s.615A(2) - Application for the President to direct a Full Bench to perform a function

Australian Federated Union of Locomotive Employees

Australian Federated Union of Locomotive Employees

Aurizon Operations Ltd t/a Aurizon Bulk Queensland

Application for referral of applications under Fair Work Act 2009 (Cth) ss 218A and 739 to a Full Bench - Fair Work Act 2009 (Cth) ss 582, 615 and 615A - application granted.

[1] On 28 October 2022, the Australian Federated Union of Locomotive Employees (AFULE) applied under s 739 of the Fair Work Act 2009 (Cth) (FW Act) (dispute application) for the Commission to deal with a dispute between its members and Aurizon Operations Ltd (Aurizon) regarding the interpretation of clause 77.1.1 of the Aurizon Bulk (Queensland) Enterprise Agreement 2019 (Agreement). That clause provides:

77.1. The master roster will show for all Train Crew Employees:

77.1.1. The shift length and start times for at least 70% of all known workings;

[2] The AFULE contends in its application that Aurizon is failing to comply with its obligation under clause 77.1.1 to provide a master roster that includes a shift length and start time for 70% of all known workings. Aurizon contends in response that the obligation under clause 77.1.1 does not arise when there is no Master Train Plan or there are other circumstances that make it impossible or impracticable for Aurizon to obtain the information that it needs to be able to roster employees prior to the master roster issuing, because in those cases there are no "known workings".

[3] On 20 January 2023, Aurizon applied under s 218A of the FW Act to vary clause 77.1.1 of the Agreement (variation application) to add the underlined phrase:

77.1. The master roster will show for all Train Crew Employees:

77.1.1. Where practicable and where there is an applicable Master Train Plan, [t]he shift length and start times for at least 70% of all known workings;

[4] Aurizon submits that it was not reasonably contemplated at the time the Agreement was made that it would be obliged to provide shift lengths and start times in the absence of a Master Train Plan or comparable information. Accordingly, if the AFULE was correct, then clause 77.1.1 contains an error, defect or irregularity capable of being remedied by a variation pursuant to s 218A of the FW Act. The proposed variation would confine the scope of "all known workings".

[5] Both the dispute application and the variation application (together, the applications) were allocated to Commissioner Spencer in the first instance.

[6] On 13 February 2023, Aurizon applied for the applications to be referred to a Full Bench of the Commission pursuant to s 615A of the FW Act.

[7] Section 615A of the FW Act relevantly provides:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) For the purposes of paragraph (1)(a), the following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

[8] Section 615A(1)(a) is satisfied; Aurizon is a person who has made or will make submissions for consideration in both the applications. Therefore, the sole issue for determination is whether referring the applications to a Full Bench would be in the public interest (s 615A(1)(b)).

• [9] The expression "in the public interest", when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute.[1] In addition, it is well-established that ss 577 and 578 of the FW Act are relevant to consideration of an application under s 615A.[2]

[10] Aurizon submits that it would be in the public interest to refer the applications to a Full Bench because doing so would "provide[] an early opportunity for a Full Bench of the Commission to consider the scope and limits of the new power [in s 218A] and to provide valuable guidance to members as to how the provision should be interpreted and applied." It said that it expected there to be many more applications under s 218A, noting that drafting difficulties are "notoriously common". Given the s 218A application was filed to address the subject matter of the dispute application, it submits that both should be heard together by a Full Bench. Finally, Aurizon notes that if the applications are so referred, then the possibility of an appeal of the resultant decision to a Full Bench would be removed and in any case it would waive its right to appeal under the dispute resolution clause of the Agreement to the extent necessary.

[11] The AFULE agrees that the applications should be heard together. However, it does not agree that the applications should be referred to a Full Bench. It contends that the present subject matter is not apposite as a "test case" because, even if s 218A is used frequently as Aurizon predicts (which is not agreed), the factual circumstances that give rise to the present variation application are unusual and specific, and are not broad enough to be representative of s 218A applications generally. The AFULE further submits that the mere fact that s 218A is a relatively new provision is insufficient to attract the public interest, and that fact-finding based on the evidence yet to be tendered would more efficiently be handled by a single member.

[12] Section 218A is a new provision of the FW Act. It was added to the FW Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and took effect on 7 December 2022. Section 218A provides:

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):

(i) one or more of the employers covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

[13] Section 218A confers upon the Commission a new power to vary enterprise agreements in addition to the existing power in s 217 to vary agreements to remove an ambiguity or uncertainty. The concept of what constitutes an "error" has been elucidated in the context of the variation of awards under s 160, but its application to agreements is likely to raise new issues for consideration. What constitutes a "defect" or an "irregularity" in an agreement is an entirely novel question, as is what is necessary to make this "obvious". The facts of this case and the respective contentions of the parties are likely to require detailed consideration concerning the proper construction and application of s 218A.

[14] As at the date of this decision, the Commission has received 10 applications under s 218A of the FW Act, including the variation application. This is the first application which is the subject of significant contest and is likely to give rise to the constructional issues identified. For these reasons, I am satisfied that it would be in the public interest for Aurizon's application to be determined by a Full Bench so that early guidance can be given concerning the proper construction and application of s 218A.

[15] In accordance with s 615A(1), I direct that a Full Bench exercise the Commission's functions and powers in respect of matter AG2023/110. Because it is convenient, and agreed, that both AFULE's and Aurizon's applications should be heard and determined together, I direct pursuant to s 615 that the Commission's functions and powers in respect of matter C2022/7178 be exercised by the same Full Bench.

[1] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ

[2] Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia [2014] FWC 2498 at [10]- [13]; Application for approval of the Collinsville Coal Operations Enterprise Agreement 2014 [2014] FWC 3129 at [5]- [9]; Lend Lease Building Pty Ltd & Ors [2014] FWC 5026 at [6]- [8]; ResMed Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2015] FWC 848 at [12]; Belan v National Union of Workers NSW Branch [2016] FWC 8125 at [9]- [11]; Murdoch University v National Tertiary Education Industry Union [2017] FWC 1553 at [7]- [9]; Shrimpton v Community Livings Options [2020] FWC 6260 at [19]- [22].

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