Catchwords:

ADMINISTRATIVE LAW — where, on 4 October 2023, the Fair Work Commission made an intractable bargaining declaration under s 235 of the Fair Work Act 2009 (Cth) (FW Act) in relation to enterprise bargaining between the United Firefighters’ Union of Australia and Fire Rescue Victoria – where s 269 of the FW Act then required the Commission to make an intractable bargaining workplace determination – where ss 270(1)–(2) required the Commission to include in the determination the agreed terms for the determination – where s 274(3) of the FW Act defined what terms were agreed terms – where the Commission published reasons on 5 February 2024 stating that there were no agreed terms for the determination, but not making the determination – where amendments to the FW Act commenced on 27 February 2024, which relevantly altered the definition of agreed terms in s 274(3) that the Commission would have to apply when making the workplace determination – where the Union sought certiorari and mandamus in relation to the Commission’s 5 February 2024 decision – the function of certiorari is to remove the legal consequences or purported legal consequences of an exercise or a purported exercise of power – Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, applied – the Commission’s decision was no more than the expression of the Commission’s opinion, under a previous state of the law, as to what terms appeared to be agreed, on the evidence then before the Commission – no workplace determination had yet been made, and the Commission’s decision had no legal effect upon rights – the Commission may, but need not, have regard to the opinions expressed in the decision when the workplace determination is made – held: certiorari is not available to quash the Commission’s decision – application dismissed.