Federal Court upholds dismissal of an employer's application for declarations and certiorari

OUTCOME: Dismissed

FEDERAL COURT OF [COMPANY] v [NAME] [2017] FCAFC 189 Review of: [COMPANY] [2016] [NAME] 2832 [COMPANY] v [NAME], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and Australian Manufacturing Workers' Union [2017] FWCFB 132

File number: QUD 92 of 2017

Judges: FLICK, [NAME] AND [NAME] JJ

Date of judgment: 27 November 2017

Catchwords: INDUSTRIAL LAW – application for review of decision of [NAME] of Fair Work Commission – where [NAME] dismissed appeal from decision of Commissioner – where applicants sought approval of [NAME] – whether agreement passed "better off overall test" under s 193 of the [APPELLANT] (Cth) – relevant comparator instruments to be used – operation of Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) – whether employees simultaneously [NAME] by modern [NAME] and [NAME]-based transitional instrument – distinction between "application" and "coverage" of modern [NAME] to an employee – whether transitional instruments terminated by operation of sunsetting provisions

Legislation: Evidence Act 1995 (Cth) s 191 [APPELLANT] (Cth) ss 47, 48, 48(1), 57, 193, 193(1), 193(4), 193(5), 206 Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) Sch 2, item 4(1)(b), Sch 3, items 20, 20(1), 20(1)(b), 29, 29(1), Sch 5, items 16, 16(3), 16(5), Sch 7, Pt 4, Sch 8, items 18, 18(2)(a), 18(2)(b) Workplace Relations Act 1996 (Cth) (repealed) Fair Work [APPELLANT] (No. 3) (Cth) Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) reg 3B.02 Explanatory Memorandum, Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] cited: [COMPANY] [2016] [NAME] 2832 [COMPANY] v [NAME], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and Australian Manufacturing Workers' Union [2017] FWCFB 132 Saraswati v R (1991) 172 CLR 1 at 17; [1991] HCA 21

Date of hearing: 21 August 2017

Registry: Queensland

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 60

Counsel for the Applicants: [redacted]

[NAME]: [COUNSEL]

Counsel for the First, [NAME] and [NAME] Respondents: [redacted]

Solicitor for the First, [NAME] and [NAME] Respondents: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS QUD 92 of 2017

BETWEEN: [COMPANY] (ACN 115 379 461) First Applicant

QUEENSLAND MASTER BUILDERS ASSOCIATION (ABN 966 419 893 86) [NAME] Applicant

HOUSING INDUSTRY ASSOCIATION (ACN 400 631 752) [NAME] Applicant

AND: [NAME] First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA [NAME] Respondent

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION [NAME] Respondent FAIR WORK COMMISSION [RESPONDENT] Respondent

JUDGES: FLICK, [RESPONDENT] AND [NAME] JJ DATE OF ORDER: 27 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The applicants' further amended originating application dated 6 June 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT: 1 In 2016, [COMPANY] ([COMPANY]) applied to the Fair Work Commission, pursuant to the [APPELLANT] (Cth) (FW Act), for approval of the [COMPANY]/[NAME] 2015 (2015 agreement), a single-enterprise non-greenfields agreement. The 2015 agreement was drafted to apply to [NAME] employed by [COMPANY] in a wide range of industries, including the building and construction, and engineering and automotive industries. [COMPANY] hires the services of [NAME] and [NAME] to [NAME] businesses in Queensland. 2 The 2015 agreement was the latest in a series of enterprise-specific agreements applying to [COMPANY] and its employees, following a [APPELLANT] agreement that came into effect under the then applicable provisions of the Workplace Relations Act 1996 (Cth) ([NAME]); a [APPELLANT] agreement which was made and approved under the provisions of the FW Act; and a 2012 agreement approved under the FW Act. The 2015 agreement was intended to replace the 2012 agreement, the nominal expiry date of which was 31 October 2015. 3 The application for approval of the 2015 agreement was opposed in the Commission by the [NAME] ([NAME]), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU) (together, the unions). A dispute arose as to what were the applicable comparator instruments for the purposes of the application of the "better off overall test" (BOOT) set out in s 193 of the FW Act. [COMPANY]'s position was that the applicable comparator instruments were a number of Queensland State awards and orders preserved, as "notional agreements preserving State awards" ([NAME]) by the FW Act. The unions' common position was that the relevant instruments for the BOOT were the [NAME] made under the FW Act and in operation since 1 January 2010, which [NAME] the work to be performed by the employees under the 2015 agreement; and that the 2015 agreement was incapable of passing the BOOT by reference to those instruments. 4 At first instance, Commissioner [NAME] accepted the unions' argument and determined that the relevant [NAME] were the comparator instruments. [COMPANY] [2016] [NAME] 2832. [COMPANY] then sought leave to appeal to [NAME] of the Commission. [NAME] granted leave to appeal but dismissed the appeal, agreeing in essence with the Commissioner's decision and reasons for it. [COMPANY] v [NAME], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and Australian Manufacturing Workers' Union [2017] FWCFB 132. At the hearing before [NAME], [COMPANY]'s position was supported by the Housing Industry Association (HIA), Queensland Master Builders' Association ([NAME]) and the [NAME]. 5 By their further amended originating application, the applicants now apply in this Court for relief in the following terms: A. The Applicants apply for each of the following declarations pursuant to section 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), sections 21 and 22 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and sections 562 and 563 of the [APPELLANT] (Cth) (FW Act), that: 1. an order declaring that, on the proper construction of Schedule 3.20 of the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) (Transitional Act) and Regulation 3B.02 of the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) (Transitional Regulations), the following instruments (together the [NAME]): a. AN140326 – [NAME]' and [NAME]' Wages and Conditions ([NAME]) 2003 (One Big Order); b. AN140350 – Order – Supply of Tools to [NAME] (Tools Order); c. AN140045 – Building Products, Manufacture and [NAME] – State 2003; d. AN140043 – [NAME] – State 2003; e. AN140061 – Civil Construction, Operations and [NAME] – State 2003; f. AN140107 – [NAME] – State 2002; g. AN140128 – [NAME] [NAME] – State 2003; h. AP789529 – Metal, Engineering and [NAME] 1998 – Part 1; i. AP790899 – National [NAME] 2000; j. AP792354 – [NAME]) [NAME] 1999; and k. AP824308 – The Vehicle Industry – Repair, Service and [NAME] 2002; cover [NAME] on competency based training arrangements employed by: I. [COMPANY] (Employees); and II. the HIA in its group training scheme ([NAME]); 2. an order declaring that, on the proper construction of s 193 of the FW Act, and Schedule 7.18 of the Transitional Act, the [NAME] cover the Employees and the [NAME] to the exclusion of [NAME]; 3. an order declaring that, on the proper construction of Schedule 7.18 of the Transitional Act, the proper instruments for the BOOT assessment for the [COMPANY]/[NAME] 2015 are the [NAME]; 4. an order declaring that the Employees and [NAME] are [NAME] within the meaning of Schedule 7.20 of the Transitional Act; 5. an order declaring that, on the proper construction of s 193 of the FW Act, [NAME] are not [NAME] [NAME] employees for the purposes of s 206 of the FW Act; and 6. such further or [NAME] declarations and orders as the Court thinks fit. B. The First Applicant and the [NAME] Applicant apply for the following relief: 1. pursuant to section 39B of the Judiciary Act, section 23 of the Federal Court Act and sections 562 and 563 of the FW Act, a writ of certiorari be issued to [RESPONDENT] Respondent removing into this Court the decision made by [RESPONDENT] Respondent on 7 February 2017 in the matter of [RESPONDENT] v [NAME], CEPU and AMWU [2017] FWCFB 132 and quashing that decision and the orders made at paragraph [69]; 2. pursuant to section 39B of the Judiciary Act, section 23 of the Federal Court Act and sections 562 and 563 of the FW Act, a writ of certiorari be issued to [RESPONDENT] Respondent removing into this Court the decision made by [RESPONDENT] Respondent on 12 August 2016 in the matter of [RESPONDENT] [2016] [NAME] 2832 and quashing that decision and the orders made at paragraph [226]; 3. pursuant to section 39B of the Judiciary Act, section 23 of the Federal Court Act and sections 562 and 563 of the FW Act, a writ of mandamus be issued to [RESPONDENT] Respondent to hear and determine the First Applicant's application for approval of the [APPELLANT]/[NAME] 2015 (AG2016/525) according to law; and 4. such further or [NAME] declarations and orders as the Court thinks fit. 6 The question raised in this proceeding is whether the applicants are entitled to such relief.

Agreed facts 7 For the purpose of the hearing of the proceeding, the parties have agreed the following facts for the sole purpose of tendering a statement of agreed facts in evidence under s 191 of the Evidence Act 1995 (Cth): The First Applicant 1. The First Applicant: [redacted] b. is a [NAME] within the definition of the [APPELLANT] (Cth) (FW Act); c. as at 27 [APPELLANT] employed [NAME] on competency based wage progression arrangements as referred to in item 16 of Regulation 3B.02 of the Transitional Regulations (Employees); d. as at 27 [APPELLANT], together with its Employees, was [NAME] by: i. AN140326 – [NAME]' and [NAME]' Wages and Conditions ([NAME]) 2003 (One Big Order); and ii. AN140350 – Order – Supply of Tools to [NAME] (Tools Order), (together the [NAME]); and e. hires the services of the Employees to [NAME] businesses in Queensland, including members of both the [NAME] Applicant and the [NAME] Applicant. The [NAME] Applicant 2. The [NAME] Applicant: [redacted] b. is a Recognised State Registered Association under the Fair Work (Registered Organisations) [APPELLANT] (Cth) (FW (RO) Act); and c. has members that are employers who: i. employ [NAME] in Queensland under competency based wage progression arrangements as referred to in item 16 of Regulation 3B.02 of the Transitional Regulations ([NAME]); and ii. as at 27 [APPELLANT], together with their relevant [NAME], were [NAME] by the [NAME] ([NAME]). [NAME] Applicant 3. The [NAME] Applicant: [redacted] b. operates a group training scheme (HIAGT) that directly employs [NAME] in Queensland on competency based wage progression arrangements as referred to in item 16 of Regulation 3B.02 of the Transitional Regulations ([NAME]); and c. as at 27 [APPELLANT], together with the [NAME] was [NAME] by the [NAME]. Respondents 4. Each of the First Respondent, [NAME] Respondent and [NAME] Respondent is a [NAME] under the FW (RO) Act entitled to represent one or more of the Employees, [NAME], [NAME]. Relevant Instruments 5. The [NAME] provide for competency based wage progression of [NAME] in Queensland as referred to in item 16 of Regulation 3B.02 of the Transitional Regulations.

6. As at 27 [APPELLANT] the First Applicant, the [NAME], HIAGT, and the [NAME] were employers within the scope of: a. AN140045 – Building Products Manufacture and [NAME] – State 2003; b. AN140043 – [NAME] – State 2003; c. AN140061 – Civil Construction, Operations and [NAME] – State 2003; d. AN140107 – [NAME] – State 2002; and e. AN140128 – [NAME] [NAME] – State 2003, (together the [NAME]).

7. On 1 January 2010, the following [NAME] commenced operation: a. the Manufacturing and Associated Industries and [NAME] 2010; b. the Vehicle Manufacturing, Repair, Services and [NAME] 2010; c. the Electrical, Electronic and [NAME] 2010; d. the Plumbing and [NAME] 2010; e. the Building and [NAME] 2010; and f. the Joinery and [NAME] 2010, (together the [NAME]).

8. Pursuant to item 16 of Regulation 3B.02 of the Transitional Regulations, as from 1 January 2010, the [NAME] continued to cover the First Applicant. (NB: The parties disagree as to whether: a. the [NAME] have ceased by operation of the sunsetting provisions in item 20 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendment) Act and no longer cover the employers and employees referred to in paragraph 10; and/or b. the [NAME] and [NAME] provide concurrent coverage; and/or c. if there is concurrent coverage, coverage of the [NAME]'s displaces or is displaced by concurrent coverage by the [NAME]). Previous [COMPANY] Agreements 9. On 18 [APPELLANT], the [COMPANY]/Trainee Union [APPELLANT] ([APPELLANT]) commenced. The [APPELLANT] a. [NAME] its [NAME] within the construction, engineering, electrical contracting, automotive, civil and [NAME] trades; b. had a nominal expiry date three years from the date on which it was lodged with the OEA; and c. was a workplace agreement for the purposes of subsection 38A(2) of schedule 8 of the [NAME].

10. On 1 [APPELLANT], the [COMPANY]/Trainee Union [APPELLANT] ([APPELLANT]): a. an agreement made under the FW Act; b. came into operation, being 7 days after it was approved by the [NAME] under the FW Act; and c. applied to the First Applicant and the Employees.

11. In relation to the [APPELLANT], the First Applicant submitted an employer's declaration under section 185 of the FW Act. That declaration listed the following instruments as the relevant instruments covering the Employer and the Employees for the purposes of the relevant no-disadvantage test: a. [NAME] State [NAME]; b. Building Products, Manufacture and [NAME] State [NAME]; c. Civil Construction, Operations and [NAME] State [NAME]; d. Clerical Employees [NAME] State [NAME]; e. [NAME] State [NAME]; f. [NAME] State [NAME]; g. [NAME] [NAME] [NAME]; h. General Stores, Warehousing and [NAME] State [NAME]; i. [NAME]; and j. [NAME] and Conditions.

12. In relation to the [APPELLANT], each of the First Respondent, [NAME] Respondent and [NAME] Respondent filed an employee [NAME] declaration under section 185 of the FW Act in support of the application and the employer's declaration.

13. On 17 April 2013, the All Trades Queensland Union Collective Agreement 2012-2015 (2012 Agreement) approved by the Fair Work Commission ([NAME]) came into operation. A correction to this decision was made on 24 April 2013. The 2012 Agreement applied to [COMPANY] and the Employees.

14. In relation to the 2012 Agreement, the First Applicant submitted an employer's declaration under section 185 of the FW Act. That declaration listed the following instruments as the relevant instruments for the purposes of the BOOT: a. Building Products, Manufacture and [NAME] – State 2003; b. [NAME] – State 2003; c. Civil Construction, Operations and [NAME] – State 2003; d. [NAME] – State; e. [NAME] – State 2002; f. [NAME] [NAME] – State 2003; g. Metal, Engineering and [NAME] 1998 – Part 1; h. National [NAME] 2000; i. [NAME]) [NAME] 1999; and j. Wages and Conditions (excluding certain [NAME]) 2003 and the QIRC Order – Supply of Tools to [NAME].

15. In relation to the 2012 Agreement, each of the First Respondent, [NAME] Respondent and the [NAME] Respondent filed an employee [NAME] declaration under section 185 of the FW Act in support of the application and the employer's declaration. The 2015 Agreement 16. On 25 February 2016, a majority of the Employees approved the [COMPANY]/[NAME] 2015 (2015 Agreement). On 9 March 2016, the First Applicant applied to the [NAME] for approval of the 2015 Agreement under section 185 of the FW Act (Approval Application).

17. In relation to the 2015 Agreement, the First Applicant submitted an employer's declaration under section 185 of the FW Act. That declaration listed the following instruments as the relevant instruments for the purposes of the BOOT: a. Building Products, Manufacture and [NAME] – State 2003; b. [NAME] – State 2003; c. Civil Construction, Operations and [NAME] – State 2003; d. [NAME] – State; e. [NAME] – State 2002; f. [NAME] [NAME] – State 2003; g. Metal, Engineering and [NAME] 1998 – Part 1; h. National [NAME] 2000; i. [NAME]) [NAME] 1999; j. The Vehicle Industry – Repair, Service and [NAME] 2002; k. the One Big Order; and l. the Tools Order.

18. Each of the First Respondent, [NAME] Respondent and [NAME] Respondent filed an employee [NAME] declaration under section 185 of the FW Act in objection to the Approval Application and claimed that the BOOT should be conducted against the [NAME]. Decisions of the [NAME]

19. On 12 August 2016, in [COMPANY] [2016] [NAME] 2832 (First Decision), Commissioner [NAME] issued a decision which found that: a. the [NAME] had ceased to operate on 1 January 2014; b. the [NAME] [NAME] and its employees that previously were [NAME] by the [NAME]; and c. the BOOT for the 2015 Agreement should be applied against the [NAME].

20. On 1 September 2016, the First Applicant filed a notice of appeal of the First Decision to [NAME] of the [NAME]. The [NAME] Applicant and the [NAME] Applicant appeared before the appeal to [NAME] of the [NAME] and made submissions that the [NAME] still [NAME] [NAME], HIA and [NAME].

21. On 7 February 2017, in [COMPANY] v [NAME], CEPU and AMWU [2017] FWCFB 132 ([NAME]), [NAME] dismissed the First Applicant's appeal and referred the matter back to Commissioner [NAME] for final determination in accordance with [NAME].

22. The application of the BOOT is yet to be heard by Commissioner [APPELLANT]. Current Position 23. The First Applicant: [redacted] b. continues to pay the Employees on that basis.

24. The [NAME] Applicant has been paying the [NAME] the modern [NAME] rates from 30 January 2017.

25. The First Respondent and the [NAME] Respondent have publically stated that: a. significant amounts of back-pay are owed to [NAME] in Queensland who were previously accepted as [NAME] by the [NAME]; b. claims in relation to this back-pay obligation would be pursued before the courts; and c. claims for back-pay could be in the millions of dollars.

26. Neither of the First Respondent, [NAME] Respondent and/or [NAME] Respondent have commenced proceedings themselves or on behalf of their members seeking back pay for the relevant [NAME].

Statutory setting in which issues are raised 8 As [NAME] observed in its reasons refusing the appeal from the Commissioner's decision, the statutory framework applicable to the determination of the question is complex. We consider, with respect, that [NAME] appropriately outlined and described the framework at [5] to [36] of its reasons for decision, in the following terms: [5] … Sections 186 and 187 of the FW Act set out the requirements which must be satisfied in order for an [NAME] to be approved by the Commission. Section 186(2)(d) requires that the Commission be satisfied that the agreement passes the BOOT. The content of the BOOT is set out in s.193, which relevantly provides: 193 Passing the better off overall test When a non-greenfields agreement passes the better off overall test (1) An [NAME] that is not a greenfields agreement passes the better off overall test under this section if the [NAME] is satisfied, as at the test time, that each [NAME], and each prospective [NAME], for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern [NAME] applied to the employee. … [NAME] (4) An [NAME] for an [NAME] is an employee who: (a) is [NAME] by the agreement; and (b) at the test time, is [NAME] by a modern [NAME] (the relevant modern [NAME]) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer. [NAME] (5) A prospective [NAME] for an [NAME] is a person who, if he or she were an employee at the test time of an employer [NAME] by the agreement: (a) would be [NAME] by the agreement; and (b) would be [NAME] by a modern [NAME] (the relevant modern [NAME] ) that: (i) is in operation; and (ii) would cover the person in relation to the work that he or she would perform under the agreement; and (iii) covers the employer. Test time (6) The test time is the time the application for approval of the agreement by the [NAME] was made under subsection 182(4) or section 185. … [6] Section 193 essentially requires a comparison to be undertaken between the entitlements of the [NAME] and those of any modern [NAME](s) which cover the employees to which it is sought that the agreement apply. [NAME] are therefore the comparator instruments for the purpose of the required comparison. [7] By way of background, [NAME] were made as a result of the conduct of the [NAME] modernisation process mandated by Part 10A of the [NAME], which was the immediate statutory predecessor of the FW Act. All current [NAME] commenced effect on 1 January 2010. Each modern [NAME] (consistent with s.143 of the FW Act) contains coverage terms which set out (relevantly) the employees and employers which are [NAME] by it. The employers and employees [NAME] are usually expressed as classes by reference to a particular industry or a particular type of work. [8] The FW Act draws a critical distinction between when a modern [NAME] or an [NAME] covers an employee and when it applies to an employee. Section 48 deals with when a modern [NAME] covers an employer, employee and others relevantly as follows: 48 When a modern [NAME] covers an employer, employee, [NAME] When a modern [NAME] covers an employee, employer, [NAME] (1) A modern [NAME] covers an employee, employer, [NAME] if the [NAME] is expressed to cover the employee, employer, [NAME]. … Effect of [NAME] provisions of this Act, [NAME] orders or court orders on coverage (2) A modern [NAME] also covers an employee, employer, [NAME] if any of the following provides, or has the effect, that the [NAME] covers the employee, employer, [NAME]: (a) a provision of this Act or of the Registered Organisations Act; (b) an [NAME] order made under a provision of this Act; (c) an order of a court. (3) Despite subsections (1) and (2), a modern [NAME] does not cover an employee, employer, [NAME] if any of the following provides, or has the effect, that the [NAME] does not cover the employee, employer or [NAME]: (a) a provision of this Act; (b) an [NAME] order made under a provision of this Act; (c) an order of a court. [NAME] that have ceased to operate (4) Despite subsections (1) and (2), a modern [NAME] that has ceased to operate does not cover an employee, employer, [NAME]. [NAME] cover employees in relation to particular employment (5) A reference to a modern [NAME] covering an employee is a reference to the [NAME] covering the employee in relation to particular employment. [9] Section 47, which deals with when a modern [NAME] applies to an employer, employee and others, relevantly provides: 47 When a modern [NAME] applies to an employer, employee, [NAME] When a modern [NAME] applies to an employee, employer, [NAME] (1) A modern [NAME] applies to an employee, employer, [NAME] if: (a) the modern [NAME] covers the employee, employer, [NAME]; and (b) the modern [NAME] is in operation; and (c) no [NAME] provision of this Act provides, or has the effect, that the modern [NAME] does not apply to the employee, employer, [NAME]. Note 1: Section 57 provides that a modern [NAME] does not apply to an employee (or to an employer, or an employee [NAME], in relation to the employee) in relation to particular employment at a time when an [NAME] applies to the employee in relation to that employment. ... [NAME] apply to employees in relation to particular employment (3) A reference in this Act to a modern [NAME] applying to an employee is a reference to the [NAME] applying to the employee in relation to particular employment. [10] Sections 53 and 52, which respectively set out when an [NAME] covers an employee (and others) and when it applies, substantially reflect for relevant purposes the definitional structure of ss.48 and 47. Section 53 relevantly provides: 53 When an [NAME] covers an employer, employee or employee [NAME] Employees and employers (1) An [NAME] covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer. ... Effect of provisions of this Act, [NAME] orders and court orders on coverage (3) An [NAME] also covers an employee, employer or employee [NAME] if any of the following provides, or has the effect, that the agreement covers the employee, employer or [NAME]: (a) a provision of this Act or of the Registered Organisations Act; (b) an [NAME] order made under a provision of this Act; (c) an order of a court. (4) Despite subsections (1), (2) and (3), an [NAME] does not cover an employee, employer or employee [NAME] if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or [NAME]: (a) another provision of this Act; (b) an [NAME] order made under a provision of this Act; (c) an order of a court. Enterprise agreements that have ceased to operate (5) Despite subsections (1), (2) and (3), an [NAME] that has ceased to operate does not cover an employee, employer or employee [NAME]. Enterprise agreements cover employees in relation to particular employment (6) A reference in this Act to an [NAME] covering an employee is a reference to the agreement covering the employee in relation to particular employment. [11] Section 52 provides: 52 When an [NAME] applies to an employer, employee or employee [NAME] When an [NAME] applies to an employee, employer or [NAME] (1) An [NAME] applies to an employee, employer or employee [NAME] if: (a) the agreement is in operation; and (b) the agreement covers the employee, employer or [NAME]; and (c) no [NAME] provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or [NAME]. Enterprise agreements apply to employees in relation to particular employment (2) A reference in this Act to an [NAME] applying to an employee is a reference to the agreement applying to the employee in relation to particular employment. [12] Section 57 deals with the interaction between [NAME] and enterprise agreements, and operates to ensure that a modern [NAME] and an [NAME] cannot simultaneously apply to an employee as follows: 57 Interaction between [NAME] and enterprise agreements (1) A modern [NAME] does not apply to an employee in relation to particular employment at a time when an [NAME] applies to the employee in relation to that employment. (2) If a modern [NAME] does not apply to an employee in relation to particular employment because of subsection (1), the [NAME] does not apply to an employer, or an employee [NAME], in relation to the employee. [13] Section 57 is one of a number of 'interaction rules' which are set out in Pt.2-1 Div.3 of the FW Act and deal with the interaction between the National Employment Standards established in Pt.2-2, [NAME] and enterprise agreements. [14] Although under ss.48 and 53 respectively a modern [NAME] and an [NAME] may both cover an employee at a given time, because the terms of both instruments are expressed to cover the employee in relation to particular employment, only the [NAME] (while it is in effect) will apply to the employee. For the purpose of the BOOT in s.193, a modern [NAME] will be required to be used as the comparator instrument if it covers any employees to which the agreement, if approved, will apply. The comparator modern [NAME] need not apply to the employees. Often it will not, for example when there is an earlier [NAME] which covers and applies to the relevant employees. [15] The operation of s.193 is modified by certain provisions of the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Transitional Act) so that in some circumstances a NAPSA together with a 'transitional APCS' are to be used as the comparator instruments. [NAME] were established by Schedule 8 of the [NAME], as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act), as transitional instruments applicable to employees brought into the federal industrial relations system who previously had their terms and conditions determined by a State [NAME]. Thus clause 31 of Schedule 8 provided: 31 Notional agreements preserving State awards If, immediately before the reform commencement, the terms and conditions of employment of one or more employees in a single business or a part of a single business: (a) were not determined under a State employment agreement; and (b) were determined, in whole or in part, under a State [NAME] (the original State [NAME]) or a State or Territory industrial law (the original State law); a notional agreement preserving State awards is taken to come into operation on the reform commencement in respect of the business or that part of the business. [16] At the time the Work Choices Act amendments came into effect, cl.38A of Sch.8 of the [NAME] provided that a NAPSA ceased to have operation three years after the 'reform commencement date' (27 [APPELLANT]) or earlier in relation to an employee if a workplace agreement made under the [NAME] came into operation in relation to the employee, and that once a NAPSA ceased operating in relation to an employee it could never operate again in relation to that employee. However cl.38A was subsequently amended by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 so that it provided as follows: 38A Operation of a notional agreement preserving State awards (1) A notional agreement preserving State awards ceases to be in operation at the end of: (a) unless paragraph (b) applies, 31 [APPELLANT]; or (b) if a later date is prescribed by the regulations--that later date. (2) A notional agreement preserving State awards ceases to be in operation in relation to an employee if a workplace agreement or a pre-transition workplace agreement comes into operation in relation to the employee. Note: The reference in subclause (2) to a workplace agreement includes a reference to a workplace determination (see section 506). (3) A notional agreement preserving State awards ceases to be in operation in relation to an employee if the employee becomes bound by an [NAME]. (4) If the notional agreement has ceased operating in relation to an employee because of subclause (2) or (3), the agreement can never operate again in relation to that employee. (5) Despite subclause (4), a notional agreement that has ceased operating because of subclause (2) can operate again if: (a) the notional agreement ceased to operate because it was replaced by a pre-transition workplace agreement (the replacement workplace agreement); and (b) the replacement workplace agreement later ceased to operate because it did not pass the fairness test. Note: See sections 346Y, 346YA and 346Z of the pre-transition Act. (6) Despite subclause (4), a notional agreement that has ceased operating because of subclause (2) can operate again if: (a) the notional agreement ceased to operate because it was replaced by a workplace agreement or a pre-transition workplace agreement; and (b) the workplace agreement or pre-transition workplace agreement ceased to operate after the commencement of this subclause. [17] Part 7, Division 2, Subdivision H of the [NAME], as amended by the Work Choices Act, also established a new class of instruments known as 'APCSs' (Australian Pay and Classifications Scales). Section 208 brought into existence, in relation to any 'pre-reform wage instrument', a '[NAME]' which contained the wage rate and classifications, casual loading provisions, certain training provisions, frequency of payment provisions and the coverage provisions of the relevant 'pre-reform wage instrument'. The expression 'pre-reform wage instrument' included State awards (including orders, determinations and decisions of State industrial authorities) and certain [NAME] State laws and instruments dealing with employment conditions. Thus derived from any [NAME] or order of a State industrial authority was both a NAPSA and a [NAME], so that every NAPSA had a related [NAME]. It may be noted that preserved APCSs only ever existed notionally for legal purposes, and were never given any authoritative documentary existence. [18] The [NAME] was replaced by the FW Act (except for Schedule 1 of the [NAME], which became the Fair Work (Registered Organisations Act) [APPELLANT]). The Transitional Act was enacted as cognate legislation in order to deal with various matters in the transition from the [NAME] industrial relations regime to the FW Act regime and [NAME] matters consequential to the FW Act. The Transitional Act was assented to on 25 [APPELLANT]. Schedule 1 to the Transitional Act effected the repeal of most of the [NAME]. Schedule 3 to the Transitional Act is entitled 'Continued existence of awards, workplace agreements and certain [NAME] [NAME] instruments'. Item 2(1) of Sch.3 provides: (1) [NAME] instrument (see sub-item (2)) that becomes a transitional instrument (see subitems (3) to (4A)) continues in existence in accordance with this Schedule from when it becomes a transitional instrument, despite the [NAME] repeal. [19] Item 2(2)(b) of Sch.3 provides that a NAPSA is a [NAME] instrument, and item 2(3)(a) provides that each [NAME] instrument that was in effect immediately before the '[NAME] repeal day' (1 [APPELLANT]), except a Division 2B State reference transitional [NAME], becomes a transitional instrument. Item 2(5) classifies a NAPSA as an '[NAME]-based transitional instrument' (ABTI). [20] Item 3 of Sch.3 defines when a transitional instrument covers, and when it applies, to an employee or employer. Item 3 relevantly provides: 3 The employees, employers etc. who are [NAME] by a transitional instrument and to whom it applies (1) A transitional instrument covers the same employees, employers and any [NAME] persons that it would have [NAME] (however described in the instrument or [NAME]) if the [NAME] had continued in operation. Note 1: The expression covers is used to indicate the range of employees, employers etc. to whom the instrument potentially applies (see subitem (2)). The employees, employers etc. who are within this range will depend on terms of the instrument, and on any relevant provisions of the [NAME]. Note 2: Depending on the terms of a transitional instrument and any relevant provisions of the [NAME], the instrument's coverage may extend to people who become employees after the instrument becomes a transitional instrument. (2) A transitional instrument applies to the same employees, employers and any [NAME] persons the instrument covers as would, if the [NAME] had continued in operation, have been: (a) required by the [NAME] to comply with terms of the instrument; or (b) entitled under the [NAME] to enforce terms of the instrument. Note: The expression applies is used to indicate the range of employees, employers etc. who are required to comply with, or can enforce, the terms of a transitional instrument. ... [21] Item 3(4)(c) provides that the item has effect subject to Div.2 of Pt.5 of Sch.3, which 'deals with interaction between transitional instruments and FW [NAME], workplace determinations and enterprise agreements'. We will later refer to items 29 and 31 of Sch.3, which are contained in this Division. [22] Item 20(1) of Sch.3 provides: 20 Sunsetting rules for various transitional instruments Notional agreements preserving State awards (1) A notional agreement preserving State awards ([NAME] than a notional agreement that is an enterprise instrument) terminates: (a) on the 4th anniversary of the FW (safety net provisions) commencement day; or (b) if the regulations prescribe a later day—on that later day. [23] The 'FW (safety net provisions) commencement day' referred to is 1 January 2010, so the 4th anniversary referred to is 1 January 2014. [24] Item 21 of Sch.3 provides: 21 Effect of termination If a transitional instrument terminates, it ceases to cover (and can never again cover) any employees, employers or [NAME] persons. [25] [NAME] provisions of Sch.3 have the effect that a NAPSA, as an ABTI, may cease to cover or to apply to particular employees prior to the termination date provided for in item 20. Firstly, item 29 relevantly provides: 29 [NAME] and [NAME]-based transitional instruments [NAME] [NAME] than the miscellaneous modern [NAME] (1) If a modern [NAME] ([NAME] than the miscellaneous modern [NAME]) that covers an employee, or an [NAME] in relation to the employee, comes into operation, then an [NAME]-based transitional instrument ceases to cover (and can never again cover) the employee, or the [NAME] in relation to the employee. The miscellaneous modern [NAME] (2) While an [NAME]-based transitional instrument that covers an employee, or an [NAME] in relation to the employee, is in operation, the miscellaneous modern [NAME] does not cover the employee, or the [NAME] in relation to the employee. ... [26] Secondly, item 31 provides: 31 FW Act enterprise agreements and workplace determinations, and [NAME] based transitional instruments If an [NAME] or workplace determination (under the FW Act) applies to an employee, or an [NAME] in relation to the employee, then: (a) an [NAME] based transitional instrument ceases to apply to the employee, and the [NAME] in relation to the employee; but (b) the [NAME] based transitional instrument can (subject to the [NAME] provisions of this Part) continue to cover the employee, and the [NAME] in relation to the employee. Note: Subject to the [NAME] provisions of this Part, the [NAME] based transitional instrument can again start to apply to the employee, and the [NAME] in relation to the employee, if the [NAME] or workplace determination (under the FW Act) ceases to apply to the employee. [27] The relevant effect of the provisions of Sch.3 to the Transitional Act referred to is therefore, in summary, that it extended the operation of each NAPSA which remained in operation immediately before 1 [APPELLANT] until 1 January 2014 or any later date prescribed by regulations made pursuant to the Transitional Act, provided that before that date the NAPSA will cease to cover any employee who becomes [NAME] by any modern [NAME] ([NAME] than the miscellaneous modern [NAME]) which comes into operation. Once any such NAPSA terminates, it ceases to cover and can never cover again any employees, employers or [NAME] persons. A NAPSA will, prior to its termination date, also cease to apply to an employee if an [NAME] or workplace determination applies to the employee, but will resume applying to the employee if the [NAME] or workplace determination ceases to apply. [28] A [NAME] is not specified as a transitional instrument under Sch.3. APCSs are dealt with separately in Sch.9, Minimum Wages. Item 5(3) of Sch.9 continues the existence of APCSs under the FW Act as 'transitional APCSs', which are a subcategory of 'transitional minimum wage instruments'. Under item 11 of Sch.9, a transitional APCS ceases to cover an employee when a modern [NAME] that covers the employee comes into operation. Under item 7(1) and (4) of Sch.9, a transitional APCS may only be terminated by order of the Commission under item 3 of Sch.5 or item 9 of Sch.6 in specified circumstances which it is not presently necessary to describe. [29] This position concerning the coverage of [NAME] and preserved APCSs was modified by reg.3B.02 of the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Transitional Regulations). Regulation 3B.02 was added to the Transitional Regulations by the Fair Work [APPELLANT] (No. 3), which was made by the Governor-General on 14 [APPELLANT] and took effect on 1 January 2010. The regulation modified Schedule 5 of the Transitional Act by adding additional items and Parts. Relevantly, reg. 3B.02 added Part 15, item 16, which provides: Part 5 Continued coverage under [NAME]-based transitional instruments 16 Continued coverage (1) Despite item 29 of Schedule 3, an [NAME]-based transitional instrument that: (a) sets minimum terms and conditions for an employee to whom a training arrangement applies; and (b) either: (i) provides for competency-based wage progression; or (ii) provides solely for the provision of tools for use by [NAME]; and (c) [NAME] an employee or employer immediately before 1 January 2010; continues to cover the employee or employer (2) Despite the rule in item 11 of Schedule 9, an employee who is [NAME] by the [NAME]-based transitional instrument is also [NAME] by a transitional APCS that would have [NAME] the employee immediately before 1 January 2010. (3) The [NAME]-based transitional instrument and transitional APCS also cover an employee to whom a training arrangement applies: (a) who is employed, on or after 1 January 2010, by an employer who is [NAME] by the [NAME]-based transitional instrument; and (b) who would have been [NAME] by the [NAME]-based transitional instrument and transitional APCS under subitems (1) and (2) if the employee had been employed immediately before 1 January 2010. (4) For subitems (1) to (3), the [NAME]-based transitional instrument and transitional APCS only cover an employer in respect of an employee to whom a training arrangement applies. (5) Despite section 47 of the FW Act, a modern [NAME] that would, but for this subitem, apply to the employee does not apply for the period during which the [NAME]-based transitional instrument covers the employee. [30] Reg.3B.02 was expressed as having been made pursuant to item 8(1) of Sch.2 to the Transitional Act, which provides: 8 Regulations relating to matters dealt with in the transitional Schedules (1) The regulations may modify provisions of the transitional Schedules. ... [31] Item 18 of Sch.7 of the Transitional Act deals with the application of the BOOT to enterprise agreements made after the end of the 'bridging period' if one or more of the employees [NAME] by the agreement is an '[NAME]'. Item 18 is within Part 4 of Sch.7, which is entitled 'Transitional provisions to apply the better off overall test after end of bridging period if [NAME] modernisation not yet completed'. The 'bridging period' was the period starting on 1 [APPELLANT] and ending immediately before 1 January 2010. [32] Item 18 relevantly provides: 18 Application of better off overall test to making of enterprise agreements that cover [NAME] (1) This item applies in relation to an [NAME] made after the end of the bridging period if one or more of the employees [NAME] by the agreement is an [NAME]. Non-greenfields agreements (2) Despite section 193 of the FW Act, if the [NAME] is not a greenfields agreement, the agreement passes the better off overall test under that section only if: (a) the [NAME] is satisfied as referred to in subsection (1) of that section in relation to the agreement; and (b) the [NAME] is satisfied, as at the test time, that each [NAME], and each prospective [NAME], for the agreement would be better off overall if the agreement applied to the employee than if the relevant [NAME]-based transitional instrument and transitional APCS applied to the employee. ... [NAME] may assume employee better off overall in certain circumstances (4) For the purposes of determining whether an [NAME] passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern [NAME] or relevant [NAME]-based transitional instrument and transitional APCS applied to that class, the [NAME] is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee. ... [33] The expression '[NAME]' is defined in item 20 of Sch.7 as follows: [NAME], for an [NAME], means an employee who: (a) is [NAME] by the agreement; and (b) at the test time, is [NAME] by an [NAME]-based transitional instrument (the relevant [NAME]-based transitional instrument) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer. [34] Item 20 also defines the expression 'prospective [NAME]' as follows: prospective [NAME], for an [NAME], means a person who, if he or she were an employee at the test time of an employer [NAME] by the agreement: (a) would be [NAME] by the agreement; and (b) would be [NAME] by an [NAME]-based transitional instrument (the relevant [NAME]-based transitional instrument ) that: (i) is in operation; and (ii) would cover the person in relation to the work that he or she would perform under the agreement; and (iii) covers the employer. [35] 'Test time' is defined in item 20 to mean, for the purpose of item 19, the time the application for approval of the agreement by the Commission was made under s.185 of the FW Act. [36] It is clear that the application of item 18 depends on the relevant [NAME] covering employees who are also [NAME] by an ABTI. If no employee is [NAME] by an ABTI, then whether any employee is [NAME] by a [NAME] is irrelevant. If item 18 applies, then paragraph (a) of item 18(2) still requires (in accordance with s.193(1) of the FW Act) that, for modern [NAME]-[NAME] employees, the BOOT must be passed using the relevant modern [NAME] as the comparator instrument, and paragraph (b) requires, for employees [NAME] by an ABTI, that the BOOT must be passed using the relevant ABTI and its associated transitional APCS as the comparator instrument.

The Commissioner's decision 9 The Commissioner found that the [NAME] [NAME]'s employees immediately before 1 January 2010. She considered that when the [APPELLANT] agreement ceased to operate on 1 [APPELLANT], [COMPANY]'s employees reverted to coverage by the [NAME] pursuant to cl 38A(6) of Sch 8 of the [NAME]. She considered the [APPELLANT] agreement, while it applied to [COMPANY]'s employees, did not displace the coverage of the [NAME]. As a result, the requirements for the application of item 16 of Sch 5 to the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) (Transitional Act) were satisfied. 10 The Commissioner then concluded that the sunset provision of item 20 of Sch 3 was not displaced in its operation by item 16 of Sch 5, finding, at [185] to [196] of her reasons, so far as is relevant, as follows: [185] Item 16 in Regulation 3B.02 of the Transitional Regulations expressly excludes the operation of Item 29 of Schedule 3 if the criteria are met. This has the effect that the ABTI continues to cover the Applicant even if a [NAME] comes into operation. [186] Item 16 of Regulation 3B.02 of the Transitional Regulations does not expressly exclude the operation of Item 20 of Schedule 3 (the sunsetting clause) of the Transitional Act, like it does Item 29. [187] Item 20 of Schedule 3 operates such that a NAPSA terminates on the 4th anniversary of the safety net commencement (the 4th anniversary being 1 January 2014) or if regulations prescribe a later day – on that later day. [188] If it was the intention to continue the operation of the [NAME] that met the criteria in Item 16 of Regulation 3B.02, it is surprising that Item 16 does not express an exclusion for Item 20 as well as Item 29. [189] However, in considering the full clause of Item 20, it must be considered whether the Regulations prescribe a "later day" for the termination of the NAPSA. Item 16 of Regulation 3B.02 does not prescribe a "later day", it only indicates that an ABTI "continues to cover" under certain circumstances. [190] In considering the material in evidence before the Commission, it appears that it is the [NAME]'s advice to the Applicant that the Regulations do not have an end date and will continue to apply until the Regulations are changed, however, the [NAME] does not specifically make any reference or consideration of Item 20, Schedule 3 (the sunsetting clause). The advice is not specifically given in relation to the Applicant's circumstances or the matter before the Commission. That is, the advice does not take into account the [APPELLANT] or the [APPELLANT] in the chronology of considerations and the specific date of the sunsetting clause as applicable to the termination of [NAME]. [191] Referring to the Explanatory Statement in relation to the introduction of Item 16 of Regulation 3B.02, the Applicant argued that it reflected a shift in policy whereby the [NAME] are expressly identified to be continued. However, it is also noted that the Explanatory Statement contains the following extract that may lead a [NAME] to believe the [NAME] were to continue for a limited duration only, to accommodate the apprenticeships being undertaken and the transition of the system to the Federal jurisdiction: "This regulation ensures employees who currently have access to competency-based wage progression continue to have access to those arrangements for the duration of their traineeship or apprenticeship. Similarly, entitlements for [NAME] to be provided with tools by their employer will continue to apply for the duration of their apprenticeship…" [192] From the above, it would seem that the purpose of the Regulation was to ensure the continuation of the protection of the unique system for those already participating in it. ... [194] The Applicant's submitted that Item 16 of Regulation 3B.02 "carved out" [NAME] that provided for competency-based wage progression to protect them from the operation of Item 29 of Schedule 3. The Applicant submitted that Item 20 of Schedule 3 (the "sunsetting clause") was enacted as a general provision in the original Transitional Act, commencing on 1 [APPELLANT]. Because Item 16 was taken to be inserted into the Transitional Act after it had commenced (Regulation 3B.02 taking effect on 1 January 2010), it should be understood as creating an exception to the sun-setting provision. [195] It was submitted that the "saving" of a NAPSA under Item 16 puts that NAPSA in a different category, and further, the exception had been kept separate (the insertion of the content of Regulation 3B.02 was taken to occur in Schedule 5 of the Transitional Act) from the sun-setting provision in Schedule 3 of the Transitional Act. [196] In the current circumstances, Items 20 and 21 of Schedule 3 of the Transitional Act "sunsetted" the [NAME] that continued to cover the Applicant under Item 16 of Regulation 3B.02. Item 16 of Regulation 3B.02 clearly excluded the operation of Item 29 of the Transitional Act, but did not exclude Items 20 or 21 of the Transitional Act. Considering the current circumstances against the provisions, Item 16 of Regulation 3B.02 provides for continued coverage of the OBO and the Tools Order, until all [NAME] terminated 4 years after the FW (safety net provisions) commencement day, that is, 4 years after 1 January 2010, being 1 January 2014. 11 The Commissioner then added, at [221] and [222], that she considered the relevant [NAME] [NAME] the employees of [COMPANY] regardless of the application or coverage of the [NAME]: [221] There is nothing in the [APPELLANT] that makes reference to [NAME] or prior legislative provisions to exclude coverage of [NAME]. It is noted that Item 16 of Regulation 3B.02 only referred to the ceasing of the application of [NAME] during the period that [NAME] continued to cover, and did not cease the coverage of [NAME]. [222] Accordingly, the employees are considered to be [NAME] [NAME] employees for an [NAME] under s.193(4), being employees who are [NAME] by the proposed Agreement and are [NAME] by a [NAME].

[NAME]'s decision 12 In the appeal to [NAME], [COMPANY] contended that the Commissioner had erred, on the following grounds, in concluding that the [NAME] terminated on 1 January 2014: • Item 16 of Sch.5 as enacted by reg.3B.02 manifested an intention to continue coverage of [NAME] of the nature of the [NAME] without there being any termination date for this continued coverage. • Item 16 was directly contradictory of item 20 of Sch.3. • This conflict was to be resolved on the basis that item 16 of Sch.5, which was a later provision directed at a specifically identified situation, prevailed over item 20 of Sch.3, which was an earlier provision expressed in general terms. There was an implied repeal of item 20 of Sch.3 to the extent that it was in conflict with item 16 of Sch.5. • Item 16 of Sch.5 was also inconsistent with the continued application of any modern [NAME] to any employee to which an ABTI continued to apply because of the item. No modern [NAME] applied to any such employee. 13 [NAME], the HIA, [NAME], and [NAME] supported [COMPANY]'s appeal and submissions. Together, they identified what were referred to as the wider ramifications of the Commissioner's decision, namely, that many employers of [NAME] and [NAME] in Queensland had operated under the belief that item 16 of Sch 5 continued the operation and application of the [NAME] (and associated Australian Pay and Classification Scales (APCS)) beyond 1 January 2014; and pointed to the fact that advice from the [NAME] and submissions made by the [NAME] to the Annual Wage Review in 2015 were consistent with that belief. 14 The unions contended before [NAME] that the Commissioner's decision was correct and made submissions consistent with the Commissioner's reasoning. 15 In giving leave to appeal but dismissing the appeal, [NAME] considered that the critical question was whether the relevant [NAME] relied upon by the unions [NAME] the employees to whom the 2015 agreement would apply if approved (regardless of whether the [NAME] [NAME] or applied to such employees). At [50] of its reasons, [NAME] said that s 193(1) of the FW Act requires the relevant modern [NAME] to be the comparator instrument for the BOOT in respect of [NAME] [NAME] employees and prospective [NAME] [NAME] employees. It said that under s 193(4) [NAME] [NAME] employees and their employer must at the test time be [NAME] by an operative modern [NAME] (which is the "relevant modern [NAME]" for the purpose of s 193(1)), and under s 193(5) prospective [NAME] [NAME] employees must, if they were employed at the test time, be [NAME] by a modern [NAME] together with the employer. 16 [NAME], at [51], drew attention to s 48(1) of the FW Act, which provides that a modern [NAME] "covers" an employee and an employer if it is expressed to cover them. [NAME] considered it was clear that the [NAME] relied upon by the unions were, at the test of time, expressed to cover various categories of employees to whom the 2015 agreement would apply if approved. [NAME] considered it was not necessary to examine the coverage provision of each of the [NAME] relied upon since [COMPANY] did not submit that any of them were not expressed to cover employees to whom the 2015 agreement would apply. [NAME] gave one example to support its observation, by reference to the Building and [NAME] 2010. 17 At [53], [NAME] said the question was then whether anything in the Transitional Act alters the clear position established by s 193 of the FW Act and an examination of the coverage provisions of the relevant [NAME]. It considered that, because the Transitional Act is legislation which is cognate to the FW Act, and because both Acts operate as component parts of an overall scheme of industrial relations legislation, they should generally be interpreted in a co-ordinated way as far as their respective texts permit. Further, [NAME] said, item 4(1)(b) of Sch 2 of the Transitional Act provides that expressions used in a Schedule that are defined in the FW Act are to bear the same meaning in the Schedule as they do in the FW Act unless a contrary intention appears. [NAME] therefore considered the definitional distinction between when a modern [NAME] applies to an employee and employer, and when it covers them, as established by s 47 and s 48 respectively, should be applied to the Transitional Act, and it could not find any contrary intention in that regard in the FW Act. 18 [NAME] then considered, at [54], that item 16 of Sch 5, while it operates to continue the coverage of [NAME]-based transitional instruments ([NAME]) to which it applies, does not displace the coverage of any modern [NAME] to an employee. It considered that, critically, item 16(5), while it provides that a modern [NAME] shall not apply to an employee while an ABTI still covers the employee, does not provide that a modern [NAME] shall not continue to cover the employee. [NAME] rejected a submission by [COMPANY] that it was necessarily implicit in item 16 that a modern [NAME] could not continue to cover where there was coverage by an ABTI. It considered there was no inherent conflict in there being coverage of an employee by two different instruments, since coverage is only concerned with the potential, and not actual, application of the instrument. It said, by way of example, that a modern [NAME] will continue to cover an employee even though an [NAME] is the legally effective regulatory instrument because it both covers and applies to the employee. It considered difficulty could only arise if two instruments both applied to the employee, and the legislative scheme resolves the potential conflict by interaction rules which generally ensure that one of the instruments does not apply – such as, for example, s 57 of the FW Act. It considered item 16(5) to be an interaction rule of that type. 19 At [55], [NAME] said that the use of an ABTI (including a NAPSA) and a transitional APCS as the comparative instrument for the purposes of the BOOT is authorised only by item 18 of Sch 7 to the Transitional Act. It stated that item 18 is a provision within Pt 4 of Sch 7, the heading to which – "Transitional provisions to apply the better off overall test after end of bridging period if [NAME] modernisation not yet completed" – indicates that the purpose of the provisions in that Part was to deal with the approval process for enterprise agreements made after 1 January 2010, in the event that the [NAME] modernisation process had not been completed by that date. It considered that that conclusion tends to be confirmed by [348] of the Explanatory Memorandum to the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT]. 20 [NAME] then said, at [56], that since the [NAME] modernisation process did in fact complete by that date, it was not clear that an interpretation of item 18 which would, notwithstanding this, give it work to do after 1 January 2010 was consistent with that intention. It added, that, in any event, item 18(2)(a) maintains the requirement that s 193(1) must be satisfied in order for an agreement that covers any "[NAME]" to be approved. It said that that means that for any employee [NAME] by a modern [NAME], the BOOT must be undertaken using the relevant modern [NAME] as the comparator instrument. That means, even assuming that the 2015 agreement does cover any "[NAME]", the BOOT must nonetheless be applied using the relevant modern [NAME] as the comparator instrument in respect of any employees [NAME] by the 2015 agreement who are also [NAME] by a modern [NAME] (whether or not such employees might also be [NAME] by an ABTI). 21 [NAME] considered that item 18(2)(b) adds an additional requirement that for any "[NAME]", the BOOT must also be passed using the relevant ABTI and the associated transitional APCS as comparators. It said that at the time the Transitional Act was enacted, containing as it did item 18 of Sch 7, it may not have been contemplated that an employee might simultaneously be [NAME] by a modern [NAME] and an ABTI, so that both (a) and (b) of item 18(2) would need to be satisfied. [NAME] observed that the potential situation was only brought about by the later enactment of Sch 5 item 16 by virtue of reg 3B.02 of the Fair Work (Transitional Provisions and Consequential Amendments) [APPELLANT] (Cth) (Transitional Regulations). [NAME] considered, that, notwithstanding this, there was no inherent impracticability or absurdity about the proposition that the BOOT might have to be applied twice to any employees [NAME] by both a modern [NAME] and an ABTI, such that it would cause [NAME] to search for an alternative interpretation of the relevant provisions that is contrary to the clear language actually used. 22 At [57], [NAME], following consideration of the operation of the Transitional Act, accepted the unions' [NAME] contention – that item 16 of Sch 5, even if it applied to the [NAME], did not have the effect of displacing the coverage, as distinct from the application, of the relevant [NAME] – and considered that the Commissioner's additional conclusion, referred to above at [11], was correct. [NAME] considered that conclusion was sufficient to dispose of the appeal by dismissing it, it further considered that because, in ultimately dealing with the application for approval of the 2015 agreement, it would be necessary to determine whether item 18 of Sch 7 has any application to the 2016 agreement, it should express its view as to whether the [NAME] continued to cover any employees of [COMPANY]. That involved [NAME] considering whether the effect of item 16 of Sch 5, as enacted by reg 3B.02, was to modify the effect of item 20 of Sch 3 such that the [NAME] did not terminate on 1 January 2014. 23 In dealing with that further question, which is the primary issue raised in this proceeding before this Court, [NAME] rejected the case put on behalf of [COMPANY]. 24 [NAME] noted, at [59], the subject matter of Sch 3 to the Transitional Act was concerned with continuing the legal existence of various types of instruments that were made under the [NAME] upon the FW Act coming into effect, subject to various conditions and limitations. It noted that item 2 gave continued existence to [NAME] but that item 20(1) brought that existence to an absolute end at the later date of 1 January 2014 or a later date prescribed by the Transition Regulations. It added that item 21 confirms what might otherwise be regarded as obvious, namely, that once the existence of a transitional instrument terminates, it ceases to cover and can never cover again any employees, employers or [NAME] persons. 25 [NAME], at [60], then noted item 29 of Sch 3, which fell within Div 3 of the Schedule and said that it may be gleaned from the title to that Division and the provisions contained within it, that it was concerned with establishing interaction rules between transitional instruments which are given legal existence and instruments made under the FW Act's provisions. It noted that those interaction rules were concerned with the coverage and application of various categories of instruments to employers, employees and others at particular times and in particular circumstances, but were not concerned with their existence as legal instruments. 26 [NAME] said, at [61], that item 29(1) was to be interpreted in that context and was concerned with the coverage of [NAME] in relation to particular employers, employees and others who have become [NAME] by a modern [NAME], and "mandates that in that circumstance the coverage of the ABTI ceases in respect of any such person and cannot thereafter recommence". [NAME] there added that item 29(1) does not itself bring an end to the legal existence of a relevant ABTI as a whole, only its coverage of particular persons. It said that in circumstances where scope of coverage may not be co-extensive with that of a modern [NAME], the provision allows for the possibility that some persons previously [NAME] by an ABTI may cease to be [NAME] by it because they have become [NAME] by a modern [NAME], but [NAME] persons continue to be [NAME] by the ABTI while it retains legal existence because they have not become [NAME] by a modern [NAME]. 27 As to the terms and proper construction of item 16 of Sch 5, [NAME], at [62], considered it important to note that reg 3B.02, which introduced it, was not made in exercise of the power in item 20(1)(b) of Sch 3 (supported by the general power in s 4(a) of the Transitional Act to make regulations "prescribing matters ... required or permitted by this Act to be prescribed") to prescribe a day later than 1 January 2014 for the termination of [NAME]. It said the regulation expressly stated that it was made in exercise of the power contained in item 8(1) of Sch 2 to make regulations modifying provisions in the Schedules to the Transitional Act. 28 It then noted, at [63], the terms of item 16(1) commences with the words "Despite item 29 of Schedule 3 …". [NAME] observed that the terms of item 16(1) demonstrated that it was concerned with the continuation of the coverage by certain [NAME] of a specified category of person in a manner which is inconsistent with, and therefore modifies, the effect of item 29 of Sch 3. At [63], it additionally noted that there was no statement in item 16 of any purpose to modify the effect of item 20 of Sch 3, and that the provisions of item 16 did not deal with the subject matter of item 20(1), namely the termination of [NAME], the legal existence of which were continued as transitional instruments by item 2(1) of Sch 3. [NAME] also considered that no part of item 16 expressly or by effect sought to modify item 21 of Sch 3. It therefore concluded: Item 16(1) is therefore to be understood as no more than a modification of the interaction rule in item 29(1) of Sch.3 concerning an ABTI which remains in existence in accordance with the [NAME] provisions of Sch.3 and a modern [NAME] which comes into effect. 29 It followed, in the view of [NAME], that there was no inconsistency between item 20 of Sch 3 and item 16 of Sch 5, which required an implication to be drawn that the latter modified the effect of the former. 30 [NAME], at [65]-[66], also had regard to the explanatory statement for the Fair Work [APPELLANT] (No. 3), which it considered tended to confirm the ordinary meaning of the reg 3B.02 provisions. It said it confirmed the purpose of item 16 was to allow [NAME] of the specified type to continue to cover relevant employees and employers upon the commencement of [NAME]. It also observed that the explanatory statement suggested that it was not intended that the provision have a long term effect insofar as it was directed at allowing the existing traineeships and apprenticeships to be completed in accordance with pre-existing arrangements, although [NAME] said it must be acknowledged that item 16(3) of Sch 5 continues the coverage of [NAME] for persons employed after 1 January 2010 who meet the specified conditions. 31 Finally, [NAME], at [67], noted the way in which the BOOT was applied to the 2012 agreement, the [NAME]'s advice and submissions made by the [NAME] to the Annual Wage Review 2015, but said such matters were incapable of affecting the conclusions reached concerning the proper interpretation and application of the Transitional Act provisions.

Did the Commission commit any jurisdictional error? 32 [COMPANY] and [NAME] contend that the Commissioner, by holding that the operation of the [NAME]/[NAME] ceased on 1 January 2014 as they were "sunsetted" by the sunset provision, erred. 33 They also contend that [NAME] erred in finding that item 16 of Sch 5 does not operate to extend the legal existence of any NAPSA beyond the 1 January 2014 date specified in item 20 of Sch 3. 34 Their case is that the conclusion of [NAME], at [64], that item 16 of Sch 5 did not modify item 20 of Sch 3, is unsustainable, and that it was not really a matter of modification or appeal by implication, but modification by express words. 35 Thus, [NAME] submit that the Commission erred in determining that the [NAME] are the correct reference instruments for the purposes of the BOOT in respect of the 2015 agreement; and that the Commissioner and [NAME] ought to have concluded that the [NAME] and the [NAME] were the only relevant instruments for the purposes of the BOOT. 36 In both instances, they contend, the Commission committed jurisdictional error in that it misunderstood and misapplied the relevant statutory provisions by committing themselves to a course beyond jurisdiction, that is, to require that the BOOT be conducted by comparing the 2015 agreement with industrial instruments that were not lawfully the appropriate comparators, and by failing to require that the BOOT be conducted by comparison to the [NAME], which were the comparators required by the FW Act. 37 We do not agree that the Commission, either at first instance or by [NAME], committed the jurisdictional errors contended for by the applicants. We consider the primary analysis provided by the Commissioner and [NAME] in arriving at their decisions was correct. 38 We have set out s 193 of the FW Act at [8] above. By subs (1) it is clear that an [NAME] that is not a greenfields agreement, as in this case, passes the BOOT if the Commission is satisfied, as at the test time, that each [NAME], and each prospective [NAME], for the agreement would be better off overall "if the agreement applied to the employee" than if the relevant modern [NAME] applied to the employee. As the unions have submitted, the critical question for consideration is whether the relevant modern [NAME] [NAME] the employees to whom the [NAME] will apply if approved. [NAME], at [50] to [53], to which we have referred to at [15] to [17] above, correctly stated this approach. 39 Only when that question of coverage is determined is it necessary to turn to the question, whether the Transitional Act or the Transitional Regulations alter that approach. 40 We agree with the contention made on behalf of the unions that there is nothing in the Transitional Act or Transitional Regulations that alters that approach. The [NAME] are not to be used as comparator instruments for the purpose of the BOOT, because: (1) by operation of item 20(1) of the Transitional Act, the [NAME] "sunsetted", to use the language of the parties, and terminated on 1 January 2014; and (2) in any event, even if item 16(5) of the Transitional Act applied, it did not have the effect of displacing coverage of the relevant [NAME] because of the terms of s 48 of the FW Act, which is set out above in [8], as [NAME] explained. 41 Item 20 of Sch 3 has the effect that the [NAME] ceased operating on 1 January 2014. By operation of item 21, they can never again cover employees. 42 While the applicants rely on item 16 to contend that it states a rule that prevails over item 20, that argument is not compelling. It is put on the basis that item 16 prevails over item 20 because it "impliedly" modifies or repeals item 20 in order to overcome an inconsistency between the two. The inconsistency is said to be that item 20 terminated the NAPSA on 1 January 2014, whereas item 16 imposed no cut off or "sunsetting" date on the continuing of the [NAME] preserved by that provision. 43 We agree with the argument put on behalf of the unions that the construction contended for by the applicants does not have regard to the language used in the relevant provisions and each have work to do. Item 16, by its terms, expressly modifies the effect of item 29 of Sch 3. Item 16(1) commences by stating that "Despite item 29 of Schedule 3 …" and then proceeds to deal with matters relevant to and affecting item 29. Item 16(5) expressly excludes the operation of s 47 of the FW Act, which section is also set out above at [8]. 44 Item 16 does not refer to or deal with the matters set out in item 20. Item 20 remains unaffected by the operation of item 16. 45 As [NAME] pointed out, reg 3B.02, which introduced item 16, was made pursuant to item 8(1). We accept the submission that if the regulation was intended to modify the Transitional Act in the exercise of the power conferred by item 8(1), such a modification should be clear and identifiable and not found to have been achieved by implication because of apparently inconsistent language. A repeal by implication is rarely readily accepted. See Saraswati v R (1991) 172 CLR 1 at 17; [1991] HCA 21 (Gaudron J). It should not be considered to have been affected by item 16. 46 To the extent that the applicants argue that, by operation of item 16(5), [NAME] do not apply to or cover [COMPANY] and its employees, we note that the express language of item 16(5) modifies the effect of s 47 of the FW Act, which deals with when a modern [NAME] applies to an employee. A modern [NAME] may not apply pursuant to item 16(5) if the ABTI applies to the employees. However coverage of the modern [NAME], rather than application, is the relevant consideration for the purpose of the BOOT. Item 16(5) does not, in that regard, refer to, and consequently does not modify, the effect of s 48, which deals with when a [NAME] covers an employee. [NAME] explained this correctly in its reasons. 47 Accordingly, despite the operation of item 16(5), a modern [NAME] can continue to cover an employee for the period during which an ABTI covers the employee. We agree with [NAME] that there is no inherent conflict in there being coverage of an employee by two different instruments, given that coverage is concerned with the potential, rather than the actual, application of the instrument. As the unions submit, a difficulty would only arise if two instruments both purported to apply to the employee. Even if item 16 prevailed over item 20 of the Transitional Act, item 16(5) would not operate to cease coverage of the [NAME]. 48 Thus, we also accept the submission that item 20 of the Transitional Act and item 16 of reg 3B.02 are not necessarily inconsistent and can operate independently of each [NAME]. 49 We do not accept the submission made on behalf of the applicants that item 16 impliedly modifies or repeals item 20. 50 [COMPANY] and [NAME] additionally challenge the view of [NAME], expressed at [56] of its reasons, that item 18(2)(b) of Sch 7 of the Transitional Act adds an additional requirement in that both paras (a) and (b) would have to be satisfied for an agreement to pass the BOOT. They contend this means a "double BOOT test" – both the modern [NAME] and the ABTI would be used as comparators. They submit [NAME] was in error in reaching that conclusion, because s 193(1) of the FW Act only applies to "each [NAME]" and "each prospective [NAME]". They say that if the proposition that the [NAME] are not [NAME] by a modern [NAME] is correct, then step (a), requiring application of the BOOT on the [NAME], does not apply. 51 [NAME], therefore, submit that the relevant employees are not [NAME] by the [NAME] because they are [NAME] by the [NAME]. Thus, they fall within the definition of "[NAME]" under item 20 of Sch 7 of the Transitional Act. They contend the expressions "[NAME]" in s 193(1) and "[NAME]" are mutually exclusive. 52 [NAME] draw attention to the term "[NAME]" as defined in s l93(4) of the FW Act to be: An [NAME] for an [NAME] is an employee who: (a) is [NAME] by the agreement; and (b) at the test time, is [NAME] by a modern [NAME] (the relevant modern [NAME] ) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer. 53 They contend that, conversely, an "[NAME]" is defined in item 20 of the Transitional Act as follows: [NAME], for an [NAME], means an employee who: (a) is [NAME] by the agreement; and (b) at the test time , is [NAME] by an [NAME]-based transitional instrument (the relevant [NAME]-based transitional instrument) that: (i) is in operation; and (ii) covers the employee in relation to the work that he or she is to perform under the agreement; and (iii) covers his or her employer. 54 They submit that the juxtaposition of the definitions provides support for the proposition that an employee is either in one category or another – never both. Hence, they say, [NAME] finding that the BOOT has to be applied to two instruments, that is, to the modernised awards and then to [NAME], is unsound. 55 The unions submit that consideration of item 18 of Sch 7 in the context of the application made by the applicants is irrelevant because of the sunsetting provision in item 20 of Sch 3. 56 The unions further submit that item 18 is a transitional provision. As [NAME] relevantly noted, at [55], item 18 is a provision within Pt 4 of Sch 7 which is entitled "Transitional provisions to apply the better off overall test after end of bridging period if [NAME] modernisation not yet completed". [NAME] noted that the heading indicated the purpose of the provisions under the heading was to deal with the approval process of enterprise agreements made after 1 January 2010 in the event that the [NAME] modernisation had not been completed by that date. [NAME] further noted, at [56], that given the [NAME] modernisation process had completed by that date, it was not clear that an interpretation of item 18 which would give it work to do after 1 January 2010 was consistent with that intention. 57 We accept the unions' submission that the applicants' contention, that [NAME]'s reasoning with respect to the operation of item 18 was incorrect, cannot be sustained because it is based on an incorrect presumption that the employees were not [NAME] [NAME] employees. The employees were [NAME] by the [NAME] within the meaning of s 48 of the FW Act. [NAME]'s reasoning, at [56] of its decision, is correct. We agree that [NAME] correctly concluded that item 18 of Sch 7 has no application in the approval of the 2015 agreement. 58 It follows that, the employees are [NAME] [NAME] employees for the purpose of s 206 of the FW Act.

Conclusion and orders 59 For these reasons the applicants' application should be dismissed. 60 We will hear from the parties as to the question of costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick, [NAME] and [NAME].

Associate: Dated: 27 November 2017