Appeal by Uniline Australia Limited - [2016] FWCFB 4969

1

Fair Work Act 2009 
s.604 - Appeal of decisions

Uniline Australia Limited
(C2016/3912)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER RIORDAN MELBOURNE, 25 AUGUST 2016

Appeal against decision [2016] FWC 2973 of Commissioner Roe at Brisbane on 13 May 2016 
in matter number AG2016/634 – Permission to appeal – Notice of employee representational 
rights issued more than 14 days after notification time – whether Notice invalid – whether 
enterprise agreement genuinely agreed – Fair Work Act 2009, ss.173, 174, 181, 185, 186, 
188, 604. 

Decision of Vice President Watson

Introduction

[1] This decision concerns an application for permission to appeal by Uniline Australia 
Limited against a decision of Commissioner Roe handed down on 13 May 2016. The decision of 
Commissioner Roe under s.185 of the Fair Work Act 2009 (the Act) was to reject the approval of 
the Uniline Australia Limited Enterprise Agreement 2016 (the Agreement) on grounds related to 
the timing of the issue of a Notice of Employee Representational Rights (NERR). 

[2] The decision of the Commissioner, based on a previous decision of Vice President 
Hatcher, was that because the Notice of Employee Representational Rights was issued on 
11 February 2016, and this was conceded to be after 14 days from the commencement of 
bargaining in 2014, the ultimate agreement reached between the employer and a majority of its 
employees on 9 March 2016 did not satisfy the legislative requirement that the employer’s 
request for employees to vote on the agreement was made 21 days after the last NERR was 
issued. In other words, the 25 day period between the issuing of the notice and the 
commencement of voting on 7 March did not satisfy the 21 day requirement because the lateness 
of the NERR rendered it invalid and of no effect. There is no clear and simple means of 
remedying the defect. To a lay observer, the proposition need only be stated to demonstrate its 
absurdity. 

[3] The consequence of the decision, apart from subjecting the workplace relations system to 
ridicule, is that the agreement cannot be approved, and the employer (and many others in a 
similar position), must undertake a new process of agreeing to bargain, issuing a new NERR in a 
timely manner and seeking to re-make an agreement. Further, the heightened role of perceived 
technical deficiencies arms those opposed to an agreement with the means to dismantle an 

[2016] FWCFB 4969

DECISION


E AUSTRALIA FairWork Commission




 



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agreement otherwise genuinely agreed. Those charged with scrutinising the pre-agreement steps 
for approval purposes are bound to expose any deficiency. As will become apparent, the result is 
based on a flawed legal analysis and a misapplication of relevant High Court authority. It is well 
established that an act done in contravention of a legislative provision is not necessarily invalid. 
The proper application of the principles for determining validity is at the heart of this matter – not 
merely whether there was non-compliance. In my view, applying the principles correctly leads to 
the conclusion that the decision under appeal should not stand.

[4] At the hearing of the matter on 20 July 2016 Mr B Ferguson of the Australian Industry
Group (Ai Group) appeared on behalf of Uniline Australia Limited (Uniline), with Mr M Wilson. 
The Australian Chamber of Commerce and Industry (ACCI) sought and was granted permission 
to file written submissions in relation to the appeal.  

Background

[5] The Uniline Australia Limited Enterprise Agreement 2011 expired on 21 July 2014. Initial 
discussions regarding a new enterprise agreement occurred in February 2014. Enterprise
agreement negotiations did not occur during 2014 and 2015. The enterprise agreement 
negotiations between Uniline and its employees recommenced in February 2016. 

[6] A NERR was issued on 11 February 2016 in a form consistent with the statutory
requirements. A separate notice to employees stated that Uniline and the Uniline Employee 
Committee were in the final process of negotiations towards a new workplace agreement and 
gave details of the forthcoming vote. The Agreement was made on 9 March 2016. Twenty five of 
the thirty employees who cast a valid vote, voted to approve the Agreement. 

[7] Uniline made an application for approval of the Agreement on 13 May 2016. In
correspondence to Uniline, Commissioner Roe raised a number of concerns about approval 
requirements. The matter was finalised at a hearing on 11 May 2016 at the conclusion of which 
the Commissioner indicated that he did not approve the agreement because Uniline failed to 
establish that it had complied with section 188(a)(ii) of the Act. On 13 May 2016 the 
Commissioner issued a formal decision confirming his conclusion and providing reasons for his 
conclusion. 

[8] In making his decision, Commissioner Roe considered the decision of Vice President 
Hatcher in Transport Workers Union of Australia v Hunter Operations Pty Ltd, and said the 
following in relation to the conclusion reached in that decision: 

“[8] Vice President Hatcher in Transport Workers Union of Australia v Hunter Operations 
Pty Ltd concluded that in order for a Notice to be valid, it must be issued in conformity 
with Section 173(3). As a consequence Section 188(a)(ii) cannot be complied with unless 
the notice has been issued in conformity with Section 173(3). The notice was not issued in 
conformity with Section 173(3) in this case and therefore based upon Vice President 
Hatcher’s reasoning the Agreement has not been genuinely agreed and cannot be 
approved.”

[9] Commissioner Roe found as follows:

“[13] I adopt the reasoning of Vice President Hatcher. I particularly agree with his 
comments about the statutory purpose of the notice as set out in paragraph 78 of his 








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decision quoted earlier. I agree that the statutory purpose of the notice is not met unless 
the notice is given shortly after the notification time. 

[14] For this reason I cannot be satisfied that there is genuine agreement and therefore the 
conditions in Section 186 are not met and I cannot approve the Agreement. The 
application is dismissed.”

Nature of the Appeal

[10] The decision to approve the Agreement involves the application of a number of statutory 
tests, many of which involve the exercise of discretion as described by the High Court in Coal 
and Allied v AIRC.1 In that case Gleeson CJ, Gaudron and Hayne JJ said2:

“"Discretion" is a notion that "signifies a number of different legal concepts". In general 
terms, it refers to a decision-making process in which "no one [consideration] and no 
combination of [considerations] is necessarily determinative of the result." Rather, the 
decision-maker is allowed some latitude as to the choice of the decision to be made. The 
latitude may be considerable as, for example, where the relevant considerations are 
confined only by the subject-matter and object of the legislation which confers the 
discretion. On the other hand, it may be quite narrow where, for example, the decision-
maker is required to make a particular decision if he or she forms a particular opinion or 
value judgment.” (references omitted)

[11] Discretionary decisions are subject to review on the grounds expressed by the High Court 
in House v The King3:

“The manner in which an appeal against an exercise of discretion should be determined is 
governed by established principles. It is not enough that the judges composing the 
appellate court consider that, if they had been in the position of the primary judge, they 
would have taken a different course. It must appear that some error has been made in 
exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous 
or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into 
account some material consideration, then his determination should be reviewed and the 
appellate court may exercise its own discretion in substitution for his if it has the materials 
for doing so. It may not appear how the primary judge has reached the result embodied in 
his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may 
infer that in some way there has been a failure properly to exercise the discretion which 
the law reposes in the court of first instance. In such a case, although the nature of the 
error may not be discoverable, the exercise of the discretion is reviewed on the ground that 
a substantial wrong has in fact occurred.”

[12] Insofar as any aspect of the decision is not properly considered a discretionary decision 
we are required to determine whether the decision is correct4.

[13] The decision of the Commissioner relates to a number of sections of the Act. Because he 
held that s.173(3) had not been complied with, he found that necessarily s.181(2) had not been 
complied with. As a consequence he found that the agreement had not been genuinely agreed to 
by employees covered by the Agreement for the purposes of s.188(a)(ii). Consequently, the 
Commissioner was not satisfied of the requirement to that effect in s.186(2)(a). The conclusion of 
the Commissioner as to the legal effect of non-compliance with s.173(3), for the purposes of the 








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other provisions, is not, in my view, a discretionary decision. The appeal must therefore be 
considered on the basis of whether the Commissioner was correct in his conclusions. In other 
words, if permission to appeal is granted, the Full Bench needs to consider whether non-
compliance with s.173(3) had the effect of the agreement failing the test for genuine agreement in 
s.188(a)(ii).

Permission to Appeal

[14] Pursuant to s.604(1) of the Act an appeal lies against a decision of the Commission with 
permission of the Commission. Permission must be granted if the Commission is satisfied that it 
is in the public interest to do so, but other conventional considerations regarding permission or 
leave to appeal may also found the grant of permission.

[15] In this case Uniline seeks to challenge the interpretation of provisions of the Act in 
relation to s.173(3) which have not been previously considered at Full Bench level. Ai Group and 
ACCI contend that the decision sought to be appealed is causing significant problems for many 
bargaining parties and other enterprise agreements are held up as a result of the decision. The 
circumstances of other cases involve a corrected Notice being issued long after bargaining 
commenced, but well in advance of the 21 day requirement in s.181(2). Uniline submitted:

“7. The Decision is causing significant problems for many bargaining parties. This 
highlights the public interest considerations. The enterprise agreements of a number of Ai 
Group members and other employers are currently held up as a result of the Decision. 
Some of these agreements are the outcome of difficult and lengthy negotiations with 
unions and none of the parties are keen to start bargaining again. The situation that has 
occurred with a number of these companies is that a NERR was issued when bargaining 
commenced, but a minor error was subsequently discovered in the wording of the Notice. 
On the advice of Ai Group or a law firm, another Notice was issued to avoid the 
agreement being rejected by the FWC on the basis of the wording in the Notice. These 
companies have now found that their agreements have been rejected by the FWC due to 
the fact that they issued a second Notice beyond the 14 day period in s.173(3) of the Act. 
Consistent with the Uniline Decision, the approach that Commissioner Roe is taking (and 
perhaps other Commission members) is to advise that the enterprise agreement will be 
rejected if the approval application is not withdrawn and bargaining recommenced.

8. A very large number of enterprise agreements have undoubtedly been made in 
circumstances where the employer has not strictly complied with s.173(3). If 
Commissioner Roe’s interpretation prevails, there would be doubt about the validity of all 
of these agreements, and the entitlements of employees within them.”

[16] ACCI submitted:

“68. The Decision, if allowed to stand, is likely to give rise to considerable inefficiency and 
uncertainty in the bargaining process. It would have the practical effect that a notice of 
employee representational rights issued more than 14 days after the notification time for 
the agreement would be incapable of being remedied through issuing of a replacement 
notice of employee representational rights. 

69. This outcome is particularly problematic in the context of the prescriptive and detailed 
provisions of section 174 which frequently give rise to employer error. This problem was 








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recently acknowledged by the Productivity Commission in its inquiry into the workplace 
relations framework, the final report arising from which included the following 
recommendation and supporting rationale:

Deficiencies in notices of employee representational rights (NERR)

Some participants have raised concerns specifically with the overly prescriptive 
treatment of deficiencies in a NERR (Catholic Commission for Employment 
Relations, sub. 99). This is not isolated to the ‘staple case’. For example, another 
agreement was deemed invalid because the NERR had contained an omission 
reading ‘[Name of employer]’, notwithstanding that the letterhead on the notice 
contained the employer’s name.

In another case, an agreement was rejected because the employer had 
inadvertently issued a NERR template from the FWC website which had not been 
updated, and as such was technically not compliant. According to the employer’s 
HR manager: 

… the substance of the content between the two forms is the same. For 
example, on the old former NERR, one inserted a specific union, i.e., 
HACSU in our case, whereas the new NERR refers to ‘union’. It just 
seems to be bureaucracy at its best. 

At this time, as it came to light, I was speaking with the industrial 
organiser from the union and he said that the Fair Work Commission had 
struck down another eight enterprise agreement applications that week for 
the same reasons and were equally annoyed. (Launceston Chamber of 
Commerce, trans. pp. 114–15) 

A FWC decision invalidating a NERR can particularly delay an agreement 
because the parties must issue a new NERR and wait at least 21 days after 
issuing it before the agreement can be approved by holding another employee
vote (emphasis added). 

One proposed solution is that the FWC should have the legal discretion to decide 
whether deficiencies in the notice should prevent the agreement from being 
approved, rather than simply invalidating the notice and forcing bargaining to 
start over. Indeed, in the ‘letterhead’ case outlined above, the FWC member 
noted: 

If it seemed the Act allowed discretion in relation to the matter, I would exercise 
it; that is, the departure in the content of the notices of representational rights 
from the prescribed form might be considered to be something akin to a misnomer 
of no real consequence, rather than anything that, in a practical sense, alters the 
advice to employees of their rights in such respects. 

In assessing whether the departure was ‘something akin to a misnomer of no real 
consequence’, the FWC should take into account the views of the employer, 
bargaining representatives, the employees to be covered by the agreement, and 
any evidence on whether the deficiency in the NERR had disadvantaged an 








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employee who would be covered by the agreement (for example, by being 
confusing, misleading or intimidatory to the extent that it affected an employee’s 
nomination of a representative). 

Some employee groups opposed this proposal, arguing that any loosening of the 
prescriptive requirements would allow employers to mislead employees as to their 
representational rights, and thus undermine the capacity for unions to act as 
bargaining representatives for employees (Community and Public Sector Union 
(CPSU) (SPSF Group), sub. DR270; Australian Council of Trade Unions 
(ACTU), trans., pp. 88–9). 

However, the Productivity Commission is unconvinced by these arguments. The 
proposed approach would not give employers carte blanche with respect to the 
NERR’s content. Were an employer to issue a NERR which appeared to be 
materially misleading, it is likely that the FWC would reject it. Preventing the 
small possibility that a misleading NERR may slip through the FWC’s discretion 
does not justify the tangible costs and delays to bargaining participants that arise 
from the prescriptiveness of the existing rules.

RECOMMENDATION 20.1 

The Australian Government should amend the Fair Work Act 2009 (Cth) to: 

 allow the Fair Work Commission wider discretion to overlook minor procedural 
or technical errors when approving an agreement, as long as it is satisfied that 
the employees were not likely to have been placed at a disadvantage because of 
an unmet procedural requirement. 

 extend the scope of this discretion to include minor errors or defects relating to 
the issuing  or content of a notice of employee representational rights.

70. The Productivity Commission is correct in identifying that cases of non-compliance 
with requirements related to the notice of the employee representational rights are not 
isolated. A keyword search of the Fair Work Commission’s decision data base for 
decisions relating to notice of employee representational rights returns 122 results. Prior 
to the Decision it is likely that a large volume of employers will have sought to remedy 
non-compliance through issue of another notice of representational rights. While calling 
out the “tangible costs and delays to bargaining participants that arise from the 
prescriptiveness of the existing rules” and making recommendations to address this, in 
making its recommendation it is apparent that the Productivity Commission’s 
understanding was that an invalidly issued notice of employee representational rights 
could be remedied by issuing another one.  This is evident by its statement that “[a] FWC 
decision invalidating a NERR can particularly delay an agreement because the parties 
must issue a new NERR and wait at least 21 days after issuing it before the agreement can 
be approved by holding another employee vote”.

71. However if the Decision is permitted to stand, it is apparent that such a remedy will 
not be available. In particular, the Decision would have the effect that a notice of 
representational rights issued more than 14 days after the notification time would be 
invalid, including any replacement notice that sought to correct a deficiency in the 








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original notice. This raises the question of how parties should proceed in these 
circumstances.”

[citations omitted]

[17] In my view this matter has broad implications for parties undertaking enterprise 
bargaining including those who may have modified a NERR at the commencement of bargaining
in a way that would affect its validity on prevailing authorities. It is not a matter that is confined 
to one employer and one agreement. The appeal raises issues that have not been considered at 
Full Bench level and involves the construction of various sections of the pivotal enterprise 
agreement provisions of the Act. It is not appropriate that consideration of the central issue raised 
by this appeal be dodged or avoided. In my view it is clearly in the public interest that this issue 
be considered at Full Bench level and it is in the public interest to grant permission to appeal.

The Basis for the Decision

[18] The extracted parts of the Commissioner’s decision quoted above establish that approval 
was denied because the Commissioner found, on the facts of this case that the NERR was issued 
well after the notification time for the agreement, being the time the employer agreed to bargain 
for the agreement in February 2014. This was found to not comply with s.173(3) which requires 
the employer to give the notice as soon as practicable, and not later than 14 days, after the 
notification time for the agreement. As I have also noted in the extracts above, the Commissioner 
expressly relied on a previous decision of Vice President Hatcher in which the Vice President 
considered the same matter in a different context. The reasoning of the Commissioner and the 
Vice President is conveniently set out in the following extract from the Commissioner’s decision:

“[6] The issue in contention in this case is whether or not Section 188(a)(ii) has been 
complied with or in other words whether Section 181(2) has been complied with.

“181 Employers may request employees to approve a proposed enterprise 
agreement

(1) An employer that will be covered by a proposed enterprise agreement may 
request the employees employed at the time who will be covered by the 
agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the 
last notice under subsection 173(1) (which deals with giving notice of employee 
representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees 
vote by ballot or by an electronic method.

[7] The decision in Peabody Moorvale established that the notice specified in Section 
173(1) is not a valid notice unless the content requirements in Section 174 have been 
complied with. Section 173 includes other requirements for the notice including when the 
notices must be given which is specified in Section 173(3). This is governed by the 
notification time which is also referred to in Section 173(1). 

“173 Notice of employee representational rights

Employer to notify each employee of representational rights








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(1) An employer that will be covered by a proposed enterprise agreement that is 
not a greenfields agreement must take all reasonable steps to give notice of the 
right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the 
agreement; or 
(b) a majority support determination in relation to the agreement comes 
into operation; or 
(c) a scope order in relation to the agreement comes into operation; or 
(d) a low-paid authorisation in relation to the agreement that specifies the 
employer comes into operation.

Note: The employer cannot request employees to approve the agreement under 
section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 
days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under 
subsection (1) in relation to a proposed enterprise agreement if the employer has 
already given the employee a notice under that subsection within a reasonable 
period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be 
given.”

[8] Vice President Hatcher in Transport Workers Union of Australia v Hunter Operations 
Pty Ltd concluded that in order for a Notice to be valid, it must be issued in conformity 
with Section 173(3). As a consequence Section 188(a)(ii) cannot be complied with unless 
the notice has been issued in conformity with Section 173(3). The notice was not issued 
in conformity with Section 173(3) in this case and therefore based upon Vice President 
Hatcher’s reasoning the Agreement has not been genuinely agreed and cannot be 
approved. 

[9] The reasoning of Vice President Hatcher was as follows:

“[73] Peabody Moorvale was concerned with whether non-compliance with the 
form and content requirement for Notices prescribed by s.174(1A) meant that the 
Notice was invalid. Section 174(1A) provides:








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Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and 
(b) not contain any other content; and 
(c) be in the form prescribed by the regulations.”

[74] The Full Bench held that non-compliance resulted in invalidity. Its reasoning 
included the following (footnotes omitted):

“[14] What then are the consequences of providing a Notice which is 
different, either in content or form, from the Notice prescribed in the 
Regulations? As the High Court said in Project Blue Sky v Australian 
Broadcasting Authority (Project Blue Sky), an act done in breach of a 
condition regulating the exercise of a statutory power is not necessarily 
invalid and of no effect:

“Whether it is depends upon whether there can be discerned a 
legislative purpose to invalidate any act that fails to comply with 
the condition. The existence of the purpose is ascertained by 
reference to the language of the statute, its subject matter and 
objects, and the consequences for the parties of holding void every 
act done in breach of the condition.”

[15] While there is no decisive rule that can be applied to determine 
legislative purpose the decided cases provide some guidance in analogous 
circumstances. A textual indicator which is always of significance is the 
mode of expression in the provision in question. As Spigelman CJ 
observed in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd: 
‘Substantial indeed often, but not always, determinative, weight must be 
given to language which is in mandatory form’.

[16] The word ‘must’ in s.174(1A) is language in mandatory form. A 
similar conclusion, albeit in a different context, was reached by the High 
Court in SAAP v Minister for Immigration and Multicultural and 
Indigenous Affairs. In that case the court was construing s.424A of the 
Migration act 1958 (Cth) which provides: 

“Applicant must be given certain information.

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers 
appropriate in the circumstances, particulars of any information 
that the Tribunal considers would be the reason, or a part of the 
reason, for affirming the decision that is under review; and 
(b) ensure, as far as is reasonably practicable, that the applicant 
understands why it is relevant to the review; and 
(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:








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(a) except where paragraph (b) applies - by one of the methods 
specified in s.441A; or 
(b) if the applicant is in immigration detention - by a method 
prescribed for the purposes of given documents to such a person 
...” (emphasis added)

[17] The use of the words ‘must give’ was described by various members 
of the Court as ‘imperative’. As McHugh J put it:

“... the assumption that no breach of s.424A occurs if the applicant 
has otherwise been given procedural fairness overlooks the 
imperative nature of the section. Nothing in the section suggests 
that fairness in the way in which the Tribunal observes its 
statutory obligation is an implied limitation on its operation. The 
section describes a procedural step that, if enlivened by the 
circumstances of the case, the Tribunal is required to take in every 
case. Further, the mandatory nature of the obligation in 
s.424A(2)(b) points to the conclusion that the failure to provide in 
writing to the applicant particulars of the adverse material and the 
invitation to comment upon it amounts to a breach of s.424A ...

Because the language of s.424A is imperative, failure to comply 
with the obligation to provide the applicant with particulars of 
adverse information in writing constitutes a breach of that section 
... There was some debate before this Court as to whether the term 
‘must’ in s.424A(1) necessarily imposed a mandatory requirement 
to provide the information in writing in all circumstances. 
However, in the absence of any qualifying terms, the natural 
meaning of the section is that the Tribunal is compelled in all 
circumstances to provide the information in writing. This is so, 
even if the Tribunal puts the information to the applicant at an 
interview or when the applicant appears before the Tribunal to 
give evidence and present arguments. Such a construction is 
consistent with the purpose of the section to accord the applicant
procedural fairness in the conduct of the review.”

[18] Subsection 174(1A) uses language in mandatory form and goes to 
some length to make it clear that there can be no departure from the 
content or form of the Notice prescribed in the Regulations. As mentioned 
earlier, s.174(1A) provides that a Notice must contain the prescribed 
content, must not contain any other content and must be in the form 
prescribed. 

[19] The clear and unambiguous meaning of the words of s.174(1A) is 
entirely consistent with the context and mischief to which the provision is 
addressed.”

[75] In identifying the “context and mischief” referred to, the Full Bench 
discussed the significance of the Notice as earlier quoted, and after considering 
the circumstances in which s.174(1A) was enacted concluded that: “The language 








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of s.174(1A), the context and legislative purpose all support the proposition that a 
failure to comply with the provision goes to invalidity”.

[76] Like s.174(1A), s.173(3) is expressed in mandatory language. Not only is the 
word “must” used to convey the requirement that the Notice must be given as 
soon as practicable after the notification time, but also the expression “no later 
than” is used to introduce the 14-day requirement. That expression, read in the 
context of the subsection as a whole, must be read as meaning something 
equivalent to “in no circumstances after”. No other provision of the Act allows or 
accommodates any extension to the time allowed by s.173(3). It is not an 
irregularity capable of being waived under s.586(b). The language of s.173(3) 
therefore strongly points to invalidity being the consequence of a failure to 
comply.

[77] One important contextual consideration supports this conclusion, and that is 
that there is no separate sanction for contravention of s.173(3). It is not a civil 
remedy provision. No other remedy for contravention is identifiable. Therefore 
unless non-compliance with s.173(3) resulted in the invalidity of the Notice and 
any subsequent enterprise agreement being rendered incapable of approval, it 
would become in substance voluntary and without practical utility. That cannot 
have been intended by the legislature.

[78] An interpretation of s.173(3) which requires strict compliance is consistent 
with the statutory purpose of the Notice as identified in Peabody Moorvale. It 
would ensure that employees are informed at the earliest practicable time of the 
fact that bargaining is occurring and their entitlement to representation in that 
process. An alternate construction, whereby the Notice could be given at any time 
without adverse consequences provided that this occurred 21 days before a vote to 
approve the enterprise agreement occurred, would have potential consequences 
which would be destructive of the Notice’s statutory purpose. It might mean that 
bargaining for an enterprise agreement is well advanced or even completed before 
all employees are advised of the fact that bargaining is occurring and are made 
aware of the means by which they may participate and be represented in that 
bargaining process. If, for example, an employer agrees to negotiate in response to 
a claim for an enterprise agreement made by a relevant union, the late provision of 
the Notice may mean that any employees who are not members of that union may 
not be aware that bargaining is occurring or that they may be individually 
represented in such bargaining before the negotiations have substantially 
progressed or have finished. Similarly if an employer initiates bargaining with 
employees directly, and any employees who are union members are not advised 
from the outset through the Notice that they are entitled to have their union 
represent them in the bargaining, the result may be that bargaining proceeds 
without that union being involved contrary to the representational entitlement of 
the union members.

[79] I conclude therefore that in order for a Notice to be valid, it must be issued in 
conformity with s.173(3). In respect of the bargaining which has occurred 
between Hunter Operations and the TWU, no valid Notice can now be issued, and 
no enterprise agreement which might ultimately emerge from that bargaining 
would be capable of approval. In those circumstances, the making of a bargaining 








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order could serve no possible purpose. That would be so even if a bargaining 
order could require that a Notice be issued.”

[citations omitted]

[19] The Commissioner adopted the reasoning of Vice President Hatcher and particularly the 
comments about statutory purpose in [78] in reaching his conclusion that s.188(a)(ii) had not been 
met.

The Issue for Determination

[20] In this case the decision of the Commissioner, relying on the views of the Vice President, 
is that the consequence of a failure to comply with s.173(3) is that the NERR issued in February 
2016 was invalid and of no effect. Therefore there could not be compliance with s.181(2) because 
no valid NERR had been issued.

[21] Unfortunately it is not uncommon for courts and tribunals to be called upon to consider 
the consequences of non-compliance with a statutory requirement when exercising administrative 
functions. The leading case on such matters is the High Court decision in Project Blue Sky v 
Australian Broadcasting Authority.5 That case stands for the proposition that an act done in 
breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of 
no effect. This case requires an analysis of the legal principles arising from Project Blue Sky and 
an application of those principles to the circumstances of this case.

Project Blue Sky – Differentiating non-compliance and invalidity

[22] Project Blue Sky considered the question whether a program standard, known as the 
Australian Content Standard, made by the respondent, the Australian Broadcasting Authority 
("ABA"), is invalid. The appellants contended that it is invalid because it gives preference to 
Australian television programmes contrary to Australia's obligations under the Australia New 
Zealand Closer Economic Relations Trade Agreement ("the Trade Agreement") and the Trade in 
Services Protocol to the Trade Agreement ("the Protocol"). The appeal was brought against an 
order of the Full Court of the Federal Court of Australia (Wilcox and Finn JJ, Northrop J 
dissenting) which set aside an order made by Davies J in the Federal Court. The order made by 
Davies J declared that the Australian Content Standard was invalid to the extent that it was 
inconsistent with the Trade Agreement and the Protocol. By a majority of 4-1, the High Court 
held that the Standard was unlawfully made but was not invalid and allowed the appeal.

[23] The majority of the High Court (McHugh, Gummow, Kirby And Hayne JJ) summarised
the principles for determining invalidity of an act done in breach of a statutory requirement as 
follows:

“Does the failure to comply with s 160 mean that cl 9 of the Australian Content Standard 
is invalid?

91. An act done in breach of a condition regulating the exercise of a statutory power is not 
necessarily invalid and of no effect. Whether it is depends upon whether there can be 
discerned a legislative purpose to invalidate any act that fails to comply with the 
condition. The existence of the purpose is ascertained by reference to the language of the 
statute, its subject matter and objects, and the consequences for the parties of holding void 
every act done in breach of the condition. Unfortunately, a finding of purpose or no 








[2016] FWCFB 4969

13

purpose in this context often reflects a contestable judgment. The cases show various 
factors that have proved decisive in various contexts, but they do no more than provide 
guidance in analogous circumstances. There is no decisive rule that can be applied; there 
is not even a ranking of relevant factors or categories to give guidance on the issue. 

92. Traditionally, the courts have distinguished between acts done in breach of an 
essential preliminary to the exercise of a statutory power or authority and acts done in 
breach of a procedural condition for the exercise of a statutory power or authority. Cases 
falling within the first category are regarded as going to the jurisdiction of the person or 
body exercising the power or authority. Compliance with the condition is regarded as 
mandatory, and failure to comply with the condition will result in the invalidity of an act 
done in breach of the condition. Cases falling within the second category are traditionally 
classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said "a 
clause is directory where the provisions contain mere matter of direction and nothing 
more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between 
circumstances which are of the essence of a thing required to be done by an Act of 
Parliament, and clauses merely directory". As a result, if the statutory condition is 
regarded as directory, an act done in breach of it does not result in invalidity. However, 
statements can be found in the cases to support the proposition that, even if the condition 
is classified as directory, invalidity will result from non-compliance unless there has been 
"substantial compliance" with the provisions governing the exercise of the power. But it is 
impossible to reconcile these statements with the many cases which have held an act valid 
where there has been no substantial compliance with the provision authorising the act in 
question. Indeed in many of these cases, substantial compliance was not an issue simply 
because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the 
statutory provision in that case: 

"substantial compliance with the relevant statutory requirement was not possible. 
Either there was compliance or there was not." 

93. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v 
Fullwood in criticising the continued use of the "elusive distinction between directory and 
mandatory requirements" and the division of directory acts into those which have 
substantially complied with a statutory command and those which have not. They are 
classifications that have outlived their usefulness because they deflect attention from the 
real issue which is whether an act done in breach of the legislative provision is invalid. 
The classification of a statutory provision as mandatory or directory records a result 
which has been reached on other grounds. The classification is the end of the inquiry, not 
the beginning. That being so, a court, determining the validity of an act done in breach of 
a statutory provision, may easily focus on the wrong factors if it asks itself whether 
compliance with the provision is mandatory or directory and, if directory, whether there 
has been substantial compliance with the provision. A better test for determining the issue 
of validity is to ask whether it was a purpose of the legislation that an act done in breach 
of the provision should be invalid. This has been the preferred approach of courts in this 
country in recent years, particularly in New South Wales. In determining the question of 
purpose, regard must be had to "the language of the relevant provision and the scope and 
object of the whole statute". 








[2016] FWCFB 4969

14

An act done in breach of s 160 is not invalid

94. Section 160 proceeds on the hypothesis that the ABA has power to perform certain 
functions and directs that it "is to perform" those functions "in a manner consistent with" 
the four matters set out in the section. In the present case, for example, s 158(j) as well as 
s 122 authorised the making of a standard relating to the Australian content of television 
programs. Thus, the making of an Australian content standard was not outside the powers 
granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in 
breach of the Act. The fact that s 160 regulates the exercise of functions already conferred 
on the ABA rather than imposes essential preliminaries to the exercise of its functions 
strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended 
to invalidate any act done in breach of that section. 

95. That indication is reinforced by the nature of the obligations imposed by s 160. Not 
every obligation imposed by the section has a rule-like quality which can be easily 
identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a 
manner consistent with: 

 the objects of the Act and the regulatory policy described in s 4; 
 any general policies of the Government notified by the Minister under s 161; 
 any directions given by the Minister in accordance with the Act. 

In particular situations, it is almost certain that there will be room for widely 
differing opinions as to whether or not a particular function has been carried out 
in accordance with these policies or general directions. When a legislative 
provision directs that a power or function be carried out in accordance with 
matters of policy, ordinarily the better conclusion is that the direction goes to the 
administration of a power or function rather than to its validity. 

96. Furthermore, while the obligations of Australia under some international conventions 
and agreements are relatively clear, many international conventions and agreements are 
expressed in indeterminate language as the result of compromises made between the 
contracting State parties. Often their provisions are more aptly described as goals to be 
achieved rather than rules to be obeyed. The problems that might arise if the performance 
of any function of the ABA carried out in breach of Australia's international obligations 
was invalid are compounded by Australia being a party to about 900 treaties. 

97. Courts have always accepted that it is unlikely that it was a purpose of the legislation 
that an act done in breach of a statutory provision should be invalid if public 
inconvenience would be a result of the invalidity of the act. Having regard to the 
obligations imposed on the ABA by s 160, the likelihood of that body breaching its 
obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are 
invalid, it is likely to result in much inconvenience to those members of the public who 
have acted in reliance on the conduct of the ABA. 

98. Among the functions of the ABA, for example, are the allocation and renewal of 
licences and the design and administration of price-based systems for the allocation of 
commercial television and radio broadcasting licences. It is hardly to be supposed that it 
was a purpose of the legislature that the validity of a licence allocated by the ABA should 
depend on whether or not a court ultimately ruled that the allocation of the licence was 
consistent with a general direction, policy or treaty obligation falling within the terms of 








[2016] FWCFB 4969

15

s 160. This is particularly so, given that the "general policies of the Government notified 
by the Minister under section 161" unlike the "directions given by the Minister in 
accordance with this Act" are not required to be publicly recorded and that even those 
with experience in public international law sometimes find it difficult to ascertain the 
extent of Australia's obligations under agreements with other countries. In many cases, 
licensees would have great difficulty in ascertaining whether the ABA was acting 
consistently with the obligations imposed by s 160. Expense, inconvenience and loss of 
investor confidence must be regarded as real possibilities if acts done in breach of s 160 
are invalid. 

99. Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty 
on the ABA, an act done in breach of its provisions is not invalid. 

100. In a case like the present, however, the difference between holding an act done in 
breach of s 160 is invalid and holding it is valid is likely to be of significance only in 
respect of actions already carried out by, or done in reliance on the conduct of, the ABA. 
Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and 
therefore unlawful. Failure to comply with a directory provision "may in particular cases 
be punishable". That being so, a person with sufficient interest is entitled to sue for a 
declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain 
an injunction restraining that body from taking any further action based on its unlawful 
action.”

[citations omitted]

[24] Significantly, the outcome in Project Blue Sky was that the relevant act done in clear and 
direct contravention of a legislative provision was held to be valid. Project Blue Sky has been 
applied in numerous other cases where non-compliance with a statutory requirement has 
relevance to the validity of subsequent acts.

The Application of Project Blue Sky to this Case

[25] This case involves the application of the Project Blue Sky test as enunciated above to the 
facts and circumstances of this case. It is necessary to determine whether it is a purpose of the 
Fair Work Act 2009 that the provision of a NERR after the expiry of the 14 day period in s.173(3) 
(and therefore in breach of the provision) is invalid and of no force or effect for the purposes of 
other provisions of the Act. This task involves a consideration of the language of the relevant 
provision and the scope and object of the whole statute.

[26] I commence by a consideration of the objects of the legislation and the objects of the
relevant Part of the Act. The general object of the Act in s.3 is expressed in understandably 
general terms. Paragraph (f) refers to achieving productivity and fairness through an emphasis on 
enterprise level collective bargaining underpinned by good faith bargaining obligations and clear 
rules governing industrial action. The objects of Part 2-4 are set out in s.171 as follows:

“Objects of this Part

The objects of this Part are:








[2016] FWCFB 4969

16

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

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

(i) making bargaining orders; and

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

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

[27] In my view, these objects generally discourage an overly technical approach, provided the 
objects of fairness are not compromised.

[28] There are a number of relevant provisions of the Act that relate to the treatment of non-
compliance with s.173(3). Subsection 173(1) is an obligation on an employer to take all 
reasonable steps to give notice of the right to be represented by a bargaining representative to 
each employee who will be covered by the agreement and is employed at the notification time. It 
is important in my view that the requirement is not expressed in absolute terms, but rather to take 
all reasonable steps. Nor is there a requirement to notify all employees who vote on the 
agreement. There is no obligation to give a notice to employees engaged after the notification 
time and before the vote. As negotiations can be lengthy and turnover of labour can be 
significant, this implies that the requirement is not in strict and absolute terms. It is also relevant 
that the notice does not, of itself, create rights of representation. It provides employees who may 
not be familiar with provisions of the Act information concerning their rights, prior to them 
making a decision to vote on an agreement.

[29] The notification time in s.173(2) is expressed as arising from four alternative events. It is 
not clear whether more than one notification time can arise from the separate alternatives, or from 
multiple triggers of the same nature. The wording of the provision in referring to “The
notification time for a proposed agreement is the time when: …” suggests a one off event, 
however I am not persuaded that the legislation precludes multiple notification times if an event 
occurs a number of times or more than one trigger is activated. In MUA v Maersk6 a Full Bench 
of this Commission considered circumstances where two NERRs were issued some 34 months 
apart. The second notice covered a wider scope of employees. It was common ground in the case 
that the second notice was valid. The Full Bench agreed with the parties on that point. In my view 
a practical interpretation would suggest that the definition of notification time does not preclude 
multiple notification times.

[30] Subsection 173(3) is expressed in mandatory terms subject to the proviso in s.173(4) that 
there is no obligation if an earlier notice within a reasonable period has been given. This also 
suggests a practical and flexible approach to the interpretation of the requirement, rather than a 
strict, technical test.

[31] Pursuant to s.181(2), a request to vote on an agreement must not be made until at least 21 
days after the day on which the last notice under subsection 173(1) is given. This suggests that 
NERRs can be given on separate dates. It would appear that the object of the provision is that a 








[2016] FWCFB 4969

17

reasonable period should elapse between employees being advised of their rights and being asked 
to vote, so that they can realistically access advice and representation. Twenty one days is 
regarded by the legislature as sufficient. This requirement is expressed in absolute terms because 
a failure to comply with s.181(2) is a necessary element of genuine agreement in s.188.

[32] For the purposes of determining whether genuine agreement exists there is no 
corresponding requirement that the notice be issued within the 14 days required by s.173(3). 
However there is a further discretionary element of the test if the Commission has reasonable 
grounds for believing that the agreement has not been genuinely agreed: s.188(c). It would appear 
that any matter that bears on the genuineness of agreement could be raised in the context of that 
consideration. There is no basis to confine the scope of this provision to exclude pre-approval 
steps.  

[33] The “basic rule” for agreement approval in s.186 is that the Commission must approve an 
agreement if the requirements in ss.186 and 187 are met. The strict nature of this requirement 
suggests that compliance with the specified tests in these two sections is the only consideration
that stands in the way of agreement approval. Put another way, if the statutory tests are met, the 
Commission is obliged to approve the agreement. Such a legislative regime does not permit 
variations to the legislative tests.

[34] In the Hunter Operations case, Vice President Hatcher advanced a number of reasons for 
forming his view that the legislature intended that a failure to provide a NERR within fourteen 
days of the notification time meant that the NERR issued subsequently was invalid, of no force or 
effect and rendered it impossible for s.181(2) to be complied with. It is suggested that if the late 
notice is not invalid, compliance with s.173(3) is of no consequence, and effectively becomes 
voluntary. He said: “One important contextual consideration supports this conclusion, and that is 
that there is no separate sanction for contravention of s.173(3). It is not a civil remedy provision. 
No other remedy for contravention is identifiable. Therefore unless non-compliance with s.173(3) 
resulted in the invalidity of the Notice and any subsequent enterprise agreement being rendered 
incapable of approval, it would become in substance voluntary and without practical utility. That 
cannot have been intended by the legislature.”

[35] With respect to the Vice President, I disagree. The most relevant textual consideration is 
the consequence the legislature itself has chosen for a breach of s.173(3). The legislature chose no 
direct consequence. It did not make compliance a requirement for genuine agreement, as it could 
have. It did not make a breach subject to a civil penalty, as it could have. It may be a 
discretionary factor in reaching a conclusion that the agreement was not genuinely agreed. Such a 
conclusion would depend on the circumstances. A delay that impacts on accessing rights before a 
vote is taken may be significant. Equally it may not be. It is entirely logical and appropriate that 
the legislature would leave such matters to be considered on their actual circumstances rather than 
adopt an automatic heavy sanction by implication alone. Other remedies may be available as 
postulated in Project Blue Sky. In the current context these include making bargaining orders to 
require compliance with good faith bargaining requirements in s.229. 

[36] Leaving the consequences of a late notice to be considered in their specific circumstances 
is consistent with a simple, flexible and fair framework. Imposing a strict requirement that the 
legislature itself chose not to adopt could be described as complex, rigid and inequitable. It can 
also be described as entering the legislative role by adding to the consequences that the legislature 
did not deem fit to create.








[2016] FWCFB 4969

18

[37] A necessary part of the analysis required by Project Blue Sky is the consequence of 
holding that a late notice is invalid. It is unclear what may be required to remedy the defect. If a 
notice is provided late and a subsequent agreement is rendered to be incapable of approval, as 
occurred in this case, what is an employer to do? Does it purport to start bargaining again by 
artificially agreeing to bargain and contending that it did not do so earlier or that its earlier 
agreement should be ignored? If an employer discovers a minor defect in the notice it issues, as is 
apparently a relatively common occurrence, is it at liberty to provide a correct notice later and 
continue the bargaining process? Must it also undertake the charade of ending bargaining before 
pretending to start the process again by agreeing to bargain? Will the artificiality of such 
manoeuvres stand up to scrutiny when challenged? Will the outmoded notions of genuine 
industrial disputes and the requirement of genuine withdrawal of claims such as were considered 
by the High Court in Blackburn’s case7 rear their ugly heads again? It will be recalled that in that 
case the High Court held that “just as a dispute must be a genuine dispute, so a withdrawal must 
be a genuine withdrawal and not made merely pro forma for the purpose of endeavouring to 
remove the matter in dispute from the jurisdiction of the court or conciliation commissioner by 
making it appear that the dispute is at an end.” 

[38] What legislative purpose could be served by requiring parties to go through the artificial 
procedure of pretending to stop bargaining and pretending to agree to bargain afresh? I am 
unaware of any rational purpose that could be achieved by requiring such steps to be taken. None 
has been advanced.

[39] Far from these circumstances indicating that the legislature could not have intended any 
other consequence of the late provision of a notice than invalidity, I would contend the opposite. 
In legislation in which enterprise bargaining is a centrepiece and the legislature intends to have a 
simple, flexible and fair framework for agreement making and approval, how could the 
legislature have intended to push the parties into such a senseless morass? 

[40] Vice President Hatcher also said that “an interpretation of s.173(3) which requires strict 
compliance is consistent with the statutory purpose of the Notice as identified in Peabody 
Moorvale. It would ensure that employees are informed at the earliest practicable time of the fact 
that bargaining is occurring and their entitlement to representation in that process. An alternate 
construction, whereby the Notice could be given at any time without adverse consequences 
provided that this occurred 21 days before a vote to approve the enterprise agreement occurred, 
would have potential consequences which would be destructive of the Notice’s statutory purpose. 
It might mean that bargaining for an enterprise agreement is well advanced or even completed 
before all employees are advised of the fact that bargaining is occurring and are made aware of 
the means by which they may participate and be represented in that bargaining process.” 

[41] With respect to the Vice President, this proposition builds on the terms of the legislation 
rather than reflects them. Under the legislation, a bargaining process can occur within a matter of 
weeks. An employer can develop a proposed agreement, communicate its proposal to employees, 
give employees the requisite notice, and after 21 days ask them to vote on it. Unless there are 
reasonable grounds for believing that the employees have not genuinely agreed, (and all other 
approval requirements are met) the Commission must approve the agreement and clearly the 
statutory purpose is met. A more lengthy bargaining process where employees are notified of 
their representation rights a little more than 21 days before being asked to vote is no different. 
Employees may have a limited window to seek representation because they were unaware of their 
rights previously. But they have the same opportunity that the legislature regards as sufficient for 








[2016] FWCFB 4969

19

the purposes of genuine agreement. It seems quite an overstatement to suggest that a late notice
is inconsistent with the statutory purpose.

[42] The Vice President goes on to say: “If, for example, an employer agrees to negotiate in 
response to a claim for an enterprise agreement made by a relevant union, the late provision of the
Notice may mean that any employees who are not members of that union may not be aware that 
bargaining is occurring or that they may be individually represented in such bargaining before the 
negotiations have substantially progressed or have finished. Similarly if an employer initiates 
bargaining with employees directly, and any employees who are union members are not advised 
from the outset through the Notice that they are entitled to have their union represent them in the 
bargaining, the result may be that bargaining proceeds without that union being involved contrary 
to the representational entitlement of the union members.” 

[43] Again, with respect, this passage builds in hypothetical notions of possible unfairness 
without paying due regard to the quite prescriptive requirements for approval that the legislature 
has adopted. The interpretation applies tests for approval that the legislature did not specify. In 
the hypothetical examples, employees may become aware of their rights late in the piece. But 
they have the right to seek representation, the representative has the right to make representations 
to the employer and require the employer to bargain in good faith, and if they ultimately do not 
agree with the employer they have the right to vote against approval and campaign to others to 
vote in a similar manner. The circumstances are no different to a short process that commences a 
month before a vote and would clearly comply with the legislative requirements.

[44] It is not necessary for the determination of this matter to consider the rationale of the five 
member Full Bench in Peabody Moorevale. Although there is an overlap in the relevant 
provisions of the Act, that case concerned a different legislative obligation and depends on those 
different circumstances. However I would observe that the Full Bench decision appears to omit 
necessary elements of the analysis required by Project Blue Sky and the issue of variations in the 
content of a NERR is expected to be considered by a Full Court of the Federal Court in the near 
future. Clearly, the provisions in question should be the subject of sensible reform having regard 
to the intended purpose of the provisions and the practical operation of the current provisions.

[45] Having regard to the language of the relevant provisions and the scope and object of the 
whole statute, it is clear in my view that it is not a purpose of the Act that a late issuing of a 
NERR, in breach of s.173(3), results in the NERR being invalid. Such a conclusion is readily 
apparent from a full consideration of the wording of various provisions of the Act invoked in this 
matter, the objects of the relevant parts of the Act and the practical consequences of the 
alternative interpretations.

Conclusion

[46] In my view, the issue involved in this case cries out for a common sense approach. The 
legislation encourages enterprise bargaining and agreement making. It is intended to provide a 
simple, flexible and fair framework for agreement making and the facilitation of enterprise 
agreements. The proposition that a notice issued more than 14 days after the commencement of 
bargaining advising employees of their representation rights renders an agreement, otherwise 
genuinely agreed, to be incapable of approval is demonstrably inconsistent with the statutory 
scheme. Indeed such a conclusion in my view is the very antithesis of a simple, flexible and fair 
framework. The employees may already know of their representation rights and may already have 
made decisions in accordance with their rights. They may have expended much time and 








[2016] FWCFB 4969

20

resources to agreeing on the content of an agreement. A common sense interpretation gives 
weight to such considerations. A conclusion of automatic failure of a test based on a technicality 
fails the legal test and produces a nonsensical outcome.

[47] To suggest that in these circumstances the entire process is flawed and the only way that 
an agreement can be approved is for bargaining to be ended, recommenced and repeated through
the device of the employer re-agreeing to bargain, is equivalent to requiring the parties to enter 
the theatre of the absurd.

[48] Relevant High Court authority deals with situations such as this. Properly applied, it 
results in a finding that the late notice is not invalid and the agreement does not automatically fail 
an essential test for approval. The lateness of the notice may be relevant to whether the agreement 
has in fact been genuinely agreed under s.188(c). Such a consideration requires a full and 
objective analysis of the actual circumstances, rather than an automatic failure on the grounds of a 
technicality as was held in this case.

[49] I would grant permission to appeal and allow the appeal. I would remit the matter to 
Commissioner Roe to determine the matter on the basis that the test in s.188(a)(ii) is met and to 
consider whether the other legislative tests for agreement approval are satisfied. 

Decision of Deputy President Gostencnik and Commissioner Riordan 

Introduction

[50] We have had the opportunity of reading a draft of the reasons for decision of Vice 
President Watson but we are unable, with respect, to join in them. 

[51] This is an appeal by Uniline Australia Limited (Appellant) for which permission is 
necessary from a decision of Commissioner Roe to dismiss an application made by the Appellant 
under s.185 of the Fair Work Act 2009 (Act) to approve the Uniline Australia Limited Enterprise 
Agreement 2016 (Agreement).8 The background to this appeal is sufficiently set out in the 
decision of the Vice President and we do not repeat it but add the following. 

[52] On one view of the factual matrix, the Appellant initiated or agreed to bargain for a 
proposed enterprise agreement in about February 2014. A notification time for the proposed 
agreement thereby came into existence but a notice of employee representational rights (Notice) 
was not then given to each relevant employee as required by s.173 of the Act. Following some 
initial discussions the Appellant does not appear to have taken any step to further progress 
bargaining for the proposed agreement throughout the remainder of 2014 and for the whole of 
2015. 

[53] By its inactivity over this prolonged period, it might be said that the Appellant withdrew 
from bargaining and therefore bargaining for the proposed agreement stopped. By its Notice 
given on or about 11 February 2016, the Appellant might be taken to have initiated bargaining for 
the proposed agreement. A notification time would come into existence. It might therefore have 
been open to us to grant permission to appeal, to uphold the appeal and to quash the decision not 
to approve the Agreement on the basis that the Commissioner was mistaken as to the facts and the 
question whether the Notice given on 11 February 2016 was given outside of the time prescribed 
in s.173(3) of the Act did not arise.








[2016] FWCFB 4969

21

[54] That this was a possible construction of the facts in this case was put to the Appellant at 
the beginning of the hearing of this appeal, but the Appellant did not agree. It contended that an 
employer could not unilaterally withdraw from bargaining and thereby no longer agree to bargain 
and that the Appellant did not at any stage since February 2014 not agree to bargain.9 The view 
expressed by the Appellant is a subjective one. It might nevertheless have been open to infer that 
by its inactivity, the Appellant no longer wanted and therefore no longer agreed, to bargain. 
However as the matter was not fully argued before us and the evidentiary material before the 
Commissioner was in an insufficient state to form a concluded view about the objective facts and 
any inference that might be drawn. We take the matter no further. 

Decision at first instance

[55] The Commissioner dismissed the application to approve the Agreement because he was 
not satisfied that the Agreement has been genuinely agreed to by the employees covered by the 
Agreement as required by s.186 (2)(a) of the Act. This was because the Commissioner was not 
satisfied that the condition in s.188(a)(ii) (which requires satisfaction that the Appellant had 
complied with subsection 181(2)) had been met.  In so doing the Commissioner adopted the 
reasoning in Transport Workers Union of Australia v Hunter Operations Pty Ltd.10 In Hunter, 
Vice President Hatcher reasoned that a Notice given outside of the time prescribed in s.173(3) of 
the Act was not a valid Notice with the consequence that the Fair Work Commission 
(Commission) could not be satisfied that an enterprise agreement made in the circumstances was 
genuinely agreed to by the employees covered by the agreement because it could not be satisfied 
that the employer had complied with subsection 181(2) as required by  s.188(a)(ii) of the Act.

[56] We consider that this is correct and our reasons for that view follow below.

The Appeal

[57] By its Notice of Appeal lodged on 30 May 2016 the Appellant sets out a number of 
grounds for appeal which need not be repeated but in essence they all concern the question 
whether the Commissioner erred in his interpretation of relevant statutory provisions contained in 
the bargaining and agreement making regime established by Part 2 – 4 of Chapter 2 of the Act 
and in particular those provisions concerning the giving of a Notice and whether relevant 
employees genuinely agreed to the Agreement. As in his reasoning the Commissioner applied the 
decision in Hunter, the Appellant also challenges the correctness of that decision so far as it is 
relevant to the issues in this appeal. 

[58] The Appellant says that on a proper construction of the relevant provisions of the Act, that 
a Notice was issued to employees outside of the time prescribed in s.173(3) is not a basis to not 
approve the Agreement.

[59] The Appellant submitted that contrary to the reasoning at [78] in Hunter, which was 
adopted by Commissioner Roe, the 21 day period referred to in s.181(2) should be viewed as 
adequately reinforcing the statutory purpose of the Notice. It submitted that if this was not 
intended to be sufficient protection it is difficult to see what work there would be for the 
provision to do.  It submitted that employees and unions have the ability to utilise the good faith 
bargaining provisions of the Act to ensure that they are not excluded from participating in 
bargaining as a consequence of any delay in the issuing of a Notice.








[2016] FWCFB 4969

22

[60] The Appellant submitted that references to the “last notice” and “the agreement” in 
s.181(2) obviously contemplate that more than one Notice may be given during bargaining for the 
same agreement. It submitted that the requirement in s.181(2) is referred to in the Note in 
s.173(2) of the Act and that consistent with the wording in s.181(2), the Note refers to the “last 
notice”. The Appellant argued that this reinforces the fact that more than one Notice may be 
given during bargaining for the same agreement, without any alteration to the “notification time”. 
An obvious example of circumstances where more than one Notice might be issued during 
bargaining would be where an error is discovered in the wording of the original Notice, and a 
further Notice is issued to correct the error. Another example might be where one of the parties 
decided to pursue an agreement within a broader scope than that which was specified in an earlier 
Notice and the employer issued a new Notice to all employees within the broader scope. 

[61] The Appellant submitted that the requirement to comply with s.181(2) is expressly dealt 
with in s.188(a) of the Act, which makes it clear that the enterprise agreement has not been 
genuinely agreed to by the employees if s.181(2) has not been complied with.

[62] The Appellant says that if Parliament intended the consequences of failure to comply with 
s.173(3) to be the same as failure to comply with s.181(2), s.173(3) would have been referred to 
in s.188(a) of the Act. Accordingly, so the argument proceeds, it can be safely assumed that there 
was no such intent and non-compliance with s.173(3) was intended to be addressed under 
s.188(c).

[63] It is plainly the case that the Commissioner did not turn his attention to s.188(c) of the 
Act.  His decision not to approve the Agreement was solely based on whether the employer had 
complied with s.181(2) for the purposes of assessing whether the Agreement had been genuinely 
agreed to by the employees covered by the Agreement having regard to one of the conditions of 
satisfaction set out in s.188(a)(ii) of the Act. We will deal with s.188(c) later in these reasons.

[64] The essential facts on which the Commissioner relied are not in issue and the controversy 
raised by the appeal is one of statutory construction.

Construction principles

[65] The task of ascribing meaning to the words of the statute is concerned with interpreting 
the relevant statutory provision(s) consistently with the intended purpose or objects of the 
legislature as disclosed by the text of the statute and begins with an examination of the ordinary 
grammatical meaning of the words used in the context of the statute as a whole in which they 
appear. This point was made clear in the joint judgment of (McHugh, Gummow, Kirby and 
Hayne JJ) Project Blue Sky v Australian Broadcasting Authority11 wherein their Honours said:

“The primary object of statutory construction is to construe the relevant provision so that it 
is consistent with the language and purpose of all the provisions of the statute. The 
meaning of the provision must be determined "by reference to the language of the 
instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos (1955) 
92 CLR 390 at 397, Dixon CJ pointed out that "the context, the general purpose and 
policy of a provision and its consistency and fairness are surer guides to its meaning than 
the logic with which it is constructed". Thus, the process of construction must always 
begin by examining the context of the provision that is being construed.”12








[2016] FWCFB 4969

23

[66] The point was also made long ago, as is clear from the following passage of the judgment 
of Dixon J (as he was then) in R v Wilson; Ex parte Kisch:13

“The rules of interpretation require us to take expressions in their context, and to construe 
them with proper regard the subject matter with which instrument deals and the objects it 
seeks to achieve, so as to arrive at the meaning attached to them by those who use 
them.”14

[67] Section 15AA of the Acts Interpretation Act 190115 (AI Act) also makes it clear in 
interpreting a statute regard must be had to the purpose or object underlying the statute (whether 
that purpose or object is expressly stated in the statute or not) and that a construction that would 
promote its underlying purpose or object is to be preferred to a construction that would not 
promote that purpose or object. 

[68] The AI Act also deals with the extent to which extrinsic material may be called upon to 
aid the interpretation of a statute as follows: 

“15AB Use of extrinsic material in the interpretation of an Act

(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any 
material not forming part of the Act is capable of assisting in the ascertainment of 
the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning 
conveyed by the text of the provision taking into account its context in the 
Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision 
taking into account its context in the Act and the purpose or 
object underlying the Act leads to a result that is manifestly 
absurd or is unreasonable.

(2) Without limiting the generality of subsection (1), the material that may be 
considered in accordance with that subsection in the interpretation of a provision 
of an Act includes:

(a) all matters not forming part of the Act that are set out in the document 
containing the text of the Act as printed by the Government Printer;

(b) any relevant report of a Royal Commission, Law Reform Commission, 
committee of inquiry or other similar body that was laid before either House 
of the Parliament before the time when the provision was enacted;

(c) any relevant report of a committee of the Parliament or of either House of 
the Parliament that was made to the Parliament or that House of the 
Parliament before the time when the provision was enacted;

(d) any treaty or other international agreement that is referred to in the Act;








[2016] FWCFB 4969

24

(e) any explanatory memorandum relating to the Bill containing the provision, 
or any other relevant document, that was laid before, or furnished to the 
members of, either House of the Parliament by a Minister before the time 
when the provision was enacted;

(f) the speech made to a House of the Parliament by a Minister on the occasion 
of the moving by that Minister of a motion that the Bill containing the 
provision be read a second time in that House;

(g) any document (whether or not a document to which a preceding paragraph 
applies) that is declared by the Act to be a relevant document for the 
purposes of this section; and

(h) any relevant material in the Journals of the Senate, in the Votes and 
Proceedings of the House of Representatives or in any official record of 
debates in the Parliament or either House of the Parliament.

(3) In determining whether consideration should be given to any material in 
accordance with subsection (1), or in considering the weight to be given to any 
such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning 
conveyed by the text of the provision taking into account its context in the 
Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without 
compensating advantage”.16

[69] In their  joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd17, Brennan 
CJ and Dawson, Toohey and Gummow JJ observed:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts 
Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies 
to ascertain the mischief which a statute is intended to cure. Moreover, the modern 
approach to statutory interpretation (a) insists that the context be considered in the first 
instance, not merely at some later stage when ambiguity might be thought to arise, and (b) 
uses "context" in its widest sense to include such things as the existing state of the law and 
the mischief which, by legitimate means such as those just mentioned, one may discern 
the statute was intended to remedy. Instances of general words in a statute being so 
constrained by their context are numerous. In particular, as McHugh JA pointed out in 
Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read 
in the light of the mischief which the statute was designed to overcome and of the objects 
of the legislation, they may wear a very different appearance. Further, inconvenience or 
improbability of result may assist the court in preferring to the literal meaning an 
alternative construction which, by the steps identified above, is reasonably open and more 
closely conforms to the legislative intent”.18

[70] In Re Australian Federation of Construction Contractors; Ex parte Billing19 the Court 
observed: 








[2016] FWCFB 4969

25

“. . . Reliance is also placed on a sentence in the second-reading speech of the Minister 
when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 
15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to 
that speech for the purpose of departing from the ordinary meaning of the text unless 
either the meaning of the provision to be construed is ambiguous or obscure or in its 
ordinary meaning leads to a result that is manifestly absurd or is unreasonable”.20

[71] A summary of the relevant principles is contained in the joint judgment of  Hayne, 
Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory 
Revenue21 as follows:

“This Court has stated on many occasions that the task of statutory construction must begin 
with a consideration of the text itself. Historical considerations and extrinsic materials 
cannot be relied on to displace the clear meaning of the text. The language which has 
actually been employed in the text of legislation is the surest guide to legislative intention. 
The meaning of the text may require consideration of the context, which includes the 
general purpose and policy of a provision, in particular the mischief it is seeking to 
remedy”.22 [Footnotes omitted]

[72] In Saeed v Minister for Immigration and Citizenship23, French CJ, Gummow, Hayne, 
Crennan and Kiefel JJ said: 

“As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that 
when it is said the legislative "intention" is to be ascertained, "what is involved is the 
'intention manifested' by the legislation." Statements as to legislative intention made in 
explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the 
need to carefully consider the words of the statute to ascertain its meaning.

In R v Bolton; Ex Parte Beane the question was whether a statutory provision concerned 
with “visiting forces” applied to deserters from the armed forces of the United States. 
Mason CJ, Wilson and Dawson JJ said:

[T]he second reading speech of the Minister … quite unambiguously asserts that 
Pt III relates to deserters and absentees whether or not they are from a visiting 
force. But this of itself, while deserving serious consideration, cannot be 
determinative; it is available as an aid to interpretation. The words of a Minister 
must not be substituted for the text of the law. Particularly is this so when the 
intention stated by the Minister but unexpressed in the law is restrictive of the 
liberty of the individual. It is always possible that through oversight or 
inadvertence the clear intention of the Parliament fails to be translated into the text 
of the law. However unfortunate it may be when that happens, the task of the 
Court remains clear. The function of the Court is to give effect to the will of 
Parliament as expressed in the law.

Regard was had by the Full Court in this case to what was said in Re Bolton; Ex 
Parte Beane. Nevertheless, it is apparent that the Court did not consider the actual 
terms of s 51A and its application to the provisions of the subdivision. As was 
pointed out in Catlow v Accident Compensation Commission it is erroneous to 
look at extrinsic materials before exhausting the application of the ordinary rules 
of statutory construction.








[2016] FWCFB 4969

26

It may be accepted that the context for the enactment of s 51A was provided by 
the decision in Ex parte Miah and that s 51A was an attempt to address the 
shortcomings identified in that decision. Resort to the extrinsic materials may be 
warranted to ascertain that context and that objective, although it is hardly 
necessary to do so. But that objective cannot be equated with the statutory 
intention as revealed by the terms of the subdivision. The question whether s 51A 
in its operation has the effect contended for, of excluding the natural justice 
hearing rule, is to be answered by having regard, in the first place, to the text of s 
51A and the provisions with which it interacts. The questions which, in turn, are 
raised about the operation of s 51A, it will be seen, are not answered by anything 
said in the extrinsic materials. This is explicable. The decision in Ex parte Miah, 
which s 51A addressed, was not concerned with the application of s 57 of the 
subdivision to offshore visa applicants”.24 [Footnotes omitted]

[73] In their joint decision in JJ Richards and Sons Pty Ltd v Transport Workers’ Union of 
Australia25 Lawler VP and Bissett C reviewed some of the relevant authorities and then usefully 
summarised the relevant principles (which we respectfully adopt) as follows:

“[29] Drawing these principles together, the task of statutory interpretation is concerned 
with ascertaining the intention of the legislature as manifested by the text of the 
legislation. Context (using that word in its widest sense to include such things as the 
existing state of the law and the mischief which, by legitimate means, one may discern the 
statute was intended to remedy) and the purpose or object underlying the legislation must 
always be considered. These must be considered in the first instance, not merely at some 
later stage when ambiguity might be thought to arise. The text of a provision, read in 
context and having regard to the object and purpose of the provision, is always the surest 
guide. Moreover, the context, the general purpose and policy of a provision and its 
consistency and fairness are surer guides to its meaning than the logic with which it is 
constructed. Resort to explanatory memoranda and other extrinsic material may only be 
had for the purposes stated in s.15AB(1)(a) and (b) of the Acts Interpretation Act 1901. 

[30] It is erroneous to look at extrinsic materials before exhausting the application of the 
ordinary rules of statutory interpretation. Statements as to legislative intention made in 
explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the 
need to carefully consider the words of the statute to ascertain its meaning. Section 15AB 
does not permit recourse to explanatory memoranda or other extrinsic material for the 
purpose of departing from the ordinary meaning of the text unless either the meaning of 
the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to 
a result that is manifestly absurd or is unreasonable”.2627

[74] To this we would add the observations of Flick J in J.J. Richards & Sons Pty Ltd and 
Another v Fair Work Australia and Another28 in which his Honour discussed “at least”29 three 
long established and fundamental principles to statutory construction as follows: 

“First, the so-called “golden rule” of the common law as to statutory construction is that 
“the grammatical and ordinary sense of the words is to be adhered to, unless that would 
lead to some absurdity, or some repugnance or inconsistency with the rest of the 
instrument, in which case the grammatical and ordinary sense of the words may be 
modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v Pearson








[2016] FWCFB 4969

27

[1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian 
Boot Trade Employés’ Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 
at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances where a 
“mistake” has been made in the wording of an Act; the rule is also applied to avoid 
construing legislation so as to produce patently unintended or absurd results: Footscray 
City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA 
(Warren CJ and Maxwell P agreeing). 

Second, the common law also recognised that “[i]t is a strong thing to read into an Act of 
Parliament words which are not there, and in the absence of clear necessity it is a wrong 
thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: 
Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per 
Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 
112 at [6] per Spender J. 

Third, a construction of a statutory provision is to be preferred “that would best achieve 
the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth) s 15AA. The 
requirement to look to the purpose or object of an Act is more than an instruction to adopt 
the traditional mischief or purpose rule in preference to the literal rule of construction; s 
15AA requires no ambiguity or inconsistency in a statutory provision before a court is not 
only permitted, but required to have regard to purpose: Mills v Meeking [1990] HCA 6; 
(1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in 
question, being a provision comparable to s 15AA, “... requires a court to construe an Act, 
not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of 
Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant 
for redrafting legislation nearer to an assumed desire of the legislature. It is not for the 
courts to legislate ...”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and 
Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 
51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim
[2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In 
the end the task of the court is to ascertain and to enforce the actual commands of the 
legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per Bowen 
CJ”.30

[75] All this returns us to where we began and to search for the meaning of the words of the 
statute by interpreting the relevant statutory provisions consistently with the intended purpose or 
objects of the legislature as disclosed by the text of the statute beginning with an examination of
the ordinary grammatical meaning of the words in the context of the statute as a whole. 

Statutory context and proper construction of the relevant provisions

[76] So far as is presently relevant, the object of the Act is to provide a balanced framework for 
cooperative and productive workplace relations that promotes national economic prosperity and 
social inclusion for all Australians by, inter-alia, achieving productivity and fairness through an 
emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining 
obligations and clear rules governing industrial action. 31

[77] The legislative mechanisms by which an enterprise agreement may be made and then 
approved are contained in Part 2– 4 of Chapter 2 of the Act. The objects of Part 2-4 are set out in 
s.171 as follows: 








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“171 Objects of this Part

The objects of this Part are:

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

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

(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are 

dealt with without delay.”

[78] Division 3 of Part 2 – 4 of the Act deals with bargaining and representation during 
bargaining. Section 173 deals with the giving of a Notice as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a 
greenfields agreement must take all reasonable steps to give notice of the right to be 
represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; 
or

(b) a majority support determination in relation to the agreement comes into 
operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low paid authorisation in relation to the agreement that specifies the 
employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 
181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given








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29

(3) The employer must give the notice as soon as practicable, and not later than 14 
days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) 
in relation to a proposed enterprise agreement if the employer has already given the 
employee a notice under that subsection within a reasonable period before the notification 
time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.”

[79] Except in the case of a greenfields agreement, s.173(1) places an obligation on an 
employer that will be covered by a proposed enterprise agreement to take all reasonable steps to 
give a Notice to certain of its employees, namely, each employee whom the proposed agreement 
will cover and who is employed by the employer when, relevantly for present purposes, the 
employer agrees to bargain, or initiates bargaining, for the agreement.

[80] Section 173(3) requires the employer to give the Notice as soon as practicable, and not 
later than 14 days, after, for present purposes, the date on which employer agrees to bargain, or 
initiates bargaining, for the agreement. The Act makes no provision for extending the time within 
which the employer must give relevant employees a Notice.32

[81] The form and content requirements of a Notice are set out in s.174 of the Act as follows:

“174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise 
agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), 
the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative








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30

(2) The notice must specify that the employee may appoint a bargaining 
representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to 
represent the industrial interests of the employee in relation to work that will be 
performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining 
representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low paid authorisation is in operation

(4) If a low paid authorisation in relation to the agreement that specifies the employer 
is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 
176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with 
giving a copy of an instrument of appointment of a bargaining representative to an 
employee’s employer).”

[82] As is evident from the above, s.174(1A) provides that a Notice must contain the content, 
and be in the form, prescribed in the regulations. Regulation 2.05 of the Fair Work Regulations
2009 (the ‘Regulations’) provides that for subsection 174(6) of the Act, the Notice in Schedule 
2.1 is prescribed. 

[83] Although Regulation 2.05 and Schedule 2.1 each refer to s.174(6) of the Act, that 
subsection was repealed by the Fair Work Amendment Act 2012 (Amending Act), effective 1 
January 2013.33 However, clause 8(2) of Schedule 3 to the Act provides that regulations that:

 were made for the purposes of subsection 174(6) before the commencement of 
Part 5 of Schedule 4 to the Amending Act; and 

 were in force immediately before that commencement,

continue in force (and may be dealt with) after that commencement as if they had been made for 
the purposes of subsection 174(1A) (as inserted by Part 5 of Schedule 4 to the Amending Act).








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31

[84] The effect on the validity of a purported Notice of a failure by an employer to comply 
with the mandatory form and content requirements was dealt with in Peabody Moorvale Pty Ltd v 
Construction, Forestry, Mining and Energy Union34 in which the Full Bench concluded:

“The 21 day requirement in s.181(2) is met if there was a period of at least 21 days after the 
last Notice was given before employees were asked to approve the proposed agreement. 
This requirement is not met unless the Notice is validly issued under s.173 and a Notice 
will be valid provided that it complies with the content and form requirements of 
s.174(1A). 

The consequence of failing to give a Notice which complies with the content and form 
requirements of s.174(1A) is that the Commission cannot approve the enterprise 
agreement. We note that this does not prevent the employer from recommencing the 
bargaining process, completing the pre-approval steps (including the giving of valid 
Notices) and making application to have the resultant enterprise agreement approved by 
the Commission. 

In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart 
from the form and content of the Notice template provided in the Regulations. A failure to 
comply with these provisions goes to invalidity. We agree with the Minister’s 
submissions on this point, that is: 

“A mandatory template is provided in the Regulations. The provisions 
make it clear that there is not scope to modify either the content or the 
form of the Notice other than as set out in the template”. ”35

[Endnote omitted]

[85] The issues in this appeal do not raise for consideration the form and content of the Notice 
given to employees by the Appellant on 11 February 2016, but we will return to the decision in 
Peabody later in these reasons. 

[86] Subdivision A of Division 4 of Part 2-4 contains provisions for the preapproval steps that 
an employer is required to undertake in relation to a proposed enterprise agreement and for 
applications to the Commission for approval of an agreement once the agreement has been made. 

[87] Relevantly, by s.181 (1) of the Act an employer that will be covered by a proposed 
enterprise agreement may request employees employed at the time who will be covered by the 
agreement to approve the agreement by voting for it. 

[88] Section 181(2) establishes a minimum period before which such a request may be made as 
follows:

“(2) The request must not be made until at least 21 days after the day on which the last 
notice under subsection 173(1) (which deals with giving notice of employee 
representational rights) in relation to the agreement is given” .

[89] Section 182 provides when an agreement is made and s.185 sets out the process by which 
and the time within which an application to the Commission for the approval of an enterprise 
agreement is to made.








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32

[90] Subdivision B of Division 4 of Part 2-4 contains provisions for the approval of enterprise 
agreements by the Commission. Section 186(1) requires the Commission to approve an enterprise 
agreement if an application has been made and if the requirements in ss.186 and 187 met.

[91] Relevantly s.186 provides the following:

“(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been 
genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered 
by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to 
make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the 
interaction between the National Employment Standards and enterprise 
agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by 
employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the 
better off overall test if approval would not be contrary to the public 
interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National 
Employment Standards (see paragraph 55(4)(b)).”

[92] The matters which the Commission is to consider in determining, for the purposes of 
s.186 (2) (a), whether a non-Greenfields enterprise agreement has been genuinely agreed to by the 
employees covered by the agreement are set out in s.188 as follows:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by 
the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied 
with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to 
approve an enterprise agreement until 21 days after the last notice of 
employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or 
(2) applies (those subsections deal with the making of different kinds of 
enterprise agreements by employee vote); and








[2016] FWCFB 4969

33

(c) there are no other reasonable grounds for believing that the agreement has not 
been genuinely agreed to by the employees”.

[93] As is evident from the above, one of the matters about which the Commission must be 
satisfied in determining for the purposes of s.186 (2)(a), whether an enterprise agreement has 
been genuinely agreed to by the employees covered by the agreement is whether the employer 
covered by the agreement complied with subsection 181(2) of the Act.

[94] It would seem therefore, critical to the assessment of whether employees covered by the 
agreement genuinely agreed to it, is satisfaction that the employer covered by the agreement did 
not request the relevant employees to approve the agreement by voting for it before at least 21 
days after the day on which “the last notice under subsection 173(1) . . . in relation to the 
agreement is given”.

[95] It is apparent from the above and from other provisions of the Act, that the Notice plays a 
significant role in the scheme of bargaining established by Part 2 – 4 of the Act. As the Full 
Bench in Peabody observed: 

“[20] As to the context, the Notice provides employees with important information about 
the nature of an enterprise agreement and the employees’ right to appoint a bargaining 
representative to assist them in bargaining for the agreement or in a matter before the
Commission about bargaining for the agreement. The Notice sets out the default position 
for union members, that is, they will be represented by their union if they do not appoint a 
bargaining representative. 

[21] Bargaining representatives perform an important role in the negotiation of an 
enterprise agreement. Section 228 sets out the ‘good faith bargaining requirements’ that 
must be met during the bargaining process. Importantly, the employer must ‘recognise 
and bargain’ with other bargaining representatives (s.228(1)(f)); ‘give consideration’ to 
the proposals of other bargaining representatives and respond to those proposals in a 
timely manner (s.228(1)(c)), giving reasons for their responses (s.228(1)(d)). A 
bargaining representative may apply to the Commission for a bargaining order under 
s.230 in relation to the agreement (s.229(1)). An employee organisation that was a 
bargaining representative for the proposed enterprise agreement has an entitlement to be 
covered by the agreement (see s.183(1) and 201(2)). 

[22] Sections 173 and 174 are integral to the scheme of Part 2-4 of the Act. Section 173 
provides that the employer must give the Notice to the relevant employees as soon as 
practicable, and not later than 14 days after the ‘notification time’ for the agreement. In 
the context of this case the ‘notification time’ is the time when the employer ‘agrees to 
bargain, or initiates bargaining, for the ‘agreement’ (s.173(2)(a)). Section 174 deals with 
the form and content of the Notice. Importantly, the employer cannot request employees 
to approve the agreement until 21 days after the last Notice is given (see s.181(2))”.36

[96] It is also apparent that the architecture of Part 2 – 4 of the Act contemplates that during 
the various stages of bargaining and agreement approval processes certain steps are required to be 
taken. Some of these are time critical. Moreover, the scheme recognises that the employees to 
whom a Notice is given might not be the same persons who are “employed at the time” when 
asked by their employer to vote to approve the agreement. This point was made by Jessup J in 








[2016] FWCFB 4969

34

National Tertiary Education Industry Union v Swinburne University of Technology37 in the 
following passages:

22. Putting these provisions together in the chronological order which is implied by 
their terms, the following is the scheme contemplated. First, the employer agrees to 
bargain or initiates bargaining. Secondly, there is then a period of 14 days during which 
the employer gives the representational rights notices to the employees who were 
employed when the employer agreed to bargain. Thirdly, bargaining takes place. 
Although that process is not directly relevant to the subject here being considered, it 
should be noted that at least 21 days must pass after the giving of the last representational 
rights notification and the employer’s request under s 181(1). But there appears to be no 
outer limit to that period. Fourthly, the employer gives a copy of the agreement upon 
which it is proposed that the employees should vote, and other required materials, to the 
employees employed at that time. Fifthly, no more than seven days later, the employer 
requests the employees who are employed at that time to approve the agreement by voting 
for it. Sixthly, when a majority of those employees who cast a valid vote approve the 
agreement, the agreement is made.

23. It will be seen that, broadly, this scheme of things is divided into three stages: pre-
bargaining steps, bargaining, and the making of the agreement. As noted above, although 
there are specific time limits for the taking of some of the required, or permitted, steps, 
there is no time limit on bargaining. There is no reason why bargaining may not take 
many months, and we may, I consider, take judicial notice of the fact that it sometimes 
does. The legislature must have contemplated that employees would, in the normal course 
of labour turnover, come and go during an extended bargaining period. There should, 
therefore, be no assumption that the employees employed at the notification time for the 
agreement under s 173 would be the same employees as those employed “at the time” of 
the provision of a copy of the agreement under s 180, or as those employed “at the time” 
of the employer’s request under s 181.

24. Indeed, in my view, the legislature must be taken to have made the contrary 
assumption. The architecture of these provisions inescapably involves the perception that 
those who are provided with a copy of the agreement and are requested to vote, on the one 
hand, need not be the same as those who were, at some previous point, notified of their 
representational rights, on the other hand. Those to whom a request under s 181(1) should 
be addressed are confined, in my view, to those who are employed at that time. No other 
conclusion makes sense of the statutory scheme.

25. It is not necessary to consider whether employees to whom a copy of the proposed 
agreement was given under s 180 should, or may, be included within the requested group 
under s 181. The present case does not depend on such fine distinctions. However, and 
although the question was not argued, I would be disposed to the view that the “time” 
referred to in s 180(2)(a) is the whole of the “access period”. Since that period is, at its 
later boundary, contiguous with the time of the request under s 181, the better view may 
be that such employees should be so included.

26. The provisions to which I have referred bespeak the giving of such detailed 
attention to the rights and obligations of the parties concerned, and to the means by which 
an agreement is approved and thus made, that it would be, in my view, a distraction to 
decide issues such as that arising in the present case by reference to the high-level truism 








[2016] FWCFB 4969

35

that an employee includes an individual who is usually employed by the employer 
concerned. If a purely grammatical justification is needed for that view, it may be found 
by treating the words “employed at the time” in s 181(1) as limiting apropos 
“employees”. Not only is that a satisfying grammatical reading of the whole phrase, it 
accords strongly with the purpose of this provision, and those associated with it.38

[97] This staged process of “pre-bargaining steps, bargaining, and the making of the 
agreement” to which his Honour refers in the passages above is clearly reflected in the various 
considerations set out in  s.188. Paragraphs 181 (a) and (b) are concerned with the first and third 
stages, while paragraph 188(c) might be relied upon inter alia to highlight conduct engaged in the 
course of bargaining which might found reasonable grounds for believing that the agreement has 
not been genuinely agreed to by the employees who are covered by it at the time the agreement is 
approved under s.182(1) of the Act. Compliance with the identified statutory provisions in s.188 
at each of the stages is thus critical to satisfying the Commission that relevant employees 
genuinely agreed to the agreement.

[98] The terms of paragraph 188(a)(i) provide further context in construing the provisions at 
issue.  By that paragraph the Commission must be satisfied that the employer covered by the 
agreement complied with ss. 180 (2), (3) and (5).  Subsection 180(2) requires that the employer 
must take all reasonable steps to ensure that during the access period employees employed at the 
time are given a copy of the written text of the agreement and any material incorporated therein 
by reference or to ensure that employees have access to these materials throughout the access 
period. Subsection 180 (3) requires that an employer must take all reasonable steps to notify 
relevant employees by the start of the access period of the time and place at which the vote will 
occur and the voting method to be used. The access period is the seven day period ending 
immediately before the start of the voting process referred to in subsection 181 (1) of the Act.39

Each of ss. 180(2) and (3) is expressed in mandatory language requiring the employer to take all 
reasonable steps to do certain things within or by a specified time. In this respect these provisions 
use the same formulae found in ss.173 (1) and (3) of the Act.  It would be an odd outcome if in 
considering the requirement in paragraph 188(a)(ii)  -whether that  the employer had complied ss. 
181(2) -  the reference to the “last notice under subsection 173(1)” in ss. 181(2) were to lose all of 
the attributes apparently intended to attach to a Notice by ss. 173(1) and (3) and s.174 of the Act.

[99] As earlier indicated, the Appellant submitted that s.188(c) of the Act provides the 
mechanism by which the consequence of a failure to give a Notice to employees no later than 14 
days after the notification time might be assessed. We do not agree. Section 173 of the Act 
confers a right on each individual employee employed at the time, relevantly, the employer agrees 
to bargain or initiates bargaining and who will be covered by the proposed agreement, to be given 
a Notice within the specified time, or at least that the employer take all reasonable steps to do so. 
The employees upon whom this right is conferred may or may not ultimately be employed at the 
time the vote to approve the agreement takes place. 

[100] It seems to us that s.188(c) of the Act operates upon the employees who were asked to 
vote to approve the agreement and who are covered by the agreement by requiring the 
Commission to consider whether there are other reasonable grounds for believing that those 
employees did not genuinely agree to the agreement. This is evident from the opening words of 
s.188 of the Act which provide that an “enterprise agreement has been genuinely agreed to by the 
employees covered by the agreement...”. The reference in s.188(c) “the employees” in the part of 
the sentence which provides “has not been genuinely agreed to by the employees”, therefore 
seems to us to be referring to those employees covered by the agreement, which may or may not 








[2016] FWCFB 4969

36

include a person who was employed by the employer at the notification time. It is that person who 
had a right to be given a Notice.

[101] It therefore seems to us that s.188(c) is concerned with whether the employees covered by 
the agreement genuinely agreed to the ultimate outcome, while s.188(a) is concerned with 
circumstances earlier in time. 

[102] In Hunter Hatcher VP considered these provisions and the consequence of a failure to 
comply and reasoned as follows:

“[72] It is clear that unless a valid Notice is issued, any subsequently-negotiated enterprise 
agreement will not be capable of approval under Part 2-4 of the Act. Under s.186(2), in 
order to be approved a non-greenfields enterprise agreement must have been “genuinely 
agreed to by the employees covered by the agreement”. Section 188(a)(ii) requires that in 
order for an enterprise agreement to have been genuinely agreed to by employees, the 
employer must have complied with s.181(2). Section 181(2) requires that an employer’s 
request to employees to approve an enterprise agreement must not be made until at least 
21 days after the day on which the last Notice was given under s.173(1). It follows that 
unless a valid Notice is issued, the requirement in s.181(2) is not satisfied and an 
enterprise agreement cannot be approved. This was made clear by the Full Bench in 
Peabody Moorvale.

[73] Peabody Moorvale was concerned with whether non-compliance with the form and 
content requirement for Notices prescribed by s.174(1A) meant that the Notice was 
invalid. Section 174(1A) provides:

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

[74] The Full Bench held that non-compliance resulted in invalidity. Its reasoning 
included the following (footnotes omitted):

“[14] What then are the consequences of providing a Notice which is different, 
either in content or form, from the Notice prescribed in the Regulations? As the 
High Court said in Project Blue Sky v Australian Broadcasting Authority (Project 
Blue Sky), an act done in breach of a condition regulating the exercise of a 
statutory power is not necessarily invalid and of no effect:

“Whether it is depends upon whether there can be discerned a legislative purpose 
to invalidate any act that fails to comply with the condition. The existence of the 
purpose is ascertained by reference to the language of the statute, its subject 
matter and objects, and the consequences for the parties of holding void every act 
done in breach of the condition.”








[2016] FWCFB 4969

37

[15] While there is no decisive rule that can be applied to determine legislative 
purpose the decided cases provide some guidance in analogous circumstances. A 
textual indicator which is always of significance is the mode of expression in the 
provision in question. As Spigelman CJ observed in Chase Oyster Bar Pty Ltd v 
Hamo Industries Pty Ltd: ‘Substantial indeed often, but not always, determinative, 
weight must be given to language which is in mandatory form’.

[16] The word ‘must’ in s.174(1A) is language in mandatory form. A similar 
conclusion, albeit in a different context, was reached by the High Court in SAAP v 
Minister for Immigration and Multicultural and Indigenous Affairs. In that case 
the court was construing s.424A of the Migration act 1958 (Cth) which provides: 

“Applicant must be given certain information.

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate 
in the circumstances, particulars of any information that the Tribunal 
considers would be the reason, or a part of the reason, for affirming the 
decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant 
understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in 
s.441A; or 

(b) if the applicant is in immigration detention - by a method prescribed 
for the purposes of given documents to such a person ...” (emphasis added)

[17] The use of the words ‘must give’ was described by various members of the 
Court as ‘imperative’. As McHugh J put it:

“... the assumption that no breach of s.424A occurs if the applicant has 
otherwise been given procedural fairness overlooks the imperative 
nature of the section. Nothing in the section suggests that fairness in the 
way in which the Tribunal observes its statutory obligation is an 
implied limitation on its operation. The section describes a procedural 
step that, if enlivened by the circumstances of the case, the Tribunal is 
required to take in every case. Further, the mandatory nature of the 
obligation in s.424A(2)(b) points to the conclusion that the failure to 
provide in writing to the applicant particulars of the adverse material 
and the invitation to comment upon it amounts to a breach of s.424A ...

Because the language of s.424A is imperative, failure to comply with the 
obligation to provide the applicant with particulars of adverse information 








[2016] FWCFB 4969

38

in writing constitutes a breach of that section ... There was some debate 
before this Court as to whether the term ‘must’ in s.424A(1) necessarily 
imposed a mandatory requirement to provide the information in writing in 
all circumstances. However, in the absence of any qualifying terms, the 
natural meaning of the section is that the Tribunal is compelled in all 
circumstances to provide the information in writing. This is so, even if the 
Tribunal puts the information to the applicant at an interview or when the 
applicant appears before the Tribunal to give evidence and present 
arguments. Such a construction is consistent with the purpose of the 
section to accord the applicant procedural fairness in the conduct of the 
review.”

[18] Subsection 174(1A) uses language in mandatory form and goes to some 
length to make it clear that there can be no departure from the content or form of 
the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) 
provides that a Notice must contain the prescribed content, must not contain any 
other content and must be in the form prescribed. 

[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely 
consistent with the context and mischief to which the provision is addressed.”

[75] In identifying the “context and mischief” referred to, the Full Bench discussed the 
significance of the Notice as earlier quoted, and after considering the circumstances in 
which s.174(1A) was enacted concluded that: “The language of s.174(1A), the context 
and legislative purpose all support the proposition that a failure to comply with the 
provision goes to invalidity”.

[76] Like s.174(1A), s.173(3) is expressed in mandatory language. Not only is the word 
“must” used to convey the requirement that the Notice must be given as soon as 
practicable after the notification time, but also the expression “no later than” is used to 
introduce the 14-day requirement. That expression, read in the context of the subsection
as a whole, must be read as meaning something equivalent to “in no circumstances after”. 
No other provision of the Act allows or accommodates any extension to the time allowed 
by s.173(3). It is not an irregularity capable of being waived under s.586(b). The language 
of s.173(3) therefore strongly points to invalidity being the consequence of a failure to 
comply.

[77] One important contextual consideration supports this conclusion, and that is that 
there is no separate sanction for contravention of s.173(3). It is not a civil remedy 
provision. No other remedy for contravention is identifiable. Therefore unless non-
compliance with s.173(3) resulted in the invalidity of the Notice and any subsequent 
enterprise agreement being rendered incapable of approval, it would become in substance 
voluntary and without practical utility. That cannot have been intended by the legislature.

[78] An interpretation of s.173(3) which requires strict compliance is consistent with the 
statutory purpose of the Notice as identified in Peabody Moorvale. It would ensure that 
employees are informed at the earliest practicable time of the fact that bargaining is 
occurring and their entitlement to representation in that process. An alternate construction, 
whereby the Notice could be given at any time without adverse consequences provided 
that this occurred 21 days before a vote to approve the enterprise agreement occurred, 








[2016] FWCFB 4969

39

would have potential consequences which would be destructive of the Notice’s statutory 
purpose. It might mean that bargaining for an enterprise agreement is well advanced or 
even completed before all employees are advised of the fact that bargaining is occurring 
and are made aware of the means by which they may participate and be represented in 
that bargaining process. If, for example, an employer agrees to negotiate in response to a 
claim for an enterprise agreement made by a relevant union, the late provision of the 
Notice may mean that any employees who are not members of that union may not be
aware that bargaining is occurring or that they may be individually represented in such 
bargaining before the negotiations have substantially progressed or have finished. 
Similarly if an employer initiates bargaining with employees directly, and any employees 
who are union members are not advised from the outset through the Notice that they are 
entitled to have their union represent them in the bargaining, the result may be that 
bargaining proceeds without that union being involved contrary to the representational 
entitlement of the union members”.40 [Endnotes omitted]

[103] We agree and with respect, adopt the Vice President’s reasoning.

[104] The Appellant correctly points to the requirement to comply with subsection 181 (2) as an 
essential element in the Commission being satisfied that employees covered by the agreement 
have genuinely agreed to it, but by focusing only on the 21 day requirement, the Appellant  
ignores the full effect of that subsection. The section is not concerned merely with time but with 
time in relation to the giving of a Notice. Section 181(2) refers to a “notice”. The reference in 
s.181(2) to the “last notice under subsection 173(1)”, recognises that a Notice might be given to 
employees on different days. This is unremarkable since employees often work on different shifts 
or days and some may be on leave, with the result that a Notice may be given to employees on 
different days. However, this does not relieve the employer of the obligation to give the Notice or 
the last of the Notices within the time frame prescribed by s.173(3) of the Act by reference to the 
notification time. 

[105] Having regard to the statutory provisions and contextual considerations set out above, it 
seems to us that for the purposes on s.181(2)  “the last notice under s.173(1)” can only mean a 
Notice that:

 the employer took all reasonable steps to give to an employee who
o will be covered by the agreement; and
o is employed at the time when the employer agreed to bargain or initiated 

bargaining;
 meets that form and content requirements in  s.174 of the Act and Regulation 2.05 

of the Regulations; and 
 is given as soon as practicable and not later than 14 days relevantly, after the 

employer agrees to bargain or initiates bargaining for the agreement as required 
by  s.173(3) of the Act.

[106] We do not discount the possibility that for the purposes of ss. 181(2) and 188(a)(ii) a 
Notice might be given to an employee more than 14 days after the notification time for the 
agreement and the Commission might nevertheless be satisfied that the employer had complied 
with ss. 181(2). This might occur for example, where the employer took all reasonable steps to 
give the Notice as required by ss. 173(1) but those steps were unsuccessful in relation to a 
particular employee.  But that is not the case here.  The Appellant took no such steps, and it does 








[2016] FWCFB 4969

40

not submit otherwise.  As this was not the subject of any argument advance by the Appellant we
take the point no further.

[107] It is not in contest that relevant employees were not given a Notice within the time 
prescribed. Moreover, though employees of the Appellant were given a Notice more than two 
years after the Appellant agreed to bargain or initiated bargaining, the requirement to give a 
Notice under s.173(1) is met only if, inter alia it is given to persons employed “at the notification 
time”. There was no evidence below as to how many, if any, of the persons were given the Notice 
more than two years after the notification time, were actually employed by the Appellant at the 
notification time.

[108] We consider that unless the Appellant took all reasonable steps to give such a Notice to 
each relevant employee in the form required and within the time required, it cannot be said to be a 
Notice as contemplated by the Act and in particular for the purposes of s.181(2) was given. It is 
not in contest that the Appellant took no step to give and did not give, a Notice to any employee 
until well after the notification time. It follows that the request by an Appellant that employees 
approve the Agreement was made prematurely, that is, the time for reckoning the 21 day period is 
yet to begin because a valid Notice had not been given. This would be the case if a Notice was 
not given at all. We see no reason why a Notice given some two years after the notification time 
should yield a different result. 

[109] Absent such a Notice, there cannot be satisfaction that the Appellant covered by the 
Agreement complied with subsection 181(2) of the Act, with the consequence that there cannot 
be satisfaction that the Agreement has been genuinely agreed to by the employees covered by the 
Agreement as required by s.186(2)(a) of the Act.

[110] To conclude otherwise would render the provisions of ss.173 and 174 devoid of any 
effect. 

[111] We will now deal briefly with the “consequence” arguments raised by the Appellant in 
support of a contrary construction.

[112] First it is said that the interpretation of the Act adopted by the Commissioner would 
impose impractical, unworkable and very costly outcomes on employers and employees, because:

 In many circumstances an employer would be unable to issue a new  Notice during 
bargaining if a minor error was discovered in the wording of the  earlier Notice issued at 
the commencement of bargaining;

 An employer would be unable to issue a new Notice during bargaining to a new group 
of employees if the scope of the proposed enterprise agreement was expanded and this 
new group of employees was proposed to be covered, as to do so would lead to a breach 
of s.173(3) and an inability to have the agreement approved; and

 An employer would be unable to overcome an oversight to issue a Notice within 14 
days of the “notification time”, because in most circumstances an employer has no 
capacity to establish a new “notification time”. Under the Act, once bargaining has 
commenced an employer has good faith bargaining obligations and it does not have the 
right to unilaterally stop bargaining and to then initiate or agree to bargain (see 
s.173(2)(a) of the Act).








[2016] FWCFB 4969

41

[113] In our view there is no substance in these submissions. Artificial though it may be, an 
employer that discovers it had issued an invalid Notice, would cease bargaining with its 
employees and would agree to bargain or initiate bargaining afresh thus triggering a notification 
time and a new period within which a valid Notice may be issued. There is nothing in the Act 
which compels a conclusion to the contrary, except perhaps in circumstances where a majority 
support determination has been made. Where an employer initially agreed to bargain for an 
agreement with a particular scope and later agreed to bargain for an agreement with a broader 
scope, that agreement to bargain in our view, triggers a notification time and a requirement 
thereafter to issue a Notice to relevant employees who are to be covered by the broader scope 
agreement. We do not need, for present purposes to decide whether, having regard to s.173(4) 
such a Notice needs to give to employees who received a Notice for the proposed agreement with 
a more limited scope.

[114] The Appellant also submitted that if an enterprise agreement was not approved by the 
Commission on the basis of failure to strictly comply with s.173(3), the parties would be at risk of 
having any subsequent proposed agreement rejected because the employer would have typically 
initiated or agreed to bargain months before and the timeframe in s.173(3) would be calculated 
from that earlier time.

[115] There is no substance to this submission.  Once an application is made to the Commission, 
bargaining for the agreement has concluded albeit that the agreement might not be approved for a 
variety of reasons, including for example, that it does not pass the better off overall test. In that 
event, the employer could if it wished, initiate bargaining for a proposed agreement, the effect of 
which will be to trigger a notification time following which a valid Notice must be given.

[116] The Appellant also submitted that it would be open to a union or employee bargaining 
representative to apply for a majority support determination to overcome an employer’s failure to 
comply with s.173(3), an employer could indefinitely frustrate the desire of the majority of 
employees to bargain collectively by simply failing to issue a Notice within 14 days of any 
majority support determination being made.

[117] There are many things that an employer or a bargaining representative may do during the 
course of bargaining to frustrate the making and the approval of an agreement. The employer 
could deliberately issue a Notice that does not comply with the form and content requirements. 
The employer could deliberately ask employees to vote to approve the agreement less than 21 
days after the last date on which a valid Notice was issued. The employer could deliberately fail 
to give an explanation to employees of the terms of the agreement and their effect. The employer 
could deliberately fail to give employees a copy of the written text of the agreement or make it 
available during the relevant period, or fail to make available material incorporated by reference 
in the agreement. The employer could deliberately fail to notify relevant employees by the start of 
the access period, of the time at which the vote will occur, the place at which the vote will occur 
or the voting method that will be used. These are just some of the things that an employer could 
do to frustrate the capacity of the Commission to approve an agreement. Each of these failures 
would be a basis for the Commission not to approve an agreement. However, that this might 
occur does not provide a reason to not give full effect to the provisions of the Act, which the 
Parliament has made clear form part of the statutory test that must be passed before the 
Commission approves an agreement.








[2016] FWCFB 4969

42

[118] The Appellant also argued that the Commission has power pursuant to s.586 of the Act to 
waive non-compliance by the Appellant with s.173(3). While we have some reservations about 
the correctness of the proposition, in the particular circumstances of this case, it is not a matter 
that we need to decide because it is clear that the point was not raised with, nor was the 
Commissioner asked to waive any non-compliance. An appeal is not an opportunity to run a 
better case than the Appellant ran at first instance.

[119] In our view the Commissioner was correct in his analysis and conclusion. No appellable 
error has therefore been made out.

[120] We would observe in passing that we are not unsympathetic to the position in which an 
employer or indeed other bargaining representatives might find themselves upon discovering that 
a Notice is not valid. If the legislative provisions provided some discretion about this and other 
pre-approval technical requirements then an examination of the actual impact of any deficiency 
upon the bargaining process and its outcome might result in the deficiency being disregarded. But 
that is not the legislative scheme the Commission is required to administer. It is a matter for 
Parliament to make such amendments to the scheme of the Act as it sees fit.

Conclusion

[121] We grant permission to appeal because the appeal raises important questions about the 
proper construction of various provisions of the Act, but for the reasons given we dismiss the 
appeal.

VICE PRESIDENT

Appearances:

Mr B Ferguson, Ai Group, on behalf of Uniline Australia Limited.

Hearing details:

2016.
Sydney.
20 July.


OF THE THE SEAT WORK COMMISSION




 



[2016] FWCFB 4969

43

Final written submissions:

Ai Group on 18 July 2016.
Australian Chamber of Commerce and Industry on 19 July 2016. 

Printed by authority of the Commonwealth Government Printer

Price code G, PR583236

                                               

1 Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 (31 August 2000).
2 Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 (31 August 2000) at [19].
3 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
4 Pawel v AIRC (1999) 94 FCR 231. 
5 [1998] HCA 28.
6 [2016] FWCFB 1894.
7 The Queen v Blackburn; Ex parte Transport Workers’ Union of Australia (1953) [1953] HCA 55; 88 CLR 125.
8 Uniline Australia Limited [2016] FWC 2973.
9 Transcript PN31 – PN44. 
10 [2014] FWC 7469.
11 (1998) 194 CLR 355.
12 Ibid at [69].
13 (1934) 52 CLR 234.
14 Ibid at 244.
15 As in force on 25 June 2009; see s.40A of the Act.
16 Acts Interpretation Act 1901 as in force on 25 June 2009, s.15AB.
17 (1997) 187 CLR 384.
18 Ibid at 408.
19 [1986] HCA 74; (1986) 68 ALR 416.
20 Ibid at [4]; at 420.
21 (2009) 239 CLR 27.
22 Ibid at [47].
23 [2010] HCA 23; (2010) ALJR 507; 267 ALR 204.
24 Ibid at [31]-[34].
25 [2010] FWAFB 9963.
26 Ibid at [29]-[30].
27 In JJ Richards & Sons Pty Ltd and Another v Fair Work Australia and Another (2012) 201 FCR 297, Jessup J described 

the majority’s approach as “conventional, thorough, and, in my respectful view, manifestly correct”; [at 305].
28 (2012) 201 FCR 297.
29 Ibid at 310, [49].
30 Ibid at 310, [50]-[52].
31 Section 3(f).
32 This is to be contrasted with, for example, s.185(3) of the Act, which requires that an application to the Commission for the

approval of an enterprise agreement must be made within 14 days after the agreement is made or within such further 

period as the Commission allows, if in all the circumstances the Commission considers it fair to extend that period. See 

also s.210(3) in relation to the approval of a variation of an enterprise agreement.
33 see Schedule 4, item 9 of the Fair Work Amendment Act 2012.








[2016] FWCFB 4969

44

                                                                                                                                                  

34 [2014] FWCFB 2042.
35 Ibid at [44]-[46].
36 [2014] FWCFB 2042 at [20] – [22].
37 [2015] FCAFC 98.
38 Ibid at [22] – [26].
39 See s.180(4)
40 [2014] FWC 7469 at [72]-[78].

Cases cited by this decision: