Grounds 3 to 6
68 These grounds concern the way in which the FWC treated the relative living standards and the needs of the low paid, which is a matter the FWC must take into account as part of the modern awards objective as specified in s 134(1)(a).
69 The high point of the applicants' case is the FWC's statement at [823] in relation to its consideration of the Hospitality Industry (General) Award (which is repeated elsewhere in the primary reasons in relation to the other awards) that:
The 'needs of the low paid' is a consideration which weighs against a reduction in Sunday penalty rates. But it needs to be borne in mind that the primary purpose of such penalty rates is to compensate employees for the disutility associated with working on Sundays rather than to address the needs of the low paid. The needs of the low paid are best addressed by the setting and adjustment of modern award minimum rates of pay (independent of penalty rates).
70 The applicants contend that, as a result, the FWC wrongly decided that it was not necessary to take into account the relative living standards and the needs of the low paid, wrongly decided that these matters were best addressed by the setting and adjustment of modern award minimum rates of pay, misconceived the limits and functions of the annual wage review under Div 3 of Pt 2-6 of the Fair Work Act, and failed to take into account the relative living standards and the needs of the low paid.
71 The first matter which must be appreciated is that the primary reasons themselves do not stand alone. The FWC gave other reasons for the making of the determinations including on 5 June 2017 in the further reasons. As noted, the determinations were made on 21 June 2017. The primary reasons given on 23 February 2017 cannot be read in isolation from the further reasons given on 5 June 2017, both of which (along with another set of reasons dealing with late night penalties) informed the making of the determinations on 21 June 2017.
72 The applicants contend that the primary reasons must stand or fall on their own, as they are the reasons for the decision to vary penalty rates and when it gave the further reasons the FWC knew that the applicants alleged that it had failed to consider the s 134(1)(a) matter and of a foreshadowed judicial review proceeding to quash the decision.
73 However, the function which the FWC was performing was the 4 yearly review, as a result of which the FWC had a power under s 156(2)(b), relevantly, to "make one or more determinations varying modern awards". The FWC did not make any determination on 23 February 2017 when it published its primary reasons. It is true that the reasons, on the title page, bear the title "DECISION". It is also true that at [53] of the primary reasons the FWC said:
We have decided that the existing Sunday penalty rates in 4 of the modern awards before us (the Hospitality, Fast Food, Retail and Pharmacy Awards) do not achieve the modern awards objective, as they do not provide a fair and relevant minimum safety net.
74 But it is equally true that the so-called decision on 23 February 2017 had no operative effect of any kind.
75 Relevantly, s 601 provided:
(1) The following decisions of the FWC must be in writing:
(a) a decision of the FWC made under a Part of this Act other than this Part;
(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;
(c) a decision in relation to an appeal or review.
(2) The FWC may give written reasons for any decision that it makes.
…
76 Section 601 draws a clear distinction between the "reasons" for a decision and the "decision" itself (Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 11; (2015) 230 FCR 565 at [35]-[36]). In commenting upon s 601 in Anglo American, Allsop CJ, North and O'Callaghan JJ observed at [30]:
… It is important to appreciate that by s 601, the Commission was not required to give written reasons, though under s 601(2) it may do so. Naturally, to the extent that reasons given display a misunderstanding of the statutory task, that may ground a conclusion of jurisdictional error. If, however, such reasons as are given do not completely explain the conclusion reached, jurisdictional error is not demonstrated by such inadequacy.
77 In its further reasons (also described as a "decision"), at [31], the FWC proceeded on the basis that its decision of 23 February 2017 was a decision under Pt 2-3 of the Fair Work Act and that it could not vary or revoke its decision having regard to the terms of s 603(3)(a). Section 603 provided that:
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
...
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2-3 (which deals with modern awards);
…
78 If the decision of 23 February 2017 was a decision within the meaning of s 603 (about which we received no submissions), it is nevertheless the case that the applicants' challenge is to the determinations. The primary and the further reasons are the reasons for the determinations. Accordingly, the principle that a decision-maker is bound by the reasons it gives for its decision applies, in the present case, to the operative exercises of power, which are the determinations. It is the primary reasons and the further reasons which explain the making of the determinations. It would be wrong to disregard the further reasons in these circumstances.
79 Nor can the applicants' submissions that what was put to the FWC after the primary reasons were published means that little weight can be given to the further reasons be accepted. The FWC had not exercised the relevant power to make any determination as at 5 June 2017. It sought further submissions, which were made and taken into account. The notion that the reasons reflecting this process are not entitled to any real weight is misconceived. The applicants' approach fails to appreciate that it is the determinations which are subject to challenge, not what the FWC described as its decision on 23 February 2017. That decision was a step along the way to the determinations but it had no operative effect in and of itself.
80 This said, how is [823] to be understood given that it is one paragraph amongst 2084 paragraphs in the primary reasons and another 281 in the further reasons?
81 First, considerable care must be exercised in seeking to discern error in but one paragraph of lengthy reasons for decision. Although error may be exposed in a single paragraph, it would be wrong for a reviewing court to construe that one paragraph in isolation and divorced from the much broader scope of consideration being undertaken by the decision-maker.
82 Second, the FWC knew it had to consider the s 134(1)(a) matter and made extensive findings about the impact of a reduction of penalty rates on the low paid including as follows in the primary reasons (citations omitted):
(1) at [84]: "A substantial proportion of award-reliant employees covered by these modern awards are low paid and the reductions in Sunday penalty rates we have determined are likely to reduce the earnings of those employees who currently work on Sundays";
(2) at [128]: "in giving effect to the modern awards objective the Commission is required to take into account the s.134 considerations, one of which is 'relative living standards and the needs of the low paid' (s.134(1)(a))";
(3) at [165]: "[s]ection 134(1)(a) requires that we take into account 'relative living standards and the needs of the low paid'. This consideration incorporates two related, but different, concepts…";
(4) at [173]: "[i]n the 2015-16 Annual Wage Review decision the Expert Panel also observed that increases in modern award minimum wages have a positive impact on the relative living standards of the low paid and on their capacity to meet their needs. It seems to us that the converse also applies, that is, the variation of a modern award which has the effect of reducing the earnings of low-paid employees will have a negative impact on their relative living standards and on their capacity to meet their needs";
(5) at [180]: "we also accept that the level of penalty rates in a modern award may impact upon an employee's remuneration and hence their capacity to engage in community life and the extent of their social participation. The broader notion of promoting social inclusion is a matter that can be appropriately taken into account in our consideration of the legislative requirement to 'provide a fair and relevant minimum safety net of terms and conditions' and to take into account 'the needs of the low paid' (s.134(1)(a))";
(6) at [817]: "[s]ection 134(1)(a) of the FW Act requires that we take into account 'relative living standards and the needs of the low paid'. A threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is 'low paid', within the meaning of s.134(1)(a). As shown in Chart 24 (see paragraph [735]) a substantial proportion of award-reliant employees covered by the Hospitality Award are 'low paid'";
(7) at [818]: "[a]s stated in the PC Final Report, a reduction in Sunday penalty rates will have an adverse impact on the earnings of those hospitality industry employees who usually work on a Sunday. It is likely to reduce the earnings of those employees, who are already low paid, and to have a negative effect on their relative living standards and on their capacity to meet their needs";
(8) at [823] as set out above at [69];
(9) at [1136]: "[i]n deciding to vary clause 34.2(a)(ii) in the manner set out above, we have taken into account the s.134 considerations and note that:
a substantial proportion of award-reliant employees covered by the Restaurant Award are low paid and the variation will reduce the earnings of those employees, but not to a significant extent. The variation will only apply to those employees who work between 6.00 am and 7.00 am and will only reduce their earnings for that hour of work (s.134(1)(a))";
(10) at [1356]: "[o]n the basis of the O'Brien Report and Chart 27 (see [738] above) we are satisfied that a substantial proportion of Fast Food industry employees are 'low paid'; are more likely to reside in a lower income households and are more likely to experience financial difficulties";
(11) at [1357]: "[a] reduction in Sunday penalty rates will have an adverse impact on those Fast Food industry employees who usually work on a Sunday. It is likely to reduce the earnings of those employees, who are already low paid and to have a negative effect on their relative living standards and on their capacity to meet their needs";
(12) at [1358]: "[w]hile s.134(1)(a) is a consideration against the reduction in Sunday penalty rates, it needs to be borne in mind that the primary purpose of such penalty rates is to compensate employees for the disutility associated with working on Sundays, it is not designed to address the needs of the low paid. As we have mentioned, the needs of the low paid are best addressed by the setting and adjustment of modern award minimum rates of pay (independent of penalty rates)";
(13) at [1656]: "[a]s shown in Chart 54 (see [1458]) a substantial proportion of award-reliant employees covered by the Retail Award are 'low paid'. Further, retail households face greater difficulties in raising emergency funds. This suggests that their financial resources are more limited than those of other industry households";
(14) at [1660]: "[t]he 'needs of the low paid' is a consideration which weighs against a reduction in Sunday penalty rates. But it needs to be borne in mind that the primary purpose of such penalty rates is to compensate employees for the disutility associated with working on Sundays rather than to address the needs of the low paid. The needs of the low paid are best addressed by the setting and adjustment of modern award minimum rates of pay (independent of penalty rates)";
(15) at [1826]: "[a]s shown in Chart 55 (see [1459]) a substantial proportion of award-reliant employees covered by the Pharmacy Award are 'low paid'…";
(16) at [1927]: "[a]s mentioned earlier, a substantial proportion of award-reliant employees covered by the Hospitality and Retail Awards are 'low paid'";
(17) at [1928]: "[t]he extent to which lower wages induce a greater demand for labour on public holidays (and hence more hours for low-paid employees) will somewhat ameliorate the reduction in income, albeit by working more hours. But it is improbable that, as a group, existing workers' hours would rise sufficiently to offset the income effects of the penalty rate reduction";
(18) at [1929]: "[t]he 'needs of the low paid' is a consideration which weighs against a reduction in public holiday penalty rates. However, the primary purpose of such penalty rates is to compensate employees for the disutility associated with working on public holidays rather than to address the needs of the low paid";
(19) at [1998]: "[a] substantial proportion of the employees covered by the modern awards which are the subject of these proceedings are 'low paid' (within the meaning of s.134(1)(a)). The award variations we propose to make are likely to reduce the earnings of those employees and have a negative effect on their relative living standards and on their capacity to meet their needs";
(20) at [2003]: "[a] substantial proportion of award-reliant employees covered by these modern awards are low paid and the reductions in Sunday penalty rates are likely to reduce the earnings of those employees who currently work on Sundays. As observed in the PC Final Report, the extent of the reduction in earnings depends on the …";
(21) at [2028]: "[a] substantial proportion of award-reliant employees covered by the Fast Food and Restaurant Awards are low paid and the variations to the late night penalty provisions will reduce the earnings of those employees, but not to a significant extent. The variations will only effect those Fast Food and Restaurant Award employees who work between 6.00 am and 7.00 am, and those Fast Food Award employees who work between 9.00 pm and 10.00 pm Further, the variations will only reduce the earnings of those employees for the hours worked between 9.00 pm and 10.00 pm, and between 6.00 am and 7.00 am"; and
(22) at [2040]: "[w]e have not reached a concluded view on the form of these transitional arrangements but have expressed the following provisional views:
(i)
…
The Productivity Commission suggests that a 12 month delay would allow the affected employees to 'review their circumstances' so that they 'can seek other jobs, increase their training and make other labour market adjustments'.
As we have mentioned, the employees affected by these changes are low paid and have limited financial resources. It is unlikely that they will be able to afford the costs associated with increasing their training.
…
(iii) The reductions in Sunday penalty rates should take place in a series of annual adjustments on 1 July each year (commencing 1 July 2017) to coincide with any increases in modern award minimum wages arising from Annual Wage Review decisions …".
83 These findings make it plain that the s 134(1)(a) considerations were brought into account. They weighed against a decision to reduce penalty rates but, on balance, did not prevail.
84 Third, the FWC at [2041], in respect of its provisional views about transitional arrangements as set out in [2040], said:
We seek submissions from interested parties in respect of the above provisional views. Further, as mentioned at [2019] it is unclear whether 'take home pay orders' are an available option to mitigate the impact of the reductions in Sunday penalty rates we propose. We would be assisted by submissions from interested parties in respect of this issue and, in particular, the Commonwealth (given that the issue raises a question as to the proper construction of the statutory framework).
85 Fourth, in its further reasons the FWC repeated its conclusion that a substantial proportion of employees covered by the awards are low paid and a reduction in penalty rates would likely reduce the earnings of some of these employees and have a negative effect on their relative living standards and capacity to meet their needs (at [9]).
86 The FWC noted at [10] that the submissions before it at the time of the primary reasons gave little attention to the implementation of any variations to penalty rates which is why it invited further submissions. The FWC considered the further submissions including one from United Voice to the effect that the reductions to penalty rates should not be implemented given that the FWC had found that a substantial proportion of employees covered by the awards are low paid and a reduction in penalty rates would likely reduce the earnings of some of these employees and have a negative effect on their relative living standards and capacity to meet their needs (at [16]). The FWC rejected the submission and the proposition that it had not taken into account the relative living standards and needs of the low paid as required by s 134(1)(a) (at [34]).
87 In so doing, the FWC identified those parts of its primary reasons which considered the s 134(1)(a) matter, some but not all of which are set out above. It said:
[34] The first proposition is that the Penalty Rates decision gave either no weight or insufficient weight to the impact on the affected employees of cutting penalty rates. In essence, it is said that the Full Bench failed to take into account the 'relative living standards and the needs of the low paid', as it was required to do by s.134(1)(a). In our view, there is no substance to this proposition.
[35] Chapter 3.2 of the Penalty Rates decision deals with the statutory framework and, relevantly, the Full Bench observes that:
• the modern awards objective applies to the Review (at [113]); and
• s.134(1)(a) requires that the Commission take into account 'relative living standards and the needs of the low paid' (at [165]).
[36] Further, the impact of the proposed reductions in penalty rates upon affected employees was expressly considered in the context of each of the relevant modern awards:
• the Hospitality Award
• United Voice's lay witness evidence: [784]-[815];
• s.134(1)(a): [817]-[824] and [886].
• the Fast Food Award
• the SDA called no lay witness evidence in respect of the impact upon employees of the proposed reduction in penalty rates;
• s.134(1)(a): [1356]-[1359].
• the Pharmacy Award
• SDA and APESMA lay witness evidence: [1815]-[1821];
• s.134(1)(a): [1826]-[1830].
• the Retail Award
• SDA lay witness evidence: [1623]-[1654];
• s.134(1)(a): [1656]-[1661].
88 At [37] the FWC said this:
In addition to the fact that s.134(1)(a) was expressly considered and taken into account, it needs to be borne in mind that the Act accords no particular primacy to any one of the s.134 considerations and, further, while the Commission must take into account the matters set out at s.134(1)(a)-(h), the relevant question is whether the modern award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions. In respect of the Hospitality, Fast Food, Retail and Pharmacy Awards, the Penalty Rates decision determined that the existing Sunday penalty rates did not achieve the modern awards objective, as they did not provide a fair and relevant minimum safety net.
89 The FWC continued in these terms:
[42] The third line of argument is that there are no transitional arrangements which could ameliorate the impact of the penalty rates reductions so as to prevent significant disadvantage to the employees affected.
[43] We accept that while the transitional arrangements determined in this decision will ameliorate the adverse impact of our decision upon the employees affected, it will not remove that impact and the implementation of the variations we propose (albeit over an extended time period) are still likely to reduce the earnings of the employees affected. The phased reductions in Sunday penalty rates that we intend to make will be implemented at the same time as the implementation of any increases arising from the Annual Wage Review decision. This will usually mean that the affected employees will receive an increase in their base hourly rate of pay at the same time as they are affected by a reduction in Sunday penalty rates. As such, the take home pay of the employees concerned may not reduce to the same extent as it otherwise would - but it is also important to acknowledge that they will receive a reduction in the earnings they would have received but for the implementation of the Penalty Rates decision. Accordingly, any Annual Wage Review increase cannot be said to ameliorate the impact of our decision. It is the phased implementation of the Sunday penalty rate cuts which provides a degree of amelioration.
[44] However, while we accept that the reductions we have determined will adversely impact employees, that is a matter that we have already considered and balanced in the Penalty Rates decision and it is not a basis upon which we would propose to 'set aside' or 'not implement' the Penalty Rates decision. Nor are we persuaded that the range of other considerations advanced in support of the general proposition provide a sufficiently cogent basis for adopting the course proposed. Each of these matters was considered in the Penalty Rates decision.
90 How are these aspects of the further reasons (particularly the observations made at [43] of the further reasons) to be understood given what is said in [823] (and elsewhere) in the primary reasons that "[t]he needs of the low paid are best addressed by the setting and adjustment of modern award minimum rates of pay (independent of penalty rates)"? It may be accepted that tension exists between the statements. But, in reasons which must be read together because the determinations were not made until 21 June 2017, and which were prepared some three months apart and extend over thousands of paragraphs, the existence of potential tension is not a cause for criticism, let alone a source of error. The inescapable fact is this - before it made the determinations the FWC was invited to and did reconsider its decisions as recorded in the primary reasons including on the basis that its approach meant that it had not taken into account the s 134(1)(a) matter. In so doing, it accepted that its decision to reduce penalty rates would negatively impact on the low paid in terms of their relative living standards and capacity to meet their needs. As explained at [43] it considered this negative impact would be ameliorated to some extent but not completely by transitional arrangements because the earnings of the affected employees would still be affected. It also accepted that any annual wage review cannot be said to have an ameliorative effect despite the fact that affected employees will likely receive an increase in their minimum rates of pay from an annual wage review at the same time that the reductions to penalty rates are implemented.
91 At one level, the FWC's ultimate overall analysis acknowledges that, contrary to [823] of the primary reasons, the needs of the low paid are not best addressed by the setting and adjustment of modern award minimum rates of pay. At another level, the analysis merely recognises that there is a relevant interaction between the extent of the impact its decision will involve when implemented and adjustments to minimum wages. The recognition is accurate. Contrary to the applicants' submissions, [44] of the FWC's reasons does not indicate that the FWC, as at 23 February 2017, had decided to reduce penalty rates and, by reason of such, had closed its mind to any further consideration. Read as a whole and in context, [44] records the fact that the FWC had considered the issue of s 134(1)(a) again but saw no reason to alter the view it had reached in the primary reasons despite recognising that the adverse impacts a reduction of penalty rates would have on the relative living standards and needs of the low paid would not be fully ameliorated by the phased implementation.
92 In the face of this consideration, ground 3, which asserts that the FWC found that it was not necessary to take into account the relative living standards and needs of the low paid, cannot be sustained. The FWC appreciated at all times it was necessary to take that matter into account. It is also apparent that the FWC did not confine its consideration of the needs of the low paid; it also focused upon the relative living standards of the low paid as required by s 134(1)(a).
93 The answer to ground 4, that the FWC erred by deciding that the needs of the low paid are best addressed by the setting and adjustment of modern award minimum rates of pay (independent of penalty rates), is that this proposition in [823] and elsewhere of the primary reasons cannot be read in isolation from the further reasons. When the reasons are read as a whole, as they must be, it is apparent that the FWC's analysis was more nuanced than [823], read alone, would suggest. When read as a whole, it is apparent that the FWC understood the negative effect that a reduction of penalty rates would impose on the relative living standards and needs of the low paid, considered that some part of that negative impact could be ameliorated by phasing the implementation to accord with wage rises, but accepted that, one way or another, reducing penalty rates necessarily reduced earnings of the affected employees. Once the whole of the FWC's analysis is considered, the submission that, by the statement at [823] and elsewhere in the primary reasons, it impermissibly delegated its function to the expert panel responsible for conducting an annual wage review, as provided for in s 285(1) of the Fair Work Act, is unsustainable. There is no meaningful analogy to a case such as Legal Services Commission v Turner [2012] VSC 394 in which a disciplinary body decided that the requirement of general deterrence was satisfied by other circumstances.
94 It must also be appreciated that the FWC had found that the purpose of weekend penalty rates was compensatory (at [143]-[160] of the primary reasons) and that the disutility associated with working on weekends "is much less than in times past" (for example, at [689] of the primary reasons). Those findings were also relevant to the application of the modern awards objective. In other words, the fact the FWC found negative impacts on the living standards and needs of the low paid from any reduction in penalty rates could not of itself dictate any particular outcome. Section 134(1)(a) was one relevant factor but, as discussed, there were other factors. The FWC was cognisant of this, having stated at [115] of the primary reasons and elsewhere (citations omitted):
The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
95 The fact that the FWC did not attempt to explain the relative weight it gave to the competing considerations in reaching its overall conclusions is immaterial. It is difficult to know how the FWC might meaningfully have done so given the nature of the decisions it was making and the broad scope of facts, matters and circumstances which fed into the conclusions (National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [109]). Nothing in the statutory scheme or otherwise required the FWC to attempt to explain the relative weight it gave to the competing considerations in reaching its overall conclusions. What is apparent is that the FWC found that the relevant considerations did not all point in the same direction. They pulled in different directions, which is to be expected given the nature of the task. Provided the relevant matters were considered, the attribution of weight was wholly a matter for the FWC. That the FWC may be taken from the determinations to have given more weight to matters other than the relative living standards and needs of the low paid does not mean the FWC abdicated its responsibility for considering those matters or failed to consider them. Ground 4 thus fails.
96 One answer to ground 5, that the FWC misunderstood the annual wage review under Div 3 of Pt 2-6 of the Fair Work Act, is that given the FWC's overall analysis, any such misunderstanding was immaterial. Another answer is that the further reasons, as discussed above, disclose no such misunderstanding. It is also relevant that the FWC in [823] of its primary reasons did not refer to the annual wage review under Div 3 of Pt 2-6 (which, by s 617(1), is to be conducted "by an Expert Panel constituted for the purposes of the review"). It referred more generally to "setting and adjustment of modern award minimum rates of pay" which can occur through an annual wage review, a 4 yearly review under s 156, or at any time under s 157. It cannot be gainsaid that the FWC's finding at [43] of the further reasons, that the adverse impacts of any reduction of penalty rates on the low paid could be ameliorated to some extent by phased implementation matched to increases to wages arising from the annual wage review, was reasonably open. The applicants' attempt to rely only on [823] of the primary reasons in support of ground 5 should not be accepted.
97 For these reasons no analogy may be drawn with Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391. The FWC, having regard to the reasons as a whole, did not rely on a misunderstanding of the operation of the Fair Work Act as part of its decision-making process. To the contrary, the FWC correctly understood that its determinations would have adverse impacts on the low paid. It correctly understood that there was no way to completely ameliorate such impacts, but that phased implementation could provide some ameliorating effect. And the FWC nevertheless made the determinations. It did so not because it misunderstood the annual wage review but because taking into account the s 134(1)(a) matters it considered the variations necessary to ensure the awards, "together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions". Ground 5 thus fails.
98 Ground 6, for the same reasons, cannot succeed. The notion that the FWC did not take into account the s 134(1)(a) matter cannot be sustained. The argument appears to depend on the asserted impermissible abdication of the FWC's functions, rejected above. The FWC did not merely record the competing submissions about the issue or merely advert to or pay lip service to it. To discharge its function the FWC did not have to expressly attribute relative weight to any or every relevant fact, matter or circumstance. Its reasons disclose that it considered the s 134(1)(a) matter. The relative weight it gave to that matter, compared to other matters, was a matter for the FWC alone. For the reasons already given it is also apparent that the submission that the FWC failed to consider relative living standards is unpersuasive. This was part of its overall consideration as the discussion above discloses. The suggestion that the FWC did not genuinely engage with the s 134(1)(a) matter cannot survive a fair reading of the reasons as a whole.
99 To the extent that ground 6 was intended to give rise to a separate argument as to the adequacy of the reasons provided by the FWC, this argument is also rejected. Such an argument must necessarily start from the proposition that there is no generally applicable legislative mandate to the FWC that it must publish "reasons" for its decision (Fair Work Act, s 601). And, in the absence of any requirement to provide reasons, there is no statutory imperative for the FWC to set forth its "findings on material questions of fact and refer to the evidence or other material on which those findings were based" (s 25D of the Acts Interpretation Act (1901) (Cth)). This does not mean that the reasons, having been given, are immune from scrutiny. Reasons volunteered can be scrutinised by this Court to determine if they expose error (Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105; (2009) 179 FCR 323 at [51], Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [72]). However, the mere fact that the reasons do not completely explain the conclusion reached does not expose jurisdictional error (Anglo American at [30]). Even reasoning which is "almost entirely conclusory and does little to enlighten the reader at anything but the most general level" may not disclose error (Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 at [157] per Mortimer J, an appeal from which was dismissed in Sevdalis v Director of Professional Services Review [2017] FCAFC 9).
100 It is also pertinent in the present case to keep in mind the task which the FWC was performing, involving the application of a standard "fair and relevant minimum safety net" which, as discussed, necessarily involves broad questions of social and economic policy. In this context, the observations of Basten JA in Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52] are apt:
It has been said on more than one occasions, and in more than one context, that matters of evaluation and judgment are not readily explained in rational terms. Various imprecise and amorphous, but relevant, considerations may need to be weighed in the balance in determining where, across a range of possibilities, the appropriate result should be found. In the joint judgment in Ex parte Palme 216 CLR 212 at [40] Gleeson CJ, Gummow and Heydon JJ stated:
There are some issues for decision which are of such a nature that, as Kitto J put it [in Re Wolanski's Registered Design (1953) 88 CLR 278 at 281), with reference to statements by Lord Herschell and Eve J:
[I]t is not to be expected that [the judge] will be able, at any rate satisfactorily to the litigants or to one of the litigants, to indicate in detail the grounds which have led him to the conclusion.
In a footnote to that passage, their Honours also referred to the passage in Dinsdale v The Queen (2000) 202 CLR 321 at [9] where Gleeson CJ and Hayne J noted that "the ground of appeal which was agitated before the Court of Criminal Appeal (manifest inadequacy) was a ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection". The purpose underlying the obligation to give reasons is in part the discipline of rationality, being the antithesis of arbitrariness, which follows from the exercise of justifying a conclusion, together with the transparency of decision-making, which permits the parties and the public to understand the result reached. However, this purpose must be given practical effect in particular circumstances.
101 Ground 6, accordingly, must also be rejected.