Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cockburn Cement Limited
[2025] FWC 762
•17 MARCH 2025
| [2025] FWC 762 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739— Application to deal with a dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Cockburn Cement Limited
(C2024/8565)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Cockburn Cement Limited
(C2024/8639)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 MARCH 2025 |
Alleged dispute about any matters arising under the enterprise agreement and the NES – jurisdictional objection upheld – application dismissed.
Issues and outcome
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) (collectively the Unions) have referred a dispute to the Commission for determination under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure at clause 10 of the Cockburn Cement Limited Dongara Enterprise Agreement 2023 (the Dongara Agreement).[1]
Essentially, the dispute is purported to centre on clause 33 of the Dongara Agreement. That clause provides an entitlement to long service leave for employees covered by the Dongara Agreement (and where the Dongara Agreement applies to their employment). Clause 33 states the following:
An employee will be entitled to Long Service Leave as per the Long Service Leave Act 1958.
The Long Service Leave Act 1958 (WA) (LSL Act) provides, amongst other matters, the following in respect of an entitlement to long service leave:
Part III – Entitlements to long service leave or to payment on termination instead
8. Long service leave
(1)An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of the length of continuous employment calculated under section 6A with the same employer.
(2)An employee who has completed at least 10 years of continuous employment is entitled to an amount of long service leave as follows:
A.in respect of 10 years so completed, 8 2/3 weeks;
B.in respect of each 5 years’ continuous employment so completed after such 10 years, 4 1/3 weeks; and
C.on the termination of the employee’s employment –
i.by the employee’s death;
ii.in any circumstances otherwise than by the employer for serious misconduct,
in respect of the number of years of such continuous employment completed since the employee last became entitled under this Act to an amount of long service leave, a proportionate amount on the basis of 8 2/3 weeks for 10 years of such continuous employment.
(3)Where an employee has completed at least 7 years but less than 10 years of continuous employment, and the employment is terminated –
A.by the employee’s death; or
B.in any circumstances other than by the employer for serious misconduct,
the amount of leave to which the employee is entitled is a proportionate amount on the basis of 8 2/3 weeks for 10 years of such continuous employment….
Historically, employees at the Dongara site who are covered by the Dongara Agreement have received an entitlement of ten years long service leave based on an accrual of 1.3 weeks of long service leave per year. This provides the employees with an entitlement of 13 weeks of long service leave in respect of 10 years of completed continuous employment. In contrast, the Dongara Agreement sets out an entitlement of long service leave in accordance with the LSL Act, which amounts to 8 2/3 weeks after 10 years of completed continuous employment.
In its application, the CEPU identified that the practice of providing the 13 weeks of long service leave was deeply embedded in workplace culture and had, up until a certain point, been consistently applied without interruption.
That certain point appears to have surfaced on 11 September 2024, when Cockburn Cement Limited (the Respondent) informed the Unions that it intended to change the long service leave entitlement to effectively align with what the CEPU referred to as an ‘alternative interpretation of the entitlement outlined in the agreement.’ The CEPU pressed that the proposed changed involved a reduction in the long service leave entitlement for employees at the Dongara site, which constituted a significant change under the Dongara Agreement requiring consultation. The CEPU asserted that the Respondent failed to consult about the issue of long service leave in accordance with the Dongara Agreement.
The Respondent acknowledged that on 11 September 2024, it contacted the Unions to advise (both verbally and in writing) of its intention to correct the LSL accrual and align it to the LSL Act. The Respondent stated that it also confirmed that consultation, as described in the Dongara Agreement, would commence with the impacted employees. This was notwithstanding that the Respondent held the view that the correction of long service leave accrual was not a ‘major change’, as contemplated by clause 8 consultation provisions of the Dongara Agreement.
Communications between the Unions and the Respondent appeared to occur, with the Unions making a proposal on 9 October 2024, that the Respondent maintain the current long service leave accrual rate for the duration of the Dongara Agreement. The Respondent said that on 14 October 2024, it informed the Unions that the proposal was not acceptable but given some of the feedback from employees, it would extend the initial implementation timeframe from 15 October 2024 to 30 November 2024. It did so on the basis it would allow the employees more time to become accustomed to the correct long service leave accrual rate.
According to the Respondent, it says it received communication from the Unions that the Respondent had met the consultation requirements pursuant to clause 8 of the Dongara Agreement, but that the Unions did not accept the Respondent’s proposal.
While further communications passed between the parties, it is evident the dispute was unresolved. On or around 20 November 2024, the Unions lodged the applications under s 739 of the Act, and for its part, the AMWU was content to rely on the submissions and materials filed by the CEPU.
The relief sought by the CEPU as stated in its application is in the form of an order that requires the Respondent to do the following:
(a) maintain the ten-year long service leave entitlement as historically applied, pending the resolution of the dispute or further negotiation;
(b) engage in proper and meaningful consultation with the union and affected employees, as required by the Dongara Agreement;
(c) be restrained from implementing the proposed change to the long service leave entitlement until the consultation process is properly conducted and the dispute resolved; and
(d) negotiate and sign a memorandum of understanding with the union, maintaining the current long service leave entitlement until the next bargaining period in June 2026.
The Respondent has objected to the applications on the ground that the dispute relates to the decision to correct the long service leave accrual, which has been accruing in excess of what is required by the Dongara Agreement, and not a failure to comply with consultation obligation. It follows that the Respondent views that the substance of the dispute does not to relate to either a matter arising under the Dongara Agreement or the National Employment Standards (NES) (as required by clause 10 of the Dongara Agreement).
All parties considered it appropriate for the Respondent’s jurisdictional objection to be determined on the papers, and I determined that to be the appropriate course.
Briefly stated, I agreed with the Respondent’s proposition that the Commission is absent jurisdiction to deal with the applications made under s 739 of the Act. As a consequence, the applications must therefore be dismissed and Orders[2] issue accordingly. My detailed reasons follow.
Unions’ submissions
The Unions observed that the Respondent had sought an order dismissing the applications on the basis that the subject of the Unions’ dispute (the Respondent’s intention to correct the long service leave accrual of covered employees in accordance with Western Australian legislation) did not arise out of the Dongara Agreement or the NES, and therefore could not be settled by the process described in clause 10 of the Dongara Agreement.
The Unions noted that clause 10.1 of the Dongara Agreement provides that a dispute must relate to: (a) a matter under the Dongara Agreement; or (b) the NES.
The Unions submitted that the Respondent had advanced a description of the dispute that was rather less than even-handed, and that the dispute was more generally, and fairly, expressed as a contest over whether the Respondent was entitled to introduce particular changes to the long service leave arrangements in place for employees. If it can, said the Unions, the question was whether, and how, it should go about such an action.
The Unions continued that usually, there will be multiple formulations of the issues that comprise a given dispute. By way of example, the Unions proposed that it might be argued by them that the action of the Respondent is prohibited by the no extra claims clause in the Dongara Agreement. That aspect of the dispute would be sufficient on its own to grant jurisdiction to the Commission to arbitrate the dispute, said the Unions. The Unions further submitted that it was worth noting that the Commission would not be confined to the issue that relates to the Dongara Agreement, but the whole of the matter. The Unions stated that as much was clear from the words of clause 10.1. The ‘dispute’, they argued, will come under the jurisdiction conferred on the Commission by the clause, where the dispute ‘relates’ to either of the jurisdictional limits.
The Unions observed that while the Respondent appeared to be advancing a case that it was merely bringing things into line with the Dongara Agreement (and the NES), even if that was so, and even if the Respondent was entitled to take the actions proposed, the Unions disputed whether the Respondent could or should do so. This, said the Unions, was the whole answer to the question of jurisdiction – namely the dispute was about the action the Respondent asserted that it was entitled to take because of the terms of the Dongara Agreement.
In their reply submissions, the Unions made multiple points extending to interpretative principles, the meaning to be attributed to the word ‘dispute’ and the phrase ‘a matter arising under’, and that the Respondent’s assertions at paragraph [16] of its submissions served only to disclose a basis for finding jurisdiction albeit incoherent.
Respondent’s submissions
The Respondent contends that the dispute raised by the Unions is not one that relates to a matter arising under the Dongara Agreement or the NES, and therefore the Commission does not have jurisdiction to hear and determine the dispute under clause 10 of the Agreement.
The Respondent noted that the Unions, had, at paragraph [8] of their submissions of 17 February 2025, described the dispute in the following terms:
The dispute is more generally, and fairly, expressed as; a contest over whether or not the Employer is entitled to introduce particular changes to the Long Service Leave arrangements in place for employees. If it can; whether it should, and how it should go about such an action.
The Respondent submitted that the dispute, as described by the Unions, is not a matter which enlivens the Commission’s powers to hear and determine disputes under clause 10.1(A) of the Dongara Agreement, because the dispute as characterised by the Applicant does not relate to ‘a matter arising under the Agreement’. An abridged version of the Respondent’s reasoning on this point follows:
(a) clause 33 of the Dongara Agreement does no more than identify the source of entitlement, being State legislation, as amended from time to time. Clause 33 of the Dongara Agreement does not incorporate the legislation merely by referencing the external source of the entitlement. To the extent that there is a matter to be determined relating to long service leave entitlements for the employees, that is a matter arising under the LSL Act, and not under the Dongara Agreement;
(b) the parties had resolved the issue of long service leave entitlements when making the Dongara Agreement. That is, under clause 33 of the Dongara Agreement, long service leave was to be provided for ‘as per’ the LSL Act;
(c) there is no real dispute as to the interpretation of clause 33 of the Dongara Agreement, as that clause has a plain meaning and does not contain any ambiguity, and there is no dispute as to the clause’s ‘proper application’ to employees;
(d) although the Unions have not made an application to vary clause 33 of the Dongara Agreement, the applications, in effect, seek to do just that;
(e) to determine the dispute and make orders as advanced by the Unions would be to provide for long service leave entitlements that are not ‘per’ the LSL Act, which would arguably be inconsistent with the terms of the Dongara Agreement and impermissible under s 739(5) of the Act; and
(f) when read as a whole, the terms of the Dongara Agreement do not support a conclusion that the parties had intended that the dispute resolution clause would extend to enable the Commission to hear and determine disputes regarding long service leave accruals:
i.the Dongara Agreement does not provide a process or procedure by which the Respondent is to ensure it provides its employees their long service leave entitlements in accordance with the LSL Act; and
ii.the language of clause 33 of the Dongara Agreement, in simply referring to the source of the long service leave entitlement in State legislation, and not otherwise providing any further clauses relating to long service leave in employment, support a conclusion that it was not the parties’ intent that the dispute resolution clause in the Dongara Agreement would allow the Commission to hear and determine disputes relating to long service leave.
The Respondent made further submissions that touched on the dispute not relating to the NES (long service leave under the Dongara Agreement did not arise under the NES) and that the Industrial Magistrate’s Court has jurisdiction to hear and determine all questions and disputes. It proves unnecessary to expand upon those submissions as I am of the view that they are unimportant.
The legislative framework and legal principles
Before considering the jurisdictional objection further, it is appropriate to set out the relevant provisions of the Act and the required approach of the Commission.
Section 172 of the Act authorises the making of enterprise agreements between national system employees and their employer(s).
The general requirements for approval of an enterprise agreement in s 186 of the Act include, at s 186(6), that the agreement contain a procedure requiring or allowing the Commission, or another independent person, to settle disputes about any matters arising under the agreement and in relation to the NES. Those who will be covered by an enterprise agreement may, of course, agree to a term for the settlement of disputes of broader compass, provided it relates to the permitted matters in s 172 of the Act.
The Commission has a function set out in s 576(2)(a) of the Act to deal with disputes as referred to in s 595. Section 595 of the Act provides a power to the Commission to deal with a dispute if ‘expressly authorised to do so under or in accordance with another provision’ of the Act. In such a circumstance, s 595 provides that:
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Section 595 of the Act authorises the Commission to exercise any powers it has under Subdivision B of Division 3 of Part 5–1 of the Act in dealing with a dispute.
Subdivision B of Division 2 of Part 6–2 of the Act is ‘another provision of the Act’ which expressly authorises the Commission to deal with disputes.
Section 739 of the Act concerns disputes dealt with by the Commission. Section 739 applies if a term referred to in s 738 requires or allows the Commission to deal with a dispute. Section 738(b) of the Act includes a term in an enterprise agreement that provides a procedure for dealing with disputes, including a term referred to in s 186(6).
In dealing with a dispute, the Commission must not exercise any powers limited by the term (which requires or allows the Commission to deal with the dispute (s 739(3)). The Commission may deal with a dispute only on application by a party to the dispute (s 739(6)). If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so (s 739(4)) but must not make a decision that is inconsistent with the Act or a Fair Work instrument that applies to the parties (s 739(5)).
Section 739 outlines that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or another person).[3] It follows that the procedures required to be applied in dealing with such a dispute, and the powers the Commission is able to exercise, depend on the terms of the agreement which requires or allows the Commission to deal with the dispute.
The wording in the enterprise agreement conferring the power to the Commission is therefore relevant in determining whether the Commission will have jurisdiction to hear the dispute. That is, the Commission may deal with a dispute if the dispute settlement procedure ‘requires or allows’ it to do so.[4] This requires the terms of the dispute settlement procedure to be considered and understood in light of its industrial context and purpose.[5]
In assessing the scope of arbitration authorised by an enterprise agreement and the characterisation of a dispute, the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union” known as the Australian Manufacturing Workers’ Union (AMWU) & United Workers’ Union v FreshFood Management Services Pty Ltd[6] adopted the non-exhaustive summary of the approach articulated by Saunders DP in Davis and others v The University of Newcastle[7], as follows:
[12] The scope of a dispute resolution clause in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”[8]
[13] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.[9] The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.[10] Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.[11]
[14] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.[12] However, the relief sought may cast light on the true nature of the dispute in some cases.[13]
[15] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.[14]
When dealing with a dispute under a dispute settlement procedure in an enterprise agreement the Commission acts as a private arbitrator.[15] As observed, the scope of the powers the Commission may exercise in the performance of its arbitral function are primarily defined by the terms of reference given to it by the relevant agreement, and supplemented by the powers conferred on it by Parliament (see s 739 of the Act).[16]
Consideration
Clause 10 of the Dongara Agreement sets out the following in respect of dispute resolution:
10.1 If a dispute relates to:
A. A matter arising under the agreement; or
B. The National Employment Standards.
This term sets out procedures to settle the dispute.
10.2An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.
10.3In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
10.4If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission.
10.5The Fair Work Commission may deal with the dispute in two (2) stages:
A. The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
B. If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
I.Arbitrate the dispute; and
II.Make a determination that is binding on the parties, subject to any decision of the arbiter being consistent with the Code for the Tendering and Performance of Building Work 2016 (Building Code).
10.6 While the parties are trying to resolve the dispute using the procedures in this term:
A. An employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
B. An employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
I.The work is not safe;
II.Applicable occupational health and safety legislation would not permit the work to be performed
III.The work is not appropriate for the employee to perform; or
IV.There are other reasonable grounds for the employee to refuse to comply with the direction.
C. The parties commit themselves to maintain the status quo and work shall continue without interruption from industrial stoppages, ban and/or limitations while suing the procedures in this term.
10.7 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.
It has been said that in construing an award or an enterprise agreement the task is one of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted.[17]
In WorkPacPty Ltd v Skene,[18] the Full Federal Court elucidated the following regarding the interpretation of an enterprise agreement:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[19]
The Full Federal Court further clarified that where a term is undefined it ought to be presumed that the draftsperson intended that the term have its ordinary meaning unless there is a contrary indication.[20] And so, despite the broad purposive approach to be adopted when interpreting industrial agreements, that canon of construction regarding the ‘ordinary meaning’ remains applicable as a starting point.[21]
This starting point for interpretation was reiterated by the Full Court of the Federal Court in James Cook University v Ridd[22] which set down that relevant principle in addition to several others:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
In respect to the interpretative exercise, it also appears that to the extent that there are true, mutually known facts to the parties, provided those facts rise to the level of matter that would be ‘notorious’ to those intended to be bound by the instrument, those facts may inform the construction exercise.[23]
In respect to jurisdiction, it is uncontroversial that the Commission has an obligation, in all matters, to satisfy itself that is has the requisite jurisdiction to perform a particular function or exercise a particular power.[24]
The Respondent’s jurisdictional objection calls into question whether the Commission has power under clause 10.5 of the Dongara Agreement to deal with the dispute. Clause 10.5 of the Dongara Agreement allows the Commission to deal with the dispute in two stages, as set out in clause 10.5(A) and (B). However, it is clause 10.1 of the Dongara Agreement that prescribes the ‘disputes’ that the Commission can deal with. The question of whether the Commission can deal with the dispute requires the proper construction of clause 10.1 of the Dongara Agreement, making that clause the appropriate place to start.
Clause 10.1 of the Dongara Agreement sets out the following in respect of dispute resolution:
10.1 If a dispute relates to:
A. A matter arising under the agreement; or
B. The National Employment Standards.
This term sets out procedures to settle the dispute.
The Dongara Agreement does not define the word ‘dispute’. It can therefore be safely assumed that the meaning to attribute to the word, is its ordinary meaning. As was stated in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2), the word ‘dispute’ is a common word of everyday usage, and the essence of its meaning is that there is an occasion during which there is an exchange of ‘opposing views’ or ‘positions’ – with the necessity for there to be an exchange of positions ‘for and against’ a particular result. [25] It is an indubitable fact that there is a dispute on foot about the Respondent’s proposed, or actual, reduction in the long service leave entitlement of relevant employees. Further, I consider this to be the correct characterisation of the dispute rather than some assertion of a failure to consult.
The threshold question is whether the dispute brought by the Unions is one that ‘relates to’ either a matter under the Dongara Agreement or under the NES.
The words ‘relate to’ denote a necessary connection between two subjects. In Woodside Energy Ltd v Commissioner of Taxation for the Commonwealth of Australia (Woodside),[26] a judgment which is distinguishable on its facts but nevertheless provides guidance on what ‘relate to’ may mean, Flick J expressed the following about compound prepositions:
The words ‘in relation to’ and similar terms like ‘in respect of’ or ‘in connection with’ or just ‘in’ have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers’ Compensation Board (Qld) v Technical Products Proprietary Limited (1988) 165 CLR 642, the term ‘in respect of’ was said to have a wide meaning. It ‘… gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends’ (at 653-654 per Deane, Dawson and Toohey JJ). The words ‘in relation to’ have been described as a ‘prepositional phrase’ which is ‘indefinite’ and which, ‘subject to any contrary indication derived from its context or drafting history … requires no more than a relationship whether direct or indirect between two subject matters’ – O’Grady v North Queensland Company Limited (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used – Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited.[27]
Turning to whether the dispute relates to ‘a matter’, the word ‘matter’ has been previously said to be ‘elusive’.[28] In Shanahan v Australian Industrial Relations Commission (No 3),[29] consideration was given to the meaning of the word ‘matter’ in the context of s 347(1) of the Workplace Relations Act 1996 (Cth) (WR Act). That section provides that ‘a party to a proceeding…in a matter arising under this Act… shall not be ordered to pay costs incurred by any other party to the proceeding’ unless the proceeding had been instituted vexatiously or absent reasonable cause.
In their judgment, Marshall and Graham JJ expressed the following at paragraph [21]:
[21] The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act (per Brennan CJ, McHugh and Gummow JJ in Re McJannet; ex parte The Australian Workers’ Union of Employees, Queensland [No 2] (1997) 189 CLR 654 at 656).
At paragraphs [22] to [24], they continued:
[22] In Abebe v The Commonwealth of Australia (‘Abebe’) (1999) 197 CLR 510 at 585 [215] Kirby J said:
‘215 The meaning of the word “matter” is elusive. Established doctrine … holds that the word has the same meaning in each of the sections in Ch III [of the Constitution] in which it is used …. It does not connote “a legal proceeding” as the parties may have chosen to frame it …. Rather it refers to “the subject matter for determination in a legal proceeding” ….’
[23] At p555 in Abebe [117] Gaudron J said:
‘117 It has been accepted since In re Judiciary and Navigation Acts … that, in ss 75, 76 and 77 of the Constitution, the word “matter” means “the subject matter for determination in … legal proceeding[s]” rather than the proceedings themselves. …’
[24] At p529-530 [36] Gleeson CJ and McHugh J drew attention to the fact that an employee may obtain an order from an industrial court that a term of the employment contract is void because it is harsh or unconscionable and at the same time have a right to obtain an order from a court of general jurisdiction that the term is unjust or unfair under legislation such as the Trade Practices Act 1974 (Cth) or the Contracts Review Act 1980 (NSW). In both cases, the ‘matter’ determined in one court is separate and independent from the ‘matter’ determined in the other court even though each ‘matter’ arises out of the same factual substratum. They held at 529 [36] that the same legal controversy can give rise to separate matters because different courts can provide different remedies.
In South Australia v Victoria[30] it was said that the word ‘matters’ was, in 1900, in common use as the widest term to denote controversies which might come before a Court of Justice.
It is to be appreciated that the word ‘matter’ as adopted in a legislative context, may differ in its meaning when considered in the context of an industrial agreement. However, whilst the two contexts differ, they share an undeniable similarity. Legislation, like an industrial agreement, may prove to be a source of rights, terms and conditions, entitlements, benefits, obligations or duties. It may set out a timeframe, a method of calculation or reckoning, provide for a process or regulate an interaction. Hence, it is open to propose that whether a dispute in this context relates to a matter arising under the Dongara Agreement, is, in part, answerable by whether what is sought to be interpreted, understood, or, in some cases determined, owes its existence to a provision within the enterprise agreement. The phrase ‘a matter arising under the agreement’ in clause 10.1, is to be understood in this context.
The CEPU, correctly in my view, identified that the word ‘dispute’ and ‘matter’ mean two different things. However, the CEPU then pressed that the consequence of the difference in meaning was that there was allowance for some degree of separation between the dispute for which the arbitral power is enlivened and the matter which arises under the agreement, that is, the two need only be related. The CEPU further pressed that given the breadth of what a matter arising under the agreement can be taken to apply to, this distinction may perform little work, hence fortifying the view that the clause conferring the Commission’s jurisdictional ambit is to be given a broad construction.
The words ‘dispute’ and ‘matter’ are not synonymous. The dispute, which is the focus of this application, centres on the Respondent’s unilateral reduction of the accrual rate of long service leave for employees covered by the Dongara Agreement and the Unions grievance about the same. The reduction would result in those employees receiving an entitlement of long service leave in accordance with the LSL Act, which amounts to 8 2/3 weeks after 10 years of completed continuous employment. This would align with the entitlement provided by the Dongara Agreement. The view held by the CEPU is that the accrual of long service should be maintained in accordance with a longstanding custom and practice.
Essentially, the construction pressed by the Unions in respect of clause 10.1 of the Dongara Agreement is that because the ‘dispute’ is in relation to the accrual of long service leave or otherwise the entitlement to long service leave, that is, in and of itself, sufficient to establish the necessary connection between dispute and a ‘matter arising’ under the Dongara Agreement. It is correct that in Woodside it was said that the term ‘in relation to’, a phrase similar to that in clause 10.1 which refers to ‘relates to’, requires no more than a relationship whether direct or indirect between two subject matters.[31] However, in Woodside it was, in addition, said that the nature and closeness or remoteness of the connection depends upon context, and the term is indefinite and will not generally apply to any relationship no matter how remote.[32]
Whilst there is, on its face, a connection between the dispute and the Dongara Agreement, because long service leave is an entitlement referred to in the Dongara Agreement, that connection is an insufficient connection for the purposes of clause 10.1 in this context. This is because the phrase ‘matter arising under the agreement’ has work to do. The word ‘matter’ in this context is not the same as ‘subject’.
To explain further, at Schedule 2 of the Dongara Agreement is a table setting out the remuneration for various classifications. It would appear that the remuneration in the table is the employees’ annual salary exclusive of Site Allowance C & D, travel, meal allowances and paid overtime. Clause 24 of the Dongara Agreement provides that the annual salary compensates for the ordinary 76-hour fortnight plus an additional 8 hours per fortnight consolidation of wages. If it is accepted that the Dongara Agreement applies to the Respondent and the employees covered, then the obligations under the Dongara Agreement are imposed upon those covered. If the Respondent paid annual salaries to the employees less than those provided in Schedule 2, the Respondent would be in contravention of the Dongara Agreement.
However, if the Respondent paid the employees annual salaries that were in excess of the annual salaries set out in Schedule 2, that is, instead of paying an Electrical Supervisor $151,042.19 as an annual salary, the Respondent paid $200,000.00, only to then unilaterally alter that annual salary to $170,000.00, the Respondent would not be in contravention of the Dongara Agreement in this respect. This is because the Respondent continued to pay an annual salary in excess of that provided for by the Dongara Agreement.
That amount paid in excess of the $151,042.19 is not an entitlement provided by the Dongara Agreement. That is, those covered by the Agreement did not bargain and negotiate the annual salary for the Electrical Supervisor of $200,000.00. The bargain they struck, which was subsequently voted upon and formed part of the agreement made, was for $151,042.19. Does it then follow that what an individual employee has secured though her or his acceptance of an offer or variation in respect of the amount of annual salary can form a ‘matter arising under the agreement’, in circumstances where there is a dispute over the reduction of the annual salary from say $200,000.00 to $170,000.00? I think not.
Expanding upon this reasoning further, the Dongara Agreement provides multiple forms of allowances at clause 25. It is, of course, obliged to provide those allowances as to do otherwise would render it in contravention of the Dongara Agreement. At clause 25.1, the Dongara Agreement sets out a meal allowance. It details the circumstances when an employee will either receive a meal supplied by the Respondent or instead be paid a meal allowance. A dispute may arise over whether the circumstances that trigger the meal allowance have been met, and understandably that would constitute ‘a matter arising under the agreement’ because the origin of the entitlement (the meal allowance) arises from the Dongara Agreement. However, if the Respondent and employees covered by the Dongara Agreement had arrived at an agreement or arrangement whereby the employees were provided a ‘Heat Allowance’, an entitlement/allowance that does not arise under the Dongara Agreement, the employees would clearly be unable to raise a dispute about it. This is because, while the Dongara Agreement provides ‘allowances’, that is the subject of ‘allowances’, it expressly limits those allowances to those set out in clause 25. The hypothetical ‘Heat Allowance’ was not a bargain secured through collective bargaining for the Dongara Agreement and consequently found no place in the enterprise agreement which was made.
Turning to what is sought by the Unions to resolve the dispute, whether that be the maintenance of the historical ten year long service leave entitlement, or the entering into an MOU maintaining the current long service leave entitlement until the next bargaining period in June 2026, the making of orders as advanced by the Unions would result in the provision of long service leave entitlements that are not ‘per’ the LSL Act (as provided by the Dongara Agreement).
The bargain struck by the parties in respect of long service leave under the Dongara Agreement was that the employees would be entitled to long service leave per the LSL Act. Whilst the Dongara Agreement was made, approved and came into operation all within a period where long service leave accrued for the employees at the rate of 1.3 weeks per year of continuous service, that context does not, and cannot, change the ordinary meaning of the words in clause 33. While employees and the Respondent entered into an arrangement that resulted in employees receiving an entitlement to long service leave in excess of that provided by the Dongara Agreement, that arrangement sat outside of the Dongara Agreement. The more beneficial long service leave entitlement was not secured through the negotiation for, and the making of, the Dongara Agreement, therefore becoming a term of that industrial instrument.
The relationship between the dispute and a matter arising under the Dongara Agreement must lie within the bounds of relevance to the purpose of the dispute resolution procedure. Section 186(6) of the Act sets out that the Commission must be satisfied that an agreement includes a term that provides a procedure for the settlement of disputes about any matters arising under the agreement or in relation to the NES. Section 186(6) sets only the minimum requirement in relation to a dispute resolution procedure in an enterprise agreement. The provision permits the Commission to approve an enterprise agreement which includes a dispute resolution procedure that extends beyond s 186(6)(a)(i) and (ii) to matters outside the express terms of the agreement (for example, ‘all matters pertaining to the employment relationship’). However, clause 10.1 of the Dongara Agreement is not cast in such terms, and therefore any application beyond the bounds set by its language is not justified.
This is not to say that all disputes in relation to the long service leave entitlement under clause 33 of the Dongara Agreement cannot be pursued under clause 10 of the Dongara Agreement. Clearly, a dispute is to be appropriately characterised and then the question arises whether the dispute relates to a matter arising under the Dongara Agreement. Whilst unnecessary to determine the point, I would suggest that while the Respondent’s observation about the LSL Act having not been incorporated by the operation of clause 33 appears correct, I do not necessarily accept as correct its latter proposition that ‘to the extent that there is a matter to be determined relating to long service leave entitlements for the employees, that is a matter arising under the LSL Act, and not under the Dongara Agreement’. Clause 33 provides that an employee will be entitled to long service leave as per the LSL Act and that same Act sets out, for example, the requirements as to when long service leave is to be taken. Were a dispute to arise about an employee’s ‘taking of long service leave’ (see s 9 of the LSL Act), then that may prove to relate to a matter arising under the Dongara Agreement if the word ‘entitlement’ and ‘as per the LSL Act’ extend to when the long service leave is taken.
Turning then to the Unions contention that the NES limb (see clause 10.1(B)) must be recognised as being broader than that concerning ‘a matter arsing under the agreement’. The Unions stated that it was only necessary that the dispute relates to the NES, and it will relate to the NES where it touches on the NES or engages with related subject matter. It was the Unions’ view that the dispute related to the NES albeit they acknowledged that they had not identified all the ways in which the dispute related to the NES. I do not accept this proposition.
Clause 4 of the Dongara Agreement sets out that the NES contain the minimum conditions of employment for employees covered by the Dongara Agreement, and where the Dongara Agreement refers to a condition of employment provided for in the NES, the NES definition applies. Further, the Dongara Agreement is subject an undertaking that provides:
Notwithstanding clause 4 of the Agreement, this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
Where the Dongara Agreement provides a benefit or entitlement aligned with the NES, it expressly refers to the NES: see for example: clauses 6.6, 17, 29, 30, 31.1, 31.2, 31.6, 35, 36, and 37. Clause 33 makes no such express reference.
Further, even if clause 33 made express reference to the NES, such that the entitlement to long service leave was ‘as per the NES’, the reasoning in respect to the construction of clause 10.1(A) still applies to clause 10.1(B) in this case. This is again, because the long service leave entitlement over which parties are in dispute does not originate from the Dongara Agreement (whether through the NES or the LSL Act).
Conclusion
Accordingly, the applications raising a dispute under s 739 must be dismissed. The Commission does not have jurisdiction to deal with the applications. The dispute that has been raised by the Unions does not relate to a matter arising under the Dongara Agreement or the NES.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] AE520505.
[2] PR785294.
[3] Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032, [25].
[4] Fair Work Act 2009 (Cth) s 739(1), see also s 595.
[5] Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 [42], [44], [47].
[6] [2023] FWCFB 97, [118].
[7] [2019] FWC 2282.
[8] Shop, Distributive and Allied Employees Association v Big W Discount Department Stores (Australian Industrial Relations Commission, Waston SDP, Kaufman SDP and Foggo C, 12 November 2002), [23].
[9] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited (2003) 128 IR 101 [47] (AMWU v Holden); Maritime Union of Australia v ASP Shipping Management Pty Ltd[2015] FWC 4523 (ASP) [23]
[10] AMWU v Holden (n 9) [47]; ASP (n 9) [23].
[11] ASP (n 9) [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (2006) 158 IR 1 (United Firefighters’ Union).
[12] Maritime Union of Australia v Australian Plant Services Pty Ltd (Australian Industrial Relations Commission, Lacy SDP, 3 September 2001) (MUA); ASP (n 8) [21]-[22].
[13] United Firefighters’ Union (n 11) [20].
[14] MUA (n 12) [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 98, [31]-[32].
[15] PHI (International) Australia Pty Ltd v Mr Martin Nash & Mr Paul Micheletti and Another[2024] FWCFB 396, [16], [21]; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645, 658 [31]-[32]; Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd (2012) 203 FCR 371, 381 [41] (Buchanan and Katzmann JJ); Linfox Australia Pty Ltd v Transport Workers’ Union of Australia (2013) 213 FCR 479, 490 [27] (Rares J).
[16] United Firefighters' Union of Australia v Fire Rescue Victoria (2024) 304 FCR 219, 223 [10].
[17] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) (2020) 298 IR 447, 455 [16] (Qantas); Kucks v CSR Ltd (1996) 66 IR 182, 184.
[18] (2018) 264 FCR 536.
[19] Ibid 580 [197].
[20] Ibid 581 [202].
[21] Ibid.
[22] James Cook University v Ridd (2020) 278 FCR 566, 580 [65].
[23] Tasmanian Water & Sewerage Corporation Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39, [26].
[24] Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321 [15].
[25] Qantas (n 17) 467 [62].
[26] Woodside Energy Ltd v Commissioner of Taxation for the Commonwealth of Australia (2006) 155 FCR 357.
[27] Ibid 374-5 [57].
[28] Abebe v Commonwealth (1999) 197 CLR 510, 585, [215] (Kirby J).
[29] (2007) 162 IR 116.
[30] (1911) 12 CLR 667, 675.
[31] Woodside (n 26) 374-5 [57].
[32] Ibid.
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