JESSUP J:
1 In this proceeding, the applicant, Shop, Distributive & Allied Employees Association, applies for writs of certiorari to quash two decisions of the Fair Work Commission ("the Commission") made under the Fair Work Act 2009 (Cth) ("the FW Act"), namely:
the decision made on 22 September 2015 by Bull DP to approve the ALDI Regency Park Agreement 2015 ("the agreement") pursuant to s 186 of the FW Act;
the decision made on 22 February 2016 by a Full Bench of the Commission to dismiss the applicant's appeal against the decision by Bull DP.
The respondents are ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) ("ALDI") and the Commission itself, which has filed a submitting appearance.
2 ALDI operates a chain of retail stores using a business model which was described by the Full Bench, lifting a passage from the reasons of Boulton J in an earlier decision (Re Aldi Foods Pty Ltd [2013] FWC 3495 at [22]), as follows:
On the evidence in the proceedings, ALDI has traditionally operated each of its regions as distinct undertakings. Each region has its own Managing Director and group of operational directors, and operates and reports as an independent profit centre. The only national function is the buying function, except in relation to fresh produce which is sourced locally by each region. ALDI's business development plan, applied internationally as well as in Australia, is to start with a distribution centre in an area and then to grow the number of stores serviced by that distribution centre.
3 In the period leading to the decisions which are challenged in this proceeding, ALDI was in the course of establishing a new region in South Australia, to be called the "Regency Park" region ("the region"). Construction of the distribution centre for the region was under way, but, according to a provision of the agreement to which the Full Bench referred, the only two stores which traded in the region were serviced by a distribution centre in an adjoining region.
4 In this state of things, ALDI canvassed its existing staff, employed in other regions, for expressions of interest in working in the region. From those who did express an interest, ALDI selected a number to whom offers of employment in the region were made, and those offers were accepted. Each of the resulting contracts, of which there were 17, contained the following introductory paragraph:
I am pleased to advise that Aldi Stores (a limited partnership) wishes to offer you ongoing employment as [position] in our new Regency Park region in South Australia, commencing when the new region opens. At this stage, we anticipate this will occur around October 2015, however you may be invited to commence in the new region earlier than this time, depending on the need to train new employees. You will continue to be employed until that date in your current region and will be covered by that region's enterprise agreement.
5 Subject to the applicant's arguments in this case, it was with these 17 employees that ALDI proceeded to make the agreement under Pt 2-4 of the FW Act. ALDI requested them to vote for the agreement under s 181(1), 16 of them cast a valid vote, and 15 of those were in favour. Application for the approval of the agreement by the Commission was made under 185(1), and the agreement was duly approved by Bull DP in the first of the decisions which the applicant now challenges. The applicant itself was not involved in this process. Subsequently, the applicant was given permission to appeal against the approval decision of Bull DP, but its appeal from that decision was dismissed by the Full Bench in the second of the decisions which it now challenges.
6 The applicant's jurisdictional challenges to these decisions are based on three grounds: first, that the agreement was not validly made under the FW Act, and could not be approved by the Commission, because it had not been made with employees employed at the time who would be covered by the agreement within the meaning of s 172(2)(a), secondly, that the Commission, at both levels, misapplied the provisions of the FW Act in being satisfied that the agreement passed the better off overall test for the purposes of s 186(2)(d), and thirdly, that the notice of employee representational rights given by ALDI under s 173 of the FW Act was not in the form prescribed by the regulations as required by s 174(1A)(c).
7 The applicant's first ground requires consideration of a number of provisions of the FW Act which relate to the making and approval of enterprise agreements.
8 Subsection (2) of s 172 of the FW Act deals with single-enterprise agreements which the relevant employer may make, either with employees (para (a)) or with one or more employee organisations (para (b)). It provides as follows:
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
By subs (4), an agreement made under para (b) of subs (2) is described as a "greenfields agreement".
9 Under s 180(2)(a) of the FW Act, the employer must take all reasonable steps to ensure, amongst other things, that "the employees … employed at the time who will be covered by the agreement" are given a copy of the agreement and certain other material.
10 By s 181(1) of the FW Act:
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
11 Section 182 of the FW Act sets out when an enterprise agreement is "made". The case of a single-enterprise, non-greenfields, agreement is covered by subs (1), which provides:
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
In what appears to be treated as the normal case, when a greenfields agreement is "made" is the subject of subs (3), as follows:
(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).
12 By s 186(1) of the FW Act, if an application to the Commission for approval of an enterprise agreement has been duly made, the Commission must approve the agreement if the requirements of ss 186 and 187 are met. One of those requirements is that stated in s 186(2)(a), namely:
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement - the agreement has been genuinely agreed to by the employees covered by the agreement; ….
13 What constitutes genuine agreement for the purposes of s 186(2)(a) is the subject of s 188, which provides as follows:
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
14 On 22 September 2015, Bull DP approved the agreement under s 186 of the FW Act. In his written decision to do so, the Deputy President made no reference to the issues that are now controversial. He was, of course, dealing with an uncontested application under s 185, and his attention had not been drawn to any such issues. He noted that "15 out of 17 employees voted to approve the agreement".
15 The point which now finds expression in the applicant's first ground in this court was put to the Full Bench as the proposition that the agreement should, and under the FW Act could only, have been made as a greenfields agreement on the basis that ALDI's operations in the region were to be a new enterprise within the meaning of s 172(2)(b) and that ALDI had not yet employed any of the relevant employees. In its decision of 22 February 2016, the Full Bench said that whether or not the agreement could, and should, have proceeded to approval as a greenfields agreement was not the issue. It said:
The Agreement was purported to be made as a single enterprise agreement with employees rather than a Greenfields agreement. The critical question is whether the criterion for a single enterprise employee agreement is satisfied - not whether an agreement could have been made as a Greenfields agreement with an employee organisation. The essential requirements are whether the employees who voted to approve the agreement are "employees who are employed at the time the agreement is made and who will be covered by the Agreement" (s 172(2)) and whether the employees who voted were "employees of the employer… that will be covered by the agreement" (s 182(1)). In our view the concepts are relevantly identical. Two elements are involved. The employees must be employed at the time the agreement is made and they must be covered by the agreement. Both elements involve questions of fact.
16 Following the approach which was understood to have been endorsed in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, the Full Bench said that that approach entailed two elements:
The first involves determining whether the persons are employees, while the second entails determining whether the employees will be covered by the agreement after it is made. Application of the agreement is not relevant.
17 The Full Bench expressed its conclusion as follows:
In the facts of this case we are of the view that the employees who accepted on-going employment in the Regency Park region were employed by ALDI at the time the agreement was made. Further, as their employment comprehended work within the scope of the Regency Park Agreement they were covered by the Agreement. It was legitimate and necessary for them to be included in the group of employees asked to approve the agreement. The resultant agreement was made under s 182(1). It was a single enterprise agreement available to be made under s 172(2)(a). The Agreement has been genuinely agreed to by the employees covered by the Agreement.
18 What the Full Bench meant by the "scope" of the agreement is apparent from the following passage early in its reasons:
The scope of the Agreement covers employees of ALDI in ALDI's Regency Park Region in South Australia (and parts of NSW and Victoria). Clause 5 of the Agreement contains the following explanation of its scope:
ALDI operates Regions based on a Distribution Centre and stores within that Region.
The Regency Park Region is defined as the Distribution Centre operated by ALDI in Gallipoli Drive Regency Park ("The Distribution Centre"), and all ALDI Stores which operate in South Australia and the Broken Hill City Council Local Government Area in New South Wales and the Rural City of Mildura Local Government Area in Victoria.
At the time of commencement of this Agreement, the Regency Park Region will include the stores listed in Schedule 5. This Agreement will apply to these stores and any new stores which open in the Regency Park Region as defined in this clause.
The Full Bench proceeded to identify two stores listed in Sched 5 to the agreement.
19 It was submitted on behalf of the applicant that the Full Bench was wrong in point of law in concluding that the agreement was capable of approval under Div 4 of Pt 2-4 of the FW Act. It was said that, at the relevant time, there were no employees covered by the agreement, since the agreement was referable only to the region, and those who were contracted to work there had not commenced to do so. Thus, at the point where the Commission considered the matter required by s 186(2)(a) - notionally by Bull DP and actually by the Full Bench - it was not open for it to be satisfied that there were any employees who "will be covered by the agreement" within the meaning of ss 172(2)(a), 181(1) and 182(1); and it was not, therefore, open for it to be satisfied that the agreement had been genuinely agreed to within the terms of s 188. The applicant's point was that the expression "will be covered by the agreement" referred to the state of affairs that would come into existence upon the giving of approval to the agreement - at which time, on the facts of the present case, there would still be no employees covered by the agreement - rather than to a state of affairs that might be expected to come into existence at some time in the future, such as when the presently-contracted employees later commenced work of the kind that would be regulated by the agreement.
20 In my view, this submission on behalf of the applicant skates over some rather important matters and distinctions. The question for the Commission was whether the agreement covered the 17 employees of ALDI who had contracted to work, but who had not commenced working, in the region. As the Full Bench recognised, the starting point must be s 53(1) of the FW Act, which provides that an enterprise agreement "covers" an employee "if the agreement is expressed to cover (however described) the employee …." In the present case, the agreement contained no provision which, in terms, expressed its "coverage". But that was not fatal, since s 53 contemplated that an agreement might do so in some way other than expressly.
21 That no-one other than existing employees who will be covered by the agreement are admitted to the voting process for the approval of an enterprise agreement is not a jurisdictional fact apropos the Commission's task under s 188 as read into s 186(2)(a). Rather, it is one of the matters given to the Commission itself to decide. It is not justiciable as such in this, or any other, court. The applicant accepts that, but contends that the Full Bench made an error of law on the face of the record or misapprehended its statutory task.
22 I do not think so. The very questions which the Full Bench identified as constituting its task - whether the persons are employees, and whether they will be covered by the agreement after it is made - are unobjectionable. They align closely with the applicant's argument in this court. They bespeak neither an error of law nor a misapprehension of the statutory task.
23 The real gravamen of the applicant's complaint, as it seems to me, is with the Full Bench's conclusion that, as the employment of the 17 persons "comprehended work within the scope of the Regency Park Agreement they were covered by the Agreement". Here the Commission has considered whether the presently-employed persons were covered by the agreement, which is exactly what the Commission must do under the statute. It has decided that they were, on the basis that their employment comprehended work within the scope of the agreement. If it was clear, on the record, that that approach departed from the statute, the applicant would have had a case. But it is not.
24 The requirements of s 53 are not terminologically prescriptive: they allow for the coverage of an agreement to be identified in ways other than by reference to an explicit statement of coverage in terms. In putting the matter this way the legislature has, in my view, shown a tolerance for the different, and at times idiosyncratic, formulae which employers and employees tend to use when articulating the bases of the agreements which they reach. To identify the "coverage" of an agreement made in such a legislative and institutional environment is, in my view, pre-eminently a matter for the specialised tribunal.
25 The Full Bench held that the 17 relevant employees were covered by the agreement - that is, were so covered from the point when the agreement was made within the meaning of s 182(1) of the FW Act. The case which the applicant sought to ventilate in this court involved taking issue with the correctness of that holding. That project went beyond demonstrating that the Full Bench had made an error of law on the face of the record or had misapprehended its statutory task, and is not open to the applicant in a proceeding of the present kind.
26 I would reject the applicant's first ground.
27 The applicant's second ground relates to the better off overall test. Here the key provision of the FW Act is s 193(1), which provides as follows:
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
On the facts of the present case, the "test time" was when the application for approval of the agreement by the Commission had been made under s 185 of the FW Act.
28 When the agreement was before Bull DP for approval, the Deputy President gave conventional consideration to the question whether it passed the better off overall test as required by s 186(2)(d) of the FW Act. He did have a concern about that matter, but accepted an undertaking from ALDI under s 190. He concluded:
Taking into account the substantially higher rates of pay under the Agreement in comparison to the Award, management employees and employees who would otherwise be covered by the Road Transport Award and Storage Award 2010 receive 5 weeks annual leave as opposed to 4 weeks under the Awards, and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall.
29 On appeal in the Commission, the Full Bench admitted further evidence, led by the applicant, pursuant to its power under s 607(2)(a) of the FW Act. It is now submitted on behalf of the applicant that it was apparent from all of the evidence before the Full Bench, including the newly admitted evidence, that, based on the rosters actually worked by the employees who voted to approve the agreement, 40% of them would not be better off, and some of them would be "significantly worse off", under the agreement than they would be under the relevant modern award.
30 In its decision of 22 February 2016, the Full Bench said:
[56] The SDA submits that the BOOT was not properly applied because rosters that were submitted as typical were not in operation at the relevant operations because they had not, at that time commenced. It submitted an analysis of entitlements which it submitted established that open ended provisions reserve a discretion in the employer that raise questions as to whether the agreement passes the BOOT.
[57] ALDI submits that the Agreement, as with other ALDI Agreements contains the following clause that it submits contains a mechanism for ensuring that it meets the BOOT:
The remuneration paid for each classification has been set to ensure employees are better off overall under this Agreement than under the relevant Modern Award which would otherwise apply. Where an Employee considers they are not better off overall under this Agreement than under the relevant Modern Award, they may request a comparison of the benefits received for a nominated period of time under this Agreement and the benefits which would otherwise be provided under the relevant Modern Award. Any shortfall in total remuneration which would otherwise be payable under the Modern Award will be paid to the Employee in the next pay period after the review is completed. If the Employee and ALDI cannot reach agreement on the remuneration which should be paid, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve the matter.
[58] This clause creates an enforceable right to payments to employees equal to or higher than those contained in the award. There is no limitation on its availability. The position is clearly distinguishable from the undertaking considered by a Full Bench in CEPU v Main People [[2015] FWCFB 4467]. In our view the Deputy President properly considered the BOOT and reached a decision based on a sound analysis. It has not been demonstrated that there is any appealable error in the decision under appeal. We dismiss this ground of appeal.
The provision of the agreement set out in para 57 of the Full Bench decision was cl 13.
31 It was submitted on behalf of the applicant that cl 13 could not cure a failure to pass the better off overall test. The relevant award required payment weekly or fortnightly: it did not require an employee "to raise questions about payment with his or her employer", or "to wait". By contrast, it was submitted, cl 13 provided for a process which relied upon "individual employees forming a view that they are not better off overall under the agreement than under the award and then bringing the matter to the attention of the employer and if necessary, the Commission." On the Full Bench's analysis, "any agreement which provided below award rates of pay could be saved by such a provision no matter how egregious the failure." The purpose of the better off overall test was to ensure that employees did not make bargains for terms and conditions below the safety net. A provision which sought to save such a bargain "by providing a process which at the very least affects the timeliness of the payment of wages" could not save an agreement that would otherwise fail the test. It was submitted that the Full Bench did not compare the agreement with the relevant award. Rather, it compared the award with the agreement "as it operated subject to the exercise of contingent rights."
32 Moreover, it was submitted on behalf of the applicant, even if an employee's rights under cl 13 were successfully exercised, he or she would not be better off, first because cl 13 required no more than that the "shortfall" be paid (ie resulting only in parity rather than a "better off" outcome), secondly because the exercise of rights under cl 13 would necessarily lead to a delay in payment, which is a detriment, and thirdly because entitlements under the agreement were dependent upon the employee taking action, whereas the award gave "an absolute entitlement."
33 Under Div 4 of Pt 2-4 of the FW Act, whether a proposed enterprise agreement passes the better off overall test is a matter for the satisfaction of the Commission, in the terms both of s 186(2) and of s 193(1). Absent jurisdictional error, that question cannot be re-litigated in a court. The test is hypothetical, the questions being whether each employee, and each "prospective award covered employee", would be better off overall if the agreement applied to him or her than if the relevant award did. These questions must be asked "as at the test time", that is, as at the time when the relevant application was made for the Commission's approval of the agreement concerned. But neither s 193(1) nor any other provision of the FW Act gives content to the phrase "better off overall". That is entirely a matter for the satisfaction of the Commission.
34 In the present case, the Full Bench had before it a contest on the question whether employees and prospective award covered employees would be better off overall under the agreement than they would be under the relevant award. The applicant's case involved detailed calculations as to the remuneration that certain individuals would receive under each alternative form of regulation. Whether the result of these calculations was such as would compromise a conclusion, otherwise available, that each employee and prospective award covered employee would be better off overall under the agreement was a matter for the Commission to decide.
35 The operation of cl 13 of the agreement was obviously a significant element in the Full Bench's reasoning under s 193(1), and it lay at the centre of the applicant's jurisdictional challenge in this court. Predominantly, that challenge was premised on a characterisation of the Full Bench's reasoning as involving two stages, first, whether, by reference to the substantive terms and conditions being compared, each employee and prospective award covered employee would be better off under the agreement, and if not, secondly, whether cl 13 "cured" that problem or "saved" the agreement. I would not accept that characterisation. The way the applicant seeks to put it does not reflect the Full Bench's reasoning. Rather, the presence of cl 13 in the agreement was taken into account in the Full Bench's assessment of the "overall" benefits and detriments that would result from each employee being covered by the agreement instead of the award. The Full Bench's reasoning involved a single intellectual process, not a two-stage one which involved the discovery of a problem and then consideration of the means to cure it as the applicant proposed.
36 It gets the applicant nowhere, in its case in this court, to point to respects in which an employee's rights under cl 13 would be inferior to the rights which he or she would have under the award. If that were the case, there is nothing to suggest that the Full Bench was not conscious of it and assigned an appropriate weighting to it in its application of the better off overall test.
37 I also reject the applicant's submission that the Full Bench's approach meant that any agreement which provided below award rates of pay could be saved by a provision such as cl 13, no matter how egregious the failure. Its reasons contained no such indication, and nothing to that effect was implicit. If there were a case in which the detriments likely to be experienced by employees covered by a proposed enterprise agreement, by comparison with the relevant award, were egregious, doubtless that circumstance would be placed on the scales for its appropriate contribution. The reasoning of the Full Bench in its decision of 22 February 2016 would not stand in the way of a conclusion in such a case that the agreement did not pass the better off overall test.
38 I would reject the applicant's second ground.
39 The applicant's third ground relates to the notice of employee representational rights for which s 173 of the FW Act provides. Such a notice was duly given in the circumstances of the present case, but it is now contended that the notice was not in the form prescribed by the regulations, as required by s 174(1A) of the FW Act.
40 Section 174(1A) provides as follows:
(1A) The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and
(c) be in the form prescribed by the regulations.
41 The Fair Work Regulations 2009 (Cth) require the use of the following form for the purposes of s 174(1A):
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low paid authorisation applies - include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union's status as your representative.
[If a low paid authorisation applies to the agreement - include:]
Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union's status as your representative, or you are a member of another union that also applied for the authorisation.
[If the employee is covered by an individual agreement-based transitional instrument - include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
• the nominal expiry date of your existing agreement has passed; or
• a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].
42 The notice provided by ALDI in the present case followed the prescribed form in terms, save that the final paragraph, under the heading, "Questions?", read as follows:
If you have any questions about this notice or about enterprise bargaining, please speak to either your leader, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission lnfoline on 1300 799 675.
The one respect in which this notice departed from the prescribed form was in the use of the word "leader" in place of the word "employer".
43 In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 242 IR 210, a Full Bench of the Commission held that compliance with the form prescribed for the purposes of s 174(1A) of the FW Act was mandatory, and that a failure to comply would invalidate the notice. In such a case, there would be no reference point for the operation of s 181(2) - which requires that the employer's request to employees to approve a proposed agreement not be made until at least 21 days after the s 173 notice - and the Commission could not, therefore, be satisfied of the matter specified in s 188(a)(ii), with the result that it could not be satisfied that the agreement was genuinely agreed to by the employees concerned for the purposes of s 186(2)(a).
44 In the applicant's submission, we should follow Peabody and hold that the agreement was not such as the Commission could approve under s 186 of the FW Act.
45 The difficulty with that submission is that it treats compliance with s 174(1A) as a jurisdictional fact apropos the approval of the putative enterprise agreement which follows from the bargaining process in question. That is not the case. As the Commission's reasoning in Peabody demonstrates, ultimately compliance with s 174(1A) is something of which the Commission must be satisfied. It is a matter left to the decision of the Commission itself. It is true, of course, that, if the Commission's decision on the matter in a particular case proceeded on a legally erroneous reading of the requirements of s 174(1A), that may open the way to an application of the kind that the applicant presently makes in other departments of this case. But that did not happen here, for the very reason that no-one submitted, either to Bull DP or to the Full Bench, that the requirements of s 174(1A) had not been complied with.
46 What appears to have happened is that, subsequently to the decision of the Full Bench, ALDI itself brought this minor terminological departure of the notice of employee representational rights which it was accustomed to use from the form prescribed in the regulations to the attention of the Commission, and sought to make the necessary correction in relation to a notice used in the setting of a different enterprise agreement altogether. Taking note of this development as it did, the applicant adopted the point as its third ground in this proceeding. It justifies its failure to raise the point before the Full Bench on the basis that, at the time, it was not aware of what it now says was a mistake in the terms used in ALDI's notice.
47 I would not accept that justification. The applicant sought, and was granted, the right to appeal from the decision of Bull DP, and proceeded to prosecute an appeal on grounds of its own choosing. It seems to have made productive use of such procedures as were available to require ALDI to produce documents to sustain those grounds. It did not challenge the notice of employee representational rights. That too was its own choice. The Commission having completed its statutory task, with the assistance of the applicant's contribution, it is now too late for the applicant to say that it has since uncovered (by whatever means) a new argument which it might have put, but which it did not put, to the Full Bench.
48 The remedies which the applicant seeks are discretionary ones. Whatever might be the strength of its third ground considered as a legal proposition in isolation, because it does not involve a jurisdictional fact, and in the light of the procedural history of the matter to which I have referred, I would, in the exercise of the court's discretion, decline to grant the relief sought insofar as this ground is relied on.
49 I would make one parting observation. Ex hypothesi, an employer which resorts to s 173 of the FW Act will, in the usual case, be a corporation. Read literally, the injunction in the form in the regulations that an employee who has any questions should "speak to … your employer" is a challenging one. If, as is contemplated, speaking is involved, one would imagine that the addressee would inevitably be a flesh and blood servant or agent. At least within reasonable bounds, for the employer to have nominated the individual to whom it intends that questions should be addressed would not, in my view, amount to a departure from the prescribed form, even if strict compliance were necessary. Had the Full Bench's attention been drawn to the issue which the applicant now seeks to agitate, it would not, therefore, have been in error, jurisdictionally, to have read s 174(1A) as permitting the reference to "leader" as used by ALDI on the facts of the present case.
50 I would reject the applicant's third ground.
51 It follows from what I have written that, insofar as the Application in this proceeding involves a jurisdictional challenge to the decision of the Full Bench, I would dismiss it. The result would be that the appeal from the decision of Bull DP remains validly dismissed.
52 Where would that leave the applicant's jurisdictional challenge to the decision of the Deputy President? Each of the first and second grounds related to the way in which the Full Bench had disposed of arguments that were put to it on appeal by the applicant. Since the applicant did not appear before Bull DP, and since neither of these grounds involved a jurisdictional fact, they could not sustain the challenge to his decision. And the basis upon which I would reject the third ground applies, of course, as much in relation to that decision as it does to the decision of the Full Bench.
53 I would dismiss the Application.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.