Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union & others
v
Falcon Mining Pty Ltd
(C2022/229)

Appeal against decision [2021] FWC 6623 of Deputy President Saunders at Newcastle on 17 December 2021 in matter number C2020/4783

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and four of its members 1 (collectively, appellants) have lodged an appeal, for which permission is required, against a decision2 issued by Deputy President Saunders on 17 December 2021 to dismiss an application made by the CFMMEU and five other applicants pursuant to s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute in accordance with the dispute resolution procedure in clause 7 of the Falcon Mining Enterprise Agreement 20173 (2017 Agreement). The Deputy President dismissed the application on the basis that the Commission ceased to have jurisdiction to deal with the dispute because, on 14 December 2021, the 2017 Agreement ceased to operate when a new enterprise agreement with the same coverage, the Falcon Mining Enterprise Agreement 20214 (2021 Agreement), took effect. In so determining, the Deputy President applied the ratio of the Full Bench decision in Simplot v Australian Manufacturing Workers’ Union5 (Simplot). The primary contention of the appellants in their appeal is that Simplot was wrongly decided and that the Deputy President erred by following it. In the alternative, they contend that the facts of the matter before the Deputy President rendered it distinguishable from the situation considered in Simplot.

[2] The relevant factual circumstances which led to the decision are as follows. Falcon Mining Pty Ltd (respondent) is a mining contractor that provides specialist underground mining services, and is a subsidiary of Mastermyne Group Limited. The 2017 Agreement, which covered the respondent as the employer party, took effect on 10 April 2017 after it was approved by the Commission on 3 April 2017. 6 The CFMMEU was also covered by the 2017 Agreement.7 The nominal expiry date of the Agreement was three years after approval — that is, 3 April 2020 (clause 2.2). Clauses 4.1-4.3 describe the coverage of the 2017 Agreement as follows:

4.1 The parties to this agreement are:

•  Falcon Mining

•  employees of Falcon Mining for whom classifications are defined in clause 13.

4.2 The Scope of this agreement is all mining and maintenance activities that Falcon Mining is contracted to perform on mine sites in the State of New South Wales; provided that it does not apply to any work under a contract where Falcon Mining is contracted as the mine site operator.

4.3 This agreement does not apply to managerial, professional, administrative and supervisory personnel other than those appointed in writing as a leading hand or a supervisor.

[3] The classifications in clause 13.1 encompass various categories of mineworkers and tradesmen, and leading hands and supervisors.

[4] The dispute resolution procedure provided for in clause 7 is as follows:

7. Dispute resolution

7.1 In the event of a dispute about a matter under this agreement, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions under this clause.

7.2 The following procedure will be followed:

(a) Step 1 – in the first instance the grievance should be attempted to be resolved directly by the employee and if the grievance remains unresolved, the Employee should refer the matter to their immediate Supervisor.

(b) Step 2 – if the grievance remains unresolved after discussion with the Employee’s immediate Supervisor, the Employee should inform their immediate Supervisor and refer the grievance to a Falcon Site Senior Manager.

(c) Step 3 – if the grievance remains unresolved after discussion with the Falcon Site Senior Manager, the Employee should refer the grievance to the General Manager of Falcon (or to Falcon’s nominated representative).

(d) Step 4 – if the matter remains unresolved, it may be referred to the Fair Work Commission for resolution by mediation or conciliation.

(e) Step 5 – should mediation or conciliation fail to resolve the issue, the dispute may be referred to the Fair Work Commission for resolution by arbitration.

7.3 By agreement, one or more of steps one to four in the procedure may be by-passed to achieve an acceptable resolution of the grievance.

7.4 Any of the parties may ask to involve Mastermyne Group’s Head Office representative in the process, at any stage, if they believe that it will assist in the resolution of the dispute.

7.5 If a dispute arises, there will be no stoppage of work. Work will continue in accordance with the direction of Falcon Mining, the Employee’s recognised skills, competence and training, and safe working practices.

7.6 Any party to the dispute in question may be represented from step 1 as they see fit.

[5] Clause 11 of the 2017 Agreement deals with termination of employment. Clause 11.7 provides that where termination of an employee occurs due to redundancy, “the employee (other than a casual or a fixed term employee)” is entitled to a minimum of four weeks’ notice of termination or payment in lieu thereof. Clause 11.8 relevantly provides that an employee whose employment is terminated by retrenchment must, if the employee has 70 or more hours of untaken personal leave entitlement, be paid out that entitlement. Clause 12 of the 2017 Agreement deals with redundancy, and clauses 12.3 and 12.4 provide for entitlements to redundancy pay. Clause 12.1 provides however that clause 12 does not apply to “employees engaged for a fixed term or a specified task or casual employees”.

[6] From about 1 November 2017, the respondent provided mining services at the Narrabri coal mine pursuant to contract number NC1705 with the mine’s operator, Whitehaven Coal. On 9 June 2020, after the respondent had been notified that this contract with Whitehaven Coal would end on 26 June 2020, it wrote to its employees who performed the work to which the contract related informing them that their employment would also end on 26 June 2020. The letter relevantly stated:

“…You are employed by Falcon Mining on a fixed-term basis for the maximum commercial term of the Contract, in accordance with clause 3 of your employment contract (Employment Contract).

Further to our discussions today, we now confirm that your employment will come to an end on 26 June 2020, the date that the Contract will reach its maximum commercial term. You are required to attend site to work your remaining rostered shifts up until and including 26 June 2020.

. . .

On cessation o[f] your employment, Falcon Mining will pay you any accrued but untaken annual leave entitlements up to and including 26 June 2020.

As discussed, your employment is coming to an end in accordance with the fixed-term of your Employment Contract. Therefore, Falcon Mining is not required to provide you with notice of termination or redundancy pay.”

[7] On 19 June 2020, the CFMMEU and five of its members 8 employed by the respondent at the Narrabri mine who had received the above letter (collectively, the applicants) lodged an application pursuant to s 739 of the FW Act for the Commission to deal with a dispute under clause 7 of the 2017 Agreement. In identifying the subject matter of the dispute in their application, the applicants contended that the employee applicants and other CFMMEU members employed by the respondent at the Narrabri mine were not, as a matter of fact, fixed term employees and were therefore entitled to notice of termination or payment in lieu under clause 11.7 of the 2017 Agreement (and the National Employment Standards (NES)), payment of untaken personal leave under clause 11.8 and redundancy pay. They also contended that some of the CFMMEU’s members, including one of the employee applicants, had been treated as casual employees when in fact they were full-time employees and were consequently entitled to the benefits of full-time employees on termination of employment. The applicants sought the assistance of the Commission to attempt to resolve the issues by conciliation and, if this was unsuccessful, to have the issues “resolved by determination”.

[8] After the matter was allocated to the Deputy President, he conducted conciliation conferences on 25 June, 15 July and 27 October 2020. In the course of the conciliation process, the respondent produced a redacted copy of its contract with Whitehaven Coal in accordance with a direction made by the Deputy President on 27 July 2020. 9 After the third conciliation conference failed to resolve the dispute, the Deputy President issued directions requiring the parties to endeavour to reach agreement as to questions for arbitration and establishing a timetable for the filing of evidence and submissions, and set down the matter for hearing on 11 and 25 February 2021.

[9] The parties did not reach agreement on the questions for determination. The applicants’ proposed questions were:

1. Whether any of Falcon Mining’s employees engaged to perform work at the Narrabri Underground Coal Mining Operation are entitled to:

a. notice of termination (or payment in lieu of notice) pursuant to clause 11 of the Enterprise Agreement?

b. payment of untaken paid personal/carer’s leave at the termination of their employment pursuant to clause 11.8 of the Enterprise Agreement?

c. payment of severance pay and/or retrenchment pay pursuant to clause 12 of the Enterprise Agreement?

d. payment in respect of their accrued entitlement to paid annual leave under clause 21 of the Enterprise Agreement and s 90(2) of the Fair Work Act 2009 (Cth)?

2. If the answer to any of the questions in 1 above is “yes”, what amount is payable in respect of each employee?

[10] Falcon Mining’s proposed question was:

Are the Employees fixed term (including maximum term) employees under clause 8.2 of the Enterprise Agreement?

[11] On 9 November 2020 the Deputy President determined that he would determine all parties’ questions in the arbitration.

[12] The matter was thereafter the subject of significant procedural delay. The hearing dates in February 2021 were vacated by consent on the basis that the respondent wished to instruct counsel in the matter. Further hearing dates listed in May 2021 were vacated because the applicants wished to press an application for an order for the production of documents which it had made on 31 March 2021. The Deputy President issued such an order on 23 April 2021. 10 The Deputy President then issued an interlocutory decision concerning the redaction of documents produced by the respondent on 25 June 2021.11 After dates listed in September 2021 became unavailable because of a scheduling clash, the matter was listed for in-person hearing on 13, 14 and 15 October 2021, and the additional date of 7 December 2021 was subsequently added for closing oral submissions. On 3 September 2021, the applicants sought, and the respondent did not oppose, a relisting of the hearing because of the likely duration of the Covid-19 lockdown in Sydney and the applicants’ preference for an in-person hearing. In response, on 28 September 2021 the Deputy President again vacated the hearing dates and relisted the matter for hearing on 13 to 17 December 2021.

[13] While all this was going on, the respondent was bargaining for a new enterprise agreement to replace the 2017 Agreement. The Notice of Employee Representational Rights was issued to employees on 3 February 2020. It is not clear to what extent there were negotiations following this, but there is no dispute that the CFMMEU was a bargaining representative for the proposed new agreement. On 1 September 2021, the respondent sent the proposed 2021 Agreement to relevant employees and, on 13 September 2021, the 2021 Agreement was made when a majority of voting employees approved the agreement. On 24 September 2021, the respondent lodged an application for approval of the 2021 Agreement. On 6 October 2021, the CFMMEU sent an email to the Commission indicating that, while it did not wish to be covered by the 2021 Agreement, it wished to be heard in opposition to the approval of the agreement. The CFMMEU was subsequently permitted to participate in the proceedings and to make submissions. On 7 December 2021, as earlier stated, the Commission approved the 2021 Agreement and it came into effect on 14 December 2021. The provisions of the 2021 Agreement concerning its coverage, classifications and dispute resolution procedure were the same as in the 2017 Agreement.

[14] The Simplot decision was delivered on 22 September 2020. On 8 December 2021, the Deputy President conducted a directions hearing in relation to the dispute application. It appears it was at this point that the respondent raised the issue of the consequence of the approval of the 2021 Agreement for the Commission’s jurisdiction to continue to deal with the dispute. On the same day, the Deputy President made directions for the filing of submissions “about the impact of the approval of the Falcon Mining Enterprise Agreement 2021 on the present dispute, having regard to the decision of the Full Bench of the Commission in Simplot Australia Pty Ltd v AMWU”. The Deputy President vacated the hearing dates of 13-16 December 2021, and the hearing date on 17 December 2021 remained listed for hearing “in relation to the Simplot Issue”. The Deputy President issued his decision dismissing the applicant’s s 739 application after the completion of the hearing on the same day.

The statutory framework

[15] The scheme for bargaining for, making, approval, variation and termination of enterprise agreements is set out in Pt 2-4 of the FW Act. Only two aspects of that scheme are presently relevant. First, s 172 contemplates the making of two types of enterprise agreements: single-enterprise agreements (s 172(2)) and multi-enterprise agreements (s 172(3)). The term “enterprise agreement” is defined in s 12, to mean a “single-enterprise agreement” or a “multi-enterprise agreement”. These terms are in turn defined in s 12 to mean an enterprise agreement “made” as referred to, respectively, in s 172(2) and s 172(3). The definition of the term “made” in s 12, in relation to an enterprise agreement, cross-refers to s 182, When an agreement is made. Section 182(1) provides, in relation to a single-enterprise agreement that is not a greenfields agreement, as follows:

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

[16] Second, s 186 prescribes a number of matters about which the Commission must be satisfied in order to approve an enterprise agreement upon application to do so. Section 186(6) requires that an agreement contain a dispute resolution procedure as follows:

Requirement for a term about settling disputes

(6)  The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

(statutory notes not reproduced)

[17] Subdivision D, Terms and conditions of employment provided by an enterprise agreement of Div 2 of Pt 2-1 of the FW Act deals with the legal effect of an enterprise agreement. In that subdivision, s 50 first provides that a person must not contravene a term of an enterprise agreement. Section 50 is a civil remedy provision, and a contravention of the section is actionable in the Federal Court of Australia, the Federal Circuit and Family Court of Australia and certain prescribed State or Territory courts (s 539). Section 51 then provides:

51 The significance of an enterprise agreement applying to a person

(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

[18] Section 52 describes the circumstances in which an enterprise agreement applies to a person who is an employer, employee or employee organisation:

52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1) An enterprise agreement applies to an employee, employer or employee organisation if:

(a) the agreement is in operation; and

(b) the agreement covers the employee, employer or organisation; and

(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

[19] Section 53 sets out the circumstances in which an enterprise agreement covers an employee, employer or employee organisation. Relevantly, s 53(1) provides that an agreement covers and employee or employer if it is expressed to cover the employee or employer. However, s 53(5) provides:

Enterprise agreements that have ceased to operate

(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

[20] Section 54 defines when an enterprise agreement is in operation. Section 54(1) provides that an enterprise agreement approved by the Commission operates from seven days after approval or, if a later date is specified in the agreement, that later day. Section 54(2) provides:

(2) An enterprise agreement ceases to operate on the earlier of the following days:

(a) the day on which a termination of the agreement comes into operation under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

(statutory note not reproduced)

[21] Section 54(3) provides that an enterprise agreement that has ceased to operate can never operate again.

[22] Section 58, referred to in s 54(2) above, is the only provision in Subdiv C, Interaction between one or more enterprise agreements of Div 3 of Pt 2-1. Subsections (1) and (2) of s 58 provide:

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule – later agreement does not apply until earlier agreement passes its nominal expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date – the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

(3) …

[23] The Commission’s power to deal with disputes generally is governed by s 595 of the FW Act, which provides:

595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

[24] Subdivision B of Div 2 of Pt 6-2 of the FW Act is concerned with “Dealing with disputes”. Sections 738 and 739 provide:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

[25] Noting that s 595(3) contemplates the Commission making orders when arbitrating a dispute, s 675 provides:

675 Contravening an FWC order

(1) A person commits an offence if:

(a) the FWC has made an order under this Act; and

(b) either of the following applies:

(i) the order applies to the person;

(ii) a term of the order applies to the person; and

(c) the person engages in conduct; and

(d) the conduct contravenes:

(i) a term of the order referred to in subparagraph (b)(i); or

(ii) the term referred to in subparagraph (b)(ii).

(2) However, subsection (1) does not apply to the following orders:

(a) an order under Part 2-3 (which deals with modern awards);

(b) a bargaining order;

(c) a scope order;

(d) an order under Part 2-6 (which deals with minimum wages);

(e) an equal remuneration order;

(f) an order under Part 2-8 (which deals with transfer of business);

(g) an order under Division 6 of Part 3-3 (which deals with the suspension or termination of protected industrial action);

(h) a protected action ballot order, or an order in relation to a protected action ballot order or a protected action ballot;

(i) an order under Part 3-5 (which deals with stand down);

(j) an order under Part 6-4B (which deals with workers bullied or sexually harassed at work);

(k) an order under Part 6-4C (which deals with the Coronavirus economic response).

Penalty:  Imprisonment for 12 months.

(3) Strict liability applies to paragraphs (1)(a) and (b).

Note:          For strict liability, see section 6.1 of the Criminal Code.

The decision under appeal

[26] In his decision, the Deputy President first noted that the parties agreed that if he applied the ratio of the Simplot decision, he must conclude that the Commission did not have jurisdiction to deal with the dispute the subject of these proceedings. 12 The Deputy President noted the CFMMEU’s submissions that Simplot was wrongly decided, and said that he did not consider that it was wrongly decided but, even if he did, he would follow it as a single member of the Commission.13

[27] The Deputy President then gave consideration to a submission advanced by the applicants in oral argument that sought to distinguish Simplot on the basis that, unlike the situation considered in Simplot, the 2017 Agreement continued to apply to the employee applicants who were party to the dispute with the respondent because they had ceased to be employed on 26 June 2020, before the 2021 Agreement came into operation. The submission put was that, for those employees who were never covered by the 2021 Agreement, s 58 and s 54(2)(b) had not been engaged, and therefore the 2017 Agreement had not ceased to operate in accordance with s 54(2). 14 The Deputy President rejected this submission on the basis that the employee applicants ceased to be covered by the 2017 Agreement (per s 53) when their employment with the respondent ended and from that point the 2017 Agreement ceased to apply (per s 52) to them. Significantly, this meant that the effect of s 58 was that there was no employee to whom the 2017 Agreement applied once the 2021 Agreement came into operation and, consequently the 2017 Agreement ceased to operate at that time as provided in s 54(2).15 The Deputy President concluded:

“An enterprise agreement which has ceased to operate does not give a person an entitlement under the agreement and does not impose any obligations on a person (s 51 of the Act). As was concluded by the Full Bench in Simplot, the ‘Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate’.” 16

The Simplot decision

[28] Simplot concerned an appeal from a decision made by a single member of the Commission in 2020 that he had jurisdiction to arbitrate a dispute arising under the dispute resolution procedure of an enterprise agreement made in 2014 that had ceased to operate upon the approval of a replacement agreement. The chronology of the matter was that the 2014 agreement had commenced operation on 5 February 2015. The relevant union (AMWU) lodged an application in the Commission to deal with a dispute under s 739 of the FW Act on 29 October 2018. On 16 November 2018, the member conciliated the dispute but it was not resolved and, on 26 November 2018, the union sought to have the matter arbitrated and for directions to be made for that purpose. On 3 December 2018, a new agreement was approved and it commenced to operate 7 days later, and it was not in dispute that as a consequence the 2014 agreement ceased to operate on 10 December 2018. The employer submitted that because the 2014 agreement ceased to operate, the Commission no longer had jurisdiction to hear and determine the dispute. This issue was the subject of a hearing on 12 March 2019. The member subsequently determined that the Commission retained jurisdiction. 17 The basis upon which he did so, as summarised in the Full Bench decision, was that the employees on whose behalf the AMWU brought the application “accrued” a right to have their dispute determined at the time the proceedings were commenced, and in the absence of any clear words in the FW Act extinguishing this right, that right survived the cessation of operation of the 2014 agreement. For the purpose of s 58(1) of the FW Act, the member determined that the relevant “particular time” was the time of the commencement of the proceedings in the Commission and, as to s 58(2)(e), the 2014 agreement remained applicable in relation to the dispute, which dealt with matters entirely in the past, and the successor agreement did not have retrospective effect.18

[29] In its consideration of the appeal, the Full Bench found that the Commission had no jurisdiction to deal with a dispute under a dispute resolution procedure in an enterprise agreement that had ceased to operate. 19 The Full Bench considered, and rejected, the first argument advanced by the AMWU in the appeal that the reference in s 738 to “enterprise agreement” includes an inoperative agreement. The Full Bench accepted that an enterprise agreement, once made, was a “thing in fact”, but said that it only has the significance conferred on it by the statute, and the provisions of the FW Act, in particular Pt 2-1, recognise coverage, application and operation of agreements but do not make provision for “any subsidiary, extra-operational effect of an enterprise agreement”.20 The Full Bench said that ss 738 and 739 made no mention of non-operational agreements having an enduring effect of serving as the jurisdictional foundation for the Commission to determine disputes, and rejected the proposition that the dispute resolution procedure in an agreement could have continuing effect after the agreement ceased to operate, since this would be inconsistent with the notion of the cessation of operation of the agreement.

[30] The Full Bench also said that the AMWU’s interpretation of ss 738 and 739 was inconsistent with the manner in which rights and obligations are created under an enterprise agreement and, in particular, that under s 51 a person does not have ongoing rights under an agreement, nor can they contravene an agreement, unless the agreement applies to them. The Full Bench said:

“Because the 2014 Agreement is inoperative, and applies to no-one, it does not give a person an entitlement. The employees and the AMWU have no right to ask the Commission to continue to hear or to determine their dispute under the defunct agreement. The role of the Commission in determining a dispute pursuant to a dispute settlement procedure in an enterprise agreement is one of private arbitration and the Commission’s powers depend on the agreement of the parties. If the source of that agreement is an inoperative enterprise agreement which can no longer impose obligations or confer rights on the parties to a dispute, a party cannot rely on its inoperative dispute settlement term as conferring jurisdiction on the Commission to arbitrate the dispute. It follows that if the enterprise agreement has ceased to operate the source of the Commission’s powers as private arbitrator cease to exist. Further, and in any event, a decision of the Commission would be unenforceable against the company: it cannot contravene the enterprise agreement unless the agreement applies to it (s 51(1)).” 21

[31] The Full Bench also rejected the AMWU’s submission that employees had an accrued right to have the Commission hear and determine their application. It said:

“Certainly, the Act establishes no such right. The fact that in other contexts, courts or arbitrators might retain jurisdiction to determine disputes when their immediate source of power is removed is of no relevance to the analysis of the Commission’s statutory power, which is its only power. For example, the question of whether a private arbitration provision in a commercial contract continues to apply after the termination of the contract depends on whether the parties have, by the language of their contract, manifested an intention for the right to private arbitration to survive the termination of the contract. In contrast and regardless of the intention of the makers of an enterprise agreement, the Act does not permit a person to continue to exercise rights under a dispute settlement procedure (or any other rights) under an enterprise agreement after the agreement has ceased to operate. The cessation of operation of the agreement means those rights no longer exist.” 22

[32] The Full Bench also contrasted the right to have a dispute determined under a superseded, inoperative agreement with an actual legal right which was vested or “accrued” under an industrial instrument, noting that a contravention of an enterprise agreement while it is in operation can be sued upon for a six-year period because of s 544 of the FW Act. The Full Bench pointed to the fact that there are no provisions equivalent to s 544 that preserve the right to bring disputes under defunct agreements to the Commission and, once an agreement ceases to have operation, no more rights can accrue under it and “[c]onsultation processes and disputes procedures all fall away”. 23 It also said that the effect of the AMWU’s submission was to confer practical application upon the inoperative agreement as the same time as an operative agreement applied to the relevant employees, and this sat “uneasily” with s 58(1) which provides that only one agreement can apply to an employee at a particular time.24

[33] The Full Bench also rejected the proposition that the dispute before the Commission dealt with matters in the past which were governed by the 2014 agreement. The Full Bench said:

“However, again, the 2014 Agreement did not govern the dispute at the time of the Deputy President’s decision, because it had ceased to operate. The Deputy President further said that he did ‘not see anything in s 58 which prevents an old agreement from applying to an employee’s employment which predates the commencement of the new agreement’. But on any view, an inoperative agreement cannot ‘apply’ to anyone, because the application of an agreement is dependent on its operation (s 52). The 2014 Agreement applied to employees in the past. But it does not apply to anyone now, nor did it apply at the time of the Deputy President’s decision. The Deputy President was not exercising power in the past. He was exercising power in the present.” 25

[34] The Full Bench in Simplot distinguished the Full Bench decision in Battye v John Holland Pty Ltd 26 (Battye) on the basis that, in Battye, the applicant employee had only made an application for conciliation of his dispute with his employer while the relevant enterprise agreement was in operation, and had only sought arbitration after the agreement had ceased operation. It said that the Full Bench in Battye was not suggesting that the Commission would necessarily have power to determine the dispute if Mr Battye had sought arbitration at a time when the relevant agreement was still in operation.27

[35] The Full Bench said it was not necessary to consider the extent to which its decision had implications for the Commission’s case law that recognised the Commission’s authority to continue to deal with an employee’s application under s 739 after their employment under the agreement has ceased, since the Commission’s jurisdiction in such cases would depend on the terms of the enterprise agreement. 28 The Full Bench rejected the proposition that policy outcomes were relevant to the interpretation of the applicable provisions of the FW Act, since “[t]he question of whether the Commission has jurisdiction to conduct the review is not affected by considerations of fairness”.29 The Full Bench pointed to the fact that “the parties were free to preserve the earlier dispute, or its further resolution, through the [successor] Agreement”, and said that if the employees concerned contended that the employer had breached the 2014 agreement, s 544 of the FW Act allowed them to bring proceedings in a court for contravention of s 50.30 Finally, the Full Bench said:

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

Appeal submissions

Appellants’ submissions

[36] The appellants’ primary contention is that the reasoning in Simplot is wrong because the approach taken in the decision is not compelled by the language of the FW Act and is at odds with the nature of the dispute resolution power being exercised by the Commission. It was submitted that the condition in s 738(b) that the Division applies if an enterprise agreement included a term that provides a procedure for dealing with disputes was satisfied by clause 7 of the 2017 Agreement, and the condition in s 739(1) that the section applies if such a term requires or allows the Commission to deal with a dispute was also satisfied by clause 7. The appellants submitted that because there is nothing in the language of clause 7 which suggests that the capacity of the Commission to conciliate or arbitrate a dispute ceased upon the 2017 Agreement being superseded by a new agreement, there could be no dispute that on 19 June 2020 (when the application to the Commission to deal with the dispute was lodged), the Commission’s jurisdiction under Pt 6-2 of the FW Act was enlivened. This position did not alter with the subsequent termination of employment of the employee applicants, it was submitted, since the ordinary position is that where an employee has validly made an application, the Commission can proceed to make an order notwithstanding that the employee is no longer employed at the time that the order is made.

[37] Once seized of a dispute, the appellants submitted, s 595(4) empowers the Commission to exercise the powers provided in Subdiv B of Division 3 of Pt 5-1 of the FW Act, and s 595(3) empowers the Commission to deal with a dispute by arbitration if expressly authorised under or in accordance with another provision of the FW Act, with s 739(4) being a term that meets that description. The FW Act, by s 739(6), conditions the further exercise of the Commission’s dispute resolution powers upon the making of an application and not upon the continuing force of any enterprise agreement, and if any term of the agreement imposes limitations on the Commission’s power, those limitations confine the exercise of the power because of s 739(3) and not by force of the agreement. The appellants submitted that nothing in the text or framework of Pt 6-2 identifies the continuing operation of the agreement under which the dispute arises as necessary for the Commission to continue dealing with a dispute, and the Part uses the term “enterprise agreement” (which need not be one which has been approved or continues in operation) without qualification. The consent required for arbitration, it was submitted, is given once and for all at the inception of the agreement under the 2017 Agreement or, at worst, at the time of referral, and that consent is not revocable in respect of matters falling within the scope of the dispute resolution term. Contractual arbitration clauses are generally construed as surviving the termination of the contract and embodying the agreement of both parties that any dispute arising concerning obligations under the contract shall be settled by a tribunal of their own choosing and, by parity of reasoning, it is inapposite to describe a dispute resolution clause in an enterprise agreement of itself as providing for entitlements and obligations. Thus, it was submitted, s 51 does not prevent the continued operation of a dispute resolution clause after the enterprise agreement ceases to apply. Alternatively, it was submitted, the legislative intention in providing for a later agreement to supersede the earlier agreement should not be construed as retrospectively eliminating the obligation and entitlement that arose under the earlier agreement.

[38] The appellants submitted that there are good reasons for the FW Act not to be interpreted so as to prevent the Commission from exercising jurisdiction once that exercise has commenced under a dispute resolution clause of an enterprise agreement. The achievement of that part of the object in s 3(e) to “enabl[e] fairness and representation at work… by… providing accessible and effective procedures to resolve grievances and disputes” would be impeded if the Commission’s capacity to deal with disputes under enterprise agreements were arbitrarily and inconveniently curtailed, even if part-heard, by an accident of timing, namely, that a new agreement happened to come into operation while the Commission was exercising its jurisdiction. Further, it was submitted, a dispute resolution procedure which operated in that way may fail to answer the description in s 186(6) in that it would require or allow the Commission to settle disputes about “any matters” arising under the agreement, and that timeframe of operation of a dispute resolution procedure would effectively be reduced to a period well short of the life of an enterprise agreement. Additionally, the Commission’s capacity to exercise its powers under s 595(4), and a party’s right to appeal to a Full Bench, would be seriously curtailed by the “race to resolution” that Simplot requires – an outcome which the drafters of the FW Act would not have intended.

[39] The appellants’ alternative submission was that Simplot was distinguishable from the current case because it was premised on the earlier agreement having ceased to operate in relation to the employees who were party to the dispute because they remained employed after the later enterprise agreement took effect and were covered by it. By contrast, in this case the 2017 Agreement had not ceased to operate in relation to the personal appellants since they were not covered by the 2021 Agreement. It was submitted that numerous Full Bench decisions had found that if an employee invokes a dispute resolution procedure in an agreement prior to termination of employment, the employee is entitled to use that procedure to completion, and it is implicit in those decisions that the cessation of employment did not result in a cessation of coverage by the relevant agreement (or application of that agreement) in respect of the particular employment which was the subject of the dispute. The appellants submitted that, in the decision under appeal, the Deputy President was incorrect in suggesting that the effect of s 53(1) of the FW Act is that an employee covered by an agreement ceased to be covered once terminated since, by reason of s 53(6), coverage relates to “particular employment”; thus, to be covered, an employee need not be performing work under the agreement at the particular time, and the concept of coverage refers to the employee’s job under the agreement rather than to the actual performance of the tasks in the present moment. It was submitted that the conditions precedent in s 58(2)(b) for the 2017 Agreement to cease to operate were not met because it continued to apply to the personal appellants and the 2021 Agreement did not apply to them.

[40] The appellants submitted that permission to appeal should be granted because it raised for reconsideration the decision in Simplot, there were arguably inconsistent Full Bench decisions concerning the Commission’s jurisdiction to arbitrate a dispute that is being heard under an enterprise agreement that is subsequently replaced by another enterprise agreement, it is in the public interest for the Commission’s jurisdiction in the circumstances of the application under appeal to be clarified and, unless the appeal were allowed, the persons the subject of the dispute would unjustly and unreasonably lose the benefit of the dispute resolution procedure.

Respondent’s submissions

[41] The respondent submitted that there is no compelling or cogent reason why the Commission should not follow the decision in Simplot, that Simplot was correctly decided and applied by the Deputy President, and there were no exceptional circumstances or distinguishing facts that warrant a different outcome in this matter. For these reasons, it was submitted, permission to appeal should be refused or the appeal should be dismissed. The respondent submitted that an application of the kind referred to in s 739(6) is not an application made under the FW Act, but rather one made under the relevant enterprise agreement, and this is to be contrasted with a provision such as s 225 under which an application once validly made may continue to be dealt with by the Commission regardless of whether the source of the entitlement to make the application has changed. The respondent characterised an application made under s 739(6) as merely a procedural step required to be followed in order for an entitlement contained elsewhere (namely in an agreement) to be enforceable by the Commission, with the power under the FW Act being restrained by the dispute settlement procedure in the agreement rather than the reverse. It was submitted that this is consistent with decisions that have found that the Commission’s power to resolve disputes under a dispute settlement procedure is a power of private arbitration rather than a statutory power, and it is irrelevant how the Commission deals with applications which seek to exercise rights or enforce obligations that arise from the FW Act rather than an enterprise agreement. The application in this case was made under the 2017 Agreement, not the FW Act, and the Commission has jurisdiction to determine the application only to the extent it is authorised under that agreement

[42] It was submitted that s 739(1) makes it clear that the source of the Commission’s jurisdiction is the dispute settlement procedure in that it provides that the Commission may exercise powers under s 739 only if permitted by the dispute settlement procedure in an agreement, and s 739(3) and (4) confirm that it is the dispute settlement procedure which limits the Commission’s powers. The respondent submitted that the appellants were incorrect in their submission that the Commission’s powers are limited by the dispute settlement procedure only to the extent that those limitations are given force by s 739(3). As the dispute settlement procedure confers a power of private arbitration, it has force to the extent that the parties consent to it in accordance with the process for making enterprise agreements set out in the FW Act, with the limits on the Commission’s jurisdiction when resolving disputes being those that are consented to by the parties to the agreement. Consequently, it was submitted, that an application may be made under a dispute settlement procedure during the time an agreement is operable is irrelevant if the procedure is no longer operable by the time the Commission purports to exercise power in accordance with it, and the Commission cannot act “in accordance with” or consider itself bound by a term of an agreement that no longer has any legal force.

[43] Sections 51-54 and s 58, it was submitted, set out a framework for when an enterprise agreement is in operation, covers and applies to a person, and set out precisely when an enterprise agreement has legal effect. If an enterprise agreement ceases to operate in accordance with these provisions, the dispute settlement procedure must cease to operate. The respondent rejected the appellants’ reliance on the fact that arbitration clauses in contracts survive the termination of the contract itself as irrelevant, since enterprise agreements are not contracts and are not akin to contracts, there is authority in any event that a contractual arbitration clause ceases to have effect if it is inoperable, and the key question remains whether the Commission can exercise jurisdiction under a dispute settlement procedure that is no longer operable.

[44] The respondent submitted that the “appropriate fetter” on the exercise of the Commission’s powers under s 739 is the dispute settlement procedure of an enterprise agreement that has been approved and continues to operate in accordance with the FW Act. It would, it submitted, be inconsistent with the text of the FW Act to hold that the Commission has jurisdiction to deal with disputes arising under an enterprise agreement in accordance with Pt 6-2 when the agreement is itself not operative under s 51-54 and s 58. The respondent rejected the appellants’ submission that time limiting the operation of a dispute settlement procedure frustrates the purpose of the FW Act and requires the parties to “race to resolution” of a dispute on the basis that:

•  speed is a core obligation of the exercise of the Commission’s powers, whether they arise from the FW Act or otherwise, and the fact that the decision in Simplot requires parties, and the Commission, to act with speed when resolving disputes under an enterprise agreement is consistent with this statutory obligation; and

•  the decision in Simplot does not leave employees with no recourse to allow large disputes to continue past the date an agreement ceases to operate, since the decision notes that such disputes can continue under a new enterprise agreement if expressly provided for in the terms of the agreement.

[45] In this case, it was submitted, there was no evidence that the CFMMEU made a claim or otherwise sought to preserve the dispute in bargaining for the 2021 Agreement, or sought to expedite the first instance proceedings or stay the 2021 Agreement approval proceedings in order to avoid the Simplot jurisdictional issue arising, so that it could not be said that the appellants did not have a fair opportunity to have their application determined by the Commission. That the alternative course of bringing proceedings in a court for breach of an enterprise agreement under s 50 of the FW Act might be less efficient than having the Commission determine the dispute is not, it was submitted, relevant to the jurisdictional question, which is not one that is resolved by reference to merit or convenience.

[46] The respondent submitted that the appellants’ alternative submission was unsustainable for the reasons set out in the Deputy President’s decision, and that the decision in Simplot did not state that the Commission cannot deal with an application brought under s 739 by a person who, at the time of the determination of the application, is no longer covered by the relevant agreement. Thus, it was submitted, the Commission could deal with applications in such cases provided the agreement is itself still operable when the Commission exercises its power to determine the dispute.

[47] The respondent submitted that there are two questions the Commission must answer when determining whether it can exercise its power to resolve disputes under an enterprise agreement:

(1) Was the person who brought the application entitled to do so, in accordance with ss 51-54 and 58 and the applicable agreement, at the time the application was brought?

(2) Does the Commission, at the time the power is exercised, have jurisdiction under an operable dispute resolution procedure to determine the dispute?

[48] If the answer to either provision is “no”, it was submitted, the Commission cannot determine an application brought under s 739. In this case, while the answer to the first question is “yes”, the answer to the second is “no” because the 2017 Agreement ceased to cover and apply to anyone on 14 December 2021 and therefore ceased to operate on that date.

Consideration

Permission to appeal

[49] We consider that it would be in the public interest to grant permission to appeal. There is tension between the decision in Simplot and at least two other Full Bench authorities, namely Battye 31 and Bluescope Steel (AIS) Port Kembla v AWU and Ors,32 as well as single-member decisions in APESMA v NSW Electricity Networks Operations Pty Limited t/a TransGrid33 and AWU v Bluescope Steel Limited.34 For the reasons set out below, we consider that there are good grounds to reconsider the outcome determined in Simplot, which has placed a significant limitation upon the Commission’s capacity to arbitrate disputes pursuant to s 739. Because we consider that the grant of permission to appeal would be in the public interest, we are required by s 604(2) to grant such permission.

Merits of the appeal

[50] The fundamental proposition which may be derived from the decision in Simplot is that, in order for the Commission to continue to arbitrate and make an arbitral decision in respect of an application for the Commission to deal with a dispute made pursuant to s 739(6) of the FW Act, the enterprise agreement to which the application relates must have operative effect in accordance with s 54 at the time the decision is made. The consequence of this proposition is said to be that there is no power to continue with such an arbitration and make an arbitral decision once the relevant enterprise agreement has ceased to operate, even if the application to deal with the dispute was made, and the parties have agreed for the purpose of s 739(4) that the Commission may arbitrate the dispute, at a time when the enterprise agreement was operative.

[51] This result appears to be at odds with the object of the FW Act and a fundamental feature of the scheme for enterprise agreements established in Pt 2-4 of the FW Act. The part of the object in s 3(e) of “providing accessible and effective procedures to resolve grievances and disputes” is plainly not served if the Commission cannot resolve a dispute which has arisen during the currency of an agreement by decision in accordance with the dispute resolution procedure in that agreement because it runs out of time to do so prior to the agreement ceasing effect. The purpose of the approval criterion for enterprise agreements contained in s 186(6), which effectively imposes a content requirement that agreements include a procedure that requires or allows the FWC (or another independent person) to settle disputes about any matters arising under the agreement or in relation to the NES, would in our view be vitiated to a significant degree if the Commission is incapable of settling a dispute about a matter which has arisen while an agreement is in operation by way of an arbitrated decision, for reasons of timing.

[52] The Simplot decision is also productive of a range of arbitrary and absurd practical consequences. It renders the power of the Commission to arbitrate disputes under s 739(4) dependent upon accidents of timing. If a dispute arises at a workplace covered by an enterprise agreement in the first week of operation of the agreement and an application is made to the Commission to resolve it, there will be plenty of time and the Commission will be empowered, at its leisure, to make a decision to resolve the dispute by arbitration where the parties have agreed that it should do so. If the dispute arises in the last week of operation of the agreement, then even if an application is speedily made to the Commission to deal with the dispute, for all practical purposes the Commission will not have power to resolve the dispute because time will run out. Even when there is some time to go before the agreement ceases operation, a range of contingencies will arbitrarily determine the capacity of the Commission to resolve the dispute. For example:

•  The dispute may be legally and factually straightforward, and the merits may point firmly in one direction, in which case the Commission will be able to hear and determine the matter quickly. By contrast, the dispute may be legally and factually complex, requiring an extensive timetable for the filing of evidence and submissions and a lengthy hearing, and the Commission member may require some time to consider the outcome and write a decision. In this case, if the agreement ceases operation before a decision can be issued, the Commission must “put down the pen” and cease dealing with the dispute at that point, no matter how much prior time and effort has been expended in relation to the matter.

•  The dispute is allocated to a member who has the capacity in their diary to hear and determine the matter quickly, and a decision is issued quickly. Alternatively, the matter is allocated to a member with a fuller diary (because, for example, other matters have not settled as anticipated and/or the member is allocated to deal with all matters in a regional area) and there is some delay in being able to list the matter for hearing. As a result, the agreement ceases operation before the matter is determined and the member must cease dealing with the matter.

•  An application is made to the Commission by an employee to deal with a dispute under an agreement. Shortly afterwards, another employee covered by the same agreement makes an application pursuant to s 225, after the nominal expiry date of the agreement, to terminate the agreement. The termination application is hotly contested and is the subject of a lengthy hearing, and the Commission member to whom the application is allocated takes some time to issue a decision granting the application and terminating the agreement. This allows sufficient time for the dispute application to be heard and determined. Alternatively, the termination application is straightforward and is able to be determined quickly, and the agreement is terminated before a decision can be issued in relation to the dispute application. The Commission must then cease dealing with the dispute application.

[53] The Simplot outcome also raises difficult questions for Commission members. If a member is dealing with an application made under s 739(6) in relation to an enterprise agreement and becomes aware that an application has been made to the Commission for approval of a replacement agreement that will lead to the earlier agreement ceasing effect, what is the appropriate course for the member to take? Should the member immediately arrange for an expedited hearing and rush to issue a decision before the replacement agreement takes effect in an effort to ensure that the dispute application is not frustrated? Or should the member simply program the matter in the normal way and allow events to take their course? Alternatively, should the member “reach out” to the other member who has been allocated the application for approval of the replacement agreement and seek to arrive at some mutual understanding as to the timing of their respective decision-making processes?

[54] In addition, the Simplot outcome raises a difficult question concerning whether, where parties bound by an enterprise agreement have agreed under s 739(4) to resolve to finality a dispute between them arising under the enterprise agreement by arbitration by the Commission, either party can subsequently commence court proceedings to determine the dispute if the arbitration process does not complete because the enterprise agreement ceases to operate. 35

[55] Some of the above difficulties are illustrated in the proceedings below before the Deputy President. As earlier stated, the application in this case was lodged on 19 June 2020 and, after the conciliation process had completed (unsuccessfully) by 27 October 2020, the Deputy President (who is a very busy member with general responsibility for matters arising in the Newcastle/Hunter Valley region) set the matter down for hearing on 11 and 25 February 2021. As we know with the benefit of hindsight, that timetable would have allowed for an arbitral decision to have been issued well before the 2017 Agreement ceased operation on 14 December 2021. However, a number of events intervened and caused a number of adjournments. The first was that the CFMMEU and the other applicants acceded to a request by the respondent for an adjournment (which was until May 2021) so as to allow the respondent to brief counsel in the matter. It would be understandable if the applicants now regretted taking this courteous and cooperative approach to the matter, particularly given the respondent’s submission now made in this appeal that “speed is a core obligation of the exercise of the Commission’s powers”. The second adjournment was at the insistence of the applicants because they wished for an interlocutory issue concerning the production of documents to be resolved prior to the hearing. The third adjournment was because of a clash in the Deputy President’s diary, and the fourth because the Covid-19 lockdown then in place was likely to prevent the attendance of legal representatives at an in-person hearing. The unusual combination of all these procedural matters, under the Simplot approach, causes the Commission to be deprived of jurisdiction in relation to an application which, absent these matters, would otherwise have been determined by an arbitral decision made within the Commission’s jurisdiction and powers. This can only be characterised as an arbitrary and anomalous outcome.

[56] The application for approval of the 2021 Agreement was made on 24 September 2021 at a time when the applicants’ dispute application was listed for hearing before the Deputy President on 13-15 October and 7 December 2021. As a bargaining representative, the CFMMEU would have been served with this application. 36 In hindsight it might have been advisable for the CFMMEU, in light of this development, to have urgently applied for an expedited hearing before the Deputy President (or before another member if necessary). If this had been done, it would have raised the difficult question of whether it would be appropriate for the Deputy President to engage in a “race to resolution” (to use the appellants’ expression) in order to beat the approval of the 2021 Agreement.

[57] To take the above matters into account in addressing the central question raised by this appeal is not to be influenced, as suggested in paragraph [35] of Simplot, by abstract notions of policy merit or fairness. The arbitrary, anomalous and nonsensical outcomes produced by the Simplot approach, its inconsistency with that part of the object of the FW Act in s 3(e) concerning dispute resolution, and its frustration of the evident purpose of s 186(6), suggest that the interpretation of the relevant provisions of the FW Act preferred by the Full Bench in Simplot is unlikely one to have been intended by the legislature. 37 The Simplot interpretation could therefore be justified only if the language of the relevant provisions is intractable, and an alternative interpretation would be preferred if one is reasonably available.

[58] Before we turn directly to the issue of how the relevant provisions of the FW Act are to be interpreted, it is necessary first to deal with the respondent’s submission in the appeal to the effect that the source of the Commission’s jurisdiction and power in respect of the resolution of disputes arising under an enterprise agreement is the agreement itself rather than the FW Act. This proposition serves as the foundation for the submission that, once an enterprise agreement ceases to operate, the Commission’s power to arbitrate a dispute, being sourced in the agreement, consequently dissipates.

[59] It is trite to say that the Commission is a creature of statute, and its powers are conferred and limited by the terms of the FW Act (or any other statute relating to its powers and functions). To the extent that it has power to arbitrate disputes, the source of that power must necessarily be located in the FW Act. Private parties cannot by agreement confer such a power on the Commission absent statutory authority to do so. As the Federal Court (Colvin J) stated in Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union: 38

“… the nature and extent of the arbitral appointments that the FWC may undertake are also confined by the extent of the statutory authority to act as arbitrator conferred on the FWC by the Act. Whereas a natural person can accept an appointment to resolve any dispute, the FWC can only do so for the purpose of performance of its statutory functions.” 39

[60] The respondent’s submission appears to proceed from a misunderstanding of the judicial characterisation of the power exercised under s 739(4) as being one of private arbitration. That characterisation has its source in the High Court decision in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission 40 (Gordonstone). Gordonstone was, for relevant purposes, concerned with the constitutional validity of s 170MH of the Industrial Relations Act 1988 (Cth) (IR Act), which provided that procedures in a certified agreement for preventing and settling disputes between employers and employees might, if the Australian Industrial Relations Commission (AIRC) approved, empower the AIRC to settle disputes over the application of the agreement or appoint a board of reference to settle such disputes. The Court rejected a contention that, by reason of s 51(xxxv) of the Constitution, a certified agreement can only validly provide for procedures for the resolution of disputes which are within the compass of the industrial dispute or situation which led to its making. In doing so, the Court distinguished between agreed and arbitrated dispute settlement procedures. The Court said:

“[30] There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

[31] Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.

[32] To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid.”

[61] The reference to “private arbitration” in the above passage has sometimes been misunderstood as meaning that when the AIRC (and the Commission under the FW Act) engages in arbitration pursuant to an agreed dispute resolution procedure, it is exercising a private, non-statutory function. However, the above passage (in [32]) makes clear that the authority to engage in private arbitration ultimately emanates from the governing statute. This point was further clarified by the High Court, by reference to [31] in the above passage, in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia 41 as follows:

“The context of that articulation puts its reference to ‘private arbitration’ in appropriate perspective. The context was that of a challenge to the capacity of a statutory body consistently with Ch III of the Constitution to exercise a statutory function to settle a dispute where so empowered by an agreement entered into as a result of statutory processes. The reference to ‘private arbitration’ was not to a private function, as distinct from a public function, but rather to a function the existence and scope of which is founded on agreement as distinct from coercion.” 42 (underlining added)

[62] Therefore, to the extent that a dispute resolution procedure in an enterprise agreement confers, conditions or limits the Commission’s power to arbitrate disputes, that conferral, condition or limitation is not effective by virtue of the operation of the agreement itself. An enterprise agreement is not a law 43 and therefore cannot of its own force delimit the powers of the Commission. Rather (as submitted by the appellants), it is s 739(4) which gives effect to an agreement by parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately a question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.

[63] The required task of statutory construction starts with s 595, which contains a general prescription as to the powers of the Commission to “deal with disputes”. It is apparent from s 595(2) and (3) that the concept of “dealing” with a dispute encompasses any dispute measures which the Commission considers appropriate to resolve a dispute, and non-exhaustively includes mediation, conciliation, making a recommendation, expressing an opinion, or arbitration. Section 595(1) provides that express authorisation is required under, or in accordance with, another provision of the FW Act for the Commission to deal with a dispute. Section 595(3) provides, to put the matter beyond doubt, that express authorisation is required under another provision of the FW Act in order for the Commission to deal with a dispute by arbitration 44 and, in order to provide further emphasis, s 595(5) prohibits the Commission from exercising the arbitration power in relation to a matter except as authorised by s 595.

[64] The term “arbitration” is not defined anywhere in the FW Act, but s 595 provides two textual indicators as to what may be involved when the Commission engages in arbitration. First, s 595(3) states that dealing with a dispute by arbitration may include the Commission “making any orders it considers appropriate” (underlining added). We shall return to the significance of the power to make orders in the course of arbitration in due course. Second, s 595(4) provides that in dealing with a dispute (which will include by arbitration), the Commission may exercise any powers it has under “this Subdivision” — that is, Subdiv B of Div 3 of Pt 5-1. Subdivision B confers a range of procedural powers upon the Commission including the power to make procedural and interim decisions (s 589), and to inform itself in relation to a matter as it considers appropriate, including by requiring the attendance of a person before the Commission or the production of documents, receiving evidence and submissions and conducting inquiries, conferences and hearings (s 590). Thus, when the Commission engages in “arbitration”, this may encompass the exercise of a range of interlocutory and procedural powers.

[65] The function of s 738 is to prescribe the circumstances in which Div 2 of Pt 6-2 applies. Broadly speaking, those circumstances relate to the existence of a dispute resolution procedure in four listed types of employment instruments, namely modern awards, enterprise agreements, contracts of employment/employment agreements and determinations made under the Public Service Act 1999 (Cth). Section 738(b) refers to a dispute resolution term in an “enterprise agreement”. The definition of “enterprise agreement” in s 12 refers to either a “single-enterprise agreement” or a “multi-enterprise agreement”. “Single-enterprise agreement” and “multi-enterprise agreement” are in turn defined in s 12 to be enterprise agreements “made” in accordance with s 172(2) and 172(3) respectively. There is no reference in these definitions to a requirement for such an agreement to be in operation in accordance with s 54. It may be noted at this point that the expression “enterprise agreement” is used elsewhere in the FW Act without necessarily referring to an agreement which is in operation: for example, when under s 186 the Commission considers whether to approve an “enterprise agreement” pursuant to an application made under s 182(4) or s 185, such an agreement is clearly not yet operative, and s 54(3) refers to an enterprise agreement that has “ceased to operate” as not being capable of operating again. It may also be noted that s 738(b), when referring to a “term that provides a procedure for dealing with disputes”, states that this includes a term referred to in s 186(6). An enterprise agreement will of course have to contain a term which meets the requirements of s 186(6) in order to be approved, and thus s 738(b) necessarily contemplates Div 2 of Pt 6-2 applying in respect of a procedure in an enterprise agreement which, to use the language of s 186(6), requires or allows the Commission to settle disputes about “any matters arising under the agreement” or in relation to the NES. “Any matters arising under the agreement” would, in our view, at least encompass any dispute about a matter which arises under an enterprise agreement while it is in operation.

[66] Subsection (1) of s 739 provides that the section applies if a term referred to in s 738 “requires or allows” the Commission to deal with a dispute. On one view (and presumably from the Simplot perspective), a term of an enterprise agreement can only require or allow something if it is in operation in accordance with s 54, since s 52(1)(a) provides that an agreement will only apply to an employee, employer or employer organisation if (relevantly), it is in operation, and s 51 provides that an agreement does not impose obligations on or give an entitlement to a person unless the agreement applies to the person. On this view, s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation. An alternative view would be that:

•  as earlier discussed, s 738(b) does not require an agreement to be operative in order for Div 2 of Pt 6-2 to apply;

•  the function of subsection (1) of s 739 is only to distinguish the application of the section, which is concerned with the Commission’s power to deal with disputes, from that of s 740 which, by s 740(1), applies if the dispute resolution term requires or allows a person other than the FWC to deal with a dispute;

•  s 51 is not relevant because s 739 is concerned with the power of the Commission to deal with disputes arising under dispute resolution terms, not with the obligations and entitlements of parties under the instruments in which such terms are contained; and

•  in respect of a term described in s 738(b), it will be sufficient that the dispute has arisen at a time when the term is in operation, and the right to have such a dispute resolved in accordance with the term remains operative and enforceable because it is a right which accrued during the operation of the agreement.

[67] For the purpose of deciding this appeal, it is not necessary for reasons which will be explained to determine to finality which of these views is correct. We will proceed on the assumption that the former view is correct, although we consider there is much to be said for the latter view.

[68] The condition precedent for there to be authorisation to arbitrate under s 739(4) is that “in accordance with the term, the parties have agreed that the FWC may arbitrate … the dispute”. The requirement for the agreement to arbitrate to be in “accordance with the term” would mean, for example, that if the relevant dispute resolution term provides that workplace discussion, and/or conciliation by the Commission, must occur before the Commission can arbitrate, the parties cannot agree to arbitration occurring before those steps have been taken. It would also mean that if the dispute resolution term provides that it applies only to disputes of a defined character, then the parties could only agree to arbitrate disputes of that character. However, subject to this qualification, s 739(4) on its ordinary meaning empowers the Commission to arbitrate the dispute once the requisite agreement exists.

[69] There is no issue that s 739(4) provides express authorisation for the Commission to deal with a dispute by arbitration in the manner contemplated by s 595(3). This position is confirmed by the Explanatory Memorandum for the Fair Work Bill 2008 which, at paragraph [2737], states:

“… Subclause 595(3) provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the purpose of that provision, subclause 739(4) expressly authorises FWA to deal with a dispute by arbitration.”

[70] Finally, s 739(6) requires that there be an application by a party to the dispute in order to enliven the power of the Commission to deal with the dispute.

[71] On the facts of this case, the application for the Commission to deal with the dispute in question was made on 19 June 2020, at which time the 2017 Agreement was in operation. Likewise, the requisite agreement for arbitration existed at the latest by about 27 October 2020, when the 2017 Agreement remained in operation. That agreement for arbitration may be inferred from the respondent’s accession to the 2017 Agreement, and the fact that the appellants in their application had sought arbitration of the dispute should conciliation be unsuccessful. This constitutes the requisite agreement in accordance with the principles stated by the Federal Court Full Court majority in One Tree Community Service Inc v United Workers' Union. 45 There is no issue that the dispute in question was “about a matter under this agreement”. Thus, if, as earlier discussed, s 739 is to be read on the basis that its provisions only apply in respect of a dispute resolution term in an enterprise agreement if the agreement has operative effect, it is clear in this case that the relevant provisions of the section were engaged at a time when the 2017 Agreement was operative. The Commission had the authority under s 739(4) to arbitrate the dispute at that point, and in fact proceeded to exercise arbitral powers thereafter until the decision under appeal was issued.

[72] The word “arbitration”, according to its ordinarily understood meaning, is “a process by which disputes are settled by a third party, appointed for that purpose by the parties to the dispute” 46 and thus encompasses the whole process of adjudication leading to the making of the final decision. In the context of the FW Act, once the Commission is authorised to arbitrate under s 739(4), it is permitted by s 595(4) to engage in the entire process of adjudication for which the FW Act provides, including interlocutory and procedural decision-making and the conduct of hearings as well as the making of the final decision, unless there is some limitation upon the exercise of powers contained in the relevant dispute resolution term to which effect must be given by virtue of s 739(3). The respondent pointed to no such limitation in clause 7 of the 2017 Agreement which would have affected the Deputy President’s capacity to arbitrate the dispute before him.

[73] The facts in the Simplot case concerning the timing of the making of the application to the Commission and the agreement to arbitrate vis-à-vis the operation of the agreement were not relevantly any different from those in the case before us. It is unclear to us, with respect, what aspect of s 739 or the FW Act as a whole caused the Full Bench in Simplot to conclude that, despite the Commission being expressly authorised by s 739(4) to arbitrate at a time when the relevant agreement in that case remained in operation, the Commission lost that authority at a later time when the agreement ceased to operate by virtue of s 54(2). No provision of the FW Act says that, and none was referred to in the Simplot decision. There is nothing in the text of s 739(4) or elsewhere in the FW Act that provides or infers that the required agreement to arbitrate is later revocable by any party or is vitiated if the relevant enterprise agreement subsequently ceases to operate. None of the other provisions of the FW Act that authorise the Commission to arbitrate matters by agreement of the parties (ss 66M(5)(b), 240(4), 369 and 777) indicate other than that the authorisation remains ongoing once the requisite agreement exists. If there was a requirement that the agreement to arbitrate must in some sense remain “ongoing” for the duration of the arbitral process, we would expect such a requirement to be explicit – otherwise a party could agree to participate in an arbitration but then withdraw their consent if the arbitration went badly. Nor does s 739(4) or any other provision of the FW Act state that an arbitral process arising from a s 738(b) term, and conducted pursuant to s 739(4), must immediately terminate if the relevant enterprise agreement ceases operation. Where the FW Act intends to prohibit the Commission engaging in arbitration or otherwise dealing with a dispute, it states this expressly, as in ss 595(5) and 739(2). Simply put, the Commission is seized of jurisdiction to arbitrate in respect of a dispute arising under a dispute resolution term described in s 738(b) once an application is made in accordance with s 739(6) and the requisite agreement under s 739(4) exists, and it is thereafter entitled to exercise that jurisdiction to completion.

[74] The analysis in Simplot proceeds on the premise stated in paragraph [22] that the proposition that the Commission can continue to deal with disputes under Pt 6-2 and impose binding outcomes necessarily “entails the agreement continuing to have a substantive and substantial effect”. However, as earlier stated, to the extent the Commission has jurisdiction to deal with a dispute and the power to arbitrate it, this is conferred by the FW Act itself, not the relevant instrument in which the dispute resolution procedure is contained. In the case of an enterprise agreement, the agreement does not need to be currently in effect in order for the Commission to determine a dispute about the rights and obligations under that agreement relating to a time when it was in effect. The Full Bench’s analysis in paragraph [23] proceeds on the basis that a party must have a continuing entitlement under the relevant agreement to arbitration, and there must be continuing agreement to arbitration as represented by the ongoing operation of the agreement, in order for an arbitration process which has already started to proceed to completion. However, this analysis does not proceed on the basis of any identified construction of s 739, and disregards that the Commission is seized of jurisdiction to arbitrate under s 739(4) once the requisite agreement to arbitrate exists. There is nothing in the FW Act which provides or implies that the subsequent cessation of operation of an enterprise agreement retroactively annuls the operation of s 739(4).

[75] An important point made in the Simplot decision is that an arbitral decision made by the Commission pursuant to s 739(4) after the relevant agreement ceased operation would be “unenforceable against the company” because the employer cannot contravene the enterprise agreement (by not complying with the decision) absent the agreement applying to it, as per s 51(1). 47 This proposition, if correct, is clearly a significant one. The concept of arbitration necessarily implies an outcome which is binding upon the parties that have submitted to the arbitration and, if a decision produced by a process conducted pursuant to s 739(4) has no legal force following the cessation of operation of the relevant enterprise agreement, that would be an important indicator in considering whether the FW Act intended for the Commission to have the power to arbitrate in that circumstance. As a comparison of subsections (2) and (3) of s 595 makes apparent, arbitration is intended to be more than simply “expressing an opinion”.

[76] However, the proposition is not correct. First, as earlier discussed, s 595(3) empowers the Commission, when expressly authorised to arbitrate, to make any orders it considers appropriate. This provision would operate in respect of any arbitration conducted pursuant to s 739(4) provided that the relevant dispute resolution procedure does not prohibit or restrict the making of orders by the Commission and thus engage the limitation on the Commission’s powers contained in s 739(5). Any order made by the Commission under the FW Act is given legal effect by s 675 which, in summary, provides that, unless any of the exclusions in s 675(2) apply, if a person bound by an order engages in conduct in contravention of the order, the person commits an offence for which the prescribed penalty is 12 months’ imprisonment. This maximum period of imprisonment may be converted to a maximum monetary penalty, including a monetary penalty applicable to a corporation which has contravened an order which is applicable to it, by virtue of the operation of s 4B of the Crimes Act 1914 (Cth). None of the exclusions in s 675(2) apply to the making of an order pursuant to the exercise of arbitral power under 739(4) read in conjunction with s 595(3).

[77] Section 675 is an important mechanism in the FW Act by which orders made by the Commission are given legal force. It applies in respect of certain types of orders even where there is also a “civil remedy” provision which separately renders the order enforceable in a prescribed court at the suit of a private party pursuant to s 539. An example of this is a reinstatement order made under s 391 in relation to an unfair dismissal remedy application. In Technical and Further Education Commission v Pykett (No 1) the Federal Court (Perram J) characterised the contravention of such an order as an offence under s 675, 48 notwithstanding that such an order is also subject to a civil remedy provision in s 405. Section 675 also applies to a wide range of other types of orders which are not the subject of any civil remedy provision. For example, an order made by the Commission pursuant to s 240(4),49 which empowers the Commission to arbitrate a bargaining dispute with the agreement of the bargaining representatives, is one to which s 675 applies, but there is no applicable civil remedy provision. Accordingly, there is nothing anomalous about the proposition that an order made pursuant to the exercise of arbitration powers under s 739(4) has legal force because to contravene it would constitute an offence under s 675.

[78] Second, although the Simplot decision was correct in saying that an actionable contravention of an enterprise agreement cannot occur after the agreement ceases operation by virtue of s 51, the Full Bench did not properly consider the legal effect of a decision made in the exercise of arbitral powers under s 739(4). The Full Bench recognised at paragraph [22] that the effect of an arbitral determination or order made by the Commission pursuant to s 739(4) is to extinguish the parties’ rights and liabilities which were the subject of the dispute referred to arbitration and to impose new rights and liabilities in substitution thereof. 50 However, the Full Bench failed to recognise that the consequence of this is that the rights and obligations of the parties to the dispute determined by arbitration are those which then become enforceable. Thus, if the arbitration before the Deputy President below had proceeded to the making of a final arbitral decision or order, the notice and redundancy pay entitlements of the individual applicants under the 2017 Agreement at the time of the termination of their employment would be as determined by the Deputy President. If, hypothetically, the Deputy President found in the applicants’ favour, and they initiated court proceedings to enforce the 2017 Agreement under s 539 of the FW Act,51 the respective rights and obligations of the individual applicants and the respondent concerning notice and redundancy pay under that agreement would in such proceedings be taken to be as determined by the Deputy President, with the respondent being precluded from asserting otherwise. This does not involve any issue of a contravention of the 2017 Agreement occurring after it ceased operation, but rather concerns compliance with the agreement during the period of its operation.

[79] The Explanatory Memorandum for the Fair Work Bill 2008 provides no support for the approach taken in Simplot. In connection with cl 595 of the Bill, the Explanatory Memorandum relevantly states:

“2285. Generally, FWA will make decisions as required under the Bill by informing itself as it considers appropriate (including by obtaining the views of affected persons as appropriate) and making a decision based on that information. In a range of circumstances, FWA will have power to seek to resolve matters between persons in dispute through conciliation or mediation processes. Subject to a range of access criteria, the Act confers some powers on FWA to impose an outcome if the parties cannot agree – in other words, to arbitrate a dispute between the parties.

2286. Clause 595 gives effect to this policy. Subclause 595(1) provides that FWA may only deal with a dispute if it is expressly authorised to do so under the Bill. Subclause 595(2) enables FWA to deal with those disputes as it considers appropriate, including by a process of mediation or conciliation and/or by delivering an outcome such as a recommendation or opinion. However, subclause 595(3) specifically provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the avoidance of doubt, subclause 595(5) emphasises that FWA can only exercise these powers as authorised under clause 595.

2287. The Bill expressly authorises FWA to deal with the following disputes (by authorising FWA to 'deal with a dispute'):

•  bargaining disputes under Part 2-4;

•  general protections disputes under Part 3-1;

•  right of entry disputes under Part 3-4;

•  stand down disputes under Part 3-5; and

•  disputes arising under a procedure for dealing with disputes in a modern award, enterprise agreement, workplace determination or contract of employment under Part 6-2, including procedures required by clause 146 (modern awards), subclause 186(6) (enterprise agreements) and subclause 273(2) as applied by subclause 297(1) (workplace determinations).

. . .

2289. FWA will have power to arbitrate a bargaining dispute or a Part 6-2 dispute if the parties have agreed that it may arbitrate, however the parties describe that process (subclauses 240(4) and 739(4))…” (underlining added)

[80] In relation to clause 739, the Explanatory Memorandum relevantly states:

“2735. This clause sets out what FWA can and cannot do when dealing with disputes under a term of a modern award, enterprise agreement or contract of employment.

•  Subclause 595(1) provides that FWA may only deal with a dispute if it is expressly authorised to do so under the Act, and subclauses 595(2) and (3) set out how FWA may deal with disputes. For the purpose of subclause 595(1), subclause 739(1) expressly authorises FWA to deal with disputes.

2736. Where such a term requires or allows FWA to deal with a dispute, it can exercise all of its powers under Subdivision B of Division 3 of Part 5-1 (see subclause 595(4)), unless those powers are limited by the term (subclause 739(3)). FWA has general powers under clause 590 to inform itself as it sees fit, including the power to require parties to attend, conduct a conference and take evidence. Clause 595 provides that FWA can deal with a dispute before it as it considers appropriate, including by mediation, conciliation, making non-binding recommendations and expressing an opinion.

2737. Under subclause 739(4) FWA can make a binding decision in relation to a dispute if, in accordance with a term in a modern award, enterprise agreement or contract, the parties have agreed to this, whether the term refers to arbitration, final determination, making an award or order or something similar. For example, a term of an enterprise agreement could authorise FWA to arbitrate or determine (however described) a dispute under that enterprise agreement, resulting in a binding determination.

Subclause 595(3) provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the purpose of that provision, subclause 739(4) expressly authorises FWA to deal with a dispute by arbitration.

2738. Unless the dispute resolution process term provides otherwise, an arbitrated decision of FWA about a dispute will be appealable in accordance with clause 604. Similarly, if FWA holds a hearing in relation to a matter, the hearing would ordinarily be held in public. This is because all of FWA's powers and procedures under this Bill apply in relation to disputes under this Division unless limited by the parties in the term.

. . .” (underlining added)

[81] The above passages confirm what we consider to be the ordinary meaning of the terms of s 739, namely that the Commission is empowered to arbitrate a dispute once the requisite agreement to do so exists and, once authorised, it may exercise all of its powers and procedures under the FW Act subject only to the operation of s 739(3). Nothing in the Explanatory Memorandum states or suggests that, once the Commission is authorised to arbitrate, that authority may be removed by some subsequent event.

[82] Although the issue is not without difficulty, for the reasons stated above we have come to the firm conclusion that the decision in Simplot is not correct. The Commission was seized with jurisdiction to deal with the dispute the subject of the application below by way of arbitration on or about 27 October 2020 (at the latest) and its power to arbitrate that dispute, including by way of making orders, was not removed or diminished by the cessation of the operation of the 2017 Agreement on 14 December 2021. Our conclusion in that respect means that the appellants’ alternative argument does not arise for consideration. We therefore uphold the appeal.

[83] We finish with the observation that it is obviously unfortunate that there have been conflicting or inconsistent Commission decisions about the issue the subject of this appeal. An appropriate legislative amendment to clarify the position would be desirable.

Orders

[84] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld and the decision of Deputy President Saunders of 17 December 2021 ([2021] FWC 6623) is quashed.

(3) The application in matter number C2020/4783 is remitted to Deputy President Saunders for hearing and determination.

VICE PRESIDENT

Appearances:

S Crawshaw SC with L Doust of counsel for the appellant.
J Murdoch QC for the respondent.

Hearing details:

2022.

Sydney via video-link:
18 March.

Printed by authority of the Commonwealth Government Printer

<PR742434>

 1   Peter Cowan, David Bickoff, Dayle Marriott and Darren Sisson

 2   [2021] FWC 6623

 3   AE423887

 4   AE514152

 5   [2020] FWCFB 5054, 300 IR 1

 6   [2017] FWCA 1863

 7   Ibid at [4]

 8   Peter Cowan, David Bickoff, Dayle Marriott, Darren Sisson and Rod McLean

 9   [2020] FWC 3936

 10   [2021] FWC 2289

 11   [2021] FWC 3684

 12   [2021] FWC 6623 at [7]

 13   Ibid at [9]-[10]

 14   Ibid at [11]-[13]

 15   Ibid at [14]-[15]

 16   Ibid at [15]

 17   [2020] FWC 3171

 18   [2020] FWCFB 5054 at [7]-[10]

 19   Ibid at [18]

 20   Ibid at [19]

 21   Ibid at [23], footnote omitted

 22   Ibid at [24], footnote omitted

 23   Ibid at [25]-[26]

 24   Ibid at [27]

 25   Ibid at [28]

 26   [2019] FWCFB 8678

 27   Ibid at [31]-[33]

 28   Ibid at [34]

 29   Ibid at [35]

 30   Ibid at [36]

 31   [2019] FWCFB 8678

 32   [2018] FWCFB 856

 33   [2018] FWC 6335

 34   [2016] FWC 3848

 35   See Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146, 264 FCR 342, 281 IR 319

 36   Fair Work Commission Rules 2013 r 24 and Sch 1.

 37   See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26, 147 CLR 297 at 320-1 per Mason and Wilson JJ

 38   [2020] FCA 595 

 39   Ibid at [6]

 40   [2001] HCA 16, 203 CLR 645

 41   [2013] HCA 4, 251 CLR 533

 42   Ibid at [29]

 43   James Cook University v Ridd [2020] FCAFC 123, 278 FCR 566 at [222]-[227] per Rangiah J

 44   See Fair Work Bill 2008 Explanatory Memorandum at [2286]-[2287]

 45   [2021] FCAFC 15 at [88]-[92] per Bromberg and Kerr JJ. Special leave to appeal this decision was refused by the High Court.

 46   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123, 235 FCR 305 at [32]

 47   [2020] FWCFB 5054 at [23]

 48   [2014] FCA 727 at [2]-[7], [27]

 49   Note that s 255(2), as well as s 595(3), confirms that the Commission may make orders in the exercise of the arbitration power in s 240(4).

 50   Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665 at [63]; Energy Australia Yallourn Limited v AMWU [2017] FCA 1245 at [64]-[67], affirmed on appeal in Energy Australia Yallourn Limited v AMWU [2018] FCAFC 146, 264 FCR 342.

 51   Subject to the time limitation in s 544.