BROMBERG AND KERR JJ:
54 The issue raised by this appeal is whether the Fair Work Commission ("FWC") would impermissibly purport to exercise the judicial power of the Commonwealth if, pursuant to cl 77 of the Mission Australia Early Learning Services Enterprise Agreement, 2013-2016 ("EA"), it arbitrated and determined a dispute ("the dispute") raised by the first respondent ("UWU") against the appellant ("One Tree").
55 The EA is an enterprise agreement made under the Fair Work Act 2009 (Cth) ("FW Act"). Clause 77 of the EA provides procedures for preventing and settling disputes. The terms of that clause are set out in the reasons for judgment of Flick J and need not be here repeated. It is necessary, however, to observe that the dispute resolution clause relates to either a matter arising under the EA (other than relating to termination of employment) or the National Employment Standards provided for by the FW Act. The procedure for the FWC to settle disputes in relation to those matters is laid out by cl 77. The FWC must attempt to resolve the dispute through mediation or conciliation and, if the dispute is unable to be so resolved, the FWC may arbitrate the dispute and make a determination that "is binding on the parties". Clause 77.7 expressly provides that the parties to the dispute "agree to be bound by a decision made by the [FWC]".
56 Although many of its functions are carried out in a quasi-judicial manner, the FWC is a tribunal empowered by the FW Act to exercise administrative powers. Section 71 of the Constitution, found in Ch III thereof, provides for the judicial power of the Commonwealth to be vested in the High Court and such other federal courts as the Parliament creates or such courts as it invests with federal jurisdiction. It has long been held that the vesting of judicial power in Ch III courts precludes the vesting of such power in any institution, body or person other than a Ch III court: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 355 (Griffith CJ) ("Huddart Parker"); Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 445 (Griffith CJ); Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 97-98 (Dixon J); R v Davison (1954) 90 CLR 353 at 364-5 (Dixon CJ and McTiernan J), 380-1 (Kitto J); R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); R v Humby; Ex parte Rooney (1973) 129 CLR 231 at 249-50 (Mason J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26 (Brennan, Deane and Dawson JJ), 54-5 (Gaudron J), 66 (McHugh J). It is uncontentious that the FWC is not a Ch III court and that it cannot be invested with the judicial power of the Commonwealth.
57 There is no "exclusive and exhaustive" definition of judicial power: Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188-9 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). Whether or not judicial power is being exercised is usually analysed by a multi-factorial examination of various characteristics of the power conferred and of the body in which the power is reposed. Those characteristics include the nature of the body exercising the power (see Davison at 370 (Dixon CJ and McTiernan J); the historical treatment of the power reposed in the body (see Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 175 (Isaacs J)); whether the power is a power to create new rights or conversely to determine existing rights (see R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-5 (Kitto J); the finality and enforceability of the determination made by the body in the exercise of the power (see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268 (Deane, Dawson, Gaudron and McHugh JJ) and the availability of judicial review (see Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 579 (Hayne J)) amongst other characteristics.
58 The submissions of the parties did not address those characteristics. The submissions were principally directed at only one characteristic of judicial power - an essential characteristic that distinguishes it from an arbitral power exercised in the context of a private arbitration. The characteristic in question is whether the source of the FWC's authority to arbitrate the dispute between the UWU and One Tree under cl 77 is the sovereign power of the Commonwealth or, alternatively, the consent of the disputants.
59 In that respect, the essence of the UWU's position is that the source of the FWC's authority to arbitrate and determine the dispute is not the sovereign power of the Commonwealth. The UWU contended that the FWO's authority to arbitrate is derived from the conduct and consent of the parties to the dispute. Consequently, the FWC would not be exercising the judicial power of the Commonwealth in resolving the cl 77 dispute between it and One Tree but, upon the consensual foundation provided by the parties to the dispute, the FWC would determine the dispute in its capacity as a private arbitrator.
60 In contrast, the essence of One Tree's position is that if it were permissible for the FWC to arbitrate and determine a dispute raised against it pursuant to cl 77, the source of the FWC's purported authority to do so would necessarily be the sovereign power of the Commonwealth. One Tree accepted that it may be possible for the FWC to determine a dispute raised under cl 77 acting as a private arbitrator. One Tree accepted that in such a case the FWC would not be exercising the judicial power of the Commonwealth. However, One Tree maintained that, in this case, any purported authority for the FWC to arbitrate and determine a dispute must necessarily be derived from the sovereign power of the Commonwealth because the necessary consensual foundation for a private arbitration did not exist. In that respect, One Tree contended that a consensual source of authority had to be founded in nothing less than the inter partes agreement of the parties to a dispute raised under cl 77 for the FWC to arbitrate and determine that dispute. One Tree contended, and it was not in contest, that no such contract existed. One Tree rejected that its unilateral consent, either expressly given or to be inferred from its conduct, even if accompanied by the consent of the other putative party in common terms, could suffice to provide the necessary consensual foundation for the FWC to privately arbitrate and determine the dispute and, in any event, One Tree denied that any such consent had been given by it. It contended that it had neither agreed by contract nor otherwise consented to the FWC determining a dispute raised under cl 77 involving itself as a disputant and that, accordingly, the FWC would not be conducting a private arbitration. It followed that in arbitrating and determining the dispute the FWC would necessarily purport to impermissibly exercise the judicial power of the Commonwealth.
61 For essentially those reasons, One Tree submitted by reference to ground 2 of its Notice of Appeal that the primary judge erred in finding that it had consented to the FWC hearing and determining the dispute raised by the UWU and, by reference to appeal ground 1, that it followed that the primary judge erred in finding that the FWC had jurisdiction to hear and determine that dispute.
62 The primary judge (at [86]) held that a body does not exercise the judicial power of the Commonwealth "if the source of the body's decision-making authority lies in the consent of the parties for it to determine a dispute, rather than in the sovereign power of the State as authorised by a democratic body politic". In our view and with respect to the primary judge, that proposition is correct. It is well supported by a wealth of authority.
63 As Griffith CJ said in Ah Yick v Lehmert (1905) 2 CLR 593 at 603 "judicial power is an attribute of sovereignty". This is also reflected in the oft-cited description of judicial power made by Griffith CJ in Huddart Parker in the following passage at 357:
I am of opinion that the words "judicial power" as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
64 By reference to that description of judicial power, Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [108] observed that by its nature, judicial power is the power of a sovereign authority and that it is derived from the sovereign authority concerned and not from some other source. That judicial power is of its nature sovereign power, was also recognised and relied upon in a decision of central significance to the determination of this appeal to which we will return: Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at [43].
65 As in Breckler, the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 ("Private Arbitration Case") also characterised the power reposed in the body there under consideration by looking to the source of the power. The power there in question (a power given to the predecessor of the FWC to arbitrate and determine a dispute raised under a dispute resolution clause in an industrial agreement made under a predecessor of the FW Act), was held not to be judicial but to be the exercise of an arbitral power in a private arbitration. Relevantly, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ stated (at [31]) that:
Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
66 As is apparent from that passage, two critical and related matters distinguish judicial power from arbitral power exercised in a private arbitration. First, judicial power is sourced in the sovereign power of the body politic, whereas private arbitration has a consensual foundation. Second, decisions made in the exercise of judicial power are binding of their own force, whereas decisions made in the exercise of a power of private arbitration depend upon the parties' agreement to be bound or upon the operation of the law upon the arbitral award.
67 The distinction noted in the Private Arbitration Case was endorsed by a unanimous High Court in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533 at [29] (French CJ and Gageler J) and at [108] (Hayne, Crennan, Kiefel and Bell JJ).
68 At [28], French and Gageler JJ observed that what underlies each of the dimensions of the judicial power of the Commonwealth (references omitted):
is its fundamental character as a sovereign or governmental power exercisable, on application, independently of the consent of those whose legal rights or legal obligations are determined by its exercise. That fundamental character of the judicial power of the Commonwealth is implicit in the frequently cited description of judicial power as 'the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects', the exercise of which 'does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action'. Judicial power 'is conferred and exercised by law and coercively', 'its decisions are made against the will of at least one side, and are enforced upon that side in invitum', and it 'is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved'.
69 The plurality at [81] and at [109] also referred to the "consensual foundation" of private arbitration in emphasising the distinction between the power exercised by a private arbitrator and judicial power.
70 In addressing the distinction between judicial and arbitral power, the primary judge found that there was a consensual foundation which authorised the FWC to arbitrate and determine the dispute and that accordingly the FWC was not purporting to exercise the judicial power of the Commonwealth: at [95]. That determination is at the heart of the appeal. The relevant, and in our view, primary question is whether the facts demonstrate a consensual foundation sufficient to support a conclusion that the FWC has been authorised by the disputants to hear and determine by way of private arbitration the cl 77 dispute raised by the UWU.
71 However, before turning to the relevant facts, it is necessary to reject One Tree's contention that a sufficient consensual foundation cannot be demonstrated in the absence of a contract made between the parties to the dispute which obliges those parties to be bound by the arbitral determination. A contractual provision of that kind is undoubtedly the common means of creating the necessary consensual foundation for a private arbitration. However, as the unanimous decision of the High Court in Breckler demonstrates, the requisite consensual foundation for a private arbitration is not dependent upon the existence of an inter partes agreement between the disputants.
72 Breckler concerned the constitutional validity of a power conferred upon the Superannuation Complaints Tribunal ("SCT"), by the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("Complaints Act") to review decisions made by trustees. Section 14 of the Complaints Act allowed a beneficiary of a "regulated superannuation fund" to complain to the SCT in respect of a decision of a trustee that was "unfair or unreasonable". The SCT was empowered to review and redetermine a decision made by the trustee and where it did so the decision of the SCT would be substituted for that of the trustee. A regulated superannuation fund was defined as a superannuation fund to which the Superannuation Industry (Supervision) Act 1993 (Cth) ("Supervision Act") applied. Trustees could elect to bring a fund within the application of the Supervision Act by providing a notice to the Insurance and Superannuation Commissioner. The election brought with it certain tax benefits. Crucially, the SCT's jurisdiction was only engaged where such an election was made by a trustee.
73 The controversy in Breckler arose when the SCT determined that a decision made by particular trustees was unfair and unreasonable and substituted its own determination for that made by those trustees. The principal basis on which the determination of the SCT was sought to be impugned was that the SCT had impermissibly exercised the judicial power of the Commonwealth. The trustees' submissions, and indeed the reasons of the Full Court of this Court from which the successful appeal was brought, pointed to the indicia of judicial power which they said were apparent from the SCT's functions. For example, it was said that, like a court, the SCT had adjudicated a dispute regarding past rights and obligations, rather than creating new rights and obligations. It was also pointed out that failure to comply with a determination of the Tribunal attracted criminal sanctions.
74 The High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J agreeing in separate reasons) unanimously upheld the validity of the determination, holding that the SCT had not exercised judicial power. The first reason for this conclusion was simply that the terms of the trust instrument in question created a private obligation to observe determinations by the SCT. Crucially, however, even if this had not been the case, the fact that the trustees had elected to be governed by the provisions of the Supervision Act (and therefore the Complaints Act) was enough to validate the exercise of power by the SCT because the exercise of its power in that context did not involve the exercise of sovereign (and thus judicial) power by the SCT.
75 At [43]-[44] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ relevantly said this (references omitted):
The present case does not fall under that proscription [a contravention of Ch III] for several reasons. The first is founded in the terms of the trust deed constituting the Plan. The evident purpose as well as the effect of the variations of the trust deed to which we have referred were to change the terms themselves of the charter by reference to which the rights and obligations of the trustees and the members of the Plan were, as a matter of private law, to be determined and decided. The trustees became expressly obliged by cl 1.2 to observe the requirements which have their source in the Supervision Act and the Supervision Regulations. These included obligations to observe determinations by the Tribunal under the Complaints Act (reg 13. 17B). Thus, the determination by the Tribunal involved not the exercise of the sovereign power referred to by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead but the arbitration of a dispute using procedures and criteria adopted by the constituent trust instrument, the existing charter, for the resolution of certain disputes arising thereunder.
Secondly, even without a provision in the trust deed such as cl 1.2, the situation would bear a similar character. The application of the provisions of the Complaints Act was possible only because the Plan had the status of a regulated superannuation fund. The attainment of that status was the product of the exercise of an election provided to the trustees by the Supervision Act. Given the importance of attracting the operation of Pt IX of the Income Tax Act, cases may readily be imagined where it would be a breach of trust not to exercise the election so as to obtain the revenue benefits which follow, albeit at the concomitant price of attracting the regulatory regime of which the Tribunal is a component. The availability of an election of this nature may be, and in the context of the present legislative scheme is, a decisive pointer in favour of validity.
76 On the facts of Breckler, there was no agreement made between the trustees and the beneficiaries of the trust including, in particular, the beneficiary who brought the complaint to the SCT for the SCT to review and redetermine the impugned decision of the trustees. The obligation to observe the determination of the SCT was voluntarily assumed by the trustees by the election the trustees made. It was that voluntary assumption of the obligation to observe any determination made by the SCT which sufficed to provide the source of the requisite authority which underpinned the non-sovereign character of the power exercised by the SCT. One Tree's insistence on the need for an inter partes agreement as the only available mechanism for establishing the requisite consensual foundation is denied by Breckler.
77 There is no inconsistency between the approach taken in Breckler and the later authorities. Whilst several observations made in the Private Arbitration Case and in TCL refer to an "agreement" for private arbitration as providing the authority for arbitration of that kind, those observations do not confine the source of the requisite authority to an inter partes agreement. Nor is there any principled basis for rejecting the common voluntary submission of the disputants to a private arbitration, as providing the necessary authority to bind those persons to the outcome of an arbitration which each has separately bound itself to observe. As long as the arbitrator's authority is sourced in the consent of the parties, for the purpose of establishing that the arbitrator's authority is not sourced in the coercive sovereign power of the Commonwealth, it does not matter whether the arbitrator derives authority from a single multi-party agreement or the unilateral consent of each party.
78 There is, on the facts of this case, a basis for the conclusion that One Tree voluntarily submitted to the binding force of the EA, including the binding force of cl 77 and the requirement made by cl 77.7 that it "agreed to be bound by a decision made by the [FWC]" pursuant to cl 77.
79 The voluntary assumption of that binding obligation by One Tree is contended by the UWU to constitute the relevant agreement or consent of One Tree. That voluntary assumption by One Tree together with the consent of the UWU implicit in its initiation of the cl 77 dispute resolution procedure is, in our view, sufficient to provide the requisite consensual foundation to support the conclusion that private arbitration rather than the exercise of judicial power is the basis upon which the FWC is to hear and determine the dispute raised by the UWU under cl 77.
80 Whilst the primary judge made observations with which we respectfully disagree, in particular (at [90]) that "the FW Act achieves a statutorily mandated consent" and (at [94]) that "the effect of Part 2-8 is that One Tree is deemed to have consented to the EA including cl 77", the findings made by the primary judge as to the conduct of One Tree are sufficient to establish the voluntary assumption by One Tree of the binding force of the EA including the binding force of cl 77. It is necessary to briefly outline some background facts, the relevant (unchallenged) findings of the primary judge and the operation of the relevant provisions of Pt 2-8 of the FW Act.
81 It is not in contest that despite One Tree having had no involvement in the making of the EA, the EA applies to One Tree. Section 310 of the FW Act states that Div 2 of Pt 2-8 of that Act "provides for the transfer of rights and obligations under enterprise agreements…if there is a transfer of business from an old employer to a new employer". Section 311 then specifies when a transfer of business occurs. It relevantly provides that when a new employer re-employs an employee of an old employer within three months of the termination of the employee's employment with the old employer and the employee is employed to perform substantially the same work as the work the employee performed for the old employer, there will be a transfer of the business where there is "a connection between the old employer and the new employer". One such "connection" is where the new employer has acquired some or all of the assets of the old employer that relate to or are used in connection with the work that has transferred to the new employer.
82 The employer party that agreed to the making of the EA was "Mission Australia Early Learning" ("Mission") and the EA applied to Mission in respect of its business in operating the "Defence Childcare Program" ("DCCP") for the Department of Defence. That operation essentially involved providing childcare services to the children of defence personnel. In 2018 One Tree successfully tendered to become the DCCP service provider and replaced Mission in that role. After winning the tender, One Tree purchased some of the assets of Mission and from 1 January 2019 employed 171 former Mission DCCP employees whose employment with Mission ceased at the end of December 2018 ("transferring employees"). It is uncontentious that those facts triggered the "transfer of business" provisions in Pt 2-8 of the FW Act and resulted in the EA applying to One Tree.
83 At [95] the primary judge held that One Tree's consent to being bound by the EA "was manifested through its actions" which the primary judge described at [96] as follows:
(1) it was entirely optional as to whether or not One Tree acquired the business. It did not have to take any steps that would trigger the transfer of business provisions of the FW Act. However it did so knowing of the existence of the EA; and
(2) no application has ever been made by One Tree (as might be expected shortly following the acquisition) to the Commission for an order that the EA not apply to it under s 318 or for an order to vary cl 77 of the EA pursuant to s 320 of the FW Act. No comment is made about the likely prospects of either such applications, but given that the statutory regime contemplates such applications in appropriate circumstances, the absence of making such an application might suggest acquiescence on One Tree's part to the terms of the EA.
84 At [92] the primary judge observed that "[a] new employer does not need to structure itself in a manner that gives rise to a 'transfer of business' under s 311(1) of the FW Act". His Honour went on to find that One Tree could have recruited its own workforce and that it had contingency plans to recruit its own workforce if it could not reach agreement in relation to the transferring employees.
85 Those factual findings sustain the objectively ascertainable conclusion that One Tree made a voluntary election to have the binding force of the EA (including that of cl 77) applied to it. In other words, in circumstances where One Tree could have conducted its business without being legally bound by the obligations imposed upon an employer by the EA, One Tree knowingly chose to structure its business in a manner which would subject it to those obligations. One of those obligations was that it agreed to be bound by the determination of the FWC of a cl 77 dispute.
86 Contrary to One Tree's submissions, the consensual foundation evident from those facts is not relevantly different from that in Breckler. One Tree contended that the election made by the trustees in Breckler was an act directly expressing the trustees' wishes to subject themselves to the very statutory provisions which empower the SCT to resolve disputes between the trustees and its members. That was said to be very different to One Tree's entry into a commercial transaction which triggered a mandatory statutory consequence.
87 There is no finding in Breckler as to the subjective intent of the trustees, although it is unlikely that the trustees wished to have their decisions reviewed and substituted by decisions of the SCT. If the subjective intent of the trustees was relevant (which we doubt) it is more likely they were driven by an intent to provide to the trust the tax benefits which their election provided. Equally, it may be said here that One Tree was driven by the commercial benefits available to the conduct of its business by its employment of the transferring employees and its acquisition of some of the assets of Mission. However, in each case, the incentives that may have subjectively motivated the choice or election made do not deny the voluntary acceptance of and voluntary submission to the legal consequences of the making of the election.
88 It may be accepted, as One Tree contended, that the contracts of employment made by One Tree with the transferring employees do not embody One Tree's agreement to be bound by private arbitrations conducted by the FWC under cl 77. But no reliance on that source of authority was made by either the primary judge or the UWU. Nor do the terms of the employment agreements made with the transferring employees serve to deny the fact that One Tree voluntarily elected to submit to the binding force of the EA. To the contrary, the offers made by One Tree to the transferring employees confirmed that One Tree had elected to submit to the binding force of the EA. Although those offers stated that the EA would not be incorporated into the employment agreements as a contractual term, they nevertheless acknowledged that the binding force of the EA would govern their relationship. The "relevant commencing classification" One Tree offered to each transferring employee was referrable to it. An employee who accepted One Tree's offer was entitled, having regard to the terms in which it was expressed, to have accepted that offer on the basis that the offer had acknowledged that the EA would remain binding in all regards on both them and their prospective employer without exception. Clauses 51 and 52 of the individual offers simply reflected that position.
89 We accept One Tree's contention that if consent is sufficient, the requisite consent must be actual, rather than deemed by the statute. One Tree is correct to contend that if Parliament could simply legislate to deem or mandate consent to a private arbitration, the Ch III restrictions (founded as they are on the important doctrine of the separation of judicial power) could be readily usurped. However, although the primary judge (wrongly in our respectful view) spoke in terms of the FW Act deeming consent, his Honour appreciated that consent could not be mandated by the statute. At [91], the primary judge adverted to the need for consent to be voluntary rather than "mandatory". The primary judge's findings as to One Tree's conduct which his Honour regarded as manifesting its consent, were clearly findings made about voluntary rather than involuntary conduct. Those findings are not challenged. The suggestion made by One Tree that evidence would need to be considered about how commercially practicable it would have been for One Tree to do otherwise than to trigger Pt 2-8 of the FW Act, is unpersuasive. If One Tree wanted to establish that the commercial circumstances in question mandated its conduct to the extent that that conduct should be regarded as involuntary, it was for One Tree to establish that before the primary judge. In doing so One Tree would have had to confront observations made in Breckler, particularly those at [44].
90 One Tree also relied upon the terms of s 739(4) of the FW Act which empower the FWC to arbitrate disputes and provide that:
If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
91 One Tree contended that the word "agreed" in s 739(4) must be construed to refer to an inter partes agreement or, in other words, an agreement embodied in a common law contract. There is no imperative to construe "agreed" in that limited way. To the contrary, the provision should be construed to encompass the full breadth of the constitutionally available means by which a private arbitration may be authorised by its disputant parties. That construction is available on the text of the provision and is consistent with the evident purpose of the scheme of the Act dealing with dispute resolution processes required to be included in enterprise agreements, of facilitating rather than mandating the resolution of disputes by arbitration.
92 Finally, at [93] the primary judge observed that it would not be consistent with the intent of the statutory regime created by the FW Act for employees who become employed after the making of an enterprise agreement not to be bound by a private arbitration conducted pursuant to a process provided for by that enterprise agreement. This was a passing observation made by the primary judge, not critical to his Honour's conclusions and not directly challenged on the appeal, although the correctness of that view was referred to in the submissions made. It is not necessary that the correctness of that view be here considered, however, with respect to the primary judge, it is necessary to observe that the intent of the statutory regime does not address the correct question. It may well be the case that the FW Act intends that all employees be bound by a private arbitration process provided for in an applicable enterprise agreement made under that Act. However, that does not answer the question of whether by reference to the restrictions imposed by Ch III it is constitutionally valid for the FW Act to so provide. Whether a sufficient consensual foundation exists is a factual inquiry which will need to be determined by reference to the specific facts which pertain to the particular case. In the case of an employee employed after the making of the relevant enterprise agreement, the facts of relevance may not be confined to the fact of the employee choosing to accept employment and (arguably) thus voluntarily submitting to the binding force of an applicable enterprise agreement (as was assumed by the submission made by One Tree), but will likely extend to those facts which gave rise to the employee's involvement and participation in the dispute resolution process itself.
93 Appeal grounds 3 and 4 depend upon One Tree succeeding on appeal grounds 1 and 2. As One Tree has failed on grounds 1 and 2, appeal grounds 3 and 4 need not be considered.
94 The appeal should be dismissed. No party has applied for costs, presumably because of the operation of s 570 of the FW Act. Accordingly, no order as to costs should be made.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg and Kerr.