Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia
[2025] FCAFC 127
•5 September 2025
FEDERAL COURT OF AUSTRALIA
Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127
Review of: Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 253; 334 IR 245 File numbers: NSD 1316 of 2024
NSD 1320 of 2024
NSD 1333 of 2024Judgment of: COLLIER, SNADEN AND RAPER JJ Date of judgment: 5 September 2025 Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of a Full Bench of the Fair Work Commission – where the Commission made a single interest employer authorisation under s 249 of the Fair Work Act 2009 (Cth) – whether the Commission misunderstood the nature of the inquiry and constructively failed to exercise its powers when making the authorisation ADMINISTRATIVE LAW – whether the Commission fell into jurisdictional error because it misunderstood the analysis of the question of whether there were “common interests” as between the employers at such a high level (and not with the degree of granularity required) in s 249(3) – whether the Commission failed to afford Peabody procedural fairness or failed to consider a centrally relevant submission regarding a commercial conflict of interest that arose between two of the relevant employers when determining whether the employers had rebutted the presumption that there were clearly identifiable common interests in s 249(3)(a) – whether the Commission failed to take into account a relevant consideration, namely the public interest requirement by an erroneously narrow construction of the requirement – whether the Commission misconstrued the statutory criterion in s 249(1)(b) (reasonable comparability) by focusing such a comparison at a very general level and not considering each of the differences that had been raised in evidence and submissions, being centrally relevant to the issues or alternatively by not considering the actual differences to form a view on reasonable comparability, failed to apply itself to the relevant question such that it exceeded its authority or powers, could not have properly reached the requisite state of satisfaction; and/or misunderstood the nature of the opinion it was to form – whether the Commission committed a jurisdictional error in its findings as to the majority support requirement by failing to construe, as part of determining whether the majority of employees “wanted to bargain”, whether that vote was genuine and/informed or that the decision was otherwise legally unreasonable in ss 249(1B), 249(1)(b)(iv) – application dismissed Legislation: Conciliation and Arbitration Act 1904 (Cth)
Fair Work Act 2009 (Cth) Pt 2-4, ss 3, 3(a), 3(f), 27, 171, 172, 172(2), 172(3), 172(5), 182(1), 186(2)(a), 186(2)(b)(i), 188, 188B, 188B(3), 209, 216A, 216BA, 216C, 216CB, 216D, 216DC, 216E, 216EB, 221, 237, 247(4), 248, 248(1)(b), 248(2), 249, 249(1)(b)(iv), 249(1)(b)(v), 249(1)(b)(vi), 249(1)(c), 249(1AA), 249(1B), 249(1B)(d), 249(1C), 249(1D), 249(2), 249(3), 249(3)(a), 249(3)(b), 249(3A), 249(3A)(a), 249(3A)(b), 249(3A)(c), 249(3AB), 249A, 250, 250(1), 251, 251A, 252, 345, 437, 437(3)(b), 562, 570
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23
Industrial Relations Act 1988 (Cth)
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules 2011 (Cth) r 39.32
Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW)
Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth)
Creighton and Stewart’s Labour Law (Federation Press, 7th edn, 2025) [14.03]
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593
Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Pty Ltd (t/as Delta Coal) [2024] FWCFB 253; 334 IR 245
Australian Education Union v Mambourin Enterprises Ltd (t/as Mambourin) [2020] FWC 3760
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Edlyn Foods Pty Ltd [2011] FWA 7928
Central Goldfields Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2025] FCAFC 59
CEPU v South 32 Worsley Alumina Pty Ltd [2021] FWC 3784
Collector of Customs v PozzolanicEnterprises Pty Ltd [1993] FCA 456; 43 FCR 280
DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529
Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26; 303 FCR 153
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; 297 FCR 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204
New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578
O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210
One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582
Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73
Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 988
Re Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 6388
Re Kellog Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; 61 ALJR 393
Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; 253 FCR 368
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 236 Date of hearing: 17–18 March 2025 Counsel for Ulan Coal Mines Pty Ltd: Mr J E Murdoch KC with Ms B O’Brien Solicitor for Ulan Coal Mines Pty Ltd: Corrs Chambers Westgarth Counsel for Peabody Energy Australia Coal Pty Ltd: Mr R Dalton KC with Mr J McLean Solicitor for Peabody Energy Australia Coal Pty Ltd: MinterEllison Counsel for Whitehaven Coal Mining Limited: Mr Frank Parry KC with Ms V Bulut Solicitor for Whitehaven Coal Mining Limited: Sparke Helmore Lawyers Counsel for the Great Southern Energy Pty Ltd t/a Delta Coal: Mr A Gotting Solicitor for the Great Southern Energy Pty Ltd t/a Delta Coal: Bartier Perry Lawyers Counsel for the Fair Work Commission: The Fifth Respondent filed submitting notices, save as to costs Solicitor for the Fair Work Commission: Australian Government Solicitor Counsel for Association of Professional Engineers, Scientists and Managers, Australia: Mr H Borenstein KC with Mr Y Bakri Solicitor for the Association of Professional Engineers, Scientists and Managers, Australia: AEN Legal ORDERS
NSD 1316 of 2024 BETWEEN: ULAN COAL MINES PTY LTD
Applicant
AND: ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
(and others named in the Schedule)
First Respondent
NSD 1320 of 2024 BETWEEN: PEABODY ENERGY AUSTRALIA COAL PTY LTD
Applicant
AND: ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
(and others named in the Schedule)
First Respondent
NSD 1333 of 2024 BETWEEN: WHITEHAVEN COAL MINING LTD
Applicant
AND: ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
(and others named in the Schedule)
First Respondent
ORDER MADE BY:
COLLIER, SNADEN AND RAPER JJ
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applications be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Three judicial review applications are brought to this Court by three employers who were made the subject of a single interest employer authorisation pursuant to s 249 of the Fair Work Act 2009 (Cth) by the Full Bench of the Fair Work Commission: Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Pty Ltd (t/as Delta Coal) [2024] FWCFB 253; 334 IR 245 (primary judgment or FB). The effect of this authorisation is such that, against their will, these employers are required to bargain with a small cohort of their respective employees and the employees’ industrial representative, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA, who applied for the authorisation and is the respondent to each of the applications for review) to enter into an enterprise agreement.
The employers operate underground black coal mines: Wambo Underground Coal Mine operated by Peabody Energy Australia Coal Pty Ltd; Ulan No 3 Underground Coal Mine operated by Ulan Coal Mines Pty Ltd; and, Narrabri Coal Mine operated by Whitehaven Coal Mining Ltd. These employers, though the applicants to these proceedings, will be hereafter described as the “respondent employers” to aid readability given they were so described in this way in the primary judgment. APESMA had also sought for a fourth employer, Greater Southern Energy Pty Ltd, which operates the Chain Valley Colliery (Delta Coal) to be included in the authorisation. The Commission found key differences between Delta Coal and the three applicants and accordingly did not include Delta Coal in the authorisation (for reasons explained below).
The genesis for this dispute appears to arise in part, from the recently enacted “single interest employer authorisation” provisions, under Pt 2-4 of the FW Act and how they sit (somewhat uncomfortably) within the rest of the legislative scheme. The provisions mark a significant departure away from the concept of collective (single enterprise) bargaining where such agreements arise from the joint will of employers and employees (and their representatives) at the enterprise level.
Each of the three employers, Ulan, Peabody and Whitehaven, seek various forms of relief under s 39B of the Judiciary Act 1903 (Cth), and or under s 562 of the FW Act (and with respect to Whitehaven, under ss 21–23 of the Federal Court of Australia Act 1976 (Cth)) for writs of certiorari quashing the primary judgment and the single interest employer authorisation dated 23 August 2024 made pursuant to s 249 of the FW Act. Additionally, Ulan seeks a writ of mandamus to issue to the Commission requiring it to determine the application according to law or a declaration that the primary judgment and authorisation are void and of no effect. Peabody seeks relief in similar terms. These three proceedings were ordered to be heard together before the Full Court.
These applications concern judicial review and therefore this Court is to consider, not the merits of the underlying dispute nor social policy as to whether different employers should be forced to bargain for the purpose of entering into collective agreements with their employees, other employers and unions against their will, but rather whether the Commission’s decision, by making the authorisation, was vitiated by jurisdictional error. The applications therefore concern whether the Commission construed s 249 correctly, namely what it needed to be satisfied of in order to make the authorisation and attended the task as required by the statute. Challenge is made of how the Commission understood various of the criteria under this provision and attended to its statutory task.
For the reasons which follow, each of the applications must fail.
The relevant statutory provisions
As observed at the outset, the provisions, under Pt 2-4, mark a significant departure away from industrial laws since 1904, which have recognised the concept of collective (enterprise) bargaining where such agreements arise from the joint will of employers and employees (and their representatives) at the enterprise level.
Whilst the Conciliation and Arbitration Act 1904 (Cth) allowed for the registration of collective agreements, it was not utilised by parties as a result of perceived restrictive interpretations of the legislative scheme by the High Court: Creighton and Stewart’s Labour Law (Federation Press, 7th edn, 2025) at [14.03]. It was not until 1988 when the original (enterprise) agreement-making provisions came into being: Industrial Relations Act 1988 (Cth). Those provisions were the subject of refashioning and refinement from 1992 onwards, however, always on the basis that such agreements would be entered voluntarily at the single-enterprise level.
Part 2-4 of the FW Act proscribes circumstances in which enterprise agreements may be made and, without being exhaustive, specifies the nature of and representation during the bargaining of those agreements, the process of approval of such agreements, the tests to be applied for such agreements to be approved and what is required to be contained in those agreements.
The Part is informed by its objects contained in s 171, as follows:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b)to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
The Part is also informed by the overall objects of the FW Act as contained in (the then) s 3:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f)achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
Section 172 authorises the creation of a number of types of agreements as between an employer, or two or more employers that are related employers (in a single-enterprise agreement) (s 172(2)) or two or more employers that are not related employers (in a multi-enterprise agreement) (s 172(3)). Section 172(5) precludes employers, who are the subject of a single interest employer authorisation, from making any enterprise agreement other than a single interest employer agreement.
These proceedings concern a single interest employer authorisation, such an authorisation is made in the following circumstances:
249 When the FWC must make a single interest employer authorisation
Single interest employer authorisation
(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that:
(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and
(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and
(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and
(iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and
(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.
(1AA) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.
Additional requirements for application by employers
(1A) The requirements of this subsection are met if:
(a) the employers that will be covered by the agreement have agreed to bargain together; and
(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.
Additional requirements for application by bargaining representative
(1B) An employer is covered by this subsection if:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and
(e) subsection (1D) does not apply to the employer.
(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(1D) This subsection applies to an employer if:
(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or
(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.
Franchisees
(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:
(a) franchisees of the same franchisor; or
(b) related bodies corporate of the same franchisor; or
(c) any combination of the above.
Common interest employers
(3) The requirements of this subsection are met if:
(a) the employers have clearly identifiable common interests; and(b) it is not contrary to the public interest to make the authorisation.
(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.
(3AB) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b)an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
Operation of authorisation
(4) The authorisation:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earlier of the following:
(i) at the same time as the enterprise agreement to which the authorisation relates is made;
(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.
Notably, as is apparent from the above, such an authorisation can be, in effect, imposed upon employers by the Commission, and impede their ability to choose who they bargain with and who agreements are made with. These provisions were enacted as part of a suite of new provisions made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The previous provisions had only allowed for a single interest authorisation where the employers in question agreed to bargain together (i.e. they made the application (former s 248)) and fell within one of two categories: where they carried on similar business activities under a franchising agreement or where a declaration was made by the Minister, based on a range of criteria (former s 249(1)(c)).
The circumstances in which the former Ministerial declaration could be declared were contained in the former s 247(4):
In deciding whether or not to make the declaration, the Minister must take into account the following matters:
(a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;
(b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;
(c) whether the relevant employers are governed by a common regulatory regime;
(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;
(e) the extent to which the relevant employers operate collaboratively rather than competitively;
(f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;
(g) any other matter the Minister considers relevant.
Sections 248, 249A to 252 contain various restrictions, conditions and content with respect to the authorisation.
Section 248 provides:
248 Single interest employer authorisations
(1)The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:
(a) those employers;
(b) a bargaining representative of an employee who will be covered by the agreement.
(2) The application must specify the following:
(a) the employers that will be covered by the agreement;
(b) the employees who will be covered by the agreement;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.
Sections 249A and 250 provide:
249A Restriction on making single interest employer authorisations
The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
250 What a single interest employer authorisation must specify
What authorisation must specify
(1)A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:
(a)the employers that will be covered by the agreement;
(b)the employees who will be covered by the agreement;
(c)the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;
(d) any other matter prescribed by the procedural rules.
Authorisation may relate to only some of employers or employees
(2)If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.
(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.
The revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) described the significance of the change in the industrial landscape in the following terms:
…
1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:
•removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
•providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
•permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and
•inserting new Subdivision AD — Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.
…
1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term “common interest employers” would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.
There are a number of aspects of these provisions which are worthy of mention because they inform the motivation for this application and how the Court is to consider whether the Full Bench’s decision is vitiated by jurisdictional error.
First, the new statutory regime under Pt 2-4, which in effect, can force multiple employers to engage in bargaining at a multi-enterprise level goes against the historical capacity to engage, voluntarily, at an enterprise level, to bargain terms and conditions of employment, tailored to the enterprise.
Secondly, the regime allows for employers to be so forced where the conditions, applicable in different circumstances, of s 249 are met. Given the application is made by a bargaining representative, under s 248(1)(b), and the employers to be covered by the authorisation do not consent, the conditions of s 249(1B) must be met, namely that the employer employed at least 20 employees at the time that the application for authorisation was made, the employer has not made or is named in an application for such an authorisation that has not yet been decided in relation to the employees that will be covered by the agreement, and the majority of employees who are employed by the employer at a time to be determined by the Commission and who will be covered by the agreement want to bargain for the agreement, and the circumstances described in s 249(1D) do not apply (the employer is covered by an enterprise agreement that has not passed its nominal date of expiry or there has already been agreement to bargain for a proposed single-enterprise agreement).
Further, s 249 requires, given these employers are not under the same franchise (for which s 249(2) would apply) that the employers have clearly identifiable common interests (taking into account the matters identified in s 249(3A)) and it is not contrary to the public interest to make the authorisation (s 249(3)) and if so, the operations and business activities of each of those employers are reasonably comparable (s 249(1)(b)(vi)).
Thirdly, however, notably, ss 249(3AB) and 249(1AA) establish a presumption (in certain circumstances) that the requirements of s 249(3) (that the employers have common interests and the authorisation would not be against the public interest) and s 249(1)(a)(iv) (that the operations and business activities of each of those employers are reasonably comparable) are met. These presumptions apply in the circumstances of this case and their existence (and whether they were displaced) goes some way to inform a critical reading of the Full Bench’s decision.
Fourthly, the determination of whether the authorisation conforms with the statutory demands of the provision requires of course, the obvious, that particular consideration is given to the content of the application, who it is made by and its scope (the relevant employers and employees it is intended to cover). Section 248(2) requires that the application must specify the employers that will be covered by the agreement, the employees who will be covered by the agreement and the person (if any) nominated by the employers to make the application if the authorisation is made. The scope of the proposed agreement (as contained in the application) will inform the task of the Commission when determining whether the preconditions are satisfied, including those about which contention has arisen by this review, namely whether the presumption of clearly identifiable common interests, the authorisation is not contrary to the public interest and the operations and business activities of each of those employers are reasonably comparable, is displaced by the employers.
The application which was the subject of the decision under review
Critically, the application sought for the authorisation to cover a small number of employees holding particular statutory positions or positions that ensure the statutory requirements of mining operations are met (such that each of the employers were compelled to employ them), namely:
(a)Deputies, including where known as Crew Supervisors;
(b)Undermanagers, including where known as Shift Undermanagers;
(c)Shift Engineers, including where known as Mechanical or Electrical Shift Engineers, Mechanical or Electrical Shift Supervisors, Mechanical or Electrical Supervisors, Trade Supervisors, Shift Trades Supervisors, Maintenance Supervisors, or Leading Hands at Chain Valley Colliery only; and
(d)Control Room Operators, including where known as Control Room Officers, Control Room Supervisors, Senior Control Room Officers or Senior Control Room Operators.
As to the potential number of employees (who would be covered by the authorisation) holding these positions at each mine site, the Full Bench found that, as at February 2024, there were 46 Ulan employees, of a workforce of approximately 250 employees and 43 Whitehaven employees of a workforce of between 470 to 530, who held these positions (FB[159] and FB[173] respectively). There was no finding as to the number of Peabody employees who held these positions.
The decision under review
The Full Bench was required to determine whether to make the single interest employer authorisation sought by APESMA and opposed by each of the respondent employers, namely Ulan, Peabody, Whitehaven and Delta Coal. Ultimately, the Full Bench made the authorisation, pursuant to s 249 of the FW Act with respect to all of the respondent employers save for Delta Coal.
The Full Bench, identified at FB[57], the criteria it said it was required to consider when determining whether to make the authorisation (about which no issue is taken on appeal):
•whether a valid application has been made;
•whether at least some of the SIEA Employees are represented by an employee organisation;
•whether the parties have had the opportunity to express their views;
•whether, given the absence of consent, each of the Respondent Employers employed at least 20 employees at the time that the application was made;
•whether any Respondent Employer has made an application for a single interest employer authorisation that has not yet been decided in relation to the SIEA Employees;
•whether a Respondent Employer is named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees;
•whether a majority of the SIEA Employees who are employed by each Respondent Employer want to bargain for the proposed agreement;
•whether s 249(1D), which concerns the existence of an “in-term” enterprise agreement, applies to any of the Respondent Employers;
•whether the requirements of s 249(3) have been met, that is:
•whether the Respondent Employers have clearly identifiable common interests; and
•whether it is not contrary to the public interest to make the Authorisation;
•if s 249(3) has been met, whether the operations and business activities of the Respondent Employer are reasonably comparable with those of the other Respondent Employers;
•whether the circumstances contemplated in ss 250(3) and (4) – which in general terms contemplate that an authorisation would not be made
•where bargaining is already underway for an enterprise agreement that would cover the same employees – apply; and
•whether the proposed agreement covers employees in relation to general building and construction work, noting that if it does, the Authorisation cannot be made.
Thereafter, the Full Bench, identified those matters about which there was no dispute, at FB[58], namely:
•A valid application was made.
•At least some of the employees who will be covered by the proposed agreement are represented by an employee organisation, namely APESMA.
•Each party to the application has had an opportunity to express their views.
•Each of the Respondent Employers employed at least 20 employees at the time that the application was made.
•None of the Respondent Employers are named in a single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees.
•The proposed agreement will not cover employees in relation to general building and construction work.
•The proposed authorisation specifies each of the matters required by s 250(1) of the FW Act.
•·The circumstances contemplated in ss 250(3) and (4) do not apply.
Then, the Full Bench crystallised what remained, namely, the “major issues in dispute”, at FB[59]:
•Whether a majority of the employees who are employed by each of the Respondent Employers at a time determined by the Commission and who will be covered by the agreement want to bargain for the agreement – Majority Support.
•Whether each of the Respondent Employers have clearly identifiable common interests – Clearly Identifiable Common Interests.
•Whether it is not contrary to the public interest to make the authorisation – Public Interest.
•Whether the operations and business activities of each of the Respondent Employers are reasonably comparable with those of the other employers that will be covered by the agreement – Comparable Operations and Business Activities of Respondent Employers.
•Whether Delta Coal and the SIEA Employees who will be covered by the proposed agreement are covered by an enterprise agreement that had not passed its nominal expiry date – Delta Coal Agreement coverage.
(Emphasis in original.)
As will become apparent below, each of the first four major disputed issues, referred to above, are the subject of this application for review.
Ultimately, the Commission was satisfied that it must make the authorisation, where that authorisation covered all the respondent employers save for Delta Coal, under s 249 of the FW Act, and that a majority of employees wanted to bargain for the agreement and that the respondent employers had not displaced the presumption that each of the respondent employers had clearly identifiable common interests, the authorisation was in the public interest and their operations and business activities were reasonably comparable. Detailed consideration will be given to each of these aspects of the Full Bench’s reasons when dealing with each of the related grounds of review below.
The applicants’ arguments before this Court
As adverted to above, each of the applicants’ applications before this Court variously assert jurisdictional error and legal unreasonableness in the Full Bench’s findings by reference to the “major issues in dispute” identified by the Full Bench (with the exception of Delta Coal) at FB[59] (extracted at [31] of these reasons above).
There was imprecision in the way that each applicant formulated the alleged jurisdictional error and overlap between them. As a consequence, the Court asked that the applicants confer and provide to the Court before the hearing, a list of issues to be determined, under the umbrella of each of the four disputed findings.
Issues to be determined
As a consequence, the applicants identified the following issues to be determined by reference to the major issues in dispute identified before the Full Bench:
(a)Did the Commission fail to form the state of satisfaction required under ss 249(1)(b)(v) and 249(3)(a) of the FW Act as to whether the respondent employers have “clearly identifiable common interests”? (Peabody Ground 1; Whitehaven Grounds 1–8; Ulan Ground 3);
(b)Did the Commission fail to afford Peabody procedural fairness and/or fail to form the required state of satisfaction as to the “clearly identifiable common interests” requirement, by failing to consider Peabody’s submission that there were not clearly identifiable common interests as between Peabody and Ulan given the conflict of commercial interests of their respective corporate groups? (Peabody Ground 2; Ulan Submissions [67]));
(c)Did the Commission fail to form the state of satisfaction required in ss 249(1)(b)(v) and 249(3)(b) of the FW Act as to whether it was not contrary to the public interest to make the authorisation? (Peabody Ground 3; Whitehaven Ground 12; Ulan Ground 5).
(d)Did the Commission fail to form the state of satisfaction required in s 249(1)(b)(vi) of the FW Act as to whether the operations and business activities of the respondent employers are reasonably comparable? (Peabody Ground 4; Whitehaven Grounds 9–10; Ulan Ground 4); and
(e)Did the Commission fail to form the state of satisfaction required in ss 249(1)(b)(iv) and 249(1B)(d) of the FW Act as to whether a majority of the employees who are employed by each employer who will be covered by the proposed enterprise agreement want to bargain for that agreement? (Ulan Grounds 1 and 2; Whitehaven Ground 11).
As will be seen by how each issue is dealt with below, the questions required to be determined were further refined at hearing.
Nature of the jurisdiction
It is worthwhile noting the constraints of this Court’s jurisdiction.
This Court’s jurisdiction, when dealing with decisions of the Commission, is limited to reviewing those decisions to determine whether there is jurisdictional error. It is not to enter in the merits of those determinations. The Commission, alone, has been vested with responsibility for undertaking (in this case, the highly evaluative task) and assessing all relevant matters and reaching the relevant conclusions necessary to make the determinations. This Court’s task is confined to whether the Commission’s decision is vitiated by jurisdictional error: Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; 253 FCR 368 at [8].
As will be apparent from the review grounds, the applicants urged upon this Court to find that the Commission had engaged in various forms of jurisdictional error. Relevant, to those grounds, it is worthwhile noting a number of additional matters.
The necessary “restraint” in the conduct of judicial review involves both a reading of the reasons under challenge as a whole, considered fairly and without the use of a fine appellate tooth comb: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291 per Kirby J.
The rationale for reading reasons as a whole includes the presumption that decision-makers ordinarily review the whole of the evidence and consider all of the issues before they write, such that this must be taken into account when reading the reasons and therefore passages of the decision sought to be impugned should not be read in isolation: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [76] per Bell P.
An inference ought not be too readily drawn that a Tribunal failed to consider an issue where the reasons are otherwise comprehensive and the issue has been identified at some point. Consideration must be given to whether it was unnecessary to make a finding on a particular matter because it was subsumed in findings of greater generality or there was a factual premise upon which the contention was based which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [47].
However, the Court must not “fill in gaps in the path of reasoning”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; 297 FCR 1 at [61].
It is for the primary decision-maker to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power absent any statutory indication: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at [39]–[41] per Mason J.
The question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act, it may also be determined by implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend at [39]–[44] per Mason J.
The Common Interest Requirement
There was no constructive failure to consider the actual different terms and conditions of employment (Issue 1)
Competing positions
The parties’ competing positions may be summarised in the following way.
The central thesis of the respondent employers (led by Peabody) was that the evident purpose of the s 249(3)(a) criterion was that there be clear homogeneity of the employers’ interests relevant to bargaining (common objectives, priorities and tolerances). It was through this prism of homogeneity that the relevance and importance of interest must be viewed, otherwise, commercial and other employer interests can be cast at a level of generality and abstraction, even if they relate broadly to bargaining, which is impermissible. It is said to be impermissible, and impermissibly so in this case, because the Commission, effectively “climbed over” and failed to engage with the differences as between the employers’ interests, by constructing common interests according to an overly general, high level abstract analysis that refashioned actual differences, in a reductive way, creating artificial commonality.
Whitehaven generally agreed with the submissions of Peabody and further submitted that the level of common interest, to which Parliament was concerned within s 249(3)(a), was commonality in wages or salaries (and increases or decreases), hours of work, patterns and rosters of work, and other incentives, allowances and bonuses. Whitehaven referred to its extensive unchallenged evidence of the very different (as a consequence of its location) terms and conditions of employment applicable to its Narrabri mine for which it was said that the Commission failed to engage because it considered the evidence at such a high degree of generality such that it failed to take account of a material consideration, misconstrued the statutory criterion and failed to apply itself to the relevant question.
Ulan agreed with the submissions of both Whitehaven and Peabody and echoed their submissions. Further, Ulan emphasised the commercial and industrial conflict of interests as between Peabody and Ulan during bargaining and submitted that the Full Bench should have come down to the next level of analysis and looked at the “conflicts versus commonality of interests” as between the relevant employers.
By contrast, APESMA submitted that, by and large, the Commission accorded with the approach urged by the respondent employers. APESMA submitted that the Commission was entitled, as it did, to undertake the evaluative exercise, with particular regard to the nature of the authorisation sought, namely the narrow scope of the positions of the relevant employees, being specialised and essential staff in each of these mines mandated by legislation. The statutory compulsion to have these employee positions, the concomitant narrowness of the field for determining the terms and conditions of these particular staff, and where the staff formed a small cohort, had a bearing on the degree to which differences would displace the presumption.
Consideration
Any consideration of the Full Bench’s reasons, in a judicial review context, must be considered through the prism of the FW Act and what the Full Bench was, by statutory command, tasked to do. The legislative scheme and the text of s 249 reveal the following about the common interest requirement:
(a)the determination of whether the respondent employers have discharged their burden of displacing the presumption requires consideration of what is meant by the expression “common interests” and “reasonably comparable” within the statutory context;
(b)guidance as to their meaning is derived from the text, the statutory scheme and the evident purpose of the provision;
(c)however, given that the expression “common interest” is not defined, it is a term of broad import;
(d)the matters identified by Parliament, as may be relevant in the determination of common interest, point to respondent employer characteristics that may assist in determining whether the respondent employers have some common interests which will assist in the facilitation of bargaining;
(e)however, Parliament has left to the Commission the determination of these issues, by reference to these broad concepts, where such a task is an evaluative one;
(f)the focus of the inquiry, where there is a need to displace the presumption, will involve consideration of what are said to be the circumstances of difference as between each of the respondent employers where the legislation assumes by their size there will be commonality;
(g)whether there is commonality or difference is a highly evaluative exercise not based on mathematical formulae and one directed to the scope of the proposed enterprise agreement the subject of the authorisation application; and
(h)the scope informs the task not only of identifying commonality but also difference and the ultimate landing on whether the presumption is displaced. For example, where the application concerns a small cohort of employees that, by statutory command, the employer is required to employ, this will inform questions of commonality and the influence on that question of difference (for example, mine life, retention, economic management etc). If an employer has no choice but to engage employees performing duties of this kind, for which there is statutory prescription as to the duties the employees are required to perform, this will have bearing on the determination of whether the presumption is displaced, and whether the fact of mine life, retention issues and level of the profitability of the mine and the ability to absorb labour costs, are differences of the kind that displace the presumption.
The Full Bench identified correctly the test:
345 … that we are required to consider is whether the Respondent Employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the SIEA employees.
(Emphasis added.)
In the same paragraph, the Commission went on to state that the effect of the operation of ss 249(3) and 249(3AB), where there is opposition to the claimed authorisation, the Commission must assess the evidence and determine:
(a)whether the factors relied upon as interests are demonstrated by the evidence;
(b)whether there are, in fact, relevant interests in relation to bargaining for an enterprise agreement as between the respondent employers; and
(c)whether these interests are common or different as between the respondent employers.
No serious challenge was made to this portion of the reasons, nor could there be. As will be apparent from the below, the challenge arose principally as to the Commission’s claimed (purported) application of (or failure to apply) these principles rather than with respect to the principles themselves.
Part of the attack was made as to the level of satisfaction. For example, Peabody submitted that the evident purpose of the s 249(3)(a) criterion is that the Commission is satisfied that there is a clear homogeneity of the employers’ interests relevant to bargaining (common objectives, priorities and tolerances). As to what “clear homogeneity” means or the level of abstraction allowed, ultimately is dependent upon the circumstances of each case, it is an evaluative exercise. However, the Full Bench did accept, as Peabody submitted, that the common interest criterion was directed to whether the parties ought to be required to bargain together, and therefore the relevance and importance of interests are those that facilitate bargaining. As the reasons below illustrate, the Full Bench understood and gave greater weight to those interests which did this. The difficulty for the respondent employers was that the Full Bench was ultimately of the view that their evidence did not establish that the purported differences would curtail the facilitation of bargaining.
Peabody also submitted that although the authorisation creates an avenue by which a proposed agreement can cover more than one enterprise, the purpose is to facilitate bargaining focused on the needs of each of those enterprises. We do not accept that the purpose is so focused. The needs of those enterprises form a part of but not the totality of the Commission’s overall assessment. As to those needs and whether they demonstrate commonality, it is a question of fact and degree to be determined in the circumstances of the particular case and, in particular, by reference to the scope of the authorisation sought. In order to glean the legislation’s purpose, consideration must be given to the evident broadening of the field by this new regime and the powerful indicator which comes from the creation of the presumption. It is presumed that employers with more than 50 employees will have common interests.
What is acutely apparent from the outset, and evident in the first sentence of FB[345], is that the Full Bench’s focus, when considering whether the respondent employers have joint, shared, related or like characteristics, qualities, undertakings or concerns, was upon those factors that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the employees that are the subject of the application: FB[345]. The Full Bench recognised that the task extends beyond considerations at the macro or conceptual level and warrants close attention to “what the discernible interests of the parties are at the level of the enterprise”, again emphasising those interests “that are directly relevant to the proposed bargaining”: FB[348]. The task requires, as articulated by the Full Bench and which the parties accepted and urged upon this Court, a “broad, evaluative approach” and the undertaking of a “qualitative assessment consistent with the objects of the FW Act”: FB[348].
The respondent employers challenged how the Full Bench ultimately cast the level of interests, claiming they were purportedly considered at a level of generality and abstraction (even if they relate broadly to bargaining) which was impermissible. The respondent employers also claimed that the Full Bench failed to take into account their evidence as to their characteristics and attributes.
However, it was apparent that, from the outset, the Full Bench was cognisant of the possible degree of granulation of interest and (for reasons later exposed) did not err in the way that they determined whether the respondent employers had displaced the presumption that they had clearly identifiable common interests. At FB[346], the Full Bench acknowledged a few, of the innumerable permutations:
346It is likely that when notionally identifying interests amongst employers subject to an application of this kind, some interests will be common and some interests will not be common. It is possible that an employer will have some highly specific interests which are shared by no other employer. Similarly, the same employer may have, at least at the conceptual level, very broad interests which may be shared across many employers in a range of vastly different industries and circumstances. There is also no guidance in s.249(3) as to whether the identification of different interests negates such a finding.
As a consequence, the Full Bench noted importantly the following, at FB[347]:
347 We consider that the mere existence of more than one common circumstance that could be relevant to an interest held between the relevant employers would not be sufficient to meet the terms of s.249(3)(a) of the FW Act. The requirement for the existence of common interests is intended to be a qualifier in the context of provisions that may result in multiple employers being required to bargain together under a single interest employer authorisation and it should be applied in a manner that gives effect to its purpose. It would, for example, not be intended that the consideration of ‘common interests’ was applied in a purely mathematical way such that being both a national system employer and subject to the FW Act, with the associated interests that arise from this, meant that employers have ‘common interests’ and should be compelled to bargain together. The provisions must also be applied in a manner consistent with the objects of the FW Act. The statutory framework has as its overall object the provision of ‘a balanced framework for cooperative and productive workplace relations’ including by ‘… achieving productivity and fairness through an emphasis on enterprise – level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action’. In that light, it cannot have been contemplated, for example, that the fact of all employers being in the same industry and covered by the same modern award would be enough in itself to constitute ‘common interests’ for the purposes of making an authorisation of the nature sought in this application. Such an outcome would, for example, be discordant with a system that also provides for modern awards covering employees at the industry and occupational levels and reinforces that these (common) circumstances are not in themselves interests, at least for the purposes of a single interest employer authorisation application.
(Emphasis added.)
Accordingly, of significance, the Full Bench in effect noted that the determination of “common interests” is evaluative and qualitative, not undertaken by mathematical analysis and informed by the achievement of the objectives of the FW Act. Indeed, the Full Bench appears to acknowledge, that by setting the test for determining commonality too low, for example, by the identification of the fact of the employers being in the same industry and covered by the same modern award, would not be enough and would be inconsistent with the legislative scheme.
The Full Bench then, at FB[349], went on to consider what “common or different interests are said to arise”. The Full Bench referred, immediately thereafter, to its earlier “various findings about the nature and context of each of the Respondent Employers” (FB[349]). This is a reference to the earlier section, entitled “5. The circumstances of the Respondent Employers”, described to constitute “broad findings about the Industry and the circumstances of the Respondent Employers” (FB[109]–[203]).
Peabody submitted that the matters relevant to determining common interest in s 249(3A): being, geographical location (s 249(3A)(a)), regulatory regime (s 249(3A)(b)), nature of enterprise and terms and conditions of employment (s 249(3A)(c)), were determined by the Full Bench to be not necessarily interests per se, but as characteristics that are capable of informing interests. Peabody submitted that this is “right at a theoretical and grammatical level”, but that, when looking to the Supplementary Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth) before the Senate at [79], it was clear Parliament’s intention was that those matters would be of significant moment in determining common interest:
79 Determining whether the relevant employers have clearly identifiable common interests will likely require evidence to be provided of a range of characteristics of the employers, including the nature, size and scope of operations, the terms and conditions of employment across the organisations, the relevant regulatory regime and geographical location.
Passages from the Supplementary EM were also relied upon for how those matters relevant in s 249(3A) bear upon the presumption in s 249(3AB). It was submitted that relevant matters (interests, characteristics or attributes) negativing the proposition are relegated as not being interests or not being inconsistent with the abstract and general interests identified. We do not accept this. Regardless of the taxonomy attributed to the matters referred to in s 249(3A), ultimately, it is a matter for the Commission, informed by the FW Act’s terms, context and purpose, to determine whether the presumption is displaced.
The Full Bench then summarised the submissions of each of the parties before repeating its earlier heading “Consideration of the clearly identifiable common interests requirement”: FB[338].
For the reasons which follow, we reject the respondent employers’ claim that the Full Bench ultimately misapprehended the nature of the inquiry, in that it cast the identification and comparison of employer interests at a thematic level that was too general and abstract, such that actual differences were collated into themes of commonality.
The Commission was required to undertake a broad evaluative exercise in order to reach the requisite state of satisfaction. This Court must read the reasons as a whole without looking astutely to find error in the ways that the Full Bench expressed itself in reaching that state of satisfaction: Wu Shan Liang at 271–272 per Brennan CJ, Toohey, McHugh and Gummow JJ, at 291 per Kirby J. A fair reading of the decision reveals that the Commission did adopt the approach it had articulated at FB[348].
The scope of the authorisation has particular significance in this case. The intended coverage of the proposed enterprise agreement informs the task not only of identifying commonality but also of difference and the ultimate landing on whether the presumption is displaced. It is evident that the Commission, when considering what is required by the relevant inquiry as to whether the employers have clearly identifiable common interests, attended to that task, by giving specific consideration as to those employees who were the subject of the application (as it was required to do): FB[342].
The Commission then noted that the employees to be covered by the authorisation were limited to those appointed (at FB[344]):
to one of four senior, or relatively senior roles that are either required by the relevant mining safety legislation or undertake functions that are required. It is therefore necessary to have regard to the intended coverage of the enterprise agreement when examining the interests of Respondent Employers.
By extension, as adverted to above, the Commission then concluded that the relevant inquiry involved considering whether the respondent employers had joint, shared, related or like characteristics, qualities, undertakings or concerns that would impact or influence them in relation to “bargaining for an enterprise agreement that will cover the SIEA employees [those proposed to be covered by the authorisation]” (emphasis added): FB[345].
The Commission’s reasons must be read as a whole and consideration be given to the number of different places, in the lengthy judgment, that salient findings of fact were made which were applicable to more than one of the statutory criteria being assessed, with the consequence that the Commission, made reference to the existence, in short hand, as it was permitted to do, to those earlier relevant findings of fact.
At the outset of its consideration of “which common or different interests are said to arise”, the Commission referred specifically to its earlier findings about the nature and context of each of the respondent employers: FB[349]. Those findings at FB[109]–[203] revealed that the Commission considered, in detail, the large volume of evidence relied upon by the respondent employers as to their differences and made specific findings with respect to their individual circumstances, as to the life cycles of their mines and different mining methods, their employees and certain aspects of their employment arrangements including differences in their roles and rostering.
The Commission identified the employees who were subject of the authorisation as a “small component” of the total mining industry workforce in New South Wales of 25,336 full-time equivalent workers: FB[118]. The Commission identified Peabody as using a longwall operation (FB[136]), having a “relatively short” anticipated remaining mine life (FB[138]), requiring truck transportation to its treatment plant and then train transport to Newcastle, totalling a round-trip journey of 11.5 hours (FB[140]). The Commission identified geological challenges for Peabody (FB[141]) and that the coal being sold is predominately sent to customers in Asia (FB[142]). It also identified Peabody’s difficulty in attracting and retaining employees, as it is not near any “attractive lifestyle factors” (FB[146]), and that its workforce predominately commutes on a daily basis. Most employees work three days on, four days off, with 12-hour shifts (FB[147]). The Commission also identified Ulan as operating a longwall operation (FB[150]), that the coal is transported by train to Newcastle totalling a 22.7 hour round trip (FB[156]) and geological challenges (FB[157]). The Commission also identified Ulan as selling coal predominately to customers in South East Asia (FB[158]). It identified that Ulan does not foster or encourage a Drive In Drive Out workforce but makes investment, and encourages staff to live, in local areas (FB[161]–[162]). Ulan’s staff do 10-hour shifts over four days or three 12-hour shifts (FB[164]). The Commission identified Whitehaven as operating a longwall mine (FB[168]), processed onsite and transported by train to Newcastle, totalling a 27 hour roundtrip (FB[169]). The Commission identified geological challenges affecting Whitehaven’s operations (FB[170]), that coal is predominately sold to customers in Asia (FB[171]). It identified its workers as comprising some living locally and others who DIDO, and Fly In Fly Out (FB[174]). It identified ongoing challenges in attracting and retaining employees (FB[175]). Whitehaven’s employment roster was more varied: some SIEA employees worked seven days on, seven days off, some four-days on, three-off (FB[175]–[184]). With respect to Delta, it identified the operation as located on the central coast (FB[187]), as a bord and pilar mine (FB[192]), that the coal is not washed and is not exported but used by the power station in the vicinity of the mine (FB[193]–[194]). Delta’s employees live locally, and its location gives it a significant recruitment advantage (FB[203]).
The Full Bench then made a substantial number of additional findings, as to each of the itemised matters, in s 249(3A): FB[350]–[415]. The Commission made findings with respect to their geographic locations of operation (and the concomitant feature of transportation) (FB[351]), that all of Ulan, Peabody and Whitehaven transport coal by rail to Newcastle over great distances over several hours. With respect to the “nature of the enterprises to which the Agreement will relate”, the Full Bench made findings regarding the characteristics of each employer, the economics of longwall mining (FB[362]–[365]), the customer base of each employer (FB[366]–[376]), the relative mine life of each of the relevant mine sites and the differing geology (which has had an impact on scale, production limits and mine life) (FB[377]–[386]). In relation to the “terms and conditions of employment” in each enterprise (FB[387]), reference was made to earlier findings regarding “workplace characteristics” (FB[389]), then thereafter additional findings regarding the attraction and retention issues and how each employer respondent sought to attract skilled labour in part by reference to the differing terms and conditions of employment, differing rostering arrangements, contractual terms and bonus and incentive schemes (FB[391]–[415]).
Whitehaven sought to support its submission, as to the importance of its evidence as to difference and how these matters were precisely the types of matters that influence and shape enterprise bargaining, by reference to its unchallenged evidence in the proceedings illustrative of difference. However, it omitted from its submissions reference to the fact that the Commission had made detailed findings regarding this evidence. Again, a close reading of the decision reveals that specific and detailed consideration was given to each employer’s circumstances comparative to the other employers. For example, so much is clear from FB[391], where express attention is given to, among other things, the fact that “Ulan has also had difficulty attracting and retaining employees because of the remote location”. Specific consideration was given to differences in where workforces were located: Ulan was identified as not fostering DIDO but encouraging staff to live locally (FB[161]-[162]), and Peabody’s staff were identified as predominantly commuting on a daily basis (FB[146]), ultimately, its consideration of this evidence (and what it identified as specific evidence from each “about attraction and retention issues”: FB[391], [472]), led to a conclusion that each suffer challenges in attracting and retaining staff: FB[655].
The Commission then returned to consideration of whether the respondent employers had displaced the presumption that they did have clearly identifiable common interests. The Commission stated that it placed “significant weight upon interests where they are likely to impact or influence the respondent employers in relation to bargaining for an enterprise agreement that will cover SIEA Employees”: FB[469] (emphasis added). No issue was taken with that approach in this review.
Ulan and Whitehaven challenged the Commission’s finding, at FB[476], that the “specific terms and conditions of employment” are “not interests but means of achieving specific intentions or requirements” of the respondent employers. That reasoning was said to be also inconsistent with the Commission’s statement of the statutory test as “interests” being “characteristics, qualities, undertakings or concerns” (emphasis added): FB[345]. It was submitted that that reasoning demonstrates that the Commission ignored, or did not have proper regard to, key terms and conditions (such as salaries and bonuses, and conditions of employment related to attracting employees to regional and remote areas) that would be relevant to the employers’ interests (including, in relation to bargaining). This submission is rejected.
The Full Bench acknowledged the “different terms and conditions at each of the mines” in the context of summarising the broad submission of the respondent employers: FB[470]–[471]. The Commission had made detailed findings earlier as to their differences. Properly understood, as considered more fulsomely below, at FB[477]–[478], the Full Bench summarised the detailed matters previously considered and taken into account at FB[387]–[415], as outlined above.
The Full Bench importantly hereafter, narrows in on a pivotal fact: that there is a requirement, by statute, that they each employ this small cohort of employees under the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022 (NSW), stating further that, at FB[471]:
471… The Respondent Employers cannot operate their respective mines without such personnel. This is the case regardless of issues which may affect the profitability and productivity of the mines. To employ persons in these roles, the Respondent Employers must provide conditions of employment which will attract prospective employees and retain current employees.
It is clear that this fact had significant import in the Commission’s reasoning. It was open for it to. There was no challenge to this fact nor to the aspects of the Commission’s reasoning that identify this fact as being critical.
It is from this fact that the Commission then considered the commonality of the employers in needing to attract and retain these safety critical, (in part) statutorily-mandated staff. Whilst the Commission immediately thereafter accepted that they had each “proactively” sought to attract staff in different ways, ultimately, there was a common goal, addressed by different means.
It was a matter for the Commission to determine whether the respondent employers’ evidence of difference displaced the presumption. Ultimately, the Commission was not persuaded that they had. If an employer has no choice but to engage employees of this kind, this will necessarily have bearing on the determination of whether the presumption is displaced, and whether the fact of mine life, retention issues and level of the profitability of the mine and the ability to absorb labour costs, are differences of the kind apt to displace the presumption.
A careful review of each of the respondent employers’ claimed “differences” (pressed upon this Full Court) reveals that the Commission made specific reference to the associated submissions, made specific, detailed findings with respect to the respondent employers’ evidence of these “differences” in its reasons, and did engage with the substance of the submission.
Peabody referred to various aspects of the Full Bench’s reasoning, said to exhibit the error. The Court’s attention was drawn to FB[477]–FB[479]:
477In our view, the evidence establishes that the Respondent Employers’ approach to conditions of employment indicates that the Respondent Employers generally want to:
i. negotiate individually with employees in relation to significant aspects of their employment conditions such as annual remuneration by providing individual contracts of employment;
ii. incentivise employees to perform well both at an individual level and as part of the business they are working for by providing annual bonuses;
iii. incentivise employees to engage in shift work and work additional hours by compensating them for doing so;
iv. implement rosters which maximise the productivity of the mine, are attractive to employees and provide for employees to have at least three consecutive days off after each roster period.
478In addition, there was evidence that Peabody, Ulan and Whitehaven have a specific interest in overcoming attraction and retention challenges so they each have sufficient SIEA Employees to operate their respective businesses and to fulfil regulatory requirements. Peabody, Ulan and Whitehaven apply GAE arrangements to the majority of their SIEA Employees whereas Delta Coal does not. This suggests that Delta Coal has an interest in recognising and applying award conditions which may not be shared in the same manner by the other Respondent employers.
479We find that the intentions or wishes of the Respondent Employers as described above will impact or influence each of them in relation to bargaining for an enterprise agreement that will cover SIEA employees, rather than the conditions of employment which are the means by which the Respondent Employers’ intentions are achieved.
Peabody submitted that these paragraphs, and in particular, the Full Bench’s conclusions in FB[477], reveal an impermissibly abstract analysis that takes the inquiry away from the relevant “prism” of identifying common interests to see whether an authorisation would facilitate enterprise bargaining at the enterprises concerned, and instead would cover any employer in the industry. Peabody submitted that the generalised expression, in FB[477], that the employers “generally want to” undertake those specific aspects is a reductive approach that errs in impermissibly reducing actual differences between the employers into an artificial commonality of such a high level of generality that it could apply to any participant in the New South Wales underground coal industry.
The legislation calls for the specialist tribunal to make an evaluation on a spectrum. The Commission’s reasons carefully, and repeatedly, wrestle with the spectrum of analysis, correctly not adopting any fixed position, but rather returning to the facts of the particular case and to the statutory context. The respondent employers’ reliance on FB[477] of the reasons is misplaced. The respondent employers fail to consider the whole of the reasoning process. The paragraph needs to be read together with the paragraphs that precede it, which provide the context for the Commission’s conclusions.
The Full Bench determined correctly that the expression “common interests” should be construed in the following way:
(a)in accordance with its ordinary meaning within the context and purpose of the FW Act: FB[340];
(b)where “common” means shared, joint, united and shared or joint and, at least at a conceptual level, “interests” means “concernment”, “business concerns or cause”, “goals, principles and business concerns” and “characteristics or matters that impact or influence the organisation”: at FB[340];
(c)as to the matters “that may be relevant in determining whether the employers have a common interest” listed in s 249(3A) (namely geographical location, regulatory regime and nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises), they may inform the determination of whether the employers have common interests but more is required to be established than that they have these matters in common: FB[339];
(d)for “common interests” to be “clearly identifiable”, they must be “plainly discernible or recognisable” but need not be self-evident: FB[341];
(e)consideration may be given to where the employees work who are the subject of the application: FB[342];
(f)however, given the interests of the employer may not be limited to the specific place of work (here, a particular mine site), the inquiry is to be performed at the company or entity level including, it appears from their reasons, to consider in a more expansive way, “the operations and interests of the [r]espondent employers beyond the [workplace]”: FB[342];
(g)however, again, “each mine” is potentially relevant to determining the employers’ interests given s 249(3A)(c) refers to the “enterprise”, which is defined in the FW Act to include “a business, activity, project or undertaking”;
(h)in determining whether there are such interests, account must be taken of the purpose of the provision: the authorisation of bargaining: FB[343];
(i)regard must be had to the intended coverage of the enterprise agreement when examining the respondent employers’ interests: FB[344];
(j)determining the sway of “highly specific” or “broad interests which may be shared across many employers in a range of vastly different industries and circumstances” is left to the Commission, and is not to be determined by mathematical deduction but by reference to the overall object of the provision: FB[346]–[347]; and
(k)the Commission’s task, in identifying those interests, extends beyond the macro or conceptual level and warrants close consideration of the discernible interests of the parties at the enterprise level: FB[348].
The Full Bench identified and considered the various matters that each of the employers raised, emphasising at FB[470] and FB[474] that the inquiry into how those matters (summarised at FB[469]) are considered in the context of common interest is to be guided by the fact of the small cohort of employees sought to be covered:
470 It is logical to commence our inquiry about matters which impact or influence the Respondent Employers in relation to bargaining by examining the current terms and conditions in the enterprises where the SIEA Employees work and whether they give rise to clearly identifiable common interests. APESMA submitted that the Respondent Employers have have [sic] clearly identifiable common interests because they have the same regulation in respect of the employment of their employees, including the SIEA Employees, namely by the FW Act, the CMI (Long Service Leave) Administration Act and the Black Coal Award. The Respondent Employers broadly submitted that the different terms and conditions at each of the mines are matters which weigh against a conclusion that the Respondent Employers have clearly identifiable common interests.
…
474 Putting to one side the conditions of employment that are intended to address the challenges of attracting employees to work in regional and remote areas, the Respondent Employers demonstrated a common approach to conditions of employment in many respects. All of the Respondent Employers employed SIEA Employees pursuant to individual contracts of employment and their production and engineering employees pursuant to enterprise agreements. All of the SIEA Employees are paid an annual salary which is inclusive of most award entitlements and receive superannuation at superannuation guarantee contributions rates. All of the SIEA Employees are eligible to receive annual bonuses which are contingent on specific conditions being met, which generally include business and personal performance measures. All of the Respondent Employers have arrangements in place to pay at least some of the SIEA Employees additional remuneration which recognises shift work and work performed in addition to the usual roster. All of the Respondent Employers, apart from Delta Coal, have GAE or similar arrangements with the majority of their SIEA Employees.
(Emphasis added.)
As part of the Commission determining whether an authorisation must be made, where the application was made by a bargaining representative under s 248(1)(b), the Commission also had to be satisfied either that each employer consented to the application or the conditions of s 249(1B) were met: s 249(1)(b)(iv). Those conditions included the following:
Additional requirements for application by bargaining representative
(1B) An employer is covered by this subsection if:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the employer is not named in a single interest employer authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and
(e) subsection (1D) [an extant agreement had not passed its nominal expiry or there has been agreement in writing to bargain for a single-enterprise agreement] does not apply to the employer.
(Emphasis added.)
As is evident from the above, condition (d) requires that the Commission be satisfied that a majority of the employees who will be covered by the agreement want to bargain for the agreement.
Competing positions
Ulan and Whitehaven accepted that the evidence supported the factual conclusion a majority of the relevant employees voted in favour of bargaining for a single interest employer enterprise agreement: FB[53], [216], [237].
The gravamen of the dispute is whether that vote needed to be genuine and/or informed (cf. FB[240]) and whether that vote (to the extent it expressed a “want to bargain”) was vitiated by misrepresentations made by APESMA. The Full Bench’s conclusions on those fronts were said to be legally unreasonable. As submitted by Whitehaven, the real question before the Commission was whether the relevant employees were properly informed of the course they were supporting and its implications for them (and the options they were foregoing). It was submitted that the Commission did not adopt their construction (by reference to the need for employees to be properly informed) nor attend the question Whitehaven posed, as it ought to have done and apply it to the facts, such that the Commission failed to consider a material consideration.
By contrast, APESMA submitted that to succeed with this ground, Whitehaven and Ulan needed to establish that the Commission erred when it reached satisfaction that a majority of the relevant employees “want to bargain for the agreement” within the meaning of s 249(1B)(d). Notably, s 249(1C) permits the Commission to use any method it considers appropriate when evaluating if there is a majority. The majority support criterion is addressed in the Full Bench’s decision from FB[215]–[293]. The key conclusions reached are set out at FB[237]–[240] and [287]–[289]. It is submitted that the words of s 249(1B)(d) do not include consideration of whether there was “genuine and/or informed” support for the agreement or a wish or desire to bargain. Had the legislature intended for those terms to apply it would have used them in the provision, which it did in s 186(2)(a). APESMA submitted that the allegation of legal unreasonableness could not be made out given the stringency of the test.
Consideration
Where an application for an authorisation is made by a bargaining representative and is not consented to by each employer who is covered by the proposed application, there are additional requirements, under sub-s 249(1B), that need to be satisfied: FW Act s 249(1)(b)(iv).
Those additional requirements include, that the Commission be satisfied, with respect to each of the employers (who will be covered by the single interest employer authorisation) that the majority of their employees (who are employed at a time to be determined by the Commission) and who will be covered by the agreement, want to bargain.
It is for the applicant to the proposed authorisation to prove this fact to the Commission’s satisfaction.
It is a matter of some moment. It is apparent, by the terms of this provision and the legislative scheme, that significant powers and privileges are afforded to bargaining representatives (in this case, APESMA) which must not be abused.
Here, APESMA communicated extensively with the SIEA employees, without the knowledge of the respondent employers, for many months prior to conducting a ballot (which, again, was without the knowledge of the respondent employers). APESMA was not required to put the respondent employers on notice of its proposed course. However, by not doing so, its communications with employees, attempting to persuade them to agree to bargain for the authorisation, went unchecked and without any contradictor. Again, the scheme allows for this, but it does so where the FW Act includes penal provisions for a person knowingly or recklessly making a false or misleading representation about the workplace rights or the exercise or effect of the exercise of a workplace right, by another person: FW Act s 345.
As will be apparent from the following, the communications of APESMA were less than the standard one would expect and contained broad claims (as to the benefits of the proposed authorisation) which were either inaccurate or capable of being misleading. They were made without the knowledge of the respondent employers and therefore, there was no circumstance for correction. No doubt, these two features of the circumstances leading up to the vote provide the genesis for Ulan and Whitehaven’s grievance.
As already observed however, it is not for a review Court to remedy actual or perceived unfairness, nor to descend into the merits: Its remit is confined to the identification of jurisdictional error. The focus therefore is on whether the Full Bench correctly construed what it was required to be satisfied of in s 249(1B)(d) and thereafter attended to its task in a manner consistent with the task required of it.
Central to Ulan and Whitehaven’s submission was the conclusion of the Full Bench at FB[240] that it should not be implied that the expression included the notion of “genuine” or “informed”
support. The paragraph is extracted in full:
240 In the absence of requirements with s.248(1B)(d) [sic] akin to ‘genuine’ or ‘informed’ support, we do not consider that these notions should be implied into the provision. However, in this case the Respondent Employers contend that the process leading to the Ballot involved misrepresentations and that APESMA provided inaccurate, incomplete or one-sided information which invalidated the employees’ apparent consent and it is appropriate to consider whether the Ballot here is an accurate reflection of the employees’ desire to bargain. Consistent with the approach adopted by the Commission to the consideration of support for bargaining in a majority support determination application, this may, where relevant and appropriate, involve an assessment as to whether the Ballot was falsely derived or the responses achieved by duress or coercion. We add that there is no suggestion of the latter in this case. The notion of being falsely derived may include consideration as to whether any material misrepresentation was involved in garnering backing for the proposal that would vitiate the apparent support. That is, whether the otherwise apparent wish to bargain itself is vitiated, bearing in mind that the statutory test remains whether the majority wish to bargain. Matters relevant to the consideration of alleged misrepresentations, and potentially more generally, may include the nature of the information provided to the employees, the nature of the Ballot questions and what may reasonably be implied from an affirmative answer, taking into account the circumstances and nature of the employees involved.
(Footnotes omitted.)
A number of matters may be deduced from this aspect of the Full Bench’s reasoning.
First, the Commission rejected the proposition that, in order to be satisfied of majority support under s 249(1B)(d), it needed to be satisfied that the support was “genuine” or “informed”. It rejected this proposition for two reasons (evident from the two footnotes to the first sentence). The first basis for rejection was the absence of any such requirement in the text of the provision by contrast to other provisions in the FW Act. Footnote 280 made reference to ss 186(2)(a) (where the Commission must be satisfied that agreement has been “genuinely agreed to”) and 188 (in determining whether an agreement has been genuinely agreed, it must take into account the matters in s 188B). Section 188B(3) prescribes a number of matters which must be taken into account, inter alia, including explaining to employees the terms of a proposed enterprise agreement.
The second basis for rejection was in fn 281, which stated “See by analogy the approach of the Full Bench in National Tertiary Education Industry Union v Curtin University [2022] FWCFB 204 at [53]”. That decision concerned a challenge to a protected ballot order, under s 437 of the FW Act. In that case, the respondent University had claimed that there was ambiguity in the questions of the protected ballot order, such that, the Union’s proposed questions did not satisfy the requirements of s 437(3)(b); namely, that the application specified the question or questions to be put to the employees who are to be balloted. The Full Bench, in that decision, found that the requirement of s 437(3)(b) will be satisfied if the application specifies a question or questions capable of being answered “yes” or “no’: at [53]. A question meets these requirements if it is expressed and understood in ordinary “industrial English”: There is no requirement for legalism, technicality or pedantry. The Full Bench went to on find that the questions do not need to be “interrogated to identify ambiguity in aid of enabling ‘informed consent’” which was said to go beyond the text of the statute. It was said at [53]:
The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result….
It is not clear from the Full Bench’s reasoning, under review before the Court, what of the many matters discussed in the Curtin University decision were relied upon.
Secondly, whilst the Commission did not consider that these notions of “genuine” or “informed” consent could be implied, it did nonetheless consider that the requisite state of satisfaction might not be achieved, where APESMA provided inaccurate, incomplete or one-sided information which was said to involve a “[b]allot [that] was falsely derived or the responses achieved by duress or coercion” (FB[240]), where “falsely derived” could include “any material misrepresentation”.
Thirdly, in this context, the Commission referred to the very kinds of evidence relied upon by Ulan and Whitehaven in support of their contention, namely, the nature of the information provided to the employees, the nature of the Ballot questions and what may reasonably be implied from an affirmative answer, taking into account the circumstances and the nature of the employees involved.
Ulan and Whitehaven submitted that while the words “genuine” and/or “informed” are not expressly used in s 249(1B)(d), properly construed, the words “want to bargain” must mean a wish or desire to bargain that is genuine and/or informed, and not induced by misrepresentation. Ulan submitted this construction is supported by the objects of the FW Act and the good faith bargaining requirements that promote fairness, good faith and avoiding conduct that undermines freedom of association.
We do not accept that the Commission erred in its construction of the provision. It is clear from its reasons, at FB[240], and how it ultimately dealt with the alleged deficiencies or claimed misrepresentations, that the Commission understood, as part of its determination of whether APESMA had satisfied the Court that the employees “want to bargain”, consideration should be given to all of the circumstances leading up to the ballot, including what was communicated to employees as to the process and potential effect of bargaining.
The legislative scheme calls for the Commission, in a number of circumstances, to be satisfied that a majority have cast a vote, without being exhaustive, see for example, ss 182(1), 209, 216A, 216BA, 216C, 216CB, 216D, 216DC, 216E, 221, 237 of the FW Act.
It is apparent from these provisions, as with s 249(1B)(d), that Parliament has left to the Commission to determine how it will be satisfied that the majority of employees want to bargain without the degree of prescription required in other parts of the Act. This is demonstrated by contrasting this provision with others in the Act. For example, s 186(2)(b)(i) requires that the “agreement has been genuinely agreed” and apparently noting the ambiguity of the expression “genuinely agreed” thereafter sets out at s 188B what is to be taken into account when determining whether an enterprise agreement has been genuinely agreed. Furthermore, a different approach was adopted in the drafting of s 216EB which specifically requires, in addition to being satisfied of the majority vote, that there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation.
The use of adjectival descriptors, such as “informed”, “properly informed” or “genuine” may or may not be helpful in a particular case given the level of subjectivity and therefore associated uncertainty of those terms. Ultimately, it is a question for the Commission to be satisfied of whether the majority “want to bargain”. Upon review, the Court is concerned with whether, upon considering what s 249(1B)(d) required, the Commission attended to that task as required by the statute.
Ulan submitted that the authorities that have considered the words “want to bargain” in the FW Act (albeit, in a different provision) also support this construction. See, Australian Education Union v Mambourin Enterprises Ltd (t/as Mambourin) [2020] FWC 3760 at [99] (referring to “genuine reflection of the employees’ wishes”); Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2022] FWC 988 at [67] (referring to “true and genuine wants” of the employees); Re Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 6388 at [49] (referring to a “genuine indication”); and CEPU v South 32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [115], [126] (referring to “genuine reflection” of the employees’ wishes). Reliance was also placed on the Full Court’s reasoning in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [156]. The Full Court (albeit, considering a different statutory provision) indicated that the object in the FW Act of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if voting employees have no basis for appreciating the nature of what they are voting for. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Edlyn Foods Pty Ltd [2011] FWA 7928 at [7], in considering whether majority support existed, it was said that it would not be proper to accept a petition for majority support where the proposition put to employees was “in some way confusing or not clear”: at [7]. Further, it was submitted, in South 32 ([95]–[133] and [130]–[133] in particular) the Commission concluded that the CEPU’s incorrect representations made to the employees before the petition that had a legal flavour (e.g. representations to the effect that, without an EA, employment conditions could be reduced, and that contracts could be unilaterally terminated such that employees would be reverted to the relevant Award) indicated the majority support requirement could not be met.
Whatever descriptors are used, the evidence reveals, consistent with the various approaches taken by the Commission, in the above-mentioned cases, that close attention was given by the Full Bench to the circumstances, in order to establish whether the applicable statutory requirement was met.
What is evident from the consideration of the Full Bench’s reasons is that it did, in fact, consider, in detail, APESMA’s communications with the employees, acknowledged regrettable deficiencies and inaccuracies in this regard, but was ultimately satisfied, upon a review of all the circumstances, including the communications, that the requirements of s 249(1B)(d) had been met. It is clear that it did consider whether the employees understand what they were voting for, the process and effect of the proposed authorisation.
The Full Bench, at FB[241], makes clear that, by its consideration of the chronology of events that occurred thereafter, it was not intended to be exhaustive. It identified what it understood to be of “immediate relevance” which included the formal meetings with the SIEA employees between April and November 2023 (FB[242]), a flyer issued encouraging participation in the campaign (FB[243], an email sent in May 2023, which linked a flyer (FB[244], a set of FAQ prepared for a meeting on 19 May 2023 (FB[246]) and was subsequently provided to employees (FB[247]), subsequent communications with employees before meetings conducted between June and November 2023 (FB[249]–[253]). The Full Bench then extracted the two resolutions carried at the meeting on 18 November 2023 (FB[255]), and subsequent communications to Ulan SIEA employees on 28 November 2023 (FB[256]).
Reference was then made to the fact that Vero Voting, an external provider, opened voting on 24 November 2023, what employees, who voted in the ballot, were provided with, namely a log of claims for a “New South Wales Multi-Employer Agreement” (FB[258]–[261]), the ballot question (FB[262]) and the ballot results (FB[263]).
A review of Ulan’s aide memoire below and further aide memoire and chronology provided to this Court reveal that, whilst there are some differences, the Full Bench’s description of the key events (FB[242]–[266]), reveals that the material allegations of misrepresentation (as identified in particular communications), were identified and considered by the Full Bench.
At hearing, Ulan took this Court to a number of parts of the chronology and submitted that, when, taken together, it is clear there was a constant theme in APESMA’s communications – that an enterprise agreement was necessary to provide legal protection for the employees’ conditions, and that an individual contract did not legally protect them. Ulan then took the Court to evidence of a witness before the Full Bench, who spoke to the contractual employment benefits which were on offer, and submitted that they are very favourable, such that, it would appear there is no substance in the suggestion or allegation that the redundancy entitlements were inferior. Ulan submitted that the information that was provided to the employees by APESMA prior to the ballot was inaccurate and misleading.
What is clear from the Full Bench’s reasoning is that it assessed all the evidence and was ultimately satisfied that the majority of the employees wanted to bargain (as reflected in the ballot). This is not to say that the Full Bench proceeded on the premise that the provision of the ballot results was sufficient in the circumstances nor that it was not required to consider the relevant communications.
It is apparent from the Full Bench’s reasons that it considered the submissions and evidence.
Consideration was given to the fact of APESMA advocating for the SIEA application (FB[269]) and to the allegation of the employees not being provided with sufficient or accurate information about the proposed ballot process, namely, the length of time the process would take and that each employer would have to agree to put a proposed agreement out for the approval of the employees (FB[270]–[274]). The Full Bench engaged with, but dismissed, the allegation that APESMA had misrepresented to employees that the “raising of industry standards” was a guaranteed outcome of the enterprise agreement negotiations: FB[275].
Ulan and Whitehaven particularly criticised the Full Bench’s consideration of the allegations of the purported misrepresentation as to the “strength” and enforceability of common law contracts (that is to say, their susceptibility to variation or replacement) vis-a-vis enterprise agreements. Ulan submitted that the Full Bench did not properly consider the “free rein” that APESMA had to provide employees with information such that it was unable to be corrected by the employers. It appears the Commission was entirely cognisant of this fact, as it adverted to at FB[276].
As to the comparable enforceability, Ulan made much of the APESMA communications regarding the need to secure, by operation of an enterprise agreement, redundancy entitlements. On Ulan’s case, there was no need for such security, as there were express contractual redundancy entitlements. It was suggested that the Full Bench’s reasoning, in part, at FB[280], appears to be erroneous, as it infers that the SIEA employees’ redundancy entitlements were contained in “policies…susceptible to unilateral changes”. As to whether or not this was established on the facts, it is not for this Court, upon judicial review, to descend into merits review.
It was apparent that the Full Bench recognised the regrettable circumstance that APESMA made bald assertions that common law contracts are not enforceable and can legally be unilaterally changed: FB[281]. However, the Full Bench, went on to state that such statements “must be considered both within the context of the entire communications and information, and the implications of such contracts in the relevant workplaces including those set out above”: FB[281]. It was open for the Full Bench to consider the statements within the entire context, including (contrary to Ulan’s submissions) by reference to the fact that the SIEA Employees were senior managers and persons with significant responsibilities and where some of them had enterprise bargaining experience: FB[267].
Ulan submitted that it is difficult to see how the context of the entire communications can alter the fact that it was incorrectly put to the employees that their common law contracts were not enforceable and that they can be unilaterally changed. This difficulty of understanding why the Commission did not accept their position does not demonstrate error. The Commission went on at FB[282] to state, whilst both instruments are enforceable, there are marked differences:
282Further, although both forms of instrument are enforceable and disputes about them can be subject to enforcement proceedings, there are many relevant differences. These include that an enterprise agreement must be undertaken following a statutory collective employee approval process, must meet various safety net and other requirements, and does not operate without the approval of the Commission. Further, an enterprise agreement must contain an appropriate dispute resolution process and enforcement proceedings can more readily be undertaken on a collective basis.
As a consequence, the Full Bench, concluded that the “ease of enforceability differs significantly”. Such a conclusion was open to the Full Bench and more importantly that it would have been reasonably understood, on the question of comparative enforceability, that it “was the practical experience of APESMA rather than the strict legal position”: FB[283].
Ulan referred to an aspect of the Full Bench’s ultimate conclusion at FB[288]:
288 We also do not accept that the information provided by APESMA when considered as a whole was misleading or inaccurate. It did not attempt to describe the detailed operation of the proposed bargaining, but it did provide a broad overview with links to appropriate information. There is also no sound basis for a finding that the Ballot results were falsely derived or unsound, or anything to suggest that the views of the employees have changed after the conduct of the Ballot.
Ulan submitted that ultimately, there were inaccuracies in the information provided to employees and that there was a sound basis for finding that the ballot results were falsely derived or unsound. For the reasons already given with respect to the cumulative findings and reasoning leading to this conclusion, we reject this submission. We can discern no jurisdictional error.
For the same reasons, we reject the submission that the Commission’s conclusions were legally unreasonable. On the contrary, the findings that the Commission made about the existence and standard of employee consent rested upon evident and intelligible foundations. It is simply not the case that those findings were beyond what was open to a reasonable decision maker.
Conclusion
For these reasons, all three applications must be dismissed. Section 570 of the FW Act likely prohibits the making of any order as to costs but, to the extent that there might be reason to deviate from that usual position, the parties shall be at liberty to so advise.
I certify that the preceding two hundred and thirty six (236) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Collier, Snaden and Raper. Associate:
Dated: 5 September 2025
SCHEDULE OF PARTIES
NSD 1316 of 2024
Respondents
Second Respondent
PEABODY ENERGY AUSTRALIA COAL PTY LTD
Third Respondent
GREAT SOUTHERN ENERGY PTY LYD T/A DELTA COAL
Fourth Respondent
WHITEHAVEN COAL MINING LTD
Fifth Respondent
FAIR WORK COMMISSION
NSD 1320 of 2024
Respondents
Second Respondent
ULAN COAL MINES PTY LTD
Third Respondent
WHITEHAVEN COAL MINING LTD
Fourth Respondent
GREAT SOUTHERN ENERGY PTY LYD T/A DELTA COAL
Fifth Respondent
FAIR WORK COMMISSION
NSD 1333 of 2024 Respondents
Second Respondent
PEABODY ENERGY AUSTRALIA COAL PTY LTD
Third Respondent
ULAN COAL MINES PTY LTD
Fourth Respondent
GREAT SOUTHERN ENERGY PTY LYD T/A DELTA COAL
Fifth Respondent
FAIR WORK COMMISSION
0