D&D Traffic Management Pty Ltd v The Australian  
Workers' Union [2022] FCAFC 113 (8 July 2022)  
Last Updated: 8 July 2022  
FEDERAL COURT OF AUSTRALIA  
D&D Traffic Management Pty Ltd v The Australian Workers’ Union [2022]  
FCAFC 113  
Review of:  
D&D Traffic Management Pty Ltd [2021] FWC 1017  
D&D Traffic Management Pty Ltd [2021] FWC 1287  
File number:  
NSD 1008 of 2021  
Judgment of:  
KATZMANN, THAWLEY AND GOODMAN JJ  
Date of  
8 July 2022  
judgment:  
Catchwords:  
ADMINISTRATIVE LAW – application for judicial review of decision of  
Fair Work Commission not to approve an enterprise agreement because  
Commission was not satisfied that it passed the “better off overall test” –  
whether Commission misconceived its statutory task or failed to carry it  
out because it misconstrued provisions of award against which enterprise  
agreement was to be compared – if so, whether jurisdictional error  
established – scope of review for jurisdictional error of decisions of  
Commission – where Full Bench had refused permission to appeal and  
decision of Full Bench not challenged, alleged errors not raised before Full  
Bench and in one central respect applicant’s case was inconsistent with  
way in which matter argued in Commission, whether application would  
have been refused in exercise of Court’s discretion – where Full Bench  
made no orders, whether open to applicant to challenge its decision  
INDUSTRIAL LAW – whether cl 33.1 of Building and Construction  
General On-Site Award 2010 does not apply to casual employees –  
whether Commission erred in its construction of the definition of  
“shiftwork” in cl 34.2(a) of Award  
Legislation:  
Federal Court of Australia Act 1976 (Cth) ss 21, 22  
Fair Work Act 2009 (Cth) ss 186(2)(d), 193(1), 562, 563  
Judiciary Act 1903 (Cth) s 39B  
Building and Construction General On-Site Award 2010 cll 33.1, 34.2  
Cases cited:  
4 yearly review of modern awards – Construction awards [2019] FWCFB  
8564  
Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005]  
HCA 10; 222 CLR 241  
Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR  
353  
Buck v Bavone [1976] HCA 24; 135 CLR 110  
City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362  
Coal and Allied Operations Pty Ltd v Australian Industrial Relations  
Commission [2000] HCA 47; 203 CLR 194  
Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty  
Ltd [2012] FCA 87; 203 FCR 371  
Cook v Australian Postal Corporation [2017] FCA 509  
D&D Traffic Management Pty Ltd [2021] FWCFB 4197  
D’Amore v Independent Commission Against Corruption (2013) [2013]  
NSWCA 187; 303 ALR 242  
Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559  
Ex parte Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24;  
(1947) 47 SR (NSW) 416  
George A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498  
King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR  
171  
Metal Trades (Engineering) Board of Reference Appeal (1936) 36 CAR  
534  
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB  
[2004] HCA 32; 78 ALJR 992  
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR  
332  
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240  
CLR 611  
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17;  
95 ALJR 441  
One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy  
Union [2018] FCAFC 77; 262 FCR 527  
Pal v Commonwealth of Australia [2020] FCA 1483  
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] [1944] HCA 42;  
69 CLR 407  
Re Altus Traffic (NSW & ACT) Enterprise Agreement 2019 [2019] FWCA  
5941  
Re Cram; Ex parte Newcastle Wallsend Coal Company Pty Ltd [1987]  
HCA 29; 163 CLR 140  
ResMed Ltd v Australian Manufacturing Workers' Union [2015] FCA 379;  
243 FCR 349  
Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206  
Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA  
110  
Division:  
Registry:  
Fair Work Division  
New South Wales  
National  
Employment and Industrial Relations  
Practice Area:  
Number of  
76  
paragraphs:  
Date of  
16 February 2022  
hearing:  
Counsel for  
the  
Mr S Prince SC and Mr B Rauf  
Applicant:  
Solicitor for  
the  
Applicant:  
Ai Group Workplace Lawyers  
Mr M Gibian SC  
Counsel for  
the First  
Respondent:  
Solicitor for  
the First  
Australian Government Solicitor  
Respondent:  
ORDERS  
NSD 1008 of 2021  
BETWEEN:  
D&D TRAFFIC MANAGEMENT PTY LTD  
Applicant  
AND:  
THE AUSTRALIAN WORKERS’ UNION  
First Respondent  
FAIR WORK COMMISSION  
Second Respondent  
ORDER MADE BY: KATZMANN, THAWLEY AND GOODMAN JJ  
DATE OF ORDER: 8 JULY 2022  
1. The application be dismissed.  
REASONS FOR JUDGMENT  
THE COURT:  
INTRODUCTION  
1. By an originating application seeking relief under ss 562 and 563 of the Fair Work Act  
2009 (Cth) (FW Act), s 39B of the Judiciary Act 1903 (Cth) and ss 21 and 22 of the  
Federal Court of Australia Act 1976 (Cth) (FCA Act), the applicant (D&D) sought:  
(1) writs in the nature of certiorari quashing two decisions made by Deputy  
President Cross in the Fair Work Commission the effect of which were to dismiss  
D&D’s application for approval of the D&D Traffic Management & Other Work  
Enterprise Agreement 2020 (2020 Enterprise Agreement): D&D Traffic  
Management Pty Ltd [2021] FWC 1017 and D&D Traffic Management Pty Ltd  
[2021] FWC 1287 (hereafter “FWC1” and “FWC2”);  
(2) an order in the nature of mandamus requiring the Commission to hear and  
determine according to law the application for approval of the 2020 Enterprise  
Agreement;  
(3) various declarations as to the correct construction of the Building and  
Construction General On-Site Award 2010 (2010 Award) and the corresponding  
provisions of the Building and Construction General On-Site Award 2020; and  
(4) a declaration that cl 8(c) of the 2020 Enterprise Agreement meets the better off  
overall test under ss 186(2)(d) and 193(1) of the FW Act.  
2. Through its employees, D&D provides traffic control services in the civil construction  
industry in New South Wales. It also provides certain crowd control services outside the  
construction industry. Most of D&D’s employees who are engaged in traffic control are  
casual employees.  
3. The location of the work, and the precise duties performed, vary according to the  
requirements of D&D’s clients. Employees are assigned work on a permanent day shift  
or night shift. There is a regular five-day roster and employees are generally given at  
least 48 hours’ notice of when and where they are required to work a shift. Sometimes,  
but not always, the night shift employees will work at the same location as the preceding  
day shift employees. Typically, a roadworks project on a main road is only conducted at  
night and only requires the attendance of traffic controllers on night shift.  
4. By decisions FWC1 and FWC2, the Commission dismissed D&D’s application for  
approval of the 2020 Enterprise Agreement. The statutory provisions of central  
relevance were ss 186 and 193 of the FW Act. Subsections (1) and (2) of s 186 of the FW  
Act include:  
186 When the FWC must approve an enterprise agreement  
—general requirements  
Basic rule  
(1) If an application for the approval of an enterprise agreement is  
made under subsection 182(4) or section 185, the FWC must approve  
the agreement under this section if the requirements set out in this  
section and section 187 are met.  
Note: The FWC may approve an enterprise agreement under  
this section with undertakings (see section 190).  
Requirements relating to the safety net etc.  
(2) The FWC must be satisfied that:  
...  
(d) the agreement passes the better off overall test.  
Note 1: For when an enterprise agreement has been  
genuinely agreed to by employees, see section 188.  
Note 2: The FWC may approve an enterprise agreement that  
does not pass the better off overall test if approval would not  
be contrary to the public interest (see section 189).  
Note 3: The terms of an enterprise agreement may  
supplement the National Employment Standards (see  
paragraph 55(4)(b)).  
5. The better off overall test (BOOT) is set out in s 193 which relevantly includes:  
193 Passing the better off overall test  
When a non-greenfields agreement passes the better off overall test  
(1) An enterprise agreement that is not a greenfields agreement passes  
the better off overall test under this section if the FWC is satisfied,  
as at the test time, that each award covered employee, and each  
prospective award covered employee, for the agreement would be  
better off overall if the agreement applied to the employee than if the  
relevant modern award applied to the employee.  
...  
Award covered employee  
(4) An award covered employee for an enterprise agreement is an employee  
who:  
(a) is covered by the agreement; and  
(b) at the test time, is covered by a modern award (the relevant  
modern award) that:  
(i) is in operation; and  
(ii) covers the employee in relation to the work that he or  
she is to perform under the agreement; and  
(iii) covers his or her employer.  
Prospective award covered employee  
(5) A prospective award covered employee for an enterprise agreement is a  
person who, if he or she were an employee at the test time of an employer covered  
by the agreement:  
(a) would be covered by the agreement; and  
(b) would be covered by a modern award (the relevant modern  
award ) that:  
(i) is in operation; and  
(ii) would cover the person in relation to the work that he or  
she would perform under the agreement; and  
(iii) covers the employer.  
Test time  
(6) The test time is the time the application for approval of the agreement by the  
FWC was made under subsection 182(4) or section 185.  
FWC may assume employee better off overall in certain circumstances  
(7) For the purposes of determining whether an enterprise agreement passes the  
better off overall test, if a class of employees to which a particular employee  
belongs would be better off if the agreement applied to that class than if the  
relevant modern award applied to that class, the FWC is entitled to assume, in the  
absence of evidence to the contrary, that the employee would be better off overall if  
the agreement applied to the employee.  
6. At the core of the dispute between the parties in the proceedings before the Commission  
was the meaning of the word “shiftwork” in cl 34.2(a) of the 2010 Award and how it  
interacted with cl 8(c) of the 2020 Enterprise Agreement. It was common ground that cl  
34.2(a) of the 2010 Award applied to D&D’s casual employees.  
7. Before the Commission, the Australian Workers’ Union (AWU) contended that  
“shiftwork” requires a specific system of shifts at a single project or site in which there is  
a rotation of workers: FWC1 at [11]. D&D contended for an “enterprise” approach. It  
accepted that employees had to be taking over or continuing work undertaken by other  
employees of the company. D&D argued, however, that the work did not have to be a  
continuation of work at the one site; the work could be continued anywhere throughout  
its enterprise. That argument was rejected.  
8. Clause 8(c) of the 2020 Enterprise Agreement deals with night shifts, between 6pm and  
6am, Monday to Saturday. Clause 8(c), read with Annexure A of the 2020 Enterprise  
Agreement, contemplated a 30% loading in respect of night shift work: FB[23];  
Annexure A indicates a 25% to 30% loading. Deputy President Cross concluded that,  
under the 2010 Award, employees who were not shiftworkers within the “shiftwork”  
definition in cl 34.2(a) of the Award would be paid overtime rates. Deputy President  
Cross concluded that the employees and prospective employees to be covered by the  
2020 Enterprise Agreement would not be better off overall, because – where the  
employees were not shiftworkers within the definition of “shiftwork” – the 2010 Award  
provided for the payment of overtime which would be more than being paid in  
accordance with a 30% loading as contemplated by the 2020 Enterprise Agreement.  
9. Deputy President Cross considered that the term “shiftwork” in cl 34.2 had the meaning  
explained by Dethridge CJ in Metal Trades (Engineering) Board of Reference Appeal  
(1936) 36 CAR 534 at 535. In Metal Trades, Dethridge CJ stated:  
Ordinarily the idea of shift work connotes men working in relays; that  
is to say one man or relay or squad of men does a spell of work upon a  
process and upon that same process is immediately followed by another  
man or relay or squad of men doing a spell of work for something like a  
similar number of hours, but not necessarily for the same number.  
Nothing like that existed here. There was no shift of work from one  
man or squad to another successive man or squad.  
10. Deputy President Cross considered that cl 34.2(a) operated in the manner explained by  
Deputy President Saunders in Re Altus Traffic (NSW & ACT) Enterprise Agreement  
2019 [2019] FWCA 5941 at [26] to [30]: FWC1 at [30] and [31]. In particular, Deputy  
President Cross endorsed the example which had been given by Deputy President  
Saunders in Altus at [28]:  
The point may be demonstrated by way of an example. If on any given  
day Altus had one group of traffic controllers working on a particular  
project for one of its clients in, say, Canberra on day work only and  
another group of traffic controllers working on a particular project for  
another client in, say, Byron Bay on afternoon or night shift only, then  
(assuming Altus did not have any other employees working different  
shifts on either the Canberra project or the Byron Bay project), would it  
be correct to say that the Altus traffic controllers working on the Byron  
Bay project were engaged on the same work as the Altus traffic  
controllers working on the Canberra project. I think not. If the work is  
undertaken on the same site, the same project, or possibly on different  
sites but for the same client under the same contract, then the  
definition of shiftwork may be satisfied, but work on different sites and  
projects, for different clients, could not, in my view, properly be  
regarded as the continuation of operations “by the employment of a  
group of employees upon work on which another group had been  
engaged previously.”  
11. Deputy President Cross’s conclusions consequent upon this understanding of the  
meaning of cl 34.2(a) were expressed at FWC1 at [32] to [34] in the following way:  
[32] Ultimately, the question before the Commission now is a narrow  
one. Does the meaning of “work” in the clause 34.2(a) definition  
include any work within an enterprise, regardless of how remote, or  
whether it is required to be work within the same jobsite or project.  
[33] I do not consider that any of the submissions of the Applicant can  
support a different interpretation of the definition in Clause 34.2(a).  
The definition of shiftwork is clear and unambiguous. The text of clause  
34.2 operates on an assumption that there will be a rotation of shifts  
unless agreed otherwise by employees. There cannot be a rotation of  
shifts across an entire enterprise that engages workers at various  
different worksites in different cities and regions.  
[34] For the reasons given above, I am not satisfied that the Agreement,  
as amended by the existing undertakings referred to above, would  
result in the employees being better off overall due to the interpretation  
of Clause 34(2)(a) of the Award relied upon by the Applicant.  
Accordingly, I invite the Applicant to provide an undertaking, in the  
form of Undertaking 5 identified in Altus, to resolve my concern about  
employees not being better off overall.  
12. As the passage at FWC1[34] shows, the Deputy President provided an opportunity, as  
permitted by s 190 of the FW Act, for D&D to give a further undertaking, in the form of  
Undertaking 5 identified in Altus (appropriately modified), to address his concerns.  
Undertaking 5 was:  
In respect of any work undertaken by employees in the civil  
construction sector as defined under the Building and Construction  
General On-site Award 2010 (BCG Award), the overtime provisions in  
clause 13.4 of the Agreement [relevant in Altus] will apply to work that  
is not Shift Work. For the purposes of this undertaking, ‘Shift Work’ has  
the meaning given by the definition in clause 34.2(a) of the BCG Award,  
namely, any system of work in which operations are being continued by  
the employment of a group of employees upon work on which another  
group had been engaged previously.  
13. D&D declined to provide the undertaking and Deputy President Cross consequently  
dismissed the application: FWC2 at [2], [3].  
14. D&D filed an appeal in respect of FWC1 and FWC2 under s 604(3) of the FW Act. Such  
an appeal only lies with “permission”: s 604(1). Without limiting when the Full Bench of  
the Commission may grant permission to appeal, it must grant permission if it satisfied  
that it is in the public interest to do so: s 604(2).  
15. The basis of D&D’s proposed appeal was as follows. Deputy President Cross erred by  
following the reasoning in Altus and determining that cl 34.2(a) of the 2010 Award  
required work to be continued by a group of employees at the same jobsite or project and  
not across the totality of an employer’s operations in order to satisfy the definition of  
“shiftwork” – see: D&D Traffic Management Pty Ltd [2021] FWCFB 4197 (hereafter  
“FB”) at [1]. In support of its application for permission to appeal, D&D submitted that  
the appeal raised a question of general application concerning the proper construction of  
the definition of “shiftwork” in cl 34.2(a) of the 2010 Award: FB [22].  
16. The Full Bench of the Commission refused permission to appeal because it did not  
consider that it would be in the public interest to do so or that it was otherwise justified  
on any discretionary ground.  
17. At the hearing before the Full Bench, the Commission had raised a question as to  
whether cll 33.1 and 34.2(a) applied to casual employees and provided an opportunity  
for further written submissions on the issue. The parties both filed further submissions.  
The Full Bench recorded at FB [9]:  
It was common ground between the parties that the span of hours  
specified in clause 33.1 applied to casual employees by virtue of clause  
14.2, so that any work performed by casual employees after 6.00pm  
Monday to Friday would attract the overtime rates prescribed by clause  
36.2 unless it fell within the “shiftwork” definition in clause 34.2(a).  
18. At the hearing of its application for judicial review before this Court, Senior Counsel for  
D&D submitted that the Full Bench’s observation at FB [9] was incorrect and that it had  
disputed the application of cl 33.1 to its casual employees. In support of this submission,  
Senior Counsel referred the Court to [5] of its written submissions filed after the Full  
Bench hearing. For the following reasons, Senior Counsel’s submission must be rejected.  
19. Paragraph 5 of D&D’s written submissions to the Full Bench stated:  
[D&D] says that this subclause [cl 33.1] cannot directly apply or be  
applied to casual employees, on the basis that is specifies working  
hours of 38 per week and that those hours are averaged over a four  
week cycle. This is not compatible and indeed [D&D] says is  
incommensurable with casual employment, which by its very nature is  
for varying hours and days and not for a fixed 38 hours each week and  
not for a four week cycle. For this reason [D&D] said at hearing that the  
provisions at cl 33.1 for RDOs, for example, also don’t apply to casual  
employees.  
20. The remainder of the written submissions, however, made it clear that D&D accepted  
that cll 33.1 and 34.2(a) applied to its casual employees by reason of cl 14.2. D&D’s  
written submissions to the Full Bench included (emphasis added):  
6. The span of hours provision in cl. 33.1 is not a separate provision, but built into the  
provision. At least very arguably then, the 38 hours specification, the four hour  
cycle specification, the RDO provisions and the span of hours provision are all part  
of a unified whole, and one applicable to full-time employees. On this basis, at least  
very arguably, the span of hours provision does not apply to casual employees.  
...  
8. This subclause [cl 33.4] does not contain a provision for a span of  
hours. Again, very arguably, there is no span of hours prescribed  
for casual employees. The effect of this would be, if that was  
indeed the case, that casuals might be deployed on work at any  
hour, as ordinary time and at ordinary rates, provided that their  
daily ordinary hours do not exceed eight. As such, questions of  
shift rates in respect of casuals would be rendered moot.  
9. [D&D] does not take that point, and says that instead cl.  
33.4 must be read in context of other relevant  
provisions. [D&D] does however point out the uncertainty  
created by the wording and structure of cl. 33.  
...  
17. ... While not perhaps as explicit as it might be, the  
implication is that there is a span and, in the absence of  
any other span provision, that the span at cl. 33.1 applies  
to casual employees.  
18. Following the same reasoning as set out above, [D&D]  
says that the shift work clause [cl 34.2(a)] is one which is  
“applicable” to casuals and therefore applies to them per  
cl 14.2 of the [2010] Award.  
(Emphasis added.)  
21. The Full Bench’s observation at FB [9] accurately reflects D&D’s written submissions.  
22. The Full Bench considered that the Deputy President was correct in his reasoning  
concerning the construction of cl 34.2(a) of the Award but concluded that, in any event,  
“the appeal does not ... properly give rise to the question concerning the construction of  
clause 34.2(a) in the way contended for by D&D such as to justify the grant of  
permission to appeal”: at FB [22]. It stated that it reached that conclusion for two related  
reasons.  
23. The Full Bench explained the first reason at FB [23] in the following way:  
(a) D&D’s case focussed on whether the work rostering system which it alleged it  
then operated in practice falls within the definition of “shiftwork”;  
(b) the comparison required by s 193(1) is “between the application of the terms of  
the relevant enterprise agreement to current and prospective employees compared  
to the application of the relevant award to the same employees”;  
(c) cl 8(c) of the 2020 Enterprise Agreement allows work after 6.00pm to be paid  
on the basis of a 30 percent shift loading instead of the overtime penalty rates  
prescribed by cl 36.2 of the 2010 Award;  
(d) it necessarily followed that this was “a major detriment under the Agreement  
for night workers which would cause it to fail the BOOT”; and  
(e) it was not necessary to “to engage in any exercise in the construction of cl  
34.2(a) in order to reach this conclusion”: at [24].  
24. The Full Bench emphasised at [24] that “[t]he Agreement did not on any view pass the  
BOOT for this reason alone”.  
25. The Full Bench explained the second reason at FB [25] in the following way:  
Second, the Deputy President said in the first decision that he would  
approve the Agreement if D&D gave the “Undertaking 5” referred to in  
the Altus decision. That undertaking, which we have set out above,  
would simply displace the definition of shiftwork in clause 8(c) of the  
Agreement with that in clause 34.2(a) of the [2010] Award. Giving this  
undertaking would have rectified the identified BOOT deficiency and  
allowed D&D to have its Agreement approved. It would also have  
allowed D&D to operate a shift work system consistent with clause  
34.2(a) of the [2010] Award. D&D refused to give the undertaking, thus  
indicating that it was not prepared to have in its Agreement a shiftwork  
definition which was consistent with that in the [2010] Award. In that  
circumstance, we see no call to grant permission to appeal to engage in  
the exercise of construing clause 34.2(a) of the [2010] Award.  
CONSIDERATION  
Jurisdictional error generally  
26. It has been held, in relation to the Australian Industrial Relations Commission, that  
jurisdictional error may be established if that commission:  
◦ misconceived its role or duty or misunderstood the nature of its jurisdiction;  
◦ failed to apply itself to the question the statute required; or  
◦ misunderstood the nature of the opinion it was required to form (or the state of  
satisfaction it was required to reach).  
See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000]  
HCA 47; 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ), citing Ex parte  
Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at  
420 (Jordan CJ).  
27. As will be explained, this is not an exhaustive list of how jurisdictional error might be  
established in the industrial context. Indeed, an attempt at classification into categories  
can obfuscate the real task.  
28. The task on judicial review is to determine, on the grounds of judicial review advanced,  
whether the judicial review applicant has discharged the onus of showing that the  
decision under review was not made in accordance with the authority conferred by the  
relevant statute. In MZAPC v Minister for Immigration and Border Protection [2021]  
HCA 17; 95 ALJR 441 at [29] and [30], Kiefel CJ, Gageler, Keane and Gleeson JJ  
explained (footnotes omitted):  
[29] The constitutionally entrenched jurisdiction of a court to engage in  
judicial review of the decision, where that jurisdiction is regularly  
invoked, is no more and no less than to ensure that the decision-maker  
stays within the limits of the decision-making authority conferred by  
the statute through declaration and enforcement of the law that sets  
those limits. To say that the decision is affected by jurisdictional error is  
to say no more and no less than that the decision-maker exceeded the  
limits of the decision-making authority conferred by the statute in  
making the decision. The decision for that reason lacks statutory force.  
Because the decision lacks statutory force, the decision is invalid  
without need for any court to have determined that the decision is  
invalid.  
[30] The statutory limits of the decision-making authority conferred by  
a statute are determined as an exercise in statutory interpretation  
informed by evolving common law principles of statutory  
interpretation. Non-compliance with an express or implied statutory  
condition of a conferral of statutory decision-making authority can, but  
need not, result in a decision that exceeds the limits of the decision-  
making authority conferred by statute. Whether, and if so in what  
circumstances, non-compliance results in a decision that exceeds the  
limits of the decision-making authority conferred by the statute is itself  
a question of statutory interpretation.  
29. It is convenient then to examine the Commission’s function in the present case and the  
particular decision-making authority conferred on it by the FW Act.  
The Commission’s function  
30. The Commission’s statutory function in approving enterprise agreements is set out in  
Div 4 of Part 2-4 of the FW Act. The “basic rule” is that the Commission must approve an  
agreement if the requirements of ss 186 and 187 are met: s 186(1). Of particular  
relevance to this application:  
(1) s 186(2)(d) (set out at [4] above) includes a requirement that the Commission  
“must be satisfied that ... the agreement passes the better off overall test”;  
(2) the “better off overall test” is defined in s 193 (set out at [5] above) which  
provides that a non-greenfields agreement passes the better off overall test if the  
Commission “is satisfied, as at the test time, that each award covered employee,  
and each prospective award covered employee, for the agreement would be better  
off overall if the agreement applied to the employee than if the relevant modern  
award applied to the employee”.  
31. It is significant that both s 186(2)(d) and s 193(1) require the Commission to be  
“satisfied” about the relevant matters. That language indicates that the matters  
identified are not jurisdictional facts, but are facts which need only be established to the  
satisfaction of the decision-maker: One Key Workforce Pty Ltd v Construction,  
Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [103], referring  
to D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303  
ALR 242 at [241] (Basten JA).  
Judicial review of states of satisfaction  
32. States of satisfaction are judicially reviewable. In R v Connell; Ex parte Hetton Bellbird  
Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432, Latham CJ said:  
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.  
33. In Ex parte Hebburn at 420, Jordan CJ stated:  
... 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.  
34. In Avon Downs Pty Ltd v Commissioner of Taxation (1949) [1949] HCA 26; 78 CLR 353  
at 360, Dixon J outlined the circumstances in which a state of satisfaction, being a pre-  
condition to the exercise of a power, might successfully be reviewed, stating:  
But it is for the commissioner, not for me, to be satisfied of the state of  
the voting power at the end of the year of income. His decision, it is  
true, is not unexaminable. If he does not address himself to the  
question which the sub-section formulates, if his conclusion is affected  
by some mistake of law, if he takes some extraneous reason into  
consideration or excludes from consideration some factor which should  
affect his determination, on any of these grounds his conclusion is  
liable to review. Moreover, the fact that he has not made known the  
reasons why he was not satisfied will not prevent the review of his  
decision. The conclusion he has reached may, on a full consideration of  
the material that was before him, be found to be capable of explanation  
only on the ground of some such misconception. If the result appears to  
be unreasonable on the supposition that he addressed himself to the  
right question, correctly applied the rules of law and took into account  
all the relevant considerations and no irrelevant considerations, then it  
may be a proper inference that it is a false supposition. It is not  
necessary that you should be sure of the precise particular in which he  
has gone wrong. It is enough that you can see that in some way he must  
have failed in the discharge of his exact function according to law.  
35. It is, accordingly, often said that states of satisfactions may be vitiated on “Avon Downs  
grounds”, namely:  
(1) if the decision-maker:  
(a) did not address the question posed by the statute or misconstrued  
the statute;  
(b) made an error of law affecting the conclusion reached;  
(c) failed to take into account a relevant consideration;  
(d) took into account an irrelevant consideration;  
(2) if the result is so unreasonable that it is proper to infer that one of the foregoing  
errors must have occurred or that the result is so unreasonable that no reasonable  
decision-maker could have reached the decision in good faith. As to the latter  
proposition, see: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118–119 (Gibbs J).  
Gibbs J went on to say that:  
[W]here the matter of which the [decision-maker] is required to be  
satisfied is a matter of opinion or policy or taste it may be very difficult  
to show that it has erred in one of these ways, or that its decision could  
not reasonably have been reached.  
36. In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA  
32; 78 ALJR 992 at [38], Gummow and Hayne JJ stated:  
The satisfaction of the criterion that the applicant is a non-citizen to  
whom Australia has the relevant protection obligations may include  
consideration of factual matters but the critical question is whether the  
determination was irrational, illogical and not based on findings or  
inferences of fact supported by logical grounds. If the decision did  
display these defects, it will be no answer that the determination was  
reached in good faith.  
37. These observations were approved in Minister for Immigration and Citizenship v  
SZMDS [2010] HCA 16; 240 CLR 611 at [37]–[40] (Gummow ACJ and Kiefel J); at  
[102]–[105], see also [130], [135] (Crennan and Bell JJ).  
38. Of importance to the present case, SGLB recognises that a state of satisfaction reached  
on the basis of findings or inferences of fact which are not logical, or on the basis of  
illogical reasoning, is capable of vitiating the state of satisfaction with the result that it  
might be shown that the power exercised consequent upon reaching the state of  
satisfaction (being a pre-condition to the exercise of the power) exceeded the decision-  
making authority conferred by the statute.  
39. It might also be shown that the exercise of a power on the basis of a state of satisfaction  
formed unreasonably or in a manner vitiated on Avon Down grounds, might be an  
exercise of power in breach of an implied condition to exercise the statutory power  
reasonably in the sense described in Minister for Immigration and Citizenship v Li  
[2013] HCA 18; 249 CLR 332.  
40. The AWU submitted that any error in construction of the 2010 Award would be an error  
made within jurisdiction. More specifically, the AWU submitted:  
(1) a federal industrial tribunal may legitimately form and act upon opinions about  
legal rights and obligations as a step in the exercise of its own functions and  
powers, referring to: Re Cram; Ex parte Newcastle Wallsend Coal Company Pty  
Ltd [1987] HCA 29; 163 CLR 140 at 149; Construction, Forestry, Mining and  
Energy Union v Wagstaff Piling Pty Ltd [2012] FCA 87; 203 FCR 371 at [21];  
ResMed Ltd v Australian Manufacturing Workers' Union [2015] FCA 379; 243  
FCR 349 at [48];  
(2) the valid exercise of the functions and powers of a federal industrial tribunal do  
not necessarily depend upon it reaching legally correct opinions, citing Wagstaff  
Piling at [25] (Buchanan and Katzmann JJ).  
41. Both of these propositions are strictly correct. But they are narrow propositions. Neither  
proposition, alone or in combination, means that an exercise of power on the basis of  
legally incorrect opinions about legal rights and obligations is protected from judicial  
review by reason of it necessarily being an error within jurisdiction. More specifically,  
neither proposition asserts that the exercise of a power on the basis of an opinion  
vitiated on Avon Downs or other grounds is not susceptible to judicial review. Nor do  
the propositions have anything to say about the implication of a condition that a  
statutory power be exercised reasonably. There is nothing about the present statutory  
context which would deny the implication of that condition to the exercise of the power  
in the present case. The propositions do not deny that a power might be shown to have  
been exercised unreasonably by reason of incorrect opinions about legal rights or  
obligations.  
42. The importance of this to the present case is that an error in construction of the 2010  
Award is capable of giving rise to jurisdictional error even though such an error would  
not necessarily have that result. It depends on an analysis of the circumstances, in  
particular precisely what the error was and how that error affected the decision-making  
process or the decision. The submission made by the AWU that any error in construction  
of the 2010 Award would be an error made within jurisdiction must be rejected.  
The grounds of judicial review advanced  
43. D&D’s originating application claimed relief on the grounds stated in an accompanying  
“Statement of Contentions”. D&D’s contentions were summarised in its written  
submissions as being that the Commission:  
(1) misconceived the statutory task required by ss 186 and 193;  
(2) failed to carry out the statutory task required by ss 186 and 193;  
(3) breached an implied condition to exercise the power in ss 186 and 193  
reasonably in the sense described in Li.  
44. In support of these contentions, D&D submitted that the Commission “was required to  
properly construe and apply the relevant provisions of the 2010 Award in assessing the  
BOOT”, but that the “Commission misconstrued certain provisions of the 2010 Award in  
a number of respects”. The asserted misconstructions revolve around three essential  
contentions:  
(1) First, that the “spread of hours” clause, being cl 33.1 of the 2010 Award, does  
not apply to casual employees. D&D contended that the ordinary hours of work for  
D&D’s employees is determined by reference solely to cl 33.4 of the Award, namely  
to the exclusion of cl 33.1. The result, according to D&D’s argument, is that there is  
no limitation upon the time of day, or day of the week, upon which casual  
employees can work their ordinary hours, subject to there being a maximum of  
eight hours a day; a casual employee could be required to work 8 hours from 7pm  
on a Sunday night and this would fall within that employee’s ordinary hours of  
work.  
(2) Secondly, that the definition of “shiftwork” in cl 34.2(a) is not operative in the  
sense of limiting the various categories of shift work. More specifically, D&D  
contended that it was an error to construe cl 34 as only applicable to “night shift”  
work where that “night shift” work also fell within the definition of “shiftwork”.  
(3) Thirdly, that the proper construction of the definition of “shiftwork” in cl  
34.2(a) was such that it includes a system of work where operations are continued  
by a group of employees upon work undertaken by other employees anywhere  
throughout an enterprise whether or not it is substantially the same work  
(including where those employees take over from employees of a different  
employing enterprise).  
45. Apart from part of the third contention, D&D did not put any of the arguments now  
advanced about the operation of the 2010 Award to Deputy President Cross or to the  
Full Bench. A substantial part of the arguments advanced on this application for judicial  
review were directed to the ultimate proposition that cll 33.1 and 34.2(a) of the 2010  
Award did not apply to D&D’s casual employees, a position directly inconsistent with the  
position D&D had adopted before the Commission and the Full Bench.  
46. Although the case was formulated by D&D in the way identified at [43] above, the real  
issue is whether there was a misconstruction of the 2010 Award of such a nature that the  
state of satisfaction was vitiated or the consequent exercise of power exceeded the  
decision-making authority conferred by the statute.  
47. Because D&D’s case is founded upon asserted misconstructions of the Award, it is  
relevant to observe that the interpretation of an award requires consideration of the  
natural and ordinary meaning of its words, read as a whole and in context. The history  
and subject matter of the award may be relevant. The words are not to be interpreted in  
a vacuum divorced from industry realities. As Street J said in George A Bond & Co Ltd  
(in liq) v McKenzie [1929] AR(NSW) 498 at 503:  
[I]t must be remembered that awards are made for the  
various industries in the light of the customs and working  
conditions of each industry, and they frequently result ...  
from an agreement between the parties, couched in terms  
intelligible to themselves but often framed without that  
careful attention to form and draughtsmanship which one  
expects to find in an Act of Parliament. I think, therefore in  
construing an award, one must always be careful to avoid a  
too literal adherence to the strict technical meaning of  
words, and must view the matter broadly, and after giving  
consideration and weight to every part of the award,  
endeavour to give it a meaning consistent with the general  
intention of the parties to be gathered from the whole  
award.  
48. See also: King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171  
at [40]- [42]; (Collier, Katzmann and Jackson JJ); Amcor Ltd v Construction, Forestry,  
Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2] (Gleeson CJ and  
McHugh J); City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378-379 (French  
J).  
Has jurisdictional error been established?  
49. As to D&D’s first contention, recorded at [43] above, D&D submitted that the  
Commission’s misconstruction of the 2010 Award meant that it misconceived its  
function or the statutory task required by ss 186 and 193 of the FW Act. It was not made  
clear how, if such errors occurred, that would have the result that the Commission  
misconceived its function or the statutory task. There is nothing in the reasoning of  
Deputy President Cross which indicates a misunderstanding of the statutory function or  
task and everything to show that the Deputy President well understood what the statute  
required. This ground of judicial review is not made out.  
50. As to D&D’s second and third contentions at [43] above, D&D’s case that the  
Commission failed to carry out the statutory task, or breached an implied condition to  
exercise the power in ss 186 and 193 reasonably in the sense described in Li, depends (at  
the least) on making good the proposition that the Deputy President misconstrued the  
2010 Award in one of the ways advanced. For present purposes, it may be assumed that  
a material misconstruction of the 2010 Award is capable of resulting in jurisdictional  
error by reason of its vitiating effect on the attainment of the state of satisfaction under  
either ss 186 or 193.  
Does cl 33.1 not apply to causal employees?  
51. As noted earlier, the argument put to this Court – inconsistently with what had been  
argued before the Commission and the Full Bench – was that there was no limitation  
upon the time of day, or day of the week, upon which casual employees could work their  
ordinary hours, subject to there being a maximum of eight hours a day, because cl 33.1  
did not apply to casual employees. If that be correct:  
(1) no matter when a casual worker performed the work, that casual employee  
would not be entitled to overtime under cl 36.2 (unless the employee worked over  
8 hours);  
(2) contrary to the conclusion reached by the Commission, employees to be  
covered by cl 8(c) of the 2020 Enterprise Agreement would not lose an entitlement  
under cl 36.2 of the 2010 Award.  
52. It is convenient to set out various clauses of the 2010 Award relevant to this and later  
arguments. Clause 14 included:  
14. Casual employment  
14.1 A casual employee is one engaged and paid in accordance with the  
provisions of this clause.  
14.2 A casual employee is entitled to all of the applicable rates and  
conditions of employment prescribed by this award except annual  
leave, paid personal/carer’s leave, paid community service leave, notice  
of termination and redundancy benefits.  
...  
14.5 A casual employee must be paid a casual loading of 25% for  
ordinary hours as provided for in this award. The casual loading is paid  
as compensation for annual leave, personal/carer’s leave, community  
service leave, notice of termination and redundancy benefits and public  
holidays not worked.  
14.6 A casual employee required to work overtime or weekend work will  
be entitled to the relevant penalty rates prescribed by clauses 36—  
Overtime, and 37— Penalty rates, provided that:  
(a) where the relevant penalty rate is time and a half, the  
employee must be paid 175% of the ordinary time hourly  
rate prescribed for the employee’s classification; and  
(b) where the relevant penalty rate is double time, the  
employee must be paid 225% of the ordinary time hourly  
rate prescribed for the employee’s classification.  
NOTE: The overtime and weekend work penalty rates for  
casual employees have been calculated by adding the casual  
loading prescribed by clause 14.5 to the overtime and  
weekend work penalty rates prescribed by clauses 36.2 and  
37—Penalty rates.  
53. Clause 33 included:  
Part 5—Hours of Work and Related Matters  
33. Ordinary hours of work  
33.1 Except as provided in clause 34—Shiftwork, the ordinary working  
hours will be 38 per week (averaged over a 20 day four week cycle to  
allow for the accrual and taking of rostered days off (RDO)), worked  
between 7.00am and 6.00pm Monday to Friday in accordance with the  
following procedures:  
(a) Hours of work and accrual towards rostered  
days off  
Ordinary working hours will be eight hours in duration each  
day, of which 0.4 of one hour of each day worked will accrue  
towards a RDO and 7.6 hours will be paid. An employee will  
therefore accrue 7.6 hours towards a RDO each 19 days of  
ordinary hours worked.  
...  
...  
33.3 Hours of work—part-time employees  
(a) The daily ordinary hours of work of a part-time  
employee shall not exceed 8 hours.  
(b) Notwithstanding the provisions of this clause and clause  
34—Shiftwork, an employee working on a part-time basis  
may be paid for actual hours worked and in such instances  
the employee will not be entitled to accrue time towards an  
RDO.  
(c) An employer and employee may agree that the part-time  
employee accrues time towards an RDO as provided by this  
clause and clause 34—Shiftwork. In such instances, the  
part-time employee will accrue pro rata entitlements to  
rostered days off in accordance with subclause 33.1(a).  
33.4 Hours of work—casual employees  
The daily ordinary hours of work of a casual employee shall  
not exceed 8 hours.  
54. Clause 36 included:  
36. Overtime  
36.1 Reasonable overtime  
...  
36.2 All time worked beyond an employee’s ordinary time of work  
(inclusive of time worked for accrual purposes as prescribed in clauses  
33—Ordinary hours of work and 34—Shiftwork), Monday to Friday,  
must be paid for at the rate of time and a half for the first two hours and  
at double time thereafter.  
36.3 A casual employee must be paid in accordance with the overtime  
rates prescribed by clause 14.6.  
...  
55. Clause 37 included:  
37. Penalty rates  
...  
37.10 A casual employee must be paid for overtime or weekend work in  
accordance with clause 14.6.  
56. Contrary to D&D’s contention, cl 33.1 does apply to casual employees; cl 33.4 does not  
apply to the exclusion of cl 33.1. There are a number features of the 2010 Award which  
reveal that this construction of the 2010 Award is correct.  
57. First, if D&D’s construction were correct, it would also mean that cl 33.1 did not apply to  
part-time employees, having regard to the terms of cl 33.3(a), which are identical to cl  
33.4. This would mean that part-time employees would not have any limitation on the  
time of day or the days of the week that those employees could be required to work  
without overtime or penalty. Such an employee could be required to work 10pm to 6am  
at ordinary rates, whilst a full-time employee (not working shiftwork) would be paid  
overtime in accordance with cl 36.2 or, if working shiftwork would get the shiftwork  
loading in cl 34.2(j). The 2010 Award read as a whole indicates this was not the intended  
operation. Clause 13.2, for example, contemplates that part-time employees are entitled  
to the ordinary rates “and pro rata entitlements”. Clause 13.2 provides:  
13.2 For each ordinary hour worked, a part-time employee will be paid  
no less than the ordinary time hourly rate for the relevant classification  
and pro rata entitlements for those hours. An employer must inform a  
part-time employee of the ordinary hours of work and the starting and  
finishing times.  
58. It is relevant also to note that cl 33.3(b) and (c) assume that cl 33.1 applies to part-time  
employees. Both paragraphs (b) and (c) of cl 33.1 deal with RDOs which are addressed  
by cl 33.1. Clause 33.3(c) expressly refers to cl 33.1(a).  
59. Secondly, cl 14.2 (set out above at [51]), states that casual employees are “entitled to all  
of the applicable rates and conditions of employment prescribed by this award except  
annual leave, paid personal/carer’s leave, paid community service leave, notice of  
termination and redundancy benefits”. Clause 14.5 makes clear that the 25% casual  
loading is paid “as compensation for annual leave, personal/carer’s leave, community  
service leave, notice of termination and redundancy benefits and public holidays not  
worked”. The 25% loading is not compensation for the absence of overtime or penalty  
rates for night or weekend work. This indicates that cl 33.1 was intended to apply to  
causal employees.  
60. Even if cl 33.1 was not intended to apply to casual employees “directly”, cl 33.1 operates  
with respect to casual employees “indirectly” by reason of cl 14.2. As mentioned earlier,  
although D&D submitted that the application of cl 33.1 to casual employees was very  
much in issue before the Full Bench, the true position is that D&D expressly conceded, in  
clear terms, that cl 33.1 applied to casual employees “indirectly” by reason of cl 14.2 as  
correctly recorded by the Full Bench at FB [9].  
61. Thirdly, cl 14.6 (set out above at [51]) states that a “casual employee required to work  
overtime or weekend work will be entitled to the relevant penalty rates prescribed by  
clauses 36 – Overtime, and 37 – Penalty rates”, each of which is premised on work  
outside the ordinary spread of hours in clause 33.1. The evident intention is that  
overtime and penalty rates apply to casuals and that those provisions assume the spread  
of hours applies to casuals. In particular, cl 14.6 assumes that cl 36.2 – which provides  
for work outside the relevant ordinary hours worked Monday to Friday to be paid at  
overtime rates – applies to casual employees.  
62. Clause 33.4 limits a casual employee’s “ordinary hours” to 8 hours a day within the  
spread of hours of 7am to 6pm. This is confirmed by the 4 yearly review of modern  
awards – Construction awards [2019] FWCFB 8564 at [26], in which the Full Bench’s  
explanation of the role of cl 33.4 (by reference to an earlier decision) assumes that cl 33.1  
applied to all employees including casuals (citations omitted):  
Ordinary hours of work  
[26] In the September 2018 Decision we dealt with a range of claims  
and submissions concerning clause 33, Ordinary hours of work of the  
Building Award. We stated the following overall conclusions:  
[410] Consistent with the general approach contained in the  
August 2017 Statement, we consider that clause 33 should  
be varied in the following major respects in order for it to  
achieve the modern awards objective:  
...  
[411] There are some additional changes we will make to  
clause 33 which were not addressed in the proposed  
variation contained in the August 2017 Statement. We also  
propose to alter aspects of that proposed variation,  
specifically:  
...  
(2) We will add a daily maximum  
number of ordinary hours for casual  
employees, consistent with the  
submissions of the CFMMEU, and  
also for part-time employees. Our  
provisional view is that this daily  
maximum should be set at eight  
hours consistent with the position  
applying to full-time employees.  
...  
[29] The HIA’s submission opposed clause 33.4, which sets maximum  
daily ordinary hours for casual employees at 8 hours. It submitted  
that the current position should be retained which, it  
contended, was that casuals received overtime rates only if  
they worked in excess of 38 hours per week or outside the  
spread of ordinary hours. The HIA expressed concern that the new  
provision was at odds with the 2013 decision in Master Builders  
Australia Limited, where an application made by HIA to vary clause  
14.2 of the Building Award to include RDOs as one of the modern  
award matters which does not apply to casual employees due to the  
casual loading was rejected.  
...  
[31] MBA also expressed opposition to the establishment of a maximum  
number of daily ordinary hours for casual and part-time employees in  
clauses 33.3 and 33.4. It submitted that there is no current ambiguity  
with reference to ordinary hours of work for casual employees, and that  
such a clarification is unnecessary. It submitted that the current  
position is that casual employees work a maximum of 38  
ordinary hours per week within the span of hours under  
clause 33.1, and this satisfied s 134(1)(a) and (d)(i) of the FW Act as it  
sets out circumstances in which overtime is triggered ...  
[34] We have decided that we should not depart from the provisional  
views concerning clause 33 expressed in the September 2018 Decision,  
and the Building Award shall be varied to include the new clause  
proposed in that decision which we have earlier reproduced. We reject  
the submissions advanced by MBA and the Ai Group against that  
position. In respect of the proposed clauses 33.3 and 33.4, we confirm  
the view we expressed in the September 2018 Decision as follows:  
“[407] ... clause 33 in its current form does not provide for  
any maximum number of daily ordinary hours for casual  
employees (after which overtime penalty rates would be  
payable). Nor does it do so for part-time employees. In this  
respect also, the clause is not a fair and relevant standard,  
having regard in particular to the needs of the low paid  
(s.134(1)(a)) and the need to provide additional  
remuneration for employees working overtime (s.134(1)  
(da)(i) of the Act).”  
[35] There is no dispute that, under clause 33.1 as it currently  
stands, the maximum daily ordinary hours for full-time  
employees is eight, notwithstanding a daily span of hours of  
7.00am to 6.00pm. No evidence or persuasive submission  
has been advanced to justify a different position with respect  
to part-time or casual employees.  
(Emphasis added.)  
63. This decision confirms an assumption on the part of the Full Bench, consistent with an  
objective construction of the relevant provisions of the 2010 Award, that cl 33 applies to  
casual and part-time employees.  
The interrelationship of the definitions in cl 34.2  
64. Clause 34 of the 2010 Award included:  
34. Shiftwork  
34.1 General building and construction and metal and  
engineering construction sectors  
...  
34.2 Civil construction sector  
(a) Definitions  
For the purpose of this clause:  
shiftwork means any system of work in which operations are being  
continued by the employment of a group of employees upon work on  
which another group had been engaged previously  
day shift means any shift starting on or after 6.00 am and before  
10.00 am  
afternoon shift means any shift starting at or after 10.00 am and  
before 8.00 pm  
night shift means any shift starting at or after 8.00 pm and before  
6.00 am  
rostered shift means a shift of which the employee concerned has  
had at least 48 hours notice.  
65. As noted above, D&D contended that it was an error to construe cl 34 as only applicable  
to “night shift” work where that work also answered the defined term “shiftwork”. Put  
another way, even if an employee is not performing “shiftwork”— namely “work in which  
operations are being continued by the employment of a group of employees upon work  
on which another group had been engaged previously” — the employee is nevertheless a  
shiftworker if the employee works a period of time being a “day shift”, “afternoon shift”  
or “night shift”. This argument was not put to, nor considered, either by Deputy  
President Cross or the Full Bench.  
66. This construction of cl 34.2(a) must be rejected. The definition of “shiftwork” in cl  
34.2(a) identifies what “shiftwork” is for the purposes of the civil construction sector and  
for the balance of cl 34.2. The remaining definitions in cl 34.2(a) – “day shift”,  
“afternoon shift”, “night shift” and “rostered shift” – are subcategories of what is  
otherwise “shiftwork”. On D&D’s construction, most if not all employees are likely to be  
captured by cl 34.2 (irrespective of whether their work falls within the definition of  
“shiftwork”) because the remaining definitions cover 24 hours a day. The absurd result  
of this construction is that no employee would fall outside of cl 34.2, notwithstanding  
that the clause was evidently only intended to apply to “shiftwork”.  
67. Clause 34.2 applies for the purpose of exempting, where it applies, an employee from the  
operation of cl 33. A shiftworker will be paid in accordance with the less beneficial  
entitlements afforded by cl 34 rather than the more beneficial entitlements under cl 33.  
The correct construction of the definition of “shiftwork”  
68. As mentioned, this was the only issue raised before the Commission and the Full Bench.  
D&D has failed to demonstrate any error in the Commission’s construction. The  
definition requires: (a) that there be “system of work in which operations are being  
continued”; and (b) that the operations in the system of work are continued “by the  
employment of a group of employees upon work on which another group had been  
engaged previously” (emphasis added). The construction advanced by D&D is not within  
the ordinary meaning of the definition. Contrary to D&D’s submission, the definition  
does not capture the situation where employees carry out work at location A and other  
workers then carry out work at location B. Such work is not carried on “upon work” on  
which another group had been previously engaged.  
69. It is not necessary to determine whether the definition is apt to cover a system of work in  
which operations are being continued by the employment of a group of employees of  
employer X upon work on which another group of employees of employer Y had been  
previously engaged. This construction was advanced before this Court but not before  
Deputy President Cross or the Full Bench and the answer to it was not shown to be  
material to the Commission’s decisions.  
Conclusion in relation to jurisdictional error  
70. D&D has failed to establish that Deputy President misconstrued the 2010 Award. It  
follows that, even if such an error could have been one which established jurisdictional  
error, the application must be dismissed.  
Discretionary matters  
71. Two further matters should be mentioned.  
72. First, a matter militating against relief being granted even if error had been established,  
is the fact that the case put to this Court was, in nearly all respects, not put to the  
Commission or the Full Bench. Further, although not frankly acknowledged, the case put  
to this Court was in one central respect inconsistent with the way the matter was argued  
before Deputy President Cross and contrary to an express concession which had been  
made to the Full Bench.  
73. It is not in the interests of the administration of justice for this Court to entertain an  
application for judicial review of a decision of the Commission on a basis which is  
inconsistent with the way in which an applicant conducted the case before the  
Commission. Judicial review involves an examination of the decision challenged and the  
process pursuant to which that decision was made. Judicial review is not the occasion to  
advance a new case. To a large extent, that is what the applicant has done here. Except in  
one respect, D&D’s case on this application was either not argued before the  
Commission or the Full Bench or inconsistent with the case put. That is both  
unsatisfactory and would be a discretionary reason for refusing relief.  
74. Senior Counsel for D&D submitted that, even if it did make the concession that cl 34.2  
applied to its casual employees (which it plainly did), the Full Bench was bound to  
consider the question and address it. He submitted that the “Commission acts as a  
statutory gatekeeper to an agreement as between the parties; it is not performing an  
arbitral function”. According to D&D, neither the Commission nor the Full Bench was  
entitled to act upon what was common ground between the parties or a concession about  
the scope of a clause in an award. In all cases, D&D argued, it had to put the concession  
to one side and determine the matter for itself. This broad submission was made without  
reference to any authority. The effect of the submission is that the Commission is  
required to go behind each and every matter it is told is not an issue. The submission  
must be rejected.  
75. Secondly, D&D did not seek judicial review of the decision of the Full Bench. It is not in  
the interests of the administration of justice for this Court on judicial review to call up  
and quash the decision of a Commissioner and in doing so reach conclusions which are  
in substance contrary to the decision-making of the Full Bench in its appellate  
jurisdiction under the FW Act, unless this Court has also formed the view that the  
decision of the Full Bench is itself affected by error or there is some other compelling  
reason to do so: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at  
[54] to [56] (Mortimer J); Cook v Australian Postal Corporation [2017] FCA 509 at [67]  
(Katzmann J); Toma v Workforce Recruitment and Labour Services Pty Ltd [2020]  
FCA 1102 at [67] (Wigney J); Pal v Commonwealth of Australia [2020] FCA 1483 at  
[52] (Anderson J). As Mortimer J noted in Dafallah at [56] permitting an applicant to  
challenge decisions of a Commissioner on a basis which ignores a decision of the Full  
Bench would be to “permit an applicant in effect to circumvent the statutory appeal  
provisions and the limits Parliament has imposed by them”.  
76. Senior Counsel for D&D submitted that D&D was unable to challenge the Full Bench’s  
decision because the Full Bench had not made any orders. Senior Counsel contended  
that this was the effect of the decision of the Full Court in Teekay Shipping (Australia)  
Pty Ltd v Auld [2020] FCAFC 206, referring in particular to Teekay at [30]. Teekay at  
[30] is not authority for the proposition that, where a Full Bench decides to refuse  
permission to appeal but makes no order, a disappointed applicant for permission to  
appeal is unable to seek judicial review of the decision. D&D’s submission only needs be  
stated to be rejected. If the submission were correct, a decision refusing permission to  
appeal would not be judicially reviewable on the simple basis that the Full Bench made  
no order giving effect to its decision. No principled or other basis was identified as to  
why judicial review of the decision would not be available.  
CONCLUSION  
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the  
Reasons for Judgment of the Honourable Justices Katzmann, Thawley and Goodman.  
Associate:  
Dated: 8 July 2022  


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