[2020] FWCFB 5054 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Simplot Australia Pty Ltd
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2020/5404)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 22 SEPTEMBER 2020

Appeal against decision [2020] FWC 3171 of Deputy President Barclay at Hobart on 22 June 2020 in matter number C2018/6054 – arbitration under disputes procedure of a superseded agreement – excess of jurisdiction – appeal upheld – application redetermined and dismissed.

[1] This decision concerns an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) lodged by Simplot Australia Pty Ltd (Simplot) from a decision of Deputy President Barclay made on 22 June 2020. 1 The Deputy President determined that the Commission had jurisdiction to hear and decide an application brought by the Automotive, Food, Metals Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union (AMWU), under s 739 of the Act and the disputes procedure in the AMWU, CEPU and Simplot Australia Pty Limited National Collective Agreement 2014 – 2017 (2014 Agreement).

[2] The respondent to this appeal, Simplot Australia Pty Ltd (Simplot), contends that the Deputy President exceeded his jurisdiction because the 2014 Agreement had been superseded by another enterprise agreement, the AMWU, CEPU and Simplot Australia Pty Limited, Employee National Collective Agreement 2018 – 2021 (2018 Agreement). It submitted that, because the 2014 Agreement is no longer in operation, it has ceased to be a source of authority for the Commission to determine a dispute referred to it under that instrument.

[3] An appeal under s 604 of the Act is an appeal by way of rehearing, however the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. An appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission may otherwise be granted on discretionary grounds.

Background

[4] The 2014 Agreement commenced operation on 5 February 2015. On 29 October 2018, the AMWU filed an application in the Commission under s 739 of the Act for the Commission to deal with a dispute in accordance with the dispute resolution provision in clause 44 of the 2014 Agreement. The dispute concerned Simplot’s refusal to convert two casual employees to permanent positions pursuant to the terms of the 2014 Agreement. On 16 November 2018, the parties participated in conciliation before the Commission but were unable to resolve the dispute. By email dated 26 November 2018, addressed to the Deputy President, the AMWU sought to have the dispute arbitrated and requested that the matter be listed for directions.

[5] On 3 December 2018, Commissioner Harper-Greenwell issued a decision approving the 2018 Agreement, which commenced to operate 7 days later, in accordance with s 54 of the Act. There is no dispute that the 2018 Agreement by its terms covers and applies to the two casual employees who were subject to the AMWU’s application under s 739, and that the scope and application clauses of the 2014 and 2018 Agreements are the same. It is common ground that the 2014 Agreement ceased to operate on 10 December 2018, and that since that time it has not applied to anyone, because s 52 of the Act provides that an agreement can only apply to an employee, employer or employee organisation when it is in operation and s 58 provides that only one enterprise agreement can apply to an employee at a particular time.

[6] After the 2018 Agreement commenced to operate, Simplot submitted to the Deputy President that the Commission no longer had jurisdiction to hear and determine the dispute that had been referred to it under the 2014 Agreement. The Deputy President listed the AMWU’s application for a jurisdictional hearing on 12 March 2019. For reasons that are not apparent, the decision was handed down 15 months later.

[7] In his decision, the Deputy President concluded that the Commission continued to have authority under the disputes procedure in the 2014 Agreement to hear and determine the dispute, because the employees on whose behalf the AMWU had brought the application had an ‘accrued right’ to have their dispute determined. The Deputy President relied on a decision of Deputy President Sams in APESMA v NSW Electricity Networks Operations Pty Limited t/a TransGrid (TransGrid), 2 which concluded that this accrued right survives the cessation of operation of the agreement in question, and that the decision of the Full Bench of the Australian Industrial Relations Commission in Stephenson v Senator the Hon Eric Abetz (Special Minister of State),3 which had reached a contrary conclusion in respect of analogous circumstances under the Workplace Relations Act 1996, was inapplicable to the framework of the current legislation.

[8] Having accepted that the correct approach was that in TransGrid, the Deputy President concluded that clear words would be required to extinguish an accrued right, and that no such words existed.

[9] The Deputy President rejected Simplot’s contention that s 58(1) of the Act, which states that only one enterprise agreement can apply to an employee at a particular time, was fatal to the AMWU’s case. He considered that the ‘particular time’ in the matter before him was the time of the commencement of the proceedings in the Commission. At that time, he reasoned, only the 2014 Agreement applied, and there was nothing in the 2018 Agreement which subsequently revoked or extinguished the parties’ earlier agreement under the 2014 Agreement to have disputes referred to the Commission.

[10] The Deputy President also rejected Simplot’s contention that the AMWU’s position was contrary to s 58(2)(e), which provides that once an agreement has ceased operating it can never operate again. He stated:

‘[22] What then of s 58(e) (sic) which provides that the 2014 Agreement ceases to apply to the employee when the 2018 Agreement came into operation. In so far as the employees are concerned their employment relationship on and from 10 December 2018 was and is governed by the 2018 Agreement. However, the dispute before the commission which deals with matters entirely in the past is governed by the 2014 Agreement. I do not see anything in s 58 which prevents an old agreement from applying to an employee’s employment which predates the commencement of the new agreement. For example, the 2018 Agreement does not have retrospective effect. Accordingly, the 2014 Agreement has some relevance to an employee’s employment, albeit that it must relate to matters prior to the commencement of the new agreement.’

Submissions of the parties

[11] Simplot contended that the Deputy President erred in concluding that there was any ‘accrued right’ of an employee to have an application made under the 2014 Agreement determined by the Commission following the cessation of that agreement’s operation. It said that there was no such right and therefore there was no need for the Deputy President to consider whether any provision of a subsequent agreement or the Act removed that right. Simplot further submitted that the Deputy President’s analysis of the significance of ss 58(1) and 58(2)(e) was erroneous. It said that these errors led the Deputy President to misconstrue the Act and to conclude that he had jurisdiction where none existed.

[12] The AMWU contended that the cessation of operation of the 2014 Agreement did not affect the Commission’s authority to continue to hear its application under that agreement. It submitted that as a general proposition, once a court or tribunal is seized of jurisdiction, it retains it, absent specific legislative or other intervention. The AMWU referred to the power of the Federal Court to hear claims in its accrued or associated jurisdiction even if the claim in its original jurisdiction falls away, and the power of a private arbitrator under a commercial contract to determine a dispute arising under the contract despite the termination of the contract.

[13] The AMWU submitted that the Commission’s jurisdiction to arbitrate a dispute under an enterprise agreement fundamentally depends on consent, not an underpinning document with statutory force, and that the Act does not require that the enterprise agreement through which consent is given to be operative. The AMWU recognised that there must be some source of statutory authority for the Commission to exercise power but contended that this was to be found in ss 738 and 739. Section 738 states that Division 2 of Part 6-2, which allows the Commission to deal with disputes in certain circumstances, applies if a modern award, an enterprise agreement, a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes. Section 739(1) then states that s 739 applies if a term referred to in s 738 ‘requires or allows’ the Commission to deal with a dispute.

[14] The AMWU contended that the reference to ‘enterprise agreement’ in s 738(b) is not confined to an agreement that is in operation. It submitted that s 12 of the Act defines ‘enterprise agreement’ simply as ‘a single enterprise agreement or a multi-enterprise agreement’, and that such an agreement is ‘made’, and comes into existence, when approved by a majority of employees (s 182). It said that at this point the enterprise agreement exists ‘as a thing in fact’ for the purposes of the Act; this must be so, it said, in order that a valid application can be made under s 185 for approval of the agreement by the Commission. It therefore has ‘life and status’ before it is approved by the Commission and before it becomes operative.

[15] The AMWU also submitted that Parliament is presumed to have intended for terms within a given statute to be read consistently, and that it would be impermissible to give the phrase ‘enterprise agreement’ in s 738 a different meaning to that set out above without a clear textual indicator in support of this. It said that neither s 738 nor 739 indicate that the Commission can only deal with a dispute under a term of an enterprise agreement if that agreement is in operation.

[16] The AMWU also contended that a right to an arbitrated outcome of a dispute is as much a right as anything else provided for in an enterprise agreement, and that the legislature is presumed not to have intended to extinguish accrued rights and liabilities. The AMWU submitted that there is no indication in the Act that Parliament intended, through s 58 or elsewhere, to displace the presumption that accrued rights endure.

[17] It was further submitted by the AMWU that successive decisions of the Commission and its predecessor, the Australian Industrial Relations Commission, had concluded that an application brought by an employee under a disputes procedure in an enterprise agreement could be determined by the Commission even after the employment of the employee had ended. In those situations, the enterprise agreement has also ceased to apply to the relevant person, yet the Commission still has jurisdiction to determine the dispute. The AMWU said that if Simplot’s argument on appeal were to be accepted, the correctness of this case law would be called into question.

Consideration

[18] The Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate.

[19] First, the AMWU’s contention that the reference in s 738 to ‘enterprise agreement’ includes an inoperative agreement is insupportable. We accept the AMWU’s argument that an enterprise agreement, once made in the manner contemplated by s 182, is a ‘thing in fact’. However, the existence of a statutory artefact only has the significance that is conferred upon it by the statute. The framework of the Act, and in particular the machinery provisions relating to enterprise agreements found in Part 2-1, recognise coverage, application and operation of enterprise agreements. It also recognises that obligations are not imposed on a person and entitlements are not given to a person by an enterprise agreement unless the agreement applies to the person. Section 52 defines when an enterprise agreement applies to a person. Section 53 explains when an enterprise agreement covers a person. And s 54 sets out when an enterprise agreement is in operation. There is no provision for any subsidiary, extra-operational effect of an enterprise agreement.

[20] Secondly, the special effect of inoperative enterprise agreements for which the AMWU contends would appear to reside uniquely in s 738 of the Act. On the AMWU’s interpretation, the only apparent manifestation of the enduring effect of a non-operational enterprise agreement is that it continues to serve as a jurisdictional foundation for the Commission to determine disputes. This peculiar feature is nowhere mentioned in ss 738 or 739, which address at some length the Commission’s role in dealing with disputes. If enterprise agreements were to have some special, additional effect as a source of authority for the Commission to deal with disputes under enterprise agreements beyond their operational life, one would expect there to be some indication of this in Division 2 of Part 6-2. There is no such indication. Instead, one encounters s 738(c), which concerns a term of a contract or ‘other written agreement’, which can attract the application of the division in relation to disputes about the National Employment Standards or safety net contractual entitlements only. The legislature evidently had in contemplation the relevance for s 738 of ‘written agreements’ with no apparent legal force and confined this to disputes of a certain kind not relevant to present matter. It also chose to say nothing about inoperative enterprise agreements or about agreements that no longer apply to persons in dispute.

[21] Thirdly, the AMWU’s contention that inoperative agreements provide a continuing source of jurisdiction for the Commission to deal with and determine disputes under enterprise agreements that have ceased operation ascribes an incoherent meaning to the concept of ‘operation’. The Act specifies the significance of an enterprise agreement being in operation:

• an agreement cannot apply to a person unless it is in operation;

• an agreement cannot give a person an entitlement, or impose an obligation, unless it is in operation, because operation is a precondition of application; and

• while an agreement is in operation, and applies to a person, rights and obligations may arise under the agreement.

[22] The AMWU contends that, after an agreement ceases to operate, and rights and obligations can no longer arise under it, the Commission can continue to deal with disputes under Part 6-2 and impose binding outcomes. This entails the agreement continuing to have a substantive and substantial effect. It is difficult to distinguish this putative enduring effect of an enterprise agreement from the actual application of the agreement during its period of operation. The AMWU’s argument is, in effect, that although the agreement has ceased to operate under s 54, it continues to operate in practice or effect, only in relation to the resolution of disputes under Part 6-2. The AMWU’s construction would lead to the absurd outcome that the disputes procedure of an inoperative agreement continues to operate in practice, while the rest of the agreement has ceased to operate at all. In this regard, it is important to understand that the effect of the Commission making a determination of a dispute pursuant to a dispute settlement procedure in an enterprise agreement is to extinguish the original cause of action and impose new obligations on the parties in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. 4 Any such continued operation of the agreement would be inconsistent with the notion of the agreement having ceased to operate at all.

[23] Fourthly, the AMWU’s interpretation is incompatible with the provisions of the Act that concern the manner in which rights and obligations are created under an enterprise agreement. Section 51(1) of the Act states that an enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to a person. Section 51(2) provides that an enterprise agreement does not give a person an entitlement unless the agreement applies to the person. An agreement can only apply to person when it is in operation (s 52). The 2014 Agreement does not apply to the employees in question. It does not apply to Simplot either, because the 2018 Agreement, which has the same scope and application clause, wholly replaced it, meaning that since that time the 2014 Agreement has not applied to any of its employees. Section 54 tells us that an agreement that applies to no-one ceases to operate, and s 58 states that it can never operate again. Because the 2014 Agreement is inoperative, and applies to no-one, it does not give a person an entitlement. The employees and the AMWU have no right to ask the Commission to continue to hear or to determine their dispute under the defunct agreement. The role of the Commission in determining a dispute pursuant to a dispute settlement procedure in an enterprise agreement is one of private arbitration and the Commission’s powers depend on the agreement of the parties. 5 If the source of that agreement is an inoperative enterprise agreement which can no longer impose obligations or confer rights on the parties to a dispute, a party cannot rely on its inoperative dispute settlement term as conferring jurisdiction on the Commission to arbitrate the dispute. It follows that if the enterprise agreement has ceased to operate the source of the Commission’s powers as private arbitrator cease to exist. Further, and in any event, a decision of the Commission would be unenforceable against the company: it cannot contravene the enterprise agreement unless the agreement applies to it (s 51(1)).

[24] Fifthly, although the AMWU submitted that the employees had an ‘accrued right’ to have the Commission continue to hear and determine their application under clause 44 of the 2014 Agreement, the legal basis of this notional right was not identified. Certainly, the Act establishes no such right. The fact that in other contexts, courts or arbitrators might retain jurisdiction to determine disputes when their immediate source of power is removed is of no relevance to the analysis of the Commission’s statutory power, which is its only power. For example, the question of whether a private arbitration provision in a commercial contract continues to apply after the termination of the contract depends on whether the parties have, by the language of their contract, manifested an intention for the right to private arbitration to survive the termination of the contract. 6 In contrast and regardless of the intention of the makers of an enterprise agreement, the Act does not permit a person to continue to exercise rights under a dispute settlement procedure (or any other rights) under an enterprise agreement after the agreement has ceased to operate. The cessation of operation of the agreement means those rights no longer exist.

[25] The putative right to have a dispute determined under a superseded, inoperative agreement is to be contrasted with an actual legal right that has vested or ‘accrued’ under an industrial instrument while it is in operation. The contravention of an enterprise agreement while it is in operation can be sued upon for a six year period because of s 544 of the Act. In the present case, the two employees who contend that Simplot wrongfully failed to convert them to permanent employment under the terms of the 2014 Agreement may bring proceedings in a court for breach of s 50, a civil remedy provision, which states that a person must not contravene an enterprise agreement. Similarly, a person who claims to have been underpaid, or whose leave accruals have not been recognised, can bring proceedings against their employment for breach of s 50, even after the cessation of operation of the enterprise agreement. This is possible because s 544 says so, not because of some ethereal principle about the sanctity of ‘accrued rights’.

[26] Importantly for constructional purposes, there are no provisions equivalent to s 544 that preserve the right to bring disputes under defunct agreements to the Commission. The Act simply does not allow for it. The presence in s 544 of an express provision enabling legal action irrespective of the operation of an agreement, and the absence of a provision in the Act to give residual effect to a disputes procedure or other provision in an inoperative agreement, only underscores what in our view is already clear from the provisions mentioned above. Actual rights that have really accrued under an operative agreement that applies to an employer and employees are indeed preserved, and a person can sue for breach of the agreement for a period of six years, regardless of whether the agreement is in operation. The agreement does not confer the right to sue for breach during its operation, after it has expired. That right is given by the Act. The agreement itself however ceases to have operation. No more rights can accrue under it. Wages cannot be earned and leave cannot be accrued. Consultation processes and disputes procedures all fall away. The agreement does not operate, or apply, or have any other ‘effect’.

[27] Sixthly, s 58(1) states that only one enterprise agreement can apply to an employee at a particular time. The agreement that currently applies to the employees in question is the 2018 Agreement, and it is the dispute settlement term in clause 44 of this agreement that is the source of authority for the Commission to determine disputes concerning the employees in question. It is clear that the 2014 Agreement no longer applies to the employees in question, so it is not the case that, on the AMWU’s construction, two agreements would apply at the one time, contrary to s 58(1). Nevertheless, the AMWU’s interpretation confers practical application upon the inoperative agreement at the same particular time as an operative agreement applies to the same employees. This sits uneasily with s 58(1). The Deputy President concluded that ‘the particular time’ in the matter before him was the time of the commencement of the proceedings in the Commission, which was a time when the 2014 Agreement applied and the 2018 Agreement had yet to commence operation. However, that left unanswered the question of what his source of authority was to deal with the dispute under the 2014 Agreement at the time he made his decision, which was after the 2018 Agreement had come into operation and the 2014 Agreement had ceased to operate. The answer to this question is that there was no authority.

[28] At [22] of the decision, extracted earlier, the Deputy President said that the dispute before him, ‘which deals with matters entirely in the past, is governed by the 2014 Agreement’. However, again, the 2014 Agreement did not govern the dispute at the time of the Deputy President’s decision, because it had ceased to operate. The Deputy President further said that he did ‘not see anything in s 58 which prevents an old agreement from applying to an employee’s employment which predates the commencement of the new agreement’. But on any view, an inoperative agreement cannot ‘apply’ to anyone, because the application of an agreement is dependent on its operation (s 52). The 2014 Agreement applied to employees in the past. But it does not apply to anyone now, nor did it apply at the time of the Deputy President’s decision. The Deputy President was not exercising power in the past. He was exercising power in the present. The Deputy President concluded that ‘the 2014 Agreement has some relevance to an employee’s employment, albeit that it must relate to matters prior to the commencement of the new agreement.’ The only relevance the 2014 Agreement had to the employees’ employment was that the employees could sue for breach of that agreement because s 544 expressly allows them to do so.

[29] Simplot contended that the AMWU’s theory of enterprise agreements having ‘effect’ as soon as they are approved by a vote of employees would mean that the Commission could deal with a dispute under an enterprise agreement even before the agreement had been approved by the Commission under s 185. The AMWU recognised that this would be ridiculous and replied that its construction would not allow for this to occur, because an agreement that has never operated at all cannot create any rights or obligations. But if an enterprise agreement can have effect beyond its operational life, why could it not have that same effect between its creation as a ‘thing in fact’ and the start of its operation? The AMWU’s interpretation is not concerned with either operation or application, but with non-operational effect. At the very least, this is a further confounding consideration arising from the AMWU’s interpretation.

[30] There are other difficulties associated with the AMWU’s interpretation. For example, if an enterprise agreement has a post-operational afterlife that sustains the Commission’s jurisdiction to deal with disputes under defunct agreements, for how long does the Commission retain this power? For one generation of an agreement? For several? Or simply indefinitely? And how is the Commission’s determination of a dispute to be enforced at a time when the agreement applies to no-one, and cannot be contravened because of s 51(2)? The AMWU’s construction is innovative, but wrong.

[31] There was argument in the appeal about the significance of the Full Bench decision in Battye v John Holland Pty Ltd. 7 In that matter, Mr Battye’s employment had been subject to an enterprise agreement made in October 2013. In July 2017, he brought a dispute about his classification before the Commission under the disputes procedure in that agreement. A conciliation conference occurred in August of 2017. Mr Battye was subsequently to advise the Commission whether he wished for the dispute to be arbitrated, but this did not occur, and it was not until December 2018 that he contacted the Commission and asked for the matter to be arbitrated. However in the meantime, in May 2018, a new enterprise agreement had been made with the same coverage, and the earlier agreement had ceased to operate. Simplot objected to the Commission determining the matter, and the Commissioner concluded she had no jurisdiction to do so. Mr Battye appealed.

[32] Before the Full Bench, Mr Battye acknowledged that the dispute resolution procedure in the 2013 Agreement could only have been enlivened while the agreement was in operation. He said that he had done so by his application on 27 July 2017 which sought both conciliation and arbitration. 8 The Full Bench disagreed and concluded that, from both the language of the disputes resolution term and the conduct of the parties, there had been a ‘clear bifurcation of the conciliation and arbitration functions of this dispute’, and that Mr Battye had only ever sought conciliation. By the time he sought arbitration, the 2013 Agreement had ceased to operate. The Full Bench stated:

“[23] It is clear that at the time Mr Battye first sought to enliven the Commission’s power to arbitrate under the 2013 Agreement, that agreement had ceased to apply to John Holland and to him. The relevant effect of s.58 of the Act is that, once the 2017 Agreement came into operation on 16 May 2018, the 2013 Agreement ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the 2013 Agreement then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the 2013 Agreement no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term.

[24] It seems to us that in these circumstances the Commissioner plainly reached the right conclusion and there is no warrant for the grant of permission to appeal. Accordingly, we refuse permission to appeal.”

[33] The AMWU contended, quite rightly in our view, that Battye is distinguishable from the present matter, because here the AMWU sought for the Commission to arbitrate the dispute at a time when the 2014 Agreement was still in operation. However, although this is a factual distinction, it does not make any legal difference. The Full Bench in Battye was not suggesting that the Commission would necessarily have power to determine the dispute if Mr Battye had sought arbitration at a time when the earlier agreement was still in operation. It was simply responding to the way in which Mr Battye had put his case.

[34] It is not necessary for us to consider the extent to which our decision in this appeal has implications for the Commission’s case law that has recognised the authority of the Commission to continue to deal with an application of an employee under s 739 after their employment under the agreement has ceased. The Commission’s jurisdiction in such cases will depend on the terms of the enterprise agreement. In many cases, there may be an enduring interpretative dispute about the operation of a provision in the agreement which will survive the dismissal of individual employees, particularly where the application is brought by a union and the agreement confers rights on the union to raise a dispute and have it arbitrated by the Commission.

[35] We appreciate the fact that to bring proceedings in a court is often a long road, and the path of seeking arbitration by the Commission under a disputes procedure in an enterprise agreement is likely often to be a mode of dispute resolution that is simpler and quicker than going to court (although in the present case it has not been quick). Implicit in the AMWU’s contention was that there is policy merit in the outcome that its interpretation would bring about. That may very well be the case. But we are concerned in this matter with jurisdiction, not policy outcomes. The question of whether the Commission has jurisdiction to conduct the review is not affected by considerations of fairness. Jurisdiction either exists or it does not.

[36] We would point out that the parties were free to preserve the earlier dispute, or its further resolution, through the 2018 Agreement. Furthermore, the parties made the 2014 Agreement within the framework of the Act and are assumed to understand the provisions of the Act that give effect to their agreement. Enterprise agreements have a maximum four year nominal life. They may be terminated by agreement before the nominal expiry date by vote. They may be terminated after this time on application. They may be varied. They may be replaced by, or incorporated into, later agreements. Enterprise agreements are not forever, and neither are their disputes procedures. The scheme of the Act is not one which rationally supports the contention that there is an accrued right of dispute resolution under the terms of an inoperative enterprise agreement. If the employees concerned contend that Simplot breached the 2014 Agreement, they may bring proceedings in a court for contravention of s 50 of the Act, because s 544 allows them to do so.

[37] The Commission’s authority to determine a dispute under an enterprise agreement is determined by the Act and the terms of the relevant agreement. The Commission only has the authority conferred on it by statute. It must do what it is required to do, and it can only do what it is allowed to do. It has no inherent jurisdiction. Invocations of policy and fairness cannot create jurisdiction where none exists.

Conclusion

[38] We have decided to grant permission to appeal in the public interest, because the appeal raises matters of general importance. For the reasons above, the Deputy President’s decision was affected by error, because he misconstrued the applicable provisions of the Act and wrongly concluded that he had jurisdiction to determine the application. This was a legal error requiring correction on appeal.

[39] We have decided that it is appropriate to rehear the AMWU’s application in the exercise of our powers on appeal under s 607. For the reasons stated, we determine that the Commission has no authority to deal with the dispute brought to the Commission under s 739 and clause 44 in the 2014 Agreement. The application is therefore dismissed.

[40] We make the following orders:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision ([2020] FWC 3171) is quashed.

(4) The application is dismissed.