Teekay Shipping (Australia) Pty Ltd v Auld

Federal Court of Australia (Full Court)|2020-11-27|Before: Wigney JJ, Logan JJ

BACKGROUND 83 It is unnecessary for me to rehearse at length the background to this application or the relevant facts and circumstances that have given rise to it given the detailed discussion of those matters in the reasons of Rares and Logan JJ. It is, nevertheless, useful to summarise briefly the nature of the controversy between the parties and how it arose for consideration by this Court. 84 The issue raised by this application is whether the Full Bench of the Fair Work Commission erred in a jurisdictional sense in answering preliminary questions of law that it had been directed by the President of the Commission to answer pursuant to s 615 of the Fair Work Act 2009 (Cth). Those questions, in general terms, related to the operation of the model consultation term, which is a term that is, by operation of s 205(2) of the Act, taken to be a term of an enterprise agreement if that agreement does not include a consultation term that satisfies the requirements set out in ss 205(1) and (1A) of the Act. The terms of the model consultation term are set out in reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009 (Cth). 85 When the matter was first referred to the Full Bench for consideration, it was accepted or considered that the model consultation term was taken to be included in the enterprise agreement to which the applicant, Teekay Shipping (Australia) Pty Ltd, the respondents, who may conveniently be referred to as the employees, and the Maritime Union of Australia, were parties (the Enterprise Agreement). That was in large part because, when the Enterprise Agreement was approved by a Deputy President of the Commission, the Deputy President noted, pursuant to s 201(1)(ii) of the Act, that to be the case. 86 The question that the Full Bench was initially directed to answer was, in simple terms, whether the model consultation term, as taken to be in the Enterprise Agreement, operated in substitution of, or in conjunction with, another clause in the Enterprise Agreement, cl 9, which provided for consultation, but which to that point had been considered not to satisfy the requirements of ss 205(1) and (1A) of the Act. 87 When the Full Bench first addressed that question, it found that, contrary to what to that point had been considered to be the case, the model consultation term was not taken to be a term of the Enterprise Agreement: Auld v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047 (Auld v Teekay No 1). That was said to be because cl 9 of the Enterprise Agreement, when read together with another clause that was taken to be incorporated in the Enterprise Agreement, satisfied all the requirements in ss 205(1) and (1A) of the Act and s 205(2) of the Act therefore had no application: Auld v Teekay No 1 at [75]-[97]. That other clause was cl 8 of the Seagoing Industry Award 2010. Clause 5.3 of the Enterprise Agreement provided, in effect, that the terms of the Award were incorporated in the Enterprise Agreement, save for those that were inconsistent with an express term of the Enterprise Agreement. Critically, the Full Bench found that cl 8 of the Award was not inconsistent with cl 9 of the Enterprise Agreement. 88 Despite finding that the model consultation term was not taken to be a term of the Enterprise Agreement, the Full Bench nevertheless proceeded to consider the question which had been posed for it in the event that its finding was incorrect. It found, in effect, that if the model consultation term was taken to be a term of the Enterprise Agreement, it operated in conjunction with cl 9 of that agreement, not in substitution for it: Auld v Teekay No 1 at [46]-[73]. The essential basis of that finding was that, on its proper construction, s 205(2) of the Act did not render inoperative any existing term in an enterprise agreement dealing with consultation. It also found, in that context, that cl 8 of the Award operated as an incorporated term of the Enterprise Agreement subject to any inconsistency with any express provision in that agreement. It followed, in effect, that the model consultation term also operated in conjunction with cl 8 of the Award as incorporated in the Enterprise Agreement. 89 Teekay's initial attempt to challenge the Full Bench's findings in this Court was unsuccessful. That was because it was found that while the Full Bench, in Auld v Teekay No 1, had published reasons for a decision, it had not made a formal decision or order in respect of the question it had been directed to answer by the President of the Commission: Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 19. It was also noted that the Full Bench had addressed an additional or supplementary question, being the question whether the model consultation term was taken to be a term of the Enterprise Agreement, even though there had been no formal direction from the President to answer that question. The Court issued a constitutional writ of mandamus to the Commission requiring it to answer the question or questions it had been directed to answer. 90 The matter came back before the Full Bench. It issued a statement in which it appeared to maintain that it had already answered the "referral question", apparently missing the point that there had been no formal decision answering the question. The Full Bench also expressed a provisional view in respect of the question which was consistent with the reasons in Auld v Teekay No 1 and invited the parties to respond. The product of that exercise was that consent orders were in due course made on 5 March 2020. Those orders included both directions to the Full Bench by the President of the Commission pursuant to s 615 of the Act to answer two questions and the answers to those two questions. Thus the formalities previously absent were satisfied. 91 The first question was as follows: Is the effect of reading clauses [sic] 5.3 and clause 9 of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (Agreement), properly construed, and read together with clause 8 of the Seagoing Industry Award 2010 operating as an incorporated term of the Agreement, that the Agreement contains a consultation term that complies with s.205 of the FW Act so that s.205(2) is not engaged? (Question 1) (Emphasis in original.) 92 The answer given to that question was: Yes. For the reasons set out at [75]-[97] of the decision in Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047, the model consultation term is not taken to be a term of the Agreement. 93 The second question was as follows: Does the model consultation term, taken to be a term of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015, apply in substitution of, or in conjunction with, clause 9 of that agreement? (Question 2) (Emphasis in original.) 94 The answer given to that question was: If the answer to Question 1 were incorrect, then for the reasons set out at [46]-[73] of Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047, and further to the answer given at [74] thereof, the model consultation term taken to be a term of the Agreement applies in conjunction with clause 9 of the Agreement. Clause 8 of the Seagoing Industry Award 2010 operates as an incorporated term of the Agreement and has effect subject to any inconsistency with an express provision of the Agreement. 95 The issue for resolution by this Court is whether the Full Bench erred jurisdictionally in answering either or both of the two questions it had been directed to answer. In arriving at these answers, did the Full Bench misconstrue or misapply the relevant provisions in the Act, or err in its consideration of the relevant provisions in the Enterprise Agreement, in such a way that it can be concluded that it failed to exercise, or lawfully exercise, its jurisdiction under s 615 of the Act?

THE FIRST QUESTION: DID THE ENTERPRISE AGREEMENT INCLUDE A COMPLIANT CONSULTATION TERM? 96 As has already been outlined, the first question, in simple terms, is whether the Enterprise Agreement included a consultation term that satisfied the requirements in ss 205(1) and (1A) of the Act. It if did, s 205(2) of the Act did not apply and the model consultation term was not to be taken to be a term of the Enterprise Agreement. If it did not, the converse was the case and the model consultation term was to be taken to be a term of the agreement by force or operation of s 205(2) of the Act. 97 To constitute a consultation term for the purposes of the Act, a term in an enterprise agreement must satisfy three requirements. 98 First, the term must require the employer to consult the employees about two things: a "major workplace change that is likely to have a significant effect on the employees"; and a "change to [the employees'] regular roster or ordinary hours of work": ss 205(1)(a)(i) and (ii). 99 Second, the term must allow for the representation of the employees for the purpose of the consultation: s 205(1)(b). 100 Third, in respect of a change to the employees' regular roster or ordinary hours of work, the term must require the employer to do three things: first, provide information to the employees about the change; second, invite the employees to give their views about the impact of the change; and third, consider any views given by the employees about the impact of the change: s 205(1A). 101 In considering whether the Enterprise Agreement contained a term which satisfied those three requirements, it is first necessary to consider whether cl 9 of the Enterprise Agreement alone satisfies those three requirements. It appeared to be common ground before the Full Bench that cl 9 did not satisfy the three requirements. It was not common ground in this proceeding and thus needs to be addressed. If cl 9 does not satisfy the three requirements, it is then necessary to consider whether the incorporation of cl 8 of the Award creates a situation where there is a term that satisfies the three requirements. The critical issue in that regard is whether there is any inconsistency between cl 8 of the Award and cl 9 of the Enterprise Agreement.

Does cl 9 alone satisfy the three requirements in ss 205(1) and (1A)? 102 As has already been noted, it appeared to be common ground between the parties, when they were before the Full Bench, that there were two "obvious deficiencies" with cl 9 of the Enterprise Agreement: Auld v Teekay No 1 at [76]. The first deficiency was said to be that cl 9 did not allow for the representation of the affected employees for the purposes of the consultation. It only provided that Teekay was to discuss the changes with the employees and the Union. There was therefore no allowance for representation of affected employees who were not members of the Union and who may have wanted to be represented by someone other than the Union. 103 The second deficiency was said to be that cl 9 did not make provision for consultation in respect of a change to the employees' regular roster or ordinary hours of work. 104 On this application, the employees appeared to take issue, albeit fairly half-heartedly, with the Full Bench's finding that cl 9 did not make allowance for the representation of the affected employees. It argued, in short, that a consultation term that specifies a union as the employees' representative for the purposes of consultation may meet the requirements of s 205(1)(b) of the Act, at least where the relevant enterprise agreement contains other provisions which, when read as a whole, establish that the employees had agreed to a regime which gave the union a role in selecting or approving a consultation committee or consultation officers. 105 The employees placed considerable reliance on the decision, both at first instance and on appeal, in United Firefighters' Union of Australia v Country Fire Authority (2015) 228 FCR 497 (Full Court); (2014) 218 FCR 210 (first instance). The employees appeared to contend that the relevant provisions in the enterprise agreement in question in United Firefighters' - which were found, when read as a whole, to provide for employee representation for the purposes of consultation - were analogous or not materially distinguishable from the provisions in the Enterprise Agreement. The employees, however, did not provide any detailed analysis of the relevant provisions of the Enterprise Agreement which were said to make up for the apparent deficiency in cl 9. Nor did they advance any detailed submissions on this point. In those circumstances, this issue may be addressed in similarly brief and summary terms. 106 It may be accepted that in some cases the combined operation of numerous clauses in an enterprise agreement may satisfy the requirements of s 205 of the Act. That was the case in United Firefighters'. Each case, however, must be considered on its own facts. The extensive consultative regime in the enterprise agreement which was considered in United Firefighters' was materially different to the provisions in the Enterprise Agreement, which provided for the establishment of a Consultative Committee (cl 13), the Union's representation of the industrial interests of its members (cl 13) and a disputes settlement procedure (cl 16). It suffices to note one significant difference, being that the relevant clauses in the enterprise agreement in United Firefighters' included a clause (cl 14) which linked consultation about significant changes to the clause (cl 13) which established and provided for the operation of the consultative committee. There is no similar provision in the Enterprise Agreement. 107 The requirements of s 205 of the Act are not met by any of cll 11, 12, 13 or 14 of the Enterprise Agreement, read alone or in combination. While cl 11 establishes a consultative committee, there is nothing in the Enterprise Agreement which provides that the consultation required by cl 9 of the Enterprise Agreement and cl 8 of the Award, to the extent that cl 8 is incorporated, can or must take place through the consultative committee. Indeed, the purpose of the consultative committee as specified in cl 11.2 is quite narrow and says nothing about major workplace change. And while cl 12 provides that the Union has the "right to represent the industrial interests of its members", it does not follow that all employees, including those who were not members of the Union and those who may not have voted in favour of the Enterprise Agreement, had appointed the Union as their representative, including as their representative in any consultations for the purposes of cl 9. Clauses 13 and 14 also do not assist in any way. In short, the effect or operation of cll 11, 12, 13 and 14 of the Enterprise Agreement, considered alone or in combination, cannot make up for the fact that cl 9 provides only that Teekay discuss the proposed changes with the affected employees and the Union, and does not allow, expressly or impliedly, for the representation of non-Union employees in respect of any consultation. 108 An issue also arose at the hearing of this application in relation to whether it was correct for the Full Bench to conclude that cl 9 did not require Teekay to consult the employees about a change to their regular roster or ordinary hours of work. This issue was not raised before the Full Bench. It nevertheless needs to be considered because cl 9.1 specifies the relevant changes that, by reason of cl 9.2, must be discussed with the employees as including changes in "production, program, organisation, structure or technology that are likely to have significant effects" on employees. Clause 9.1 also provides that "significant effects" includes, amongst other things, "alteration of hours of work". It is perhaps arguable, therefore, that the combined effect of cl 9.1 and cl 9.2 is that Teekay was required to discuss with the employees any changes to their roster because a roster is a "program" and was also required to discuss changes to their hours of work because alteration of the hours of work is taken to be a "significant effect". 109 Upon close analysis, however, the combined operation of cll 9.1 and 9.2 could not be said to be to require consultation about any changes to the employees' regular roster or hours of work. There are at least two difficulties. 110 First, while cl 9.1 provides that "significant effects" includes "alteration of hours of work", it nevertheless does not follow that Teekay was required to consult the employees in respect of any changes to their hours of work. It was only required to consult in respect of changes to hours of work that resulted from changes in production, program, organisation, structure or technology. 111 Second, there is, in any event, no clear requirement in cll 9.1 and 9.2 for Teekay to consult the employees in respect of changes to their roster. Even if the word "program" was sufficiently broad to include "roster", Teekay was only required to consult in respect of changes in program that were likely to have significant effects on employees. Not all changes in roster could be said to have a significant effect on employees. 112 Third, and perhaps more significantly, even if cll 9.1 and 9.2 could somehow be read as requiring Teekay to consult the employees in relation to changes to their regular roster or ordinary hours of work, there is no provision in cl 9 which requires Teekay to invite the employees to give their views about the impact of the change as required by s 205(1A)(b). While cl 9.2 requires Teekay to discuss the changes with the employees and the Union, and provides that Teekay, the Union and the employees must act in "good faith in relation to the consultation and the procedure" provided in the clause, that does not necessarily comprise or constitute a requirement on the part of Teekay to invite the employees to give their views about the impact of the changes. 113 In all the circumstances, the Full Bench was correct to conclude that cl 9 alone did not satisfy all three requirements for a consultation term in ss 205(1) and (1A) of the Act.

The incorporation of cl 8 of the Award and its consistency with cl 9 of the Enterprise Agreement 114 The Full Bench found that cl 9 of the Enterprise Agreement and cl 8 of the Award, read together, would comply with the requirements in s 205 of the Act: Auld v Teekay No 1 at [80]. It was noted, in that context, that cl 8 provided for consultation in relation to a change to the employees' regular roster or ordinary hours of work. 115 The Full Bench also concluded that there was no direct inconsistency between cl 9 of the Enterprise Agreement and cl 8 of the Award and that it was possible to comply with both provisions: Auld v Teekay No 1 at [82]. The Full Bench noted, in that regard, that cl 8 of the Award did not take away any right conferred by cl 9 of the Enterprise Agreement and that cl 8 did not have the effect of altering, impairing or detracting from cl 9 of the Enterprise Agreement in a way that would create a burden that amounted to an inconsistency: Auld v Teekay No 1 at [83]. The Full Bench also reasoned that there was no basis to conclude that cl 9 evinced an intention to "cover the field" in respect of consultation, particularly because it had "nothing to say" about consultation in relation to changes to the employees' ordinary hours of work: Auld v Teekay No 1 at [86] and [87]. 116 Despite the Full Bench's reasoning and finding that there was no inconsistency between cl 9 of the Enterprise Agreement and cl 8 of the Award, it would not be unfair to say that the Full Bench did not really conduct or engage in any, or any detailed, analysis or consideration of exactly how cl 9 of the Enterprise Agreement and cl 8 of the Award could operate together if cl 8 of the Award was incorporated into the Enterprise Agreement. Was it nevertheless correct in concluding that the two clauses could operate together and cover all of the requirements for a consultation term in ss 205(1) and (1A) of the Act? 117 There is, at a superficial level, some scope or capacity for cl 9 of the Enterprise Agreement and cl 8 of the Award to operate together. That is essentially because, for the most part, the consultation obligations in the two clauses come into play at different stages of the overall decision-making process. 118 The consultation obligations in cl 9 of the Enterprise Agreement come into play at an early stage when Teekay is "likely to introduce changes" which are "likely to have significant effects" on employees. It is at that stage that Teekay is required to discuss the changes with the Union and the employees, though at that stage the changes are only "likely" changes. Clause 8 of the Award, however, operates at a much later stage: when Teekay has made a "definite decision to introduce major changes". It is, in those circumstances, at least conceivable that cl 9 of the Enterprise Agreement and cl 8 of the Award could operate together, even though the result would be that there would have to be consultation at two stages of the decision-making process: first at the "likely" stage and then, if it comes to it, at the stage where there has been a "definite decision". That is no doubt a somewhat cumbersome and unwieldy scenario, but it is not such that it could be said that it amounts to an inconsistency in and of itself. 119 Upon close analysis, however, there is a fundamental problem with the two clauses operating together. That problem is created by the operation of cl 9.3 of the Enterprise Agreement. That clause provides that where Teekay has complied with the notification and consultation "prerequisites" in cll 9.1 and 9.2 and the company nevertheless makes a decision to implement change with which the Union disagrees, the Union "shall" refer the "matter" to the Commission for "conciliation and/or arbitration". If, on the other hand, after the notification and discussion required by cll 9.1 and 9.2, the Union and the employees agree to the change, cl 9.4 provides that Teekay may then implement the change in accordance with that clause. There is, in those circumstances, no need or requirement for any further consultation. 120 The effect of the procedure mandated by cl 9.3 is that there is no scope for the operation of cl 8 of the Award in relation to consultation about definite decisions to introduce major changes with which the Union disagrees. Once such a decision is made, cl 9.3 effectively mandates that the Union refer the dispute concerning the decision to the Commission. There is nothing in cl 9.3 which would prevent the Union from referring the dispute to the Commission before engaging any further consultation, in accordance with cl 8 of the Award or otherwise, even if Teekay endeavoured to engage in that further consultation. The result, at the very least, is that employees who are not members of, or otherwise represented by, the Union are deprived of the benefits of any consultation which would otherwise be required by cl 8 of the Award. 121 The employees submitted that the operation of cl 9.3 of the Enterprise Agreement did not create any inconsistency with, or prevent the operation of, cl 8 of the Award. They submitted, in that regard, that even where Teekay makes a decision with which the Union agrees and that dispute is referred to the Commission pursuant to cl 9.3, there is still room for consultation pursuant to cl 8 after the decision is arbitrated. There is, however, no merit in that submission. The only matter that could be the subject of consultation after there has been an arbitration is the implementation of the decision reached at the arbitration. That does not constitute consultation about the decision. It is consultation about implementation. The fallacy in the employees' submission is also exposed by the terms of cl 9.4, which provides that "[w]here the change is determined by means of arbitration, the arbitrated Decision shall take effect no earlier than twenty one days from the date of the Decision…". There is no provision or scope for any consultation about the arbitrated decision itself. The only possible consultation would be about how the decision was to be implemented. Section 205 of the Act requires that there be a term that deals with consultation about the major workplace change itself, or a change to the employees' regular roster or ordinary hours of work, not just consultation about the implementation of that change. 122 It follows that there is a clear inconsistency between cl 9 of the Enterprise Agreement and cl 8 of the Award. They cannot operate together. By reason of cl 5.3(b) of the Enterprise Agreement, cl 9 is taken to prevail to the extent of the inconsistency. It follows that there is no scope for cl 8 to apply. That is a problem because it is only the consultation provided by cl 8 which complies with the requirements set out in ss 205(1) and (1A) of the Act. That is because only cl 8 provides for the representation of non-Union employees at the consultation. The end result is that, because cl 9 of the Enterprise Agreement prevails to the exclusion of cl 8 of the Award, there is no consultation term in the Enterprise Agreement within the meaning of s 205 of the Act. 123 It should also be added, for completeness, that there is another potential inconsistency between cl 9 of the Enterprise Agreement and cl 8 of the Award. As discussed earlier, cl 9 of the Enterprise Agreement does not directly provide for consultation in relation to the employees' regular roster or ordinary hours of work. It does, however, provide for consultation in relation to changes in, amongst other things, "program" that are likely to have significant effects. Significant effects are also defined as including "alteration of hours of work". For the reasons given earlier, cl 9 cannot, in any event, be construed as containing the minimum requirements in s 205(1A) of the Act. Nevertheless, if cl 9 of the Enterprise Agreement applied to some decisions concerning significant changes to rosters or hours of work, it would follow that it is potentially inconsistent with cl 8.2 of the Award. Both clauses would potentially apply to such decisions, yet they contain different provisions concerning the precise nature of the consultation required. That said, the main inconsistency and the main problem with the two clauses working together is the inconsistency and problem created by cl 9.3 of the Enterprise Agreement. 124 It follows that the Full Bench's answer to the first question it was directed to answer (quoted above at [91]-[92]) was wrong. It appeared to be common ground in this proceeding that if the Full Bench's answer to this question was wrong, that error amounted to a jurisdictional error. The employees did not appear to contend otherwise. It is, in any event, tolerably clear that the error amounted to a jurisdictional error. The "function or power" which the Full Bench had been directed to perform involved the answering of preliminary or threshold questions of law in the context of the Commission's exercise of jurisdiction under the Act in respect of unfair dismissal. The Commission's failure to consider properly whether cl 9 of the Enterprise Agreement and cl 8 of the Award could operate together so as to result in a consultation term that complied with s 205 of the Act was an error which went to the very heart of the exercise of its jurisdiction.

THE SECOND QUESTION: DOES THE MODEL CONSULTATION TERM APPLY IN SUBSTITUTION OF OR IN CONJUNCTION WITH CL 9 OF THE ENTERPRISE AGREEMENT? 125 The second question was based on the premise that the model consultation term is taken to be a term of the Enterprise Agreement because the Enterprise Agreement does not otherwise include a consultation term within the meaning of ss 205(1) and (1A) of the Act. As the preceding discussion reveals, that premise is correct and the Full Bench erred in concluding otherwise. The question, in those circumstances, is whether the inclusion or incorporation of the model consultation term had the effect of supplanting or displacing cl 9 of the Enterprise Agreement, or whether both the model consultation term and cl 9 could both operate in accordance with their terms. 126 As has already been noted, the Full Bench concluded that the model consultation term operates "in conjunction with" cl 9 of the Enterprise Agreement and, subject to any inconsistency with cl 9 of the Enterprise Agreement, cl 8 of the Award. The Full Bench found, in that regard, that the proper construction of s 205 of the Act is that, when an enterprise agreement contains a consultation term that does not comply with the requirements of ss 205(1) and (1A) of the Act, the model consultation term is, by operation of s 205(2) of the Act, taken to be a term of the agreement so as to rectify the "deficiency" or "fill the gap", while otherwise "preserv[ing]" the "whole of the subject matter of" the otherwise deficient clause: Auld v Teekay No 1 at [69]-[72]. 127 The Full Bench identified three features of the statutory scheme which it considered supported that construction of s 205 of the Act. First, it found that the scheme of the Act "discloses a purpose of preserving as much of the agreement as made while also protecting against encroaching upon" existing rights and protections: Auld v Teekay No 1 at [67]. Second, it noted that there is no provision in the Act which "renders any existing term of the agreement dealing with an individual flexibility arrangement or consultation of no effect": Auld v Teekay No 1 at [68]. Third, it observed that the Act does expressly provide that certain other types of clauses in an enterprise agreement are to have no effect: Auld v Teekay No 1 at [68]. It referred, in that regard, in particular to s 56 of the Act: Auld v Teekay No 1 at [69], [71]. 128 The Full Bench was right to approach the second question by construing s 205 of the Act. Its construction of s 205 was not, however, correct. 129 The modern approach to statutory construction is well-settled and well-known. It does not need to be discussed at length in this judgment. In short, "[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose" and that "[c]onsiderations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with its statutory purpose, that meaning must be rejected": SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [69]-[71]. 130 There are textual indications in s 205 of the Act which suggest that, where the model consultation term is taken to be a term of an enterprise agreement by operation of s 205(2) of the Act, it is to be the term in the agreement dealing with that subject-matter. Those textual indications are that the section uses language which indicates that there is to be only one term which deals with consultation. First, s 205(1) provides that an enterprise agreement must contain "a" term that satisfies the requirements set out in paragraphs (a) and (b). Second, s 205(1A) provides that "the" term must require the employer to do the things referred to in paragraphs (a), (b) and (c). Third, s 205(2) also provides for what is to occur if the enterprise agreement does not contain "a" consultation term. Of course, the requirement that there be "a" term that meets the requirements of ss 205(1) and (1A) of the Act does not mean that "the" term cannot be constituted or comprised of a number of separate provisions in an enterprise agreement that, read together and as a whole, satisfy those requirements. 131 The other textual feature of s 205 of the Act which is important to note in this context is that s 205(1) effectively defines the expression "consultation term" as meaning a term which satisfies the requirements of s 205(1) and, in the case of changes to the employees' regular roster or ordinary hours of work, the requirements in s 205(1A). It follows that a term which does not meet those requirements, such as cl 9 of the Enterprise Agreement, is not a "consultation term" for the purposes of the Act. 132 These textual features suggest that where the model consultation term is taken to be a term of an enterprise agreement, it is taken to be the consultation term and to supplant or displace any existing term that purports to deal with that subject-matter. The existing term, which must be deficient or defective if s 205(2) operates to make the model consultation term a term of the enterprise agreement, is not a "consultation term" as defined in s 205. 133 Some contextual considerations also support the above construction of s 205 of the Act. 134 The issue concerning the construction of s 205 that arises in this proceeding obviously does not arise where the relevant enterprise agreement does not contain any term that deals with consultation with employees. It only arises in cases, like this case, where the enterprise agreement contains a term that provides for consultation, but not in a way that meets the minimum requirements in ss 205(1) and (1A) of the Act; in other words, a deficient or defective consultation term. The incorporation of the model consultation term is plainly intended to overcome the deficiency or defect in the existing term of the enterprise agreement that purports to provide for consultation. It is difficult to conceive why the legislature would intend, in those circumstances, for the deficient or defective term to continue to operate in parallel with the model consultation term. 135 It is useful, in this context, to return to the wording of s 205(2), which provides that "[i]f an enterprise agreement does not include a consultation term … the model consultation term is taken to be a term of the agreement". As adverted to, a "consultation term" is a term that satisfies the requirements detailed in ss 205(1) and (1A). Read together, if an enterprise agreement does not contain a term (or, as mentioned, even multiple terms) that constitutes a consultation term for the purposes of s 205, the model consultation term is, in effect, automatically included in the agreement. That model consultation term must therefore do the work, or satisfy the requirements of, ss 205(1) and (1A) - otherwise, there would be no reason for inserting that model term. As such, it would be an odd - or, perhaps, illogical - result if that inserted model consultation term was to now ensure compliance with ss 205(1) and (1A) alongside some otherwise deficient or defective term or terms. 136 A construction of s 205 of the Act which effectively allows for the continued operation of a deficient or defective term which provides for consultation, despite the incorporation of the model consultation term, would give rise to considerable uncertainty. It would also potentially permit a situation to arise whereby there is a conflict between the operation of the existing term and the incorporated model consultation term. As will be discussed shortly, this is a case where such an inconsistency would arise. 137 The important point to note, in this context, is that there is no provision in the Act, including s 205, which expressly provides for what would occur in the event of such a conflict between the existing, but deficient or defective, consultation term, and the incorporated model consultation term. There is, for example, no provision in the Act that provides that in such a case the model consultation term prevails to the extent of any inconsistency. If it was intended that any existing, though deficient or defective, term providing for consultation would continue to operate, despite the incorporation of the model consultation term, it might reasonably be expected that the Act would include such a provision, either in s 205 or elsewhere. 138 It is hardly an answer to this to say, as did the Full Bench, that any "conflict between the two provisions [the existing deficient or defective term and the incorporated model consultation term] may be resolved through the usual means of interpreting agreements": Auld v Teekay No 1 at [74]. Given the evident legislative intent in the Act to provide for certainty in relation to the content of enterprise agreements, the better view is that s 205 should be construed in such a way as to avoid the potential for conflict in the first place. 139 It should also be noted, in this context, that the Full Bench made no attempt to analyse and determine whether the model consultation term, taken to be a term of the Enterprise Agreement, could in fact apply "in conjunction with" cl 9 of the Enterprise Agreement and cl 8 of the Award, to the extent that cl 8 operated. If the Full Bench had conducted that analysis, it would have ascertained that the two provisions in fact could not operate together. 140 The difficulty is again created by cl 9.3 of the Enterprise Agreement. As discussed earlier, that clause provides that if Teekay has complied with the notification and consultation "prerequisites" in cl 9.1 and cl 9.2, which apply when Teekay is "likely to introduce changes", and Teekay makes a decision to implement the change with which the Union disagrees, the Union "shall" refer the matter to the Commission for conciliation and/or arbitration. That procedure conflicts with the model consultation term, which applies where there has been a "definite decision" to introduce a major change. Once that point has been reached, there is no scope for any consultation in accordance with the model consultation term because if the Union disagrees with the decision, the dispute must be referred to the Commission. What, it may be asked rhetorically, would be the point in engaging in the consultation for which the model consultation term provides if, by the time there has been a definite decision, the "matter" has been referred to the Commission by operation of cl 9.3? 141 The Full Bench did not grapple with how the model consultation term could possibly operate in conjunction with cl 9 of the Enterprise Agreement. Nor did it grapple with the resolution of the conflict between those provisions. The better view is that s 205 of the Act should be construed in a way that there is no scope for any confusion or conflict between the existing, but deficient or defective, consultation term, and the model consultation term. 142 It should finally be noted that the contextual considerations which were relied on heavily by the Full Bench in construing s 205 of the Act are, upon close analysis, by no means compelling. It is true that neither s 205 nor any other provision in the Act expressly provides that any existing term of an enterprise agreement which deals with consultation has no effect once the model consultation term is taken to be part of the agreement. Nor, however, is there any provision in the Act which expressly provides that a deficient or defective term which deals with consultation continues to operate once the model consultation term is taken to be a term of the enterprise agreement. 143 It is equally true that the Act contains provisions, including ss 56 and 253, which provide that certain unlawful or impermissible terms in an enterprise agreement have no effect. It is not at all surprising that the Act specifically provides that certain sections that it defines as being unlawful or impermissible have no effect. Section 205 of the Act deals with an entirely different issue. It is not a section dealing with unlawful or impermissible terms. Quite to the contrary. It is a provision that an agreement must contain a term that deals with a particular issue (consultation), specifies the minimum requirements for that term and provides that if the agreement does not include a term that meets those requirements, the model consultation term is taken to be a term of the agreement. The fact that there is no similar provision to s 56 or s 253 in those circumstances is of little significance. 144 It may be accepted that the issue raised by this case in respect of the construction of s 205 of the Act is not entirely easy to resolve. The text of the provision does not squarely address the issue and there are contextual consideration that perhaps point both ways. The preferable construction, however, is the construction which avoids the uncertainty which would arise from the operation of parallel and potentially conflicting terms dealing with consultation. 145 It follows that the Full Bench erred in law in concluding (as quoted above at [93]-[94]) that s 205 of the Act operated in such a way as to permit the model consultation term, taken to be a term of the Enterprise Agreement, to operate in conjunction with cl 9 of the Enterprise Agreement and cl 8 of the Award, insofar as cl 8 operated. The Full Bench should have concluded that, once the model consultation term is taken to be part of the Enterprise Agreement, it effectively supplanted or displaced the otherwise deficient or defective clause or clauses that purported to provide for consultation. That error by the Full Bench was jurisdictional in nature. It involved an error in construing and applying s 205 in a way which materially affected the Full Bench's exercise of its jurisdiction.

CONCLUSION AND DISPOSITION 146 The Full Bench erred in the exercise of its jurisdiction in determining the questions referred to it by the President of the Commission. I agree with the orders proposed by Rares and Logan JJ. 147 In accordance with s 570 of the Act, there should be no order as to costs in respect of the proceeding in this Court. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Appendix 1 Model consultation term (1) This term applies if the employer: (a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or (b) proposes to introduce a change to the regular roster or ordinary hours of work of employees. Major change (2) For a major change referred to in paragraph (1)(a): (a) the employer must notify the relevant employees of the decision to introduce the major change; and (b) subclauses (3) to (9) apply. (3) The relevant employees may appoint a representative for the purposes of the procedures in this term. (4) If: (a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and (b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative. (5) As soon as practicable after making its decision, the employer must: (a) discuss with the relevant employees: (i) the introduction of the change; and (ii) the effect the change is likely to have on the employees; and (iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and (b) for the purposes of the discussion - provide, in writing, to the relevant employees: (i) all relevant information about the change including the nature of the change proposed; and (ii) information about the expected effects of the change on the employees; and (iii) any other matters likely to affect the employees. (6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees. (7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees. (8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply. (9) In this term, a major change is likely to have a significant effect on employees if it results in: (a) the termination of the employment of employees; or (b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or (c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or (d) the alteration of hours of work; or (e) the need to retrain employees; or (f) the need to relocate employees to another workplace; or (g) the restructuring of jobs. Change to regular roster or ordinary hours of work (10) For a change referred to in paragraph (1)(b): (a) the employer must notify the relevant employees of the proposed change; and (b) subclauses (11) to (15) apply. (11) The relevant employees may appoint a representative for the purposes of the procedures in this term. (12) If: (a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and (b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative. (13) As soon as practicable after proposing to introduce the change, the employer must: (a) discuss with the relevant employees the introduction of the change; and (b) for the purposes of the discussion - provide to the relevant employees: (i) all relevant information about the change, including the nature of the change; and (ii) information about what the employer reasonably believes will be the effects of the change on the employees; and (iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and (c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities). (14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees. (15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees. (16) In this term: relevant employees means the employees who may be affected by a change referred to in subclause (1).

Appendix 2 9. NOTIFICATION AND CONSULTATION ABOUT CHANGE 9.1 Company Duty to Notify Where the Company is likely to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, the Company undertakes to notify the Employees who may be affected by the proposed changes and the National Secretary and relevant Branch Secretary of the Union. Without limiting the generality thereof, significant effects Includes termination of employment, changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or relocation or transfer of Employees to other work or locations, the restructuring of jobs 9.2 Company Duty to Discuss Change The Company undertakes to discuss with the Employees affected and the Union in good faith, inter alia, the introduction of the changes referred to in Clause 9.1 and 9.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes. The discussion shall commence as early as practicable after the Company has determined it is likely to make the changes referred to in Clause 9.1 and 9.2. Prior to such discussion occurring, the Company undertakes to provide in writing to the Employees concerned and the Union, all relevant information, provided that the Company is not required to disclose confidential information, the disclosure of which would be contrary to the companies interest, about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees. The Company, Union and employees must act in good faith in relation to the consultation and the procedure provided within this Clause. 9.3 Dispute about Proposed Change Where the Company has compiled fully (sic) with the notification and consultation prerequisites provided herein and the Company makes a decision to implement change in the workplace and the Union disagrees with that decision, the Union shall refer the matter in dispute to Fair Work Australia for conciliation and/or arbitration In conformity with the dispute resolution procedure contained herein. Whilst the matter is being dealt with by Fair Work Australia, the work will continue under the conditions and arrangements that existed prior to the notification of change. 9.4 Implementation of Agreed Change Where the above notification and discussion has taken place and the Company has given careful genuine consideration of the views of Employees and when the Union and the employees have agreed to the change, the Company may implement the change and that change shall take place no earlier than fourteen days after the agreement is reached. Where the change is determined by means of arbitration, the arbitrated Decision shall take affect no earlier than twenty one days from the date of that Decision or no earlier than fourteen days from any Appeal Decision, whichever occurs last.

Appendix 3 8. Consultation [8 Consultation regarding major workplace change renamed and substituted by PR546288 ppc 01Jan14] 8.1 Consultation regarding major workplace change (a) Employer to notify (i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any. (ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locutions; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect. (b) Employer to discuss change (i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes. (ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a). (iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of die changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer's interests. 8.2 Consultation about changes to rosters or hours of work (a) Where an employer proposes to change an employee's regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change. (b) The employer must: (i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to (he employee's regular roster or ordinary hours of work and when that change is proposed to commence); (ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or earing responsibilities); and (iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives. (c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours, (d) These provisions arc to be read in conjunction with other award provisions concerning the .scheduling of work and notice requirements.

SCHEDULE OF PARTIES NSD 268 of 2020 Respondents Fourth Respondent BENJAMIN ROSS MANTHORPE Fifth Respondent BENJAMIN SIRASCH Sixth Respondent DAMON IAN MCNEILAGE Seventh Respondent GRAEME JOHN JENKINS Eighth Respondent JAMES MURRAY SCOTT Ninth Respondent JOHN CHARLES HARTLEY Tenth Respondent JOHN LIEBRAND Eleventh Respondent JOSEPH EDWARD BERTHELSEN Twelfth Respondent KEVIN DUNPHY Thirteenth Respondent MARK CHRISTOPHER O'BRIEN Fourteenth Respondent MICHAEL MANU PAUL Fifteenth Respondent NICHOLAS ANTHONY NASSARIS Sixteenth Respondent PAUL JAMES MEULEMAN Seventeenth Respondent PETER JINKS Eighteenth Respondent RICHARD ALESSANDRO D'ANDREA Nineteenth Respondent SEAN KELLEHER Twentieth Respondent SHANE ANTHONY RIGBY Twenty First Respondent WILLIAM ZISIS Twenty Second Respondent FAIR WORK COMMISSION

Fair Work Act 2009(Cth)ss 3, 55, 56, 171, 182(1), 186, 187, 201(1), 205, 205(1), 205(1A), 205(2), 253, 257, 394, 563, 570, 582, 615, 796(1)

Fair Work Regulations 2009(Cth)reg 2.09, sch

RARES AND LOGAN JJ: 1 On 19 October 2017 a deputy president of the Fair Work Commission approved, pursuant to ss 186 and 187 of the Fair Work Act 2009 (Cth), the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (the EA). In granting the approval the deputy president noted pursuant to s 201(1)(ii) of the Act that the model consultation term (MCT) prescribed pursuant to s 205(3) (in reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009) was taken to be a term of the EA by force of s 205(2) ([2017] FWCA 5411). The MCT is in appendix 1 to the Court's reasons. 2 The parties to the EA were the employer, Teekay Shipping (Australia) Pty Ltd, the Maritime Union of Australia and all "employees" (being defined as seagoing rating crew with the classification or capacity of chief integrated rating, integrated rating, chief cook, second cook, chief caterer, caterer or trainee) in relation to (i.e. were crew on) two ships, Lowlands Brilliance and Mariloula or a replacement ship (EA cl 5.1). Each of the first to twenty-first respondents was a rating (crew member) whom Teekay employed as part of the crew on Lowlands Brilliance and Mariloula. 3 EA cl 9 was headed "notification and consultation about change" and is in appendix 2 to the Court's reasons. It was common ground that EA cl 9 did not comply with the requirements in s 205 for a consultation term in two respects that we will explain below. 4 In accordance with s 257 of the Act, EA cl 5.3(a) incorporated by reference the terms of the Seagoing Industry Award 2010 as in operation immediately before the EA was made. EA cl 5.3(b) provided that, in the event of inconsistency between any terms of the Award and an express provision of the EA, the provision in the EA prevailed to the extent of the inconsistency. 5 Relevantly, award cl 8 was a consultation term within the meaning of s 205 and is in appendix 3 to the Court's reasons.

The Full Bench's decisions 24 On 2 September 2019, the Full Bench published a "decision" on the question that had been referred to the Full Bench: Auld v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047 (the first reasons). 25 The Full Bench construed Div 4 of Pt 2-4 of the Act, titled "Approval of enterprise agreements" which included ss 186 187 and s 201. They also had regard to the object of both the Act, in s 3, and of Pt 2-4, in s 171. They said that those sections, read in their context, did not preclude the Commission exercising its power to approve an enterprise agreement that did not contain one or both of a flexibility term or a consultation term. That followed from the deeming provisions in ss 202(4) and 205(2) that, if an enterprise agreement did not contain one or both of those terms, the model flexibility term and or the MCT were "taken to be a term of the agreement" (the first reasons [46]-[65]). The Full Bench considered that the scheme of the Act disclosed "a purpose of preserving as much of [an enterprise] agreement as made while also protecting against encroaching upon existing rights (the NES) or protections (unlawful terms)" ([67]). They said that, unlike the operation of ss 55 and 56, which rendered a term of an enterprise agreement inoperative to the extent that it contravened a national employment standard (NES), there was no provision invalidating a term of an enterprise agreement that did not satisfy s 205. They said that both a flexibility term and a consultation term were "in a category altogether different" from a statutory entitlement such as an NES ([72]). 26 The Full Bench reasoned that the deemed inclusion of a model term, by force of ss 202(4) or 205(2), in an enterprise agreement, did not prevent the continuing operation of whatever terms it already contained that dealt with the same subject-matter but failed to comply fully with the Act's requirements for a flexibility or consultation term (the first reasons [66]-[73]). They said at [73]-[74]): Consistent with the policy and evident purpose of the agreement making provisions of the Act, a non-compliant consultation term of an enterprise agreement need not be rendered as having no effect, because it does not offend against some other statutory entitlement or protection. Such a term can continue to operate, but the relevant model term that is taken to a term of the agreement and (sic) also operates. We therefore consider that the both textual and contextual considerations lead to a conclusion that s.205(2) of the Act does not have the effect of rendering inoperative an existing term in an agreement dealing with consultation. On the assumption that s.205(2) of the Act operated in this case, it follows that clause 9 of the Agreement together with the model consultation term operate as terms of the Agreement. Any conflict between the two provisions may be resolved through the usual means of interpreting agreements. 27 The Full Bench noted that there were two obvious deficiencies in EA cl 9 in respect of its failure to meet the requirements of s 205, namely that, first, it allowed representation only by the Union during consultation, when s 205(1) required a consultation term to allow for representation of employees without qualification and, secondly, it did not comply with s 205(1A) because it did not make any provision about a roster change (the first reasons [76]-[78]). They noted that the MCT, operating as a term of the EA, would cure those deficiencies but said (at [79]-[80]): However, as we earlier noted, clause 5.3 of the Agreement incorporates the Award as in operation just before the Agreement and provides that an express provision of the Agreement will prevail to the extent of any inconsistency between any term of the Award and an express provision of the Agreement. Clause 8 of the Award provides for consultation. Read together, clause 9 of the Agreement and clause 8 of the Award would comply with the content requirements in s.205. Clause 8 of the Award makes provision for both representation during consultation and consultation of employees about changes to rosters and ordinary hours of work. 28 The Full Bench said that there was no direct inconsistency between EA cl 9 and award cl 8. They stated that award cl 8 did not take away any rights that EA cl 9 conferred on Teekay or alter, impair or detract from EA cl 9 (the first reasons [82]-[86]). They said (at [87]-[88]): Moreover, even if it could be said that there is direct inconsistency between the terms of clause 9 of the Agreement and clause 8 of the Award dealing with consultation about major change having a significant effect, there can be no direct inconsistency between the provisions dealing with consultation about changes to regular rosters and ordinary working hours, a subject on which clause 9 of the Agreement is silent. At the very least, clause 9 of the Agreement does not prevail over those provisions in clause 8 which deal with representation and with consultation with employees about changes to rosters or ordinary working hours. Therefore, when clause 9 of the Agreement is read with clause 8 of the Award operating as incorporated term, the Agreement contains a consultation term which meets the description in s.205 of the Act. At the time that the Agreement was approved, s.205(2) of the Act did not operate upon the Agreement such that the model consultation term is taken to be a term of the Agreement. (emphasis added) 29 The Full Bench also discussed the legal effect of the notation that the deputy president made pursuant to s 201(1), when approving the EA, namely that the MCT was included in the EA. They concluded that the notation had no effect if, as they also found, that by reading EA cl 9 together with award cl 8, the EA did include a consultation term within the meaning of s 205 ([93]-[99]). Therefore, they reasoned, the MCT was not included in the EA (the first reasons [88]). 30 The first reasons did not record or set out the President's direction of 24 June 2019 or the agreed question, nor give any answer to it. Teekay sought relief in this Court in respect of the first reasons. As Logan, Wigney and Anderson JJ held on 11 February 2020 the "decision" did not identify any question that the Full Bench was considering or its decision on any such question. The Full Court issued a constitutional writ of mandamus requiring the Full Bench to answer by decision the question or questions that the President had posed for it: Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 19. 31 On 27 February 2020, the Full Bench published a "statement" in which it explained the circumstances in which the President had come to make the direction on 24 June 2019. The "statement" attached a document dated 25 June 2019, in which the parties recorded that they had agreed a question to be determined by the Full Bench. The Full Bench also gave its provisional views in the "statement" as to how that question should be answered, together with a second answer, premised on the assumption that the first answer were wrong: Teekay Shipping (Australia) Pty Ltd v Auld [2020] FWCFB 1074 (the second reasons). 32 The Full Bench explained that, initially, the unfair dismissal applications had been allocated to a commissioner to consider, as a preliminary matter, whether the ratings' dismissals were cases of genuine redundancy, including whether Teekay had complied with its obligations under s 389(1)(b). 33 The commissioner considered that because the question of whether the MCT displaced a non-compliant consultation term in an enterprise agreement was of general importance it should be referred to the President to allocate a Full Bench. 34 The Full Bench proposed answers were that, first, the agreed question did not arise because, based on [75]-[97] in the first reasons, the MCT was not taken to be a term of the EA and, secondly, based on [46]-[73] of the first reasons, the MCT applied in conjunction with EA cl 9 and award cl 8 also had effect "subject to any inconsistency with an express provision of the [EA]". The Full Bench said (the second reasons at [15]): However, we would observe that the answer we give to the referred question will not resolve the underlying controversy. It will merely identify the provision or provisions of the Agreement regulating an obligation to consult. 35 On 5 March 2020, the Full Bench made a consent order in which, first, the President directed the Full Bench to answer the two new questions under s 615 nunc pro tunc and, secondly, the Full Bench then gave those questions answers substantially as follows (Teekay Shipping (Australia) Pty Ltd v Auld [2020] PR 717279): Q1: Is the effect of reading EA cll 5.3 and 9 properly construed, and read together with award cl 8 operating as an incorporated term of the EA, that the EA contains a consultation term that complies with s 205 of the Act so that s 205(2) is not engaged? A1: Yes, for the reasons set out in [75]-[97] of the first reasons, the MCT is not taken to be a term of the EA. Q2: Does the MCT, taken to be a term of the EA, apply in substitution of, or in conjunction with, EA cl 9? A2: If A1 were incorrect, then for the reasons set out in [46]-[74] of the first reasons and in addition to the "answer" in [74], the MCT taken to be a term of the EA applies in conjunction with EA cl 9 and award cl 8 operates as an incorporated term of the EA having "effect subject to any inconsistency with an express provision of the [EA]". 36 The consent order noted that the referral to the Full Bench was otherwise concluded. 37 On 6 March 2020 Teekay filed an originating application in this Court seeking, first, constitutional writs to quash the orders containing answers to questions 1 and 2 in the consent orders, or prohibiting or restraining the Commission from giving those answers effect, and, secondly, declarations pursuant to s 563 of the Act, that the EA did not contain a consultation term that complied with s 205, the MCT was a term of the EA, and Teekay and the Commission had to apply the MCT to the exclusion of EA cl 9 in respect of Teekay's decision to make each of the ratings redundant. 38 Because the Full Bench was constituted with the President as a member, s 20(2) of the Federal Court of Australia Act 1976 (Cth), required a Full Court to hear the matter.

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