United Workers Union v Chief Executive, Attorney-General's Department - [2025] SASCA 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
UNITED WORKERS UNION v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT
[2025] SASCA 80
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Stanley and the Honourable Auxiliary Justice Bond)
17 July 2025
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - TO SUPREME COURT
INDUSTRIAL LAW - SOUTH AUSTRALIA - SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL AND ITS PREDECESSORS - SETTLEMENT OF INDUSTRIAL DISPUTES - REFERRAL TO TRIBUNAL AND OTHER MATTERS
Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Tribunal).
In December 2018, the applicant Union notified the Tribunal of an industrial dispute under Chapter 2, Part 2 of the Fair Work Act 1994 (SA) concerning the operation of cl 15.3 of the “South Australian Public Sector Wages Parity Enterprise Agreement; Weekly Paid 2017” (the Enterprise Agreement) and requested the Tribunal’s assistance in resolving the dispute.
The parties agreed that the subject matter for the determination of the Tribunal would be the following two questions, and that the second question was necessary to answer only if the first question was answered in the affirmative:
1.Does clause 15.3 of the [Enterprise Agreement] apply to the contract between [MSS] and [the Minister] dated 10 December 2013 (‘the contract’);
2.If so, does clause 15.3 of the Enterprise Agreement require the [Chief Executive] to ensure that, under the terms of any renewal extension or replacement of the Contract, the employees of [MSS] must be paid no less favourably for the hours worked than as set out in the Enterprise Agreement (or its successor).

A member of the Tribunal answered the questions contrary to the way in which the applicant sought to have them answered and subsequently resolved the dispute.
The applicant then appealed to the Full Bench of the Tribunal, which dismissed the appeal.
The question arising in this case is whether permission to appeal should be given to enable arguments on a question of law to be advanced before the Court of Appeal in circumstances where those arguments were deliberately abandoned before the Full Bench.
Held (the Court) refusing permission to appeal with costs:
1.The applicant bears the burden of persuading the Court that the grant of permission to appeal sought is the course which best serves the interests of justice: see Draoui v Return to Work Corporation of South Australia [2024] SASC 128.
2.The fact that a deliberate decision was made by senior counsel before the Full Bench to abandon a legal argument that was run at trial sounds strongly against the Court granting permission to appeal.
3.The deliberate decision not to press before the Full Bench the arguments now sought to be pressed operates to deny the Court of Appeal the advantage of having specialist consideration of those arguments by the Full Bench of the Tribunal specifically created for that purpose.
4.The applicant has not demonstrated that the vindication of its arguments would justify giving affirmative answers to either of the questions posed, or justify the relief sought before the Full Bench.

5. This case is not an appropriate vehicle for the exploration of the issues raised.
Fair Work Act 1994 (SA); South Australian Employment Tribunal Act 2014 (SA), referred to.
Dial A Tow Australia Pty Ltd v Campbell [2024] SASCA 151; Public Service Association (SA) Inc v State of South Australia (2012) 113 SASR 49; Marthenis v Return to Work Corporation of South Australia [2024] SASCA 104; Public Sector Association of SA Inc v Chief Executive Department of the Premier and Cabinet [2010] SAIRComm11; The State of South Australia in Right of The Department for Education and Child Development v Dolan [2021] SASCFC 30; United Workers’ Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8; United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, considered.

UNITED WORKERS UNION v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT
[2025] SASCA 80
Court of Appeal – Civil: Livesey P, Stanley and Bond AJJA
THE COURT:
Introduction

An enterprise agreement entitled the “South Australian Public Sector Wages Parity Enterprise Agreement; Weekly Paid 2017” (the Enterprise Agreement) made pursuant to Chapter 3, Part 2 of the Fair Work Act 1994 (SA) (the FW Act) came into force on 24 January 2018 and had a life extending until 30 June 2020.
The present applicant (the Union) and the Chief Executive of the Department of the Premier and Cabinet were parties bound by the Enterprise Agreement, the former as one of the unions stated to be bound,[1] and the latter as “the employer” stated to be bound. Under the Enterprise Agreement, the term “Chief Executive of the Department of the Premier and Cabinet” was defined so as to include such other person as may from time to time be declared to be the employer of public employees for the purposes of the FW Act.
[1] The Union was referred to by its former name, United Voice.
The present respondent is the person currently declared to be the employer of public employees for the purposes of the FW Act. It is convenient to refer to the respondent and to previous persons so declared, without differentiation, as the Chief Executive.
In December 2018, the Union notified the South Australian Employment Tribunal (the Tribunal) of the existence of an industrial dispute between the Union and the Chief Executive concerning the Enterprise Agreement and requested the assistance of the Tribunal to resolve the dispute.
During the compulsory conciliation phase of the dispute resolution process at the Tribunal, the parties agreed that the Tribunal should resolve the dispute by answering two particular questions.
In a judgment published on 23 November 2020 the Tribunal did not answer the questions in the way which the Union had sought to have them answered. In a further judgment published on 2 December 2020, the Tribunal made an order resolving the dispute consistent with the way in which it had answered the questions.
On 21 December 2020, the Union filed a notice of appeal to the Full Bench of the Tribunal from the orders made at first instance. The appeal was heard on the multiple dates over the next two years and finally resolved by a judgment published on 21 February 2024 dismissing the appeal. A formal order dismissing the appeal with no order as to costs was made on 25 March 2024.
The Union now seeks permission to commence an appeal to the Court of Appeal from the decision of the Full Bench. For the reasons which follow, and in circumstances where the point to be raised was abandoned before the Full Bench, the application for permission to appeal to the Court of Appeal should be refused, with costs.
Preliminary observations concerning the operation of cl 15 of the Enterprise Agreement
It will appear that the principal relevant clause of the Enterprise Agreement is cl 15. It will assist understanding of the nature of the industrial dispute, the decisions below, and the other parts of these reasons, if some preliminary observations are made concerning the operation of the clause.
Clause 15 of the Enterprise Agreement was in these terms:
15. SECURITY OF EMPLOYMENT
15.1The Employer agrees that during the life of this Agreement, no further work performed by weekly paid employees covered by this Agreement will be outsourced, contracted out or privatised. Additionally, the Employer agrees not to enter into any arrangements to outsource, contract out or privatise work performed by weekly paid employees during the life of this Agreement, even if the operative date of such arrangement is after the nominal expiry date of this Agreement.
15.2Where work is already outsourced or contracted out, the employer will maintain existing wages parity commitments between the Employer and the Contractor.
15.3Any renewal, extension of or new contacts (of already outsourced or contracted out work) will be entered in to between the Employer and the Contractor on the basis that employees of the Contractor must be paid no less favourably for the hours worked as set out in the SA Government Wages Parity (Weekly Paid) Enterprise Agreement 2017 (or its successor).
15.4Where agency labour/labour hire is utilised, the Employer must ensure that employees or contractors of the labour agency must be are paid no less favourably for the hours worked than as set out in the SA Government Wages Parity (Weekly Paid) Enterprise Agreement 2017 or its successor.
15.5Where such arrangements have not been previously in place, the provisions of this clause will apply for new or extensions of existing contracts when entered in to between the employer and the labour hire provider.
15.6If requested by a Union covered by this Agreement, the Employer will provide relevant information to the Union enabling the Union to assess whether this clause has been complied with, unless in confidence and subject to Clause 10.3(b).
First, cl 15.1 expressed two important promises by the Employer. First, that there would be no further “outsourcing” (using the term in the compendious sense of outsourcing, contracting out or privatising) during the life of the Enterprise Agreement. Second, that the Employer would not during the life of the Enterprise Agreement enter into an arrangement for outsourcing even if the operative date of the outsourcing arrangement was outside the life of the Enterprise Agreement. The second promise can be seen as an anti-avoidance obligation in respect of the first promise.
Second, both promises in cl 15.1 applied only in respect of “further work performed by weekly paid employees covered by this Agreement.” As to this:
(a)In order to determine who were “weekly paid employees covered by this Agreement”, one has to refer to cl 4 of the Enterprise Agreement, which relevantly stated:
4. PARTIES BOUND
4.1 Subject to this clause, this Enterprise Agreement is binding upon the following employers (and successors) within the South Australian Public Sector, employee associations/unions (and successors) and employees:
(a) Chief Executive of the Department of the Premier and Cabinet (CE, DPC) in respect of weekly paid employees employed in an agency specified in clause 4.2 and who have a classification specified within “Appendix 2: Parity Wages”;
(b) United Voice – SA Branch (United Voice);
(c) Australian Workers’ Union – Greater South Australian Branch (AWU);
(d)Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AFMEPKIU);
(e) Public Service Association of South Australia Incorporated (PSA);
(f) National Union of Workers, General Branch (NUW);
(g) Transport Workers’ Union of Australia, SA/NT Branch (TWU);
(h) Electrical Trades Union of Australia South Australian Branch and Plumbers and Gasfitters Employees Union of Australia – Adelaide Branch; and
(i) Weekly paid employees employed in an agency (or part of an agency) specified in clause 4.2 and who have a classification specified within “Appendix 2: Parity Wages”.
4.2 Agencies
(a) Agencies which are administrative units established pursuant to the Public Sector Act 2009, including:
·Department for Communities and Social Inclusion or its successor;
·Department for Correctional Services;
·Department for Education and Child Development;
·Department of Environment, Water and Natural Resources;
·Department for Health and Ageing (including health services and incorporated hospitals under the Health Care Act 2008);
·Department of Planning, Transport and Infrastructure;
·Department of the Premier and Cabinet;
·Department of Primary Industries and Regions;
·Department of State Development;
·South Australia Police;
·Department of Treasury and Finance; and
·Any other administrative unit as may be established or renamed from time to time pursuant to the Public Sector Act 2009.
(b)Other Agencies:
·History Trust of South Australia;
·South Australian Country Fire Service;
·South Australian Fire and Emergency Services Commission;
·South Australian Metropolitan Fire Service;
·South Australian State Emergency Service;
·South Australian Tourism Commission;
·TAFE SA; and
·Such additional “Other Agency/ies” as may from time to time during the life of the Enterprise Agreement be included herein with the approval of the Tribunal.
·…
(b)Appendix 2 to the Enterprise Agreement was a 12-page document headed “Parity Wages”. It contained 11 schedules, each of which contained details identifying the parity wages amounts applicable to various employee classifications derived from the following awards:
(i)Schedule 2.1: Child Care Worker – TAFE SA;
(ii)Schedule 2.2: Chauffeurs (Ministerial) Public Service Award;
(iii)Schedule 2.3: Intellectual Disability Services (IDSC) Award;
(iv)Schedule 2.4: Integrated Wages Schedule;
(v)Schedule 2.5: Government Stores Employees Interim Award;
(vi)Schedule 2.6: Ngerin Industrial Agreement;
(vii)Schedule 2.7: SA Government Civil Construction And Maintenance Award;
(viii)Schedule 2.8: SA Government Health Etc. Ancillary Employees Award;
(ix)Schedule 2.9: SA Government Printing Interim Award;
(x)Schedule 2.10: SA Government Services Award;
(xi)Schedule 2.11: SA Government Transport Workers Award.
(c)Accordingly, the promises expressed in cl 15.1 in relation to “outsourcing” were promises made in respect of work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages”.
Third, consistently with the cl 15.1 promises that there would be no new outsourcing of the relevant work, cl 15.2 covered already outsourced work and promised maintenance of existing wages parity commitments between the Employer and the Contractor. In context, the promise is made by “the Employer” and the work the subject of the promise must also be work performed by weekly paid employees covered by the Enterprise Agreement, namely work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages”.
Fourth, consistently with cll 15.1 and 15.2, cl 15.3 expressed the Employer’s promise that “renewal, extension of or new contracts” in respect of already outsourced work, would be entered into between the Employer and the Contractor on the basis that the Contractor’s employees would be paid no less favourably than as set out in the “SA Government Wages Parity (Weekly Paid) Enterprise Agreement 2017[2] (or its successor)”. Again, reading, as one must, cl 15.3 in the context of the other parts of cl 15 and the Enterprise Agreement as a whole, the work the subject of this promise (i.e. the already outsourced work) must also be work performed by weekly paid employees covered by the Enterprise Agreement, namely work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages” which had already been outsourced and in respect of which arrangements it was now proposed that there would be a “renewal, extension of or new contracts”.
[2] The referenced agreement does not share the same name as the Enterprise Agreement. Accordingly, it is not clear whether the referenced enterprise agreement is intended to be the Enterprise Agreement itself, or some other agreement named “the “SA Government Wages Parity (Weekly Paid) Enterprise Agreement 2017”. For present purposes the distinction does not matter. These reasons continue the assumption apparently made by all parties that the reference was to the Enterprise Agreement itself.
Fifth, it is necessary to note that each of the promises expressed in cll 15.1, 15.2 and 15.3 was a promise made by “the Employer”. The same may be said of each of cll 15.4 to 15.6. As to this:
(a)It was accepted before this Court that nothing was to be made of the fact that sometimes the term “employer” was capitalised and sometimes it was not. Clause 3.1 of the Enterprise Agreement provided that unless the contrary intention appears:
“employer” Means the applicable employer bound by this Enterprise Agreement, or delegate or person authorised to act in the name thereof;
(b)Clause 4.1 (quoted at [12](a) above) identified the parties bound by the Enterprise Agreement.
(c)The only “employer” expressed to be bound was the Chief Executive of the Department of the Premier and Cabinet. As already mentioned, that term was defined so as to include such other person as may from time to time be declared to be the employer of public employees for the purposes of the FW Act.
Finally, and accordingly, if it ever became necessary to determine whether the Employer had breached cl 15.3, it would at least be necessary –
(a)to examine the proposed “renewal, extension of or new” contract and to consider whether it could be characterised as a “renewal, extension of or new” contract “of already outsourced or contracted out work” of the relevant nature, namely work performed by weekly paid employees covered by the Enterprise Agreement (or, more fully, work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages”); and
(b)to determine whether the proposed “renewal, extension of or new” contract was on the basis that the relevant employees would be paid no less favourably than set out in the “SA Government Wages Parity (Weekly Paid) Enterprise Agreement 2017 (or its successor)”.
The dispute between the Union and the Chief Executive
The Tribunal is established pursuant to the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act). Pursuant to s 6 of the SAET Act, the Tribunal has the jurisdiction conferred on it by that Act or by any other Act. Pursuant to s 7 of the FW Act the Tribunal has, amongst other things, jurisdiction to settle and resolve industrial disputes. Pursuant to s 8 of the FW Act the Tribunal has jurisdiction to interpret awards and enterprise agreements.
The Tribunal is a specialist tribunal with considerable expertise in hearing and determining matters within its remit, including dealing with questions of the practices of public and private employers: State of South Australia in Right of The Department for Education and Child Development v Dolan [2021] SASCFC 30 at [8] per Kourakis CJ.
In December 2018, the Union notified the Tribunal of an industrial dispute under Chapter 2, Part 2 of the FW Act concerning the operation of cl 15.3 of the Enterprise Agreement.
The genesis of the dispute was a proposal that a new contract would be entered into between the Minister of Health and Ageing (the Minister) and MSS Security Pty Ltd (MSS) during the period of operation of the Enterprise Agreement, relating to the provision of security services at public hospitals in South Australia. The new contract was a renewal or extension of an existing contract which had been due to expire on 30 June 2018. It is convenient to refer to the proposed new contract as the new MSS contract.

The dispute arose in this manner:
(a)In a number of letters between 31 January 2018 and 2 October 2018, the Union noted its understanding that security services to public hospitals were provided by MSS pursuant to a contract between MSS and the State Government, the most recent contract for which was due to expire on 30 June 2018 and which it was contemplated would be extended or renewed. In those letters, the Union had suggested to the Chief Executive that cl 15.3 would apply to any proposed new contract, whether it was regarded as a renewal, an extension or a new contract.
(b)Despite initial indications on behalf of the Chief Executive and on behalf of SA Health during the period of that correspondence that cl 15.3 would apply to the new contract, ultimately by letter dated 31 October 2018, the Chief Executive took the position that cl 15.3 would only apply to contracts entered into by the Chief Executive, not to contracts entered into by the Minister and, accordingly, the matter of payment of MSS employees was a matter for MSS.
(c)By letter of 16 November 2018, the Union rejected that contention and argued that cl 15 required the Chief Executive to ensure that MSS paid its employees in a manner consistent with cl 15.3. It invited the Chief Executive to reconsider its position.
(d)By letter dated 6 December 2018, the Chief Executive maintained its position, asserting:
The terms of clause 15.3 explicitly state that any contract entered into by the Employer will be “on the basis that employees of the contractor will be paid no less favourably for the hours worked [than] as set out in [the Agreement]”. The term “the Employer” is carefully defined for the purposes of the Agreement to mean the [Chief Executive] or such other entity as is from time to time declared to be the employer for the purpose of the Fair Work Act 1994 (see the definitions of “employer” and “[Chief Executive]”).
The [Chief Executive] plainly cannot, by entering into an Enterprise Agreement, tie the hands of Cabinet or of Ministers of the Crown in relation to political, policy or procurement decisions, and has not, by cl 15.3 of the Agreement, purported to do so.
This accords with the description of the position by Stanley J (with whom Doyle CJ and Vanstone J agreed) in Public Service Association (SA) Inc v South Australia:[3]
The [Chief Executive], is the statutory employer pursuant to the provisions of the Act. He is not the agent of the Crown and neither does he or she bind the Crown in respect of employees covered by the enterprise agreement as the agent of the Crown. An analysis, founded in principles relating to the authority of Cabinet Ministers to bind the Crown in negotiating government contracts is misconceived. Such an argument misunderstands the distinction between the position of the [Chief Executive], as the statutorily mandated employer for the purposes of the Fair Work Act and distinct principles relating to Crown agency relevant to the negotiation of government contracts.
…
It is of course accepted that the [Chief Executive], as the employer for the purposes of the Fair Work Act 1994, may in some circumstances be capable of being in contravention of an enterprise agreement by reason of conduct that is undertaken by another officer or employee of a relevant public sector agency. Whether it does so depends upon the nature and terms of the particular obligation in the enterprise agreement.
It is also accepted that, if the conduct of a chief executive or other employees or officers of an agency in which weekly paid employees subject to an enterprise agreement made under the Fair Work Act 1994 are employed constitutes or results in a contravention of the enterprise agreement, then an order may be made against the [Chief Executive] as the statutory employer pursuant to the provisions of the Fair Work Act 1994. Whether conduct amounts to a contravention of the terms of an enterprise agreement again necessarily requires attention to the terms of the obligation.
[3] (2012) 113 SASR 49 at 67 [68].
The questions which obviously arise concerning the position asserted by the Chief Executive are as follows:
(a)First, is it correct that the Chief Executive could not, by entering into an Enterprise Agreement, tie the hands of Cabinet or of Ministers of the Crown in relation to political, policy or procurement decision? Resolution of this question would involve questions of the actual or ostensible authority of the Chief Executive, crown liability, and the correctness or at least the proper understanding of the Full Court’s decision in Public Service Association (SA) Inc v South Australia.[4]
(b)Second, is it correct to contend that on the proper construction of cl 15.3 the Chief Executive has not purported to tie the hands of Cabinet or of Ministers of the Crown in relation to political, policy or procurement decision? Resolution of this question would involve determining the proper construction of the Enterprise Agreement and, in particular, whether promises made by the Chief Executive purported to be promises by any other person.
(c)Third, on the proper construction of the Enterprise Agreement, would the proposed conduct of the Minister entering into the new MSS contract place the Chief Executive in contravention of the Enterprise Agreement? As to this:
(i)Resolution of this question would involve determining the proper construction of the Enterprise Agreement and, in particular, determining the answers to the questions posited at [16] above.
(ii)It is obvious enough that if the new MSS contract could be characterised in the relevant way and if the pay rates for which it provided were less favourable than specified in the enterprise agreement, then cl 15.3 would apply to the new MSS contract and the Chief Executive would be in breach of cl 15.3.
(iii)That conclusion seems to have been contemplated as a general proposition of construction by the last two paragraphs of the quotation at [21](d) above.
[4] Public Service Association (SA) Inc v State of South Australia (2012) 113 SASR 49.
The notice of dispute requested the assistance of the Tribunal to resolve the dispute. By the notice, the Union framed the dispute in the following way:
The parties are therefore in dispute in respect of the following matters:
a.whether clause 15 of the Agreement applies to [the new MSS contract];
b.whether clause 15 of the Agreement applies to any renewed or new contract for the provision of the security services;
c.whether the [Chief Executive] is under any obligation, pursuant to clause 15.3 of the Agreement, to ensure that the terms of [the new MSS contract], or any renewed or new contract for the provision of the security services, provide that MSS employees who are employed to provide the security services are paid no less favourably for the hours worked than as set out in the Agreement;
d.whether the [Chief Executive], in denying that clause 15 of the Agreement applies to [the new MSS contract], or any renewed or new contract for the provision of the security services, and/or in denying that it is under any obligation to ensure that the terms of [the new MSS contract], or any renewed or new contract for the provision of the security services, provide that MSS employees who are employed to provide the security services are paid no less favourably for the hours worked than as set out in the Agreement, is in breach of the Agreement.
It may be noted that, by framing the dispute in the way it did, the Union did not seek to dispute the correctness of the Chief Executive’s suggestion that the Chief Executive could not, by entering into an Enterprise Agreement, tie the hands of Cabinet or of Ministers of the Crown in relation to political, policy or procurement decisions, and had not in fact purported to do so by cl 15.3. Nor did the Union seek to dispute the correctness of the Chief Executive’s reliance on the previous decision of the Full Court in Public Service Association (SA) Inc v South Australia for the proposition that the Chief Executive was not the agent of the Crown and neither did he or she bind the Crown in respect of employees covered by the Enterprise Agreement as the agent of the Crown. Rather, the Union seemed to rely on the two matters which the Chief Executive had accepted, as identified in the last two paragraphs of the quotation at [21](d) above.
The decision of the Tribunal at first instance[5]
[5] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222.
His Honour Deputy President Judge Rossi constituted the Tribunal at first instance. His Honour first recorded that in the course of the compulsory conciliation phase of the dispute resolution process at the Tribunal, the parties had agreed that the subject matter for referral and determination to the Tribunal would be two questions, the second question becoming necessary to answer only if the first question was answered in the affirmative:[6]
1 Does clause 15.3 of the [Enterprise Agreement] apply to the contract between [MSS] and [the Minister] dated 10 December 2013 (‘the contract’);
2 If so, does clause 15.3 of the Enterprise Agreement require the [Chief Executive] to ensure that, under the terms of any renewal extension or replacement of the Contract, the employees of [MSS] must be paid no less favourably for the hours worked than as set out in the Enterprise Agreement (or its successor).
[6] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [3] (Rossi DPJ).
His Honour’s judgment then proceeded to a discussion which concluded that the Tribunal had jurisdiction to construe cl 15.3 and to provide answers to the two questions put to it. In the course of that discussion his Honour noted the provisions of s 8 of the SAET Act at the time, namely:
8—Jurisdiction to interpret awards and enterprise agreements
(1) SAET has jurisdiction to interpret an award or enterprise agreement.
(2) In exercising its interpretative jurisdiction—
(a) SAET should have regard to any evidence that is reasonably available to it of what the author of the relevant part of the award or enterprise agreement, and the parties to the award or enterprise agreement, intended it to mean when it was drafted; and
(b) if a common intention is ascertainable—give effect to that intention.
Having reached that point Rossi DPJ essayed a summary of what he described as “the established principles of construction of enterprise agreements (and awards generally)”.[7] His Honour then proceeded to record and make findings concerning relevant background facts, as to which the following observations should be made:
[7]     United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [13] (Rossi DPJ).
(a)His Honour recited the various positions taken by the parties during the course of the negotiations between the Union and the Chief Executive which had led to the Enterprise Agreement. Amongst other things his Honour recorded evidence suggesting that at the time the Enterprise Agreement was entered into the Union and the Chief Executive (by its delegate) each had the subjective intention that cl 15.3 would have application to a contract (including any extension or renewal of an existing contract) between a Minister of the Crown and a contractor for the performance of outsourced work covered by the Enterprise Agreement. Nevertheless, his Honour found that there was “no evidence of the State Government agreeing that any manifestation of the Crown beyond the [Chief Executive], in the capacity of declared employer, being bound by the terms of the [Enterprise Agreement]”.[8]
(b)Before his Honour, the Chief Executive had accepted that there had been contracts between the Minister and MSS for the provision of security services at SA Health sites dating back to 2013. His Honour found that the first contract commenced on 1 July 2013 and ended on 30 June 2016. Thereafter, there were annual extensions until 1 July 2018 when there was an extension to 30 September 2018, followed by a further extension to 30 November 2018 and then a further brief extension to 31 March 2019.
(c)Rossi DPJ recorded that the Chief Executive had submitted and the Union had not challenged and that he found on the evidence that in entering into the contract with MSS prior to the Enterprise Agreement the Minister did not do so pursuant to any delegation from the Chief Executive and “was not acting in connection with public employment”.[9] His Honour later found:[10]
In this matter there is an absence of evidence of actual detriment having been suffered to date by the [Union] or its members who are employees with the [Chief Executive] as the declared employer of those employees. In her affidavit, Ms Pnevmatikos referred to government sector members concerns about their job security if there were to be further outsourcing and privatisation. However, there was no evidence, in the context of the contracts between the Minister and MSS dating back to 2013, to indicate a change in the extent of outsourcing and privatisation or any other actual detriment suffered by the members of the [Union] employed by the [Chief Executive]. To the extent that further privatisation and outsourcing would occur in the absence of cl 15.3 applying to the new contract or that there has been or will be an actual impact upon the position of any member of the [Union] employed by the [Chief Executive] at the commencement of the [Enterprise Agreement] is, by reference to the evidence before the Commission, a matter of speculation.
(d)His Honour found that the Minister had entered into a new contract with MSS for the provision of security services at public hospitals in South Australia and the new contract had operative effect from a starting date of 1 April 2019 and a completion date of 30 March 2024 (inclusive of two by one-year extension periods). The terms of that new contract did not include a term requiring that MSS pay its employees no less favourably for the hours worked than as set out in the Enterprise Agreement.
(e)His Honour recited how the dispute between the Union and the Chief Executive arose, culminating in recording the position taken on behalf of the Chief Executive in the letter dated 31 October 2018.
(f)His Honour found that neither the Minister nor the Deputy Chief Executive of SA Health were identified as parties to be bound by the Enterprise Agreement.
[8]     United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [19] (Rossi DPJ).
[9]     United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [21] (Rossi DPJ).
[10] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [148] (Rossi DPJ).
Against that background, three observations concerning the form of the agreed questions may be interpolated.
First, it is unclear why the first agreed question referred to the contract between MSS and the Minister as the contract dated 10 December 2013. Rossi DPJ found the first such contract was dated 1 July 2013. In any event, a contract entered into in 2013 was a contract entered into before the Enterprise Agreement was entered into. One would have thought that the question should have been addressed to the new contract between the Minister and MSS which was entered into during the period of operation of the Enterprise Agreement. This seems to have been recognised by Rossi DPJ because in his Honour’s reasons, having identified the questions, his Honour stated:[11]
The questions as to the potential application of cl 15.3 arise in circumstances of an agreement entered into between [the Minister] and [MSS], during the period of operation of the [Enterprise Agreement], relating to the provision of security services at public hospitals in this State. Central to the determination of the issue of construction raised is whether the agreement between the Minister and MSS is subject to the operation of cl 15.3 of the [Enterprise Agreement]. It was accepted by the [Chief Executive] that the terms of the agreement between the Minister and MSS do not conform with the purported requirements of cl 15.3.
[11] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [4] (Rossi DPJ).
Second, the fact and form of the second question would make no sense if by the question 1 the parties were truly seeking to resolve a dispute about the matters identified at [24] above. If question 1 was to be answered in the affirmative because by cl 15.3 the Chief Executive had bound the Crown and all its emanations, there would be no need to pose question 2 at all. Because the new MSS contract did not provide for what were contended to be the appropriate pay rates, the affirmative answer to question 1 would render the conclusion inevitable that when the Crown by the Minister entered into the new contract with MSS, the Crown must have broken the promise which it by the Chief Executive had made in cl 15.3 of the Enterprise Agreement. Question 2 as framed would be utterly inutile. The only relevant issue would be as to the appropriate remedy.
Third, the findings that when the Minister had entered into the contracts which preceded the new MSS contract the Minister “was not acting in connection with public employment” and that there was no evidence that the contracts between the Minister and MSS dating back to 2013 had changed the extent of relevant outsourcing or privatisation, or caused any other actual detriment suffered by the members of the Union employed by the Chief Executive, were significant. For reasons already explained, cl 15.3 could only apply if the new MSS contract could be characterised as a contract “of already outsourced or contracted out work” of the relevant nature, namely of work performed by weekly paid employees covered by the Enterprise Agreement (or, more fully, of work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages”). Unless the new MSS contract could be so characterised the first question could not be answered in the affirmative. It is difficult to see how it could ever be so characterised if the findings made by Rossi DPJ were not overturned, or at least supplemented and explained by further findings of primary fact. It will be necessary to return to this issue, but it suffices presently to note that the findings made by Rossi DPJ have never been overturned, and this Court has no jurisdiction to do so.
The Union’s case before the Tribunal was that both questions should be answered in the affirmative. On the basis of those answers, the Union sought orders that the Chief Executive do all things necessary to ensure that the employees of MSS were placed in the position that they would have been had they been paid no less favourably for the hours worked than as set out in the Enterprise Agreement. The Chief Executive’s case was that the first question should be answered in the negative with the result that the second question would not need to be answered and no other orders needed to be made. Rossi DPJ answered the questions in the manner sought by the Chief Executive.
The Union had advanced three broad arguments before Rossi DPJ. First, that on the proper construction of the Enterprise Agreement, cl 15.3 “applied” to the new MSS contract because the Minister was bound by the Enterprise Agreement. The theory here was that the Chief Executive as the “employer” had contracted on behalf of the Crown as the employer of public employees and, accordingly, must be taken to have bound the Crown in any of its other manifestations. Second, that there was a common assumption between the parties that cl 15.3 would be applied to any extension of the Minister’s contract with MSS and the doctrine of estoppel by convention should be applied to estop the Chief Executive from denying the common assumption adopted by the parties as the conventional basis of the relationship because it would cause detriment to the Union and it would also be unconscionable. Third, and in response to an argument advanced by the Chief Executive, the Union contended that it would be wrong to suggest that if cl 15.3 was interpreted as binding the Minister that would put the subject matter of the dispute beyond the scope of an “industrial matter” for the purposes of the FW Act.

As to the Union’s first argument:
(a)Rossi DPJ considered the operation of s 8(2) of the FW Act and followed United Worker’s Union (formerly United Voice) v Department of Treasury and Finance (No 2) [2020] SAET 7 to conclude that its terms were not mandatory.
(b)His Honour then found good reason not to apply the common subjective intention that he had found (as to which see [27](a) above) by conducting a textual analysis of the Enterprise Agreement, concluding that:[12]
Both the terms of the [Enterprise Agreement] and the definition of ‘employer’ for the purpose of the FW Act are indicative of an intention to identify the specific declared employer as the party to be bound by the [Enterprise Agreement] and in a manner inconsistent with the broad manifestation of the Crown contended by the applicant.
(c)His Honour also concluded that his textual analysis of the Enterprise Agreement was also supported by case law, referring amongst a number of other cases to the observations made by the Full Court in Public Service Association (SA) Inc v South Australia[13] quoted at [21](d) above.
[12] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [40] (Rossi DPJ).
[13] Public Service Association (SA) Inc v South Australia (2012) 113 SASR 49 at 67 [68].
As to the Union’s second argument:
(a)Rossi DPJ rejected the argument on a number of bases. It suffices to refer only to a few.
(b)His Honour analysed case law to conclude that estoppel by convention might apply where parties had proceeded on the basis of an underlying assumption of law, but doubted whether that had any application to the circumstances before him as the relevant assumption here did not relate only to private legal rights.
(c)In any event, he concluded that in matters of contract the operation of the doctrine was concerned with legal relations between parties to the contract and was not concerned with persons who were not parties to the contract. His Honour concluded that for estoppel by convention to have any practical effect in this matter, it must apply to the Minister, but it could not as he was not a party to the Enterprise Agreement, and he was not identified in the relevant clause as a party to be bound by it. No statutory provision altered that position.
(d)His Honour also noted that the fundamental purpose of all forms of estoppel was the “protection against the detriment which would flow from a party’s change of position if the assumption (or expectation) that led to it were deserted”.[14] He expressed the conclusion as to detriment quoted at [27](c) above.
(e)Further, his Honour found that the Minister was not a party to the proceedings; there was no jurisdiction to make an order directed to the Minister; and, accordingly, even if the doctrine of estoppel by convention could apply as a matter of law, it could not apply in the particular factual circumstances of this matter.
[14] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [146] (Rossi DPJ).
As to the Union’s third argument, his Honour found that the Chief Executive was correct in asserting the subject matter of cl 15.3 did not concern an industrial matter:
(a)His Honour concluded that the Union had erroneously relied on the common subjective intention of the parties as providing a lawful basis for the binding operation of cl 15.3 beyond the purpose and function of the declared employer under the FW Act and to extend its binding effect to third parties.
(b)His Honour concluded that the breadth of the application of cl 15.3 contended for by the Union (namely extending to entities such as the Minister and MSS (a contractor), who were not parties to the Enterprise Agreement) would render the subject matter outside of the scope of an ‘industrial matter’ under the FW Act as not a matter pertaining to the relationship of employer and employee of the Enterprise Agreement.
(c)Putting it another way, his Honour concluded that:[15]
… the intended application to regulate payments made not by the employer to the [Enterprise Agreement], but by other employers, who are contractors is beyond the scope of an ‘industrial matter’ for the purposes of the FW Act and in relation to the [Enterprise Agreement]. It is not directly concerned with the relationship between the declared employer and his or her employees.
The decision of the Full Bench of the Tribunal on appeal[16]
[15] United Workers’ Union (formerly United Voice) v Chief Executive, Department of Treasury and Finance (No 3) [2020] SAET 222, [174] (Rossi DPJ).
[16] United Workers’ Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8.
The obligation of the Full Bench was to conduct the appeal by way of rehearing.[17]
[17] Dial A Tow Australia Pty Ltd v Campbell [2024] SASCA 151 at [2] (Livesey P and Bleby JA).
The notice of appeal filed by the Union in respect of the decision of Rossi DPJ contested legal conclusions in relation to the way in which his Honour disposed of all three of the broad arguments which the Union had placed before him. The notice of appeal maintained the correctness of all the legal arguments which Rossi DPJ had rejected. The notice of appeal did not seek to overturn the finding that the Minister was not acting in connection with public employment, but did contend there was error in the finding that the Union had not established detriment sufficient to give rise to an estoppel by convention. The notice of appeal sought that the appeal be allowed, both questions answered in the affirmative; and that orders be made:
3.1.That the [Chief Executive] apply clause 15 of the [Enterprise Agreement] to [the new MSS contract], and any renewal, extension or replacement of that contract.
3.2.That the [Chief Executive] maintain existing wages parity commitments in respect of that contract, and ensure that in respect of that contract and any extension, renewal or replacement of it, the employees of the contractor must be paid no less favourably for the hours worked as they would be entitled to under the [Enterprise Agreement].
During the course of argument, however, and despite its notice of appeal and the fact that it had pressed the argument in its written submissions, the Union by its senior counsel abandoned the argument that the Union had run below that the Minister had been bound by the Enterprise Agreement. It may be observed:
(a)Senior counsel for the Union stated that he intended to:[18]
[18] Transcript, 27 September 2021, 17.35-18.5.
… make clear though that the obligation in clause 15.3 falls on the declared employer in the sense that it is only the declared employer who is the party to the agreement. But it does not follow that the clause cannot operate by reference to what others do or do not do. Clause 15.3 is concerned with government contracts. If one fails to comply with clause 15.3, then the declare[d] employer is the one held responsible. The declared employer, therefore, looking at the practical operation of clause 15.3, has an incentive and interest in ensuring that government contracts comply, even if it is not the one entering into those contracts. Incentive and interest i[n] ensuring that it complies with clause 15.3.
Of course, we must accept a matter for the declared employer as to how to ensure that compliance throughout government. It’s not for the employees to be concerned about how the [Chief Executive] complies with it’s obligations. They are entitled to assume that the [Chief Executive] does what it’s doing.
(b)He later clarified further, having referred to Public Service Association (SA) Inc v South Australia (2012) 113 SASR 49 at 67 [68]:[19]
[19] Transcript, 27 September 2021, 25.1-25.13.
That is, the declared employer did not take on the obligations on behalf of the Crown, and the Court said so as part of its reasoning to explain why a consultation clause did not bind the government more broadly.
Firstly, of course, that reason was quite specific to the clause in question, but we are not suggesting the declared employer is taking on those obligations as an agent for ministers and other emanations of the Crown. It is the declared employer who is bound, not them, but the question remains, one the content of the obligation that the declared employer has agreed to, and we say that obligation here was for the declared employer to make sure that the relevant contracts included the wage parity clause.
(c)Based on the argument so advanced, senior counsel also suggested that the remedies sought by the Union should be understood as though the orders sought by the notice of appeal were modified as follows:[20]
3.1. That the [Chief Executive] take all reasonable steps to ensure ~~apply~~ clause 15 of the [Enterprise Agreement] applies to [the new MSS contract], and any renewal, extension or replacement of that contract.
3.2. That the [Chief Executive] take all reasonable steps to maintain existing wages parity commitments in respect of that contract, and ensure that in respect of that contract and any extension, renewal or replacement of it, the employees of the contractor must be paid no less favourably for the hours worked as they would be entitled to under the [Enterprise Agreement].
(d)Before this Court, the Chief Executive correctly submitted that before the Full Bench, the Union:
(i)did not contend that the declared employer was an agent of the Crown such that its conduct bound the Crown at large and for all purposes. The former Full Commission in Public Sector Association of SA Inc v Chief Executive Department of the Premier and Cabinet[21] held to the contrary. The correctness of that conclusion was not challenged.
(ii)did not challenge any of the correctness, application or relevance of the Full Court in Public Service Association (SA) Inc v South Australia[22] which held that the declared employer was the “statutory employer” and that the declared employer neither bound the Crown as its agent nor with respect to employees covered by the enterprise agreement as an agent of the Crown.
(iii)conceded that the Minister was not bound by the Enterprise Agreement and therefore conceded that the declared employer could not bind the Minister in entering into the Enterprise Agreement and that the declared employer could not require the Minister to comply with the Enterprise Agreement.
[20] See Transcript, 27 September 2021, 33.24-33.33.
[21] [2010] SAIRComm11, [23]-[24].
[22] (2012) 113 SASR 49, [68] (Stanley J, Doyle CJ and Vanstone J agreeing).
On the Full Bench’s analysis, the Union’s appeal before it concerned four propositions.[23] First, that the trial judge erred in his approach to construction of the clause. Second, the trial judge erred in his failure to find estoppel against the construction contended for by the Chief Executive. Third, the trial judge erred in his determination as to the power of the Minister to be bound by the Enterprise Agreement. Finally, that the trial judge erred in determining cl 15.3 did not concern an industrial matter. Their Honours then addressed each proposition, although not in the order first identified.
[23] United Workers’ Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8, [34] (Kelly and Crawley DPJJ, with whom Dolphin PJ agreed).
As to the first proposition:
(a)The Union had drawn the Full Bench’s attention to the trial judge’s findings concerning the common subjective intention of the parties to the Enterprise Agreement as to the operation of cl 15.3 and had argued that the inevitable consequence of the application of s 8(2) of the FW Act was that the Tribunal was bound to give effect to the common intention.
(b)The Full Bench rejected that interpretation of s 8(2) and concluded that “the word “should” in s 8 of the Act is to be understood as an expression of an obligation that is not as strong, or as mandatory, as “must” or “shall”; its scope of operation includes discretion”.[24] Their Honours approved the approach of Rossi DPJ and concluded that whilst generally the common subjective intention of the parties, if ascertainable, ought to be given effect, that was not the case if there was good reason not to give effect to the common subjective intention.
[24] United Workers’ Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8, [51] (Kelly and Crawley DPJJ, with whom Dolphin PJ agreed).
As to the third proposition:
(a)The Full Bench noted that authority supported the conclusion that the status of the Chief Executive as the declared employer did not thereby make it an agent of the government with ostensible authority to bind the government and the Crown. The Full Bench noted, correctly, that on the hearing of the appeal, the Union did not contend otherwise.
(b)The Full Bench construed the text of the Enterprise Agreement and concluded that it clearly supported the conclusion that the Minister was not bound by the Agreement and the Chief Executive was only bound in the capacity of the employer of public sector employees.
(c)The Full Bench referred with approval to the observations made by the Full Court in Public Service Association (SA) Inc v South Australia[25] quoted at [21](d) above and noted, correctly, that on the hearing of the appeal, the Union did not contend otherwise.
(d)The Full Bench noted that while the Union in its Notice of Appeal and written Outline of Submissions appeared to advance the contention that the Minister was bound by the Enterprise Agreement, in oral submissions it seemed to resile from that contention. The Full Bench concluded its rejection of the Union’s third proposition before it, in these terms:[26]
That is further apparent from the amended terms of the orders sought by the [Union]. No longer was the [Union] seeking orders requiring the [Chief Executive] to ensure the Minister gave effect to the terms of the industrial agreement. Rather, the [Union] seeks orders that the [Chief Executive] use its best endeavours to have the Minister comply.
There are a number of tacit concessions embodied in the submissions now advanced by the [Union].
Firstly, the Minister is not a party to the industrial agreement.
Secondly, the [Union] does not seek to enforce the industrial agreement directly against the Minister.
Thirdly, an acknowledgement that the [Chief Executive] cannot require the Minister to comply with the industrial agreement.
What the [Union] is left with is almost the suggestion that the [Chief Executive] by the Agreement provided (at best) some form of guarantee of compliance by other members of the executive – but possibly only to the extent that the [Chief Executive] fails to use its best endeavours to obtain that compliance.
In light of the well-established law, the appellant’s arguments regarding the power to bind the Minister must fail.
[25] Public Service Association (SA) Inc v South Australia (2012) 113 SASR 49 at 67 [68].
[26] United Workers’ Union v Chief Executive, Department of Treasury and Finance [2024] SAET 8, [67]‑[73] (Kelly and Crawley DPJJ, with whom Dolphin PJ agreed).
As to the second proposition:
(a)The Full Bench noted that the Union had contended that by virtue of estoppel by convention it was not open for the Chief Executive now to contend that the Minister was not bound by the Enterprise Agreement.
(b)The Full Bench noted the existence of case law which suggested that an assumption of law might found a claim of estoppel by convention, but concluded that the fact remained that such a claim had to relate to an assumption adopted by parties in their relationship.
(c)In the case before the Full Bench:
(i)The specific relationship arose from the agreement to which the assumption related.
(ii)However, the Minister was not a party to the agreement; nor did the assumption made relate to the relationship between the Minister and the Union; the Union appeared to accept that the Minister was not bound by the Agreement; and the Union had in oral argument specifically accepted “… if the Tribunal concludes that the [Chief Executive] had no power at all to agree a clause about what other members of the executive will do, then we accept that estoppel would not overcome that legal prohibition”.[27]
(d)Accordingly, the Full Bench concluded that the estoppel argument could not succeed.
(e)The Full Bench did not address the suggestion that Rossi DPJ had erred in the finding that the Union had not established detriment sufficient to give rise to an estoppel by convention.
[27] Transcript, 27 September 2021, 30.25-30.27.
As to the fourth proposition:
(a)The Full Bench noted that the Union had contended that cl 15.3 of the Enterprise Agreement related to an “industrial matter” and that the trial judge erred in law in accepting a submission of the Chief Executive to the contrary and finding that the subject matter of the clause was beyond power, at least in relation to the Minister.
(b)The Full Bench concluded that “industrial matter” was defined in s 4 of the Act and is, in essence, a matter which affects or relates to the rights, privileges or duties of employers or employees. It concluded that it was easy to see how wage parity could affect the security of employment of current employees as well as the availability of positions for potential future employees. To that extent, the Full Bench concluded that cl 15.3 clearly did relate to an industrial matter.
(c)But the Full Bench concluded that any sense in which the clause did concern an industrial matter was not in the manner and with the effect contended for by the Union in the proceeding before it. It found that it was only in relation to the Union’s attempt to extend the coverage of the clause to the Minister that the trial judge found the clause did not relate to an industrial matter.
The Full Court ordered that the appeal be dismissed and there be no order as to costs.
The application before the Court of Appeal
Section 68 of the SAET Act provides:
68—Final appeal to Court of Appeal
(1) Subject to subsection (2), an appeal lies on a question of law against a decision of the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) to the Court of Appeal.
(2) An appeal cannot be commenced under this section except with the permission of the Court of Appeal.
(3) On an appeal to the Court of Appeal under this section, the Court of Appeal may—
(a)     decide the question of law;
(b)     refer the matter back to the Tribunal (or the South Australian Employment Court) with directions the Court of Appeal considers appropriate;
(c)     make consequential or related orders (including orders for costs).
The applicant applied for the permission of the Court of Appeal to challenge the order made by the Full Bench of the Tribunal.
The grounds of appeal filed by the applicant raised one alleged error of law, namely whether by answering question 1 in the negative the Full Bench erred in construing cl 15.3:
… by not finding that the expression “employer” used in that clause referred to the Crown as the employer of public employees and so applied to a contract in respect of outsourced work entered into by the Minister for Health and Wellbeing on behalf of the Crown?
The grounds of appeal further particularised the alleged error in this way:
Specifically in answering that question, did the Full Bench err:
1.1 in applying s 8(2)(b) of the Fair Work Act 1994 by not giving effect to the common intention of the parties that clause 15.3 would apply to a contract entered into by the Minister in respect of outsourced work;
1.2 in concluding that the body or person declared from time to time by regulation under the Fair Work Act 1994 to be the employer for public employees under that Act is a “body or person” distinct and separate from the Crown (and accordingly no clause, such as clause 15.3, could bind a Minister), rather than concluding:
(i)    the Crown is as a matter of law and fact the employer of public employees under the Public Sector Act 2009;
(ii)     the declaration that the body or person be the employer for public employees is to deem a fiction that that body or person is the employer of those employees for the purposes of the Fair Work Act 1994;
(iii)    the purpose of that fiction is to facilitate the making of enterprise agreements, and the application of industrial regulation in respect of public employees more generally, by giving the Crown a physical embodiment;
(iv)    the declaration does not have the effect of creating the body or person, declared from time to time to be the employer for public employees, as an employer of public employees with an identity separate from the Crown (so as to fragment the Crown and diminish public employees industrial rights in comparison to those of employees generally);
(v)     rather the “body or person” so declared from time to time is a nominee as an emanation of the Crown so as to bind it; and,
(vi) therefore, clause 15.3 was binding in respect of a contract entered into by the Minister in respect of outsourced work;
1.3 in failing to conclude that even if the Enterprise Agreement could not “bind” the Minister, nevertheless the body or person declared from time to time to be the employer for public employees for the purposes of the Fair Work Act 1994, could contravene clause 15.3 if the Crown, by whatever means, entered into a contract in respect of outsourced work which was inconsistent with the obligations set out in clause 15.3?
1.4 in not finding that the [Chief Executive] was estopped by an estoppel by convention from denying that clause 15.3 would apply to a contract entered into by the Minister in respect of outsourced work because the Minister was not a party to the Enterprise Agreement, rather than concluding:
(i) the parties to the [E]nterprise Agreement held a common assumption about the application of clause 15.3 when they made the Enterprise Agreement;
(ii) that common assumption was that clause 15.3 would apply in respect of a contract entered into by the Minister in respect of outsourced work;
(iii)    the parties conducted their relationship on the basis of that assumption;
(iv)    the parties knew that each other would act on the basis of that assumption; and
(v)     allowing the [Chief Executive] to depart from or deny that common assumption would cause detriment to the [Union] and its members;
(vi) therefore, the [Chief Executive] is estopped from denying that clause 15.3 would apply to a contract entered into by the Minister in respect of outsourced work; and
(vii) that whether or not the Minister was a party to the Enterprise Agreement was not determinative of the application of the theory of estoppel to the circumstances of the case.
1.5 in consequently finding that clause 15.3 did not concern an “industrial matter” for the purposes of the Fair Work Act 1994 in the manner and with the effect such that it concerned employees under the contract.

It is notable that each of the five errors said to have been made in paragraphs 1.1 to 1.5 were alleged in support of the sole error allegedly made by the Full Court by answering question 1 in the negative. If permission should not be granted to appeal to advance that error, then it would follow that there is no merit in granting permission to appeal in relation to any of the five alleged subsidiary errors.
The applicant sought these orders:
(a)The appellant be granted leave to appeal.
(b)The appeal be allowed.
(c)The orders of the Full Bench of the South Australian Employment Tribunal dated 25 March 2024 and the single Judge of the Tribunal dated 2 December 2020 be set aside.
(d)The answer to the first question referred to the Tribunal is “Yes”.
(e)The matter be remitted to the Tribunal to answer the second question in accordance with the reasoning of the Court of Appeal.
Consideration of the application for permission to appeal
In determining whether to grant permission to appeal pursuant to s 68 of the SAET Act, this Court acts in the interests of justice, having regard to considerations such as whether there is arguable merit in the appeal, whether the appeal raises any issue of principle or general importance, and whether there would be any substantial injustice to the applicant in leaving the decision below to stand.[28]
[28] See Draoui v Return to Work Corporation of South Australia [2024] SASCA 128 at [15] (S Doyle and Bleby JJA).
The question which arises in this case is whether permission to appeal should be given to enable arguments on a question of law to be advanced in this Court when those arguments had been deliberately abandoned before the Full Bench. The arguments of law presented by the Union to this Court run contrary to various substantive concessions as to the law made by the applicant before the Full Bench.
Two issues arise: first, whether this Court has the power to entertain the points sought to be raised if the points were not raised in the appeal to the Full Bench and, second, whether the power to grant permission should be exercised in the circumstances of the particular case.[29]
[29] The State of South Australia in Right of The Department for Education and Child Development v Dolan [2021] SASCFC 30 at [69] (Livesey J, with whom Doyle J agreed).
The first issue raises a question of jurisdiction. Section 68 confers jurisdiction “on a question of law against a decision of the Full Bench of the Tribunal”. The result is that the complaint of error must be directed at the decision of the Full Bench against which the appeal on a question of law is sought to be brought.[30] That does not necessarily depend on showing error in the reasons of the Full Bench. Rather “… it is sufficient to show that the determination or order made by the Full Bench is affected by error on a question of law”.[31] It follows that this Court would have jurisdiction to consider the errors said to have been made by the Full Bench.
[30] See Marthenis v Return to Work Corporation of South Australia [2024] SASCA 104 at [1]-[3] (S Doyle and Bleby JJA).
[31] The State of South Australia in Right of The Department for Education and Child Development v Dolan [2021] SASCFC 30 at [70]–[71] (Livesey JA with whom Doyle J agreed).
The second issue is governed by the general principle already stated at [52] above by reference to Draoui v Return to Work Corporation of South Australia. As already mentioned, an applicant carries the burden of persuading the Court that the grant of permission sought is the course which best serves the interests of justice. It is on this issue that the Union’s application flounders.
First, the fact that a deliberate decision was made by senior counsel before the Full Bench to abandon a legal argument which had been run at trial sounds strongly against an exercise of the power to permit an appeal to be commenced so as to reintroduce the abandoned argument. As six Justices of the High Court stated in University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483:[32]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[32] University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
Second, before this Court the Union argued that no preclusionary rule could apply because there could be no prejudice to the Chief Executive, the point having been run at first instance. That submission must be rejected. It fails to recognise either the first principle articulated in University of Wollongong v Metwally [No 2] or the fact that the issue arises in the context in which permission to appeal is required before an appeal may even commence. The question of prejudice to the Chief Executive is relevant but by no means determinative. In the present case, senior counsel made a forensic decision to abandon an argument that had been raised by the Union’s notice of appeal and advanced in its written submissions. It may be presumed that senior counsel did so because he saw forensic advantage in doing so. Such a choice has been recognised by the Full Court as a basis on which the Court may decline to permit an argument to be advanced on appeal.[33] The present case does not involve “exceptional circumstances”.
[33] The State of South Australia in Right of The Department for Education and Child Development v Dolan [2021] SASCFC 30 at [73] (Livesey J, with whom Doyle J agreed).
Third, the deliberate choice not to press before the Full Bench the arguments now sought to be pressed has operated to deny this Court the advantage of having specialist consideration of the arguments by the Full Bench of the Tribunal specifically created for that purpose.
Fourth, the Union has not demonstrated that the vindication of its present arguments would justify giving affirmative answers to either of the questions initially posed, or justify the relief which had been sought before the Full Bench. In this regard, the points made at [11]-[16], [27] and [31] above are significant. Permitting an appeal to explore the arguments raised by the Union, even if those arguments were successful, would not address the problems posed by the findings of fact made at first instance. The Union would still need to demonstrate that the new MSS contract could be characterised as a contract “of already outsourced or contracted out work” of the relevant nature, namely of work performed by weekly paid employees covered by the Enterprise Agreement (or, more fully, of work done by weekly paid employees employed in an agency specified in cl 4.2 and who had a classification specified within “Appendix 2: Parity Wages”). There are no findings of fact made by Rossi DPJ which support that conclusion. Indeed, the contrary appears to be the case, as appears from [31] above.
Finally, although it may be accepted that there is arguable merit in the arguments of law sought to be advanced on appeal, and some of the issues are of general importance, those considerations do not outweigh the difficulties identified. This case is not an appropriate vehicle for the exploration of the issues raised.
Conclusion
The Union has not persuaded the Court that the grant of the permission sought is the course which best serves the interests of justice.
The application for permission to appeal must be refused.