It is very, very rare for a decision of the Fair Work Commission to be capable of being reviewed by the civil courts. When it does occur, it can only be by the Federal Court (normally as a Full Court) or the High Court on appeal from the Federal Court. To be able to do so, it is necessary that an appellant be able to demonstrate to the superior tribunal that a jurisdictional error of law has been made by the Fair Work Commission, which under the Fair Work Act is the final decider of non-jurisdictional workplace issues.
The following extract from a recent decision of the Full Federal Court sets out the legal principles in play.
“Were the Deputy President’s errors jurisdictional?
- Not every error by a tribunal such as the FWC in the discharge of its functions is jurisdictional.
- A tribunal commits jurisdictional error if it misunderstands the nature of its jurisdiction, misconceives its duty, fails to apply itself to the question the statute requires it to address, or misunderstands the nature of the opinion which it is to form: Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission  HCA 47, (2000) 203 CLR 194 at ; Re Patterson;Ex parte Taylor  HCA 51, (2001) 207 CLR 391 at ; Graham v Minister for Immigration and Border Protection  HCA 33, (2017) 263 CLR 1 at .
- Reference may also be made to Craig v State of South Australia  HCA 58, (1995) 184 CLR 163 at 179 in which the High Court said:
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
- We consider, with respect, that the decision of Anderson DP is affected by misunderstandings of this kind. For the reasons already given, Anderson DP proceeded under the misapprehension that:
(a) he was required to interpret cl 1.2 in the 2016 Agreement rather than addressing the separate (albeit related) question of whether the clause contained ambiguity or uncertainty;
(b) he was required to determine the single correct meaning of cl 1.2; and
(c) he was required to do so by applying the principles developed in the authorities concerning the construction of enterprise agreements.
- Moreover, Anderson DP’s belief that the terms “ambiguity” and “uncertainty” did not have a different meaning meant that he misunderstood the jurisdiction he was exercising. It meant that Anderson DP did not ask himself the correct question. In contrast are those cases in which the Commission has asked itself the correct question and thereafter exercised an evaluative judgment in respect of the matter within its jurisdiction: cf One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union  FCAFC 77; (2018) 262 FCR 527 at ‑.
- We accept, however, that the third and fourth of the errors identified earlier in these reasons are not jurisdictional, being errors committed in the exercise of the FWC’s jurisdiction.
- Given our conclusion concerning the jurisdictional nature of the Deputy President’s errors, it is unnecessary to consider the alternative submission of Bianco that the decision of the Deputy President was illogical or irrational in the legal sense: Minister for Immigration and Citizenship v Li  HCA 18; (2013) 249 CLR 332 at ‑ (Hayne, Kiefel and Bell JJ) and at  (Gageler J). We note in any event that this was not one of the issues agreed by the parties as raised by Bianco’s application for this Court’s determination.
The decision of the Full Bench
- The Full Bench noted at  of its reasons that the first task of the Commission under s 217 is to:
… make an objective judgment as to whether properly construed the wording of a provision(s) is susceptible to more than one meaning – this requires the determination of a jurisdictional fact.
The Full Bench then noted that, if that question is answered in the affirmative, the Commission has a “discretion” with respect to the variation of the agreement to remove the ambiguity or uncertainty.
- The statement by the Full Bench in  indicates immediately its misconception of the task required under s 217. The FWC was not required to “properly construe” the 2016 Agreement before determining whether there was ambiguity or uncertainty. As already noted, a provision may be ambiguous or uncertain even though, by the application of techniques of construction, its true meaning can be ascertained.
- The Full Bench considered that the issue at the heart of the appeal was whether the Deputy President had been in error in concluding that he could not, in accordance with the Berri principles, have recourse to evidence of surrounding circumstances unless he had first found that there was ambiguity in cl 1.2 of the 2016 Agreement. This is evident in  and  of its reasons:
 At the heart of the appeal is whether the Deputy President was in error in concluding that he could not have recourse to evidence of surrounding circumstances unless he had first found that there was ambiguity in clause 1.2 of the 2016 Agreement.
 The purported controversy in this appeal however is whether the Deputy President was in error in concluding that he could not have recourse to evidence of surrounding circumstances unless he had first found that there was ambiguity in clause 1.2 of the 2016 Agreement. In our view, the Deputy President did not fall into such error.
(Emphasis in the original)
- On this issue, the Full Bench concluded:
 We see no error in the Deputy President’s findings, approach and conclusion.
 As noted in Berri, regard may be had to evidence of surrounding circumstances to assist in determining whether ambiguity exists. However it does not follow that regard must be had to evidence of surrounding circumstances. Recourse to surrounding circumstances in determining whether ambiguity exists depends on the circumstances of each particular case. Here the ordinary meaning of the words in the 2016 Agreement are plainly clear and therefore the Deputy President’s decision not to have recourse to evidence of surrounding circumstances, does not disclose error.
 Additionally, even if the 2016 Agreement can be construed to have a commercial purpose, such as in the interpretation of contracts, this is not a relevant consideration in this particular case where the ordinary meaning of the language does not disclose any ambiguity.
 Following Berri, the construction of an agreement begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. The task of interpreting an agreement does not involve rewriting the Agreement. The task is always one of interpreting the agreement produced. The common intention is to be identified objectively, that is by reference to that which a reasonable person would understand by the language expressed in the Agreement, without regard to the subjective intentions or expectations. Primacy must be given to the text and language of the Agreement, and this is what the Deputy President has done.
 Ambiguity does not simply arise because there are rival contentions advanced. Particularly in circumstances where a clause is said to have a plain meaning, evidence of surrounding circumstances will not be admitted to contradict the plain language of the agreement in any event. The term in clause 1.2 of the 2016 Agreement says what it means, and should not be strained by a narrow or pedantic approach to interpretation as it has been urged by the Appellant at first instance and now on appeal.
(Citations omitted and emphasis in the original)
Is the decision of the Full Bench affected by jurisdictional error?
- The resolution of this question requires regard to be had to the jurisdiction being exercised by the Full Bench.
- Section 604(1) of the FW Act entitles a person aggrieved by a decision of the FWC to appeal the decision, with the permission of the FWC. Section 607 contains provisions concerning the hearing of the appeal:
607 Process for appealing or reviewing decisions
(2) The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
(3) The FWC may do any of the following in relation to the appeal or review:
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.
- As already noted, the Full Bench granted Bianco permission to appeal.
- The appeal contemplated by ss 604 and 607 is an appeal by way of re‑hearing: Coal and Allied at . This meant, amongst other things, that it was necessary for Bianco to demonstrate error in the decision of Anderson DP: ibid at .
- The decision of the Full Bench is, with respect, affected by error. That is so for the reasons already mentioned and because it failed to recognise the errors of Anderson DP identified earlier in these reasons.
- While disputing that the Deputy President had made any error, the CFMMEU also contended that the error of the Full Bench identified in the parties’ statement of agreed issues was not jurisdictional. The parties’ identification of the issue concerning error by the Full Bench was as follows:
 Whether the Full Bench of the Fair Work Commission made a jurisdictional error in not finding error in Deputy President Anderson’s conclusion that he could not have recourse to evidence of surrounding circumstances unless he first found there was ambiguity in clause 1.2 of the 2016 Agreement based only on the language of the agreement.
- The CFMMEU submitted that ss 604 and 607 of the FW Act require the Full Bench, when it grants leave to appeal, to consider whether there was error in the decision at first instance. When the Full Bench discharges that task by applying conventional tests for the identification of appealable error and concludes that there was no error, any error in that conclusion is not jurisdictional. The CFMMEU submitted, accordingly, that even if the Full Bench had been wrong in the present case in failing to identify the errors in the Deputy President’s decision, that was an error within jurisdiction only, and not amenable to prerogative relief.
- Counsel for the CFMMEU referred to Coal and Allied in which, at ‑, the plurality held that an erroneous finding (if made) by the Full Bench of error by a Deputy President sitting at first instance was “an error within jurisdiction [and] not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the [WR] Act”. Section 45 was, in substance, a counterpart of ss 604 and 607 of the FW Act.
- The CFMMEU also referred to two other authorities. The first was the judgment of Buchanan J in Coal & Allied Mining Services Pty Ltd v Lawler  FCAFC 54; (2011) 192 FCR 78 in which Coal & Allied sought prerogative relief in respect of a decision of the Full Bench of Fair Work Australia (FWA) granting leave to appeal (and allowing the appeal) in respect of a termination of employment. Buchanan J held:
 A further point may, nevertheless, be made about this issue. Had any error been made by the Full Bench in its evaluation of those questions, it would not have been a jurisdictional error, but an error within jurisdiction.
 A distinction between jurisdictional and non-jurisdictional error remains an important one in Australia where the courts have not followed the approach taken in England in Anisminic Limited v Foreign Compensation Commission  2 AC 147 at 171 (see for example Re Heerey; Ex parte Heinrich (2001) 185 ALR 106 at –; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland (2001) 185 ALR 504 at ). The distinction was emphasised in Coal and Allied at . It is a distinction that has a long history of application to the work of federal industrial authorities. In R v Gray; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ said (at 371) that “[t]here is a well recognized distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other”.
 The principle also provides examples of applications for prerogative relief being refused at the order nisi stage. In Re Operative Plasterers Workers Federation of Australia; Ex parte Brown (1992) 67 ALJR 179 Gaudron J said, in relation to one such challenge against the AIRC (at 180):
It is not every error that will ground prerogative relief. So far as mandamus, which is sought in this case, is concerned, there must be an error amounting to a refusal to exercise jurisdiction. Such an error, it is well established, may be constituted by what is said to be a constructive failure to exercise jurisdiction, that is, a mistake of some kind, the effect of which is that the Commission has failed to do that which it is obliged to do, whether pursuant to constitutional requirement or pursuant to statute.
There is, of course, a clear distinction between an error of that kind and an error within jurisdiction where the tribunal concerned simply fails to apply some principle or to discharge some legal obligation which does not, however, affect jurisdiction as such. An example of an error of the latter kind would be one in which the tribunal failed to have regard to matters which should be taken into account in the exercise of a discretion.
 Similarly, in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 McHugh J dismissed an application for an extension of time in which to apply for an order nisi directed to the AIRC. His Honour observed (at ) that the High Court “should not burden the Federal Court [on remitter] with cases when, as a result of a recent decision of this Court, it is clear that they do not enjoy any prospects of success”. His Honour was referring to the decision in Coal and Allied. His Honour said (at –):
The Full Bench understood its role on appeal
 The Full Bench’s role in the applicant’s s 45 appeal was to ascertain whether or not Jones C had made an error in dismissing the applicant’s application under s 170CE. As Gleeson CJ, Gaudron and Hayne JJ noted in Coal and Allied, an appeal under s 45 “is properly described as an appeal by way of rehearing”, and the powers under s 45(7) “are exercisable only if there is error on the part of the primary decision-maker”. This is so “regardless of the different decisions that may be the subject of an appeal under s 45”.
 In my view, there can be no doubt that the Full Bench understood that its function was to ascertain whether or not Jones C had made a relevant error. The Full Bench considered the applicant’s grounds of appeal, and concluded that, in respect of each of them, Jones C did not relevantly err. If the Full Bench was wrong to reach this conclusion, then that was an error within jurisdiction.
 It follows, in my view, from the well established distinction between jurisdictional and non-jurisdictional error as it applies to the work of a statutory body such as FWA, that if the Full Bench was wrong in either of its conclusions, that would represent error within its jurisdiction.
(Emphasis in the original)
- Next, the CFMMEU referred to Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union  FCAFC 11; (2015) 230 FCR 565 in which prerogative relief was sought in respect of a decision of the Full Bench that a Deputy President had erred in finding that certain employees were eligible to vote for the approval of an enterprise agreement under s 186 of the FW Act. Buchanan J, with whom Katzmann J agreed, said:
 The Full Bench was exercising a supervisory role contemplated by the FW Act. It was entitled to form its own view of the requirements and operation of s 181 for the purpose of carrying out its own functions, even though its opinion would not be legally conclusive … More importantly, assessment by the Full Bench of whether the reasons of Deputy President Asbury constituted a sufficient foundation for her conclusions involved questions of judgment. In my view, it was open to the Full Bench in the performance of its own role on appeal to conclude, even incorrectly, that an adequate foundation for approval had not been established and to remit that question for further consideration. we can see no jurisdictional imperative requiring the Full Bench to take a different course or to dismiss the appeal.
 Despite my disagreement with the Full Bench’s analysis, therefore, we am not able to conclude, as Teys argued, that the Full Bench made a jurisdictional error in the performance of its own functions. If it made an error, then that was an error within jurisdiction in my view.
(Emphasis in the original and citation omitted)
- Reference may also be made to Toms v Harbour City Ferries Pty Ltd  FCAFC 35, (2015) 229 FCR 537 at ‑; Trustee for The MTGI Trust v Johnston  FCAFC 140 at ; and ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association  FCAFC 35, (2019) 367 ALR 195 at .
- The submission now made by the CFMMEU is indistinguishable from the submission which it made by way of a preliminary point in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union  FCAFC 223; (2018) 363 ALR 343 (AMMAI v CFMMEU), and which was unsuccessful – see ‑.
- In AMMAI v CFMMEU, the CFMMEU had submitted that prerogative relief was available only when the Full Bench misunderstood its appellate function and was not available in respect of misunderstandings by the Full Bench in the discharge of that appellate function. In support of that submission, the CFMMEU had relied upon Coal and Allied and Toms and, in addition, Re Commonwealth; Ex parte Marks  HCA 67; (2000) 177 ALR 491.
- In respect of the preliminary point, the Full Court (Allsop CJ, Griffiths and O’Callaghan JJ) said:
 None of those authorities supports the CFMMEU’s preliminary point which is to the effect that, for the Full Bench to fall into jurisdictional error, the relevant error had to relate in some way to a misunderstanding of the nature and scope of its appellate jurisdiction and not, for example, a misconstruction by the Full Bench of a relevant statutory provision in the performance of that appellate function. The CFMMEU’s contention is based on a narrow and selective reading of what the plurality said in Coal and Allied at  (the full terms of which are set out in  above). The emphasised words in that passage demonstrate that the Full Bench can commit jurisdictional error, not only if it misunderstands the nature and scope of its appellate role (which is now set out in s 604 of the FW Act), but also if it misunderstands (or misconstrues) the nature of an opinion which it has to form in discharging that appellate function. This is borne out by reference to the full statement of principle enunciated by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (footnotes omitted):
…I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test”: Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust; or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes”; The King v. War Pensions Entitlement Appeal Tribunal; or “to misunderstand the nature of the opinion which it is to form”: The King v. Connell, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education.
 The emphasised words in  of Coal and Allied are derived from what Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd  HCA 42; 69 CLR 407 at 432 (to which Jordan CJ also referred) (emphasis added):
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
 Toms does not assist the CFMMEU’s preliminary point. Reference was made in Toms at  to the “basic test” for jurisdictional error by an administrative tribunal being that stated by the High Court in Craig v South Australia  HCA 58; 184 CLR 163 (Craig) at 179. An administrative tribunal commits jurisdictional error when it “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question… and the tribunal’s exercise or purported exercise of power is thereby affected”. Nothing was said by Buchanan J in Toms with reference to Coal and Allied and the cases referred to therein which casts any doubt on the continuing relevance and authority of that basic test in Craig. It is inconsistent with the CFMMEU’s preliminary point.
 Applying those principles to the circumstances here, the relevant issue for the Full Bench was whether the Deputy President had misconstrued s 73(2)(c) in finding that, for the purposes of that provision, he was satisfied that there were no proceedings (other than civil proceedings) pending against any of the entities concerned in the proposed amalgamation. This required the Full Bench, in discharging its appellate function, to construe the meaning of the carve out expression in the provision in order to ensure that the requisite state of satisfaction (or opinion) was not based on a misconstruction of that provision. If the Full Bench’s decision to dismiss the appeal was predicated on a misconstruction of that provision, this would give rise to jurisdictional error. That is because the misconstruction would involve a misunderstanding of the nature of the opinion which it had to form, as referred to in the emphasised part of  of Coal and Allied.
(Bold emphasis in the original and italicised emphasis added)
- In our respectful opinion, that reasoning is apposite in the present case. Like the Full Bench in AMMAI v CFMMEU, we consider that the CFMMEU’s contention is based on a narrow and selective reading of the plurality’s reasoning in  of Coal & Allied. Amongst other things, the submission overlooked that in Coal & Allied the error imputed to the Deputy President at first instance concerned an evaluative decision made in the discharge of the task of FWA which was properly understood by the Deputy President. That is very different from a case like the present in which both the Deputy President and the Full Bench misunderstood the nature of the FWC’s jurisdiction under s 217 and therefore the very task required of the FWC.
- It is, with respect, plain that the Full Bench in the present case did “identify a wrong issue” and “ask itself the wrong question” in a way which affected its purported exercise of its appellate function. That is so because:
(a) the Full Bench failed to recognise that the hearing and determination of an application for variation under s 217 does not require the FWC to interpret the enterprise agreement in question, that is, to determine by a process of construction the true meaning of the enterprise agreement. That meant that the discharge by the Full Bench of its appellate function did not require it to determine whether or not the interpretation which the Deputy President had given to the 2016 Agreement was correct or otherwise. In taking a contrary view, the Full Bench misunderstood the nature of the opinion it had to form in the discharge of its appellate function;
(b) by applying the Berri principles as to the interpretation of enterprise agreements, the Full Bench made the same mistake as to the nature of the task required under s 217 as did the Deputy President;
(c) the endorsement of the Deputy President’s belief that he was unable to take into account “the evidence and findings of surrounding circumstances, including common intention and objectively established past or current practice” likewise involved the misunderstanding of the jurisdiction exercised by the Deputy President which was to be reviewed on appeal; and
(d) the Full Bench failed to recognise that the discharge of the FWC’s function under s 217 attracted the application of s 578 and did not require the application of the rules of evidence.
- By these errors, the Full Bench did not, in the discharge of its function under s 607, address the question required for its determination on the appeal. That affected the very discharge of the appellate function. Accordingly, the error of the Full Bench was jurisdictional.
- This conclusion makes it unnecessary to consider the alternative ways by which Bianco contended that the Full Bench’s decision should be regarded as affected by jurisdictional error, including counsel’s submissions concerning irrationality and legal unreasonableness.
- In our view, Bianco has established an entitlement to prerogative relief. It is, however, unnecessary to order the issue of a writ of mandamus directed to the Full Bench. Both its decision and the decision of the Deputy President will be quashed and Bianco’s application for variation will have to be considered afresh.
Bianco’s alternative claim: quashing the approvals of the 2011 and 2016 Agreements
- As indicated, we did not understand Bianco to pursue its claim for declarations by this Court that the 2016 Agreement does, as a matter of law and fact, have the effect for which it contended in the FWC.
- Bianco did make some submissions in support of its claim, made in the alternative in the event that its claim for prerogative relief failed, that the approvals by the FWC of each of the 2011 and 2016 Agreements under s 186 of the FW Act should be quashed or declared invalid. Bianco contended that this relief was appropriate because, if contrary to its contention, the 2016 Agreement did apply to its Structural Division as well as to its Pre‑cast Division, it had not been entered into in accordance with the provisions of the FW Act. This was so because its Structural Division employees had not been involved in its formation of the 2016 Agreement and, in particular, had not “genuinely agreed” to it in the manner contemplated by s 188 of the FW Act.
- Ultimately, Bianco pressed this alternative submission only faintly as it recognised the formidable obstacles in the way of the Court exercising the discretion to grant the relief. Those obstacles include:
(a) the fact that Bianco has not served the employees covered by the 2011 and 2016 Agreements with the proceedings or otherwise given them notice that the Enterprise Agreements on which they have relied hitherto for several of the terms and conditions of their employment may be held invalid;
(b) the inconvenience which such a declaration may have on the orderly regulation of the industrial affairs of Bianco and the employees given that the employees may then become award or industrial instrument free; and
(c) the difficulties which it would create for the employees in enforcing entitlements which have accrued to date under the Enterprise Agreements.
- To the extent that Bianco did pursue this alternative claim, it is dismissed for these discretionary reasons.
- For the reasons given above, we make the following orders:
(1) A writ of certiorari issue to the Fair Work Commission removing into this Court and quashing:
(a) the decision of Anderson DP made on 17 September 2018 in  FWC 5823;
(b) the order made by Anderson DP on 17 September 2018; and
(c) the decision and order of the Full Bench made on 11 January 2019 in  FWCFB 161.
(2) A writ of mandamus issue to compel the Fair Work Commission to exercise its jurisdiction to determine the applicant’s application in proceeding AG2017/5792 in accordance with law.
(3) The applicant’s remaining claims are dismissed.
(4) There be no order as to costs.”
Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union  FCAFC 50 delivered 24 March 2020 per Flick, White and Perry JJ