Fair Work Act 2009

s.604 - Appeal of decisions

Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others

Shop, Distributive and Allied Employees Association

Appeal against decision [2025] FWC 2352 of Deputy President Hampton at Adelaide on 2 December 2025 in matter number B2025/635 - Application for a single interest employer authorisation - Requirement that the Commission be satisfied a majority of the employees 'want to bargain for the agreement' for the purposes of s 249(1B)(d) of the Fair Work Act 2009 (Cth) - Union relied upon petitions signed by employees - Whether employees informed of consequences of authorisation being made - Whether Commission could have been satisfied of majority support if parties to the 'agreement' not identified when petitions were prepared - Whether application for authorisation made with respect to different 'proposed agreement' - Open to Deputy President to be satisfied the requirement in s 249(1B)(d) was met notwithstanding changes to proposed coverage of agreement - Permission to appeal granted - Appeal dismissed.

[1] On 2 December 2025, a Deputy President of the Commission made a single interest employer authorisation with respect to six employers each of which carry on an enterprise operating a Chemist Warehouse pharmacy store in South Australia.[1] The authorisation was made on application of the Shop, Distributive and Allied Employees Association (the SDA). It specifies that it relates to a proposed enterprise agreement to cover the six named employers (the employers) and each employee of the employers who perform work in South Australia at a pharmacy within any classification between A.1 and A.8 of the classifications definitions in Schedule A to the Pharmacy Industry Award 2020 other than a 'Pharmacist in charge' and 'Pharmacist manager'.

[2] The making of a single interest employer authorisation has a number of consequences for the employers and employees specified in the authorisation. The consequences include that, whilst the authorisation is in operation, the only kind of enterprise agreement the employer may make with the specified employees is a single interest employer authorisation. The employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of agreement.[2] An authorisation comes into operation on the day it is made and ceases to have effect if a proposed enterprise agreement is made or 12 months after the date of the authorisation.[3] The period an authorisation is in operation may be extended only if the Commission is satisfied there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period and that it is appropriate in all the circumstances to extend the period.

[3] The employers seek permission to appeal and to appeal under s 604(1) of the Fair Work Act 2009 (Cth) (the FW Act). The employers now rely on an amended notice of appeal dated 13 February 2026. The employers rely, in substance, on two contentions. Both concern the requirement in s 249(1)(b)(iv) and (1B)(d) that the Commission be satisfied that 'a majority of employees who are employed by the employer [at the relevant time] and who will be covered by the agreement want to bargain for the agreement'. Ground 2 contends that the Deputy President failed to address a clearly articulated and centrally relevant submission, and/or failed to have regard to a relevant consideration, by failing to consider whether the employees were properly informed as to the consequences of a single interest employer authorisation being made. Grounds 3, 4 and 5 concern the construction of the phrase 'the agreement' in s 249(1B)(d). The employers contend that there was not an 'agreement' for the purposes of s 249(1B)(d) that the Deputy President could have been satisfied the employees wanted to bargain for or, if there was an 'agreement' which the employees supported bargaining for, it was a different agreement to that subject of the SDA's application.

[4] The appeal raises issues of significance and general application to the jurisprudence of the Commission, particularly in relation to the interpretation of s 249(1B)(d) of the FW Act, such that permission to appeal should be granted. The Australian Council of Trade Unions (the ACTU) was permitted to intervene to make submissions in relation to those issues. However, for the reasons that follow, no error has been demonstrated in the decision of the Deputy President and the appeal must be dismissed.

[5] Division 10 of Part 2-4 of the Act makes provision for the Commission to make a single interest employer authorisation. Section 248 provides that an application for an authorisation in relation to a proposed enterprise agreement that will cover two or more employers may be made by those employers or a bargaining representative of an employee who will be covered by the agreement. The circumstances in which the Commission must make a single interest employer authorisation are then set out in s 249 which provides as follows:

249 When the FWC must make a single interest employer authorisation

(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a) an application for the authorisation has been made; and

(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and

(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and

(iii) if the application was made by 2 or more employers under paragraph 248(1)(a) - the requirements of subsection (1A) are met; and

(iv) if the application was made by a bargaining representative under paragraph 248(1)(b) - each employer either has consented to the application or is covered by subsection (1B); and

(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

(vi) if the requirements of subsection (3) are met - the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

Additional requirements for application by employers

(1A) The requirements of this subsection are met if:

(a) the employers that will be covered by the agreement have agreed to bargain together; and

(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.

Additional requirements for application by bargaining representative

(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and

(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e) subsection (1D) does not apply to the employer.

(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or

(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single-enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:

(b) related bodies corporate of the same franchisor; or

(3) The requirements of this subsection are met if:

(a) the employers have clearly identifiable common interests; and

(b) it is not contrary to the public interest to make the authorisation.

(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d) associated entities of the employer are taken to be one entity.

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earlier of the following:

(i) at the same time as the enterprise agreement to which the authorisation relates is made;

(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

[6] Most notably for present purposes, s 249(1)(b)(iv) requires that, if the application is made by a bargaining representative of an employee and each employer has not consented to the application, the Commission must be satisfied that the employer is covered by subsection (1B). Section 249(1B)(d) provides that, for an employer to be covered by the subsection, a majority of the employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement 'want to bargain for the agreement'.

[7] The required content of a single interest employer authorisation is then prescribed by s 250 of the Act. The matters that must be specified in an authorisation are as follows:

250 What a single interest employer authorisation must specify

(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

(a) the employers that will be covered by the agreement;

(b) the employees who will be covered by the agreement;

(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;

(d) any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.

(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.

[8] Relevantly, s 250(1) provides that 'a single interest employer authorisation in relation to a proposed enterprise agreement' must specify the employers and employees that will be covered by the agreement.

[9] As we have observed, s 249(4) provides that a single interest employer authorisation ceases to be in operation the earlier of the dates on which an enterprise agreement is made or 12 months after the day it is made. Section 252 permits the period an authorisation is in operation to be extended if the Commission is satisfied there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period and that it is appropriate in all the circumstances to extend the period.

[10] The submissions advanced on behalf of the employers emphasise the consequences of a single interest employer authorisation. In particular, s 172(5) provides:

Requirement for employer specified in single interest employer authorisation

(5) Despite any other provision of this Part, if an employer is specified in a single interest employer authorisation that is in operation:

(a) the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a single interest employer agreement; and

(b) the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement.

[11] In short, an employer specified in a single interest employer authorisation is precluded from pursuing any other form of enterprise agreement whilst the authorisation is in operation. It should be observed that s 251 provides for an authorisation to be varied to remove the name of an employer specified in the authorisation or to add an employer.

[12] The SDA applied for the authorisation under s 248(1)(b) of the FW Act in respect of bargaining for a proposed multi-enterprise agreement to cover a defined group of employees employed by the six named employers. In the decision at first instance, the Deputy President recorded that there was no dispute that the requirements were satisfied other than the requirement in s 249(1B)(d) that the Commission be satisfied that 'a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement'. The Deputy President was ultimately satisfied that the requirements which trigger the obligation to make an authorisation were met, including the condition in s 249(1B)(d).

[13] With respect to s 249(1B)(d), the Deputy President indicated that the SDA relied upon the petitions of employees collected at each of the workplaces within the businesses conducted by the employers. The Deputy President recorded (at [28]-[29]) that the Commission had provided a preliminary report with respect to the petition relied upon by the SDA to demonstrate majority support. The preliminary report indicated that a majority of the employees of each of the employers had signed the petition in favour of bargaining. The SDA developed a common petition document and an 'explainer'. The petition document stated the following as the basis for seeking the employees' signatures:

1. We want to bargain for a single interest employer agreement with our employer and with other employers and their employees; and
2. The single interest employer agreement we seek is one that covers:
   • (a) Our employer and as many other employers operating "Chemist Warehouse" branded pharmacies that the Fair Work Commission considers appropriate; and
   • (b) The employees of those employers working at a Chemist Warehouse pharmacy.
3. We permit the SDA to rely on this petition in the Fair Work Commission to show that a majority of employees wish to bargain as above.
4. We permit the SDA to detail the coverage of the agreement, i.e. which job roles or classifications are covered, at the SDA's discretion.
5. Each of us have signed this petition of our own free will without anyone pressuring us in any way to sign this petition

The SDA intends to provide this petition to Fair Work Commission in confidence if an application is made for a single interest employer authorisation. The names listed on this petition will not be provided to the employer by the SDA.

[14] The 'explainer' document, which the Deputy President found (at [42]) was available to be handed to employees that were approached to sign the petitions when an organiser of the SDA attended the workplaces, or were left in the workplace, provided as follows:

The SDA is seeking workers' support to commence negotiations for an Enterprise Agreement with Chemist Warehouse.

This Agreement would cover workers at Chemist Warehouse branded pharmacy sites in South Australia and set out your pay and conditions for a set period of time.

Negotiating an Agreement provides workers with a say on their entitlements at work including wages, rostering rights, leave entitlements and more.

Chemist Warehouse workers are currently covered by the Pharmacy Industry Award, the terms of which are determined by the Fair Work Commission.

An Agreement is the result of enterprise bargaining where an employer and workers (who are generally represented by their union) directly negotiate entitlements in the workplace.

Agreements must leave workers better off than they are under the Award e.g. an Agreement may include higher rates of pay or rights regarding roster changes.

By negotiating Enterprise Agreements, the SDA has negotiated above-Award pay and conditions at other retailers and distribution centres across the country.

Before formal negotiations begin, the SDA will survey workers to find out what you want to see improved or changed. Your feedback will be compiled and used to form our Log of Claims - which will set out our priorities for the negotiation meetings.

We will then meet with Chemist Warehouse to discuss our claims and negotiate and draft the terms of the Agreement.

Once an Agreement is drafted and finalised, it will be presented to workers in full and you will have the chance to vote on whether or not you support it.

If there is a majority yes vote amongst the workers who choose to vote, the Agreement will then be reviewed by the Fair Work Commission before it takes effect.

Enterprise Agreements have an expiry date, which is usually 2-3 years from the commencement date. As the expiry date approaches, the SDA will seek to negotiate a new Agreement.

What if Chemist Warehouse don't want to bargain?

If a majority of workers support bargaining for an Agreement and Chemist Warehouse indicate they do not wish to commence bargaining, the SDA will make an application to the Fair Work Commission which would compel Chemist Warehouse to bargain.

Chemist Warehouse can be compelled to bargain if a majority of workers sign the SDA's petition supporting bargaining.

Improved junior rate percentages for workers under 20 years old

Strong dispute resolution processes to quickly resolve workplace issues

Stronger rights for casuals to convert to permanent employment

Strong rights around roster changes and the right to consultation

Ability for part-time workers to increase contract hours

[15] The Deputy President recorded, at paragraph [32], that the employers submitted that the 'facial' majorities disclosed by the SDA's petitions were insufficient to demonstrate majority support and that there was no proposed 'agreement' of the requisite kind in respect of which the majority of employees could be said to want to bargain. In summary, the employers contended that the Commission could not be satisfied that the employees appreciated the nature or consequences of pursuing a multi-employer agreement or that the employees wanted to bargain for 'the agreement' subject of the application given uncertainty about, and changes which had been made to, the proposed coverage of the multi-employer agreement pursued by the SDA.

[16] The Deputy President concluded, at paragraph [65], that when s 249(1B)(d) refers to 'the agreement' it must mean the agreement proposed by the applicant as there is, at the time, no actual agreement and no negotiations have even commenced. The Deputy President determined that it is not necessary for the "precise details" of the intended scope of a proposed agreement to be known to employees. In that respect, the Deputy President said:

[67] Despite this authority dealing with a different expression - proposed enterprise agreement and the different context, the above approach is at least instructive on the notion of what "the agreement" may mean when used in s.249(1B)(d) and the present context. There is of course no agreement and the (proposed) agreement in the present context must be as proposed by the SDA. It is the applicant and the initiator of the petitions and there is no actual agreement to bargain. In that regard I observe that the proposed agreement involved here is much earlier in the process and more conceptual than that which is operative in cases such as a protected action ballot order application where bargaining for a proposed agreement must already be underway with a more detailed notion of who might be covered and what terms it might provide. Further, although I would certainly accept that there must be some reasonable notion of who might be covered by the proposed agreement and that it is intended to be an enterprise agreement under the Act, it would not be consistent with the statutory scheme to assume a requirement for present purposes that the employees must be aware of all of the precise details of the intended scope or its terms for their apparent wish to bargain for that agreement to be probative.

[17] After setting out the course of events and the terms of the petitions relied upon by the SDA, the Deputy President concluded that there was a proposed agreement at the time the employees' endorsement was sought. The Deputy President said:

[76] Notwithstanding the above concerns, I consider that as least as far as the scope of the proposed agreement is concerned, the material before the Commission is consistent with the notion that there was a proposed agreement about which a majority of employees at each of the respondent employers were invited to support bargaining for. Further, I consider that there was sufficient indication given to the employees that what was proposed was an enterprise agreement that the SDA intended to negotiate with the relevant employers. That is, given the statutory scheme and the information provided, I consider that there was a proposed agreement at the relevant time and that the employees' endorsement on the petition was in relation to that agreement.

[18] The Deputy President was satisfied that there was sufficient probative material before the Commission to establish that the employees wanted to bargain for the proposed agreement. Most relevantly, the Deputy President said:

[82] As stated earlier, the employees were informed that what was being sought was a multiemployer single interest employer agreement. A broad but reasonable explanation of the bargaining process and context was also provided in the explainer. I do accept that the employees were not made aware of some of the potentially more detailed consequences of the election the employees were being requested to make. This includes that in the event of an SIEA agreement subsequently being proposed for approval by the employees, it would require the agreement of all relevant employers and the approval of all (registered) employee organisations involved (or a voting request order made by the Commission), and then only be approved in, and cover, employees at those employers where a majority vote endorsed it. Further, there are limitations on agreement-making options when a SIEA is made. I observe that there are different but nevertheless real implications for any form of agreement-making options under the FW Act and the assessment of the desire or otherwise of the employees to bargain must in that context.

[19] The Deputy President indicated, at paragraph [86], that he was, on balance, persuaded that the majority support requirement had been met in the case of each of the employers. The Deputy President said, at paragraph [90], that, given he was satisfied that all of the relevant requirements were met, he was obliged to issue an authorisation under s 249(1) of the FW Act. An authorisation was separately issued together with the Deputy President's decision.

[20] The employers require permission to appeal under s 604(1) of the FW Act. The Full Bench is required, by s 604(2), to grant permission to appeal if it considers it is in the public interest to do so. Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted. Grounds upon which permission to appeal might be granted have commonly included whether the decision is attended with sufficient doubt to warrant its reconsideration, whether substantial injustice may result if permission is refused and whether an arguable case of appealable error is demonstrated.[4]

[21] As we have indicated, we are satisfied that it is in the public interest for permission to appeal to be granted and, in any event, we would exercise our residual discretion to grant permission to appeal. The appeal raises some novel questions as to the operation of relatively new provisions of the FW Act dealing with the making of a single interest employer authorisation. Aspects of the operation of the single interest employer authorisation provisions have been considered by the Full Bench and the Full Court.[5] Nonetheless, the employers raise a new contention in relation to the 'majority support' requirement in s 249(1B)(d) of the FW Act. The matter is also of significance to the parties involved. It is in the public interest, and otherwise appropriate, for permission to appeal to be granted to permit the Full Bench to consider the issues raised.

[22] Appeals to the Full Bench under s 604(1) of the FW Act are appeals by way of rehearing.[6] The Full Bench can exercise its powers on appeal, under s 607, only if there is an error in the decision at first instance. The function of the Full Bench on appeal, if permission to appeal is granted, is to determine whether there was an error on the part of the primary decision-maker.[7] We are conscious that the role of the Full Bench is to determine whether there is error in the decision of the Deputy President.

[23] A further question arises as to the standard of appellate review applicable to the particular decision under consideration.[8] Under the correctness standard, the appellate bench determines for itself the correct outcome. In case of a discretionary decision, the approach in House v The King (1936) 55 CLR 499 dictates that appellate intervention is justified only where the decision-maker at first instance acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision, mistook the facts, failed to take into account some material consideration or made a decision that was unreasonable or plainly unjust.[9]

[24] The applicable standard of appellate review turns upon the nature of the decision subject of an appeal, including whether legal criterion to be applied tolerates a range of outcomes.[10] The question posed by s 249(1)(b)(iv) and 249(1B)(d), in combination, is whether the member of the Commission is satisfied that a majority of the employers who are employed by an employer who will be covered by the agreement want to bargain for the agreement. The question is ultimately a factual one. That is, the question is whether a majority of the employees subjectively desire that bargaining occur for the proposed agreement to which the single interest authorisation relates.

[25] However, it is plain that the FW Act intends to confer significant discretion on the Commission as to how it goes about answering the question. Satisfaction of the requirement turns not upon whether the employees actually want to bargain for the agreement but whether a member of the Commission is satisfied of that matter.[11] Furthermore, s 249(1C) provides that the Commission 'may work out whether a majority of employees want to bargain using any method the FWC considers appropriate'. In those circumstances, we consider that demonstration of error by a member of the Commission reaching the state of satisfaction as to the matter referred to in s 249(1B)(d) requires error of the type identified in House v The King. The grounds of appeal advanced by the employers are correctly framed on that basis.

Ground 2 - Consequences of an authorisation being made

[26] The employers did not press ground 1. Ground 2 is that the Deputy President failed to resolve clearly articulated and centrally relevant submissions, and/or failed to have regard to a relevant consideration being that the employees were not informed of the consequences of the election they were being asked to make. In particular, it is submitted that the Deputy President failed to consider the submission that the employees were not informed that they were being asked to elect between mutually exclusive bargaining streams and that the consequences of the bargaining stream for which they were being asked to indicate support needed to be considered in the context of the employees otherwise having the opportunity to bargain for a single enterprise agreement.

[27] There is no dispute that a failure on the part of a decision-maker to address a 'submission centrally relevant to the decision being made' can give rise to appealable error and, indeed, jurisdictional error.[12] As to whether an error of that type has been demonstrated, the SDA referred to the following passage from the Full Court decision in Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178:[13]

First, it is not necessary for those making a decision to refer to "every piece of evidence and every contention" made by a party: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ; _Reece v Web_ber [2011] FCAFC 33; (2011) 192 FCR 254 at [67] per Jacobson, Flick and Reeves JJ. Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ), more may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners: Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277; 226 IR 214 at [57] per Marshall, North and Flick JJ. But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made. A failure to address a submission which is "significant" and which touches upon the "core duty" being discharged (Fox v Australian Industrial Relations Commission [2007] FCAFC 150; (2007) 161 FCR 263; 166 IR 85 at [39] per Marshall, Tracey and Buchanan JJ) or which is "centrally relevant" to the decision being made (WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21] per Lee, Carr and Tamberlin JJ; Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277; 226 IR 214 at [55]- [56]) may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error.

[28] The Full Bench recently made some general observations about the approach to be adopted in dealing with a submission of this type in Shop, Distributive and Allied Employees' Association v Lokrum Pty Ltd trading as Grill'd Norwood [2025] FWCFB 125 as follows (footnotes omitted):[14]

It is appropriate to make some general observations about the obligation of the Commission to address submissions advanced to it in any reasons it provides. Some relevant principles are as follows:

(a) A failure on the part of a decision-maker to take into account a "submission centrally relevant to the decision being made" can give rise to appealable error and, indeed, jurisdictional error. Though the level of engagement and the degree of effort required by a decision-maker to consider a submission adequately will necessarily depend upon the length, clarity and degree of that submission, the standard expected is that a decision-maker will read, identify, understand and evaluate the submission, by bringing their mind to bear upon the argument that has been put forward.

(b) A failure to deal in published reasons with an issue raised by the evidence or the contentions advanced by a party, might give rise to an inference that it has been overlooked. However, it should not be lightly concluded that a decision-maker failed to take into account a matter raised before them. It "is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention". An inference that a matter has been overlooked should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

(c) Although the reasons of a decision-maker must articulate the essential grounds for reaching the decision and address material questions of fact and law in a manner which discloses the steps which lead to a particular result, "the reasons need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings". A decision-maker is not expected to set out every consideration which passes through the decision-maker's mind or to refer to "every piece of evidence and every contention" made by a party.

(d) The reasons of a decision-maker are to be read fairly and as a whole and not with an eye attuned to the detection of error. However, although the reasons of a decision-maker are to be read fairly, eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case.

(e) It is relevant when considering the reasons of a member of the Commission that the Commission is under an obligation, imposed by s 577 of the Act, to deal with the application in a manner that was "fair and just" and "quick, informal and avoid unnecessary technicality". The Commission has a statutory mandate to get to the heart of matters as directly and effectively as possible, particularly in the context of dealing with a matter concerning bargaining which is intended to be dealt with expeditiously.

[29] We will bear those observations in mind in considering the reasons of the Deputy President in the present case.

[30] In the proceedings at first instance, the employers submitted to the Deputy President that he should not be satisfied that a majority of the relevant employees wanted to bargain for the agreement (in part) because the employees were not appropriately informed as to the consequences of a single interest employer authorisation being made. That included that the employees would be locked out of pursuing other enterprise agreement streams for at least 12 months, each employer would be required to consent to put any resulting enterprise agreement to a vote, that additional employers could be added to the authorisations, that the SDA could organise protected industrial action in support of claims at other stores and the authorisation could result in an intractable bargaining declaration.[15]

[31] We do not accept the submission that the Deputy President failed to address or have regard to those submissions. The Deputy President recorded the submission made by the employers that the relevant employees were not properly informed of, and did not appreciate, the nature or consequences of the election they were being asked to make and the process they were being asked to indicate their support for at paragraph [50] of his decision. The Deputy President directly addressed the submission at paragraph [82]. The Deputy President acknowledged that the employees were not made aware of the 'more detailed consequences' of a single interest employer authorisation being made. The Deputy President expressly referred to the fact that a final agreement would require approval of each of the employers and that there were limitations on agreement-making options once an authorisation was made. The Deputy President nonetheless concluded, at paragraph [83], that the information provided was 'sufficiently revealing' and contained no material misrepresentations. The Deputy President stated that he was satisfied that 'the results of the petitions reflect the wishes of the employees to bargain for the agreement'. There was no failure on the part of the Deputy President to address the submissions advanced by the employers.

[32] There is a question as to whether s 249(1B)(d) involves, or requires, interrogation of the genuineness of employee support. As the Full Bench observed in Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd [2024] FWCFB 253; (2024) 334 IR 245 (Great Southern), in contrast to ss 186(2)(a) and 188, s 249(1B)(d) does not expressly require consideration of whether the support is 'genuine' or 'informed'. Like the Full Bench in Great Southern Energy, we accept that satisfaction of the requirement in s 249(1B)(d) might, in an appropriate case, at least require consideration at least of whether the support was falsely derived, induced by misrepresentation or the result of coercion or duress. The Full Court found no error in the approach of the Full Bench in that respect.[16] However, it is unnecessary to consider that matter further. Ground 2 contends only that the Deputy President failed to consider the submissions advanced by the employers. The Deputy President did not fail to do so.

[33] Ground 2 is rejected.

Grounds 3, 4 and 5 - Identification of parties to the 'agreement'

[34] Grounds 3 and 5, in summary, contend that the Deputy President erred, in paragraph [76], in finding that 'there was a proposed agreement at the relevant time and ... the employees' endorsement on the petition was in relation to that agreement' and that, in doing so, the Deputy President misconstrued the requirements of s 249(1B)(d), specifically the meaning of the phrase 'the agreement'. Ground 4 is of a different nature. It contends that the Deputy President failed to resolve clearly articulated and centrally relevant submissions, and/or failed to have regard to relevant considerations being that the agreement proposed by the SDA at the time of the application for an authorisation was different from the agreement with which the petitions were concerned and that there cannot have been an 'agreement' of the kind contemplated by s 249(1B)(d) in the absence of the parties to the agreement having been identified. Despite the framing of ground 4, it is apparent from the oral submissions made on behalf of the employers that the contentions recorded in the ground were also relied upon as demonstrating that the Deputy President misconstrued s 249(1B)(d).

[35] In their written submissions, the employers summarised their contentions in relation to grounds 3, 4 and 5 in the following terms:

Grounds 3, 4 and 5 concern the construction of the phrase "the agreement" as that language is used in s 249(1B)(d). Specifically, the Appellants contend:

(a) there cannot have been a proposed agreement of the requisite kind in circumstances where there was no identifiable proposal as to who would be covered and/or who the parties to the agreement would be; and

(b) to the extent there was the requisite agreement, a material change in the proposed coverage meant that "the agreement" that the Deputy President determined the Employees wanted to bargain for was not "the agreement" that there was evidence of the Employees expressing their support for bargaining for.

[36] The employers emphasise that s 249(1B)(d) requires that the employees 'want to bargain for the agreement'. Central to the submissions of the employers is the assertion that there cannot be an 'agreement', or even a 'proposed agreement', without identification of the 'parties' to the agreement. The employers contend that unless the 'parties' to an agreement are identified at the time employee support is tested, the Commission cannot be satisfied that a majority of the employees want to bargain for 'the agreement'.

[37] The submission is, in one sense, inaptly framed. As the Full Court explained in Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152, an enterprise agreement is a 'statutory artefact' and not an agreement in the ordinary sense at all.[17] The legal efficacy of an enterprise agreement arises from the FW Act and not from contract. Provision is made for an enterprise agreement, once approved by the Commission, to cover and apply to employers, employees and employee organisations.[18] The FW Act does not, however, identify the employer, or any employee, as a 'party' to an enterprise agreement.[19] Nevertheless, we understand the employers' submission to be that at least the employers and employees proposed to be covered by the agreement specified in a single interest authorisation must be identified at the time employee support is sought.

[38] We accept that s 249(1B)(d) requires that the Commission be satisfied, at the time of determining whether it is required to make a single interest employer authorisation, that a majority of the employees want to bargain for 'the agreement' to which the authorisation relates. Section 249(1) provides that the Commission must make an authorisation 'in relation to a proposed enterprise agreement' if the requirements of the subsection are met, including s 249(1)(b)(iv) and (1B)(d) (where applicable). The reference to 'the agreement' in s 249(1B)(d) can only be understood to be a reference to the 'proposed enterprise agreement' referred to in the chapeau to s 249(1). That is the case because of the language of the provisions. Section 249(1)(b)(iv) and (1B)(d) when read together provide (in cases in which the requirement applies) that:

(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if ... (b) the FWC is satisfied that ... (iv) ... (1B)(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement ...

[39] The usual meaning of the definite article 'the' is to indicate to the reader that the person or thing that follows has been previously identified in the text.[20] It is plain that 'the agreement' referred to in s 249(1B)(d) for which the employees must want to bargain is the 'proposed agreement' to which the authorisation relates previously identified in s 249(1). That must also be the case because, obviously enough, there is no actual agreement at that time. An authorisation facilitates a process of bargaining directed at making an agreement.

[40] Section 250(1) then requires that an authorisation made 'in relation to a proposed enterprise agreement' must specify the employers and employees who 'will be covered by the agreement'. In that context, the inquiry required by s 249(1B)(d) must be directed at whether a majority of the relevant employees 'want to bargain' for that proposed agreement, namely, an agreement which covers the employers and employees specified in the authorisation. However, we do not accept the coverage of the proposed agreement which is ultimately specified in the authorisation must be determined at some earlier point in time or that the coverage must necessarily be conveyed to the employees with precision (or to any specific standard) at the time support is tested.

[41] A 'proposed agreement' does not have an immutable character such that any change to the proposed content or coverage of the agreement means there is a different 'proposed agreement'. Resolution of the inquiry required by s 249(1B)(d) is, at the end of the day, simply a question of whether the member of the Commission is satisfied on the material before them that a majority of the employees want to bargain for the proposed agreement in relation to which the authorisation is made. There is no fixed evidentiary threshold that must be met. It will frequently be open to a member of the Commission to be satisfied that a majority of employees want to bargain for an agreement notwithstanding that the proposed coverage is described to the employees in general terms or that there have been changes to the proposed coverage between the time employee support is sought and the authorisation is made. Whether that is so will depend on the circumstances of each case. The extent of any disconformity between the agreement described to employees when they are asked to express support for bargaining and the agreement later described by the application under s 248, is a matter the member determining the application can have regard to when assessing whether the requirement in s 249(1B)(d) is satisfied but disconformity, of itself, does not preclude the requirement being met.

[42] A number of considerations support this conclusion. First, the phrase 'proposed agreement' is not novel and is used elsewhere in the FW Act. It has generally been understood to encompass an imprecise and fluid proposal. The phrase appeared in the Workplace Relations Act 1996 (Cth) in ss 170MI and 170ML(2)(e) providing for initiating bargaining for a certified agreement and for protected industrial action to be taken for the purpose of 'supporting or advancing claims made in respect of the 'proposed agreement'. Those sections were considered by French J (as his Honour then was) in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; (2004) 138 IR 362 (Wesfarmers). His Honour concluded that the phrase 'proposed agreement' was 'used in a generic sense to describe the desired outcome which is "an agreement"' and did not demand specification of the terms and conditions sought or 'that there be in existence a draft of a certifiable agreement which has been prepared or is proposed'.[21]

[43] The explanatory memorandum to the Fair Work Bill 2009 (Cth) indicates that the concept of a 'proposed agreement' in the new legislation was intended to have the meaning given to the expression by French J in Wesfarmers. The explanatory memorandum stated that proposed agreement 'can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by FWA'.[22] In the context of s 437, the Full Bench has said that '[t]he content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act'.[23]

[44] More recently, in Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479 (Sydney Trains), Wheelahan J considered whether industrial action was not protected because the relevant protected action ballots had been conducted prior to a single interest employer authorisation being made. His Honour said:[24]

The starting point is that context and legislative history support a construction of the expression "proposed enterprise agreement' in a generic sense, as I have explained at [56]-[61] above. Consistently with the observations of French J in Wesfarmers, a proposed enterprise agreement may be no more than a formless conception.

[45] His Honour rejected the submission that to bargain for a proposed enterprise agreement 'is necessarily to bargain for a proposed enterprise agreement of a particular kind' and indicated that the true position is that the FW Act does not provide for mutually exclusive 'bargaining streams'.[25]

[46] We reject the assertion, in ground 5a, that the Deputy President erred in concluding that the meaning attaching to the phrase 'proposed agreement' in other contexts was instructive for the purposes of s 249(1B)(d). Although s 249 was introduced in its current form only in 2023, we do not consider that any different meaning is intended to be accorded to the expression 'proposed agreement' in that section. As the Deputy President observed, at paragraph [67], the proposed agreement in this context 'is much earlier in the process and more conceptual that that which is operative in cases such as a protected action ballot order application where bargaining for a proposed agreement must already be underway'. Section 249(1B)(d) requires that the Commission consider whether the majority of employees support bargaining for the outcome of having an agreement that covers the employers specified in the authorisation in the context that the content or scope of the proposed agreement need not yet be settled.

[47] Second, as the Full Bench observed in Great Southern, the legislation directly contemplates a change in the scope of the employers to be covered without undermining the consent of the employees to the bargaining process involving the remaining employers.[26] An application for a single interest employer authorisation is required, by s 248(2)(a) and (b), to specify the employers and employees to be covered by the proposed agreement. No provision of the FW Act necessarily requires that the proposal be articulated with specificity at any particular point prior to the application being made in order to satisfy the majority support requirement. Sections 250(2) and (3) then permit the Commission to make a single interest employer authorisation that does not specify some of the employers specified in the application for an authorisation in various circumstances. After an authorisation has been made, s 251 permits the authorisation to be varied to remove an employer's name or add new employers if the requirements of that section are met.

[48] In that context, it cannot have been intended that the identity of the employers and employees to be covered by the proposed agreement must be known with certainty at the time employees are asked to express support for bargaining for the proposed agreement. Section 249(1B)(d) should be not construed in that manner. It is a feature of the process through which an authorisation is made and determined that the employers specified in the authorisation may be different to those subject to the application or in relation to which a bargaining representative initially intends to bargain. In that respect we note that, in the appeal, counsel for the employers accepted that the fact that some employees specified in an application are not included in an authorisation does not necessarily prevent the majority support requirement being met.

[49] Third, the only question posed by s 249(1B)(d) is whether the member of the Commission is satisfied that a majority of the employees want to bargain for an agreement of the type described in the authorisation at the point when it is deciding whether to make the authorisation. The employers assert that the majority support requirement cannot have been satisfied because there was not an 'agreement' or 'proposed agreement' at the time employees were asked to indicate their support for bargaining by signing the petition. That is, in our opinion, to ask the wrong question. The FW Act does not, in terms, dictate that an 'agreement' or a 'proposed agreement' must exist in any particular form prior to being specified in the application for an authorisation. Section 249(1B)(d) simply requires the Commission to be satisfied that a majority of employees want to bargain for the agreement to which the authorisation relates on the evidence before it at the time of determining the application.

[50] The FW Act affords considerable latitude to the Commission in relation to forming the state of satisfaction required by s 249(1B)(d). In Ulan Coal Mines Pty Ltd and Others v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352, for example, the Full Court said:[27]

It is apparent from these provisions, as with s 249(1B)(d), that Parliament has left to the Commission to determine how it will be satisfied that the majority of employees want to bargain without the degree of prescription required in other parts of the Act. This is demonstrated by contrasting this provision with others in the Act. For example, s 186(2)(b)(i) requires that the "agreement has been genuinely agreed" and apparently noting the ambiguity of the expression "genuinely agreed" thereafter sets out at s 188B what is to be taken into account when determining whether an enterprise agreement has been genuinely agreed. Furthermore, a different approach was adopted in the drafting of s 216EB which specifically requires, in addition to being satisfied of the majority vote, that there are no other reasonable grounds for believing that a majority of the affected employees who cast a valid vote did not approve the variation.

[51] As we have observed, s 249(1C) permits the Commission to use any method it considers appropriate when evaluating whether the majority support requirement is met. In relation to the same words in s 237(3), the explanatory memorandum to the Fair Work Bill 2009 (Cth) said:[28]

It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition. A majority support determination comes into operation on the day on which it is made (subclause 237(4)).

[52] Where employees' support is sought by way of a vote or petition, the Commission is unlikely to be satisfied that a majority of employees want to bargain for an agreement of the type described in an application unless the employees have been provided with at least some information in relation to its proposed coverage. However, there is no minimum prescribed content as to the evidence which is necessary for an individual member to be satisfied that a majority of the employees want to bargain for the agreement. It may be that, in a particular case, a member of the Commission might not be satisfied that a majority of the employees want to bargain for the proposed agreement to which an authorisation relates because of the generality of the description its proposed coverage which is provided to employees when their support is tested, or because radical changes have been made to the coverage of a proposed agreement between when employee support is sought and the application for an authorisation is made. In another case, the Commission might be satisfied that the majority support requirement is met notwithstanding that changes have been made to the proposed coverage prior to the authorisation being made.

[53] The employers correctly observe that a similarly worded provision concerning majority support for single-enterprise agreements in s 237 does not include the term 'the agreement' in the phrase 'want to bargain for the agreement'. Without repeating the detail of our earlier conclusions, it does not follow that the additional words 'for the agreement' appearing in s 249(1B)(d) (but absent in s 237(2)(a)) mean that the proposed agreement must, in all cases, be described at an earlier point in time with the degree of particularity suggested by the employers. It is a matter for the individual member to determine, in each case, whether they are satisfied the employees want to bargain for the agreement proposed to be subject to the authorisation based on an assessment of the whole of the circumstances.

[54] For these reasons, we do not accept, as asserted in grounds 4b and 5, that the Deputy President misconstrued the expression 'the agreement' in s 249(1B)(d) by concluding that there was a proposed agreement the employees were asked to express support for in circumstances in which its precise coverage was not certain and the SDA reserved to itself a discretion to detail the job roles or classifications to be covered at a later time. The legislation does not demand that the coverage of a proposed agreement, in relation to which a single interest employer authorisation is sought, necessarily be articulated with any greater precision than it was to satisfy the majority support requirement.

[55] The submission of the employers that there was, in this case, not yet any developed concept of coverage at the time employees were asked to sign the petitions in this matter cannot be accepted. The petition requested that employees express support for bargaining for an agreement to cover their own employer and 'as many other employers operating "Chemist Warehouse" branded pharmacies that the Fair Work Commission considers appropriate' and the 'employees of those employers working at a Chemist Warehouse pharmacy'. The explainer document recorded that the agreement would cover 'workers at Chemist Warehouse branded pharmacy sites in South Australia and set your pay and conditions for a set period of time'. The nature of the intended coverage was explained.

[56] To the extent that the employers submitted that the names of the individual and corporate employers must be listed in a petition relied upon to demonstrate majority support, the submission is rejected. The submission seeks to erect a minimum evidentiary threshold or level of particularity which finds no support in the provisions of the legislation. Whether the majority support requirement is met is to be assessed based on the particular circumstances of each case. Furthermore, in the circumstances of this matter, simply listing the corporate entities and individual names of the other employers may have been less revealing as to the intended coverage of the proposed agreement than referring to 'other employers operating "Chemist Warehouse" branded pharmacies'. The approach which was adopted provided greater insight into the type of agreement that was contemplated.

[57] The employers emphasise that the petitions asked employees to confirm that they permitted the SDA 'to detail the coverage of the agreement, i.e. which job roles or classifications are covered, at the SDA's discretion'. The reservation of a discretion to the SDA to detail the coverage of the proposed agreement to particular job roles or classifications was relevant to whether the Deputy President could be satisfied that a majority of the employees wanted to bargain for the agreement set out in the application. The Deputy President considered that matter and did not believe it prevented the majority support requirement being met. There is no error in that conclusion. Indeed, the fact that employees expressed support for bargaining knowing that the SDA might define with more precision the jobs and classifications to be covered at a later time might be said to buttress the conclusion that employees wanted to bargain for the agreement to which the application related notwithstanding the changes ultimately made to its proposed coverage.

[58] Given the description provided in the petitions, it was open to the Deputy President to be satisfied, at paragraph [76], 'there was a proposed agreement about which a majority of employees at each of the respondent employers were invited to support bargaining for'. The fact that some aspects of the coverage were to be determined does not mean there was no 'proposed agreement'. The assertion to the contrary in grounds 3 and 4a cannot be accepted. In any event, and in a manner that provides an alternative basis upon which the Deputy President was entitled to be satisfied as to the requirement in s 249(1B)(d), it was open to him to be satisfied that the petitions were sufficient to demonstrate that a majority of the employees of the employers wanted to bargain for an agreement to cover six employers who answered the description of being 'employers operating "Chemist Warehouse" branded pharmacies'.

[59] We also do not accept that the changes that were made to the coverage of the proposed agreement, by excluding the classifications of 'Pharmacist in charge' and 'Pharmacist manager' and by specifying the names of the six employers, mean that it was not the same 'proposed agreement' at the time of the authorisation if the term 'proposed agreement' is understood in the appropriately broad manner. We do not consider that those changes mean that it was not open to the Deputy President to be satisfied the majority support requirement set out in s 249(1B)(d) was met in relation to the proposed agreement described in the application on the evidence before him for the reasons we have given above.

[60] Finally, to the extent that ground 4 contends that the Deputy President failed to resolve clearly articulated and centrally relevant submissions, and/or failed to have regard to relevant considerations, it must be rejected. The Deputy President recorded, at paragraph [52], the submission of the employers that the proposed agreement referred to in the application had to be the same agreement the employees want to bargain for and that, to make the assessment, it must be clear who precisely the agreement is proposed to cover. The Deputy President directly addressed those submissions at paragraphs [67]-[76]. There was no failure on the part of the Deputy President to address a submission advanced to him or have regard to a relevant consideration in the manner alleged.

[61] In our view, the Deputy President carefully considered the adequacy of the information provided to the employees, the clarity with which proposed coverage of the agreement was expressed and the removal of the classifications of 'Pharmacist in charge' and 'Pharmacist manager' when assessing whether he was satisfied that a majority of the employees wanted to bargain for an agreement of the nature specified in the authorisation. The Deputy President acknowledged that there were deficiencies in the information provided to employees but was nonetheless satisfied that the results of the petitions reflected the wishes of the employees to bargain for the agreement. We can detect no error in the Deputy President's decision.

[62] Grounds 3, 4 and 5 are rejected.

[63] For these reasons, permission to appeal should be granted but the appeal must be dismissed. No error has been established in the decision of the Deputy President.

[64] The Full Bench makes the following orders:

• (a) Permission to appeal is granted; and

• (b) The appeal is dismissed.

P Wheelahan KC and J McLean, of counsel, instructed by Herbert Smith Freehills Kramer for the appellants.

J McKenna, of counsel, instructed by A Amin for the SDA.

G Miller, Legal and Industrial Officer, for the Australian Council of Trade Unions.

Melbourne (in person and with remote appearances from Brisbane).

[1] Shop, Distributive and Allied Employees Association v Philip Colasante Pharmacies Pty Ltd & Pharmec Pty Ltd and Others [2025] FWC 2352 and Print PR790596.

[2] Fair Work Act 2009 (Cth), s 172(5).

[3] Fair Work Act 2009 (Cth), s 249(4).

[4] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[5] See, for example, Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd [2024] FWCFB 253; (2024) 334 IR 245; Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council [2024] FWCFB 444; (2024) 335 IR 110; Central Goldfields Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2025] FCAFC 59; (2025) 339 IR 436; Ulan Coal Mines Pty Ltd and Others v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352.

[6] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ).

[7] Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53], [55] (Gageler CJ, Gordon and Beech-Jones J) and [83] (Edelman J).

[8] Helensburgh Coal v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [54] (Gageler CJ, Gordon and Beech-Jones JJ) and [141] (Steward J).

[9] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); DP World Sydney Pty Ltd v Witherden [2025] FWCFB 133; (2025) 342 IR 253 at [16].

[10] See discussion in DP World Sydney Pty Ltd v Witherden [2025] FWCFB 133; (2025) 342 IR 253 at [19]- [30].

[11] See, in a different context, Mid West Port Authority v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCAFC 53; (2022) 289 FCR 88 at [44] (Mortimer, Banks-Smith and Colvin JJ).

[12] Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 at [55] (Marshall, North and Flick JJ).

[13] Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178 at [47] (Dowsett, Flick and Griffiths JJ).

[14] Shop, Distributive and Allied Employees' Association v Lokrum Pty Ltd trading as Grill'd Norwood [2025] FWCFB 125 at [26].

[15] Outline of submissions dated 11 August 2025, [10]; Outline of closing submissions dated 11 September 2025, [25]. Transcript, 11 September 2025, PN1726-1728.

[16] Ulan Coal Mines Pty Ltd and Others v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352 at [206]- [219] (Collier, Snaden and Raper JJ).

[17] Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [90] (Jessup, Tracey and Perram JJ).

[18] Fair Work Act 2009 (Cth), ss 52-53.

[19] Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [88] (Jessup, Tracey and Perram JJ).

[20] Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43; (2017) 249 FCR 154 at [31] (Jessup J).

[21] Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; (2004) 138 IR 362 at [57] and [59] (French J).

[22] Explanatory Memorandum to the Fair Work Bill 2009 (Cth), [643].

[23] Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia [2014] FWCFB 1317; (2014) 241 IR 35 at [42]. See also Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd [2014] FWCFB 2587; (2014) 242 IR 366 at [34] and Skilled Offshore Pty Ltd v Australian Manufacturing Workers' Union [2015] FWCFB 7399; (2015) 254 IR 133 at [27]- [28].

[24] Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479 at [83] (Wheelahan J).

[25] Sydney Trains v Australian Rail, Tram and Bus Industry Union (Separate Question) [2024] FCA 1479 at [83] and [90] (Wheelahan J).

[26] Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd [2024] FWCFB 253; (2024) 334 IR 245 at [292].

[27] Ulan Coal Mines Pty Ltd and Others v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352 at [216] (Collier, Snaden and Raper JJ).

[28] Explanatory Memorandum to the Fair Work Bill 2009 (Cth), [979].

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