Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [[2016] FWC 3829]] of Commissioner Williams at Melbourne on 12 July 2016 – Right of entry – Dispute under s.505 of the Fair Work Act 2009 in relation to exercise of right of entry rights – Whether the Commission has jurisdiction to hear dispute – Whether resolution requires exercise of judicial power – Interpretation of legislation – Use of extrinsic material – Whether “other breaks” includes periods of time before and after shifts – Fair Work Act ss.484, 490, 604, 505.

Introduction

[1] This decision concerns an application for permission to appeal and an appeal against a decision of Commissioner Williams handed down on 12 July 2016. The decision of the Commissioner arose from an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the Fair Work Commission (the Commission) to resolve a dispute regarding the right of entry provisions of s.505 of the Fair Work Act 2009 (the Act).

[2] The issue addressed by the Commissioner concerned the exercise or existence of rights of CFMEU permit holders to hold discussions with workers at the premises occupied by BHP Billiton Nickel West Pty Ltd (BHP) before or after their shifts, provided that those discussions took place during the working hours of the premises and that all other statutory requirements were satisfied.

[3] The Commissioner determined that the remedy sought by the CFMEU involved an exercise of judicial power and was thus beyond the jurisdiction of the Commission. He decided that in any event, times before and after workers’ shifts were not “other breaks” within the meaning of the words of the Act, and consequently, CFMEU officials could not access rights of entry for discussions with employees at such times.

[4] The CFMEU seeks permission to appeal against both aspects of the Commissioner’s decision. At the hearing of the appeal in this matter Mr Reitano of counsel appeared with Mr Sneddon for the CFMEU. Mr Neil SC appeared with Ms Millar of counsel for BHP.

Background

[5] In October 2015, a dispute arose concerning the entry rights of Mr Douglas Heath and Mr Troy Smart of the CFMEU, both permit holders within the meaning of s.484 of the Act. Mr Heath and Mr Smart sought to enter BHP’s premises in exercise of their right of entry to hold discussions with employees of two of BHP’s contractors, Freo Group Pty Ltd and Skilled Group Limited. The individuals sought to enter the premises before and after the employees’ shift times. It was accepted that the CFMEU was entitled to represent the industrial interests of some of the employees of these contractors working at these premises under s.484 of the Act. BHP refused entry to Mr Heath and Mr Smart during these times because it did not believe that rights of entry applied at such times.

[6] In the proceedings before the Commissioner the CFMEU sought the following order pursuant to s.505(2) of the Act:

“Mr Douglas Heath and Mr Troy Smart, being permit holders under Part 3-4 of the Act, are entitled to enter the premises at Kwinana which are occupied by BHP Billiton Nickel West Pty Ltd (The Premises) for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on The Premises at the time such discussions occur.”

[7] BHP opposed the application and raised a series of jurisdictional objections. It contended that the orders sought by the CFMEU amounted to a declaration of existing legal rights. It argued that this was an inherently judicial function and not one able to be performed by the Commission. It also argued that since the contractors’ work at BHP’s premises had concluded, there was no existing or ongoing dispute to enliven the Commission’s jurisdiction.

The Decision Under Appeal

[8] Considering BHP’s jurisdictional objection that the Commission was without jurisdiction on the ground that there was no existing or ongoing dispute between the parties, the Commissioner was satisfied that the dispute may still be ongoing as employees were likely to be performing work at the premises from time to time until October 2016. 1

[9] The Commissioner then relied on the authority of the High Court in Re Ranger Uranium Mines Proprietary Limited and Others; Ex parte Federated Miscellaneous Workers’ Union of Australia 2 to identify the proper question to be answered in relation to the jurisdictional objection concerning the alleged exercise of judicial power in making the orders sought by the CFMEU. He said:

“[192] In this instance the question is whether the formation by the Commission of an opinion as to the meaning of the words ‘other breaks’, as used in section 490 of the Act, is merely a step in arriving at the ultimate conclusion on which to base the making of an order to regulate the future rights of the parties. If that is the case then forming an opinion as to the meaning of the words ‘other breaks’ would not involve an exercise of judicial power.”

[10] In answering this question, the Commissioner said:

“[193] In this instance I think it is quite plain that what the Commission has been asked to do by the applicant is to determine whether its interpretation of the words ‘other breaks’ as used in section 490 of the Act is correct or not. The Commission having decided the meaning of those words in section 490 will have resolved the dispute between the parties. In this case the formation by the Commission of an opinion as to the meaning of those words in section 490 is not a step along the way to resolving the dispute. The applicant’s attempt to reframe the dispute by stating it now seeks an order of the Commission, and that the formation of an opinion as to the meaning of the words in section 490 is merely a step along the way to deciding whether the order should be issued, does not in my view change the dispute nor the power the Commission is being asked to exercise. Having formed a view on the meaning of the words in section 490 that are the basis of the dispute there is in reality no further step for the Commission to take in resolving the dispute. In reality the Applicant is seeking a bare declaration of existing rights.

[194] In my view what is being sought by this application is not the creation of a new right but rather is effectively the enforcement of what the applicant says is an existing right under section 490(2). For the Commission to determine this application then would involve an exercise of judicial power. Consequently my decision is that this application is beyond the jurisdiction of the Commission and must therefore be dismissed.”

[11] Having dealt with the jurisdictional questions, the Commissioner went on to consider the substantive dispute. He said that if he was wrong regarding the Commission’s jurisdiction, the issue would be one properly characterised as “simply whether or not the words ‘other breaks’ in section 490(2) of the Act includes the period before and after a relevant employees’ shift”. 3

[12] The Commissioner identified the requirement that the Commission must find words subject of a dispute to be ambiguous or obscure in meaning, or that adopting their ordinary meaning would lead to a manifestly absurd or unreasonable result, before seeking guidance from extrinsic material including explanatory memoranda. 4

[13] After considering the dictionary definition of the word ‘breaks’ 5 and the submissions of the parties including reliance on previous decisions of this Commission,6 the Commissioner concluded:

“[222] The ordinary meaning of the words ‘other breaks’ is not ambiguous or obscure nor in the context of the Act does the ordinary meaning lead to an absurd or unreasonable result. Consequently there is no basis for consideration of the Explanatory Memorandum.

[223] If indeed the Commission does have jurisdiction to determine this dispute my decision is that permit holders, who are officials of the applicant, cannot enter The Premises occupied by BHP at Kwinana for the purposes of holding discussions under section 484 of the Act prior to nor after relevant employees’ shifts, whilst work is being conducted on The Premises.”

Grounds of Appeal

[14] The CFMEU alleges that the Commissioner erred in a number of respects. Specifically, it appeals the Commissioner’s decision on that bases that he:

● wrongly refused to exercise the jurisdiction conferred on the Commission by s.505 of the Act;

● erred in concluding that the CFMEU’s application was beyond the jurisdiction of the Commission because the CFMEU was seeking to have the Commission exercise judicial power;

● failed to find that the application was concerned with the regulation of future rights by permit holders and what obligations, if any, should be imposed on the CFMEU when those rights were exercised, irrespective of the fact that the evidence in the case concerned past conduct of the CFMEU at the relevant time;

● failed to find that the meaning of the words “other breaks” in s.490(2) of the Act included times before and after an employee’s shift so long as the discussions that were to be had were held during the working hours of the premises; and

● failed to have regard to the Explanatory Memorandum accompanying the enactment of s.490(2) of the Act in circumstances where the words “other breaks” were ambiguous and unclear, or alternatively, where it was necessary to take into account the general policy and purpose of s.490(2) to establish both the mischief to which it was directed, the policy of the provision and so as to better understand the intended operation of the section.

Permission to Appeal

[15] The CFMEU submits that it is in the public interest for the Commission to grant permission to bring the appeal on the basis that it raises important jurisdictional issues of general application in respect to Part 3-4 of the Act about the exercise of power by the Commission under s.505(2) of the Act. Further, it argues that the difference between arbitral power and judicial power in such disputes has not yet been considered by a Full Bench of this Commission.

[16] Additionally, it submits that the novel and significant issues about the construction of the words “other breaks” under s.490(2) of the Act insofar as they have not been dealt with by the Full Bench have significant implications for a large number of industrial organisations, permit holders, employers and occupiers, enlivening public interest in this appeal.

[17] The appeal raises important questions as to the powers of the Commission in right of entry disputes, and potentially novel questions concerning the nature of rights to enter premises. We are satisfied that it is in the public interest to grant permission to appeal.

Jurisdiction

[18] The background facts in this matter are not in dispute. Nor is there any dispute as to the nature of the relief being sought. It is accepted that an administrative tribunal like the Commission cannot exercise the Commonwealth’s judicial power. 7 The ascertainment, declaration or enforcement of legal rights is the exercise of judicial power. If opinions are formed about such matters in the course of arriving at a conclusion about what rights should exist in the future, the functions can legitimately fall within the arbitral power conferred on the Commission.8 These concepts have been stated and applied in various High Court decisions.

[19] The Ranger Uranium Case concerned a consideration of the Commission’s predecessor’s powers to order reinstatement of dismissed employees. The High Court said:

“17. It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal obligation. Section 5 of the Act is illustrative of situations in which reinstatement is a curial remedy for the breach of a legal obligation. A dispute as to the existence or enforcement of a legal right to reinstatement or as to the breach of a legal obligation properly remedied by an order for reinstatement is a dispute which necessarily involves the exercise of judicial power. In conformity with s.71 of the Constitution (which reposes the judicial power of the Commonwealth in Chapter III Courts), the Commission is not endowed with judicial power, and hence has no jurisdiction to entertain disputes as to the existence or enforcement of legal rights or obligations: see Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. [1987] HCA 29; (1987) 61 ALJR 407, at pp 408 and 413; [1987] HCA 29; 72 ALR 173, at pp 175 and 183.

18. However, the creation of legal rights and obligations is a function which may be performed in the exercise of arbitral power. This is so even if the function is performed in settlement of a dispute relating to past transactions, events and conduct: Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 409; p 176 of ALR.

…

22. Ordinarily, in industrial tribunals empowered to order reinstatement, the criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust or unreasonable, although more recently the tendency has been to express the test in terms of unfairness. See In re Loty and Holloway and Australian Workers’ Union (1971) AR.(N.S.W.) 95. In the present case the Union and the Society each claimed that the dismissals which gave rise to their claim were harsh, unjust and unreasonable. Accordingly it was said that the resolution of the dispute necessarily involved the determination of whether the dismissals were harsh, unjust or unreasonable - a determination which, it was argued, required the Commission, in the context of the award, to determine whether the employer was in breach of the obligation contained in cl.7(d)(vi). This, it was contended, necessarily involved an assumption of the judicial power of the Commonwealth, for it involved the Commission in precisely the same task as would be undertaken by a Court in the event that proceedings were taken pursuant to s.119 of the Act alleging breach of cl.7(d)(vi) of the Award.

23. It is well settled that functions ‘may be classified as either judicial or administrative according to the way in which they are to be exercised’: The Queen v. Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617, per Mason J., at p 628. See also Federal Commissioner of Taxation v. Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J., at p 177; The Queen v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277, per McTiernan J., at p 293 and Kitto J., at p 305; Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 413; p 184 of ALR. A finding that a dismissal is harsh, unjust or unreasonable involves the finding of relevant facts and the formation and expression of a value judgment in the context of the facts so found. Although findings of fact are a common ingredient in the exercise of judicial power, such findings may also be an element in the exercise of administrative, executive and arbitral powers: see The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per McTiernan J., at p 371 and The Queen v. Hegarty; Ex parte City of Salisbury, per Murphy J., at p 631. So too with the formation and expression of value judgments.

24. In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under s.119 of the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

25. The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.

26. Inquiry into and determination of facts for the purpose of ascertaining what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may form an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 409; p 176 of ALR, the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is ‘a step in arriving at the ultimate conclusions on which (is based) the making of an award intended to regulate the future rights of the parties’. For, as was there made clear, ‘the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.’”

[20] An example of the application of these principles is the case of CPSU v Tenix Solutions Pty Ltd.  9 In that case the Full Bench said:

“[24] The second ground on which it is contended that the appeal is incompetent is that what the applicants sought from Commissioner Simmonds was an exercise of judicial power. The argument, in essence, is that the Agreement was not made with Tenix but with Tenix’ predecessor in the business. Accordingly Tenix has not consented to the dispute resolution provision in the Agreement. In substance the applicants sought a determination that Tenix was bound by the Agreement as a successor pursuant to s.170MB of the WR Act.

[25] A determination that Tenix is bound by the Agreement as a successor pursuant to s.170MB(2) requires the exercise of the judicial power of the Commonwealth. The judicial power of the Commonwealth can be exercised only by a Court constituted under Chapter III of the Constitution. The Commission is not a Chapter III Court and is precluded from exercising judicial power in the context of this case.

[26] The substance of the applicants’ response to the second ground of objection to competency is that Parliament has power to legislate for the making and certification of agreements and it has done so. Parliament also has power to pass laws directed to maintaining the agreements so made and certified. Section 170MB of the WR Act is a law of that character. It maintains the Agreement by ensuring that the agreement and its benefits and obligations pass to any successor in business. Tenix, the applicants contend, is a successor to the business to which the Agreement applied. The employer obligations under the Agreement, including the obligation to submit unresolved disputes to arbitration, transmitted to Tenix when it succeeded to the business. Consequently, Tenix is bound by the operation of s.170MB and the Agreement to submit to arbitration and no issue of judicial power arises.

[27] We think there may be substance in the second ground upon which Tenix contends that the appeal is incompetent. However, as with the first ground, it is appropriate that we address this ground also in the context of the appeal as a whole. We proceed with that course.

…

[45] It will be recalled that the Commissioner found that he did not have jurisdiction to deal with Ms McCallum's application because what was sought was an exercise of judicial power in the nature of a declaration. It is not strictly necessary that we deal with the correctness of that finding, since we have already concluded that there was no dispute over the application of the Agreement for the purposes of s.170LW and cl.32 of the Agreement. In case it should become important, however, we think it right that we express our conclusion.

[46] Whether an application invites the use of judicial power depends upon the circumstances. As was said in Re Geelong Grammar School:

‘[24] There is no doubt that the Commission may, without exercising judicial power, decide questions which ‘are not necessarily foreign to judicial power.’ [For an analogous case concerning a local coal authority under the Coal Industry Act 1946-1957 (Cth) see R. v Lydon; Ex parte Cumnock Collieries (1960) 103 CLR 15 at 22] Whether the Commission purports to exercise judicial power will depend upon the facts of the case and in particular upon whether the decision which is sought to be impugned is in truth an attempt to ascertain, declare or enforce existing rights [Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 463] or only a step in the proper exercise of the powers conferred upon the Commission by the Parliament.

“[But] there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries, at p.22; The Queen v. The Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597. Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries, at p.44.” [Re Cram; Ex parte The Newcastle Wallsend Coal Co. Pty Ltd (1987) 163 CLR 140 at 149]

[25] While this passage analyses the issue by reference to statutory powers of arbitration, the principles apply equally to the exercise of statutory powers such as those conferred by dispute resolution provisions in certified agreements pursuant to s.170LW. The Commission may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the conclusions on which it bases a decision resolving a dispute over the application of a certified agreement.

[26] Whether a particular decision should be so described depends to a great extent, if not entirely, upon the circumstances of the particular case.’ 10

[47] Because we agree with the Commissioner that the only real issue before him was whether Tenix was bound by the Agreement, it cannot be said that the decision on that issue was a necessary preliminary step in the process of settling a dispute about the application of the Agreement. On that basis it is clear that what was sought was in truth a bare declaration of rights. Such a declaration would have involved a purported use of judicial power. The Commissioner was correct in that finding also.”

[21] A similar argument was advanced in relation to a right of entry dispute in Police and Nurses Credit Society Ltd v FSU. 11 In that case the Full Bench said:

“[62] We think it is clear from the terms of the notification and the exchange of correspondence between the parties which is referred to earlier in this decision, that there is an ‘industrial dispute about the operation of Division 11A’. In particular, there is clearly a dispute about the FSU having access to the appellant's premises pursuant to s.285C of the WR Act.

[63] In our view the appellant’s characterisation of the matter before the Commissioner is erroneous. The FSU was not seeking a declaration and enforcement of its right to enter the appellant’s premises pursuant to s.285C. It was seeking an order pursuant to s.285G to settle an industrial dispute about the operation of Division 11A.

[64] In substance the dispute between the parties was about the appellant’s refusal to allow FSU permit holders to enter its premises for the purpose of holding discussions with members or persons eligible to be members. In resolving this dispute the Commissioner was entitled, as an incidental step in the proper exercise of its jurisdiction, to form an opinion about the legal effect of the 2001 Agreement vis-à-vis the 2001 Award, and the consequent effect on the FSU's rights under s.285C. 12

[65] It is also relevant to note that the power in s.285G has been conferred on the Commission and may be said to take its character from the tribunal in which it is to be exercised.

[66] Further, we are not persuaded that general considerations of industrial fairness did not form part of the Commissioner’s consideration of the matter. In this regard we note that the course of his submissions in the proceedings below Mr Logan, representing the FSU, made reference to considerations relating to ‘freedom of association’ and characterised the appellant’s conduct as ‘an attempt to construct a way of keeping unions out ...’. 13 Such policy considerations are not suggestive of the exercise of judicial power.

[67] Nor do we think that the terms of the order made assist the appellant. The fact that the order is largely a restatement of some of the provisions of ss.285A, 285C and 285D is unsurprising when regard is had to the fact that s.285G(1) provides that any order made must not confer powers ‘that are additional to, or inconsistent with, powers exercisable under [the] Division’.

[68] We have also had regard to the consequences of upholding the appellant's contention. In our view it would lead to the emasculation of the powers conferred by s.285G. An employer could avoid the jurisdiction by the simple expedient of only contesting a union’s right to enter its premises under Part IX rather than disputing the manner in which such a right is to be exercised.

[69] We consider that the matter before the Commissioner called for the resolution of a dispute, not by the determination of what the existing rights and obligations of the parties are, but the ascertainment of what rights and obligations should exist. Contrary to the appellant’s submissions the Commission’s order involved the exercise of arbitral not judicial power.”

[22] The principles in the Ranger Uranium Case apply to the current case. The Police and Nurses Case was found to involve considerations of fairness and the dispute was not characterised by the Commissioner or the Full Bench as a declaration and enforcement of the right of the organisation to enter premises under the Act. Hence the case is distinguishable from the present case. We propose to apply the Ranger Uranium Case to the matter before us.

[23] The Commission is an administrative tribunal not vested with the judicial power of the Commonwealth under the Constitution. Section 505 of the Act provides the Commission with the power to deal with a dispute about the operation of the Right of Entry Part of the Act. It may deal with the dispute by arbitration by making orders it considers appropriate including imposing conditions on right of entry permits, suspending or revoking entry permits and orders about future issue of entry permits. Subject to limited exceptions which are not relevant in this case, the Commission must not confer rights on a permit holder that are additional to, or inconsistent with, the rights under the Right of Entry Part of the Act.

[24] The amended form of relief sought by the CFMEU is set out above. The order it seeks purports to express an entitlement to enter premises before the starting time and after finishing times of shifts. The basis for the order was expressed in the original application to the Commission as follows:

“1. Permit holders employed by the Applicant have attempted to exercise a right of entry to hold discussions with contractors currently employed in construction work on the Respondent’s premises.

2. The permit holders have attempted to exercise this right pursuant to s.484 of the Fair Work Act 2009 (Act).

3. The permit holders have attempted to:

3.1 exercise this right of entry during the working hours of the premises; and

3.2 hold discussions with workers during their break prior to the commencement of their shift.

4. The Respondent has indicated that they do not consider the period before or after the worker’s shift as being a break for the purposes of s.490(2) of the Act.

5. The workers are not paid during this time before and after their shift.

6. The Applicant submits that these are ‘other breaks’ for the purposes of s.490(2) of the Act.”

[25] In submissions before the Commissioner the CFMEU said the following in relation to the dispute:

“3. The issue for determination is whether the Commission [sic] permit holders, who are officials of the Applicant, can enter premises occupied by BHP at Kwinana for the purposes of holding discussions under s 484 prior to and after employee’s shifts, whilst work is being conducted on the premises.

4. The dispute arose after BHP, which is the occupier of The Premises, at which members and potential members of the Applicant perform work for various employers, in October 2015 did not allow Mr Heath and Mr Smart, who are permit holders employed by the Applicant, to enter The Premises and hold discussions with members and potential members before the commencement of their shifts.

5. The matter hinges, in large part, on the meaning of expression ‘other breaks’ under s 490(2) of the Act. This discrete matter is not one that has received consideration by the Commission or Federal Court before.” 14

[26] In response to BHP’s jurisdictional argument the CFMEU submitted:

“3. The CFMEU does not (and indeed cannot under s 505) seek:

3.1 a declaration of its rights arising from conduct of the Respondent in October 2015;

3.2 vindication by the imposition of a penalty, award of damages or making or granting of declaratory or injuctory relief, of contravention of its rights arising from conduct of the Respondent in October 2015. 15

3.3 enforcement of any rights it may have arising from conduct of the Respondent in October 2015.

4. Instead, the CFMEU seeks an order to resolve a dispute about the operation of Part 3-4 of the Act arising from the Respondent’s past and ongoing conduct in disallowing its permit holders from exercising right of entry to have discussions with employees who are members or potential members of the CFMEU. This order will operate prospectively. It is not directed to the antecedent conduct of the Respondent and the Commission is not called upon to ascertain or enforce any antecedent rights the CFMEU may have. 16

5. Contra-distinctly to judicial power, arbitral power involves the creation of rights and obligations. 17 Discharge of arbitral power can (and regularly does) involve determination by an arbitral tribunal of what legal rights and obligations currently or previously existed as a ‘factum’ or preliminary step in the resolution of a dispute by the creation of rights and obligations.18 An arbitral determination can and often involves interpretation of the law (including construing statutes)19 and resolution of factual matters.20 Whether a function is judicial or arbitral depends in large part on the object of an exercise of power. If the object is to ascertain what rights and obligations should be created, as opposed to resolving what rights and obligations did (or do) exist), the power will be arbitral.21

6. Applying these basal principles, determination of the CFMEU’s application and making of the orders sought by the CFMEU involves an exercise of arbitral power as the Commission will be creating new rights and obligations that will regulate the relationship of the parties moving forward. 22 The mere fact the Commission is called upon to interpret s 490(2) or give consideration to past conduct of the Respondent does not convert the exercise of power from one of arbitral to judicial power.23 These determinations are but factums or preliminary steps to the exercise of arbitral power.”

[27] The Commissioner was correct in dismissing these arguments. The only matter in dispute was whether the reference to “other breaks” in s.490 of the Act includes periods before the employees’ shift starting times and after their shift finishing times. The determination of that question clarifies the scope of rights conferred by s.490. No new rights or obligations are created by such a determination. No further functions or analysis is sought beyond the interpretation of the disputed term “other breaks” in s.490. The determination of the question involves the ascertainment of legal rights and obligations which are created by s.490. This is classically a judicial function.

[28] The attempt to disguise the nature of the power sought to be invoked by distinguishing between the past and the future is an invitation to depart from High Court authority. The distinction is a red herring. It cannot be doubted that the dispute is about future attempts to exercise rights to enter premises. However the rights sought to be exercised are existing rights created by the Act. The nature of those rights is in dispute. The CFMEU seeks an interpretation of those rights in the particular factual scenario of entry before shifts commence and after shifts end. It does not seek the creation of any right beyond those contained in the Act. The dispute involves nothing more than the interpretation of the Act and the ascertainment of existing rights and obligations under the Act. The Commission has no jurisdiction to embark on this exercise.

[29] For these reasons the Commissioner was correct in deciding that he had no jurisdiction to determine the dispute.

Conclusions

[30] Because of the important jurisdictional issues and other potentially important issues involved in this appeal we grant permission to appeal. We have concluded that the Commissioner was correct in his conclusion that the Commission lacks jurisdiction to determine the dispute because to do so would be to be to impermissibly purport to exercise judicial power. It is not necessary or appropriate that we deal with the other grounds of appeal. We dismiss the appeal.

VICE PRESIDENT

Appearances:

Mr R Reitano of counsel with Mr K Sneddon on behalf of the CFMEU.

Mr I Neil SC with Ms H Millar of counsel on behalf of BHP.

Hearing details:

2016.

Perth.

9 November.

Final written submissions:

Construction, Forestry, Mining and Energy Union on 5 September 2016.

BHP Billiton Nickel West Pty Ltd on 14 September 2016.

 1   [2016] FWC 3829, [184].

 2   (1987) 163 CLR 656, 666.

 3   [2016] FWC 3829, [182].

 4   Ibid [200].

 5   Ibid [203].

 6   Ibid [207]-[216].

 7   Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 and authorities referred to therein.

 8   Ranger Uranium Mines Pty Ltd; Ex parte FMWU (1987) 163 CLR 656.

 9   PR940630.

 10   (2002) 123 IR 216, [24]-[26].

 11   (2003) 132 IR 13.

 12   Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 149.

 13   Transcript of proceedings before Commissioner O'Connor, 12 November 2002, [192].

 14   “noting that passing references have been made to s 490(2) in AMIEU v Fair Work Australia [2012] FCAFC 85 at [56] (Flick J) (AMIEU v FWA) and CFMEU v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407, [29] and [37] (Gostencnik DP) (Austral Bricks)”.

 15   cf Bechtel Construction (Australia) Pty Ltd and another [2014] FWC 5900, [37].

 16   Zines, p 192. See also Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144.

 17   Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union Australia (1987) 163 CLR 656 at [18] (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

 18   Re Ranger Uranium Mines, [25]; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, 360-361; Zines, 175.

 19   “cf the curious contention at [34] of the Respondent’s submissions where the erroneous assertion is made that matters of statutory interpretation are a distinctly judicial function”.

 20   Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117, 165.

 21   Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 185.

 22   “See Bechtel Construction (Australia) Pty Ltd and another [2014] FWC 5900 at [38], where it was also noted that the dispute (which was premised on past behaviour) in substance and having regard to the orders sought was about regulating the future conduct of the permit holders”.

 23   See generally Bechtel Construction (Australia) Pty Ltd and another [2014] FWC 5900, approved on this point on appeal in Construction, Forestry, Mining and Energy Union and others v Bechtel Construction (Australia) Pty Ltd and another [2015] FWCFB 946 at [21] and [32].

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