s appeal to the full bench concerned the decision to grant the relief for which the UWU applied. Permission to appeal was granted but the appeal was dismissed.

100    Having been granted leave to appeal from the decision at first instance, the only decision of the FWC with any independent operative effect is the Full Bench Decision: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138, 147 [39] (Barker, Rangiah and Wigney JJ); see also, by analogy, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 241-2 [70] (Gageler, Keane and Nettle JJ) and 246-7 [92] (Edelman J).

101    For the reasons outlined above, that decision is a product of jurisdictional error. It should be removed into this court and quashed by means of relief in the form of certiorari. I would grant that relief. There remains an interesting (if largely academic) question concerning the FWC decision at first instance, by which the AEAWA’s substantive registration application was summarily dismissed. Should it, too, be the subject of prerogative relief?

102    There are examples of decisions of this court in which prerogative relief has issued simultaneously to quash tribunal decisions at first instance and on appeal: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (Buchanan, Katzmann and Rangiah JJ); Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) (2022) 291 FCR 93 (Bromberg, Wheelahan and Snaden JJ). That course might most obviously be appropriate when, as in those matters, relief in the nature of prohibition is granted. Where a tribunal, at first instance and again on appeal, is asked and decides to do something that it is not at liberty to do, it might well be appropriate to order not only that those decisions be quashed but also that the tribunal be prohibited from considering further the applications out of which they originated.

103    That is not the circumstance that presents here. There could be no suggestion that the FWC lacks jurisdiction to entertain applications for relief in the nature of summary judgment or appeals from decisions to grant it. The AEAWA’s complaint is not that the FWC was incompetent to do as the UWU requested; it is that, in deciding as it did, it misunderstood the nature of its jurisdiction and, thereby, acted in a manner not authorised by the Act. In that universe, it is difficult, if not impossible, to envisage a role for relief in the form of prohibition (which, in any event, is not listed amongst the relief for which the AEAWA moves).

104    At least insofar as concerns matters in respect of which s 39B(1) of the Judiciary Act confers jurisdiction, certiorari is ancillary to the other forms of relief that ground that jurisdiction (mandamus, prohibition and injunction): Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 90-1 [14] (Gaudron and Gummow JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, 411 [29] (McHugh J). Whereas those other remedies are apt to operate upon the statutory or administrative processes that generate reviewable outcomes, certiorari operates only to quash impugned decisions: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan J, Deane, Toohey, Gaudron and McHugh JJ). It does not determine the petitions out of which such decisions originate.

105    Presently, then, even assuming that certiorari might lie to remove into this court and quash each of the Full Bench Decision and the FWC’s decision at first instance, it would not operate upon the AEAWA’s notice of appeal, nor the UWU’s initial application for relief in the nature of summary judgment. Howsoever anomalously, both would stand undetermined, as though no decision in respect of either had ever been made.

106    Absent relief in the form of prohibition, that paradox—in which the FWC stands charged with determining both an application at first instance and an appeal therefrom—should be avoided. Fortunately, there is a way to avoid it.

107    Prerogative (or constitutional) relief should be granted to set aside the Full Bench Decision and to require that the FWC determine the AEAWA’s appeal according to law. Given the conclusions stated herein, it seems likely that that appeal would be allowed with minimal effort: that is to say, that the first instance decision granting relief in the nature of summary judgment would be set aside and, in lieu of it, the full bench would order that the UWU’s application for relief of that the nature be dismissed. The AEAWA’s application for registration would thereafter proceed as it would have had it not been summarily dismissed. In saying so, I should not be understood to foreclose upon the possibility of other dispositions; but, in the absence of any application for relief in the nature of prohibition, it is unnecessary to do any more than grant relief in the nature of certiorari and mandamus directed to the Full Bench Decision and the appeal to which it related. That is the relief that I would grant.

108    Section 329 of the Act limits the circumstances in which the court might make an award for costs. No such order is sought and none should be made.

Associate:

Dated:    8 May 2026