Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd T/A DP World Melbourne - [2025] FWC 1881

[2025] FWC 1881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union
v

DP World Melbourne Ltd T/A DP World Melbourne

(C2025/1423)

COMMISSIONER REDFORD

MELBOURNE, 29 AUGUST 2025

Alleged dispute about matters arising under the DP World Melbourne Enterprise Agreement 2024 – obligation to fill vacancies in normal circumstances; dispute determined

On 27 February 2025 the Construction Forestry Maritime Employees’ Union (Maritime Union of Australia Division) (MUA) made an application pursuant to s 739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute involving DP World Melbourne Ltd (DP World). The dispute concerns the DP World Melbourne Enterprise Agreement 2024 (the Agreement).
After an attempt to resolve the matter by conciliation proved unsuccessful, I have arbitrated the dispute pursuant to s 739(4) of the Act and the Agreement’s disputes resolution procedure. Clause 47.5.2 of the Agreement provides that where a dispute arising in the workplace in regard to the application of the Agreement or the National Employment Standards has not been resolved by procedures set out in the procedures under the clause, either party may refer the dispute to the Commission for arbitration in which case the Commission’s decision will be accepted by the parties subject to any appeal rights. There was no question that the Commission is empowered to arbitrate the dispute.
The arbitration was conducted on 2 July 2025 by way of hearing. I granted both parties permission to be represented by a lawyer in this proceeding. Ms Siobhan Kelly of Counsel appeared for MUA and Mr Andrew Denton of Counsel appeared for DP World.
At the commencement of the hearing, the parties indicated that neither intended to cross examine the others’ witnesses. A statement of evidence and a supplementary statement was tendered by the MUA from Mr Moon and a Statement of Evidence tendered by DP World from Mr McMurray.

The clause in contention

The dispute concerns clause 39.6 of the Agreement which provides as follows:
39.6 Replacement of FSE Position
39.6.1 Where an existing FSE position becomes vacant at any time, the Company shall, in normal circumstances, fill such vacancy in a reasonable time which means advertising no later than 21 days after the departure of the employee. Where an FSE notifies the Company of their resignation date, the Company shall, in all normal circumstance, advertise to fill that position as soon as the Company received the notice. If circumstances change, the Company shall provide Employees and the Union with the reasons for non-replacement of existing positions
An “FSE” position is “Fixed Salary Employee” which is a type of permanent employee who works according to fixed rosters and rostering principles governed by Part B of the Agreement. They may be contrasted with a Variable Salary Employee (VSE), which is also a “permanent employee” but who does not have an entitlement to a permanent roster[1]. The Agreement also provides for employment as a ‘supplementary” which not considered a permanent employee and is akin to a casual engagement[2].

The dispute

The dispute arises because DP World considers it is not obliged to fill several vacant FSE positions that have arisen at its West Swanson Terminal located at West Melbourne in Victoria (the Terminal). DP World claims that at the time these vacancies arose there were circumstances other than “normal”, such that they were not obliged to fill the vacancies and that this remains so. The change claimed to have arisen results from a decision to implement Automated Horizontal Transport (AHT) at the Terminal. It is said that the introduction of AHT will result in removal of a significant human element involved in discharging and loading of containers onto and from container ships at the Terminal.
It does not appear to me there is any great controversy over the background to the matters the Commission is required to arbitrate to resolve the dispute. However, parties were not able to agree on specific questions for arbitration.
The questions posed by the MUA were:
1.   Q1. Is the requirement to fill FSE vacancies in clause 39.6 of the EA contingent on "normal circumstances" and/or "in all normal circumstances"?
2.   Q2.a. Does consultation by the Respondent with the Applicant in relation to a proposed project involving automated horizontal transport constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?
3.   Q2.b. Does a "definite decision to make a change to the mode of operation (Board approval)" in accordance with clause 1(a) of Appendix 4 of the EA constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?
4.   Q3. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings)?
5.   Q4. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings) within a reasonable time?
The questions posed by DP World were:
1.   Q1. Have each of the FSE Roles become vacant? If so, when did they become vacant?
2.   Q2. Were the prevailing circumstances at the time the FSE Roles became vacant 'normal circumstances', or 'in all normal circumstance[s]' for the purpose of clause 39.6 of the DP World Melbourne Enterprise Agreement (EA)?
3.   Q3. Did clause 39.6 of the EA require DPW to advertise for and fill any FSE Roles within a reasonable time, or did the prevailing circumstances mean that DPW did not have an obligation to advertise for and fill those FSE vacancies within a reasonable time?
4.   Q4. Did the circumstances change after any existing FSE Roles became vacant, including on the basis that there was a definite decision to the mode of operation?
5.   Q5. If the circumstances did change after any existing FSE Roles became vacant, did clause 39.6 of the EA require DPW to advertise for and fill any FSE vacancies within a reasonable time?
Shortly before the hearing, in a last effort to arrive at some consensus, I suggested to parties that it appeared necessary that the following questions be answered to arbitrate the dispute:
1.When the FSE position held by Mr Draganovic became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Daganovic’s date of departure?
2.When the FSE position held by Mr Jacobs became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Jacobs’ date of departure?
3.When Mr Warszewski notified the Respondent of his resignation date, was it obliged to fill that position as soon as it received the notice, including by advertising the vacancy?
At the commencement of the hearing, both parties agreed that the questions formulated by the Commission were “of assistance in that they neatly state the ultimate issue”[3], and “hits at the nub of what the dispute is about”[4].

Factual background

The evidence given in this proceeding by Mr Moon and Mr McMurray, neither of which was challenged, presents a largely similar picture as to the factual background of the dispute. My summary and findings in relation to this evidence follows, highlighting where necessary the slight divergence in that evidence where it emerged.

The proposal to introduce Automated Horizontal Transport at the Terminal

Mr McMurray is the Operations Manager for DP World at the Terminal. On 26 November 2024 Mr McMurray took steps to arrange a meeting to occur involving the site health and safety representatives and representatives from the MUA. As Mr McMurray advised some of the intended participants, including Mr Moon, who is the Assistant Secretary of the Victorian Branch of the Union, the meeting was to be about a workplace health and safety consultation regarding a proposed Automated Horizontal Transport project the Terminal.
In the meeting that was then held on 28 November 2024, DP World provided a presentation about the AHT project. It was described as “proposed” and provided a broad overview of what was in contemplation[5].
The particular focus of this dispute is a function which occurs at the Terminal involving the discharging and loading of container ships. Presently, while this process involves what appears to be sophisticated machinery, it is to a large degree effected by manual operators. AHT would remove manual operation from some parts of the process by means of unmanned transports, using those transports to move shipping containers off ships and to storage areas where they can be loaded on to trucks for transport.
The Agreement contains obligations that DP World consult with employees and the Union in regard to changes in production, program, organisation or technology that are likely to have a significant effect on employees[6]. It also contains a separate obligation that DP World communicate and consult with employees and health and safety representatives about matters which affect or are likely to affect the health and safety of employees[7]. The meeting conducted by DP World on 28 November 2024 was not the commencement of a consultation process about major change. Rather, this meeting commenced a workplace health and safety process consistent with s 47 of the Occupational Health and Safety Act 2004 (Vic) and cl 33 of the Agreement.
On 29 November 2024 a message was distributed to all employees at the Terminal from Mr Brett Lynch, the Vice President – Operations – Ports & Terminals for DP World, concerning the commencement of the safety consultation about the proposed AHT project. It is evident from this message, and from the presentation provided to the health and safety representatives in the meeting held on 28 November 2024, that there had been no definite decision made at that time to go ahead with the project. Several different “possible” transport options were floated. The message did flag the possibility of “some redundancies” if the project was to go ahead[8].
On 12 December 2024 Mr McMurray sent Mr Moon a letter in which he outlined a proposed process for consultation pursuant to the Agreement, should there be a definite decision to go ahead with the AHT project. The letter again confirmed DP World had not yet made a definite decision regarding whether the project would proceed or not. The letter remarked that “it is possible there may be some redundancies”[9].
Between 12 December 2024 and the early part of 2025 several discussions occurred between DP World representatives and MUA representatives about the proposed AHT project, including at meetings of the Employee Representative Committee. There were also further meetings involving the health and safety representatives. On 27 February 2025 a meeting was held involving various representatives of the parties at the MUA’s national office in Sydney. It remained the case that at this time, the DP World representatives said that it had not made a definite decision to go ahead with the AHT project[10].
On 15 April 2025 DP World advised the MUA in writing that it had made a definite decision to implement AHT at the Terminal[11]. It’s letter said that it intended to purchase “Intelligent Guided Vehicles (IGV’s) to replace straddles” and that it anticipated that (a), subject to consultation, the decision could result in up to 30 operational roles being made redundant, and (b) IGV’s would commence operation on 6 July 2026 (described as the scheduled go-live” date). It said further that:
“Up until that date, it is DP World’s intention that the site will operate as normal” [12]
On 24 April 2025 Mr McMurray provided a further presentation to the Employee Representative Committee about the decision that had been made by the board, which confirmed, among other things the possibility of “up to 30 operational redundancies” and “reduction in VSE hours” and the intended go-live date of 6 July 2026[13].
Appendix 4 of the Agreement provides for a process that will be followed in relation to a significant change involving automation. The manner in which this process will be carried out was set out in the presentation provided by Ms McMurray on 24 April 2025 and relevantly includes:
a.The commencement of “civil works” in quarter 3 of 2025.
b.The commencement of “intensive discussions” as envisaged by clause 1(f) of Appendix 4 of the Agreement, by 6 October 2025.
c.By 6 October 2025, the finalisation of the “independent panel” required to be created by clause 1(g) of Appendix 4 of the agreement, whose function is to have referred to it any outstanding points / issues arising from the discussions.
d.The anticipated delivery of the IGV’s in quarter 1 of 2026.
e.Outstanding matters to be referred to the independent panel in accordance with clause 1(i) of Appendix 4 of the Agreement, by 6 January 2026.
f.The deadline for agreement or binding decision (if necessary) from the independent panel by 6 April 2026.
g.Go live on 6 July 2026.
Before the go-live date, significant civil works and infrastructure upgrades (including high voltage upgrade work to support the operation of AHT) will be undertaken to prepare for the introduction of AHT[14].
DP World concedes that at least up until the date of the hearing of this matter there had been no change in relation to the way the work in question was being performed[15].

Vacancies

This dispute concerns specific vacancies which have arisen arising from the departure of particular employees. Each of these employees was engaged as an FSE[16].
Mr Draganovic’s employment was terminated by DP World with immediate effect on 30 September 2024. He filed an unfair dismissal claim on 21 October 2024 seeking reinstatement. This claim was resolved subject to a confidential Deed of Release executed on 3 January 2025[17]. Mr Draganovic has not worked for DP World after 30 September 2024 and his position has not been filled.
Mr Warszaewski resigned his employment with DP World on 3 December 2024 and his last day of employment was 4 December 2024[18]. His position has not been filled.
Mr Jacobs’ employment was terminated by DP World with immediate effect on 19 December 2024. He filed an unfair dismissal claim in the Commission on 9 January 2025. Mr Jacobs sought, in this application, the reinstatement of his position. The application was resolved on an in-principle basis on 3 June 2025[19]. Mr Jacobs has not worked for DP World since 19 December 2024. His position has not been filled.

Differences in the evidence

While the evidence of both parties was led unchallenged, slight differences existing in two areas I consider worth noting.
First, it appears to be asserted by MUA that, as a matter of fact, the contemplation of or introduction of changes in work process, including arising from some kind of automation, is not out of the usual course of events. In his evidence Mr Moon said the “introduction of new technology and automation by global stevedoring operators is by no means a new or contemporary matter … most container stevedoring operations in the country contain (to varying degrees of sophistication) automated process”[20] He then went on to set out various examples of such at other Terminals around the world, including in Australia[21]. Conversely, it is said that the work process in question, particularly the use of “staddle carriers” in the loading and unloading of ships, has been effectively the same for over 30 years[22]. It is said by DP World that in this regard, none of Mr Moon’s evidence “talks about DP Melbourne”[23]. It says further that the proposed change would “indelibly change the mode of operation” at the Terminal, that redundancies will arise and that this is not a normal occurrence at the Terminal[24].
Secondly, DP World asserts that it is inevitably the case that redundancies will arise as a result of the introduction of AHT[25]. This submission is based largely on Mr McMurray’s evidence, who said that the effect of AHT will include, among other things, “the redundancy of up to 30 operational roles, subject to consultation and exploring measures to mitigate and avert the impacts associated with this, including potentially through voluntary redundancies and a reduction in VSE hours”[26]. He said that at this stage DP World cannot state the number of redundancies with any certainty[27]. In various communications which were sent by DP World to its health and safety representatives, to the MUA and to its employees it was indicated, reasonably consistently from the moment consultation began, that redundancies were likely to occur.
Mr Moon, in his reply evidence, took issue with the inevitability that FSE positions will be reduced by way of redundancy. He said that, “subject to a reorganisation of the rostering arrangements, there could in fact be a requirement for DP World to engage more FSE’s than they currently do” because Appendix 4 of the agreement provides that in circumstances where automation is introduced, one measure that can be taken is a reduction in hours of work to 32 per week, for the purposes of avoiding redundancy[28]. This was a reference to item 1(d) of Appendix 4 of the Agreement which provides that, in the event significant change is introduced to the mode of operation at the Terminal, the “parties” will in the first instance seek to reach agreement regarding roles, rosters, labour arrangements and requirements, and agree that the hours of work shall be 32 hours per week unless otherwise agreed by the parties[29].
It is not difficult to resolve this slight factual divergence. It is not in contest that AHT will remove a human element, to some degree, from the process of loading and unloading container ships at the Terminal. From the moment the change appears to have been in contemplation, the possibility of redundancies was referred to by DP World in its various communications. But, to use the colloquialism, there is still yet some water to pass under the bridge. And until that happens, it remains the position that redundancies are likely, but not certain, and if they occur their number is not yet known.
Relatedly, it is also said by MUA that the filling of the vacancies might not result in “employing new people”[30]. This is because “the work force structure is that people move from “supplementary”, to VSE to FSE”[31], noting that clause 3.8 of the Agreement says the “career path is Supplementary to VSE to FSE subject to meeting earnings and performance triggers”[32]. It is on this basis that the MUA says there are three people – presently engaged at the Terminal as a VSE - who are “being denied the benefit of a permanent roster” by reason of the vacancies not having been filled. This is because in its submission, taking into account the terms of the agreement, if the vacancies were filled it would involve moving three of those existing VSE’s into FSE roles.

The MUA’s submissions

The MUA submits that when the obligation to advertise the positions arose, the circumstances at the Terminal were “normal”[33].
It says, when the positions became vacant[34]:
“(a) The Port was operating as usual, following the regular timetable. There had been no change in demand, or the manner in which work was being performed.
(b) The Proposed Automation Project was in its initial phase, and no definite decision had been made to proceed with the introduction of AHT at WST. Accordingly, the questions of whether the Project would be implemented and, if so, whether there would be a consequential impact on FSE positions were open and the answers to them speculative.
(c) By reason of the matters in (b), DP World had not yet commenced consultation with the MUA in accordance with the Agreement (which is taken to contain the model consultation clause) and, as a result, the outcome of that consultation, including any effect on DP World’s decision to proceed with the implementation of AHT was unknown.
(d) If follows from (b) and (c) that, at the date of departure for each of the vacant positions, there had been no change in workforce demand for FSE positions, and any future change was speculative.
(e) As the definite decision to proceed with the Proposal reveals, the Proposal (if it proceeds following consultation) will not be implemented until July 2026, almost two years after the vacancies arose.”

It says further that[35]:
a.Proposals for change are an ordinary part of DP World’s business. They are usual, expected and regular. They are not abnormal.
b.The Agreement prescribes a detailed framework for the introduction of change, including how safety issues will be addressed and when, and how, consultation about proposals for change is to occur.
c.Change is intrinsically linked to the stated intent of the Agreement to facilitate the ability of DP World to improve on any aspect of its operations with the goal of achieving world’s best practice.
d.The progressive introduction of automation at container terminals has been underway since the 1970s. It is not a new phenomenon. Proposals that involve automation are an expected and normal part of the types of improvements to DP World’s operations that the Agreement contemplates.
When expanding on these submissions at hearing, the MUA structured its case as follows (placing emphasis on the context within which clause 39.6 of the Agreement sits within the agreement itself).
First, it submitted that when clause 39.6 of the Agreement speaks of a position becoming “vacant”, it means when there is no incumbent – in a temporal sense – at the point at which no-one is employed in the role[36]. It took issue with the notion advanced by DP World, that a role can be said not to be “vacant” until an unfair dismissal claim in respect to it (or some other litigation) is resolved.
Building from this submission is the proposition that therefore, the “obligation” in clause 39.6 arises at the point of the vacancy (no-one being in the role), or in relation to the second circumstance contemplated by the clause – resignation - when notification occurs of the employee’s resignation date.
Secondly, acknowledging that the obligation is qualified, the MUA submits that “normal circumstances” are[37]:
“…when work is continuing in accordance with the established roster at the terminal. While the same roster is in place and the same work is required to be done in the same way as it has always been required to be done …”
In this regard, the MUA submits that circumstances are “normal” even though there are times when the business improves and there is a business downturn. It argues circumstances are also normal when there are proposals for change – said to be “an ordinary part of any business” – because “a proposed change might be adopted, or it might be rejected, or it might be adopted in a substantially different form to that which it was originally proposed”[38].
This led to a third, conclusionary point, that, when the relevant events occurred – on 30 September 2024, 3 December 2024 and 19 December 2024 circumstances were normal and thus, the obligation contained within the clause denoted by the words “the Company shall” were triggered. In the case of Mr Warszewski, who resigned on 3 December 2024, DP World was at that time obliged to advertise his position immediately (having received the notice of resignation). And in the case of Mr Draganovic and Mr Jacobs, whose employment was terminated on 30 September 2024 and 19 December 2024 respectively, DP World was obliged to advertise their roles no later than 21 days after these dates.
The point was emphasised with respect to Mr Draganovic, whose role became vacant (as contended by the MUA) on 30 September 2024, even before the consultation around the proposed form of the change commenced[39].
The MUA’s submission acknowledged the difference between circumstances when a change is proposed, and the circumstances once a definite decision has been taken to implement a change[40]. It argued that this situation is more nuanced, but that even after a definite decision to implement a significant change, circumstances can remain “normal”, depending on the nature of the change[41]. In this matter, the MUA argues that the circumstances are the same after the definite decision is made as they were before. Prior to the definite decision being made, DP World had already commenced a consultation process with employees and the Union about what was being proposed. After the definite decision was made, a nine-month consultation process is to ensue, during which much of the same uncertainty as was being grappled with in the initial consultation continues to be the subject of those consultation discussions[42]. And further, after this period – “normality” – as it is described by the MUA (the work, the roster, etc.) continues unchanged[43].

DP World’s submissions

Noting that clause 39.6.1 of the Agreement provides that when an existing FSE position becomes vacant, DP World shall, “in normal circumstances, fill such vacancy”, DP World submits that none of the roles were required to be “filled” by operation of clause 39.6.1 because[44]:
a.   In relation to two of the positions, they were not “vacant” because they were the subject of an unfair dismissal application seeking reinstatement[45]; and
b.   Further, or in the alternative, in relation to two of the positions, the circumstances were not “normal” because the positions were the subject of an unfair dismissal application seeking reinstatement; and
c.   In relation to all three positions, given the impending implementation of the AHT project, the prevailing circumstances since November 2024 are not and were not “normal”[46], noting that when Mr Draganovic’s and Mr Warszewski’s roles became vacant it had commenced consultation with the MUA in relation to the AHT project and when Mr Jacobs’ role became vacant (in the formulation of DP World, after the completion of his litigation), a definite decision to proceed with AHT had been made[47].
DP World submits that it is not obliged to advertise and fill FSE vacancies when circumstances change – it is obliged to provide the Employees and the Union with the reasons for non-replacement of existing positions and it has done so[48].
In its oral submissions, DP World’s submissions about the “outer boundaries of normal circumstances” were structured around four constructional points.
First, DP World made submissions as to what the relevant circumstances are. These contrasted with the submission of the MUA. The thrust of its submissions are that in determining whether circumstances have changed and are not normal, the Commission should not be fettered by a limited formulation of the relevant circumstances, such as the manner in which the work being performed. It submits the Commission should consider the circumstances broadly, taking into account in particular the prevailing “business conditions” under which DP World is operating and the operation of the business as a whole[49].
DP World’s second constructional point related to, in regard to the “circumstances”, the question as to what is “normal”. Its submissions were framed more so in the negative – that is – as to what is “not normal”. In this regard it was submitted that the circumstances (cast in the broad terms it contends for) are not normal when a definite decision to make a change in the mode of operation had occurred, such that the special provisions in Appendix 4 of the agreement had been triggered. It was said that those provisions “presume” redundancies[50], include intensive discussions between the parties[51], “immediately contemplates” changes in rosters and hours[52] and thus “scream we are not in normal circumstances”[53].
It also submitted that the circumstances were not normal even when the change – which later became definite – was being contemplated and consulted about. This submission was based on the proposition that it is not a “normal thing” for DP World to advise the Union that it is considering a major change to a part of the operation that has remained the same for decades, that might result in redundancies[54]. It is also based on the assertion that the scenario here is different from one in which a change is merely being “floated”[55]. It is said its approach to the MUA and its employees about the change beginning in November 2024, albeit still in contemplation, was “genuine”[56] and “materialising”[57], and its “bona fides” shown by the thoughtfulness of the presentation made to employees and the fact that the proposed change was eventually adopted[58].
Thirdly, DP World contends that as to timing, the change in normality with regard to the circumstances as it cast them can be considered with regard to four distinct periods. These are first, the period before November 2024, second, the period from when consultation commenced in November 2024 until 15 April 2025, third, the period between 15 April 2025 when the definite decision was taken and communicated until July 2026 (go live) and, fourth, after July 2026 when, all things being equal, the change will have been implemented.
DP World submits that the circumstances are “unquestionably not normal” from the third of those periods – the period from 15 April 2025[59] - after which time the decision to introduce AHT is definite (and the Appendix 4 process has commenced). But it also submits circumstances are not normal from the second of those periods – the period from 28 November 2024 - because of the abnormality associated with even proposing a change of this magnitude[60].
Fourthly, DP World submits that two of the positions are not vacant because of litigation associated with termination and reinstatement, and further (or in the alternative) that even if the positions were vacant, the nature of the litigation makes the circumstances “not normal”[61]. In this regard, DP World is referring to the positions held by Mr Draganovic and Mr Jacobs, whose employment was terminated on 30 September 2024 and 19 December 2024 respectively, each of whom filed unfair dismissal claims seeking reinstatement that were later resolved without reinstatement (Mr Draganovic on 3 January 2025 and Mr Jacobs, on an in principle basis, on 3 June 2025).
The submission that because of the unfair dismissal claims, these positions were not “vacant” was not fleshed out by DP World to any great degree. I am simply asked to conclude that while the employees were dismissed, the applications for relief they filed in the Commission means their positions were not “vacant”. As I have recorded above, this contrasts with the submissions made by the MUA about this matter.
More was made of the submission that, because of the litigation, circumstances were not “normal”. The submission is based on the ‘tension” between replacing a position, when the employer is on notice that the outgoing employee is seeking reinstatement, “particularly when that employee is represented by the union”[62]. For DP World, the tension is resolved by the final sentence of the clause in question that contains an obligation that the Company provide the Employees and the Union with the reasons for non-replacement of existing positions if circumstances change. DP World says that to resolve the competing claim of reinstatement on the one hand, with the apparent obligation to “fill” the vacancy, its obligation is discharged by it notifying employees and the Union that circumstances have changed[63].

Principles of construction

The principles to properly construe an enterprise agreement are well settled, and the parties were substantially in accord in that regard[64]. Taking into account the manner in which this matter was argued before me, the following summary of those principles provided by a Full Bench of this Commission is apt[65]:
“[43] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents “are not always drafted carefully by lawyers or professional drafters” and the framers of the agreement may not have paid attention to “legal niceties and jargon”. However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome.”

Clause 3.6 of the Agreement in context

The clause in contention should be read in context and in this regard, several other aspects of the agreement are worth noting.
First, clause 3 of the Agreement sets out its intent. It provides that it is directed towards the achievement of:
“The provision of a safe workplace, job security, constructive and cooperative Employer and Employee relationship, competitive remuneration, non-discriminatory approach, regular and genuine communication with the Employees and the Union, reasonable career paths and job satisfaction embracing modern and flexible forms of work organisation, consistent with optimum use of all the Company’s resources. Implicit is an ability for the Company and its Employees to improve on any aspect of the operation and at all times world’s best practice will be the goal of any such improvement.[66]
The concept of “career path” is given more definition at clause 3.8 of the Agreement, which provides that the “career path is Supplementary to VSE to FSE subject to meeting earnings and performance triggers”[67].
It also provides that:
“The Company aims to operate a competitive and sustainable business that can maximise permanent employees on a roster. The number of permanent positions is regularly monitored alongside prevailing business conditions. There is an annual process to review business requirements for VSE and FSE roles.” [68]
These parts of the Agreement suggest that a clause like the one in contention, that contains a qualified obligation to replace vacancies in FSE positions if they arise, should not be given an unduly confined operation. In my view, the facilitation of career path and the promotion of permanency is germane to the idea of replacing permanent vacancies when they arise.
However, they also suggest, as DP World submitted, that the Agreement is intended to strike a balance between the benefits it hopes to confer upon employees, with business requirements. Phrases like “consistent with optimum use of all the Company’s resources” and “regularly monitored alongside prevailing business conditions” are used. In this regard, it seems consistent with the intent of the Agreement that the qualification in clause 39.6 should also be allowed to do its work.
Second, clause 39.6 sits within clause 39, entitled “Workforce Review”. The Union placed reliance on the machinery within which the clause in contention sits. It submitted that the clause is intended to provide a “structured approach to workforce reviews”[69]. It took me to clause 39.3 which that there will be a “Labour Review” in July each year. The review is to assess the opportunity for promotion of VSE to FSE roles – that is – the creation of new or additional FSE roles. The assessment is based on relevant data, and a formula taking into account the extent to which during the year, VSE’s have worked shifts performing work tasks in the corresponding FSE roster, unless there is “idle time” (as defined) in the FSE roster. It also took me to additional machinery which, as well as the labour review, allows for special measures to be implemented in the case of a business downturn, such as varying rosters, the “downgrade” of positions from FSE to VSE or from VSE to supplementary (by election) or voluntary redundancies. Machinery also exists for “reversion” to allow for the reinstatement of conditions when business improves.
The Union submitted that the prescriptiveness of clause 39.6 which it contends for operates within the context of machinery which allows for responsiveness to changed business circumstances through the annual labour review and the special measures dealing with business downturn.
There is merit in this submission. Clause 39.6 of the Agreement does not operate in a vacuum. It contains a compulsion, albeit qualified, that vacancies be filled operating in the context of an ongoing, structured workforce review in a manner that balances the aspirations contained within the agreement to facilitate career path (as defined) and promote permanency of employment consistent with business needs.

Consideration.

Read as a whole, four components can be identified in the disputed clause. The first component arises from the first part of the first sentence. It requires that when an existing FSE position becomes vacant, it is filled “in a reasonable time”.
“Where an existing FSE position becomes vacant at any time, the Company shall, in normal circumstances, fill such vacancy in a reasonable time …”
The second and third components are found in the last part of the first sentence and the second sentence of the clause and give rise to obligations to advertise in respect to vacant FSE positions arising from resignation (sentence two) and in other circumstances (sentence one).
“…which means advertising no later than 21 days after the departure of the employee. Where an FSE notifies the Company of their resignation date, the Company shall, in all normal circumstance, advertise to fill that position as soon as the Company received the notice.”
In respect to these first three components of the clause, an obligation only arises in “normal circumstances”.
The fourth component – sentence three – contains a further qualification arising if circumstances change.
“If circumstances change, the Company shall provide Employees and the Union with the reasons for non-replacement of existing positions.”
I will deal firstly with when the obligations (if they exist) arise from a temporal perspective. I will then deal with what they are and then, in the context of this matter, the circumstances in which they might be extinguished. I will then return to the question as to the circumstances in which the initial obligation can arise – those being when circumstances are “normal”.

When do the obligations arise?

On any plain reading of the clause, the temporal nature of the obligation arises to “fill the vacancy” arises when an FSE position “becomes vacant at any time”. There is an associated obligation to advertise the vacancy – in the case of resignation, when DP World receives notice of resignation and in other vacancies, no later than 21 days after the departure of the employee. It is thus at this point – the point of “vacancy”- that the first enquiry into “normality” must occur.
I do not accept DP World’s submission that when the employee departs, the role may not be vacant because they may pursue litigation seeking reinstatement. This is an unworkable construction. It makes no temporal sense because litigation will invariably not commence immediately upon departure, meaning the position could be “vacant”, and then “not vacant” when litigation commences and then vacant again when the litigation resolves. The vagaries of litigation could, on this formulation, mean a position no longer occupied by a person is nevertheless said not to be “vacant” for an extended period of time – even years - while the process unfolds, appeals are dealt with and the like, throughout which time no-one is in the role. A position is “vacant” when no-one is in the role because the employee has departed.

What are the obligations?

In the case of both vacancy arising from resignation and vacancy arising for some other reason, the obligation is to fill the vacancy within a “reasonable time”. It is not necessary for the purposes of this dispute to define “reasonable time” – what is reasonable will depend on the circumstances. I note that Appendix 2 of the Agreement provides for “selection criteria” which “will be used for promotional opportunities across categories and within categories of labour”, consistent with the “career path” (referred to above)[70]. In these circumstances, where a procedure for filling vacancies is to a large extent set out by the Agreement itself, it seems likely that the filling of vacancies will ordinarily be an efficient process.

In the case of resignation, the obligation is to “advertise to fill the position” and this obligation, which arises upon receipt of notice of resignation, must be undertaken “as soon” as that notice is received. On any sensible reading of the clause, some leeway must exist however – the advertisement cannot be issued simultaneously with receipt of resignation – some reasonably brief period to allow the things necessary to be done to cause an advertisement to occur must be allowed.
In other cases of vacancy, the obligation is to advertise “no later than 21 days after the departure of the employee” which I consider arises, as the Union contends, when there is no-one in the role. However, in these cases the “leeway” to cause the advertisement to be issued is defined – it is 21 days – and no later.
It may be therefore that the obligation arising in the case of resignation is therefore more immediate than the obligation arising from vacancies of other kinds.

How are the obligations extinguished?

This is where the third sentence of the clause becomes relevant, which expressly envisages that the “existing” positions (meaning the vacant positions) are not replaced, “if circumstances change”.
On a plain reading of the clause, the “circumstances” referred to in its third sentence are the “normal circumstances” referred to in its first two sentences. Thus a further temporal enquiry is required – that is – whether the “normal circumstances” that prevailed when the obligations in sentences one and two arose (at the time of vacancy) have changed since then, prior to when the positions are filled.
Put another way, if circumstances were “normal” when Mr Warszaewski provided his notice of resignation, DP World was obliged to advertise to fill his position within a reasonable period, by advertising the role as soon as it received that notice, meaning a reasonably brief period after having received the notice, consistent with the things that are necessary to be done to cause an advertisement to be issued. And if circumstances were normal when Mr Draganovic and Mr Jacobs departed their roles, DP World was obliged to advertise to fill their roles within a reasonable period of time by advertising the roles no later than 21 days afterwards, or by 21 October 2024 and 9 January 2025 respectively. However, if between these vacancies arising, and the three roles being replaced, the circumstances that were normal “changed”, DP World was, subject the meaning of “change” (which I will deal with below) entitled not to replace the roles and obliged to notify Employees and the Union accordingly.
The initial obligations, if they arise, can be extinguished by the third sentence of the clause up until the point at which the positions are filled. After they are filled, even if “circumstances change” there can be no “non replacement” because there has already been replacement.
Several implications arise from this formulation. First, if circumstances were “normal” DP World was obliged to advertise Mr Warszaewski’s role reasonably quickly after 3 December 2024, when it received his notice of resignation. It is also unlikely that during the brief interlude between notice of resignation and advertisement, anything would have “changed” – there is no litigation with respect to Mr Warszaewski and the next change contended for, which is the definite decision to implement AHT, occurred on 15 April 2025 - well after I consider the obligation arising from clause 39.6 arose and should have been complied with, taking into account the obligation to fill the vacancy within a reasonable time. If, having been advertised, the role was then filled reasonably quickly, again, no change has been identified which would disturb the obligation within the likely timeframe.
Secondly, in the case of Mr Draganovic, the obligation arose on 30 September 2024 (if circumstances were normal), such obligation being to cause an advertisement to be issued no later than 21 days afterward, or by 21 October 2024. Two possible “changes” may then occur – one being Mr Draganovic’s unfair dismissal claim (filed on 21 October 2024), and the other, the commencement of the consultation process about the proposed change on 28 November 2024 (assuming this constitutes a “change”).
For reasons similar to those I referred to above (relating to the concept of “vacancy”), I do not consider that the commencement of litigation seeking reinstatement is a “change in circumstances” of the kind referred to in the third sentence of clause 39.6. First, this would require unworkable construction. Given the vagaries of litigation, it renders nugatory, for an indeterminate period, the obligation created by the first two sentences of the clause to fill vacancies. Second, it would diminish to too great an extent the objective that the clause seeks to achieve – to facilitate career paths including progression from VSE to FSE, because it would cause a vacant FSE position to be held open for an unspecified period of time while the litigation ensues. Third, in so far as this objective is intended to operate balanced with business needs, such a balance is still struck by the structured and regular workforce review mechanisms that seem more appropriate to deal with the circumstance in which a dismissed employee is reinstated after also having been replaced.
The consultations about AHT (particularly in relation to OHS) is said by DP World to constitute a change in normal circumstances, and began on 28 November 2024. If on 30 September 2024 there were “normal circumstances”, Mr Draganovic’s role should have been advertised by 21 October 20024. Depending on how long it would have taken for applications for the role responding to the advertisement to be processed, the position may well have been filled by 28 November 2024 – especially taking into account the obligation to fill the vacancy within a reasonable time. Indeed, I consider it reasonable that an advertisement which required to have been displayed no later than 21 October 2024 would have resulted in the role being filled before 28 November 2024, noting that the hire would have come from the existing VSE pool in accordance with the Agreement. In this scenario, there is no change in circumstances likely to have arisen before the role should have been filled to extinguish the obligation even if what commenced on 28 November 2024 does constitute a change in circumstances.
Thirdly, in the case of Mr Jacobs , the vacancy, and thus the obligation, arose after 28 November 2024. If circumstances were normal, the role should have been advertised by 9 January 2025 and therefore likely filled before 15 April 2025 – the next potential change. Mr Jacobs filed an unfair dismissal claim on 9 January 2025 but for reasons I have outlined, I do not consider this constituted a changed circumstances for the purposes of the third sentence of clause 39.6.

Does any obligation arise at all – are circumstances normal?

This leaves the question as to whether, on 30 September 2024, 3 December 2024 and 19 December 2024, circumstances were “normal”.
On a plain reading of the text of the clause, it is clear that it imposes an obligation on DP World to fill vacancies. It is also clear that this obligation is not absolute – it is qualified such that it only arises in “normal circumstances” and thus does not arise in abnormal circumstances. “Normal” must be read in context – a normality warranting vacancies to be filled or an abnormality meaning they should not be.
Thus, it cannot be any change in what is “normal” that is contemplated by the clause. The change in normality must relate to the subject matter of the clause, and, with regard to the principles of proper construction, its evident purpose and object.
DP World’s third constructional point is a useful frame of reference: that the relevant points of enquiry as to normality are prior to the commencement of consultation about the proposal (prior to 28 November 2024), between 28 November and 15 April 2025, after 15 April 2025 but before June 2026 and after 2026.
Mr Draganovic’s vacancy arises at the first of these points of enquiry – before 28 November 2024. DP World itself does not contend that circumstances at this time were other than normal. I therefore consider that on 30 September 2024 DP World was obliged to advertise this vacancy no later than 21 days hence, or by 21 October 2024. As I have said above, I also do not consider any change to that normality could have arisen before that role, having been advertised, was likely to have been filled.
Both Mr Warszaewski’s and Mr Jacobs’ vacancies arise at the second of the points of enquiry – after 28 November 2024 but before 15 April 2025. At this time, while AHT is in contemplation, but no decision has been made to implement it. Thus, were these normal circumstances?
I consider that when Mr Warszaewski’s and Mr Jacobs’ vacancies arose, circumstances were “normal” within the meaning of clause 39.6. In reaching this conclusion, I express no preference for either the Union’s or DP World’s formulation of “normality” each being, I suspect, at opposite ends of a spectrum. All of the circumstances are relevant to the formulation of normality such that abnormality can be identified. These include circumstances in which change – even significant change - is from time to time contemplated and consulted about. They also include shifting business requirements, constantly impacted as they are by innumerable factors. And they also include the circumstances in which the work is being performed and the nature of that work.
The question is whether there is an alteration to those circumstances relevant to the subject matter of the clause – the requirement to fill vacancies.
After 28 November 2024, what was happening at DP World was that it was seriously talking to the MUA, its health and safety representatives and its employees about a possible change and, if the change was implemented, likely redundancies at some point in the future.
Work was continuing as normal. There had been no change implemented such that the work previously being done by Mr Warszaewski, Mr Draganovic and Mr Jacobs was no longer required. On the evidence before me, there is also no discernible “business requirement” that warranted the suspension of the intent to achieve the provision of reasonable career paths, as defined, and to maximise permanency, simply because these conversations were occurring about a possible change (albeit significant) to the process. The change, if it was to be implemented at all, would require a definite decision to be made and then a consultation and implementation process to ensue over a period of over a year. If the “business requirement” was the undesirability of filling a vacant position when at some point in the future there may be a need to reduce workforce size due to redundancy, this prognostication is very much on, or even beyond the horizon. Meanwhile, the work performed by the people in the positions in question had not changed at all. In DP World’s own words, the site was operating as normal.

The position after 15 April 2025

I have determined that DP World was obliged to advertise the vacant positions held by Mr Warszaewski, Mr Jacobs and Draganovic by operation of clause 39.6 of the Agreement, for the reasons set out above.
I am asked by the Union to make orders to give effect to my determination in this matter.
This requires me to give consideration beyond the first two of the points of enquiry identified by DP World and referred to above, because any Order I to make is to be made in the circumstances that prevail now, not when the vacancies arose. Presently, we are in the third of the periods identified by DP World – the period between 15 April 2025 and June 2026 – after a definite decision has been made to introduce AHT. Both parties agreed that if I were to find myself in this situation, it would be necessary to have regard to what the circumstances are now, regardless of what they were at the time the vacancies should be been filled[71]. It would make no sense and indeed it is likely to be impermissible if I were to Order that the vacancies be advertised now, if circumstances have changed within the meaning of the third sentence of the clause by reason of a definite decision to implement the change having been made.
However, I consider that the reasoning that results in the conclusion there are normal circumstances after 28 November 2024 when DP World began consulting about the possibility of AHT continues to apply even after a definite decision had been made.
In reaching this view, I agree with DP World’s submission that prior to 15 April 2025, the consultations being engaged in by DP World with employees and the Union were more than just being “floated”. They were considered and genuine consultations about the proposal and appeared to permeate all of the discussions between DP World and is health and safety representatives and the MUA during the period. Thus, when the definite decision was made, not a great deal changed. Consultations, now formalised through Appendix 4 of the Agreement were to continue, and, I accept, may intensify. This process will continue for a significant period of time. During that time, the work will continue as normal. And, as I said above, I am not persuaded there is anything that has changed at this stage in terms of DP World’s business requirements that justifies the suspension of its aim to promote its preferred career path and permanent employment during the period of this lengthy consultation process.
In reaching this conclusion, I have considered DP World’s submission that the result of the application of Appendix 4 of the Agreement is that a significant consultative process is now underway, resulting in abnormality. I have also considered the evidence which shows that at some point – perhaps not until mid 2026 – redundancies are likely (albeit this is not certain). However I do not accept that at this present time this is a change in the normality which would ordinarily warrant vacancies to be filled, meaning they should not be.

The questions to be answered.

To deal with this dispute, I do not consider it necessary to answer all of the questions posed by the parties and I decline to do so, including for the reason that I consider some of the questions posed require findings of generality beyond the issues necessary to resolve the dispute. My answers are as follows.

Questions posed by MUA

Q1. Is the requirement to fill FSE vacancies in clause 39.6 of the EA contingent on "normal circumstances" and/or "in all normal circumstances"?

Yes

Q2.a. Does consultation by the Respondent with the Applicant in relation to a proposed project involving automated horizontal transport constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?

Question not answered

Q2.b. Does a "definite decision to make a change to the mode of operation (Board approval)" in accordance with clause 1(a) of Appendix 4 of the EA constitute "normal circumstances" and/or "in all normal circumstances" for the purposes of clause 39.6 of the EA?

Question not answered

Q3. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings)?

I do consider that for the reasons expressed, clause 39.6 of the EA require DP World to fill the FSE vacancies left by Mr Draganovic, Mr Warszawski, and Mr Jacobs. I do not consider this obligation is subject to the determination or settlement of Mr Jacobs’ unfair dismissal proceedings in so far as I have been made aware of the state of those proceedings.

Q4. Does clause 39.6 of the EA require DPW to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs (subject to the determination or settlement of his unfair dismissal proceedings) within a reasonable time?

I do consider that for the reasons expressed, clause 39.6 of the EA require DP World to fill the FSE vacancies left by Mr Adam Draganovic, Mr Nathan Warszawski, and Mr Wayne Jacobs. I do not consider this obligation is subject to the determination or settlement of Mr Jacobs’ unfair dismissal proceedings in so far as I have been made aware of the state of those proceedings. DP World was obliged to fill these vacancies within the reasonable period of time.

Questions posed by DP World

Q1. Have each of the FSE Roles become vacant? If so, when did they become vacant?

Yes. Mr Draganovic’s role became vacant on 30 September 2024. Mr Warszawski’s role became vacant on 3 December 2024. Mr Jacobs’ role became vacant on 19 December 2024.

Q2. Were the prevailing circumstances at the time the FSE Roles became vacant 'normal circumstances', or 'in all normal circumstance[s]' for the purpose of clause 39.6 of the DP World Melbourne Enterprise Agreement (EA)?

Yes

Q3. Did clause 39.6 of the EA require DPW to advertise for and fill any FSE Roles within a reasonable time, or did the prevailing circumstances mean that DPW did not have an obligation to advertise for and fill those FSE vacancies within a reasonable time?

Clause 39.6 of the Agreement did require DP World to fill vacancies for the FSE roles that were vacant within a reasonable time, taking into account the prevailing circumstances. In respect to Mr Warszawski, the role should have been advised reasonably quickly after DP World received his notice of resignation. In the case of Mr Draganovic and Mr Jacobs, the roles should have been advertised no later than 21 days after their departure.

Q4. Did the circumstances change after any existing FSE Roles became vacant, including on the basis that there was a definite decision to the mode of operation?

Q5. If the circumstances did change after any existing FSE Roles became vacant, did clause 39.6 of the EA require DPW to advertise for and fill any FSE vacancies within a reasonable time?

Question not answered

Questions suggested by the Commission

1. When the FSE position held by Mr Draganovic became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Daganovic’s date of departure?

Yes

When the FSE position held by Mr Jacobs became vacant, was the Respondent obliged to fill that vacancy including by advertising the vacancy no later than 21 days after Mr Jacobs’ date of departure?

Yes

When Mr Warszewski notified the Respondent of his resignation date, was it obliged to fill that position as soon as it received the notice, including by advertising the vacancy?

No. It was obliged to fill the position within a reasonable time, by advertising the vacancy upon receipt of notice of resignation, which means reasonably quickly after having received that notice.

Order

Having determined the dispute, I will issue an order appropriate for its resolution. A draft Order is attached. The parties are directed to provide any comment on the draft Order no later than 4:00PM Wednesday 3 September 2025

COMMISSIONER

Appearances:

Ms Kelly Counsel for the Applicant

Mr Denton Counsel for the Respondent

Hearing details:

2025
Melbourne
Wednesday 2 July

ATTACHMENT

PR788795

DRAFT ORDER

Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union

DP World Melbourne Ltd T/A DP World Melbourne

(C2025/1423)

COMMISSIONER REDFORD

MELBOURNE, [DATE]

Alleged dispute about matters arising under the DP World Melbourne Enterprise Agreement 2024 – obligation to fill vacancies in normal circumstances; dispute determined

A.The Commission Orders that:

1.   Within 7 days of the date of this Order, DP World is to cause to be advertised the Fixed Salary Employee positions that are vacant arising from the departure of the following employees previously engaged to work at West Swanson Terminal in West Melbourne:
a.   Mr Adam Draganovic
b.   Mr Nathan Warszawski

c. Mr Wayne Jacobs

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[1] DP World Melbourne Enterprise Agreement 2024 cl 7.1

[2] Transcript PN92

[3] Transcript PN52

[4] Transcript PN60

[5] Witness Statement of Ryan McMurray “RM-02”

[6] DP World Melbourne Enterprise Agreement 2024 cl 45

[7] DP World Melbourne Enterprise Agreement 2024 cl 33.4.2

[8] Witness Statement of Ryan McMurray “RM-03”

[9] Ibid “RM-05”

[10] Witness Statement of Aarin Moon [29]

[11] Witness Statement of Aarin Moon [30]; Witness Statement of Ryan McMurray [61]

[12] Witness Statement of Ryan McMurray [61], “RM-13”

[13] Ibid “RM-15”

[14] Witness Statement of Ryan McMurray [66]

[15] Transcript PN19

[16] Witness Statement of Ryan McMurray [67] – [73]

[17] Witness Statement of Ryan McMurray [67] – [69]

[18] Witness Statement of Ryan McMurray [70]

[19] Witness Statement of Ryan McMurray [71] – [73]

[20] Witness Statement of Aarin Moon [9]

[21] Ibid [10] – [17]

[22] Respondent’s Outline of Submissions [53]; Witness Statement of Ryan McMurray [20]

[23] Transcript PN30

[24] Respondent’s Outline of Submissions [53]; see also Transcript PN281 – PN282

[25] Respondent’s Outline of Submissions [50]

[26] Witness Statement of Ryan McMurray [25(d)]

[27] Ibid

[28] Witness Statement of Aarin Moon (Reply) [4]

[29] DP World Melbourne Enterprise Agreement 2024 Appendix 4, item 1(d)

[30] Transcript PN405

[31] Ibid

[32] DP World Melbourne Enterprise Agreement 2024 c.3.8; Transcript PN81

[33] Applicant’s Statement of Case [25]

[34] Ibid [22]

[35] Ibid [23] – [24]

[36] Transcript PN124

[37] Transcript PN146

[38] Transcript PN148 – PN150

[39] Transcript PN165

[40] Transcript PN152

[41] Ibid

[42] Transcript PN178

[43] Transcript PN182

[44] Respondent’s Outline of Submissions [6]

[45] Ibid

[46] Ibid

[47] Respondent’s Statement of Case [6], [8]

[48] Ibid [15]

[49] Transcript PN214

[50] Transcript PN257

[51] Transcript PN250

[52] Transcript PN252

[53] Transcript PN248

[54] Transcript PN281

[55] Transcript PN283

[56] Transcript PN266, PN284

[57] Transcript PN287

[58] Transcript PN284, PN286

[59] Transcript PN289

[60] Transcript PN307

[61] Transcript PN309; see also Respondent’s Outline of Submissions [6]

[62] Transcript PN311

[63] Transcript PN262; PN356

[64] Applicant’s Outline of Submissions, 19 May 2025; [25] Respondent’s Outline of Submissions, 18 June 2025 [39] – [42]

[65] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149 [43]

[66] DP World Melbourne Enterprise Agreement 2024 cl 3.8 cl 3.3

[67] DP World Melbourne Enterprise Agreement 2024 cl 3.8

[68] DP World Melbourne Enterprise Agreement 2024 cl 3.9

[69] Transcript PN93; see also DP World Melbourne Enterprise Agreement 2024 cl 7.1

[70] DP World Melbourne Enterprise Agreement 2024, Appendix 2

[71] Transcript PN56 – PN57; PN61 – PN63

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