1
Fair Work Act 2009
s.604—Appeal of decision
The Australian Workers’ Union
v
Oji Foodservice Packaging Solutions (Aus) Pty Ltd
(C2018/6126)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER LEE
SYDNEY, 20 DECEMBER 2018
Appeal against Decision [2018] FWCA 6202 of Deputy President Masson at Melbourne on
10 October 2018 – redaction of wage rates from published enterprise agreement approved
under Part 2-4 – Sections 594 and 601 of the Fair Work Act 2009 – No power under s.594 for
an order redacting wage rates in an enterprise agreement approved under Part 2-4 – person
aggrieved – permission to appeal granted – appeal upheld – lack of requisite power –
redaction decision quashed – Oji Agreement to be published on the Commission’s website
without the redaction of the wage rates.
Background
[1] This matter concerns an appeal by The Australian Workers’ Union (the AWU) from a
decision by Deputy President Masson in Re Oji Foodservice Packaging Solutions (Aus) Pty
Ltd1 (the Decision) in which the Deputy President approved the Oji Foodservice Packaging
Solutions (Aus) Pty Ltd Employee Enterprise Agreement 2018 (the ‘Oji Agreement’) and
decided to redact the wage rates from the published version of the Oji Agreement.
[2] The employer, Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji Pty Ltd or the
Respondent), was the applicant in the proceedings at first instance. The Oji Agreement was
made on 25 June 2018 and the relevant reference instrument is the Graphic Arts, Printing and
Publishing Award 2010 (the Graphic Arts Award).
[3] The Deputy President’s reasons for decision confirmed his satisfaction that the
requirements in ss.186, 187, 188 and 190 of the Fair Work Act 2009 (Cth) (the FW Act) were
met and that, pursuant to a request made by the employer, the wage rates contained within the
Oji Agreement would be redacted in the published version. At [4] of the Decision, the Deputy
President says:
1 [2018] FWCA 6202.
[2018] FWCFB 7501
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 7501
2
‘The Applicant requested redaction of wage information provided at pages 24 to 31 of
the Agreement on the basis of the highly competitive nature of the Applicant’s
industry, and on which submissions were made. Having regard to the circumstances of
the Applicant and their submissions I am satisfied that this is a reasonable request and
that wage rate information will be redacted.’
[4] The part of the Decision which is the subject of the appeal is the Deputy President’s
decision to redact the wage rates (the redaction decision).
[5] The parties consented to the appeal being dealt with on the papers, without a hearing,
pursuant to s.607(1) of the FW Act. To provide any other interested parties with an
opportunity to be heard, the matter was listed for hearing on 4 December 2018. No parties
attended the hearing.
[6] We are satisfied that the appeal can be adequately determined without persons making
oral submissions and have determined the appeal on the basis of the written submissions filed
by the AWU and the Australian Industry Group (Ai Group) (on behalf of Oji Pty Ltd).
The Appeal
[7] Section 604(1) provides that a ‘person who is aggrieved by a decision… made by the
FWC … may appeal the decision, with the permission of the FWC’ (emphasis added). We
return shortly to consider whether the AWU is a ‘person aggrieved’ by the Decision.
[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (Commission’s) powers on appeal are only exercisable if there is error
on the part of the primary decision-maker.2 There is no right to appeal and a matter may only
be appealed with the permission of the Commission.
[9] Section 604(2) requires the Commission to grant permission to appeal if satisfied that
it is ‘in the public interest to do so.’ The task of assessing whether the public interest test is
met is a discretionary one involving a broad value judgment.3 The public interest is not
satisfied simply by the identification of error,4 or a preference for a different result.5
[10] Other than the special cases in s400 of the FW Act, the grounds (apart from in the
public interest) for granting permission to appeal are not specified. Considerations which have
traditionally been adopted in granting leave and which would therefore usually be treated as
justifying the grant of permission to appeal, include that the decision is attended with
2 This is so because on appeal, the Commission has power to receive further evidence pursuant to s.607(2): see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]–[46].
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]–[27].
5 Ibid, Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at
[28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28].
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sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave
is refused.6 It will rarely be appropriate to grant permission to appeal unless an arguable case
of appealable error is demonstrated. This is so because an appeal cannot succeed in the
absence of appealable error.7 However, the fact that a particular Commission Member made
an error at first instance is not necessarily a sufficient basis for the granting of permission to
appeal.8
[11] The AWU advances two grounds of appeal:
‘1. The Deputy President erred in redacting the wage rates in the published version of the
Agreement where there was no power to do so.
2. In the alternative to ground 1, if the Commission did have a discretion to redact the wage
rates in the published version of the Agreement, the Deputy President erred in the exercise of
that discretion in that:
(a) The Deputy President did not consider the principle of open justice and the
expectation that material filed in the Commission should ordinarily be freely available
to the public in deciding to suppress the wage rates.
(b) The Deputy President did not have regard to the clear legislative intention in
favour of transparency for enterprise agreements.
(c) The Deputy President gave overriding significance to the highly-competitive
nature of the employer’s industry and thereby acted upon a wrong principle.
(d) The Deputy President’s conclusion was unreasonable and plainly unjust.’
[12] Before we turn to the grounds of appeal, it is necessary to determine the AWU’s
standing to bring the appeal. As we have mentioned, s.604(1) of the FW Act provides that a
person ‘who is aggrieved by a decision’ may appeal a decision, with permission.
[13] A person is aggrieved by an act or decision which operates in restraint of what would
otherwise have been their legal rights.9 The expression ‘a person who is aggrieved by a
decision’ should not be interpreted in a restrictive way10 and is capable of extending beyond
persons whose legal interests are affected by the decision in question, to persons with ‘an
interest in the decision beyond that of an ordinary member of the public.’11
6 See also CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
7 Wan v AIRC (2001) 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28].
9 Tweed Valley Fruit Processors Pty Ltd v Ross and others (1996) 137 ALR 70 at [90].
10 Attorney General (Gambia) v N’Jie (i.e. [1961] AC 617 at 634, cited with approval by Gibbs CJ in Koowarta v Bjelke-
Peterson (1982) 153 CLR 168 at 184–185).
11 Tweed Valley Fruit Processors Pty Ltd v Ross (1996) 137 ALR 70 at [90]-[91]; Re Australian Industry Group [2010]
FWAFB 4337 (11 June 2010) at [11].
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[14] The AWU contends that it is a person aggrieved by the Decision within the meaning
of s.604(1) of the FW Act. The essence of the submission put is that as a registered
organisation of employees entitled to represent the industrial interests of employees engaged
in work covered by an enterprise agreement, the AWU will ordinarily have an interest in the
approval decision beyond that of an ordinary member of the public and, as such, be a person
aggrieved.12
[15] We accept that the AWU’s rules provide coverage of work which is encompassed by
the classifications in the Oji Agreement.
[16] The AWU submits that its interest in the redaction decision arises out of its interest in
researching and maintaining industry standards in those sectors in which it has rules coverage.
In support of that proposition, the AWU refers to the objects of its rules, which include:
‘(1) To uphold the rights of organised labour and to improve, protect and foster the best interests
of its members and to assist them to obtain their rights under industrial and social legislation.
(2) To regulate, protect and advance the conditions of labour, the relations between workers
and between workers and employers, including by collective bargaining. To regulate the
conditions of trade, business or industry in which members work.’13
[17] The AWU submits that as part of achieving those objects, it relies upon wage rates and
other information contained within published enterprise agreements to:
(i) identify prevailing conditions and emerging trends in its industries;
(ii) assess whether industrial instruments satisfy the better off overall test and
other statutory tests;
(iii) ascertain the wages of comparable worksites across an industry to inform its
collective bargaining activities.
[18] On that basis it is submitted that the decision to authorise the redaction of wage rates
in the Oji Agreement interferes with the AWU’s ability to undertake this research and further
the objects set out in its rules,14 and that should this practice be adopted more broadly by
Commission Members, the capacity for the AWU to use wage rates in enterprise agreements
to identify industry trends may progressively diminish.
[19] The Respondent submits that the fact that an organisation has a general
representational role in an industry is an inadequate basis for satisfying the ‘aggrieved person
test’,15 and further, submits that countless academics, students, economists, statisticians and
other members of the public have an interest in wage trends and outcomes and there is
nothing unusual about the AWU’s interest in these matters.16
12 CFMEU v Concrete Constructions (WA) Pty Ltd [2017] FWCFB 3912 [4]; CFMEU v CSRP Pty Ltd [2017] FWCFB 2101
[8]-[13]; CEPU v Main People Pty Ltd [2014] FWCFB 8429.
13 Rules 4(1) and (2) of the Registered Rules of the AWU.
14 This point was made by the AWU in Re Boeing Defence Australia Ltd [2018] FWC 4019; see [12] of the decision.
15 See Wagstaff Piling v CFMEU [2011] FWAFB 6892 at [2].
16 Submissions of the Respondent at [9].
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[20] The Respondent also submits that the AWU was not a bargaining representative for
the Oji Agreement and consequently had no right to be covered by the Oji Agreement. It
further submits that the AWU does not claim to have any member covered by the Oji
Agreement or to be representing an employee covered by the Oji Agreement.17
[21] In CEPU and AMWU v Main People Pty Ltd18 (Main People) a Full Bench considered
the issue of standing in circumstances where the appellant unions sought to appeal the
approval of an enterprise agreement, and concluded:
‘[6] The respondent submitted that neither of the appellants are a ‘person who can show a
grievance which will be suffered as a result of the decision complained of beyond that which
he or she has as an ordinary member of the public’. Neither union was a bargaining
representative for the Agreement, nor was there any evidence that any employee of the
respondent at the time of the vote to approve the Agreement was a member of either union.
Further there was no evidence that any subsequent employees of the respondent had asked the
appellants to represent their interests in relation to the Agreement.
[7] The appellants have the right to represent employees under the terms of the Agreement.
Moreover, given the nature of the respondent’s business, and the industry within which it
operates, we are satisfied that it is likely that some members of the appellants will be
employed by the respondent in the future, in classifications covered by the Agreement. In the
circumstances of this case we consider that this gives the appellants an interest in the decision
to approve the Agreement beyond that of an ordinary member of the public. Accordingly, we
are satisfied that the appellants have standing to appeal the decision to approve the
Agreement.’19
[22] As observed by the Full Bench in CFMEU v CSRP Pty Ltd,20 the reference in the last
passage quoted above to ‘the right to represent employees under the terms of the Agreement’
should properly be understood to be a reference to the respective unions’ right under their
rules to enrol as members employees covered by the agreement and to represent the industrial
interests of those employees, rather than referring to any right conferred by the agreement
itself.
[23] In our view, the reasoning and conclusion set out in Main People is applicable to the
question of standing raised in this appeal and we are not persuaded that Main People and
decisions of the Commission which have followed it are materially distinguishable or that
those decisions are clearly wrong and ought not to be followed.
[24] Although none of the employees who voted to approve the Oji Agreement were
members of the AWU, and the AWU was not a bargaining representative for the Oji
Agreement, we consider that for the reasons it advances, the AWU has the requisite interest in
the Decision. The context is important. The appeal goes to whether the Deputy President had
17 Ibid at [6].
18 [2014] FWCFB 8429.
19 [2014] FWCFB 8429 at [6]-[7]; see also Transport Workers’ Union of Australia v ALDI Foods Pty Limited as General
Partner of ALDI Stores (A Limited Partnership) [2016] FWCFB 91 at [20]-[23] and CEPU v Sustaining Works Pty Limited
[2015] FWCFB 4422 at [18]-[19].
20 [2017] FWCFB 2101 at [12].
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb8429.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb8429.htm
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power to make the redaction decision. As the court observed in Tweed Valley Fruit
Processors Pty Ltd v Ross and others:21
‘There is room for the view that a wider category of people has a legitimate interest in ensuring that the
Commission acts within its jurisdiction than those who are directly affected by a particular decision, and
so allowed to agitate its merits.’
[25] We are satisfied that the AWU is a person aggrieved by the redaction decision and
accordingly has the requisite standing to appeal that decision.
[26] We now turn to the question of permission to appeal.
[27] The AWU submits that it is in the public interest to grant permission to appeal because
there is a diversity of decisions of the Commission at first instance requiring appellate
guidance, and that the point of law raised by the appeal is a matter of importance and general
application involving whether Parliament intended to allow confidentiality orders to affect
public access to industrial instruments approved by the Commission. We agree.
[28] There are a number of Commission enterprise agreement approval decisions in which
a Member has, at the request of one or more parties, ordered that certain matters contained
within the agreement (such as pay rates) be kept confidential. For example:
Abbe Corrugated Pty Ltd Agreement 201522 – rates of pay to be treated as
confidential and not published;
Chemtrans Western Australian Enterprise Agreement 201523 – wage rates to be
kept confidential between the parties; and
Montague Cold Storage Tullamarine & National Union of Workers Enterprise
Agreement 201424 – wage rate appendix to be kept confidential between the parties.
[29] There are also a number of Commission enterprise agreement approval decisions in
which a Member has declined a request from one or more parties to keep matters contained in
the agreement confidential, on the basis that the FW Act does not permit this. For example:
Logan Moulders Pty Ltd;25
Mindpearl AG re Mindpearl AG Union Enterprise Agreement26 – in circumstances
where pay rates form part of the enterprise agreement which was made, there is no
discretion to not publish the agreement without amendment as required by s.601;
Electricity Networks Corporation T/A Western Power27 – s.601 requires publication
of the agreement in full, including the classification and remuneration schedule; and
21 (1996) 137 ALR 70 at 91 per Wilcox CJ and Marshall J; Moore J agreeing at 96-97.
22 [2016] FWCA 896.
23 [2015] FWCA 7825.
24 [2014] FWCA 7196.
25 [2010] FWAA 8632 per Richards SDP.
26 [2011] FWAA 21 per Simpson C.
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Boeing Defence Australia Limited.28
[30] This is the first occasion on which this issue has been the subject of consideration by a
Full Bench. The appeal turns on the proper construction of ss.594(1)(c) and 601(4)(b) of the
FW Act. We are satisfied that the issues raised enliven the public interest and that it is in the
public interest to grant permission to appeal. We grant permission on that basis.
[31] We now turn to the submissions advanced on appeal. As will become apparent, we
have only found it necessary to deal with the first ground of appeal; that the redaction
decision was made without the requisite power.
[32] The AWU submits that there is nothing in s.601 of the FW Act or any other provision
of the FW Act to suggest that the requirement to publish an enterprise agreement means
anything other than that the agreement must be published in full.29 In support of this
proposition, the AWU refer to the observation of Senior Deputy President Richards in Re
Logan Moulders Pty Ltd:30
‘In circumstances in which the wage rates form part of the Agreement which was made, there
is no discretion for Fair Work Australia (“FWA”) to not publish the Agreement without
amendment. This is made sufficiently clear at s.601 of the Act.’
[33] The AWU contends that the Explanatory Memorandum to the Fair Work Bill 2008
(EM) also supports the proposition that the agreement must be published in full:
‘2312. In order to promote transparency of decision-making subclause 601(4) provides that
FWA must publish certain decisions and enterprise agreements (approved by FWA under Part
2-4) as soon as practical after making the decision or approving the agreement. Decisions and
agreements must be published on FWA’s website or by any other means FWA considers
appropriate.
2313. It is intended that the requirement to publish an approved enterprise agreement is not
limited by copyright or other restrictions.’
[34] The Respondent advances two broad lines of argument. The first is that the
requirement in s.601(4)(b) to publish an enterprise agreement that has been approved under
Part 2-4 is to be read subject to the Commission’s power to make an order under s.594(1)(c))
‘prohibiting or restricting’ the publication of ‘matters contained in documents lodged with the
FWC’. In short, the Respondent contends that s.594 provides the requisite power for an order
redacting the wage rates in the published copy of an enterprise agreement. Second, the
Respondent contends that despite the redaction of the wage rates in the Oji Agreement, the
Deputy President complied with the obligation to ‘publish’ the Oji Agreement.
[35] The starting point is to construe the words of a statute according to their ordinary
meaning having regard to their context and legislative purpose. Context includes the existing
27 [2013] FWCA 5556 per Williams C.
28 [2018] FWC 4019 per Lee C.
29 Appellant’s Outline of Submissions at [28].
30 Re Logan Moulders Pty Ltd [2010] FWAA 8632 at [7].
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state of the law and the mischief the legislative provisions was intended to remedy31 and the
legislative history.32 In Project Blue Sky Inc v Australian Broadcasting Authority33 (Project
Blue Sky) the plurality (McHugh, Gummow, Kirby and Hayne JJ) explained the general
principles, drawing attention to the need to consider the context:
‘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, 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.’34
[36] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory
Revenue (Alcan),35 the High Court described the task of legislative interpretation in the
following terms:
‘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.’
[37] Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction
that would promote the purpose or object of the FW Act is to be preferred to one that would
not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts
Interpretation Act 1901 (Cth), as in force at 25 June 2009, applies to the FW Act). The
purpose or object of the FW Act is to be taken into account even if the meaning of a provision
is clear. When the purpose or object is brought into account an alternative interpretation may
become apparent. If one interpretation does not promote the object or purpose of the FW Act,
and another does, the latter interpretation is to be preferred. Of course, s.15AA requires one to
construe the FW Act in the light of its purpose, not to rewrite it.36
[38] In considering the purpose or policy of the FW Act, the objects of the FW Act set out
in s.3 are relevant:
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
31 See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [4];
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at [408]).
32 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [59];
Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [26]–[37].
33 (1998) 194 CLR 355 at 381 – 382, [69] – [71].
34 Ibid at 381, [69].
35 See (2009) 239 CLR 27 at [47].
36 Mills v Meeking (1990) 169 CLR 214 at [235].
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(a) providing workplace relations laws that are fair to working Australians, are flexible for
businesses, promote productivity and economic growth for Australia’s future economic
prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions through the National Employment Standards, modern awards and national
minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages
and conditions can no longer be undermined by the making of statutory individual
employment agreements of any kind given that such agreements can never be part of a fair
workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for
flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by
recognising the right to freedom of association and the right to be represented, protecting
against unfair treatment and discrimination, providing accessible and effective procedures to
resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules governing
industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.’
[39] Of course it must be borne in mind that the purpose or policy of the FW Act is to be
gleaned from a consideration of all of the relevant provisions of the FW Act.37 Section 577 is
also relevant to context; it provides:
‘577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.’
[40] We now turn to the text of s.601.
[41] Section 601 contains, among other things, certain publication requirements as follows:
‘601 Writing and publication requirements for the FWC's decisions
(1) The following decisions of the FWC must be in writing:
(a) a decision of the FWC made under a Part of this Act other than this Part;
37 See Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at [579]; Bowling v General Motors
Holden Ltd (1980) 33 ALR 297 at [304].
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(b) an interim decision that relates to a decision to be made under a Part of this Act
other than this Part;
(c) a decision in relation to an appeal or review.
Note: For appeals and reviews, see sections 604 and 605.
(2) The FWC may give written reasons for any decision that it makes.
(3) A decision, and reasons, that are in writing must be expressed in plain English and be easy
to understand in structure and content.
(4) The FWC must publish the following, on its website or by any other means that the FWC
considers appropriate:
(a) a decision that is required to be in writing and any written reasons that the FWC
gives in relation to such a decision;
(b) an enterprise agreement that has been approved by the FWC under Part 2-4.
The FWC must do so as soon as practicable after making the decision or approving the
agreement.
(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to
such decisions:
(a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a);
(c) a decision to issue an entry permit under section 512;
(d) a decision to impose conditions on an entry permit under section 515;
(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;
(f) a decision to issue, or refuse to issue, an affected member certificate under section
520;
(g) a decision or reasons in relation to which an order is in operation under paragraph
594(1)(d).
(6) Subsections (1) and (4) do not limit the FWC's power to put decisions in writing or
publish decisions.’ [emphasis added]
[42] As we have mentioned, the Respondent submits that the requirement to publish an
enterprise agreement approved under Part 2-4 is to be read subject to the power in s.594(1)(c)
to make an order ‘prohibiting or restricting’ the publication of ‘matters contained in
documents lodged with the FWC’; and that, in any event, despite the redaction of the wage
rates, the Deputy President complied with the obligation to ‘publish’ the Oji Agreement. It is
convenient to deal with the second proposition first.
[43] The Respondent submits that despite the redaction of the wage rates, the Oji
Agreement has been published on the Commission’s website, as required by s.601(4):
‘Just because a small amount of information has been redacted in a document, this does not
mean that the document has not been “published”’ …
The FWC frequently redacts information in documents filed with the FWC before publishing
the documents on the website, without issuing orders under section 594, e.g. phone numbers,
signatures, and personal addresses on witness statements, correspondence and submissions.
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This sensible and practical approach does not mean that the documents are not being
“published”.’38
[44] Both of the propositions advanced above lack merit. As to the first, the
characterisation of the redaction decision as the redaction of ‘a small amount of information’
is inaccurate. The redacted wage rates are a central component of the Oji Agreement and are
of obvious importance to the employees covered by the Oji Agreement. The redaction of the
wage rates also makes it impossible for any interested party to form their own view of
whether the Oji Agreement met the ‘better off overall test’ in ss.186(2)(d) and 193.
[45] As to the second proposition, we agree that the Commission frequently redacts phone
numbers, signatures and personal addresses from documents before they are published on the
website. But that doesn’t advance the Respondent’s argument. The documents from which
such redactions are commonly made (which include witness statements, correspondence and
submissions) are not documents which the Commission must publish pursuant to s.601.
[46] The argument advanced by the Respondent turns on the meaning of the word ‘publish’
in s.601. The Respondent submits that ‘publish’ is sufficiently wide to encompass the
publication of an enterprise agreement with wage rates redacted. We disagree.
[47] If the Respondent were correct, then s.601 would on its own terms permit the
publication of a decision with redactions and, if that were the case, then what purpose is
served by the power in s.594(1)(d) to restrict the publication of part of a decision? Indeed, the
same question may be asked of s.601(5)(g), which provides that the requirement to publish a
decision under s.601(4) is subject to an order under s.594(1)(d). The interpretation sought to
be put on the word ‘publish’ in s.601(4) by the Respondent would render parts of s.601(5) and
s.594 otiose. As Gummow J observed in Minister for Resources v Dover Fisheries Pty Ltd:39
‘[it is] improbable that the framers of the legislation could have intended to insert a provision
which has virtually no practical effect, one should look to see whether any other meaning
produces a more reasonable result’.
[48] In our view, s.601(4)(b) requires the Commission to publish in full an ‘enterprise
agreement that has been approved by the FWC’. The construction we have adopted reflects
the ordinary, everyday meaning of the word ‘publish’. As observed by Lindblom J in R. (on
the application of Michael Williams) v Secretary of State for Energy and Climate Change:40
‘the normal meaning of the verb to “publish” [is] … to “[make] generally known, declare or
report openly; announce …” (Shorter Oxford English Dictionary, sixth edition).’
[49] Returning to the text of s.601, the relevant part provides:
‘(4) the FWC must publish the following, on its website or by any other means that the
FWC considers appropriate:
38 Respondent subs at 38 and 40.
39 (1993) 43 FCR 565 at 574.
40 [2015] EWHC 1202 (Admin) at [44].
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… (b) an enterprise agreement that has been approved by the FWC under Part 2-4.’
[50] 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:41
‘Substantial, indeed often, but not always, determinative, weight must be given to language
which is in mandatory form’.
[51] The expression ‘must publish’ in s.601(4)(b) 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.42 In that case, the Court was
construing s.424A of the Migration Act 1958 (Cth), which provides:
‘424A 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]
[52] The use of the words ‘must give’ was described by various members of the Court as
‘imperative’.43 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
41 (2010) 272 ALR 750 at [40].
42 (2005) 228 CLR 294.
43 Ibid at [68] per McHugh J; [136] per Gummow J; [173] per Kirby J and [206] per Hayne J.
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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.’44
[53] Section 601(4)(b) uses language in mandatory form, and on an ordinary grammatical
reading the words ‘must publish’ ‘an enterprise agreement that has been approved by the
FWC under Part 2-4’ means publishing the whole ‘enterprise agreement’. The Commission
does not approve a redacted agreement. The context supports such a construction.
Parliament’s intention that all approved enterprise agreements be published in full is evident
from the trouble taken to include ‘an enterprise agreement that has been approved by the
FWC under Part 2-4’ in a section that otherwise deals exclusively with the writing and
publication of decisions.
[54] A further contextual issue is that the publication requirement under s.601(4) is subject
to the specific exceptions in s.601(5):
‘(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to
such decisions:
(a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a);
(c) a decision to issue an entry permit under section 512;
(d) a decision to impose conditions on an entry permit under section 515;
(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;
(f) a decision to issue, or refuse to issue, an affected member certificate under section
520;
(g) a decision or reasons in relation to which an order is in operation under paragraph
594(1)(d).’
[55] The Respondent submits that as the subject matter of s.601(5) is limited to the
specified Commission decisions or the reasons for those decisions, ‘there is no legitimate
basis for taking this section into account in interpreting the meaning of s.601(4)(b) or
s.594(1)(c) which relate to a different type of subject matter’.45 We reject the proposition
advanced; it is plainly contrary to principle. The process of statutory construction always
involves an examination of the context of the provision that is being construed. Section
601(5) is plainly part of the context which is relevant to the construction of s.601(4)(b).
[56] As mentioned earlier, the requirement to publish a decision or reasons for decision
under s.601(4)(a) is qualified by s.601(5)(g), which recognises that a ‘confidentiality order’
might be made under s.594(1)(d). There is no qualification in s.601 of the requirement under
s.601(4)(b) to publish ‘an enterprise agreement that has been approved’. The absence of any
express qualification to the requirement to publish an enterprise agreement tells against the
44 Ibid at [68]-[71], also [136] per Gummow J, [173] per Kirby J and [204] per Hayne J. Also see: Corporation of the City of
Enfield v Development Assessment Corporation (2000) 199 CLR 135 at [6], [28] and [32]-[33] per Gleeson CJ, Gummow,
Kirby and Hayne JJ; Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 134 ALR 51.
45 Submissions of the Respondent at [33].
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proposition that s.601(4)(a) is to be read subject to the Commission’s power to make an order
under s.594(1)(c).
[57] We now turn to the argument advanced by the Respondent that s.594 provides the
requisite power for an order redacting the wage rates in the published copy of an enterprise
agreement. The essence of the argument put is that the requirement to publish under
s.601(4)(b) is to be read subject to the Commission’s power to make an order under
s.594(1)(c) ‘prohibiting or restricting’ the publication of ‘matters contained in documents
lodged with the FWC’.
[58] Sections 594(1)(c) and 604(4)(b) of the FW Act must be read in context by reference
to the language of the FW Act as a whole.46 The relevant legislative context may operate to
limit a word or expression of wide possible connotation,47 and as observed earlier, the literal
meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be
displaced by the context and legislative purpose.48
[59] Section 594 states:
‘594 Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the following in
relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the
matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of
any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in relation to
the matter;
(c) matters contained in documents lodged with the FWC or received in evidence by
the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter.
(2) Subsection (1) does not apply to the publication of a submission made to the FWC for
consideration in an annual wage review (see subsection 289(2)).’ [emphasis added]
[60] The Respondent advances two points in respect of s.594. The first is that while the
heading to s.594 refers to ‘Confidential evidence’ that heading does not operate to constrain
the scope of the section and must give way to the clear and unambiguous words of the section.
[61] We accept that the heading of s.594 does not operate to constrain the scope of the
section such that it only authorises an order prohibiting or restricting the publication of
46 See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
47 See Prior v Sherwood (1906) 3 CLR 1054; Transport Workers’ Union of Australia NSW Branch v No Fuss Liquid Waste
Pty Limited [2017] FCA 982 at [47].
48 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
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confidential evidence. We note that the section heading does not form part of the FW Act.
Section 13 of the Acts Interpretation Act 1901 (Cth) (as in force at 25 June 2009) provides:
‘13 Headings, schedules, marginal notes, footnotes and endnotes
(1) The headings of the Parts Divisions and Subdivisions into which any Act is divided shall
be deemed to be part of the Act.
(2) Every schedule to an Act shall be deemed to form part thereof.
(3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act,
shall be taken to be part of the Act.’ [emphasis added]
[62] While not part of the FW Act, the heading to s.594 forms part of the context in which
the substantive provision is to be construed. But in this instance the heading does not control
the permissible scope of the substantive provision. It is plain from the terms of s.594 that it is
not confined to confidential evidence; so much is clear from the expression ‘because of the
confidential nature of any evidence, or for any other reason’ in the prefatory words of s.594(1)
and the terms of ss.594(1)(b) and (d). The section title must give way to the clear and
unambiguous words of the section. As Latham CJ observed in Silk Bros Pty Ltd v State
Electricity Commission (Vic):
‘where the enacting words are clear and unambiguous, the title, or headings, must give way, and
full effect must be given to the enactment’49
[63] The second proposition advanced is that s.594(1)(c) allows orders to be made in
relation to ‘matters contained in documents lodged with the FWC’; that ‘wage rates’ are
‘matters’; and that an enterprise agreement is a ‘document’ that is ‘lodged’ with the
Commission. On this basis, it is submitted that s.594(1)(c) empowers the Commission to
make an order redacting the wage rates in an enterprise agreement.
[64] In our view the argument put is misconceived. The enterprise agreement document
that is required to be lodged with the Commission under the FW Act, the Fair Work
Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of
the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded
that the agreement that must be published under s.601(4)(b) is that signed copy.
[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has
been approved by the Commission under Part 2-4. The enterprise agreement which is
approved, and which must be published, is not the document lodged with the Commission (ie
the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement
‘as made’.
[66] An enterprise agreement is made when it is approved by a vote of employees
(ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must
apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be
accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules
(s.185(2)).
49 (1943) 67 CLR 1 at 16.
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[67] The EM explains the rationale for requiring a ‘signed copy of the agreement’ to be
lodged:
‘761. Subclause 185(1) requires a bargaining representative to apply for FWA approval of an
enterprise agreement that has been made. This can be the employer, a bargaining
representative for an employer, or a bargaining representative for an employee.
762. Subclause 185(2) sets out the material that must accompany the application for FWA
approval. The bargaining representative must provide FWA with a signed copy of the
agreement and any other declarations required by the procedural rules of FWA. The
requirement for a bargaining representative to provide FWA with a signed copy of the
agreement is intended to ensure that the agreement that FWA considers for approval is the one
that the parties have made. …
763. The powers of FWA enable it to inform itself in relation to the application in such
manner as it considers appropriate (clause 590), including contacting the employer or
employers, their employees, and bargaining representatives.’ [emphasis added]
[68] It follows from this that if an enterprise agreement as made does not include the details
of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to
publish those details (although it may choose to do so). Further, in the event the signed copy
of the agreement lodged with the Commission is to be published, the details of the signatories
may be redacted and could also be the subject of an order under s.594(1)(c).
[69] Returning to the proposition advanced by the Respondent, context is again relevant.
As set out earlier, the publication requirement under s.601(4) is subject to the specific
exceptions in s.601(5). As we have mentioned, the absence of any express qualification or
exception to the requirement in s.601(4)(b) to ‘publish … an enterprise agreement that has
been approved’ tells against the Respondent’s contention.
[70] Further, the EM does not suggest that the requirement to publish an enterprise
agreement under s.601(4)(b) was intended to be qualified. Indeed, the EM reinforces the
natural reading of s.601(4)(b):
‘2312. In order to promote transparency of decision-making subclause 601(4) provides that
FWA must publish certain decisions and enterprise agreements (approved by FWA under Part
2-4) as soon as practical after making the decision or approving the agreement. Decisions and
agreements must be published on FWA’s website or by any other means FWA considers
appropriate.
2313. It is intended that the requirement to publish an approved enterprise agreement is not
limited by copyright or other restrictions.
2314. Subclause 601(5) provides a number of exceptions to the publication requirement. These
include various decisions concerning right of entry permits and conscientious objection
certificates. The volume of these decisions would impose a significant burden of FWA [sic]
that is not justified given that these decisions will be routine and uncontroversial.
Additionally, FWA is not required to publish decisions where an order restricting the
publication or disclosure about the matter is in place (see clause 594).’ [emphasis added]
[2018] FWCFB 7501
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[71] A number of general contextual considerations also tell against the proposition that
s.601(4)(b) is to be read subject to s.594(1)(c) so as to authorise the redaction of wage rates
from an approved enterprise agreement, for the purpose of publication.
[72] The absence of a publicly available document setting out the wages to which
employees employed under an enterprise agreement are entitled creates a barrier to the
enforcement of the agreement. Further, as we have mentioned, the redaction of wage rates
from a published enterprise agreement makes it impossible for any interested party to form
their own view as to whether the agreement met the ‘better off overall test’. Such a
consequence is inconsistent with the statutory direction in s.577(c), that the Commission must
perform its functions and exercise its powers in a manner that is ‘open and transparent’.
[73] We reject the proposition that s.594 provides the requisite power for an order to redact
wage rates from an enterprise agreement that has been approved by the Commission, for the
purpose of publication under s.601(4)(b). Indeed, in our view it is not open to the Commission
to make an order under s.594(1)(c) prohibiting or restricting publication of any material
(including wage rates) that forms part of an approved enterprise agreement.
[74] It follows that the Deputy President lacked the requisite power to make the redaction
decision. On that basis the appeal is upheld and the redaction decision is quashed. The Oji
Agreement approved by the Commission under Part 2-4, without the redaction of the wage
rates, will be published on the Commission’s website.
PRESIDENT
Appearances:
Determined on the papers.
Hearing details:
2018.
4 December.
Sydney.
Final written submissions:
Appellant – 20 November 2018
Respondent – 29 November 2018
Final reply submissions:
Appellant – 3 December 2018
Respondent – 7 December 2018
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