2023 WAIRC 00787
QUESTIONS OF LAW REFERRED TO FULL BENCH
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00787

CORAM
: CHIEF COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL
COMMISSIONER T KUCERA

HEARD
:
WEDNESDAY, 28 JUNE 2023, TUESDAY, 8 AUGUST 2023, WEDNESDAY, 16 AUGUST 2023

DELIVERED : TUESDAY, 3 OCTOBER 2023

FILE NO. : FBM 1 OF 2023

BETWEEN
:
CITY OF COCKBURN
Applicant

AND

THE WESTERN AUSTRALIA MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES AND
THE LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION

Respondents

MINISTER FOR INDUSTRIAL RELATIONS,
THE WESTERN AUSTRALIAN LOCAL GOVERNMENT ASSOCIATION AND
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Intervenors

Catchwords : Industrial law (WA) - Questions of law - Referral to the Full Bench - Operation of the Industrial Relations Act 1979 (WA) - Relationship between awards and industrial agreements - Statutory interpretation - Principles applied - Operation and effect of s 41(9) of the Act - Legislative history of s 41 of the Act - Inconsistency between an award and an agreement - Agreement prevails - Whether the registration of Individual Flexibility Agreements clauses are contrary to and inconsistent with the Act - Individual Flexibility Agreements clauses invalid and of no effect - Whether the Commission can require that an agreement be varied under s 41(3) of the Act before registration - Obligation on Commission to register an agreement imposed under s 41(2) of the Act
Legislation : Acts Amendment and Repeal (Industrial Relations) Act (No.2) 1984 (WA) s 26
Fair Work Act 2009 (Cth) s 57(1); s 144; s 176(1)(b)(i); s 176(3); s 183; s 185; s 186; s 201(2); s 202
Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Regulations 2009 (Cth)
Fair Work (State Declarations – Employers not to be national system employers) Endorsement 2022 No. 1 (Cth)
Industrial Arbitration Act 1979-1982 (WA)
Industrial Relations Act 1979 (WA) Part II Division 2; Part II Division 2A; Part II Division 2B; Part II Division 3; Part II Division 4; Part 2AA; Part VID Division 2; Part VID Division 6; s 6; s 6(ac); s 6(ad); s 6(ae); s 6(ag); s 6(ca); s 6(d); s 23; s 27(1)(u); s 27(1)(k); s 29(1); s 30; s 32(2); s 37; s 40; s 41; s 41(1); s 41(2); s 41(3); s 41(4); s 41(6); s 41(9); s 41A; s 40B; s 42; s 43(1); s 44; s 46; s 49N; s 51; s 57(1); s 72A; s 80A(2); s 80BB; s 80BB(2); s 80BB(4); s 80BG; s 80BG(2); s 80BJ; s 80BK; s 80BT, s 83; s 97UF; s 114
Industrial Relations Act 1988 (Cth) s 152
Industrial Relations Amendment Act 1993 (WA) s 13
Industrial Relations (General) Regulations 1997 (WA) reg 7; reg 8; reg 8(2); schedule 4
Industrial Relations Legislation Amendment Act 2021 (WA)
Industrial Relations Regulations (Consequential Amendment) Regulations 2022 (WA) Part 4
Interpretation Act 1984 (WA) s 18
Labour Relations Reform Act 2002 (WA) s 131; s 132
Result : Order issued
REPRESENTATION:
Counsel:
APPLICANT : MS H MILLAR OF COUNSEL AND WITH HER MS K GROVES OF COUNSEL
WALGA : MS R MILLER AS AGENT
WASU : MR C FOGLIANI OF COUNSEL
LGRCEU : MR K TRAINER AS AGENT

INTERVENORS

MINISTER : MR R ANDRETICH OF COUNSEL
CFMEUW : MR TJ DIXON OF COUNSEL AND WITH HIM MR J NICHOLAS OF COUNSEL

Solicitors:
APPLICANT : MINTER ELLISON
WASU : FOGLIANI.LAW

INTERVENORS

MINISTER : STATE SOLICITOR’S OFFICE
CFMEUW : NICHOLAS LEGAL

Case(s) referred to in reasons:
AFMEPKIU V ELECTROLUX HOME PRODUCTS PTY LTD (2002) 115 IR 102
ALHMWU V NGALA FAMILY RESOURCE CENTRE (1996) 76 WAIG 1658
AMALGAMATED COLLIERIES OF WA LTD V TRUE (1938) 59 CLR 417 AT 423
AMALGAMATION OF THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS AND THE FOOD PRESERVERS' UNION OF WESTERN AUSTRALIA UNION OF WORKERS [2016] WAIRC 00966; (2017) 97 WAIG 148
AUSTRALIAN CONSERVATION FOUNDATION V COMMONWEALTH [1980] HCA 53; 146 CLR 493
AUSTRALIAN WORKERS UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS V LIFE BE IN IT (1994) 74 WAIG 2342
BURSWOOD RESORT (MANAGEMENT) LTD V AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION WESTERN AUSTRALIAN BRANCH [2002] WASCA 355; (2002) 83 WAIG 208
CITY OF ROCKINGHAM OUTSIDE WORKFORCE ENTERPRISE AGREEMENT 2020 [2021] FWCA 7052
CONFEDERATION OF WESTERN AUSTRALIAN INDUSTRY (INC) V WEST AUSTRALIAN TIMBER INDUSTRY INDUSTRIAL UNION OF WORKERS, SOUTH-WEST LAND DIVISION (1990) 71 WAIG 15
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS V SANWELL PTY LTD AND THE CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA [2004] WAIRC 10947; (2004) 84 WAIG 727
ELECTROLUX HOME PRODUCTS V AUSTRALIAN WORKERS UNION [2004] HCA 40; 221 CLR 309
HANSSEN PTY LTD V CONSTRUCTION, FORESTRY, MINING & ENERGY UNION [2004] 84 WAIG 694
HUNGRY JACKS PTY LIMITED AND ORS V WILKINS (1991) 76 WAIG 1751
JOHN HOLLAND PTY LTD V VICTORIAN WORKCOVER AUTHORITY [2009] HCA 45; 239 CLR 518
MALLINSON V SCOTTISH AUSTRALIAN INVESTMENT CO LTD (1920) 28 CLR 66 AT 73
MINISTER FOR LABOUR V COMO INVESTMENTS PTY LTD & ORS (1990) 70 WAIG 3539
NEW SOUTH WALES V COMMONWEALTH [2006] HCA 52; (2006) 229 CLR 1
NGALA FAMILY RESOURCE CENTRE V THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, MISCELLANEOUS WORKERS DIVISION, WESTERN AUSTRALIAN DIVISION (1996) 77 WAIG 2551
ONUS V ALCOA OF AUSTRALIA LTD [1981] HCA 50; (1981) 149 CLR 27
PROGRAMMED INDUSTRIAL MAINTENANCE PTY LTD V THE CONSTRUCTION INDUSTRY LONG SERVICE LEAVE PAYMENTS BOARD [2021] WASCA 208; (2021) 101 WAIG 1457
RE LUDEKE; EX PARTE CUSTOMS OFFICERS ASSOCIATION OF AUSTRALIA, FOURTH DIVISION (1985) 155 CLR 513
REGIONAL EXPRESS HOLDINGS LTD V AUSTRALIAN FEDERATION OF AIR PILOTS [2016] FCAFC 147
RUSSIO V AIELLO [2003] HCA 53; (2003) 215 CLR 643
THE AUSTRALIAN BANK EMPLOYEES UNION V FEDERATED CLERKS UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WA BRANCH AND ORS (1990) 70 WAIG 2086
UNIONS NSW V NEW SOUTH WALES [2023] HCA 4
WESTERN AUSTRALIAN PRISON OFFICERS UNION OF WORKERS (WAPOU) V MINISTER FOR CORRECTIVE SERVICES [2022] WAIRC 00636; (2022) 102 WAIG 1188
WORK HEALTH AUTHORITY V OUTBACK BALLOONING PTY LTD [2019] HCA 2; (2019) 266 CLR 428


Reasons for Decision

FULL BENCH:
Background
1 On 1 January 2023, the local government industry transitioned from the national industrial relations system to the State industrial relations system, as a consequence of the Industrial Relations Legislation Amendment Act 2021 (WA), the Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth) and the Fair Work (State Declarations – Employers not to be national system employers) Endorsement 2022 No. 1) (Cth). Additionally, complementary State Regulations, in Part 4 of the Industrial Relations Regulations (Consequential Amendment) Regulations 2022 (WA), amended the Industrial Relations (General) Regulations 1997 (WA) to declare, for the purposes of s 80A(2) of the Industrial Relations Act 1979 (WA), that local government employers are not to be national system employers under the Fair Work Act 2009 (Cth).
2 The effect of the new Part 2AA of the Act, in particular s 80BB, is to create an industrial instrument, known as a ‘new State instrument’, where immediately prior to the commencement day, an instrument made under the FW Act, applied to ‘a declared employer and a declared employee’. The latter are employers and employees in local government, subject to the above transitional instruments.
3 Upon commencement of the legislation, an award or enterprise agreement made under the FW Act became, under s 80BB(2), an ‘industrial agreement’, described as a new State instrument and ‘applied’ to a declared employer and employees. Section 80BB is in the following terms:
80BB. New State instruments
(1) This section applies —
(a) to the extent section 80BA does not provide for a declared employee of a declared employer; and
(b) if, immediately before the relevant day, a federal industrial instrument (the old federal instrument) applies to, or purports to apply to, the declared employee.
(2) On the relevant day, an industrial agreement (the new State instrument) applies to the declared employer and declared employees.
(3) The new State instrument is taken —
(a) to have been registered under this Act on the relevant day; and
(b) except as provided in this section or section 80BC, to have the same terms as the old federal instrument including those terms as added to or modified by any of the following —
(i) terms of a federal award incorporated by the old federal instrument;
(ii) orders of a federal industrial authority;
(iii) another instrument under the national fair work legislation or the repealed Workplace Act;
and
(c) to have a nominal expiry date that is the earlier of the following —
(i) a day that is 2 years after the relevant day;
(ii) the day that, immediately before the relevant day, was the nominal expiry day of the old federal instrument.
(4) This Act applies in relation to the new State instrument subject to any modifications or exclusions prescribed by regulations for this subsection.
(5) The new State instrument applies except as provided in the MCE Act.

4 Additionally, as a part of the statutory scheme to give effect to the transition, by s 80BG, federal organisations referred to in a new State instrument are taken to be a reference to a State organisation of which the federal organisation is the federal counterpart body. If no federal counterpart body exists, the federal organisation is taken to be a State organisation for the purposes of representing the industrial interests of declared employees employed by a declared employer.
5 Additionally, for the purposes of s 80BB(4) of the Act, a new reg 8 of the General Regulations was made in the following terms:
8. Modification of application of Act to new State instrument (Act s. 80BB(4))
(1) This regulation applies for the period of 2 years beginning on 1 January 2023.
(2) For the purposes of section 80BB(4) of the Act, while the new State instrument is in force an award does not apply to the declared employer and declared employees, unless the new State instrument provides otherwise.

6 In accordance with the above scheme, the City of Cockburn Enterprise Agreement 2019 – 2022 made under the FW Act, became a new State instrument on 1 January 2023. By s 80BB(2) of the Act, this enterprise agreement is taken to be an industrial agreement registered under s 41 of the Act.
7 The parties have negotiated a new agreement, the City of Cockburn Enterprise Agreement 2022 (Agreement), and sought to have it registered as an industrial agreement under s 41 of the Act. As such, upon registration, the new State instrument will cease to have effect. When registered, the Agreement will be made as an industrial agreement under Division 2B – Industrial agreements and that Division will apply to it accordingly.
8 The making, registration and effect of industrial agreements is dealt with in s 41 of the Act. It is as follows:
41. Industrial agreements, making, registration and effect of
(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of any related disputes, disagreements, or questions may be made between an organisation or association of employees and any employer or organisation or association of employers.
(1a) An agreement may apply to a single enterprise or more than a single enterprise.
(1b) For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to —
(a) more than one business, project or undertaking; or
(b) the activities carried on by more than one public authority.
(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission must register the agreement as an industrial agreement.
(3) Before registering an industrial agreement the Commission may require the parties to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.
(4) An industrial agreement extends to and binds —
(a) all employees who are employed —
(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii) by an employer who is —
(I) a party to the industrial agreement; or
(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
and
(b) all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope must be expressly so limited in the industrial agreement.
(5) An industrial agreement operates —
(a) in the area specified in the agreement; and
(b) for the term specified in the agreement.
(6) Notwithstanding the expiry of the term of an industrial agreement, it continues in force in respect of all parties to the agreement, except those who retire from the agreement, until a new agreement or an award in substitution for the firstmentioned agreement has been made.
(7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party to the agreement may file in the office of the Registrar a notice in the approved form signifying the party’s intention to retire from the agreement at the expiration of 30 days from the date of the filing, and, on the expiration of that period, the party ceases to be a party to the agreement.
(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.
(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

9 The registration of an industrial agreement is subject to only a few conditions or limitations under the Act, mainly found in s 41A, as follows:
41A. Which industrial agreements must not be registered under s. 41
(1) The Commission must not under section 41 register an agreement as an industrial agreement unless the agreement —
(a) specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation; and
(b) includes any provision specified in relation to that agreement by an order referred to in section 42G; and
(c) includes an estimate of the number of employees who will be bound by the agreement upon registration.
(2) The Commission must not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association.

10 There are other provisions of the Act that apply to certain subject matters contained in an industrial agreement registered under the Act, but they are not material for present purposes.
11 Whilst the Agreement is before the Commission for registration, two provisions of it are controversial. With the consent of the Chief Commissioner, these two clauses of the Agreement are the subject of a referral of questions of law to the Full Bench under s 27(1)(u) of the Act.
Questions of law referred
12 The questions of law referred to the Full Bench, as amended, are in the following terms:
Amended questions of law referred to the Full Bench
(1) The Commission has before it an application to register under s 41 of the Act the City of Cockburn Enterprise Agreement 2022. Two clauses are in issue in this matter:
(a) Clause 5 – Operation of the Agreement which is in the following terms:

5. Operation of the Agreement
1. This Agreement excludes the Municipal Employees' (Western Australia) Award 2021, the Local Government Officers' (Western Australia) Award 2021 and any other award made under the Industrial Relations Act 1979 (WA) (Award) that otherwise extends to and binds the Employees and Employer to whom this Agreement applies.
2. Other than statutory entitlements (for instances those contained in the MCE Act) this Agreement is intended to set out all of the Employees' terms and conditions of employment. To the extent that an Award provides for an entitlement that is different to or not otherwise referred to in this Agreement (including where this Agreement is silent on a matter provided for in an Award), any such Award entitlement will be inconsistent with this Agreement and this Agreement shall prevail.
3. It is agreed that for the life of this Agreement there shall be no extra claims outside the Agreement.
4. This Agreement will be read and interpreted in conjunction with the MCE Act. Where there is an inconsistency between this Agreement and the MCE Act, and the MCE Act provides a greater benefit, the MCE Act provisions will apply to the extent of the inconsistency.

(b) Clause 6 - Individual Flexibility Arrangements which is in the following terms:

6. Individual Flexibility Arrangements
x1. The Employer and an Employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:
a. the arrangement deals with one or more of the following matters:
i. arrangements about when work is performed.
ii. overtime rates.
iii. penalty rates.
iv. allowances.
v. leave loading; and
b. the arrangement meets the genuine needs of the Employer and Employee in relation to one or more of the matters mentioned in paragraph (a); and
c. the arrangement is genuinely agreed to by the Employer and Employee.
2. The Employer must ensure that the terms of the individual flexibility arrangement result in the Employee being better off overall than the employee would be if no arrangement was made.
3. The employer must ensure that the individual flexibility arrangement:
a. is in writing; and
b. includes the name of the Employer and Employee; and
c. is signed by the Employer and Employee and if the employee is under 18 years of age, signed by a parent or guardian of the Employee; and
d. includes details of:
i. the terms of the enterprise agreement that will be varied by the arrangement; and
ii. how the arrangement will vary the effect of the terms; and
iii. how the Employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and
e. states the day on which the arrangement commences.
4. The Employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.
5. The Employer or Employee may terminate the individual flexibility arrangement:
a. by giving no less than 28 days written notice to the other party to the arrangement; or
b. if the Employer and Employee agree in writing-at any time.

(2) The questions posed for consideration by the Full Bench are:
(a) Would the registration of the Agreement including clause 5 – Operation of the Agreement, in particular cl 5.2, be contrary to the Act?
(b) Would the registration of the Agreement including clause 6 – Individual Flexibility Arrangements, be contrary to the Act?
(c) Would the above clauses in the Agreement, if registered, be invalid and of no effect?
(d) Can the Commission, before registering the Agreement under s 41(2) of the Act, require the parties to effect a variation for a purpose other than 'giving clear expression to the true intention of the parties' under s 41(3) of the Act?

Intervention application
13 The parties to the referral are the employer, the City of Cockburn, and the two union parties to the proposed industrial agreement to be registered, the Western Australian Municipal, Administrative, Clerical and Services Union of Employees and the Local Government, Racing and Cemeteries Employees Union. Additionally, the Western Australian Local Government Association, representing local government employers, was granted leave to intervene under s 27(1)(k) of the Act. As the questions raise matters concerning the proper application of provisions of the Act in relation to the registration of industrial agreements in this jurisdiction, the Minister sought and was granted leave to intervene under s 30 of the Act.
14 After the referral of the questions to the Full Bench, but prior to the hearing of the matter, the Construction, Forestry, Mining and Energy Union of Workers, an organisation registered under the Act, also sought leave to intervene. The grounds of its application, whilst quite lengthy, are as follows:
Grounds and Reasons for Intervention
1. The CFMEUW seeks leave to intervene in order to make submissions in FBM 1/2023.
2. The CFMEUW has acted as expeditiously as possible in making this application to intervene. The Secretary of the CFMEUW only became aware of each of:
(a) Matter FBM 1/2023;
(b) The Directions issued by the Full Bench in FBM 1 /2023 on 29 June 2023; and
(c) The Order granting the Minister for Industrial Relations and the Western Australian Local Government Association leave to intervene in FBM 1/2023 dated 18 July 2023, on the afternoon of 19 July 2023.
3. In the time available, the CFMEUW has not been able to view the file in matter FBM 1/2023, however, it understands that the issues in the matter relate to clauses in the proposed s.41 industrial agreement that variously seek to:
(a) exclude the application of State awards so that the enterprise agreement can be read as a comprehensive stand-alone document (award offset clause).
(b) enable an employer and an employee to agree to vary the application of term of an enterprise agreement - namely an individual flexibility arrangement clause (IF A clause).
4. The CFMWUW understands that the issues as identified have given rise to the following questions of law referred to the Full Bench:
1. Would the registration of the City of Cockburn Enterprise Agreement 2022 including the award offset clause be contrary to the Industrial Relations Act 1979? (Question 1).
2. Would the registration of the Agreement including the IF A clause be contrary to the IR Act? (Question 2).
3. Would these clauses in the Agreement, if registered, be invalid and of no effect? (Question 3).
5. The CFMEUW is a respondent to an application made by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees under s.72A of the Act in relation to bargaining for the new City of Rockingham s.41 industrial agreement in Matter CICS 5 of 2023. In that application, the CFMEUW claims that it has both members in the relevant workforce of the City of Rockingham, and that it is entitled under its Rules to represent the interests of its members in a number of classifications that will be covered by the proposed s.41 industrial agreement.
6. The CFMEUW also has members in many other Local Government workforces in Western Australia.
7. The bargaining for the new City of Rockingham industrial agreement was on foot immediately prior to the time that FBM 1/2023 was listed for hearing. The extant City of Rockingham agreement (AG2021/8671) was made under the Fair Work Act 2009 (Cth): City of Rockingham Outside Workforce Enterprise Agreement 2020 [2021] FWCA 7052. Both the extant industrial agreement (in clauses 3.6 and 5), and the proposed replacement agreement from the City of Rockingham ( clauses 4 and 6) contain:
(a) An award offset clause;
(b) An IFA clause.
8. Given the:
(a) Industry-wide implications of the award offset clauses and IFA clauses in Local Government s.41 industrial agreements; and
(b) Specific implications for bargaining in relation to, and the carrying over of, an award offset clause and an IFA clause in the new City of Rockingham s.41 industrial agreement, there is a real likelihood that the CFMEUW' s interests and those of its members will be affected by any decision made in FBM 1/2023.
9. The CFMEUW is presently unaware of the positions taken by any of the parties or intervenors in FBM 1/2023 on the question of law posited, or whether there will be an active contradictor on all issues. The CFMEUW presently intends, subject to a grant of leave to intervene, to submit that:
1. In respect of Questions 1 and 3: An award offset clause:
(a) would be contrary to the IR Act, including s.41(9) which recognises the continued application of State Awards subject to any inconsistency with the terms of a s.41 industrial agreement; and (b) which in effect seeks to 'cover the field' to exclude the operation of State Award would not have that effect without more as it is a mere statement of intent of the parties that the substantive provisions of the Agreement itself must be capable of supporting: John Holland Pty Ltd v Victorian Workcover Authority [2009] HCA 45; 239 CLR 518 at p.526ff, [18], [20].
2. In respect of Questions 2 and 3: An IFA clause would be invalid and of no effect by reason of being inconsistent with the legislative regime which finds expression in ss.6(ad) and 41, and Part VID of the Act including provisions that provide for:
(a) the prevention of the making of an Employer-Employee Agreement (EEA) during the term of a s.41 industrial agreement (s.97UF);
(b) the appointment and regulation of bargaining agents for EEA negotiations (ss.97UJ, 97UK);
(c) EEA formalities (ss.97UL to 97UO); and
(d) the application of the no-disadvantage test to EEAs (ss.97VS, 97VT).
10. In addition to the CFMEUW's position in respect of Questions 1 and 2, the CFMEUW would make submissions relevant to all three Questions on the issue of whether a s.41 industrial agreement containing an award offset clause and IFA clause is capable of registration in light of:
(a) The effect these clauses have in circumventing and derogating from the sections of the Act that provide protection and rights to employees through award conditions and the primacy given to collective bargaining.
(b) The proper construction and application of s.41 of the Act which relevantly permits industrial agreements to be made with respect to:
(i) any "industrial matter" (as defined in s.7); or
(ii) the "prevention or resolution" of industrial disputes.
(c) The decision of Full Bench in CFMEUW v Sanwell Pty Ltd [2004] WAIRComm 10947; (2004) 84 WAIG 727 esp. at [138]-[146] and the reliance placed by the Full Bench (at [142]-[146]) on the decision of the Full Court in AFMEP &KIU v Electrolux Home Products Pty Ltd (2002) 115 IR 102 given that the Full Court decision was subsequently overruled in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 with the effect that an agreement that contained terms that did not pertain to that relationship of employer and employee could not be certified under federal industrial legislation.
11. For these reasons, the CFMEUW should be granted leave to intervene and to make submissions as foreshadowed.

15 The application by the CFMEUW was opposed by the other parties and WALGA. The Minister neither consented to nor opposed the application. Whilst the Full Bench originally proposed that the intervention application be dealt with on the papers by written submissions, the WASU sought to be heard and the matter was listed for hearing on 8 August 2023.
Mr Buchan’s affidavit
16 In support of its application for leave to intervene, the CFMEUW filed an affidavit of Michael John Buchan. Mr Buchan is the State Secretary of the CFMEUW and the Secretary of the WA Branch of the Construction and General Division of the CFMMEU, registered under the Fair Work (Registered Organisations) Act 2009 (Cth).
17 Mr Buchan testified that on 19 July 2023 he became aware of these proceedings and the various procedural directions and orders that had been made. He was informed of this by the union lawyer, Mr Catania. That afternoon, Mr Buchan instructed Mr Catania to brief the union solicitors to make an application for leave to intervene in these proceedings and attested to the truth of the grounds filed in support of the application, set out above. Mr Buchan also referred to becoming aware of information contained on the WALGA website, which referred to the ‘industry wide’ ramifications of the current proceedings, across the local government sector.
18 Mr Buchan also said that the union’s counterpart federal body, the Construction and General Division of the CFMMEU, is party to a number of industrial agreements in the local government sector, which he set out in annexure B to his affidavit. He understood that those agreements have now become new State instruments. Mr Buchan also testified that the union has members in the Western Australian local government sector, including those parties to the agreements set out in annexure B. In this respect, Mr Buchan referred to some 20 members employed by the City of Wanneroo under the City of Wanneroo Asset Operations Enterprise Agreement 2020, employed in various building trades classifications. The union is a named party to this agreement. Additionally, he said there are 10 members employed under the City of Perth Outside Workforce Enterprise Bargaining Agreement 2020, in various building trades classifications, and, again, the union is a named party to that agreement.
19 Mr Buchan testified that the classifications involved as specified under these local government agreements, include carpenters, plant operators, painters, signwriters, graffiti removalists, glaziers, plasterers, bricklayers, stoneworkers and ‘infrastructure tradespersons’ engaged in parks operations.
20 In addition to the above, Mr Buchan said that whilst not a party to the relevant agreement, the union has members employed by some local governments, and cited the City of Joondalup as an example. It was also Mr Buchan’s evidence that the CFMEUW intends to engage in bargaining in relation to new local government industrial agreements. Specifically concerning the City of Rockingham, Mr Buchan said that the union has been and remains involved in bargaining for the new agreement. He referred to assigning an organiser, Mr Mackrell, for this purpose. Mr Mackrell informed Mr Buchan that he attends meetings for the negotiation of the new agreement and the union also has two bargaining representatives on the bargaining committee, being Mr Carr and Mr Brownlie, who are both employed by the City. Mr Carr, who is a painter, was the employee representative signatory to the City of Rockingham Outside Workforce Agreement 2020.
Summons
21 In response to the CFMEUW application, the WASU issued a summons to produce to Mr Buchan, for the production of a range of documents in relation to the involvement of the CFMEUW in bargaining with the City of Rockingham for a new industrial agreement. The summons also sought information as to CFMEUW membership in the local government sector as at 28 July 2023, alternatively, CFMEUW membership records for members employed in local government. Additionally, the summons sought the production of email exchanges between Mr Buchan and the CFMEUW industrial officer Mr Singh, in relation to these proceedings. The WASU also requested Mr Buchan’s attendance for the purposes of cross-examination on his affidavit.
Application to set aside summons
22 In response to the WASU summons, the CFMEUW filed an application that the summons be set aside under s 32(2) of the Act. The grounds in support of the application to set aside the summons were as follows (footnotes omitted):
B. Grounds
Background
2. The Full Bench has listed four questions referred to it under s.27(1)(u) of the Act in FBM 1 of 2023 for hearing on 16 August 2023.
3. On 20 July 2023, the CFMEUW applied to intervene in FBM 1 of 2023.
4. The CFMEUW’s application to intervene has been opposed by the Applicant (City of Cockburn), the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU), and the LGRCEU. Submissions were received by those parties on 25 and 26 July 2023, together with evidence filed by the LGRCEU.
5. The CFMEUW filed its submissions, together with an affidavit sworn by Mr Buchan, on 28 July 2023 in support of its application to intervene.
6. The WASU sought to be heard rather than have the issue of intervention determined on the papers. The CFMEUW’s application to intervene was accordingly listed for hearing on 8 August 2023.
7. At 9:30am on 7 August 2023, whilst Mr Buchan was meeting with the Secretary of the WASU at the offices of UnionsWA in order to mediate an alleged demarcation dispute (CIC5 of 2023), the Secretary of the WASU served Mr Buchan with a witness summons dated 4 August 2023 (Summons).
8. The Summons seeks the production of various classes of documents. It does not seek that Mr Buchan appear to give oral evidence.
Reasons for orders sought
9. The onus is on the party who issued the Summons [sic] show cause why that person should appear and answer the terms of the Summons.
10. The Summons will serve to unnecessary complicate an interlocutory procedure that is capable of determination on the materials before the Commission.
11. A key principle of case management in the Commission is the reduction of hearing times and the speedy and inexpensive determination of proceedings: sections 22B, 27(1)(ha), 27(1)(hb) of the Act; cf Regulations 32A, 34 and 39(2) of the Regulations; Practice Note 1 of 2023 at [8]-[9].
12. In dealing with an interlocutory application, the Commission is not finally deciding any factual or legal aspect of the substantive controversy before it; and it is inappropriate to try to resolve conflicts of evidence on the affidavits before it.
13. The apparent purpose of the five categories of documents sought in the Summons is to canvass the matters in Mr Buchan’s affidavit. That should not be permitted on an interlocutory application of this nature. Neither should the WASU be permitted to Summons documents in these proceedings to canvass matters in issue in CIC5 of 2023.
14. The documents sought could not reasonably assist the Commission on the straightforward question of whether the CFMEUW has a sufficient interest to intervene. The Commission, when making its initial Directions, evidently considered the issue was capable of determination on written submissions alone.
15. The CFMEUW has submitted that the question of sufficient interest to intervene can be determined without evidence of, or reliance upon, actual membership. The fact it is party to relevant agreements and is involved in bargaining for new agreements is sufficient.
16. WASU seeks orders in CIC5 of 2023 that the WASU “has the right, to the exclusion of” the CFMEUW to “represent the industrial interests of all outside employees”; and that:
The Construction, Forestry, Mining and Energy Union of Workers does not have the right to represent under the Industrial Relations Act 1979 (WA) the industrial interests of outside employees employed in the enterprise of the City of Rockingham who are eligible for membership of the organisation.
17. The WASU’s application under s.72A necessarily assumes that the CFMEUW has current eligibility to enrol relevant members under its Rules. That is the status quo, and it the CFMEUW’s extant constitutional coverage is sufficient to satisfy the sufficient interest test.
18. Accordingly, the documents sought in:
(a) Categories 1 and 2 of the Summons – which apparently go to whether the CFMEU is involved in bargaining for any Local Government industrial agreements – a matter conceded by the LGRCEU in its materials;
(b) Categories 3 to 5 of the Summons – which apparently go to the issue of whether the CFMEUW has members employed by any Local Government employer – also a matter conceded by the LGRCEU in its materials, would not assist the Commission on the question of intervention.
19. Additionally, Mr Buchan’s affidavit was served some 10 days ago on 28 July 2023. The unexplained delay has left a very short time available for Mr Buchan to otherwise compile the materials and produce them before 8 August 2023 such as to also render the Summons oppressive.
20. For all of these reasons, the Summons for production should be set aside. The orthodox practice is to determine interlocutory questions concerning intervention on the materials filed. It would not be “just” in those circumstances to order that the Summons be answered: ss.26(1)(a) and 27(1)(o) of the Act.

23 At the hearing of the interlocutory application by the CFMEUW for leave to intervene, the WASU contended that it wished to cross-examine Mr Buchan on his affidavit and press the summons for production of documents. The WASU sought the production of documents as to when the CFMEUW became aware of these proceedings, and its decision to seek leave to intervene. The WASU contended that membership records were necessary to be produced by Mr Buchan to support his evidence that the CFMEUW has members in the local government industry. However, counsel accepted the proposition put by the Full Bench that evidence of membership of an organisation is not necessary for an organisation to seek the registration of an industrial agreement under s 41 of the Act, as eligibility for membership is sufficient in that respect.
24 In response, the CFMEUW submitted that the summons should be set aside as it was highly unusual for there to be a contested hearing on the merits, with cross-examination of deponents to affidavits and the production of documents, in an interlocutory application to intervene. The CFMEUW contended that it is a party to the extant City of Rockingham Enterprise Agreement and has been involved in bargaining in relation to the new agreement. Additionally, it was submitted that it is also a party to, ’covered by’ and a signatory to a number of local government enterprise agreements that are now new State instruments under the Act. These were set out at annexure B to Mr Buchan’s affidavit.
25 The CFMEUW also submitted that the statutory declarations of Mr Johnson and Ms Ballantyne filed by the LGRCEU, in opposition to the CFMEUW application to intervene, referred to the involvement of the CFMEUW in bargaining for enterprise agreements in local government, including at the City of Rockingham. They referred to the CFMEUW being present in some negotiation meetings, despite suggesting that it has a diminishing presence.
26 After hearing from the WASU and the CFMEUW in relation to the summons to Mr Buchan and the application to have it set aside, the Full Bench granted the application to set aside the summons, with reasons to be published in due course. The Full Bench also took Mr Buchan’s affidavit as read, along with the statutory declarations of Mr Johnson and Ms Ballantyne, on behalf of the LGRCEU.
27 In support of the application for leave to intervene the CFMEUW referred to the seven local government agreements annexed to Mr Buchan’s affidavit and that it is ‘covered’ by six of them, as prescribed by s 183 of the FW Act. The submissions also referred to the evidence of membership in the various local government workforces outlined in Mr Buchan’s evidence.
28 In reliance upon the terms of s 80BB and s 80BG(2) of the Act, read with reg 7 and schedule 4 of the General Regulations, it was submitted that those agreements are ‘industrial agreements’ as new State agreements and the CFMEUW is a named party to a number of them. It was contended that the City of Cockburn’s submissions to the contrary should not be accepted by the Full Bench. In reliance upon Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36, the CFMEUW submitted that the ‘sufficient interest test’ for the purposes of leave to intervene is a broad and flexible one, depending upon the nature of the proceedings. The question of sufficiency is not a matter of discretion, but rather degree and the relevant person seeking leave to intervene ought to have more than ‘a mere intellectual or emotional concern in the subject matter and outcome of the litigation’: Unions NSW v New South Wales [2023] HCA 4 at [21] – [22] per Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ.
29 It was also submitted that the question of construction of the Act is an issue in these proceedings, and the answers to the questions of law posed will affect clauses in all agreements that are of that kind, regardless of their specific content. In this regard, it matters not that the union is not a party to the Agreement. It was not contended that this formed the basis of the relevant interest. The CFMEUW’s submission was that there is a sufficient interest because of its named party status to a number of local government industrial agreements and its membership in the sector, and there was no need for an immediate or direct private right to be asserted: Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493 per Gibbs J at 526.
30 Furthermore, the CFMEUW submitted that the question of constitutional coverage, agitated by the WASU and the LGRCEU, carries with it an assumption that they have been successful in other proceedings under s 72A of the Act in applications CICS 5 of 2023 and CICS 8 of 2023, presently before the Commission in Court Session. The submission was that it is erroneous to adopt that approach, given that the status quo regarding what is before the Full Bench, is that the CFMEUW is a party to relevant local government agreements, as new State agreements, participates in bargaining for agreements in the sector and has membership. Furthermore, it was submitted that the industry wide implications of the matters before the Full Bench, specified in the CFMEUW’s application for leave to intervene, are not contested by the other parties to the proceedings. An additional submission was that no material prejudice was identified in opposition to the CFMEUW’s application.
31 The WASU, the LGRCEU, the City of Cockburn and the WALGA, all opposed the intervention application. The WALGA adopted the submissions of the City of Cockburn in this regard.
WASU submissions
32 On behalf of the WASU, it was submitted that the CFMEUW, not being a party to the City of Cockburn Enterprise Agreement 2022, should be regarded as an ‘intruder’ into the rights of the City of Cockburn and the union parties to it and there is otherwise an insufficient interest to justify its intervention in the proceedings: Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513. After referring to the relevant principles in relation to the grant of leave to intervene under s 27(1)(k) of the Act, as discussed by the Full Bench in Amalgamation of the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and the Food Preservers' Union of Western Australia Union of Workers [2016] WAIRC 00966; (2017) 97 WAIG 148, the WASU submitted the question for determination is whether the CFMEUW will be denied natural justice if it is prevented from intervening. The WASU submitted that that question should be answered in the negative.
33 In relation to the relevant principles, the WASU contended that the CFMEUW’s rights are not direct, and it has no direct interest in the outcome of the proceedings. This is because, as the submission went, the CFMEUW is not a party to the Agreement and, if it is registered, the Agreement will not confer any rights on or impose any obligations on the CFMEUW.
34 In the alternative, whilst the decision of the Full Bench in Re AWU recognises that in certain situations an indirect interest will be sufficient, the CFMEUW has no such sufficient interest in these proceedings. This is because it cannot speak on behalf of the local government industry; there is an absence of evidence to support its contentions; its presence in the industry is contentious in the proceedings in application CICS 5 of 2023 and CICS 8 of 2023; the CFMEUW has no interest beyond the interest of any other registered organisation or employer under the Act; would have no standing to seek a writ of prohibition; and, if granted leave to intervene, it would effectively constitute interference with the rights and interests of the City of Cockburn, the WASU and the LGRCEU.
LGRCEU submissions
35 Similarly, the LGRCEU contended that the CFMEUW bears the onus to persuade the Full Bench that it should be granted leave to intervene. The LGRCEU did not cavil with the CFMEUW’s submissions as to the relevant principles to apply. In particular, it was accepted that, for the purposes of s 27(1)(k), whether a person’s interest is ‘sufficient’ is a question of degree and not one of discretion.
36 In this regard, the submission was made by the LGRCEU that findings of fact are necessary in order to support the grant of leave to intervene and the degree of membership of the CFMEUW is a relevant consideration. Further, not only is membership a relevant consideration, but it should be membership large enough to satisfy the sufficient interest criterion. In this regard, reliance was placed upon statutory declarations made by Mr Johnson, the Secretary of the LGRCEU, and the Assistant Secretary, Ms Ballantyne to the effect that the CFMEUW membership in the local government industry is quite limited. An assertion was also made by the LGRCEU in the statutory declarations regarding the CFMEUW’s propensity to enrol persons as members, not eligible to belong to the union. And that the CFMEUW’s constitutional right to do so is contested by both the LGRCEU and the WASU.
37 Also relevant, according to the LGRCEU, is the level of participation of the CFMEUW in the local government industry and, on the statutory declarations of Mr Johnson and Ms Ballantyne, that is a declining presence. Nor, according to the LGRCEU, does the CFMEUW have a sufficient indirect interest to warrant granting leave to intervene. Along with the WASU submission, it was contended that the CFMEUW’s interests are no greater than any other person operating in the State jurisdiction, which is of itself, an insufficient indirect interest to warrant granting leave to intervene.
City of Cockburn submissions
38 The City of Cockburn made submissions to the effect that the intervention application by the CFMEUW should be rejected because, in summary, it is not a party to the Agreement; it was not involved in bargaining for the Agreement; and it does not represent the industrial interests of any of the employees at the City of Cockburn.
39 The City of Cockburn referred to the letter from the Full Bench dated 26 July 2023, which set out a list of enterprise agreements made under s 185 of the FW Act, which became new State instruments under s 80BB of the Act. Submissions were made as to the effect of s 183 of the FW Act, in relation to an organisation applying to be ‘covered by’ an enterprise agreement once the agreement is made. It was contended that being ‘covered by’ an agreement in this way, does not make the organisation a ‘party’ to the agreement. It was contended, therefore, that the CFMEUW could not be a party to an industrial agreement deemed to be made under s 41 of the Act. Nor, according to the City of Cockburn, is the CFMEUW named in the proposed Agreement.
40 In referring to the relevant principles discussed by the Full Bench in Re AWU, the City of Cockburn referred to a decision of Emmanuel C in Western Australian Prison Officers Union of Workers (WAPOU) v Minister for Corrective Services [2022] WAIRC 00636; (2022) 102 WAIG 1188. This case concerned an application to interpret an industrial agreement between the WAPOU and the Minister, in which the Civil Service Association sought leave to intervene. The basis of the application being that the CSA is a party to a number of public sector industrial instruments and the Public Service Award 1992, which contain clauses with very similar wording to the disputed clause in the proceedings. Commissioner Emmanuel found that this was an insufficient basis for the CSA to be granted leave to intervene.
41 Adopting this approach, the City of Cockburn submitted that nor does the CFMEUW have a sufficient interest in these proceedings, as it is not a party to the Agreement, and does not represent the industrial interests of employees of the City of Cockburn. Furthermore, to the extent that the Agreement may have an Award Offset Clause and an IFA clause, the mere fact of similar wording in clauses in other agreements is too tenuous to support a sufficient interest for leave to intervene. This issue also may be impacted by the s 72A proceedings, on the City of Cockburn submissions.
42 Given that the rights and interests relevantly for present purposes, are those of the parties to the Agreement, it was contended that no such rights arise in relation to the CFMEUW. Accordingly, the application should be dismissed.
Disposition of summons and the application for leave to intervene
43 For the reasons that follow, the Full Bench considered it was unnecessary for there to be further evidence from Mr Buchan, or for him to produce documents, in order to decide the issue of leave to intervene. The additional documents sought were not necessary to support the CFMEUW’s application for leave to intervene and there was sufficient material before the Full Bench to consider the application, as we shall explain below.
44 Additionally, at the conclusion of the hearing, the Full Bench informed the parties that it was satisfied that the CFMEUW should be granted leave to intervene, with reasons to be published in due course. These are our reasons.
45 The power to grant leave to intervene in a matter is set out in s 27(1)(k) of the Act, which is as follows:
27. Powers of Commission
(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —
…
(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; …

46 The relevant principles as to intervention applications are well settled in this jurisdiction and are not in contest. The leading High Court authority is Re Ludeke. This and other cases, were discussed by the Full Bench in Re Australian Workers' Union. The Full Bench at [17] to [21] observed as follows:

17 The principles for the Commission to consider when determining whether to exercise its discretion to allow a person to intervene in proceedings pursuant to its power to do so under s 27(1)(k) of the IR Act, in particular the determination whether a person has, in the opinion of the Commission, a sufficient interest in a matter that that person should be heard, were considered by Sharkey P in Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343. In Gairns the substantive application was an application brought before the President's original jurisdiction under s 66 of the IR Act for an interpretation of union rules. The federal nursing union, the Australian Nursing Federation, sought intervention in the proceedings. So, too, did federal and state Academic Unions. President Sharkey found that the most helpful dissertation of principles relating to intervention was set out in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86.
18 In Ludeke, the matter before the High Court was an application by the Customs Officers' Association of Australia, Fourth Division to make absolute an order nisi for a prerogative writ to quash an order made by Justice Ludeke that leave be granted to the Administrative and Clerical Officers' Association, Australian Government Employment (ACOA) to intervene in the matter subject to limitation on certain questions it raised in its submissions in a demarcation dispute between that union and the ACOA. Chief Justice Gibbs at (519) - (520), with whom Dawson J agreed, observed:
The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at p. 552); Reg. v. Moore; Ex parte Victoria ((1977) 140 C.L.R. 92, at pp. 101-102); Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) ((1978) 140 C.L.R. 615, at p. 620). That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.).
19 From these observations of Gibbs CJ in Ludeke, the following principles emerge:
(a) Every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and
(b) The principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.
20 Justice Mason in Ludeke made similar observations. He observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission (523). His Honour found that if an organisation has a substantial interest sufficient to sustain an application to the court for prohibition then, generally speaking, it is desirable that the Commission should recognise that interest, subject to discretionary considerations, as a basis for intervention (525). In making this observation, his Honour had regard to the decision in R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 where it was found that where the prosecutor had relevant coverage under its eligibility rule there could be no doubt that it had a substantial interest sufficient to sustain its intervention and that a lack of coverage would result in the prosecutor's interest being much more tenuous (525). Justice Mason in Ludeke also said (527):
Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings. It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them.
21 Justice Brennan said that he generally agreed with the judgment of the Chief Justice. His Honour then went on to add that in determining whether a repository of a statutory power is bound to hear a person who is not directly involved in proceedings regard must be had (528):
to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at pp. 411-412)), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott ([1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137- 141). But that is not an absolute rule.

47 There was material before the Full Bench to establish that the CFMEUW had a sufficient interest for the grant of leave to intervene in these proceedings. From the information provided by the Full Bench to the parties, by letter of 26 July 2023, and as referred to at annexure B to the affidavit of Mr Buchan, there are at least seven enterprise agreements applying to local government employers made under the FW Act, that specify the CFMMEU as a ‘party’, and/ or being ‘covered by’ under s 183 of the FW Act. In most of them, Mr Buchan is a signatory to the relevant enterprise agreement. The CFMEUW is not a mere spectator or bystander in relation to most of these industrial instruments.
48 Whilst the City of Cockburn made submissions about the status of an organisation covered by an agreement under s 183 of the FW Act, an employee organisation, in order to be covered by an enterprise agreement, needs to be a ‘bargaining representative’. By ss 176(1)(b)(i) and (3), an organisation cannot be a bargaining representative of an employee who will be covered by an enterprise agreement, unless the organisation is entitled to represent the industrial interests of the employee in relation to work to be performed under the agreement and the employee is a member of the organisation. This means the employee must fall within the eligibility for membership rule of the organisation: Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147 per Jessup J (North and White JJ agreeing) at [56] to [60].
49 We tend to agree with the City of Cockburn that the mere giving of a notice to the Fair Work Commission under s 183 of the FW Act would not, of itself, be conclusive that an organisation participated in bargaining for an agreement. But, once an order is made by the Fair Work Commission approving an agreement under s 186 of the FW Act and notes that an organisation be covered by the agreement under s 201(2), supported by evidence, then this must be conclusive that the relevant organisation participated in bargaining for the agreement, and obtained standing accordingly. Otherwise, the relevant statutory scheme would be undermined.
50 By the terms of Part 2AA of the Act, in particular s 80BB set out above, and also s 80BG(2), on and from 1 January 2023, these enterprise agreements made under the FW Act became new State instruments under the Act. From that time, they were taken to be industrial agreements ‘registered under the Act’. The only agreement capable of registration under the Act is an industrial agreement registered under s 41. Such agreements are taken to have been made between the relevant State organisation and the employer to whom the industrial agreement extends to and binds: ss 41(1) and (4) Act. Thus, there being no dispute that the CFMMEU is the counterpart federal body of the CFMEUW, by s 80BG(2), the industrial agreements referred to above, now new State instruments, have the CFMEUW as a named party or signatory to them.
51 In our view, the statutory scheme is clear. It is the plain intention of the Parliament, in enacting these provisions, from their terms, that there be continuity of coverage of former enterprise agreements made under the FW Act, by the same employees and employers and organisations under the Act, as a new State instrument, as part of the transitional scheme. In other words, the status quo is intended to apply for the transition period until a new industrial agreement is made, for example. This principle of continuity is also reflected in ss 80BT, 80BJ and 80BK of the Act, in relation to the continuity of service and leave entitlements for employees covered by a new State instrument.
52 Whilst the proceedings before the Full Bench on the question of law involve the agreement at the City of Cockburn, where the CFMEUW is not directly involved, it is beyond doubt in our view, that the issues arising in these proceedings have implications for the local government sector as a whole. Indeed, Minter Ellison, the solicitors for the City of Cockburn, with the support of the WALGA, wrote to the Chief Commissioner on 27 June 2023 and referred to the registration of the agreement proceedings before Walkington C. It was contended that the issues now the subject of the questions of law be referred to the Full Bench, due to the ramifications for the local government industry. Annexure A to Mr Buchan’s affidavit is a copy of a notice on the WALGA website in these terms ‘Issues arising from the Commission industrial agreement approval process’, which appears to support this broader industry focus.
53 All of the enterprise agreements set out at annexure B to Mr Buchan’s affidavit contain an IFA clause. Most of them also contain an exclusion provision in one form or other, in relation to the application of other industrial instruments.
54 Declarations and orders made in these proceedings, which may lead to one or another or both of the clauses of the Agreement being impugned, may directly affect the CFMEUW, as a party to or being a person bound by the relevant industrial agreements. The impugning of one or another or both clauses will alter the bargain struck between the parties, as set out in the agreements. As an industrial agreement deemed to be made under the Act, party status, as a person bound by an industrial agreement, is conferred on the CFMEUW, or any other organisation party to or bound by an industrial agreement. Under the Act, being bound by an industrial agreement provides standing for an organisation in relation to:
(a) an application under s 42 of the Act, in relation to bargaining for a replacement industrial agreement;
(b) an application to the Commission under s 44 of the Act, in relation to an industrial dispute concerning parties to a relevant industrial agreement and the employees covered by it;
(c) an application to the Commission to interpret the industrial agreement under s 46 of the Act; and
(d) proceedings for the enforcement of an industrial agreement under s 83 of the Act.
55 The alteration of an industrial agreement by a declaration that one or another or both of the clauses in contention in these proceedings, are void or voidable, either in whole or in part, may alter the enforceable content of the relevant industrial agreement and the certainty of the application of any underpinning award, in terms of applicable terms and conditions of employment that may apply to relevant employees. The parties to and persons bound by such an industrial instrument are directly affected by the terms of it and the nature of the matters that may be progressed, in invoking the Commission’s jurisdiction, set out above.
56 As to the argument advanced by the City of Cockburn that intervention should be rejected based upon the approach taken by Emmanuel C in WAPOU, we are not persuaded that this case assists the City’s argument. That case dealt with the interpretation of an industrial agreement. Commissioner Emmanuel at [40] to [42] recognised that, when determining the objective intention of parties as to the text of a clause in an agreement, context is important, which may be peculiar to the particular agreement and the parties to it. This does not lend itself to applying the same approach to another agreement, even with similarly worded provisions, but which arose in a context particular to that other instrument and the parties to it.
57 In our view, for the foregoing reasons, there is a direct interest arising for the CFMEUW, as a proposed intervenor, as a consequence of the possible outcome of these proceedings. In and of itself, this is a sufficient interest, without the need to consider the ancillary issue of union membership, which appeared to occupy some degree of debate between the parties and the proposed intervenor.
58 Despite this, however, on the evidence as a whole, including that of the LGRCEU, there appears to be some involvement of the CFMEUW in bargaining meetings for a new agreement at the City of Rockingham. There would also appear to be, although it was cavilled with, some evidence of membership in various classifications, that may be seen, prima facie, to fall within the CFMEUW constitution rule. However, we say nothing more about these issues, as they are the subject of disputed proceedings before the Commission in Court Session in applications CICS 5 of 2023 and CICS 8 of 2023.
59 If we are incorrect and the CFMEUW only has an indirect interest, by reason of the matters set out above, in all of the circumstances of this case, applying the principles discussed in Re Ludeke, we are satisfied that such an indirect interest is sufficient to grant the CFMEUW’s application for leave to intervene in these proceedings.
60 We turn now to consider the questions of law.
Would the registration of the Agreement including clause 5 – Operation of the Agreement, in particular clause 5.2, be contrary to the Act?
City of Cockburn
61 The City of Cockburn submitted that the effect of s 41(9) when read with cl 5 of the Agreement is intended to establish the Agreement as a comprehensive document setting out all of an employee’s terms and conditions of employment, without the need to have recourse to any other industrial instrument, other than statutory entitlements. It was submitted that, in particular, cl 5.2 is crucial to the bargain struck between the parties under the Agreement, and when read with s 41(9) ‘gives effect to a practical and efficacious industrial instrument’ (written submissions at [18]).
62 In the event that cl 5.2 in particular was held to be invalid, the City of Cockburn contended this would, in all likelihood, require a renegotiation of the Agreement relative to the terms of the various applicable awards. Accordingly, it contended that the answer to this question should be ‘no’.
WALGA
63 The WALGA adopted the City of Cockburn submissions regarding this question. The WALGA also submitted that, as a part of the transitional issues associated with the transition of local government employers from the national industrial relations system to the State industrial relations system, one issue identified was the effect of s 41(9) of the Act in relation to new State instruments. This led to the making of reg 8(2) of the General Regulations, set out above, which provides that, during the term of a new State instrument, a State award will not apply unless provision is made to the contrary.
WASU
64 On behalf of the WASU, it was submitted that the registration of the Agreement inclusive of cl 5 would not be contrary to the Act. The thrust of the WASU submission was that cl 5.2, on its ordinary meaning, provides that all relevant awards that would otherwise apply to the City of Cockburn are deemed inconsistent with the Agreement, which brings into play s 41(9), such that the awards do not apply to the employer and the employees covered by the Agreement.
LGRCEU
65 The LGRCEU adopted a different approach to this first issue. It was submitted that in particular cl 5.2 of the Agreement does not adopt s 41(9). The union submitted that the purpose and effect of cl 5.2 is to exclude the operation of relevant awards in their entirety with the result that all terms and conditions of employment of employees covered by the Agreement are set out in the Agreement itself. By way of contrast, when considering the terms of s 41(9), the submission was made that its purpose and effect is to resolve inconsistencies between two industrial instruments, an award and an industrial agreement. For s 41(9) to be enlivened, both an award and an industrial agreement must have potential application, with the terms of s 41(9) resolving any conflict.
66 In this case, the LGRCEU contended that the intended effect of cl 5.2 of the Agreement is to exclude the possibility of any inconsistency or contrary terms because the purported effect of the clause is to oust the operation of an award entirely. This was submitted to be invalid on the basis that the effect of the clause is to purport to exclude the award framework, which the LGRCEU contended was not permissible under the terms of the Act.
CFMEUW
67 On behalf of the CFMEUW, it was contended that the terms of cl 5 is contrary to the Act and is invalid. It was submitted that cl 5 extends beyond the intended operation and effect of s 41(9), which deals with inconsistency or contrary provisions between an award and an industrial agreement. In particular, cl 5(2) does not merely intend to give primacy to the Agreement, in relation to any inconsistency or contrary terms, but rather, to exclude the operation of any relevant award regardless of whether there is textual inconsistency or not. In this sense, the CFMEUW submitted that the terms of cl 5 and in particular cl 5(2), is an attempt at a bare exclusion of any State award, thereby circumventing the effect of s 41(9) of the Act.
68 As a part of its submissions, the CFMEUW referred to the history of the City of Cockburn Enterprise Agreement 2019-2022, which was approved under the FW Act. In particular, reference was made to s 57(1) of the FW Act, which provides that a ‘modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment’. It was submitted that this provision clearly underlays the same term in the former federal agreement, carried over as a new State instrument under the Act. This is given effect by the terms of reg 8 of the General Regulations. It was submitted that this approach is inconsistent with the scheme of collective bargaining in the State system, which is underpinned by the terms of a relevant award.
69 In this respect, the CFMEUW referred to a decision of the Full Bench in ALHMWU v Ngala Family Resource Centre (1996) 76 WAIG 1658. In particular, the observations of Sharkey P and Coleman CC at 1662, that enterprise bargaining under the then Statement of Principles does not ‘separate from the existence of an award’. In referring to ss 37 and 40B of the Act, dealing with the common rule application of an award and the ability of the Commission of its own motion to deal with important matters such as minimum conditions of employment and discriminatory provisions, the CFMEUW submitted that these powers would be rendered nugatory if the terms of cl 5 were held to be valid and the Agreement registered.
70 The CFMEUW responded to the Minister’s submission that if the Agreement simply sought to exclude the operation of relevant awards without itself prescribing terms and conditions of employment, this would arguably be inconsistent with the Act. It contended that to the extent that cl 5(2) provides for the exclusion of award entitlements where no such entitlement is specified in the Agreement and also where the Agreement is silent on a matter provided for in an award, then this precisely seeks what the Minister says is arguably contrary to the Act.
71 As to the question of inconsistency, again referring to the Minister’s submissions in relation to the ‘covering the field’ test of inconsistency, the CFMEUW submitted that the decisions in John Holland Pty Ltd v Victorian Workcover Authority [2009] HCA 45; 239 CLR 518 and Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 do not assist the Minister. It was submitted that those two decisions are authority for the proposition that a statement of intent that a Commonwealth Act ‘covers the field’, as a question of statutory interpretation, is only relevant to the issue of the existence of such an intention. The substantive provisions of the statute in question must be capable of supporting such a conclusion.
72 On this basis, the CFMEUW contended that cl 5 travels well beyond such a circumstance, because it expressly acknowledges there may be no Agreement provision upon which any inconsistency could be based. Overall, it was submitted that cl 5 should be regarded as invalid, as it is no more than an attempt to undermine the award-based system underpinning collective bargaining, within the framework of the Act.
Minister
73 For the Minister, his submission was that cl 5 is valid and would not be contrary to the Act in the sense of being inconsistent with the legislation: Minister for Labour v Como Investments Pty Ltd & Ors (1990) 70 WAIG 3539 at 3543. The overarching submission of the Minister was that the terms of cl 5 of the Agreement, represent an attempt to ‘cover the field’ and to provide a scheme of comprehensive regulation of terms and conditions of employment for the employer and employees to be bound by the Agreement. This was said to be a permissible course under the Act.
74 In the terms of the language of s 41(9), the Minister contended that given the provisions of cl 5.1 it excludes the application of any relevant award completely. Secondly, cl 5.2 has the effect of deeming award provisions that are different to or not otherwise referred to in the Agreement as being inconsistent with it. On this basis, for the purposes of s 41(9), the Minister submitted that these provisions are properly characterised as being ‘contrary to or inconsistent’ with the relevant awards.
75 In support of his submissions, the Minister referred to the tests of constitutional inconsistency under s 109 of the Commonwealth Constitution, between a State law and a Commonwealth law, either on the basis of direct inconsistency or indirect inconsistency/covering the field approach. In this respect, the Minister referred to Outback Ballooning. The Minister also referred to the wide scope of the indirect inconsistency approach, as determined by the High Court in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 at [370]. It was submitted that this case is authority for the proposition that indirect inconsistency may also arise where a Commonwealth law creates a scheme of less detailed regulation than the provision of a State law, as well as where a more detailed form of regulation exists.
76 Adopting this broad-brush approach, the Minister therefore contended that if the Agreement only sought to exclude the operation of relevant awards without itself setting out terms and conditions of employment, then this would arguably amount to an attempt to manufacture inconsistency and arguably be contrary to the Act. On this basis, s 41(9) would have no work to do, as there would be no inconsistency. The Minister contended, however, that there is no such suggestion by any party to these proceedings.
77 It was the Minister’s submission that cl 5 of the Agreement constitutes a clear and unambiguous expression of intent to completely cover the terms and conditions of the employees’ employment to the exclusion of any relevant award. On this basis, the effect of s 41(9) would mean that the Agreement would prevail over any relevant award that otherwise may apply.
Disposition of cl 5 issue
78 In our view, for the following reasons, the registration of the Agreement including cl 5 as proposed, would not be contrary to the Act.
79 Section 41(9) of the Act, set out above, deals with the relationship between an award and an industrial agreement. Both an award made under Part II Division 2 of the Act, and an industrial agreement registered under s 41 of the Act, in Part II Division 3 of the Act, are industrial instruments that prescribe terms and conditions of employment for employees subject to and bound by the award and industrial agreement respectively. There is nothing to suggest from the terms of the Act, when read as a whole, that an award must be in existence before an industrial agreement can be registered. There is nothing, in the Act, as a whole, to suggest that an industrial agreement is an inferior instrument: Hungry Jacks Pty Limited and Ors v Wilkins (1991) 76 WAIG 1751 per Anderson J at 1756. The Act contemplates that both forms of industrial regulation may be made and given effect under the Act. Both an award and an industrial agreement, once the agreement is registered under s 41, have statutory effect.
80 There is nothing in the objects of the Act in s 6, that suggests to the contrary. Rather, the objects of the Act in ss 6(ad), (ae) and (ag) encourage the making and registration of industrial agreements. The only question of primacy dealt with in the objects of the Act, is that provided in s 6(ad), to the effect that the Act promotes collective bargaining and the primacy of collective agreements (which must be industrial agreements) over individual agreements.
81 In the Hungry Jacks case, prior to s 41(9) being inserted into the Act, the Industrial Appeal Court dealt with the question of a conflict between the terms of an award and terms of an industrial agreement that applied to the employer and its employees. The award was an award applying by common rule and the agreement applied only to the relevant enterprise and its employees. At the time of the proceedings giving rise to the appeal, s 41(3) was in a different form, which enabled, but did not compel, the Commission, prior to registering an industrial agreement, to require the parties to vary it to firstly, give clear expression as to the true intention of the parties and secondly, to remove any inconsistency with an award binding on the same employer and employees.
82 In approaching the issue of inconsistency, Nicholson J, after examining the relevant provisions of the Act then in effect, and the history of both the award and the industrial agreement, ultimately concluded at 1755:
Examining the contents of the Award and the Agreement and the legislative history of each it seems to me to be apparent that Parliament has sought to preserve the special against the general by continuing the effect of the Agreement in the face of the Award. In my view, the Agreement is to be considered the more particular of the two because it is made between a limited number of parties for its particular operations and not as a matter of common rule. This is so although parties have been added to it either as a consequence of actual or deemed concurrence and even though parties may apply to be named in the Award. The particular provisions are therefore not to be regarded as overborne by the general provisions of the award. This is consistent with the Commission itself having permitted the filing of the Agreement in face of knowledge of the making of the Award.

83 In his reasons, Anderson J (Rowland J agreeing), after having concluded from an examination of their terms that relevant parts of the award and the agreement were inconsistent, went on to say at 1756:

I can find nothing in the Act that would support the general proposition that awards have superior status in terms of binding effect. Both instruments obtain their binding effect from the operation of the Act. Whilst an award is an order of the Commission and an agreement is the result of consensus there is nothing in that difference of genesis to elevate awards to a position of supremacy. To the contrary, there are a number of provisions which suggest that, if any primacy is to be given, it is to be given to industrial agreements. Reference may be made to s 32 which obliges the Commission to first embark on a rigorous[sic] process of conciliation before proceeding to arbitration. The primary objective of the Act seems to be to get industrial disputes resolved by agreement. There are, as Commissioner Fielding has pointed out below, extensive provisions dealing with the registration of agreements and providing for their binding effect and enforceability.
The Act plainly contemplates that awards and agreements may co-exist. For example, by s 41(3), the Commission is expressly empowered before registering an agreement to require parties to remove any inconsistency with an overlapping award. Although on a first reading it may seem to do so, I do not regard this provision as recognising the supremacy of awards over agreements. In the first place, the subsection is permissive in its terms, not mandatory. It confers a discretion on the Commission to require an industrial agreement to be brought into line with an overlapping award. Secondly, the provision is not accompanied by a provision to the effect that agreements already having binding effect, agreements antecedent to awards, are to be varied to remove any inconsistency with subsequent awards. And of course there is no provision, as there could easily have been, expressly conferring supremacy on awards or invalidating an agreement to the extent of any inconsistency with an award.
This is a case of a tribunal invested with the power to bring into existence binding and coercive instruments of equal status, which instruments may turn out to be inconsistent in their terms. It seems to me there are two ways to resolve any such inconsistency. There may be more than two ways but only two occur to me. One of these is not the way contended for by the complainant, that is, to decline to recognise the presence of an inconsistency if it is possible for the parties to behave in a way that complies with the minimum requirements of both instruments. For the reasons I have endeavoured to express, I do not consider this is a correct approach. If there is an inconsistency it must be resolved. There is an inconsistency if the agreement fixes one minimum rate of wages and the award fixes another in respect of the same employees. To purport to resolve that by requiring the higher minimum rate to be paid does not, in truth, resolve the inconsistency but disregards it. There is another reason why this approach is unsatisfactory. Take the case of competing instruments each having the same subject matter but providing for different terms and conditions of employment. From the point of view of both sides, each instrument may have its good parts and its bad parts. To resolve the inconsistencies by requiring that one party be given the best of both instruments would be to create a set of industrial conditions that is neither the product of conciliation nor award.

84 In determining the issue, Anderson J touched on the possibility of applying the doctrine of repeal by implication, but said at 1757:
One way to resolve the problem might be to apply the doctrine of repeal by implication. The application of this rule of statutory interpretation in the field of industrial awards and agreements would require it to be held that, for example, a subsequent agreement should be taken as "repealing" an existing award. Alternatively it would require it to be held that a subsequent award should be taken as "repealing" an existing agreement. I think in either case it would be a very artificial resolution of the problem once it is remembered that the original respondents to competing awards would often be different, and the employer parties to an agreement would often, indeed almost invariably, be different from the respondents to a competing award. And anyway, the maxim rests on Parliament's unfettered authority to legislate, whether by repeal or otherwise. The Commission does not have an unfettered authority to cancel or vary awards or agreements. In my opinion therefore, the fundamental basis for an implication that a later award or agreement is intended to effect a cancellation or variation of an earlier inconsistent instrument is missing.

85 Accordingly, Anderson J concluded at 1757 that the resolution of the issue raised by the appeal was as follows:
This leaves what I think is really the only other option. That is to examine each instrument to see whether one can fairly be said to have peculiar application to the particular parties and to their particular situation. If it should appear that the Commission has sanctioned an agreement having particular application to particular industrial circumstances, it seems to accord with fairness and common sense and to be more conducive to the resolution of industrial conflict to hold that the agreement should not be impliedly or accidentally overridden by some other instrument whether earlier or later in time that does not have particular application to the particular industrial circumstances of the parties. The general should yield to the particular. This is especially so when, as in this case, the award obtains its applicability (if any) to the parties only by operation of the common rule provisions.
In my opinion, as the Act presently stands, that is the proper way to resolve the question whether parties to a registered industrial agreement are bound by conflicting provisions of an award.

86 The conclusion that an award and an industrial agreement under the Act are of equal status is an important one. It is of assistance and informs the approach to the construction of s 41(9) of the Act, and the relationship between awards and industrial agreements generally. The Hungry Jacks case applied the principle that the specific will override the general, in relation to conflicts between the terms of an award and an industrial agreement, having application to the same employer and employees. As a general proposition, unless the relevant award is enterprise specific, in most cases an award will apply by common rule.
87 In Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union Western Australian Branch [2002] WASCA 355; (2002) 83 WAIG 208, the Industrial Appeal Court dealt with an appeal from a decision of the Commission in Court Session regarding the continuing effect of an industrial agreement that had passed its term date, but remained in force under s 41(6) of the Act. The issue arising on the appeal was whether the Commission in Court Session had jurisdiction to make an enterprise specific award having application to the same employer and employees, despite the ongoing continuing effect of the industrial agreement. Whilst the Court dismissed the appeal, Hasluck J (EM Heenan J agreeing) referred to the Hungry Jacks case and noted that s 41(9) of the Act reflected the approach taken to the relationship between industrial agreements and an award, as set out in Hungry Jacks.
88 The approach to statutory construction is well settled. In Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208; (2021) 101 WAIG 1457, Kenneth Martin J observed at [58] to [63] as follows:
58 There was no major disagreement between the parties (save in a respect discussed later in these reasons) over the principles of statutory construction applicable to the present task. Those principles are found extensively discussed by both Scott CC[36] and later in the Full Bench reasons of Kenner SC.[37]
59 Given those principles are well settled, I mention only three leading case authorities relevant towards the present exercise. First, I mention the observations of Buss J as the presiding member of the Industrial Appeal Court in The Commissioner of Police v Ferguson.[38] In that appeal, Buss J addressed the principles of statutory construction relevant to the interpretation of s 33W of the Police Act 1892 (WA). Conducting the exercise by reference to High Court authorities, his Honour observed:[39]
70 In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself' [39].
See also Saeed v Minister for Immigration and Citizenship; Thiess v Collector of Customs.
71 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy). See CIC Insurance Ltd v Bankstown Football Club Ltd; Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.
72 The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd.
73 As Crennan J noted in Northern Territory v Collins, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [2006] HCA 11), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA). In other words, the statutory text, and not nonstatutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd. (footnotes omitted)
60 Second, a significant decision concerning statutory interpretation was provided by the joint reasons of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection.[40] Their Honours had observed there that:[41]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
61 Gageler J, in providing separate reasons towards situations where a court is confronted with a 'constructional choice' towards the possible meanings of a statute, observed:[42]
37 ... The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'.
38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'.
39 Integral to making such a choice is a discernment of statutory purpose ... (footnotes omitted)
62 Gageler J's observations in SZTAL are presently relied upon by PIM to bear upon two aspects of its arguments supporting a narrower construction of the term 'construction industry' as deployed in the Act. First, PIM submits that its contended meaning of 'construction industry' (which would limit the application of the definition only to nominated activities carried out at either building sites or construction sites) is open as one possible constructional choice. It is a meaning that PIM, invoking the observations of Gageler J, says is not wholly ungrammatical or unnatural.[43] Next, building from the assumed platform of that construction being open, PIM says that its contended meaning of the defined term 'construction industry' is a better fit overall - measured against the statutory purpose of the Act.[44] This point will be elaborated upon later in these reasons.
63 The last case authority I mention regarding statutory construction is Commonwealth v Baume.[45] It provides longstanding authority for the proposition that the task of statutory interpretation should proceed on a basis of assuming that words in legislation be afforded some measure of coherent utility. Put in more colloquial terms, text deployed within legislation ought to be assessed on the basis that it has some 'work to do'. The more recent observations in Project Blue Sky Inc v Australian Broadcasting Authority[46] reaffirm this principle.

89 Thus, it is first necessary to consider the meaning of s 41(9) from its text, consistent with the above principles. Second, it is necessary to consider cl 5 of the Agreement, in light of the construction of s 41(9), and whether the terms of s 41(9) are enlivened.
90 In its ordinary meaning ‘contrary’ means ‘1 …. mutually opposed 2.  The opposite, the other (of two things) … 5.  Opposite in position or direction;’ ‘inconsistent’ means relevantly ‘2.  Not consisting; not agreeing in substance, spirit or form; not in keeping; at variance, discordant, incompatible, incongruous 3.  Wanting in harmony; self-contradictory; involving inconsistency …’ (Shorter Oxford English Dictionary at 415 and 1049).
91 Where an industrial agreement is contrary to or inconsistent with an award, the industrial agreement ‘prevails’ unless the agreement expressly provides otherwise. To ‘prevail’ means to ‘1.  To become very strong; to increase in vigour or force… 2.  To be superior in strength or influence, to have or gain the superiority or advantage; to gain the mastery or ascendency; to be victorious’ (Shorter Oxford English Dictionary at 1665). Thus, whilst in and of themselves, an award or industrial agreement are to be accorded equal status under the Act, in the case where s 41(9) is enlivened, then the clear intention of the Parliament, from the plain meaning of the words used, is that the industrial agreement becomes the superior instrument.
92 Relevant to the construction of s 41(9), as the above authorities refer, is legislative history and any relevant extrinsic materials.
93 Section 41, as originally inserted into the Industrial Arbitration Act 1979-1982 (WA), made provision for consent awards to be made by the Commission, where parties had reached an agreement with respect to any industrial matter. Section 41(2) required the Commission to make such an award, subject to ensuring the award to be made was not inconsistent with the Act; was not inconsistent with any decision of the Commission in Court Session intended for general application; and was not otherwise contrary to the public interest.
94 The predecessor to the current s 41, making provision for industrial agreements, was first introduced into the Act by the Acts Amendment and Repeal (Industrial Relations) Act (No.2) 1984 s 26. Notably, s 41(2) provided that the Commission was obliged to register an agreement as an industrial agreement if and to the extent that the terms of the agreement were not contrary to the Act or any General Order made under s 51 or any principles formulated in the course of proceedings in making a General Order under s 51. Additionally, before registering an industrial agreement, the Commission was empowered under s 41(3), to require the parties to give effect to a variation of the agreement to give expression to their true intention and to remove any inconsistency with an award in force.
95 There were, thus, up to this time, obligations imposed on the Commission to reject the registration of an industrial agreement if any term was inconsistent with the requirements of the then s 41(2). The Commission was empowered to require variations to an agreement for the purposes specified in s 41(3).
96 Subsequently, in 1993, the Industrial Relations Amendment Act 1993 s 13 repealed and re-enacted s 41 to largely reflect its current terms. The involvement of the Commission in the registration process was very much reduced. In the Second Reading Speech on the introduction of the Bill, the then responsible Minister, in outlining the intention of the amendments to the Act, observed as to the industrial agreement provisions:
Industrial Agreements: Until now, parties in Western Australia wishing to develop an enterprise bargain have had considerable statutory difficulty in doing so. The Industrial Relations Act contains no provisions to facilitate comfortably such an arrangement. In the 1992 State wage case decision the commission acknowledged the difficulty and determined that, until the legislation was amended to provide an appropriate mechanism, parties could only register an agreement struck between them by a contrived adoption of section 41 which normally facilitated industrial agreements. This Bill will allow parties to come to an agreement without the intervention of the commission. The Industrial Relations Act currently provides, under section 41, that industrial agreements cannot be made a common rule. However, the present difficulty for facilitating enterprise bargaining by this means is the requirement that agreements registered under this section must not be contrary to any general order or principles formulated in the course of proceedings in which a general order is made. Hence the current wage fixing principles are applicable to such agreements.
A further constraint lies in the fact that any agreement registered under section 41 must not be inconsistent with an award in force. Thus, the very principle which lies at the heart of enterprise bargaining - this is, that parties may directly and freely negotiate with one another over a broad range of matters - is fundamentally denied by these constraints. The provisions contained in this Bill seek to amend those sections of the Act to remove those constraints. Thus, an employer, or an organisation or association of employers and an organisation or association of employees, may make an agreement with respect to any industrial matter without a requirement for the commission to ensure that the agreement is consistent with general wage principles. Section 42 will be repealed to remove the capacity for other parties to be added to the industrial agreement.
The effect of these and other modifications is that section 41 industrial agreements will provide the established conciliation and arbitration industrial relations system with a workable mechanism for registering what are effectively enterprise agreements. The Government has said repeatedly that it has no intention of abolishing the award system, and that it believes in choice. That is demonstrated very clearly in these amendments to the industrial agreements section of the Act.
(Hansard 8 July 1993 p 1461)

97 However, s 41A was inserted in the 1993 amendments in s 14 of the Amending Act, which still contained restrictions on the Commission registering industrial agreements. Materially, s 41A(1)(b) prohibited the registration of an industrial agreement if any term of the agreement was contrary to the Act; or any general order made under s 51, or any principles formulated in s 51 general order proceedings.
98 In 2002, by ss 131 and 132 of the Labour Relations Reform Act 2002 (WA), Parliament inserted s 41(9) into the Act and a new s 41A. Parliamentary materials regarding the introduction of the LRRA 2002, reveal no express consideration of the terms of s 41(9). The former ss 41(2) and (3), referred to above, were not reinserted into the Act in the 2002 amendments, and the 1993 reforms were maintained. However, s 41A was substantially amended to remove the restrictions on the Commission’s power to register an industrial agreement, as referred to at [94] above. Under s 41A of the Act as it now is, they are very minimal. Notably, because of the 2002 changes, the fact that a term of an industrial agreement was inconsistent with the Act, was removed as a barrier to registration.
99 All of this reflects a Parliamentary intention that industrial agreement making at the enterprise level, was intended by the Parliament to be a matter left entirely to the parties, with very minimal intervention by the Commission, both as to the content of industrial agreements, and as to the registration procedure under the Act. This is also entirely consistent with the conclusions reached earlier in these reasons, that an award and an industrial agreement are, prima facie, industrial instruments of equal standing.
100 More appositely for present purposes, if the parties to an enterprise have reached a consensus and seek to reflect that consensus in an agreement to be registered and to have statutory effect under the Act as an industrial agreement, that instrument should be given primacy in the event of any conflict with an existing award. Given the legislative history of ss 41 and 41A, in our view, that is the plain intendment of the Parliament in enacting these provisions and reflects how they should be interpreted. The imputed intention of the legislature is important in the role of a court in making a constructional choice as to the meaning of legislation: Outback Ballooning per Gageler J (as his Honour then was) at [77]. It would be a large step to read back into the legislation the effect of provisions Parliament has removed, and it would be a course at odds with the principles of statutory interpretation to which we have referred.
101 Returning then to the terms of cl 5 of the Agreement. Clause 5(1), in our view, is a statement of intent that the Agreement is intended to contain an exclusive code as to terms and conditions of employment for the employer and employees governed by it, to the exclusion of the two relevant awards specified in cl 5.1 and any other award made under the Act. Clause 5.2, then, with some particularity, sets out the intention of the parties as to the content of the Agreement. The words ‘intended to set out all of the Employees’ terms and conditions of employment’ is consistent with cl 5.1, that the Agreement is intended, subject to statutory terms, to exclusively set out the terms and conditions for employees covered by it. The next sentence commencing ‘To the extent that …’ expands on cl 5.1 and the first sentence of cl 5.2. What it does is spell out, in the language of the parties to the Agreement, the clear intention that the terms of any award, as defined in cl 5.1, are deemed to be inconsistent with the terms of the Agreement, whether specified in the Agreement or not and that the latter shall prevail. In our view, this is a valid invocation of the operation of s 41(9).
102 Taken together, what these two clauses do is to exclude, by express agreement, inconsistent terms in an Award as defined, and to deem any Award provisions, not otherwise specified in the Agreement, as also inconsistent with the Agreement, and overridden. Whilst at first blush it might be said that there can be no inconsistency between an award and an industrial agreement if the award provides for a term and condition and the agreement does not so provide, cl 5 read as a whole, is intended to constitute the relevant inconsistency or contrary term(s) to enliven s 41(9).
103 Such an approach to the construction of cl 5 of the Agreement, read with s 41(9), within the context of the legislative history of s 41 as a whole, is consistent with the capacity of negotiating parties to decide for themselves, the breadth of operation and effect of an agreement, when registered as an industrial agreement.
104 To the extent that it is necessary to do so, the constitutional principle of covering the field or indirect inconsistency, as set out and discussed by the High Court in New South Wales v Commonwealth, is of some assistance. It is unnecessary, on the authorities, for there to be in every case of indirect inconsistency, a less detailed scheme specified in the Commonwealth law than provided for in the State law. As we have said, the Agreement, in cl 5, is not of the kind that attempts to manufacture inconsistency. What the Agreement does is to specify its intent to cover the field as to terms and conditions of employment for the employer and employees to be covered by it, and then goes on to specify, in substantial detail, the terms and conditions of employment that will apply. We are not, therefore, persuaded by the CFMEUW’s submissions that cl 5.2 is a bare attempt to manufacture inconsistency. When read as a whole, in light of the clear paramountcy intended by the terms of s 41(9), registration of the Agreement including cl 5 would not be contrary to the Act.
Would the registration of the Agreement including clause 6 – Individual Flexibility Arrangements, be contrary to the Act?
105 The terms of the proposed cl 6 - Individual Flexibility Arrangements has been set out above.
City of Cockburn
106 The City of Cockburn contended that the IFA clause should be regarded as valid and not inconsistent with the Act. It was submitted that the IFA clause does not of itself confer a right on an individual employee and the employer to vary the Agreement or to negotiate a new industrial agreement. Rather, on the City of Cockburn’s submissions, the effect of the clause is to enable an individual employee(s) and the employer to alter the effect of a term of Agreement. In this respect, reference was made to the predecessor industrial agreement containing such a clause, based upon the terms of s 202 of the FW Act. This provision, notably, requires an enterprise agreement to include a ‘flexibility term’ that enables an employee and his or her employer to agree to an arrangement known as a ‘individual flexibility arrangement’, which varies the effect of the enterprise agreement in relation to the employee and the employer. In the absence of a flexibility term, an enterprise agreement registered under the FW Act, is taken to include a ‘model flexibility term’ as prescribed by the Fair Work Regulations 2009 (Cth).
107 It seems clear enough that the IFA clause has its origins in the former enterprise agreement made under the FW Act, containing a mandatory requirement for a ‘flexibility term’ as described. No such statutory provision exists under the Act in relation to the registration of agreements as industrial agreements in this jurisdiction.
108 It was submitted by the City of Cockburn that it is only varying the effect of the Agreement, which is permitted by the IFA clause. Contrary to the submissions of other parties to the proceedings, it was submitted that any agreement created under the IFA clause could not be an Employee-Employer Agreement under Part VID of the Act, as it could never meet the statutory requirements of Part VID and, therefore, is not inconsistent with the Act, as the submission went.
109 Furthermore, the City of Cockburn contended that s 114 of the Act, precluding contracting out of industrial instruments, did not have any effect, on the basis of two propositions. The first was that any individual arrangement under the IFA clause reached between an employee and the employer is not a contract to which s 114 applies. Secondly, it was submitted that, in any event, an individual arrangement under the IFA clause can only be made if the employee party to it is better off overall compared to the terms of the Agreement.
110 Accordingly, the City of Cockburn contended that the Full Bench should conclude that the registration of the Agreement containing cl 6 would not be contrary to the Act. In the alternative, the City of Cockburn submitted that should the Full Bench determine that the IFA clause would be invalid in its proposed terms, then consideration could be given to an amended IFA clause. It was proposed that the clause could be amended to require the employer to obtain the consent of the other parties to the Agreement to the proposed IFA and, if such consent were forthcoming, the proposed IFA could be implemented.
WASU
111 On behalf of the WASU, it was submitted that the IFA clause would be contrary to the Act if contained in the Agreement for registration. WASU’s principal submission was that it is a prime object of the Act for there to be the promotion of collective bargaining and to establish the primacy of collective over individual arrangements, as set out in the objects of the Act, to which we have referred above. It was contended that, consistent with the objects of the Act, the only way in which an individual agreement could prevail over a collective agreement was if the individual agreement was one sanctioned by the terms of the Act itself. In this respect, the submission was that the only form of individual agreement, which is given effect under the Act, is an EEA made under Part VID. These agreements cannot be made under Part VID whilst an industrial agreement is in force.
112 Furthermore, the WASU contended that cl 6 purports to enable an employee(s) of the City of Cockburn to ‘vary’ the effect of the terms of the Agreement in relation to a range of important matters including the performance of work, overtime rates, penalty rates, allowances and leave loading. Given the terms of s 41 of the Act, it is only the parties to an industrial agreement that can vary its terms. This means, it is only an agreement reached between the City of Cockburn, the WASU and the LGRCEU, as the parties to the Agreement, who can vary it. It is not permissible, and it would be misleading according to the WASU submission, to purport to confer a right upon an individual employee and the City of Cockburn to vary the effect of the Agreement.
113 Moreover, it is clear, according to WASU, that the basis for the IFA clause is s 202 of the FW Act. Given there is no such provision in the Act, and there is nothing else within the Act which would confer any legally enforceable instrument status on such an IFA, and nor could all the parties to the Agreement enforce such an IFA, then the Full Bench should conclude that such an arrangement is impermissible.
LGRCEU
114 On behalf of the LGRCEU, it was also submitted that the terms of cl 6 of the Agreement would be inconsistent with the Act upon registration. It contended that the IFA clause purports to enable an employee and the employer to vary the terms of the Agreement without the authority of the statute. Furthermore, such a variation can purportedly be effected without the involvement of all of the parties to the Agreement. Consistent with the WASU submission, the LGRCEU contended that the only basis on which the Agreement can be varied is by the making of a subsequent agreement made by and between all of the parties to it, under s 43(1) of the Act. It submitted that the reasoning of the Industrial Appeal Court in Ngala Family Resource Centre v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1996) 77 WAIG 2551, which struck down a not dissimilar provision, as proposed to be included in an award of the Commission, has application to the present circumstances.
115 Adopting the reasoning of Anderson J in that case, the LGRCEU submitted the proposed IFA clause in the Agreement, would be inconsistent with the structure of the Act as a whole, and contrary to the relevant objects of the Act. In this respect, the LGRCEU submitted that s 6(ad), promotes collective bargaining and establishes the primacy of collective agreements over individual agreements. This is inconsistent with the proposed IFA clause. The only way of making individual agreements, as an EEA, is under Part VID.
116 Finally, it contended that s 114 of the Act, dealing with contracting out, was not of assistance in determining the question whether the IFA clause would be inconsistent with the Act on its registration.
CFMEUW
117 The CFMEUW submitted that the IFA clause would be invalid, of no effect, and the registration of the Agreement would be contrary to the Act. The broad submission made was that the clause would be invalid and of no effect by reason of being inconsistent with the legislative scheme under the Act, in particular having regard to ss 6(ad), 41, Part VID dealing with EEAs and 114 of the Act.
118 As with other submissions, the CFMEUW referred to s 202 of the FW Act, and the mandatory requirement that enterprise agreements contain a flexibility term. No such provisions are contained in the Act. The CFMEUW submission also referred to the fact that EEAs under Part VID in s 97UF of the Act cannot be made whilst an industrial agreement made under s 41 is in effect. It was submitted that effectively, the IFA clause purports to enable an individual employee(s) and the employer to vary the effect of the terms of the Agreement by circumventing the terms of s 97UF and to contract out of the Agreement, without the corresponding protections under the FW Act or the obligatory requirements relating to EEAs made under the Act.
119 Insofar as s 114 of the Act is concerned, the CFMEUW submitted that there is no barrier to a contract of employment providing for more generous terms than an industrial agreement. From the terms of the IFA clause, there is nothing within it that would protect against a derogation of the provisions of the Agreement, despite the inclusion of a ‘better off overall’ provision in cl 6(2). Furthermore, as with the WASU and the LGRCEU, the CFMEUW submitted that the IFA clause would purport to enable employees, not parties to the Agreement registered under the Act, to purport to vary it, in circumstances where the parties to the industrial agreement have not done so.
120 Accordingly, it was submitted that the registration of the Agreement with the IFA clause would ‘fundamentally undermine and derogate from the legislative regime. Such a clause would alter the character of an agreement such that it would not be amenable for registration’ (written submissions at [41]). In other respects, the CFMEUW adopted the Minister’s submissions in relation to the validity of the IFA clause.
Minister
121 On behalf of the Minister, it was contended that the registration of the Agreement inclusive of cl 6 would be contrary to or inconsistent with the Act. In broad terms, the Minister contended that the IFA clause of the Agreement would be contrary to the Act, and specifically the following provisions of the Act:
(a) s 6, dealing with the objects of the Act, most particularly ss 6(ad) and (ag);
(b) s 41, providing that an industrial agreement can only be made between an employer or organisation/association of employers and an organisation/ association of employees;
(c) s 43(1), providing that an industrial agreement may be varied, renewed or cancelled by a subsequent agreement made by and between all the parties to the industrial agreement, being those parties specified in s 41 of the Act;
(d) Part VID of the Act, providing for EEAs between an employer and an individual employee; and
(e) s 114, prohibiting the contracting out of industrial instruments made under the Act, which includes industrial agreements.

122 Having regard to the scheme of the Act, in particular the principal objects, and the promotion of collective bargaining and the primacy of collective bargaining over individual arrangements, the Minister submitted that the IFA clause is inimical to these objects, by purporting to allow individual agreement making under the framework of an industrial agreement, without any statutory protection. The Minister submitted that the statutory object in s 6(ae) of the Act, providing an assurance that all agreements registered under the Act provide for fair terms and conditions of employment, could easily be circumvented by an IFA. There are no protections, in contrast to those applicable to EEAs under Part VID.
123 Furthermore, consistent with submissions to the same effect by others, there is no capacity within the statutory regime in this jurisdiction, for an employer and an individual employee(s) to purport to vary the effective provisions of an industrial agreement. It is only the parties to an industrial agreement that can do so. The terms of the Act, in this jurisdiction, do not contain the equivalent of ss 144 and 202 of the FW Act, requiring flexibility terms to be included in a modern award and an enterprise agreement.
124 In support of his submission, the Minister referred to a decision of the Full Bench in Confederation of Western Australian Industry (Inc) v West Australian Timber Industry Industrial Union of Workers, South-West Land Division (1990) 71 WAIG 15. In that case, the Full Bench dismissed an appeal from a decision of the Commission at first instance, refusing to vary an award to include, by consent, a clause permitting ‘enterprise agreements’ to be made, between employers and employees directly, providing for flexible working arrangements. We comment on this case further below.
Disposition of cl 6 issue
125 The framework of the Act in this jurisdiction is predicated on a system of conciliation and arbitration by which an independent and impartial tribunal, the Industrial Relations Commission, is established and given the authority in s 23 of the Act, to ‘enquire into and deal with any industrial matter’. The Act provides for the registration of organisations of employees and employers in Part II Division 4 and makes detailed provisions as to requirements attaching to organisations and their registration. Once registered, an organisation acquires the status of a body corporate and is, along with its members, subject to the jurisdiction of the Industrial Appeal Court, the Commission and the Act.
126 An important provision of the Act, s 29(1), deals with standing of persons to refer industrial matters to the Commission. By this provision, an employer with a sufficient interest, and a registered organisation, eligible to enrol persons as members, who are affected by the relevant industrial matter, or the Minister, may do so. The capacity of individual employees to refer industrial matters to the Commission is limited to claims of unfair dismissal, denied contractual benefits or a claim that a ‘worker’ (as defined) has been bullied or sexually harassed at work.
127 A dispute or industrial matter may be referred to the Commission for a compulsory conference under s 44 of the Act, again, by an organisation, employer or the Minister. There is a very limited capacity for an individual employee to refer such matters to the Commission, and only in relation to an entitlement to long service leave.
128 The objects of the Act are relevant and important in the statutory scheme. These have been referred to in submissions, and include the promotion of collective bargaining and the primacy of collective agreements over individual agreements in s 6(ad); provision for employers, employees and organisations to reach agreements appropriate to the needs of employers and employees in enterprises and industries, in s 6(ag); to ensure such agreements which are registered under the Act contain fair terms and conditions of employment, in s 6(ac); to provide a system of fair wages and conditions of employment in s 6(ca) and to provide for the observance and enforcement of agreements and awards made for the prevention and settlement of industrial disputes in s 6(d). Such objects are of assistance in the construction of provisions of the Act and a construction that will promote the purpose or object of the Act, is to be preferred to one that would not: s 18 Interpretation Act 1984 (WA); Russio v Aiello [2003] HCA 53; (2003) 215 CLR 643.
129 The statutory scheme, by Division 2A of Part II, provides for the making and varying of private and public sector awards. Named parties to awards so made are employers and organisations or associations, who may apply to the Commission to vary an award.
130 By Division 2B of Part II, there are prescribed procedures for the initiation of bargaining for an industrial agreement, again by an organisation or association of employees or an employer or an organisation or association of employers. The Commission may assist the parties in bargaining for an industrial agreement, and, in limited circumstances, may make an order as to terms of the agreement, where the ‘negotiating parties’ agree for the Commission to do so and the resulting order becomes a term(s) of the industrial agreement. The negotiating parties do not include individual employees.
131 Once agreement is reached, the organisation or association of employees and the employer or association of employers, may seek registration of the agreement by the Commission. An industrial agreement so made may only be varied on the application of an organisation, association or employer party to it.
132 Within this scheme, an individual employee has no standing to make an application for an award or to seek to vary an award. An individual employee has no standing to seek to register, or to vary, an industrial agreement that they will be, or are bound by.
133 The only exception to the framework of awards and industrial agreements set out above, under the Act, made between registered organisations and employers, is the ability to make an EEA under Part VID. This is an individual agreement between an employer and an employee that deals with any industrial matter, subject to the requirements of Division 2, which include the application of a ‘no disadvantage test’ in Division 6. Importantly for present purposes, an EEA, whilst it prevents an award that would otherwise apply to the employee from having any effect, cannot be made while an industrial agreement is in force under the Act. This gives clear effect to the objects of the Act in s 6(ad), promoting collective bargaining over individual agreements.
134 Of course, there is nothing preventing an employer and an employee from agreeing to more generous terms and conditions of employment, over and above that prescribed by an award or an industrial agreement. What the employer and employee cannot do, however, is to agree to purport to vary, or annul, a provision of an award or industrial agreement, having the effect of altering an obligation imposed by an award or industrial agreement. Any such agreement is void, under s 114 of the Act.
135 The IFA clause, proposed to be inserted into the Agreement, is at odds with the statutory scheme set out above. It purports to enable a person, as an employee, not a party to the industrial agreement, and therefore not a person who has standing to seek to register an industrial agreement or to seek to vary an industrial agreement, to enter into an ‘arrangement’ with the employer, who will be a party to the industrial agreement, to purport to vary it. By cl 6.1.a, the ‘arrangement’ that may be entered into may deal with matters fundamental to the employment relationship such as when work is performed; overtime rates; penalty rates; allowances and leave loadings.
136 Whilst the City of Cockburn contended that cl 6 does not enable a term of the industrial agreement to be varied, as opposed to a variation to its effect, this is not what cl 6.3(d)(i) and (ii) provide. Clause 6.3(d)(i) refers to ‘terms of the enterprise agreement that will be varied by the arrangement …’. Secondly, cl 6.3(d)(ii) then refers to how the arrangement will ‘vary the effect of the term’ (our emphasis). It seems contemplated that such an arrangement may purport to have both effects. The distinction made by the City of Cockburn, between a variation of a term and a variation of the effect of a term, is ultimately a distinction without a difference.
137 Furthermore, whilst the City of Cockburn contended that s 114 has no work to do because cl 6 is not a contract of employment, we have some doubts as to this contention. It is trite that an award or industrial agreement can only operate on an established employer-employee relationship, underpinned by a valid contract of employment. An award or industrial agreement is not the contract of employment, but attaches to it and modifies its terms: Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 73; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423. In particular, we refer to the observations of Latham J in Amalgamated Collieries at 422–423: ‘…Thus in every case where an award is applicable it can be said, as in this case, that the worker is entitled to the wages prescribed in the award by reason of the existence of the contract. Every claim for wages, has in this sense, a common law basis’. Whether an ‘arrangement’ entered into under the IFA clause with an individual employee, also involves a variation to their contract of employment, may depend on the terms of the contract. A clause such as cl 6 may well encourage and unwittingly lead an employer to contravene s 114.
138 A similar situation arose regarding the present question in the context of an award provision purporting to enable an enterprise agreement type arrangement to be entered into under an award, in Confederation of Western Australian Industry (Inc), as noted above. In this case, the Commission at first instance refused to vary the Timber Workers Award to insert a clause into the award enabling employers and employees at an enterprise, work site or section of the same to reach agreements providing for more flexible work arrangements. It was intended that such flexibility arrangements may involve a departure from the award provisions and any inconsistency between such an agreement and the award would result in the agreement prevailing.
139 On appeal, the Full Bench considered that the Commission was correct to refuse to vary the award to include the enterprise agreements clause. The Full Bench considered that to do so would be inconsistent with the scheme of the Act. In particular, it would purport to enable persons not party to the award to vary it when such variation was not authorised by the terms of the Act. The Full Bench also took the view that the effect of the clause would be to delegate the Commission’s jurisdiction to persons not authorised and would also provide a mandate to contravene s 114 of the Act, precluding contracting out. The Full Bench also observed that the only agreements that could be entered into between the industrial parties and which are enforceable under the Act (at that time) were industrial agreements made under s 41. These agreements had to be registered by the Commission and were subject to the terms of the Act.
140 Later, in Ngala Family Resource Centre and Ors v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Division (1996) 77 WAIG 2551 a question also arose on appeal to the Industrial Appeal Court from a decision of the Full Bench upholding an appeal from a decision of the Commission at first instance about the insertion of an ‘enterprise flexibility provision’ into a series of awards. The part of the clause that was rejected enabled the employer and an employee or a group of employees covered by the award, to reach an agreement about terms that may be inconsistent with a provision of the relevant award. No application was required to be made under the then s 40 of the Act by a party bound by the award to vary it.
141 The Full Bench held that such a clause was impermissible under the Act. On the appeal to the Court, in his reasons, Anderson J (Franklyn J agreeing) referred to this conclusion by the Full Bench in the following terms at 2553:
It was essentially on this ground that the Full Bench upheld the appeal and rejected the clause, although the Full Bench gave more expansive reasons for so doing. These reasons included the following statements—
“...an integral part of enterprise bargaining comprises of registered organisations who are parties to the award. Further, the award which underpins enterprise bargaining is inextricably linked to the process. In other words enterprise bargaining does not occur and is not separate from the existence of an award.”
“...the (Wage Fixing) Principles acknowledge and support an award based concept involving registered organisations which are, as the appellant is, a party to the awards sought to be varied and which are parties to such awards by right of constitutional coverage of employees subject to the awards. An award cannot be sought to be varied except by an organisation or association named as party to it (or an employer who is bound by the award)...No one else can apply for variation.”
“The Commissioner inserted a clause in this case which purports to exclude the applicant being engaged in negotiations with employers to achieve enterprise agreements. To do so is to provide a mechanism which might exclude an organisation which is party to the award and represents employees covered by the award doing what it is entitled to do. The orders really set out to create workplace agreements outside the framework of that Act (the Workplace Agreements Act 1993), notwithstanding that in this State there are two separate systems, one the workplace agreement system created by the Workplace Agreements Act 1993, and the other, the award based system to which the Wage Fixing Principles apply.”
“The only way in which a variation to the award can be made on behalf of employees is by the applicant. The only way in which a s41 agreement, which reflects an enterprise bargaining agreement, can be registered on behalf of employees is by the applicant. The clause inserted purported to provide a mechanism for employees to enter into agreements themselves with an employer to the exclusion of the appellant. There is no provision in the Act to enable this to occur. There is no provision within the (State Wage Fixing) Principles to enable this to occur. The Principles...enable only s41 agreements or award variations to reflect an enterprise bargaining agreement. Both mechanisms are only valid and enforceable because the Act provides for them. The clause is therefore contrary to the Principles.”

142 After considering the grounds of the appeal, Anderson J concluded as to the impugned provision at 2554:
In my opinion, it does seem out of keeping with the present long standing legislative framework to have in an industrial award binding upon a union and to which the union is a principal party a provision which contemplates that the award may be varied on the striking of an agreement with a body of persons not a principal party to the award—especially as some of the body may be wholly opposed to the agreement. This seems to me to be, with respect, inimical with the award based system provided for in the Industrial Relations Act as that Act presently stands.
Whilst there may be, outside of the award system created by the Industrial Relations Act, through the medium of the Workplace Agreements Act, a means whereby substantially the same result can be achieved the question is whether it is a proper exercise of discretion on the part of the Commission to import into the award based system a non-union stream, by the device of award amendment.

143 And further, Anderson J said at 2554:
In my opinion a provision such as that which was inserted by the Commission at first instance into these awards takes enterprise bargaining at enterprise level well beyond the warrant provided in the State Wage Fixing Principles and does run counter to the main features of the award based system laid down by the Act and to the principal objects of the Act. By force of the Act it is absolutely necessary that the union must be heard upon any application for an award variation or upon any application for registration of a s41 agreement; therefore I do not see how it could possibly “promote goodwill in industry” (s6(a)), “encourage, and provide means for, conciliation with a view to amicable agreement thereby preventing and settling industrial disputes” (s6(b)), “provide means for preventing and settling industrial disputes...with the maximum of expedition...” (s6(c)), “provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes” (s6(d)) to effectively shut the union out of negotiations in respect to amendments to its own award, allowing it to be heard only at the stage of formal application for variation or registration and then only if its opposition should be held not “unreasonable”. It enables an industrial outcome to be achieved which is coercive and enforceable against the union, and employees who are or are eligible to be members of the union, without union involvement and by amendment to the union’s own award through an agreement to which the union is not a party. There seems to me good reason to hold that within a legislative framework containing a statement of the objects recited above, a system of wage fixing by award variation which substantially excludes a party to the award from the process of negotiation is a system which is incomplete and less than whole.

144 Whilst in Ngala, at the material time, enterprise bargaining was the subject of a specific principle in the Commission’s Wage Fixing Principles, the underlying concepts dealt with by both the Full Bench and the Court are directly relevant to this matter. As in both CWAI and Ngala, in our view, the IFA clause in this matter purports to enable persons who will not be parties to the industrial agreement, to vary it. This is, for the same reasons as expressed in the above two cases, inconsistent with the scheme for making and varying industrial agreements under the Act and is not permissible.
145 Accordingly, registration of the Agreement containing cl 6 – Individual Flexibility Arrangements would be inconsistent with the Act.
Would the above clauses in the Agreement, if registered, be invalid and of no effect?
146 Given our conclusion that registration of the Agreement with cl 5 would not be contrary to the Act, but the inclusion of cl 6 would be, it is only necessary to comment on the latter provision. The WASU, the LGRCEU, and CFMEUW submitted that cl 6 would be invalid if contained in the Agreement, if registered. The Minister contended that such a clause would be arguably void, having regard to s 114 of the Act.
147 In our view, cl 6, if included in the Agreement for registration, would be invalid and of no effect.
Can the Commission, before registering the Agreement under s 41(2) of the Act, require the parties to effect a variation for a purpose other than ‘giving clear expression to the true intention of the parties’ under s 41(3) of the Act?
City of Cockburn
148 As to this question, the City of Cockburn referred to an earlier decision of the Full Bench in Construction, Forestry, Mining and Energy Union of Workers v Sanwell Pty Ltd and the Chamber of Commerce and Industry of Western Australia [2004] WAIRC 10947; (2004) 84 WAIG 727. It was submitted that the majority reasons in that case referred to the very limited role of the Commission in relation to the registration of industrial agreements. At [44], Sharkey P and Gregor C observed:
S41 provides, as we have said, the mechanism for and power of registration of industrial agreements. One noteworthy feature of it is the very limited role of the Commission. The Commission, with one or two exceptions, exists solely to register the agreement reached by the prescribed parties.

149 The City of Cockburn also made reference to the majority’s observation at [51] as follows:
It is to be noted that, subject only to s41(3), s41A and s49N of the Act, where the parties to a s41(1) agreement apply to the Commission for registration of the agreement as an industrial agreement, the Commission shall register the agreement (see s41(2)) (our emphasis). That is, there is a mandatory requirement by the use of the word “shall” that the Commission register such agreement, and that is the Commission’s function primarily, under s41.

150 Additionally, the City of Cockburn referred to the joint reasons at [144], where it was observed that:
The Act allows the parties, not the Commission, to judge the content of the agreement. It furthers the objects of the Act if they do. They judge the conditions, rights, objects and subject matter. However, the agreement must be an agreement in the terms prescribed by s41 of the Act.

151 Accordingly, the City of Cockburn contended that the parties to the Agreement have given clear expression to their terms and no variations are necessary. Given the limitations imposed on the Commission under s 41(3) of the Act, the answer to this question should be ‘no’.
WASU
152 On behalf of the WASU, it was submitted that whilst under s 41(3) of the Act in the registration of an industrial agreement, the Commission can only require the parties to vary it to given clear expression to the true intention of the parties, this involves an objective test. As we understood the submission, it was contended that s 41(3) requires the Commission to assess the parties’ objective intention, based upon the content of the agreement proposed for registration. For example, where a proposed industrial agreement contains unlawful or invalid terms, such as terms prohibiting an employer from employing people with a particular protected trait, for example gender, sexual orientation, race, etc. The WASU submitted that objectively, no party to such an agreement could intend it to be registered containing such unlawful or invalid terms.
153 On this basis, the WASU submitted that the Commission could require the parties to the industrial agreement to vary it, to give effect to their ‘true intention’ to not include unlawful terms, in the exercise of the power under s 41(3) of the Act.
154 The WASU made reference to a decision of Parks C in Australian Workers Union, West Australian Branch, Industrial Union of Workers v Life Be In It (1994) 74 WAIG 2342. In that case, Parks C declined to register an industrial agreement under s 41 of the Act because at, cl 4, it contained a provision to the effect that the agreement would prevail over the terms of a federal award, notwithstanding the terms of s 152 of the then Industrial Relations Act 1988 (Cth). This provided that where a State law, order, award, decision or a determination of a State industrial authority was inconsistent with a matter dealt with in a federal award, the latter prevailed to the extent of the inconsistency. Commissioner Parks concluded that the agreement was invalid to the extent that it purported to prevail over the federal award and declined to register the agreement until that provision was removed. He considered that the obligation on the Commission to register an industrial agreement, is subject to an assessment of its validity and the absence of any unlawful terms.
155 In the present context, it was therefore submitted that on the basis that cl 6 of the Agreement would be invalid if registered, it would be open for the Commission to require the parties to give true effect to their intentions under s 41(3), and if they did not do so, it would be open to the Commission to refuse to register the Agreement under s 41(2).
156 We note, however, that the questions of law before the Full Bench do not involve clauses alleged to be unlawful as being discriminatory. The Full Bench is confined by the referral as to whether cl 6 would be inconsistent with the Act if the Agreement was registered with it, and whether the Commission may vary the Agreement under s 41(3) of the Act, by requiring its removal as a condition of registration.
LGRCEU
157 The LGRCEU submitted that ultimately the answer to this question must be ‘no’. Reference was made to s 41(3) of the Act, to the effect that the Commission is unable to impose its own views or change the character of an agreement submitted for registration as an industrial agreement. Reference was also made to the decision of the Full Bench in Sanwell in this regard. However, it was contended that the Commission is still required to scrutinise an agreement submitted for registration to ensure that it is compliant with the Act. However, this does not expand the permissible scope of s 41(3) and that is the limit of the Commission’s power in relation to variations to an agreement submitted for registration.
CFMUEW
158 The CFMEUW’s overarching submission was that the Commission is unable to require the parties to vary an industrial agreement, except for the circumstances provided for in s 41(3). This was subject to further submissions, not dissimilar to those put by the WASU, to the effect that, where an agreement contains unlawful and discriminatory clauses, for example, or clauses that may be contrary to the Act, there is a question as to whether in those circumstances, the parties truly intend to register an agreement in those terms. In this respect, reference was made to the interpretive principle of the presumption of legality of legislation, and that courts generally should not, absent clear words, impute to the Parliament an intention to allow the registration of an industrial agreement that contains unlawful terms. This was said to apply because, once registered, an industrial agreement is given legislative effect under the Act, and may be enforced as an industrial instrument.
159 Thus, as the submission went, the CFMEUW contended that the Commission should be reluctant to register an agreement that contains invalid clauses or otherwise undermines the framework of the Act. A further submission was made by the CFMEUW in reliance upon Sanwell. In referring to this decision of the Full Bench, the submission was made that the Commission must be satisfied that the agreement terms are truly an agreement capable of registration under s 41. As we understood the submission, it was contended that the decision of the Full Bench in Sanwell, relying upon the decision of the Full Court in AFMEPKIU v Electrolux Home Products Pty Ltd (2002) 115 IR 102, concluded that it was permissible for the Commission to register an industrial agreement under s 41 of the Act, even if it contained matters which are not ‘industrial matters’ for the purposes of s 7.
160 As a consequence of the High Court decision overturning the Full Federal Court decision in the Electrolux case, some months after the Full Bench decision in Sanwell, the Sanwell decision must now be open to question. The High Court in Electrolux Home Products v Australian Workers Union [2004] HCA 40; 221 CLR 309 concluded that an enterprise agreement that contained provisions not pertaining to the relationship of an employer and an employee could not be the subject of certification under the then federal legislation.
161 The CFMEUW contended that substantive, but discrete provisions, not pertaining to that relationship, cannot be included in such an agreement. It was suggested that cl 5, read with the Agreement as a whole, in view of the High Court decision in Electrolux, may mean the Agreement is not one with respect to an industrial matter. This submission was predicated on the submission that the clause is directed at the bare exclusion of State law.
162 Whilst it was not referred to in either the majority or minority reasons in Sanwell, on the same basis, in The Banks case, Brinsden J concluded at 2090-2091 to a similar effect, that not all provisions in an industrial agreement need to be industrial matters. For the above reasons, respectfully, this conclusion may also be open to question. We also refer to Hanssen Pty Ltd v Construction, Forestry, Mining & Energy Union [2004] 84 WAIG 694, where the Full Bench reached the same conclusion as in Sanwell.
163 However, given these proceedings are not directly concerned with this issue, which is an important one, and an answer to the question will depend on a construction of the particular provisions of the Act and those of the Commonwealth statute the subject of the decision in Electrolux, this matter is best left to another occasion when it can be fully argued and considered (See too Re Harrison; Ex parte Hames [2015] WASC 247 per Beech J at [81]-[82]). Until these authorities are fully reconsidered, we proceed on the basis that the Banks case, and Sanwell and Hansen remain good law in this jurisdiction.
Minister
164 On behalf of the Minister, it was submitted that there is no capacity for the Commission to require the parties to affect a variation to an agreement, other than for the purposes specified in s 41(3) of the Act. The Minister also referred to Sanwell, and the observations of the Full Bench in that case, as to the very limited role of the Commission in the registration of industrial agreements.
165 The Minister also referred to the legislative history of s 41 and, in particular, the 1993 amendments, that we have considered above, to remove the Commission’s ability to require parties to vary an industrial agreement in relation to inconsistency with an award of the Commission. The Minister also submitted that even if the Commission does request the parties to make a variation under s 41(3), whether the parties do or not and whether they decide to proceed with the registration of the industrial agreement is up to them: The Banks case per Brinsden J at 2087.
Disposition of variation issue
166 For the following reasons, the answer to this question must be no. In the Banks case, an application was made to register an industrial agreement in relation to the banking operations of the employer. Whilst the matters raised by the grounds of appeal in that case do not directly bear upon the issues to be decided in these proceedings, the Court, in the determination of the appeal, made some observations as to s 41 of the Act, as it then was. At the time of the matter before the Commission at first instance, the Full Bench on appeal and the Court, s 41 was in the terms as we have noted at [97] of our reasons above.
167 Justice Brinsden (Kennedy and Rowland JJ agreeing), after setting out s 41 of the Act as it then was, said:
My construction of the above subsections is this. The parties to an agreement in respect of an industrial matter if it be their wish may apply for registration of that agreement as an industrial agreement. If the agreement is not contrary to the particular matters referred to in subsection (2) the Commission is bound to register that agreement as an industrial agreement. The only modification upon that obligation is as is provided in subsection (3). Even then the parties may not be prepared to proceed with the application as varied pursuant to such a requirement, the matter of registration being entirely for them.

168 In his reasons, Rowland J also observed at 2091 as follows:
By section 41 of the Industrial Relations Act 1979 ("the Act"), if the parties agree and there is no other impediment contained in the Act, then there is no discretion in the Commissioner to refuse registration of the agreement.

169 We have already referred to the decision of the Full Bench in Sanwell. The Full Bench referred to the mandatory requirement on the Commission to register an agreement as an industrial agreement, subject to ss 41(3), 41A and 49N. The latter provisions are not relevant to these proceedings. As to s 41(3), Sharkey P and Gregor C said at [56]:
The registration is, of course, subject to s41(3) of the Act, which empowers the Commission, by the use of the word “may”, to require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties. It is to be noted, of course, that that is a very limited power and is directed not to the alteration of the agreement, save and except to give it clear expression so that the true intention of the parties who make the agreement is reflected in it (see s56 of the Interpretation Act 1984 (as amended)).

170 In our view, the legislative history, that we have set out above, tells against a residual power in the Commission, as contended by some of the submissions, to require variation other than for the purposes of s 41(3), or to refuse registration of an industrial agreement at all, because of the content of the agreement. It is clear from the legislative history, read with the plain terms of s 41(2) of the Act, that Parliament intended to remove most restrictions on the registration of industrial agreements and impose only the most minimal role upon the Commission. Provided the agreement answers the description set out in s 41(1) of the Act and meets the requirements of s 41A, then the mandatory obligation imposed by s 41(2) on the Commission, if satisfied the minimal conditions for registration are met, is to register the agreement as an industrial agreement.
171 The requirement for making and varying awards, as in the CWAI case and the Ngala case, is of course different. In those cases, as we have set out earlier in these reasons, the matters concerned the exercise of a discretionary power to vary an award by the Commission. Whilst those cases dealt with similar provisions to the IFA clause in cl 6, that purported to enable persons not bound by the award to vary it, the Commission was able to exercise its discretion to refuse the variation in those circumstances, as being inconsistent with the Act. By way of contrast, as to the registration of industrial agreements under the Act, this was one of the very limitations removed from s 41 by the Parliament in 1993.
172 However, given the conclusions we have reached as to the IFA clause, it would be expected that such provisions do not find their way into industrial agreements in this jurisdiction. Such provisions may well lead employers into a contravention of s 114 of the Act and expose them to enforcement action under s 83 of the Act.
Answers to the referred questions of law
173 Based on our reasons, we answer the questions of law referred as follows:
(2)(a) - No.
(2)(b) - Yes.
(2)(c) - As to clause 6, yes.
(2)(d) - No.