FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 File number: NSD 352 of 2017 Judges: ALLSOP CJ, NORTH AND O'CALLAGHAN JJ Date of judgment: 17 August 2017 Catchwords: INDUSTRIAL LAW – 4 yearly review of modern awards – Black Coal Mining Industry Award 2010 –where Fair Work Commission made variation to Award by applying a cap on retrenchment payments – application to quash decision and consequential determination – application dismissed Legislation: Fair Work Act 2009 (Cth), Pts 2-3, 2-4, ss 132, 134, 136, 138, 139, 141, 156, 157, 169, 601 Federal Court of Australia Act 1976 (Cth), s 23 Judiciary Act 1903 (Cth), s 39B Workplace Relations Act 1996 (Cth), Pt 10A Cases cited: Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136; 247 IR 350 National Retail Association v Fair Work Commission [2014] FCAFC 118; 225 FCR 154 Re 4 Yearly Review of Modern Awards – Black Coal Mining Industry Award 2010 [2015] FWCFB 2192; 249 IR 26 Re 4 Yearly Review of Modern Awards – Black Coal Mining Industry Award 2010 [2017] FWCFB 584 Date of hearing: 2 August 2017 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 57 Counsel for the Applicants: Mr I Taylor SC with Mr O Fagir Solicitor for the Applicants: Slater and Gordon Lawyers Counsel for the First to Eleventh Respondents: Mr Y Shariff Solicitor for the First to Eleventh Respondents: Ashurst Counsel for the Twelfth and Thirteenth Respondents: The Twelfth and Thirteenth Respondents submit save as to costs ORDERS NSD 352 of 2017 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA Second Applicant AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Third Applicant AND: ANGLO AMERICAN METALLURGICAL COAL PTY LTD (ACN 076 059 679) First Respondent BHP COAL PTY LTD (ACN 010 595 721) Second Respondent CENTENNIAL COAL COMPANY LIMITED (ACN 003 714 538) (and others named in the Schedule) Third Respondent JUDGES: ALLSOP CJ, NORTH AND O'CALLAGHAN JJ DATE OF ORDER: 17 AUGUST 2017 THE COURT ORDERS THAT: 1. The application 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 The applicants, the Construction, Forestry, Mining and Energy Union, The Association of Professional Engineers, Scientists and Managers, Australia, and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, seek the quashing by certiorari under s 39B of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth), of the decision of the Fair Work Commission made on 27 January 2017 pursuant to a four-yearly review of modern awards of the Black Coal Mining Industry Award 2010 (the 2010 Award) and of the consequential determination made by it on 20 March 2017: see Re 4 Yearly Review of Modern Awards – Black Coal Mining Industry Award 2010 [2017] FWCFB 584. 2 There were five grounds put forward as the basis for relief which reduce to two essential points. An appreciation of the five grounds and two points requires an understanding of the context of the 2010 Award and of the decision and the determination. 3 The variation that was made to the 2010 Award on 20 March 2017, pursuant to the decision of 27 January 2017 about which the applicants complain, concerned the capping of retrenchment payments by reference to a maximum of two weeks' pay for each year of employment to a maximum of 15 years (and so, 30 weeks). The capping of retrenchment payments to a sum represented by 15 years' service replaced an earlier provision linked to an age-based limitation that assumed retirement at the age of 60, that had been excised from the 2010 Award by the Commission in April 2015: see Re 4 Yearly Review of Modern Awards – Black Coal Mining Industry Award 2010 [2015] FWCFB 2192; 249 IR 26. 4 It is relevant to understand the history of the award covering the black coal industry as well as the introduction of award modernisation and of "modern awards", the latter initially by Pt 10A of the former Workplace Relations Act 1996 (Cth) (WR Act) and now by Pt 2-3 of the Fair Work Act 2009 (Cth) (FW Act). 5 Clause 14 of the 2010 Award concerned with redundancy before its variation in 2015 by the excision of the age-based limitation was relevantly in the following terms: 14. Redundancy 14.1 The redundancy arrangements in this award are an industry-specific redundancy scheme and, as such, Subdivision B of Division 11 the NES does not apply. 14.2 Definition of redundancy (a) An employee is made redundant where an employee's employment is terminated at the employer's initiative: (i) because the employer no longer requires the job done by the employee to be done by anyone except where this is due to the ordinary and customary turnover of labour; or (ii) because of insolvency or bankruptcy of the employer. (b) This clause does not apply to employees engaged for a fixed term or a specified task. 14.3 Severance payment Except where clause 14.5 applies, when terminations occur due to redundancy the employees terminated are entitled to severance pay equal to one ordinary week's pay for each completed year of employment. 14.4 Retrenchment payment (a) Except where clause 14.5 applies, where redundancies occur due to: (i) technological change; (ii) market forces; or (iii) diminution of reserves, the employees terminated are entitled to retrenchment pay equal to two ordinary weeks' pay for each completed year of employment. This payment is additional to the payment prescribed in clause 14.3. This makes a total of three ordinary weeks' pay for each completed year of employment. (b) Regardless of length of employment, the minimum payment due to employees under clause 14.4(a) is two ordinary weeks' pay. (c) The amount of payment due under clause 14.4 is not to be more than what an employee would have received had the employee remained in employment with the employer until the age of 60 years. … 6 Thus, there were two elements to these redundancy arrangements: an uncapped severance payment in cl 14.3 of one week for each completed year of employment; and the retrenchment payment in cl 14.4 of two weeks for each completed year of employment, constrained by subcl 14.4(c). 7 The history of the provision is discussed by the Commission in its decision of 10 April 2015 at [29]-[31], as follows: [29] The scheme of redundancy payments in cl 14 of the Award has two elements: the severance payments provided for in cl 14.3, and the retrenchment payments provided for in cl 14.4. The severance payment entitlement has its origins in decisions of the Coal Industry Tribunal in 1973. The payment of that entitlement has never been limited by reason of the age of the redundancy employee. [30] For employees in New South Wales and Queensland, the retrenchment payment entitlement was added by a decision of the Coal Industry Tribunal of 19 January 1983, and included the capping provision currently to be found in cl 14.4(c) of the Award. It appears, having regard to the evidence and submission in the matter that the rationale for the capping provision was to be found in the then-existing State legislative provisions which established a mandatory retirement age of 60 for coal miners and provided for the payment of pensions after that age. This statutory mandatory retirement age did not extend to colliery staff, who were permitted to work until the age of 65, but nonetheless an industry practice of retirement at 60 was recognised as applicable to them as well. In that context, the capping provision was determined to be necessary to ensure that no employee received more than he would have received had he remained at work until the statutory retirement age. In that decision the question of retrenchment benefits for employees over 60 did not arise because the statutory provisions referred to prohibited employment of persons over that age. [31] The Coal Industry Tribunal's decision to cap retrenchment payments by reference to the earnings an employee would have received had the employee not been retrenched and had worked to retirement was consistent with the standard redundancy provisions established by the Full Bench of the Australian Conciliation and Arbitration Commission in the 1984 Termination, Change and Redundancy Case. In that case, the Full Bench said, in relation to the standard provisions it proposed to establish: "… we are of the opinion that where termination is within the context of an employee's retirement, an employee should not be entitled to more than he/she would have earned if he/she had proceeded to normal retirement". The standard provision which was ultimately determined in the supplementary Termination, Change and Redundancy Case was: Provided that the severance payments shall not exceed the amount which the employee would have received if employment with the employer had proceeded to the employee's normal retirement date. 8 The phrase "would have received" in cl 14.4 refers to what the employee would have received in wages as an employee. Thus, irrespective of how long the employee had been in employment, his or her two weeks per year of employment would be reduced to an amount equivalent to what he or she would have received in remuneration in the number of weeks of employment he or she had left until an assumed retirement at 60 years of age. So, a retrenched 57 year old employee with 40 years' service would receive payment for 80 weeks under cl 14.4 because had he or she remained in employment until 60, he or she would have received remuneration for 156 weeks (3 years); whereas a retrenched 59 year old employee with 52 weeks service remaining until the assumed retirement age of 60 who also had 40 years' service would be limited to payment for 52 weeks, not 80 weeks. Examples could be multiplied. 9 By 1997, the relevant award that contained the age-based limit on redundancy was contained in the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. The age-based limitation was reviewed in 2000 by the Australian Industrial Relations Commission (AIRC) pursuant to provisions of the WR Act concerning age discrimination. The history of that review is set out in [32] to [34] of the Commission's 2015 decision. On that occasion, the employers sought the removal of the age-based provision as discriminatory; and they sought its replacement by an overall cap on retrenchment payments of 20 years of service. In that review, the provision was found not to be discriminatory. 10 As the Commission noted in [36] of its 2015 decision: The statutory provisions mandating the retirement of coal miners at the age of 60 were progressively repealed in the light of community recognition (ultimately embodied in the Age Discrimination Act 2004 (Cth) and in State anti-discrimination legislation) that discrimination on the basis of age was no longer socially acceptable and should be eliminated. It is clear that by the time of the 2000 decision of Commissioner Wilks earlier referred to, there was no longer a mandatory retirement age of 60 in Queensland, although it remained an industry practice at that time. The last of the statutory provisions to be repealed was in New South Wales in 2006, by way of the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2006 (NSW). 11 From April 2008, an award modernisation process was begun by the AIRC. As the Full Court explained in National Retail Association v Fair Work Commission [2014] FCAFC 118; 225 FCR 154 at 156 [2] this process involved reviewing more than 1,500 industrial awards and replacing them with some 120 industry and occupation-based "modern awards". The Court in the National Retail Association Case noted the following at 159-160 [18]-[20] about the task before the AIRC and later the Commission in this task: [18] At the outset, some broad observations should be made. The first is that in comparison to the traditional award-making functions of federal industrial tribunals, the function given to the AIRC to make modern awards was novel. Awards had traditionally been made at the instance of employee or employer organisations and through either a consent determination or by arbitration after formal and often lengthy contested hearings. In contrast, Pt 10A of the WR Act required the AIRC to make modern awards in accordance with an "award modernisation request" made to the President of the AIRC by the Minister for Employment and Workplace Relations. The AIRC was given very wide discretion to determine both the content of modern awards and the procedure by which it would perform its award modernisation function. By s 576E(1) of the WR Act, the President of the AIRC was required to establish one or more Full Benches to carry out the award modernisation process. Section 576E(3) provided that, for the purpose of carrying out that process, and subject to any direction given by the President, "the procedure of a Full Bench is within the absolute discretion of the Full Bench". Section 576E(4) provided that without limiting subs (3), a Full Bench could inform itself in any way it thought appropriate, including by undertaking or commissioning research or consulting with any person. [19] The absence of any requirement for formal hearings and any mandated role for the industrial parties affected, together with the mammoth task given to the AIRC and the relatively short period in which it was required to be completed, provide some indication of the underlying rationale for the transitional review. [20] That rationale was explained in the Second Reading Speech to the Bill which became the Transitional Act. The Minister for Employment and Workplace Relations relevantly said: Further, the Bill provides for Fair Work Australia to conduct a bedding-down review of modern awards after two years of their operation – that is, from 1 January 2012 – ahead of the regular four-yearly review cycle. This will allow any necessary refinements to modern awards to be made to ensure they are meeting the modern award objectives and are operating effectively without anomalies or technical problems. This transitional review will complement the four-yearly review of modern awards set out in the substantive Fair Work legislation and will allow any operational difficulties to be identified and remedied swiftly. 12 At [37] of its 2015 decision, the Commission noted: When the award modernisation process took place in 2008-9 pursuant to Pt.10A of the Workplace Relations Act 1996 (Cth), the existing coal industry award redundancy pay provisions, including the age cap, was incorporated as cl 14 of the Award as an industry-specific redundancy scheme by consent of all relevant parties, including the CFMEU and the APESMA. It is apparent from that time that it was no longer a requirement or a practice in the coal industry that retirement necessarily occur at the age of 60. 13 The Commission in its 2015 decision considered that subcl 14.4(c) was not consistent with the modern awards objective and was discriminatory. For that reason it decided to remove the provision from the 2010 Award. At [44], it said the following: We do not consider that we have sufficient material before us to reach any conclusion that, by reason of the deletion of cl 14.4(c), cl 14 in its entirety should either be deleted in its entirety or modified to add a new limitation on the amount of retrenchment payments that is not discriminatory in nature. We would certainly need a very substantial merits case before us to be persuaded that we should, to borrow Buchanan J's expression, "take the axe" to the whole redundancy pay scheme, and no case of that nature has been advanced before us. There may potentially be some merit in the proposition that a new limitation on retrenchment payments should be introduced to replace cl 14.4(c). Clause 14.4(c) did have the indirect effect of imposing a limitation on retrenchment payments of about 80 weeks (if one assumes a hypothetical minimum starting age of about 18), albeit that limitation operated in an unfair and discriminatory way for the reasons we have discussed. Arguably, in circumstances where the original consensual industry-specific redundancy scheme will now be altered to remove one of its starting-point features, a new cap upon what is a fairly generous scheme should be imposed in line with common industrial practice. However, to give proper consideration to this, we would need to have before us greater evidence as to a range of matters including the age profile and length of service of coal mine employees who have been made redundant, the typical circumstances they face on redundancy, and the cost impact on employers of the scheme. 14 We will come to the statutory context in which the Commission was acting shortly, but it is to be noted at this point that in its 2015 decision, the Commission was undertaking the four-yearly review of the 2010 Award as a modern award and that the 2015 decision was made by the identically constituted Commission as made the decision under consideration. Thus, the 2017 decision, also part of the same four-yearly review of the 2010 Award, can be seen as the completion of the task of review (and variation) undertaken by the Commission in its 2015 decision. 15 In finding subcl 14.4(c) discriminatory, the Commission agreed with and applied the reasoning of Buchanan J in Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 136; 247 IR 350. 16 It is appropriate to turn to the legislative scheme of the FW Act to appreciate the task of the Commission in undertaking the four-yearly review of the 2010 Award and in making any variation to it. 17 Modern awards are dealt with in Pt 2-3 of the FW Act. The Guide to Pt 2-3 in s 132 explains the nature of a modern award: This Part provides for the FWC to make, vary and revoke modern awards. Modern awards may set minimum terms and conditions for national system employees in particular industries or occupations. Modern awards can have terms that are ancillary or supplementary to the National Employment Standards (see Part 2‑1). Division 2 provides for the modern awards objective. This requires the FWC to ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account certain social and economic factors. Division 2 also contains special provisions about modern award minimum wages. 18 It is of the essence to appreciate that a modern award is not an instrument the product of agreement, or conciliation and arbitration as representing all the terms and conditions of employment of identified employees. Rather, together with the National Employment Standards its purpose is to provide a fair and relevant minimum safety net of terms and conditions. This is of some importance when one recalls the history of the redundancy provisions in the 2010 Award as having their origins in the determinations of the Coal Industry Tribunal and later awards that in 2008 were, by consent, incorporated into the 2010 Award, as a modern award. 19 Section 134 sets out the modern awards objective as follows: 134 The modern awards objective What is the modern awards objective? (1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: (a) relative living standards and the needs of the low paid; and (b) the need to encourage collective bargaining; and (c) the need to promote social inclusion through increased workforce participation; and (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and (da) the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and (e) the principle of equal remuneration for work of equal or comparable value; and (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. This is the modern awards objective. When does the modern awards objective apply? (2) The modern awards objective applies to the performance or exercise of the FWC's modern award powers, which are: (a) the FWC's functions or powers under this Part; and (b) the FWC's functions or powers under Part 2-6, so far as they relate to modern award minimum wages. 20 In the National Retail Association Case the Full Court said the following about s 134(1) at 174-175 [109]-[110]: [109] It is apparent from the terms of s 134(1) that the factors listed in (a) to (h) are broad considerations which the FWC must take into account in considering whether a modern award meets the objective set by s 134(1), that is to say, whether it provides a fair and relevant minimum safety net of terms and conditions. The listed factors do not, in themselves, however, pose any questions or set any standard against which a modern award could be evaluated. Many of them are broad social objectives. What, for example, was the finding called for in relation to the first factor ("relative living standards and the needs of the low paid")? Furthermore, it was common ground that some of the factors were inapplicable to the SDA's claim. [110] The relevant finding the FWC is called upon to make is that the modern award either achieves or does not achieve the modern awards objective. The NRA's contention that it was necessary for the FWC to have made a finding that the Retail Award failed to satisfy at least one of the s 134(1) factors must be rejected. 21 It was not submitted before us that the factors in (a) to (h) were exhaustive. 22 Section 138 is entitled "Achieving the Modern Awards Objective" and is as follows: A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective. 23 Terms that "it is permitted to include" are dealt with in subdiv B of Div 3 (ss 139-142), and terms that "it is required to include" are dealt with in subdiv C of Div 3 (ss 143-149D). The words "only to the extent necessary" in s 138 emphasise the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed. Other terms and conditions beyond a minimum are to be the product of enterprise bargaining, and enterprise agreements under Pt 2-4. As the Guide to Pt 2-4 in s 169 says: This Part is about enterprise agreements. An enterprise agreement is made at the enterprise level and provides terms and conditions for those national system employees to whom it applies. An enterprise agreement can have terms that are ancillary or supplementary to the National Employment Standards. 24 Section 139(1) sets out the matters about which terms may be included in a modern award. Redundancy payments or regimes are not included. Section 141, however, deals with industry-specific redundancy schemes, as follows: When can a modern award include an industry specific redundancy scheme? (1) A modern award may include an industry specific redundancy scheme if the scheme was included in the award: (a) in the award modernisation process; or (b) in accordance with subsection (2). … Coverage of industry‑specific redundancy schemes must not be extended (2) If: (a) a modern award includes an industry‑specific redundancy scheme; and (b) the FWC is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme; the FWC may include the scheme in that other modern award. However, the FWC must not extend the coverage of the scheme to classes of employees that it did not previously cover. Varying industry‑specific redundancy schemes (3) The FWC may only vary an industry‑specific redundancy scheme in a modern award under Division 4 or 5: (a) by varying the amount of any redundancy payment in the scheme; or (b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations). (4) In varying an industry‑specific redundancy scheme as referred to in subsection (3), the FWC: (a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and (b) must retain the industry‑specific character of the scheme. Omitting industry‑specific redundancy schemes (5) The FWC may vary a modern award under Division 4 or 5 by omitting an industry‑specific redundancy scheme from the award. 25 Two aspects of s 141 are relevant. First, a modern award may include (as in the 2010 Award) an industry-specific redundancy scheme. Secondly, any variation (here under Div 4 – 4 yearly reviews of modern awards) is limited by subs (3), (4) and (5) (relevantly here paras (3)(a) and (4)(b)). 26 Division 4 of Pt 2-3 (s 156) deals with "4 yearly reviews of modern awards". Section 156 is in the following terms: 156 4 yearly reviews of modern awards to be conducted Timing of 4 yearly reviews (1) The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part. Note 1: The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)). Note 2: The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582). What has to be done in a 4 yearly review? (2) In a 4 yearly review of modern awards, the FWC: (a) must review all modern awards; and (b) may make: (i) one or more determinations varying modern awards; and (ii) one or more modern awards; and (iii) one or more determinations revoking modern awards; and (c) must not review, or make a determination to vary, a default fund term of a modern award. Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164). Note 2: For reviews of default fund terms of modern awards, see Division 4A. Variation of modern award minimum wages must be justified by work value reasons (3) In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons. (4) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following: (a) the nature of the work; (b) the level of skill or responsibility involved in doing the work; (c) the conditions under which the work is done. Each modern award to be reviewed in its own right (5) A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time. 27 The Commission may exercise modern award powers outside the framework of four-yearly reviews and annual wage reviews. By s 157: (1) The FWC may: (a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or (b) make a modern award; or (c) make a determination revoking a modern award; if the FWC is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective. Note 1: The FWC must be constituted by a Full Bench to make a modern award (see subsection 616(1)). Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164). Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284). (2) The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that: (a) the variation of modern award minimum wages is justified by work value reasons; and (b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective. Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284). (3) The FWC may make a determination or modern award under this section: (a) on its own initiative; or (b) on application under section 158. 28 The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective. 29 Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net. 30 It is necessary to see how the Commission approached this task. The decision contained 67 paragraphs. It is important to appreciate that by s 601, the Commission was not required to give written reasons, though under s 601(2) it may do so. Naturally, to the extent that reasons given display a misunderstanding of the statutory task, that may ground a conclusion of jurisdictional error. If, however, such reasons as are given do not completely explain the conclusion reached, jurisdictional error is not demonstrated by such inadequacy. 31 At [2] to [6] of the reasons, the Commission referred to the 2015 decision. The second half of [6], quoted above at [13], fairly clearly stated the focus of the Commission. It was calling for material to evaluate, in the four-yearly review, whether a new limitation should replace the excised cl 14.4(c), in particular considering that it was a "fairly generous scheme". 32 From [10] to [16], the Commission set out the relevant statutory provisions: ss 134, 139, 141 and by reference to another earlier Full Bench decision, ss 136 and 138. 33 From [17] to [22], the Commission set out the arbitral history of the redundancy scheme. 34 At [21], the Commission noted: During the award modernisation process, the industry parties agreed that the Modern Award should be based upon the core conditions of employment contained in the P&E Award and the pre-reform award covering coal industry "staff" employees. Amongst these core conditions were the existing redundancy and severance pay provisions contained in the P&E Award. These were largely replicated in the Modern Award on the basis that they constituted an industry-specific redundancy scheme, with some minor modifications including the insertion of a definition of redundancy. 35 From [23] to [45], the Commission referred to the detailed evidence led by the parties that the parties chose to place before the Commission following the invitation in [44] of the 2015 decision set out at [13] above. One of the matters to which the Commission drew attention (in [25]) was the tabulation of statistics from some of the employers as to age brackets and length of service of retrenched workers. 36 From [46] to [57], the Commission referred to the submissions of the parties. Two submissions of the unions of particular importance in this application were set out in [53]: • in order to succeed with its application, the CMIEG [the employer respondents] would need to demonstrate that its proposed variation was necessary to meet the modern awards objective of ensuring that modern awards provide a fair and relevant minimum safety net; • The existing provisions of modern awards as made in 2010 were to be regarded as prima facie compliant with the modern award objective; 37 As discussed earlier, the first dot point misstates the fundamental statutory task of the Commission in the four-yearly review. It is about review, at large (subject to what follows) of the award, not about whether a particular change can be justified. 38 As to the second dot point, to the extent that the stability of a modern award is a relevant consideration (see s 134(1)(g)) one can accept the proposition. Indeed, the Commission at [60] expressed itself along these lines: We do note that Clause 14 was put in the Modern Award largely by consent. That does not mean however that we should not proceed on the basis that prima facie the Modern Award achieved the modern awards objective at the time that it was made. In considering whether to make any changes to the Modern Award, we need to be satisfied that the award, as varied, would meet the modern awards objective of ensuring that it provides a fair and relevant minimum safety net. 39 From [58] to [67], the Commission expressed brief reasons. At [58] the Commission addressed the nature of the review, the necessity for stability and the need for historical context, as follows: We agree with the unions that we are not called upon to determine an appropriate redundancy provision for the black coal mining industry from scratch. The Full Bench in the 'Preliminary Jurisdictional Issues Decision' referred to the requirement to maintain a 'stable' modern award system. It also stated that regard must be had to the historical context applicable to each modern award. There needs to be a good or 'cogent' reason to make a change to a Modern Award. No error was said to lie in this expression of the matter. 40 At [59], the Commission adverted to the relationship between what might be the generosity of an industry-specific redundancy scheme and the National Employment Standards, as follows: We also reject the notion that having an industry-specific redundancy scheme with provisions that are more generous than the NES is inherently inconsistent with the modern awards objective. The legislative scheme, when combined with the award modernisation request made by the Minister, makes clear provision for such arrangements in modern awards where they are an established feature of an industry. 41 The expression of the task in [60] (see above) was properly directed to the central statutory task under s 156. 42 At [61] and [62], the Commission expressed why it remained appropriate for the award to continue to contain an industry-specific redundancy scheme: [61] We are satisfied that it remains appropriate for the Modern Award to continue to contain an industry-specific redundancy scheme broadly along the lines of that contained in Clause 14. This is largely because of the long history of the scheme, and its acceptance by employers and employees in the industry over many years. [62] We are also satisfied that there are certain distinctive features of the black coal mining industry that support the retention of the industry-specific redundancy scheme. In particular, we accept the evidence that retrenched employees in the coal mining industry are significantly more likely to be re-employed on worse terms and conditions than is generally the case for employees in other industries. 43 At [63] to [65], the Commission commented upon the abolition of the aged-based limitation and its consequences, as follows: [63] However we agree with the CMIEG that, given the abolition of the 60 years of age redundancy cap, the current entitlement is not the industry based scheme that previously existed. [64] Accordingly, we consider some amendment is necessary to Clause 14 of the Modern Award, while retaining the essential characteristics of the scheme. No age-based cap ever applied to the one week per year of service severance payment, and we do not consider it would now be appropriate to impose a cap or make any other change to this aspect of the clause. However we do consider that a cap, based on complete years of employment, should be applied to the retrenchment payment of two weeks for each completed year of employment in order to restore the industrial balance in the scheme in a non-discriminatory way. [65] Having regard to the evidence presented to us about the age and length of employment of employees who have been made redundant in the black coal mining industry we think that an effective cap of 15 completed years of employment (or 30 weeks payment) should be applied to the retrenchment payment. 44 The applicants criticised [63] as reflecting the taking into account of a legally irrelevant consideration. It was submitted that the age-based limitation was unlawful as discriminatory and was thus of no effect, such that its removal by the 2015 decision did not change anything about the award. With respect, it can be accepted that the removal of a term of a modern award that is discriminatory may be seen to have left the award's lawful terms untouched. But given the history of this award, the expression by the Commission of what could be said to be an historically important change did not reflect any legal error. 45 That the Commission then used the word "Accordingly" to express itself as to why a variation was necessary should be understood in the context of the last sentence of the paragraph. There a view was expressed as to the need for some cap. The phrase "industrial balance" was used. The applicants submitted that this revealed the taking account of a consideration foreign to the mandatory considerations in s 134(1), and to the modern awards objective. We do not agree. The structure of the decision, the recitation of the relevant statutory provisions, the expression of the task in [60] and the terms of the final paragraph of the decision ([67]) reveal that the Commission did not stray from its required statutory task. At [67], the Commission said: In our view the award as varied will meet the modern awards objective of providing a fair and relevant minimum safety net of terms and conditions. In reaching that conclusion, we have taken into account each of the matters specified in paragraphs (a)-(h) of s.134. 46 The principal attack on the decision was that the Commission failed to direct itself to the proper statutory task. It was first submitted that the Commission failed to consider (and so direct itself to) the question whether a cap was necessary to achieve the modern awards objective. First, and with respect, the Commission did so: that is the gravamen of [60], [64], [65] and [67]. Secondly, the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective. The circumstances of that variation and the view that some cap was necessary were involved in that evaluation, not by reference to some separate jurisdictional consideration about power, but as part of the evaluative review. 47 Next it was submitted that the Commission wrongly concluded that the variation by excision of para (c) varied the scheme. This involved the error, it was submitted, of viewing an unlawful (as discriminatory) term as operative. We have dealt with this. The Commission plainly had the view (in part expressed earlier in 2015) that the scheme was generous. The variation in 2015 removed in practical terms a feature of the scheme that had been in place for about 30 years. The Commission was not purporting to replace the previous unlawful discriminatory limitation with some equivalent restriction. It was considering what capping would bring about fulfilment of the modern awards objective. The Commission was also criticised for wrongly concluding that it was bound to vary the award, because of the excision of para (c). We reject that reading of the reasons. The Commission took the view, which it expressed, that for the 2010 award to provide a fair and relevant minimum safety net some cap was necessary. The removal of the age-based limitation was the occasion for the consideration, but the expression of the need for a cap, and the meeting of the modern awards objective with the variation, were in accordance with the central statutory task in ss 134, 138 and 156. 48 The applicants also submitted that the reasons of the Commission were inadequate and reflected a failure to address central considerations, being, in particular, the mandatory considerations in s 134 and a failure to address the arguments of the applicants. 49 The difficulty with this argument is the form of s 601(2): (2) The FWC may give written reasons for any decision that it makes. 50 Some reasons were given in [63] and [65]. These were the product of the broad evaluative judgment as to the modern awards objective in the light of all the material produced before the Commission. The fact that such reasons might have been inadequate to explain the views of the Commission does not lead to the conclusion that there were no reasons, or that matters raised by the parties were not considered. On a fair reading of the whole of the decision, it is tolerably plain that the Commission, after considering all the material put before it, including material concerning age and length of service of retrenched employees, considered that a variation to the redundancy provisions was necessary for the 2010 award to meet the modern awards objective of a fair and relevant minimum safety net. 51 The reasons are not elaborate, but they do not reveal a failure by the Commission to direct itself to the statutory task, or fairly deal with the matters raised by the parties. 52 Thus, for the above reasons, we do not consider that the Commission has failed to address the correct question, or to take account of any relevant considerations or failed to consider any relevant considerations. Its reasons may be short, but it was not obliged to set out all aspects of why it came to the evaluative conclusion it did. The reasons it did give do not betray either legal error or a misdirection from the statutory task. 53 The above deals with the first four grounds that reduced into the first point. 54 The fifth and final ground and second point concerns s 141. It was submitted that the industry-specific character of the black coal mining industry scheme with features that distinguished it from other schemes included the uncapped nature of the retrenchment entitlement of two weeks' pay for every year of service. It was submitted that by creating a cap on retrenchment payments, where none had existed, the Commission departed from the industry-specific character of the scheme, contrary to s 141(4)(b). 55 We reject this submission. First, whilst the age-based limitation can legitimately be said to be a provision to prevent windfall payments in an era of compulsory retirement, and not, in that sense, a "cap", it is to be overly semantic to therefore say an absence of a cap was part of the character of the scheme. The scheme had always had a limitation. 56 Secondly, the Commission was of the view that a necessary component of the industry-specific scheme was to cap retrenchment payments. There is no reason why a cap of the kind that the Commission introduced eliminated or removed the industry-specific nature of the redundancy scheme as part of a modern award. Thus, the argument should be rejected. However, even if one could somehow conclude on available comparative evidence based on some identified criteria, that the Commission was somehow in error in this respect, it is a subject matter so quintessentially appropriate for judgment by it, that any error in characterisation would be one made within jurisdiction and does not appear on the face of the determination or the decision. 57 We would dismiss the application. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, Justice North and Justice O'Callaghan. Associate: Dated: 17 August 2017 SCHEDULE OF PARTIES NSD 352 of 2017 Respondents Fourth Respondent: ENSHAM RESOURCES PTY LIMITED (ACN 011 048 678) Fifth Respondent: GLENCORE COAL PTY LIMITED (ACN 082 271 930) Sixth Respondent: JELLINBAH RESOURCES PTY LTD (ACN 010 825 215) Seventh Respondent: PEABODY ENERGY AUSTRALIA PTY LTD (ACN 096 909 410) Eighth Respondent: CURRAGH QUEENSLAND MINING PTY LTD (ACN 095 450 418) Ninth Respondent: WHITEHAVEN COAL MINING LIMITED (ACN 086 426 253) Tenth Respondent: YANCOAL AUSTRALIA LTD (ACN 111 859 119) Eleventh Respondent: CARBOROUGH DOWNS COAL MANAGEMENT PTY LTD (ACN 108 803 461) Twelfth Respondent: AUSTRALIAN INDUSTRY GROUP Thirteenth Respondent: FAIR WORK COMMISSION