[2018] FWCFB 7501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

The Australian Workers’ Union
v
Oji Foodservice Packaging Solutions (Aus) Pty Ltd
(C2018/6126)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER LEE

SYDNEY, 20 DECEMBER 2018

Appeal against Decision [2018] FWCA 6202 of Deputy President Masson at Melbourne on 10 October 2018 – redaction of wage rates from published enterprise agreement approved under Part 2-4 – Sections 594 and 601 of the Fair Work Act 2009 – No power under s.594 for an order redacting wage rates in an enterprise agreement approved under Part 2-4 – person aggrieved – permission to appeal granted – appeal upheld – lack of requisite power – redaction decision quashed – Oji Agreement to be published on the Commission’s website without the redaction of the wage rates.

Background

[1] This matter concerns an appeal by The Australian Workers’ Union (the AWU) from a decision by Deputy President Masson in Re Oji Foodservice Packaging Solutions (Aus) Pty Ltd 1 (the Decision) in which the Deputy President approved the Oji Foodservice Packaging Solutions (Aus) Pty Ltd Employee Enterprise Agreement 2018 (the ‘Oji Agreement’) and decided to redact the wage rates from the published version of the Oji Agreement.

[2] The employer, Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji Pty Ltd or the Respondent), was the applicant in the proceedings at first instance. The Oji Agreement was made on 25 June 2018 and the relevant reference instrument is the Graphic Arts, Printing and Publishing Award 2010 (the Graphic Arts Award).

[3] The Deputy President’s reasons for decision confirmed his satisfaction that the requirements in ss.186, 187, 188 and 190 of the Fair Work Act 2009 (Cth) (the FW Act) were met and that, pursuant to a request made by the employer, the wage rates contained within the Oji Agreement would be redacted in the published version. At [4] of the Decision, the Deputy President says:

‘The Applicant requested redaction of wage information provided at pages 24 to 31 of the Agreement on the basis of the highly competitive nature of the Applicant’s industry, and on which submissions were made. Having regard to the circumstances of the Applicant and their submissions I am satisfied that this is a reasonable request and that wage rate information will be redacted.’

[4] The part of the Decision which is the subject of the appeal is the Deputy President’s decision to redact the wage rates (the redaction decision).

[5] The parties consented to the appeal being dealt with on the papers, without a hearing, pursuant to s.607(1) of the FW Act. To provide any other interested parties with an opportunity to be heard, the matter was listed for hearing on 4 December 2018. No parties attended the hearing.

[6] We are satisfied that the appeal can be adequately determined without persons making oral submissions and have determined the appeal on the basis of the written submissions filed by the AWU and the Australian Industry Group (Ai Group) (on behalf of Oji Pty Ltd).

The Appeal

[7] Section 604(1) provides that a ‘person who is aggrieved by a decision… made by the FWC … may appeal the decision, with the permission of the FWC’ (emphasis added). We return shortly to consider whether the AWU is a ‘person aggrieved’ by the Decision.

[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission’s) powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 2 There is no right to appeal and a matter may only be appealed with the permission of the Commission.

[9] Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so.’ The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error,4 or a preference for a different result.5

[10] Other than the special cases in s400 of the FW Act, the grounds (apart from in the public interest) for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.7 However, the fact that a particular Commission Member made an error at first instance is not necessarily a sufficient basis for the granting of permission to appeal.8

[11] The AWU advances two grounds of appeal:

‘1. The Deputy President erred in redacting the wage rates in the published version of the Agreement where there was no power to do so.

2. In the alternative to ground 1, if the Commission did have a discretion to redact the wage rates in the published version of the Agreement, the Deputy President erred in the exercise of that discretion in that:

(a) The Deputy President did not consider the principle of open justice and the expectation that material filed in the Commission should ordinarily be freely available to the public in deciding to suppress the wage rates.

(b) The Deputy President did not have regard to the clear legislative intention in favour of transparency for enterprise agreements.

(c) The Deputy President gave overriding significance to the highly-competitive nature of the employer’s industry and thereby acted upon a wrong principle.

(d) The Deputy President’s conclusion was unreasonable and plainly unjust.’

[12] Before we turn to the grounds of appeal, it is necessary to determine the AWU’s standing to bring the appeal. As we have mentioned, s.604(1) of the FW Act provides that a person ‘who is aggrieved by a decision’ may appeal a decision, with permission.

[13] A person is aggrieved by an act or decision which operates in restraint of what would otherwise have been their legal rights. 9 The expression ‘a person who is aggrieved by a decision’ should not be interpreted in a restrictive way10 and is capable of extending beyond persons whose legal interests are affected by the decision in question, to persons with ‘an interest in the decision beyond that of an ordinary member of the public.’11

[14] The AWU contends that it is a person aggrieved by the Decision within the meaning of s.604(1) of the FW Act. The essence of the submission put is that as a registered organisation of employees entitled to represent the industrial interests of employees engaged in work covered by an enterprise agreement, the AWU will ordinarily have an interest in the approval decision beyond that of an ordinary member of the public and, as such, be a person aggrieved. 12

[15] We accept that the AWU’s rules provide coverage of work which is encompassed by the classifications in the Oji Agreement.

[16] The AWU submits that its interest in the redaction decision arises out of its interest in researching and maintaining industry standards in those sectors in which it has rules coverage. In support of that proposition, the AWU refers to the objects of its rules, which include:

‘(1) To uphold the rights of organised labour and to improve, protect and foster the best interests of its members and to assist them to obtain their rights under industrial and social legislation.

(2) To regulate, protect and advance the conditions of labour, the relations between workers and between workers and employers, including by collective bargaining. To regulate the conditions of trade, business or industry in which members work.’ 13

[17] The AWU submits that as part of achieving those objects, it relies upon wage rates and other information contained within published enterprise agreements to:

(i) identify prevailing conditions and emerging trends in its industries;

(ii) assess whether industrial instruments satisfy the better off overall test and other statutory tests;

(iii) ascertain the wages of comparable worksites across an industry to inform its collective bargaining activities.

[18] On that basis it is submitted that the decision to authorise the redaction of wage rates in the Oji Agreement interferes with the AWU’s ability to undertake this research and further the objects set out in its rules, 14 and that should this practice be adopted more broadly by Commission Members, the capacity for the AWU to use wage rates in enterprise agreements to identify industry trends may progressively diminish.

[19] The Respondent submits that the fact that an organisation has a general representational role in an industry is an inadequate basis for satisfying the ‘aggrieved person test’, 15 and further, submits that countless academics, students, economists, statisticians and other members of the public have an interest in wage trends and outcomes and there is nothing unusual about the AWU’s interest in these matters.16

[20] The Respondent also submits that the AWU was not a bargaining representative for the Oji Agreement and consequently had no right to be covered by the Oji Agreement. It further submits that the AWU does not claim to have any member covered by the Oji Agreement or to be representing an employee covered by the Oji Agreement. 17

[21] In CEPU and AMWU v Main People Pty Ltd 18 (Main People) a Full Bench considered the issue of standing in circumstances where the appellant unions sought to appeal the approval of an enterprise agreement, and concluded:

‘[6] The respondent submitted that neither of the appellants are a ‘person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public’. Neither union was a bargaining representative for the Agreement, nor was there any evidence that any employee of the respondent at the time of the vote to approve the Agreement was a member of either union. Further there was no evidence that any subsequent employees of the respondent had asked the appellants to represent their interests in relation to the Agreement.

[7] The appellants have the right to represent employees under the terms of the Agreement. Moreover, given the nature of the respondent’s business, and the industry within which it operates, we are satisfied that it is likely that some members of the appellants will be employed by the respondent in the future, in classifications covered by the Agreement. In the circumstances of this case we consider that this gives the appellants an interest in the decision to approve the Agreement beyond that of an ordinary member of the public. Accordingly, we are satisfied that the appellants have standing to appeal the decision to approve the Agreement.’ 19

[22] As observed by the Full Bench in CFMEU v CSRP Pty Ltd, 20 the reference in the last passage quoted above to ‘the right to represent employees under the terms of the Agreement’ should properly be understood to be a reference to the respective unions’ right under their rules to enrol as members employees covered by the agreement and to represent the industrial interests of those employees, rather than referring to any right conferred by the agreement itself.

[23] In our view, the reasoning and conclusion set out in Main People is applicable to the question of standing raised in this appeal and we are not persuaded that Main People and decisions of the Commission which have followed it are materially distinguishable or that those decisions are clearly wrong and ought not to be followed.

[24] Although none of the employees who voted to approve the Oji Agreement were members of the AWU, and the AWU was not a bargaining representative for the Oji Agreement, we consider that for the reasons it advances, the AWU has the requisite interest in the Decision. The context is important. The appeal goes to whether the Deputy President had power to make the redaction decision. As the court observed in Tweed Valley Fruit Processors Pty Ltd v Ross and others: 21

‘There is room for the view that a wider category of people has a legitimate interest in ensuring that the Commission acts within its jurisdiction than those who are directly affected by a particular decision, and so allowed to agitate its merits.’

[25] We are satisfied that the AWU is a person aggrieved by the redaction decision and accordingly has the requisite standing to appeal that decision.

[26] We now turn to the question of permission to appeal.

[27] The AWU submits that it is in the public interest to grant permission to appeal because there is a diversity of decisions of the Commission at first instance requiring appellate guidance, and that the point of law raised by the appeal is a matter of importance and general application involving whether Parliament intended to allow confidentiality orders to affect public access to industrial instruments approved by the Commission. We agree.

[28] There are a number of Commission enterprise agreement approval decisions in which a Member has, at the request of one or more parties, ordered that certain matters contained within the agreement (such as pay rates) be kept confidential. For example:

• Abbe Corrugated Pty Ltd Agreement 2015 22 – rates of pay to be treated as confidential and not published;

• Chemtrans Western Australian Enterprise Agreement 2015 23 – wage rates to be kept confidential between the parties; and

• Montague Cold Storage Tullamarine & National Union of Workers Enterprise Agreement 2014 24 – wage rate appendix to be kept confidential between the parties.

[29] There are also a number of Commission enterprise agreement approval decisions in which a Member has declined a request from one or more parties to keep matters contained in the agreement confidential, on the basis that the FW Act does not permit this. For example:

• Logan Moulders Pty Ltd; 25

• Mindpearl AG re Mindpearl AG Union Enterprise Agreement 26 – in circumstances where pay rates form part of the enterprise agreement which was made, there is no discretion to not publish the agreement without amendment as required by s.601;

• Electricity Networks Corporation T/A Western Power 27 – s.601 requires publication of the agreement in full, including the classification and remuneration schedule; and

• Boeing Defence Australia Limited. 28

[30] This is the first occasion on which this issue has been the subject of consideration by a Full Bench. The appeal turns on the proper construction of ss.594(1)(c) and 601(4)(b) of the FW Act. We are satisfied that the issues raised enliven the public interest and that it is in the public interest to grant permission to appeal. We grant permission on that basis.

[31] We now turn to the submissions advanced on appeal. As will become apparent, we have only found it necessary to deal with the first ground of appeal; that the redaction decision was made without the requisite power.

[32] The AWU submits that there is nothing in s.601 of the FW Act or any other provision of the FW Act to suggest that the requirement to publish an enterprise agreement means anything other than that the agreement must be published in full. 29 In support of this proposition, the AWU refer to the observation of Senior Deputy President Richards in Re Logan Moulders Pty Ltd:30

‘In circumstances in which the wage rates form part of the Agreement which was made, there is no discretion for Fair Work Australia (“FWA”) to not publish the Agreement without amendment. This is made sufficiently clear at s.601 of the Act.’

[33] The AWU contends that the Explanatory Memorandum to the Fair Work Bill 2008 (EM) also supports the proposition that the agreement must be published in full:

‘2312. In order to promote transparency of decision-making subclause 601(4) provides that FWA must publish certain decisions and enterprise agreements (approved by FWA under Part 2-4) as soon as practical after making the decision or approving the agreement. Decisions and agreements must be published on FWA’s website or by any other means FWA considers appropriate.

2313. It is intended that the requirement to publish an approved enterprise agreement is not limited by copyright or other restrictions.’

[34] The Respondent advances two broad lines of argument. The first is that the requirement in s.601(4)(b) to publish an enterprise agreement that has been approved under Part 2-4 is to be read subject to the Commission’s power to make an order under s.594(1)(c)) ‘prohibiting or restricting’ the publication of ‘matters contained in documents lodged with the FWC’. In short, the Respondent contends that s.594 provides the requisite power for an order redacting the wage rates in the published copy of an enterprise agreement. Second, the Respondent contends that despite the redaction of the wage rates in the Oji Agreement, the Deputy President complied with the obligation to ‘publish’ the Oji Agreement.

[35] The starting point is to construe the words of a statute according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief the legislative provisions was intended to remedy 31 and the legislative history.32 In Project Blue Sky Inc v Australian Broadcasting Authority33 (Project Blue Sky) the plurality (McHugh, Gummow, Kirby and Hayne JJ) explained the general principles, drawing attention to the need to consider the context:

‘the meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.’ 34

[36] More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Alcan), 35 the High Court described the task of legislative interpretation in the following terms:

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

[37] Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901 (Cth), as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires one to construe the FW Act in the light of its purpose, not to rewrite it. 36

[38] In considering the purpose or policy of the FW Act, the objects of the FW Act set out in s.3 are relevant:

‘3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.’

[39] Of course it must be borne in mind that the purpose or policy of the FW Act is to be gleaned from a consideration of all of the relevant provisions of the FW Act. 37 Section 577 is also relevant to context; it provides:

‘577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.’

[40] We now turn to the text of s.601.

[41] Section 601 contains, among other things, certain publication requirements as follows:

‘601 Writing and publication requirements for the FWC's decisions

(1) The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other than this Part;

(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;

Note: For appeals and reviews, see sections 604 and 605.

(2) The FWC may give written reasons for any decision that it makes.

(3) A decision, and reasons, that are in writing must be expressed in plain English and be easy to understand in structure and content.

(4) The FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

(a) a decision that is required to be in writing and any written reasons that the FWC gives in relation to such a decision;

(b) an enterprise agreement that has been approved by the FWC under Part 2-4.

The FWC must do so as soon as practicable after making the decision or approving the agreement.

(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:

(a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a);

(d) a decision to impose conditions on an entry permit under section 515;

(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;

(f) a decision to issue, or refuse to issue, an affected member certificate under section 520;

(g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).

(6) Subsections (1) and (4) do not limit the FWC's power to put decisions in writing or publish decisions.’ [emphasis added]

[42] As we have mentioned, the Respondent submits that the requirement to publish an enterprise agreement approved under Part 2-4 is to be read subject to the power in s.594(1)(c) to make an order ‘prohibiting or restricting’ the publication of ‘matters contained in documents lodged with the FWC’; and that, in any event, despite the redaction of the wage rates, the Deputy President complied with the obligation to ‘publish’ the Oji Agreement. It is convenient to deal with the second proposition first.

[43] The Respondent submits that despite the redaction of the wage rates, the Oji Agreement has been published on the Commission’s website, as required by s.601(4):

‘Just because a small amount of information has been redacted in a document, this does not mean that the document has not been “published”’ …

The FWC frequently redacts information in documents filed with the FWC before publishing the documents on the website, without issuing orders under section 594, e.g. phone numbers, signatures, and personal addresses on witness statements, correspondence and submissions. This sensible and practical approach does not mean that the documents are not being “published”.’ 38

[44] Both of the propositions advanced above lack merit. As to the first, the characterisation of the redaction decision as the redaction of ‘a small amount of information’ is inaccurate. The redacted wage rates are a central component of the Oji Agreement and are of obvious importance to the employees covered by the Oji Agreement. The redaction of the wage rates also makes it impossible for any interested party to form their own view of whether the Oji Agreement met the ‘better off overall test’ in ss.186(2)(d) and 193.

[45] As to the second proposition, we agree that the Commission frequently redacts phone numbers, signatures and personal addresses from documents before they are published on the website. But that doesn’t advance the Respondent’s argument. The documents from which such redactions are commonly made (which include witness statements, correspondence and submissions) are not documents which the Commission must publish pursuant to s.601.

[46] The argument advanced by the Respondent turns on the meaning of the word ‘publish’ in s.601. The Respondent submits that ‘publish’ is sufficiently wide to encompass the publication of an enterprise agreement with wage rates redacted. We disagree.

[47] If the Respondent were correct, then s.601 would on its own terms permit the publication of a decision with redactions and, if that were the case, then what purpose is served by the power in s.594(1)(d) to restrict the publication of part of a decision? Indeed, the same question may be asked of s.601(5)(g), which provides that the requirement to publish a decision under s.601(4) is subject to an order under s.594(1)(d). The interpretation sought to be put on the word ‘publish’ in s.601(4) by the Respondent would render parts of s.601(5) and s.594 otiose. As Gummow J observed in Minister for Resources v Dover Fisheries Pty Ltd: 39

‘[it is] improbable that the framers of the legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result’.

[48] In our view, s.601(4)(b) requires the Commission to publish in full an ‘enterprise agreement that has been approved by the FWC’. The construction we have adopted reflects the ordinary, everyday meaning of the word ‘publish’. As observed by Lindblom J in R. (on the application of Michael Williams) v Secretary of State for Energy and Climate Change: 40

‘the normal meaning of the verb to “publish” [is] … to “[make] generally known, declare or report openly; announce …” (Shorter Oxford English Dictionary, sixth edition).’

[49] Returning to the text of s.601, the relevant part provides:

‘(4) the FWC must publish the following, on its website or by any other means that the FWC considers appropriate:

… (b) an enterprise agreement that has been approved by the FWC under Part 2-4.’

[50] While there is no decisive rule that can be applied to determine legislative purpose, the decided cases provide some guidance in analogous circumstances. A textual indicator which is always of significance is the mode of expression in the provision in question, as Spigelman CJ observed in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd: 41

‘Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form’.

[51] The expression ‘must publish’ in s.601(4)(b) is language in mandatory form. A similar conclusion, albeit in a different context, was reached by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs. 42 In that case, the Court was construing s.424A of the Migration Act 1958 (Cth), which provides:

‘424A Applicant must be given certain information.

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

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

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

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

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

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

[52] The use of the words ‘must give’ was described by various members of the Court as ‘imperative’. 43 As McHugh J put it:

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

Because the language of s.424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section ... There was some debate before this Court as to whether the term ‘must’ in s.424A(1) necessarily imposed a mandatory requirement to provide the information in writing in all circumstances. However, in the absence of any qualifying terms, the natural meaning of the section is that the Tribunal is compelled in all circumstances to provide the information in writing. This is so, even if the Tribunal puts the information to the applicant at an interview or when the applicant appears before the Tribunal to give evidence and present arguments. Such a construction is consistent with the purpose of the section to accord the applicant procedural fairness in the conduct of the review.’ 44

[53] Section 601(4)(b) uses language in mandatory form, and on an ordinary grammatical reading the words ‘must publish’ ‘an enterprise agreement that has been approved by the FWC under Part 2-4’ means publishing the whole ‘enterprise agreement’. The Commission does not approve a redacted agreement. The context supports such a construction. Parliament’s intention that all approved enterprise agreements be published in full is evident from the trouble taken to include ‘an enterprise agreement that has been approved by the FWC under Part 2-4’ in a section that otherwise deals exclusively with the writing and publication of decisions.

[54] A further contextual issue is that the publication requirement under s.601(4) is subject to the specific exceptions in s.601(5):

‘(5) Subsection (4) does not apply to any of the following decisions or reasons in relation to such decisions:

(a) a decision to issue, or refuse to issue, a certificate under paragraph 368(3)(a);

(d) a decision to impose conditions on an entry permit under section 515;

(e) a decision to issue, or refuse to issue, an exemption certificate under section 519;

(f) a decision to issue, or refuse to issue, an affected member certificate under section 520;

(g) a decision or reasons in relation to which an order is in operation under paragraph 594(1)(d).’

[55] The Respondent submits that as the subject matter of s.601(5) is limited to the specified Commission decisions or the reasons for those decisions, ‘there is no legitimate basis for taking this section into account in interpreting the meaning of s.601(4)(b) or s.594(1)(c) which relate to a different type of subject matter’. 45 We reject the proposition advanced; it is plainly contrary to principle. The process of statutory construction always involves an examination of the context of the provision that is being construed. Section 601(5) is plainly part of the context which is relevant to the construction of s.601(4)(b).

[56] As mentioned earlier, the requirement to publish a decision or reasons for decision under s.601(4)(a) is qualified by s.601(5)(g), which recognises that a ‘confidentiality order’ might be made under s.594(1)(d). There is no qualification in s.601 of the requirement under s.601(4)(b) to publish ‘an enterprise agreement that has been approved’. The absence of any express qualification to the requirement to publish an enterprise agreement tells against the proposition that s.601(4)(a) is to be read subject to the Commission’s power to make an order under s.594(1)(c).

[57] We now turn to the argument advanced by the Respondent that s.594 provides the requisite power for an order redacting the wage rates in the published copy of an enterprise agreement. The essence of the argument put is that the requirement to publish under s.601(4)(b) is to be read subject to the Commission’s power to make an order under s.594(1)(c) ‘prohibiting or restricting’ the publication of ‘matters contained in documents lodged with the FWC’.

[58] Sections 594(1)(c) and 604(4)(b) of the FW Act must be read in context by reference to the language of the FW Act as a whole. 46 The relevant legislative context may operate to limit a word or expression of wide possible connotation,47 and as observed earlier, the literal meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be displaced by the context and legislative purpose.48

[59] Section 594 states:

‘594 Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).’ [emphasis added]

[60] The Respondent advances two points in respect of s.594. The first is that while the heading to s.594 refers to ‘Confidential evidence’ that heading does not operate to constrain the scope of the section and must give way to the clear and unambiguous words of the section.

[61] We accept that the heading of s.594 does not operate to constrain the scope of the section such that it only authorises an order prohibiting or restricting the publication of confidential evidence. We note that the section heading does not form part of the FW Act. Section 13 of the Acts Interpretation Act 1901 (Cth) (as in force at 25 June 2009) provides:

‘13 Headings, schedules, marginal notes, footnotes and endnotes

(1) The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.

(2) Every schedule to an Act shall be deemed to form part thereof.

(3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.’ [emphasis added]

[62] While not part of the FW Act, the heading to s.594 forms part of the context in which the substantive provision is to be construed. But in this instance the heading does not control the permissible scope of the substantive provision. It is plain from the terms of s.594 that it is not confined to confidential evidence; so much is clear from the expression ‘because of the confidential nature of any evidence, or for any other reason’ in the prefatory words of s.594(1) and the terms of ss.594(1)(b) and (d). The section title must give way to the clear and unambiguous words of the section. As Latham CJ observed in Silk Bros Pty Ltd v State Electricity Commission (Vic):

‘where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment’ 49

[63] The second proposition advanced is that s.594(1)(c) allows orders to be made in relation to ‘matters contained in documents lodged with the FWC’; that ‘wage rates’ are ‘matters’; and that an enterprise agreement is a ‘document’ that is ‘lodged’ with the Commission. On this basis, it is submitted that s.594(1)(c) empowers the Commission to make an order redacting the wage rates in an enterprise agreement.

[64] In our view the argument put is misconceived. The enterprise agreement document that is required to be lodged with the Commission under the FW Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy.

[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement ‘as made’.

[66] An enterprise agreement is made when it is approved by a vote of employees (ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules (s.185(2)).

[67] The EM explains the rationale for requiring a ‘signed copy of the agreement’ to be lodged:

‘761. Subclause 185(1) requires a bargaining representative to apply for FWA approval of an enterprise agreement that has been made. This can be the employer, a bargaining representative for an employer, or a bargaining representative for an employee.

762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made. …

763. The powers of FWA enable it to inform itself in relation to the application in such manner as it considers appropriate (clause 590), including contacting the employer or employers, their employees, and bargaining representatives.’ [emphasis added]

[68] It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c).

[69] Returning to the proposition advanced by the Respondent, context is again relevant. As set out earlier, the publication requirement under s.601(4) is subject to the specific exceptions in s.601(5). As we have mentioned, the absence of any express qualification or exception to the requirement in s.601(4)(b) to ‘publish … an enterprise agreement that has been approved’ tells against the Respondent’s contention.

[70] Further, the EM does not suggest that the requirement to publish an enterprise agreement under s.601(4)(b) was intended to be qualified. Indeed, the EM reinforces the natural reading of s.601(4)(b):

2313. It is intended that the requirement to publish an approved enterprise agreement is not limited by copyright or other restrictions.

2314. Subclause 601(5) provides a number of exceptions to the publication requirement. These include various decisions concerning right of entry permits and conscientious objection certificates. The volume of these decisions would impose a significant burden of FWA [sic] that is not justified given that these decisions will be routine and uncontroversial. Additionally, FWA is not required to publish decisions where an order restricting the publication or disclosure about the matter is in place (see clause 594).’ [emphasis added]

[71] A number of general contextual considerations also tell against the proposition that s.601(4)(b) is to be read subject to s.594(1)(c) so as to authorise the redaction of wage rates from an approved enterprise agreement, for the purpose of publication.

[72] The absence of a publicly available document setting out the wages to which employees employed under an enterprise agreement are entitled creates a barrier to the enforcement of the agreement. Further, as we have mentioned, the redaction of wage rates from a published enterprise agreement makes it impossible for any interested party to form their own view as to whether the agreement met the ‘better off overall test’. Such a consequence is inconsistent with the statutory direction in s.577(c), that the Commission must perform its functions and exercise its powers in a manner that is ‘open and transparent’.

[73] We reject the proposition that s.594 provides the requisite power for an order to redact wage rates from an enterprise agreement that has been approved by the Commission, for the purpose of publication under s.601(4)(b). Indeed, in our view it is not open to the Commission to make an order under s.594(1)(c) prohibiting or restricting publication of any material (including wage rates) that forms part of an approved enterprise agreement.

[74] It follows that the Deputy President lacked the requisite power to make the redaction decision. On that basis the appeal is upheld and the redaction decision is quashed. The Oji Agreement approved by the Commission under Part 2-4, without the redaction of the wage rates, will be published on the Commission’s website.

PRESIDENT

Appearances:

Determined on the papers.

Hearing details:

2018.

4 December.

Sydney.

Final written submissions:

Appellant – 20 November 2018

Respondent – 29 November 2018

Final reply submissions:

Appellant – 3 December 2018

Respondent – 7 December 2018

1 [2018] FWCA 6202.

2 This is so because on appeal, the Commission has power to receive further evidence pursuant to s.607(2): see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]–[46].

4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]–[27].

5 Ibid, Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

6 See also CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].

7 Wan v AIRC (2001) 116 FCR 481 at [30].

8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

9 Tweed Valley Fruit Processors Pty Ltd v Ross and others (1996) 137 ALR 70 at [90].

10 Attorney General (Gambia) v N’Jie (i.e. [1961] AC 617 at 634, cited with approval by Gibbs CJ in Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 184–185).

11 Tweed Valley Fruit Processors Pty Ltd v Ross (1996) 137 ALR 70 at [90]-[91]; Re Australian Industry Group [2010] FWAFB 4337 (11 June 2010) at [11].

12 CFMEU v Concrete Constructions (WA) Pty Ltd [2017] FWCFB 3912 [4]; CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 [8]-[13]; CEPU v Main People Pty Ltd [2014] FWCFB 8429.

13 Rules 4(1) and (2) of the Registered Rules of the AWU.

14 This point was made by the AWU in Re Boeing Defence Australia Ltd [2018] FWC 4019; see [12] of the decision.

15 See Wagstaff Piling v CFMEU [2011] FWAFB 6892 at [2].

16 Submissions of the Respondent at [9].

17 Ibid at [6].

18 [2014] FWCFB 8429.

19 [2014] FWCFB 8429 at [6]-[7]; see also Transport Workers’ Union of Australia v ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) [2016] FWCFB 91 at [20]-[23] and CEPU v Sustaining Works Pty Limited [2015] FWCFB 4422 at [18]-[19].

20 [2017] FWCFB 2101 at [12].

21 (1996) 137 ALR 70 at 91 per Wilcox CJ and Marshall J; Moore J agreeing at 96-97.

22 [2016] FWCA 896.

23 [2015] FWCA 7825.

24 [2014] FWCA 7196.

25 [2010] FWAA 8632 per Richards SDP.

26 [2011] FWAA 21 per Simpson C.

27 [2013] FWCA 5556 per Williams C.

28 [2018] FWC 4019 per Lee C.

29 Appellant’s Outline of Submissions at [28].

30 Re Logan Moulders Pty Ltd [2010] FWAA 8632 at [7].

31 See Alcan (NT) Alumina Pty Ltd v Commissioner for Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [4]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at [408]).

32 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [26]–[37].

33 (1998) 194 CLR 355 at 381 – 382, [69] – [71].

34 Ibid at 381, [69].

35 See (2009) 239 CLR 27 at [47].

36 Mills v Meeking (1990) 169 CLR 214 at [235].

37 See Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at [579]; Bowling v General Motors Holden Ltd (1980) 33 ALR 297 at [304].

38 Respondent subs at 38 and 40.

39 (1993) 43 FCR 565 at 574.

40 [2015] EWHC 1202 (Admin) at [44].

41 (2010) 272 ALR 750 at [40].

42 (2005) 228 CLR 294.

43 Ibid at [68] per McHugh J; [136] per Gummow J; [173] per Kirby J and [206] per Hayne J.

44 Ibid at [68]-[71], also [136] per Gummow J, [173] per Kirby J and [204] per Hayne J. Also see: Corporation of the City of Enfield v Development Assessment Corporation (2000) 199 CLR 135 at [6], [28] and [32]-[33] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 134 ALR 51.

45 Submissions of the Respondent at [33].

46 See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

47 See Prior v Sherwood (1906) 3 CLR 1054; Transport Workers’ Union of Australia NSW Branch v No Fuss Liquid Waste Pty Limited [2017] FCA 982 at [47].

48 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

49 (1943) 67 CLR 1 at 16.

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