FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2010] FCA 822 Citation: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2010] FCA 822 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v PILBARA IRON COMPANY (SERVICES) PTY LTD File number(s): NSD 567 of 2009 Judge: BUCHANAN J Date of judgment: 5 August 2010 Catchwords: INDUSTRIAL LAW – principles of construction of industrial agreements PRACTICE AND PROCEDURE – declaratory relief – standing to apply – jurisdiction – federal matter –immediate right, duty or liability Legislation: Fair Work Act 2009 (Cth) ss 176, 229, 234, 236, 238, 240, 341, 345, 409, 415, 417, 437 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3 cl 2, 30, Sch 13 cl 4 Federal Court of Australia Act 1976 (Cth) s 21 Judiciary Act 1903 (Cth) s 39B Workplace Relations Act 1996 (Cth) ss 3, 322, 327, 328, 331, 337, 338, 340, 347, 347A, 351, 403, 423, 426 Cases cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union(2005) 222 CLR 241 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 125 FCR 529 Benninga (Mithcam) Ltd v Bijstra [1946] 1 KB 58 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Re Judiciary and Navigation Acts (1921) 29 CLR 257 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Turner v Australasian Coal and Shale Employees Federation (1984) 55 ALR 635 Date of hearing: 20 and 21 July 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 45 Counsel for the Applicant: C. Howell with A. Slevin Solicitor for the Applicant: Slater and Gordon Counsel for the Respondent: J. N. West QC with A. B. Gotting Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 567 of 2009 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: PILBARA IRON COMPANY (SERVICES) PTY LTD Respondent JUDGE: BUCHANAN J DATE OF ORDER: 5 August 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 567 of 2009 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: PILBARA IRON COMPANY (SERVICES) PTY LTD Respondent JUDGE: BUCHANAN J DATE: 5 august 2010 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 Resolution of the questions which arise for decision in these proceedings involves the application of principles of construction of instruments and of legislation. So far as the construction of legislation is concerned the task is complicated in the present case by the fact that the legislation in question is legislation regulating the conduct of industrial relations and affairs. That is an area which is subject to shifting political and policy emphasis. Finding a satisfactory method of construing unclear or ambiguous provisions in the legislation in a way which is faithful to the text, regardless of the shifting background, is not always easy. 2 The respondent is engaged in the mining and processing of iron ore and other operations in Western Australia. The enterprise is a large one which employs many people. As part of its operations it operates a rail network. At the time relevant to the present proceedings, the respondent employed 2,793 employees in four groups of classifications performing work in connection with the rail network. 3 The applicant is a large federally registered union. It has members who are employed by the respondent, including members employed in classifications connected with the rail network, although the applicant does not represent a majority of persons performing such work. At the time the proceedings were heard it had 159 members employed in connection with the rail network of whom 31 were employed after 28 July 2008, a fact which is significant for reasons which will be explained. 4 Under the legislation which arises primarily for consideration in the present proceedings (the Workplace Relations Act 1996 (Cth) ("the WR Act")) federally registered organisations such as the applicant were expected to be genuine associations formed for the purpose of furthering or protecting the interests of their members. Registration under the WR Act provided a federally registered organisation with corporate status and an existence legally independent from its members, as had been the position under federal legislation for a long time. Although the recognition of, and rights afforded to, federally registered employee organisations sometimes changes according to the political complexion of the government of the day, these basic features remain constant. 5 The WR Act was repealed with effect from 1 July 2009 and replaced with the Fair Work Act 2009 (Cth) ("the FW Act"). Under the FW Act the applicant has available to it, for the purpose of representing the interests of its members, a number of rights and discretions. I shall mention some of them in due course when I discuss submissions which were made by the respondent in the present case to the effect that the applicant lacked any entitlement to have commenced the proceedings or to seek the relief it claimed in the application which did so. 6 Under the provisions of the WR Act as they operated until 27 March 2008 the forms of instruments available under the WR Act for regulating the terms and conditions of employment of employees, and for their enforcement, included instruments known as Australian Workplace Agreements (AWAs). An AWA could be made with an individual employee. Under amendments to the WR Act which came into effect in March 2008 AWAs ceased to be available. An emphasis on collective negotiation of terms and conditions of employment was re-introduced into the WR Act as part of a number of modifications intended as a transition towards the later enactment of the FW Act. Under the revised WR Act, Part 8 provided for the making of workplace agreements. It provided (as well as other transitional arrangements not here relevant) for "union collective agreements" (s 328) and "employee collective agreements" (s 327). Section 327 of the WR Act is at the heart of one of the main issues in the proceedings and I shall return to discuss its operation in more detail in due course. 7 Various forms of individual agreements remained available under the altered regime (known as ITEAs – individual transitional employment agreements) but they could endure no longer than 31 December 2009. By contrast, an employee collective agreement could have a life of five years and by s 351 of the WR Act could apply to new employees during that period. 8 The respondent decided that it would take steps to put an employee collective agreement in place reflecting the terms of the AWAs to which it was a party with existing employees. However it decided that it would not offer the employee collective agreement to its existing employees (who were employed on a variety of different arrangements including AWAs within their nominal term, AWAs whose nominal term had expired, ITEAs and common law contracts underpinned by a federal award to which the applicant was not a party). 9 The mechanism selected by the respondent to achieve its objective was to offer an employee collective agreement to ten new employees who commenced employment on 28 July 2008. Those employees were engaged pursuant to contracts of employment which were offered to them between 8 and 11 July 2008 and accepted by them on various dates between 9 and 28 July 2008. In each case prospective employees were advised that, when they commenced work on 28 July 2008, steps would be taken to make an agreement with them and other employees commencing employment, which would apply both to them and to future employees in positions like their own. The ten employees were each engaged in classifications connected with the rail network. The agreement proposed for their consideration was one capable of application to existing employees if they fell within its general operation. The classification structure of the agreement would have applied to existing employees as it did to the ten new employees. A statement of agreed facts made by the parties for the present proceedings said: … 17. The new employees performed work of the same kind and at the same locations as the existing employees who were employed as operators or maintainers. … 21. The Respondent did not give any of the existing employees, including the existing rail employees, the opportunity to consider or to approve the terms of the PIEA. … 25. The Respondent has, since 25 November 2008, applied the terms of the PIEA in relation to the new employees. 26. The Respondent has not applied the terms of the PIEA in relation to any existing employee. … 28. The Respondent has, since 25 November 2008, applied the terms of the PIEA and acted on the basis that it was binding upon it in respect to all employees commencing employment on or after 28 July 2008 where such employment falls under the classifications of the PIEA. 29. The Respondent has, since 25 November 2008, not applied the PIEA to any of the existing employees including the existing rail employees. (the PIEA is the agreement entitled the Pilbara Iron Employment Agreement) 10 Under s 337 of the WR Act, an employee to whom the offer of an agreement was made was required to be given information concerning the agreement at least seven days before voting whether to accept it or not, but such a requirement could be waived under s 338 provided all such employees subscribed to the waiver in writing. There was evidence in the present case that each of the ten employees waived the seven day period and that, on 1 August 2008, they all approved the agreement being made. The evidence is not clear as to whether a vote was taken but under s 340 of the WR Act, provided all relevant persons had the necessary opportunity to consider whether to approve the agreement and decided they wished to do so, that was sufficient. 11 The WR Act then required that the agreement be lodged for approval with the Workplace Authority Director, appointed under the WR Act. The agreement was lodged with the Workplace Authority Director on 1 August 2008. On 18 November 2008 the Workplace Authority notified the respondent that the agreement had been approved. It came into effect seven days thereafter (s 347 of the WR Act) and accordingly operated, nominally at least, from 25 November 2008. That nominal position is subject to an important qualification expressed in s 347A(1) of the WR Act in the following way: 347A Whether certain non-compliance affects the operation of a workplace agreement (1) Despite section 347, a workplace agreement does not come into operation unless the requirements in Division 2 and section 340 have been met in relation to the agreement. 12 The requirements in Division 2 which were referred to in s 347A(1) included any requirement which might arise from the terms of s 327. Section 327 of the WR Act provided as follows: 327 Employee collective agreements An employer may make an agreement (an employee collective agreement) in writing with persons employed at the time in a single business (or part of a single business) of the employer whose employment will, or would but for the operation of an ITEA that has passed its nominal expiry date, be subject to the agreement. 13 The scope of operation of the agreement accepted on 1 August 2008 by the ten employees is expressed in the following way: 3.1 Scope of the Agreement This Agreement applies to employees of Pilbara Iron Company (Services) Pty Limited (ACN 107 210 248), (the Company), employed on or after 28 July 2008, in classifications set out in this Agreement and employed in iron ore mining, processing, smelting, reducing and refining of ores and all ancillary operations within Australia, but outside of the central business district of any capital city and shall also apply to employees of the Company on secondment to related bodies corporate. (Emphasis added) 14 There are two issues which arise for resolution before I deal with the question of whether the applicant has adequate standing to maintain the proceedings and, if successful, to obtain some form of relief. They are whether clause 3.1 of the agreement is restricted to apply only to employees who commenced their employment on or after 28 July 2008 and, if so restricted, whether s 327 of the WR Act was infringed because not all employees in the rail network were covered by the agreement. 15 If, upon its proper construction, the agreement is not confined to employees who commenced employment on or after 28 July 2008, then other employees whose employment was subject to the terms of the agreement (the existing employees) were not afforded an opportunity to consider whether to approve it as required by s 340 of the WR Act. In that event the agreement did not come into operation by reason of s 347A of the WR Act. 16 If the scope of the agreement is confined in the way suggested by the respondent but, as the applicant contends, was required to be made with all persons in the relevant part of a single business operated by the respondent, then the requirements in Division 2 of Part 8 of the WR Act were not met and, again, the agreement did not come into operation because of s 347A of the WR Act. 17 The competing constructions of clause 3.1 which arise for consideration are as follows. The applicant says that the clause refers to persons who were "in employment" on or after 28 July 2008 and therefore includes existing employees then employed in the rail network. The respondent says that clause 3.1 refers to persons who were employed by it (in the sense of engaged by it) to commence work on or after 28 July and does not include any persons who commenced work prior to that date. Each party asserts that the construction which they offer is so obviously in accordance with the natural meaning of the language used that no ambiguity arises. I do not agree. In my view the competing constructions each offer a sufficiently respectable and effective operation to clause 3.1, in accordance with the natural meaning of the language used, that neither may be rejected at the outset. Neither may one be simply selected over the other in some definite way in accordance with some personal preference of mine concerning the most elegant or efficient use of the words or, for that matter, any preference which I might have for the expression of ideas in the active voice rather than the passive voice or vice versa. 18 In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 three Justices of the High Court emphasised that a provision in an industrial agreement is to be construed by taking due account of other provisions in the agreement which are associated with the one in question or elsewhere appearing, and due account of the legislative background against which the agreement was made (per Gummow, Hayne and Heydon JJ at [30] and [50]). Gleeson CJ and McHugh J referred (at [2]) to "the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation". Kirby J referred (at [96]) to the need to provide a construction "that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement". Industrial agreements have a quality of mutuality which are not a feature of the award making process. It seems appropriate therefore to pay particular regard, in the construction of such an agreement, to the intention which is to be imputed to the parties to the particular agreement. The same approach may not be appropriate to the construction of an award and is not one which arises for consideration in the same manner when construing legislation. 19 Although any parallel with a commercial contract is inexact, in the case of contracts under the general law a similar approach is taken. The High Court has repeatedly emphasised the need to attribute to parties to a contract an objective intention distilled from the language in which they have chosen to make their bargain (see generally Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165at [40] and International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at [53]). Although a search for subjective intention is not permitted, it is still the common intent of the parties themselves which must be identified, rather than the adoption of a preference by a court for a construction which seems more appealing to it. 20 In ordinary circumstances, and subject to two matters to be discussed, I would incline, on the basis of the language used, to the construction offered by the applicant of clause 3.1 of the agreement. For reasons already explained, that is an inclination which must be tested against any objectively ascertained common intent of the parties and is liable to be displaced by other considerations. The inclination arises from the fact that, to my mind at least, the language employed in clause 3.1 fits more naturally with a reference to the circumstances of employees than to the actions of their employer. In clause 3.1 itself there is a reference to such persons being "employed on" and "employed in". I was told by counsel for the respondent that the agreement reflects, in large measure, the structure of a federal award which applies to the respondent's enterprise and to some rail network employees – the "Mining Industry – Rio Tinto Iron Ore Award 2004". In that award clause 3.1 is expressed as follows: 3.1 Scope of the award This award applies to persons employed by Pilbara Iron Company (Services) Pty Limited (ACN 107 210 248) (Pilbara Iron), Hamersley Iron Pty Limited (ACN 004 558 266) (Hamersley Iron), Robe River Mining Company Pty Limited (ACN 008 694 246) (Robe River Mining) and Robe River Iron Associates (Robe River) (referred to as "the Company" or "the Companies" as the context requires) in classifications of this award employed in iron ore mining, processing, smelting, reducing and refining of ores and all ancillary operations within Australia, but outside of the central business district of any capital city and shall also apply to employees of the Companies on secondment to related bodies corporate. (Emphasis in original) 21 It may be noticed that the award uses (in an active sense) a reference to "persons employed by" the respondent and other companies whereas in the agreement the corresponding reference is to "employees of" the respondent "employed on or after 28 July 2008". To my mind this change in expression provides another (although only slight) reason to incline towards the idea that the language used in clause 3.1 of the agreement fits more naturally with the idea that it refers to persons who were "in employment" on or after 28 July 2008. In Turner v Australasian Coal and Shale Employees Federation (1984) 55 ALR 635 a Full Court of this Court referred to the judgment of McKinnon LJ in Benninga (Mithcam) Ltd v Bijstra [1946] 1 KB 58 at 62 where his Lordship said: The word 'engaged' is deplorably ambiguous. An employer 'engages' a servant when he makes an agreement with him for his services. A workman is 'engaged' on work when he is actually carrying it out. 22 The same may be said of the word "employed". Were it not for the factors to which I will now turn I would have been inclined to think that it found its most natural place in clause 3.1 as referring to the circumstances of employees and to the fact of being in employment on or after the nominated date. 23 However there are two matters which have persuaded me that this construction should not be applied. The first is that the specification of the date of 28 July 2008 in association with, and as a qualification upon, the notion of employment must be taken into account and, if it is possible sensibly to do so, given an effective role in the operation of the clause. On the construction offered by the applicant the date of 28 July 2008 is superfluous. It was not the date upon which the agreement was made. It is not the date upon which it would come into operation under the WR Act. If it does not serve to identify a class of employees who commenced their employment on or after that date then it has no work to do. This is an important feature of clause 3.1 which ought not be put to one side. 24 The other important matter is that I must approach the construction of the agreement bearing in mind what the language would convey to a reasonable person in the position of the parties and having regard to the objective facts known to them. Amongst those objective facts, when viewed in conjunction with the legislative background, is the circumstance that the agreement was only offered to ten employees and was only made with ten employees. I do not think there is much room for the idea that the parties to the agreement (the respondent and the ten employees) shared any intent, objectively ascertained, that the agreement would apply to persons employed (in whatever sense the word is used) before 28 July 2008. That circumstance serves also to resolve a further possible ambiguity arising from the formulation – "employed on or after 28 July 2008" – if, as the respondent argued, by that formulation was intended the concept of "engaged" by it. The applicant argued that, legally speaking, persons who accepted employment before 28 July 2008 were (even if they commenced employment on 28 July 2008) "engaged" before that. In some circumstances this submission would clearly be accepted. However it would make no difference in the present case because there were still two persons who were not "engaged" in that sense until 28 July 2008. As the ten employees were unanimous in their acceptance of the agreement there seems no doubt that there was no invalidity arising from this circumstance even if the submission of the applicant on this point was accepted. Moreover, the objectively attributable mutual intent which I earlier discussed seems to me to result in a construction of clause 3.1 of the agreement whereby it applied to all ten persons whose service actually commenced on or after 28 July 2008. 25 As a result, I do not accept the first challenge made by the applicant to the agreement. It therefore becomes necessary to examine whether the agreement, confined to persons who commenced employment on or after 28 July 2008, failed to meet the requirements of s 327 of the WR Act. 26 The applicant contended that s 327 of the WR Act required that an employee collective agreement be made with all the persons who were employed, at the time the agreement was made, in the single business, or part of the single business, to which the agreement applied. The first difficulty which this argument encounters is that it requires the word "all" to be assumed before the phrase "persons employed at the time" in s 327 even though the provision would have an intelligible and effective operation without that assumption being made. In order to supply a sufficient reason for the assumption, the applicant referred to s 322 of the WR Act which, amongst other things, defines the meaning of "single business". Section 322(3) also makes reference to the concept of "part of a single business" in the following terms: 322(3) For the purposes of this Part, a part of a single business includes, for example: (a) a geographically distinct part of the single business; or (b) a distinct operational or organisational unit within the single business. 27 It was submitted by the applicant that the identification of a group of employees by reference only to the time from which their employment commenced was not consonant with the examples given of what might constitute a single business. To this point, the argument should be accepted. The examples given by s 322(3) clearly relate to functional matters reflecting the organisation of an employer's business. They do not, in that sense, relate to factors which would serve to identify various groups of employees by reference to the characteristics of those employees. In any business, or individual workplace, it is possible, and likely in many cases, that employees in different classifications or using different skills will be engaged. To take a very simple example, there may be employees working in a number of different trades or callings at a single worksite. Notwithstanding an argument to the contrary by the respondent, I do not think that the identification of a group of employees by reference to their trade or calling would necessarily, or in most cases, sufficiently describe "a part of a single business". Nor do I accept that identifying a group of employees by reference to the date upon which their employment commenced would achieve that objective. 28 However that is not the problem which confronts the applicant. The problem which the applicant faces is that there is no reason arising from the fact that an agreement may be made with employees in a part of a single business to conclude that it must necessarily have been made with all such persons. The applicant sought to meet that difficulty by contending that it would not have been necessary to permit an agreement to be made in part of a single business if it was possible simply to make an agreement with any group of employees in a single business. I accept that it would have been desirable if the significance of the use of the concept of "part of a single business" in s 327 of the WR Act had been more clearly expressed. However, examination of the surrounding provisions makes it tolerably clear that there was work for the concept to do without serving the purpose for which the applicant contends. For example, a "multiple-business agreement" (identified in s 331) required authorisation by the Workplace Authority Director. One of the combinations which would constitute a multiple-business agreement was an agreement that related to a combination of one or more parts of single businesses carried on by one or more employers. It would appear to follow, for example, that an agreement which related to geographically distinct parts of a single business, or to more than one distinct operational or organisational unit within a single business, would have been a multiple-business agreement requiring authorisation. The apparent legislative purpose was to control the extent to which agreements departed from an enterprise or workplace focus. That is consistent with the fact that one of the stated objects of the WR Act was (s 3(d)): 3(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level. 29 There are other indications in the WR Act that also suggest that it was unnecessary to propose or conclude an agreement relating to all persons in a single business or part of a single business. Section 423 of the WR Act regulated the method by which a "bargaining period" might be initiated for the purpose of making a collective agreement (including an employee collective agreement). It permitted an employee acting on his or her own behalf, and on behalf of other employees, to initiate a bargaining period (s 423(2)(c)). It prescribed that the negotiating parties, in such a case, would be the employer and "the employees whose employment will be subject to the proposed collective agreement" (s 423(4)(e)). Section 426(b) provided: 426 Particulars to accompany notice An initiating notice is to be accompanied by particulars of: … (b) the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed collective agreement; 30 The requirement to identify the types of employees whose employment would be subject to the proposed collective agreement seems to me to be inconsistent with the notion that an agreement was intended to extend to all persons in the single business or part of the single business to which the agreement was required to relate. 31 The applicant pointed to the circumstance that, in the present case, it was open to the respondent, if the respondent's arguments are accepted, to make an agreement with only ten new employees which would apply for five years and extend to all new employees joining the workforce, which the applicant estimated to be about 1,400 employees, while at the same time 2,793 employees were denied an opportunity to decide whether or not the agreement should be approved. However, as the respondent pointed out, s 328 of the WR Act permitted a registered organisation (such as the applicant) to make a union collective agreement with an employer even if the registered organisation had only one member whose employment would be subject to the agreement. Such an agreement also might have had a life of five years and apply to new employees. 32 When adequate account is taken of the overall structure of the provisions which interacted with s 327 I am unable to find a foundation for the restriction which the applicant asks to be assumed or inferred. 33 The respondent provided an analysis of the history of provisions in legislation which preceded the WR Act as it was in force in July 2008, concentrating on the use in those earlier legislative provisions of reference to a single business or part of a single business. At one time those concepts were used in a different way. From 1996 until 2005 there was an express requirement that some agreements apply to all persons in a single business or part of a single business. There were also restrictions on agreements that applied only to a part of a single business that was not geographically or operationally distinct. Those requirements and restrictions were removed. That circumstance gives some support to the submission by the respondent that the construction urged by the applicant in the present case should not be accepted but I am inclined to give it relatively little weight in the light of the difficulty, to which I earlier referred, of the changing background of political and policy considerations. In an earlier era an enterprise focus for industrial relations was treated with great reserve and even suspicion. More recently it was embraced by the WR Act. Even more recently the emphasis has changed again in the FW Act. 34 It is not necessary to base my conclusions on the question of construction upon the legislative history of the WR Act. A sufficient answer to the applicant's contentions may be found in a consideration of the provisions of the WR Act which applied at the time the agreement was made. The applicant bore the practical onus of showing that the agreement did not meet the requirements of s 327 in order to sustain any claim for an order to the effect that the agreement had not come into operation (s 347A of the WR Act). That case has not been established. 35 The result of the foregoing conclusions is that the application must be dismissed. However it is desirable to say something about the proposition that the applicant lacked sufficient standing to bring the proceedings and that the Court lacked power to make the orders sought, had the applicant's contentions been upheld. I do not accept that the applicant lacked standing to bring the proceedings, nor that the Court lacked power in the manner suggested. 36 The Court's jurisdiction is enlivened by an adequate grant of such jurisdiction by a relevant federal statute. One source of the Court's jurisdiction is s 39B of the Judiciary Act 1903 (Cth) which confers jurisdiction on the Court in any matter arising under federal statutes. 37 In Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 125 FCR 529 Goldberg and Finkelstein JJ pointed out (at [82]), citing Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, that a "matter" involves a justiciable controversy about "some immediate right, duty or liability to be established by the determination of the Court". The use of the term "immediate" in the phrase does not refer to temporal concerns but denotes the immediacy of the interest of the litigant, as well as the requirement that the issue not be remote, abstract or merely speculative. 38 If its jurisdiction is enlivened the Court has power to make particular orders and grant specified relief. Sometimes that power is given by the statute conferring jurisdiction; sometimes it is given more generally. The Federal Court of Australia Act 1976 (Cth) ("the FC Act"), for example, contains in s 21 an express grant of power for the Court to make declarations of right in civil proceedings. The availability of such a power may be affected, in a particular case, by the existence of concurrent powers set out elsewhere (see, for example, Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150 at 161; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [27]). Whether the general powers of the Court granted by the FC Act are thereby limited or excluded in a particular case will normally depend on whether a statement of its powers elsewhere is to be regarded as an exclusive catalogue for the purpose of the case at hand. I shall mention this issue again shortly. 39 The controversy between the parties in the present case is a real one. It is based on concrete facts. It concerns the question whether the agreement has ever validly commenced to operate. If the agreement is in operation then, for reasons to be explained, it represents a real and practical present limitation on the rights of both the applicant and its members. 40 Under the transitional arrangements put in place to accompany the introduction of the FW Act by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Transitional Provisions Act") provision was made for the continuation of employee collective agreements as transitional instruments despite the repeal of the WR Act (Schedule 3 clause 2). An agreement such as an employee collective agreement ceases to operate if an enterprise agreement or workplace determination under the FW Act starts to apply (Schedule 3 clause 30). However the existence of the agreement constitutes a barrier to some rights and discretions which would otherwise be available to the applicant. There was evidence in the present case that the applicant is engaged with the respondent in negotiations for an enterprise agreement under the FW Act for persons who include employees who fall within the scope of the agreement, having been employed since 28 July 2008. About 31 of those persons employed under the agreement are members of the applicant at the present time and it expects that number to increase. Under s 176 of the FW Act the applicant is recognised as a "bargaining representative" of its members who would be covered by the enterprise agreement which it is seeking to negotiate with the respondent. Under the FW Act the applicant has, as a bargaining representative, a number of identified rights to make various applications to Fair Work Australia for orders, declarations or determinations relating to the bargaining process (e.g. ss 229, 234, 236, 238, 240 of the FW Act). The workplace rights (see s 341 of the FW Act) of members of the applicant include the rights to take protected industrial action and to participate in a protected action ballot. Protected industrial action is shielded by s 415 of the FW Act from many legal actions which might otherwise be available. However protected industrial action must be authorised by a protected action ballot (s 409(2) of the FW Act). A bargaining representative may apply for an order requiring a protected action ballot to be conducted (s 437 of the FW Act). 41 Owing to the existence, operation and duration of the agreement those workplace rights (and the role of the applicant in relation to them) are subject to important limitations. Schedule 13 clause 4 of the Transitional Provisions Act provides that s 417 of the FW Act applies during the nominal term of an employee collective agreement (amongst others) in the same way as it applies in relation to an enterprise agreement made under the FW Act. The result is that the applicant and its officers are prohibited from organising industrial action, whether or not it relates to a matter dealt with in the agreement. In my view, therefore, the applicant has a live and very real interest in the question whether the agreement is one which was validly made under the WR Act. I do not accept the submission made by the respondent that such questions are speculative, insufficiently certain or moot. There are further interests also which the applicant has in the question of the status of the agreement. Under s 345 of the FW Act, it must not (nor must its members or the respondent) knowingly or recklessly make a false or misleading representation about the workplace rights of a person or the exercise of such a right. The workplace rights of members of the applicant who are covered by the agreement, and other persons whose employment is covered by the agreement, are directly affected by the question whether the agreement is in operation. That issue is contentious. The applicant is in a position where it is both potentially liable for its own statements and invested with a right to take action against statements made by the respondent. Its members also have such interests. 42 In the circumstances I am satisfied that the applicant has a sufficient direct interest in its own right in the validity and operative force of the agreement that it has standing to apply to the Court in the present proceedings for a declaration about those questions. It is not necessary for me to embark upon a detailed examination of cases in the public law area or of cases which discuss, under different statutory regimes, whether a person is sufficiently "aggrieved" to bring actions of various kinds. 43 For the same reasons I reject the suggestion that there is no "matter" before the Court which would enliven the Court's power to act to grant relief to the applicant if it was otherwise appropriate to do so. I think it is clear that there is a live and justiciable controversy between the parties which permits the Court's attention. 44 The respondent also made a submission to the effect that the Court's power to grant declaratory relief was limited by the circumstance that a catalogue of powers was set out in Division 11 of Part 8 of the WR Act and that catalogue of powers was limited in a way which would deny the particular relief sought by the applicant in the present case, including declaratory relief. In my view the submission gave insufficient weight to the opening provision in Division 11 (s 403): 403 General powers of Court not affected by this Division This Division does not affect the following: (a) the powers of the Court under Part 20; (b) any other powers of the Court. 45 I would not have denied the applicant relief, if otherwise appropriate, on the basis that it had no standing to bring the proceedings or on the basis that the Court had no power to grant relief. However the result of the conclusions earlier expressed is that the application must be dismissed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 5 August 2010