Fair Work Act 2009

s.604-Appeal against decision

Appeal against decision of Deputy President Masson at Sydney on 4 November 2020 in matter number ADM2020/14

[1] Advantaged Care Pty Ltd (Advantaged Care or the Appellant) seeks permission to appeal a decision of Deputy President Masson in [2020] FWC 5612 (the Decision). The appeal raises the question of whether s.602 of the Fair Work Act 2009 (FW Act) permits a member of the Commission to correct an obvious error, defect or irregularity in the text of an enterprise agreement.

[2] The context in which this question arose is set out at [3] to [8] of the Decision. We need not repeat that detail here, save to note that the Appellant contends that there is an 'obvious error' in the drafting of clause 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 - 2023 (the Agreement) in that the word casual is omitted. The effect of the alleged error is to extend the benefit of increased weekend penalty payments to all employees, whereas the Appellant contends that the intention was to confine those increased payments to casual employees.

[3] In the Decision the Deputy President considered the following agreed preliminary question:

"If the Commission were satisfied that there is an obvious error, defect or irregularity in clause 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 - 2023 (which is not conceded), would the Commission have the power to 'correct' the clause by way of amending the Agreement in the terms sought in part 2.1 of the application pursuant to section 602 of the Fair Work Act 2009 (Cth.)?"

[4] The Deputy President determined that section 602 did not confer a power to correct an obvious error in an enterprise agreement.

[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[1] There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". Permission to appeal may otherwise be granted on discretionary grounds.

[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[2] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[3] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ..."[4]

[7] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[5]

[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[6] However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[9] The relevant parties have consented to the appeal being determined on the papers and we are satisfied that the appeal can be adequately determined without oral submissions; accordingly, pursuant to s.607(1), we have heard the appeal without holding an oral hearing.

[10] Before turning to the text of s.602 we propose to briefly summarise the Decision.

[11] At [11] to [15] the Deputy President sets out the legislation, including notes, extracts from the explanatory memorandum and principles associated with 'slip rules'. The parties' submissions are summarised at [17] to [22]. Relevantly, Advantaged Care submitted that s.602 confers power on the Commission to 'correct or amend any obvious error, defect or irregularity' in relation to a decision. It says that Note 1 in s.602 of the FW Act makes clear that if as a result of a decision, an enterprise agreement is made, the power to amend or correct extends to the instrument, that is the enterprise agreement.

[12] Advantaged Care also submitted that the term instrument is used throughout the FW Act and is intended by both s.602 and s.598(2) to include enterprise agreements. Advantaged Care referred to various references in the FW Act to the term instrument in the context of enterprise agreements including s.12, s.40, s.312, s.354(1)(b) and s.768AR.

[13] Advantaged Care contended that the power conferred by s.602 applies not only to decisions of the Commission but also in respect of instruments made by the Commission. It follows that the Agreement, having been approved in a decision of the Commission, can be corrected or amended in respect of an 'obvious error, defect or irregularity'. In support of this submission reference was made to a number of decisions of the Commission where the power in s.602 has been applied to correct an error in the text of an enterprise agreement that had previously been approved.

[14] The Deputy President's consideration commences at [23]. The Deputy President notes that the Applicant did not contend that the decision to approve the Agreement contained an error but rather that the Agreement itself contained the purported error.

[15] At [25] the Deputy President acknowledges that the power to correct an obvious error in a Commission decision extends to an 'instrument' made by such a decision. The Deputy President also accepts that an enterprise agreement is an instrument for the purposes of the FW Act. But, the Deputy President says at [26] and [27], that is insufficient to enliven the power in s.602(1):

"[26] The fact that an enterprise agreement is an instrument does not of itself confer power to the Commission to correct an alleged error in an enterprise agreement. It is only if the Commission's decision to approve an enterprise agreement has the effect of making an instrument that the jurisdiction of the Commission to correct an obvious error in the enterprise agreement arises. Two elements are therefore necessary in order to enliven the Commission's jurisdiction to exercise its discretion to correct an obvious error in an instrument. Firstly, a decision is required and secondly an instrument must have been made by that decision.

[27] It follows from the above that in order to answer the question posed I must determine whether an enterprise agreement approved pursuant to s. 186 of the Act, is an instrument made by the Commission. I think not..."

[16] The Deputy President draws a distinction between instruments made by the Commission and instruments given effect to by the Commission. The former, such as modern awards, workplace determinations and orders of the Commission, are the product of a determinative process through which the Commission considers and decides the terms of those instruments. The Deputy President reasoned, at [30], that enterprise agreements fall into the latter category - instruments given effect to by the Commission:

"an enterprise agreement's terms are not determined by the Commission although the terms of the enterprise agreement may be overridden by statutory effect or modified by acceptance by the Commission of undertakings to cure a deficiency. The process of approval of an enterprise agreement is entirely different in character to the process that leads for example to the making of an award or workplace determination. Part 2-4 of the Act provides a scheme for the making of enterprise agreement between an employer/s, their employees who are to be covered by the proposed agreement and bargaining representatives and occurs prior to an agreement approval application being made to the Commission. This is made clear by ss. 182 and 185 of the Act..." [footnotes omitted].

[17] The Deputy President then refers to s.182 which deals with how and when an enterprise agreement is made. The section relevantly provides, at 182(1), that an "agreement is made when a majority of those employees who cast a valid vote approve the agreement".

[18] The Deputy President determines the issue at [32]:

"[32] As an enterprise agreement is made by the parties when a valid majority of employees vote to approve it, it follows in my view that it cannot be an instrument made by the Commission. Consequently, there is no power to correct an obvious error in an enterprise agreement pursuant to s. 602. It matters not whether the obvious error in an enterprise agreement is acknowledged and agreed between the parties or strongly contested. Nor does it matter whether the error is significant or inconsequential. There is in my view no power regardless of the circumstances, to correct an obvious error in an enterprise agreement under s. 602 for the simple reason that an enterprise agreement is not an instrument made by the Commission. It is an instrument made by the parties to it. The role of the Commission is confined to the approval or dismissal of an enterprise agreement application, and not to the making of the instrument."

[19] At [33] the Deputy President states that his view as to the constraints on the power conferred by s.602 in relation to enterprise agreements, is fortified by the fact that the FW Act provides specific means to vary the terms of an enterprise agreement in ss.210 and 217. The Deputy President also considers a number of cases referred to by the Appellant at [34] to [39] and either distinguishes them (essentially on the basis that they had not considered the extent of the power conferred by s.602), or respectfully differs from the views expressed.

[20] The gravamen of the Deputy President's decision is at [40]:

"while the Agreement which is subject to an application pursuant to s. 602 is an instrument for the purposes of the Act, it was not an instrument made by the Commission. Rather, it was given effect by the Approval Decision. It therefore follows that it is impermissible for the Commission to correct the alleged error in the Agreement pursuant to s. 602 of the Act and that the principles outlined in Rotometric do not arise for consideration."

[21] As mentioned earlier, the central issue in the appeal concerns the scope of s.602.

[22] Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the FW Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history.

[23] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose.[7]

[24] The High Court recently considered the proper approach to statutory construction in SZTAL v Minister for Immigration and Border Protection.[8] In their joint judgment, Kiefel CJ, Nettle and Gordon JJ said:

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."[9] (Footnotes omitted)

[25] These principles were also recently considered by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene[10] (Skene) in which the Court said:

"... Ordinarily, the meaning of an undefined expression is discerned by reference to the language of the Act viewed as a whole. As French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22], the task of statutory construction involves the attribution of meaning to statutory text. It is a task which must begin with the consideration of the text itself, but the meaning of the text must be construed by reference to context and legislative purpose of the provision. Similar guidance emphasising the need to discern the statutory purpose of a provision was given by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [39] where their Honours said that "integral" to the making of constructional choices "is discernment of statutory purpose". Similar guidance also is derived from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ)."[11]

"602 Correcting obvious errors etc. in relation to the FWC's decisions

(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this subsection (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders under section 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

[28] The Explanatory Memorandum to the Fair Work Bill 2008 outlines the intention of s.602 of the FW Act, at paragraph 2316:

"Clause 602 - Correcting obvious errors etc. in relation to FWA's decisions

2316. In order to avoid unnecessary technicality, clause 602 allows FWA, on its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]- [30]). This clause does not apply, however, to a modern award or a national minimum wage order. (Clauses 160 and 296 deal with corrections to modern awards and national minimum wage orders.)"

[29] As is made plain by the Explanatory Memorandum, s.602 is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders. The Explanatory Memorandum also refers to a decision of Justice Munro in Re Timber and Allied Industries Award 1999,[12] in which his Honour dealt with the equivalent provision to s.602 in the Workplace Relations Act 1996 and stated:

"[29] This matter effectively turns upon the application of the colloquially known, "slip and error rule". The "slip and error rule" enables a Court to make amendments where unintentional errors have occurred. Neither the applicant nor respondent parties directed my attention to this rule, although with paragraph 111(1)(q) it is the foundation of the Commission's power to issue a Correction Order. The merits of the matter may properly be confined to application or non-application of the rule to the exercise of determinative power called for in this Commission proceeding.

[30] As stated by Einstein J. in a recent judgement:

"A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] UKLawRpAC 44; [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads -

Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission."

Paragraph 111(1)(q) of the Act may be taken to be the counterpart of that power in the Commission."

[30] As highlighted by Note 1, the expression 'a decision of the FWC' in s.602(1) is defined in s.598, as follows:

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC's decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order."

[31] Section 598(1) defines a 'decision of the FWC' in broad terms, as including 'any decision of the FWC however described'. Section 598(2) makes it clear that a decision to make or vary an instrument in particular terms is a 'decision of the FWC' for the purposes of Part 5-1 (which includes s.602).

[32] The Appellant contends that the Deputy President erred in his construction of s.602 and refers to and relies upon its submissions to the proceedings at first instance,[13] to which we have referred earlier, in particular:

"15. Sections 602 and 598 both appear in Part 5 of the FW Act. Section 598(1) relevantly states that "A reference in this Part to a decision of the FWC includes any decision of the FWC however described...". It follows that referring to a "decision" in section 602 is, as a consequence of the operation of section 598(1), referring to any decision (however described) of the FWC. The Note to section 598(1) includes various examples of decisions that the FWC makes examples of which include "approving or refusing to approve enterprise agreements" (our emphasis).

16. As set out earlier, Note 1 to section 602 extends the power to correct or amend to an instrument where "the FWC makes a decision to make an instrument" (our emphasis).

17. It is clear that the power conferred by section 602 applies not only to the decision of the FWC but also an instrument that is made by that decision. By operation of section 598(1) a decision to approve an enterprise agreement is said for the purposes of Part 5 of the FW Act to be a decision to make that enterprise agreement.

18. It follows that the enterprise agreement the subject of the application, having been approved by a decision of the FWC, can be corrected or amended in respect of "any obvious error, defect or irregularity (whether in substance or form)..."

[33] The Respondent submits that the Decision does not evince any error and that the Deputy President took the correct approach by considering the power contained in s.602 by reference to the text of the provision and by reference to the context provided elsewhere in the legislation, including relevant notes, and the explanatory memorandum.

[34] Section 602(1) provides that the Commission may 'correct or amend any obvious error, defect or irregularity... in relation to a decision of the FWC'. As we have mentioned s.598(2) provides that a decision 'to make or vary an instrument' is a 'decision of the FWC' for the purpose of s.602(1).

[35] The Deputy President's finding that an enterprise agreement is an 'instrument' for the purpose of s.598(2), is uncontentious. However, as the Deputy President observed, the fact that an enterprise agreement is an instrument is not sufficient to enliven the power in s.602.

[36] As the Deputy President found, the Commission does not make enterprise agreements. Section 172 of the FW Act provides that employers may 'make an enterprise agreement' with their employees or with relevant employee organisations. Section 12 of the FW Act defines 'made' in relation to an enterprise agreement by reference to s.182. Section 182 in turn specifies when and how the various different types of enterprise agreements are 'made':

• in the case of a single-enterprise agreement that is not a greenfields agreement - 'the agreement is made when a majority of those employees who cast a valid vote approve the agreement' (s.182(1))

• in the case of multi-enterprise agreement that is not a greenfields agreement and to which ss.182(a)-(d) apply - 'the agreement is made immediately after the end of the voting process referred to in subsection 181(1)' (s.182(2))

• in the case of greenfields agreement - the 'agreement is made when it has been signed by each employer organisation and each relevant employee organisation that the agreement is expressed to cover' (s.182(3))

• in the case of greenfields agreement to which ss.182(4)(a)-(e) apply - 'the agreement is taken to have been made ... by the relevant employer or employers with each of the employee organisations that were bargaining representatives ... when application is made to the FWC for approval of the agreement' (s.182(4)).

[37] The FW Act does not confer a power on the Commission to make an enterprise agreement. An enterprise agreement is made by the parties specified and in the manner described in ss.172 and 182.

[38] An application to the Commission for the approval of an enterprise agreement must be made within the period specified in s.185(3) or (4) of the FW Act. That period is reckoned only 'after the agreement is made'. The Commission's role is in approving, subject to satisfaction of the statutory criteria, the enterprise agreement already made. The Commission's approval of an enterprise agreement does not make the agreement, but rather enables the agreement that has already been made to come into operation pursuant to s.54(1) of the FW Act.

[39] Where the statute intends to confer power on the Commission to make an instrument it expressly so provides.[14] The power conferred on the Commission by the FW Act is limited to approval of agreements that have already been made. Although enterprise agreements made under the FW Act rely for their legal enforceability on the Commission's approval, this is not the same as the Commission having power to make the enterprise agreement.[15]

[40] This issue was also the subject of consideration by a Full Court in Toyota Motor Corporation Australia Ltd v Marmara and others[16]. Relevantly the Full Court said:

"Toyota's final argument on the construction of cl 4 of the Agreement (i.e. aside from those that were interwoven with its case on the repugnancy point) was based on the provision of the Agreement that made it an objective to attain cost structures similar to those of other members of the Toyota group worldwide. It was contended that, pursuant to ss 46 and 15AA of the Acts Interpretation Act 1901 (Cth) ("the AI Act"), an interpretation of the Agreement which would best achieve that objective is to be preferred to each other interpretation. We do not, however, accept the premise from which this argument proceeds. Section 46 of the AI Act applies where 'a provision confers on an authority the power to make an instrument'. There is no provision of the FW Act which confers on the Commission the power to make an enterprise agreement. Such an agreement is made by the employer and the relevant employees under ss 172(2) and 182(1). We consider, therefore, that the constructional questions which arise for resolution in this appeal must be addressed without assistance from the AI Act."[17]

[41] In our view the Deputy President correctly determined that an enterprise agreement is not an instrument made by the Commission and that consequently there is no power to correct or amend an obvious error, defect or irregularity in an enterprise agreement pursuant to s.602.

[42] The Appellant submits it is unlikely it was intended in circumstances where there is an "obvious error, defect or irregularity" in the enterprise agreement, that the Commission could not rectify the matter.

[43] On the Appellant's proposed construction, s.602 would authorise the Commission to exercise arbitral power to vary an enterprise agreement to 'correct or amend any obvious error, defect or irregularity'. Viewed in context it is improbable that such a construction was intended. Elsewhere in the FW Act the legislature has taken particular care to constrain the Commission's capacity to exercise arbitral power in respect of enterprise agreements.

[44] Section 595(1) provides expressly that the Commission may deal with a dispute only if it is expressly authorised to do so under the FW Act. In particular, it may deal with a dispute by arbitration only if expressly authorised to do so under or in accordance with the FW Act (s.595(3)).

[45] The Commission may only arbitrate a dispute about any matter arising under an enterprise agreement if the parties have agreed that the Commission may arbitrate the dispute. In such circumstances, the Commission acts as a private arbitrator under the authority conferred by the terms of the enterprise agreement.[18]

[46] Division 7 of Part 2-4 deals with the variation of enterprise agreements. Section 217A provides that the Commission may deal with certain disputes about proposed variations to an enterprise agreement. But, s.217A(3) provides that the Commission 'must not arbitrate (however described) the dispute'.

[47] Further, as the Deputy President observes, in circumstances of obvious error, defect or irregularity, the FW Act provides other means for rectification. Any 'obvious error, defect or irregularity' may be addressed by a variation of the agreement approved by a majority of the affected employees, in accordance with s.210 or by the Commission varying the agreement to remove an ambiguity or uncertainty, pursuant to s.217.

[48] A schedule attached to the Appellant's submissions summarises a number of authorities dealing with the power conferred by s.602 and the Appellant contends that:

"It is clear from these decisions that the FWC has relied on section 602 as providing the power to amend the text of enterprise agreements that have been previously approved by way of a decision of the FWC. The Decision in this matter is inconsistent with those decisions which creates a conflict in the decisions of the FWC in relation this power.[19]

[49] The Respondent submits that in a number of the decisions referred to the parties consented to the exercise of the power in s.602.[20] In our view the consent of the parties is not a material consideration. As the Appellant correctly observes, the power to correct relevant errors cannot be conferred by the consent of the parties to that course, it must be derived from the statute. It follows that in those cases where the parties have consented to the Commission utilising s.602, the Commission has operated on the basis that the statute has conferred the power on it to correct the identified error.

[50] One of the decisions referred to by the Appellant is University of Western Sydney v National Tertiary Education Industry Union[21] (University of Western Sydney) in which a Full Bench upheld an appeal and found in favour of the University that the omission of a footnote from an enterprise agreement should be corrected by order of the Commission. The Appellant submits that this Full Bench decision contemplated a factual situation that is apposite to the facts before the Deputy President.

[51] Previous Full Bench decisions are to be followed unless there are cogent reasons for not doing so. As a Full Bench of the Australian Industrial Relations Commission observed in Cetin v Ripon Pty Ltd (T/as Parkview Hotel) (Cetin):[22]

"Although the Commission is not, as a non-judicial body, bound by principles of state decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so."[23]

[52] The appeal in University of Western Sydney was uncontested; both parties submitted that the appeal should be upheld and that the Full Bench should correct an omission from the University of Western Sydney Academic Staff Agreement 2014. The Full Bench decided to correct the error in the enterprise agreement, but the decision does not discuss the source of the power to do so and nor does it contain any analysis of s.602. To the extent that University of Western Sydney is authority for the proposition that s.602 empowers the Commission to correct or amend the terms of an enterprise agreement we respectfully conclude that it was wrongly decided.

[53] The other decisions in the schedule either do not address the issue before us[24] or were decisions by single members. The latter decisions were often uncontested and do not give detailed consideration to the terms of s.602.

[54] The Appellant also points to the adverse consequences which attend the construction of s.602 favoured by the Deputy President and submits it is unlikely it was intended that the Commission could not rectify an 'obvious error, effect or irregularity' in an enterprise agreement.

[55] In its reply submission the Appellant submits:

"If the disposition of the Full Bench in these proceedings is to respond to DP Masson's question in the negative, this will have a substantial impact on enterprise bargaining, notwithstanding the power conferred by sections 207 and 217."[25]

[56] It is, of course, permissible to approach the interpretation of legislation by taking into account the consequences of giving a particular meaning to an Act. As noted by Pearce,[26] 'interpretation by reference to consequences is essentially a shorthand version of the purposive approach to interpretation.'[27] Characterising a possible interpretation as 'extraordinary', 'capricious', 'irrational' or 'obscure' is to say, in effect, that the legislature cannot have intended such a meaning.[28]

[57] But there are limits to such an approach. If the text does not permit an alternative construction then reliance on unsatisfactory consequences is unlikely to be productive.[29] In circumstances where the text, context and purpose support the adoption of a particular interpretation it is a serious step to reject that interpretation on the basis that it could produce an anomalous or undesirable result. As Campbell J observed in Ganter v Whalland:

"an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature."[30]

[58] The Appellant asserts that the construction favoured by the Deputy President will have 'a substantial impact on enterprise bargaining'. Beyond that bare assertion the submission is not the subject of any elaboration. The construction of s.602 which we favour may, in a particular case, cause inconvenience and may have adverse consequences for a particular party. But to suggest that such a construction will have 'a substantial impact on enterprise bargaining' overstates the position.

[59] The construction of s.602 which we favour may encourage parties to exercise greater care in reviewing the terms of a proposed enterprise agreement before it is put to a vote by employees, but we are not persuaded that it will have a 'substantial impact on enterprise bargaining'. As we have pointed out, an obvious error, defect or irregularity found in an agreement after it has been made, might be rectified under s.210 or s.217 of the FW Act.

[60] The appeal raises an issue of general importance and we are satisfied that it is in the public interest to grant permission to appeal.

[61] We grant permission to appeal, but for the reasons given, we dismiss the appeal.

[1] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[2] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] -[46].

[3] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[4] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

[5] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.

[6] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[7] See generally, Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227.

[8] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362.

[10] WorkPac Pty Ltd v Skene (2018) 208 IR 191.

[12] [2003] AIRC 1137 [PR937647] at [29]-[30].

[14] See for example s.157(1)(b) which provides that the Commission may make a modern award, s.243(1) which provides that the Commission must make a low-paid authorisation in particular circumstances and s.269(1) which provides that the Commission must make a bargaining related workplace determination in particular circumstances.

[15] AMIEU v Golden Cockerel Pty Limited [2014] FWCFB 7447 at [36] - [38].

[16] [2014] FCAFC 84.

[18] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178; and Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 at [56]- [58].

[20] University of Western Sydney v National Tertiary Education Industry Union [2015] FWCFB 6846; Steinhoff Asia Pacific Pty Limited [2020] FWC 2924; Spotless Facility Services Pty Ltd [2018] FWC 5517; Cyroperl Australia Pty Ltd Wheatstone Project Agreement 2016 [2016] FWCA 2829; SECOM Security Australia - Employee Enterprise Agreement 2014 - 2017 [2016] FWCA 193; John Curtin Aged Care Inc [2019] FWC 8533; University of Western Sydney General Staff Agreement 2009 - 2012 [2011] FWAA 185.

[21] [2015] FWCFB 6846.

[22] (2003) 127 IR 2015 at [48].

[23] Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers Section 111AAA application Print Q9115, 27 November 1998 per Guidice J, Watson SDP, Hall DP, Bacon C and Edwards C, also see CFMEU v Queensland Bulk Handling Pty Ltd [2012] FWAFB 7551 at [22].

[24] For example, RotoMetrics Australia Pty Ltd t/as RotoMetrics v AMWU [2011] FWAFB 7214; Jeremy Snyder v Helena College Council Inc [2019] FWCFB 8340 and Fair Work Australia v Schweppes Australia Pty Ltd [2012] FWAFB 7858.

[25] Appellant's reply submissions 22 January 2021 at [10].

[26] Pearce DC (2019) Statutory Interpretation in Australia, Butterworth at 2.58.

[27] Turner v George Weston Foods Ltd t/a Tip Top Bakeries (Newcastle) [2007] NSWCA 67 at [56] per Campbell JA.

[28] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 - 321 per Mason and Wilson JJ.

[29] Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143 at [6] - [7].

[30] (2001) NSWLR 122 at [36].

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