Fair Work Act 2009
s.604 - Appeal of decisions

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 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 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 King 3:

“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 correct 4.

[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 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 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 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 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
(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:

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:
(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 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 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 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".


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 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:
(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 Maersk 6 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 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.

[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 case 7 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 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 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.

[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.

[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 Authority 11 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

[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 1901 15 (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;
(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 Ltd 17, 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 Billing 19 the Court observed:

“. . . 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 Revenue 21 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 Citizenship 23, 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.

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 Australia 25 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 Another 28 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 [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian Boot Trade Employ�s’ 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:

“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

(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

(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).

[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 Union 34 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.

[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
(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 National Tertiary Education Industry Union v Swinburne University of Technology 37 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 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 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.”

[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 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, 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
    ○ will be covered by the agreement; and
    ○ 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 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).

[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.

[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.

Final written submissions:

Ai Group on 18 July 2016.

Australian Chamber of Commerce and Industry on 19 July 2016.

 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.

 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].

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