University of Technology Sydney v National Tertiary Education Industry Union
[2025] FedCFamC2G 1647
•8 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
University of Technology Sydney v National Tertiary Education Industry Union [2025] FedCFamC2G 1647
File number(s): SYG 3177 of 2025 Judgment of: JUDGE SKAROS Date of judgment: 8 October 2025 Catchwords: PRACTICE AND PROCEDURE – Fair work – Application for an interlocutory application
seeking orders in the nature of an anti-suit injunction to restrain the respondent from taking steps to pursue its application filed with the Fair Work Commission until the final determination of the originating application –
whether applicant has made out prima facie case – whether balance of convenience favours grant of interlocutory relief – application for interlocutory relief granted.Legislation: Fair Work Act 2009 (Cth) ss 566, 567(b), 568, 587(1)(c), 589(2), 739
Federal Circuit and Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 10, 140, 141
Cases cited: Australian Workers' Union v John Holland Pty Ltd [2023] FCA 892
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652
Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595
National Tertiary Education Union v Monash University [2022] FCA 1368
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2020) 295 IR 373; [2020] FCA 682
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5
Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 3 October 2025 Place: Parramatta Counsel for the Applicant: Mr L. Howard Solicitor for the Applicant: Kingston Reid Counsel for the Respondent: Mr A. White Solicitor for the Respondent: Maurice Blackburn ORDERS
SYG 3177 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UNIVERSITY OF TECHNOLOGY SYDNEY
Applicant
AND: NATIONAL TERTIARY EDUCATION INDUSTRY UNION
Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
8 OCTOBER 2025
THE COURT ORDERS THAT:
1.Until the final determination of the originating application, or further order, the Respondent whether by its officers, employees or agents, be restrained from taking any further steps to pursue its Application under s 739 of the Fair Work Act 2009 (Cth) filed in the Fair Work Commission on 11 September 2025.
2.The Respondent notify the Fair Work Commission of order 1.
3.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS
Before the Court is an interlocutory application filed on 18 September 2025 by the applicant, the University of Technology Sydney (the University), seeking orders in the nature of an anti-suit injunction to restrain the respondent, the National Tertiary Education Industry Union (the Union), from taking steps to pursue its application filed with the Fair Work Commission (the Commission) on 11 September 2025 until the final determination of the originating application.
The originating application filed by the University in this Court on 3 September 2025 seeks the following orders:
1.A declaration that, upon the proper construction of clause 12 of the University of Technology Sydney Enterprise Agreement 2021 (the Enterprise Agreement), the Applicant’s decision on 14 August 2025 to temporarily suspend the intake of students for specific courses in August 2026 is not a matter involving the interpretation, application or operation of any provision of the Agreement, with the result that the dispute settlement procedures in clause 12 of the Agreement are not, and cannot be, engaged and have no application in relation to the Decision; and
2.A declaration that the Respondent’s letter to the Applicant dated 22 August 2022 signed by Mr Scott Rickard is not a valid and effective invocation of clause 12 of the Agreement.
Based on the evidence before the Court, the reference to ‘August 2026’ in order 1 should read ‘Autumn 2026’[1] and the date of ‘22 August 2022” should read ‘22 August 2025’.[2]
[1] Mullen Affidavit at [19] and Xiao Affidavit at [4].
[2] Rickard Affidavit, annexure SR-3.
BACKGROUND TO THE INTERLOCUTORY APPLICATION
The background to the matter is derived from the submissions and affidavit evidence relied upon by the parties in this proceeding and, unless otherwise stated, are not in dispute.
The relevant Enterprise Agreement was approved by the Commission on 17 May 2023 and commenced operation on 24 May 2023. Relevantly, clause 12 sets out the procedure for settling disputes notified by the Union or a staff member of the University about the interpretation, application or operation of any provision of the Enterprise Agreement. Clauses 51 and 52 set out the process for managing any minor or major change in the workplace, which relevantly include consultation.
The University has incurred operating deficits since 2022. To address these deficits, the University developed an Operational Sustainability Initiative (OSI). On 7 November 2024, the initial consultation paper was sent to staff and the formal consultation process commenced. The consultation process remains ongoing, though it is intended to conclude on 7 November 2025 for academic staff and in December for non-academic staff.
On 14 August 2025, the University announced that it would be temporarily suspending the enrolment of prospective student intake for about 130 courses in the Autumn 2026 term (the suspension decision).
On 22 August 2025, the Union sent a letter to the University seeking to invoke clause 12 of the Enterprise Agreement on the basis that the University had failed to consult in accordance with clauses 51 and 52 of the Enterprise Agreement in relation to the suspension decision.[3]
[3] Rickard Affidavit, annexure SR-3.
On the same day, the Union filed an application with the Commission seeking interim orders pursuant to s 589(2) of the Fair Work Act 2009 (Cth) (the FW Act) arising from a dispute between the parties under the Enterprise Agreement.[4] The Union sought the following orders:
(1) The University be restrained from taking any further step to implement the ‘Operational Sustainability Initiative’ (OSI) pending the final hearing and determination of the dispute.[5]
(2) The University withdraw the decision to temporarily suspend student intake pending the final hearing and determination of the dispute.
(3) Further or alternatively, the University pause all work associated with their decision to temporarily suspend student intake pending the final hearing and determination of the dispute.
[4] Mullen Affidavit, annexure AM-5.
[5] The substantive dispute before the Commission related to an application filed by the University with the Commission on 17 July 2025 in accordance with clause 12 of the Enterprise Agreement: Mullen Affidavit, annexure AM-5 at [10].
On 25 August 2025, the University filed an application pursuant to s 587(1)(c) of the FW Act for dismissal of the Union’s application on the basis that it had no reasonable prospects of success.
On 27 August 2025, both applications were heard concurrently before Deputy President Wright. On 29 August 2025, the Commission dismissed the Union’s application for interim orders. As such, it was not necessary for the Commission to deal with the University’s application under s 587(1)(c) of the FW Act.
On 28 August 2025, the day prior to the handing down of the decision by the Commission in respect of the application for interim orders, the University wrote to the Union disputing that the 22 August 2025 letter was a valid notification of the dispute, capable of invoking clause12 of the Enterprise Agreement, as it did not set out the basis upon which the suspension decision constituted a major or minor workplace change. It also noted that the Union’s letter appeared to be premature in circumstances where the Union was currently pursuing orders from the Commission, which if granted, would secure the ‘resolution’ being sought by the Union in its letter of 22 August 2025.[6]
[6] Rickard Affidavit, annexure SR-4.
On 29 August 2025 and 1 September 2025, the Union wrote to the University requesting it to engage in a dispute resolution meeting in accordance with the dispute resolution procedure.[7] On 3 September 2025, the University wrote to the Union declining to meet on the basis that it did not consider the suspension decision to be amendable to the dispute settling procedure in clause 12 and did not consider the letter of 22 August 2025 to be a valid invocation of clause 12 of the Agreement.
[7] Rickard Affidavit, annexures SR-5 and SR-6.
On 3 September 2025, the University filed an originating application in this Court seeking the declaratory relief set out above at paragraph two.
On 5 September 2025, the Union wrote to the University requesting they engage in a dispute resolution meeting in accordance with clause 12 of the Enterprise Agreement.[8] On 8September 2025, the University’s legal representative wrote to the Union requesting correspondence about the suspension decision, which was now the subject of legal proceedings, be between solicitors only.[9]
[8] Rickard Affidavit, annexure SR-8.
[9] Mullen Affidavit, annexure AM-9.
On 11 September 2025, the Union filed an application (Form F10) with the Commission requesting it deal with matters set out in its letter dated 22 August 2025, which it considered was a proper notification of the dispute under clause 12 of the Enterprise Agreement.[10] The relief sought by the Union included the assistance of the Commission with resolving the dispute, failing that, the Union sought the following declarations that the University failed to comply with its obligations:
·under clause 12 of the Enterprise Agreement to follow the dispute resolution procedure set out under that clause including compliance with the status quo provision at 12.3; and
·under clause 51 and 52 to consult regarding major or minor workplace change.
[10] Mullen Affidavit, AM-10.
On 18 September 2025, the University filed an interlocutory application, the subject of the present proceedings.
On 26 September 2025, orders were made by this Court programming the filing and exchange of submissions and evidence in readiness for the expedited hearing of the substantive application commencing on 8 December 2025 for two days before Judge Mansini.
Orders were also made for the filing and exchange of submissions and evidence in respect of the interlocutory application which was heard before me on 3 October 2025.
At the hearing, the University was represented by Mr L Howard of Counsel, and the Union was represented by Mr A While of Counsel. The oral submissions of the parties developed their written submissions.
EVIDENCE AND SUBMISSIONS
At the hearing, the following affidavits were read into evidence by the University:
a.Affidavit of Andrew Mullen, sworn on 18 September 2025, with annexures (Mullen Affidavit).
b.Affidavit of Alice DeBoos, sworn on 30 September 2025, with annexures (DeBoos Affidavit).
c.Affidavit of Jia Pan Xiao, sworn on 3 October 2025, with annexures (Xiao Affidavit). Although the Xiao Affidavit was filed at the hearing, being after the period specified in the orders, no objection was raised by the Union as to its admission.
The Union read the following affidavits into evidence:
a.Affidavit of Kenneth McAlpine, sworn on 2 October 2025 (the McAlpine Affidavit).
b.Affidavit of Scott Rickard, sworn on 2 October 2025, and annexures (the Rickard Affidavit).
The University’s submissions
The University contended that the relief sought by the Union, by its proceedings before the Commission, was the same as that sought by the University in this Court, though the reverse. The University contended there was no failure on their part to follow the dispute resolution procedure under clause 12 of the Enterprise Agreement or the consultation procedure in clauses 51 and 52 as those clauses were simply not engaged.
By way of background, and in reliance on matters set out in the Mullen Affidavit, the University submitted that it has been consulting with staff about the proposed change which was developed to address the University’s operating deficits. In respect of the suspension decision, it was submitted that this was a temporary suspension of enrolment into specified courses made by the University because of the legal obligations it owed students to provide correct information, which had to go to print, about what courses would be offered in 2026.
It was submitted that the University made the decision about the temporary suspension after the conciliation conference with the Union on 4 August 2025 at which the Union confirmed they would not object to the University suspending courses.[11] Counsel for the University also referred to the outcome of the conciliation recorded at [12] of the Commission’s decision at which it provided an extract of an email from the Vice Chancellor of the University to staff outlining the agreement reached at the conciliation which included the temporary suspension of new student intake for some courses before the result of the change proposal. The email also advised that the decision was ‘an operational step that will not impact staff employment’ and that ‘any decision to permanently cease course intakes and commence the process of discontinuation would only be made after consultation with staff and unions has been completed as part of the change proposal process’.[12]
[11] Mullen Affidavit, annexure AM-5 at [24].
[12] Mullen Affidavit, annexure AM-5 at [12].
It was contended that the temporary decision to suspend enrolments in specified courses was neither a major nor minor change permitting the consultation obligation under the dispute resolution clause. It was argued that the University had been consulting with staff about the changes proposed over the last 18 months and the temporary suspension decision was made to allow the University to run its operation while it continued with its consultation process. The University referred to the consultation material annexed to the Rickard Affidavit, SR-1A, the ‘Academic Change Proposal Addendum’, for the faculty of health, September 2025, which indicated the University had been consulting about the list of courses in that faculty and the rationale of the discontinuation for proposed courses and subjects, which in some cases had no or low enrolments, and the reasons for courses being merged.
It was contended that the University had the right under its statute to rescind courses at its discretion, and this is normally done, and that the dispute and consultation clauses could not be invoked to challenge every decision made by the University, particularly where the decision was temporary and there had been no change in the way such decisions were made.
It was further contended that the Union was not capable of disputing the suspension decision because it has already been disputed and resolved by the Commission. It was forcefully submitted that the Union could not reagitate the dispute in the Commission, that it was an abuse of the Commission’s process, its estoppel and ‘accord and satisfaction’, being the expectation that following the conciliation process the dispute evaporated. The University suggested that the reinvocation of the dispute with the Union by its 22 August 2025 letter was unmeritorious.
On the basis of the above, the University contended that a prima facie case exists.
In respect of the balance of convenience and interests of justice, the University contended that it favoured the grant of an injunction. The University set out eleven points in its submissions, to which I have had regard in my consideration.
The Union’s submissions
The Union contended that the University’s substantive application, on its face, was weak and would not quell the underlying controversy.
The Union noted that the issue agitated by the University concerned the limits of the procedure in clause 12 and, by extension, the Commission’s jurisdiction to deal with the dispute under s 739 of the FW Act.
It was submitted that the underlying dispute concerned whether the University was required to consult before making the suspension decision and, if so, whether it met that obligation. It was contended that on the pleadings exchanged the Court will not reach those questions and it was only the Commission that had been asked to quell the underlying dispute.
As to the University’s substantive application before the Court, the Union submitted that, despite the University’s letters to the Union denying the jurisdiction of the dispute settling procedure in clause 12, the matters set out in their statement of claim, as well as their written and oral submissions in the interlocutory application, the University’s case was no clearer. The Union contended that it was difficult to discern on what basis the University was contending that the dispute raised was not about the ‘interpretation, application or operation of any provision of this Agreement’: sub-clause 12.1 of the Enterprise Agreement.
It was submitted that the nature and extent of the dispute was clearly set out in the Union’s notification letter of 22 August 2025. The letter referred to the Vice Chancellor’s email of 14 August 2025 to staff indicating the University would be temporarily suspending student intake before the release of the academic change proposal. The letter also explained why the Union considered this conduct amounted to a breach: First, the Union considered the temporary suspension constituted either a major or minor workplace change which may have a significant effect on continuing or fixed term staff in accordance with clause 51 of Enterprise Agreement. Second, the Union considered that the University had failed to consult regarding such change in accordance with clauses 51 and 52. Third, the Union sought a resolution whereby the temporary suspension would be withdrawn and that the University properly consult in accordance with clause 52 if it wished to proceed with the suspensions.
The Union further contended that the notification letter of 22 August 2025 followed the procedure set out in clause 12.7 and it was not apparent from the material filed how that letter was somehow not a valid notification of the dispute.
In response to the University’s contention that at the conciliation conference held on 4 August 2025 the Union had not objected to certain business as usual course suspensions, it was contended that there was a dispute on the evidence about what was said and what was agreed at that conference and the Union denied consenting to the mass suspensions announced on 14 August 2025.
The Union also challenged the University’s contention about abuse of process. The Union submitted that if this contention was somehow the basis for the notification letter of 22 August 2025 being invalid, it was not a matter that had been raised on the pleadings.
The Union referred to paragraph [78] of the Commission’s decision of 29 August 2025 at which Deputy President Wright said:
… given that the reasons behind suspension of courses are likely to be relevant to any subsequent discontinuation of those courses, it is likely that UTS was required to consult with employees at the initial consultation stage about the proposal to suspend courses as part of informing any subsequent workplace change proposal under 52.12 in relation to discontinuing any of those courses. In this regard, the NTEU has raised a dispute about this matter dated 22 August 2025 however that dispute is not before me so I do not have jurisdiction to deal with it.
The Union explained that the Commission could not deal with the dispute of 22 August 2025 because the dispute had only been notified and the Commission’s jurisdiction would not accrue until the earlier steps in the dispute resolution process had been undertaken.
Having addressed the second declaration sought by the University, the Union went on to address the terms of the first declaration that the suspension decision was not a matter involving the interpretation, application or operation of any provision of the Agreement, with the result that the procedure in clause 12 was not engaged and had no application in relation to the decision.
It was submitted that while the suspension decision itself may not be a matter involving the ‘interpretation, application or operation’ of a provision of the Agreement, the relevant question for the purposes of clause 12, as indicated by sub-clause 12.1, is whether the ‘dispute’ was about the interpretation, application or operation of a provision of the Agreement. It was contended that the dispute raised by the notification letter of 22 August 2025 and brought before Commission by the Union was plainly on its face about the interpretation, application or operation of a provision of the Agreement. The Union contended that the temporary suspension decision constituted a relevant workplace change by clause 51 of the Agreement.
The Union disputed the University’s position, as developed in oral submissions, that the temporary suspension of student intake for the specified courses was not a relevant change and that it would only be so if those courses were formally discontinued. By reference to the particulars in the notification letter of 22 August 2025, it was argued that there were two related disputes that arose about the interpretation and application of a provision of the Agreement; First, there was a dispute about the characterisation of the temporary suspension and whether it was a relevant workplace change that was captured by the Agreement. Second, the related dispute about the consultation obligations which flow from that characterisation and whether they have been satisfied. It was contended that both parts of that dispute were about the ‘interpretation, application or operation’ of the change management provision of the Enterprise Agreement.
The Union referred to the definition of ‘major workplace change’ at clause 51.9 and ‘minor workplace change’ at clauses 51.6–51.8 of the Enterprise Agreement, which set out the circumstances that constitute either a major or minor workplace change, which the Union contends were relevant and raised consultation obligations under the Enterprise Agreement. It was contended that for as long as the suspension decision remained in force, with the University not accepting new enrolments in the suspended courses, there was the potential that the reduction in classes would lead to a commensurate reduction in staffing and workload which would bring the decision within the definition of a minor or major workplace change.
It was submitted that at the arbitration of the dispute there might be a legitimate and lively debate about whether the suspension did meet the definition of a major or minor workplace change, but it could not plausibly be argued that the dispute could not be about the interpretation or application of a provision of the Agreement.
The Union also raised a number of matters relevant to the Court’s consideration of the balance of convenience, to which I have had regard further below.
CONSIDERATION
It is not in dispute that this Court has the power to issue an injunction in the nature of an anti-suit injunction. Under s 140 of the Federal Circuit and Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) this Court has the power, in relation to matters to which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as it considers appropriate. Sections 567(b) and 568 of the FW Act provide for this Court to make orders, including an injunction relating to a matter arising under the FW Act.
Section 10 of the FCFCOA Act, which applies to Division 2 of this Court, provides that this Court is a court of record;[13] and is a court of law and equity. As such, an injunction in the nature of an anti-suit injunction can also be granted under the Court’s equitable jurisdiction.
[13] cf s 9(1)(a), which states that Division 1 of this Court is a ‘superior court of record’.
It is also not in dispute that this Court, being vested with the same powers of the Federal Court, has jurisdiction to grant the final relief sought by the University (the declarations) and determine the meaning and effect of terms of the Enterprise Agreement that confer rights or impose obligations: s 141 of the FCFCOA Act and ss 566 and 568 of the FW Act.[14]
[14] Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 (Teys) at [19].
Relevant principles
There is no dispute between the parties about the applicable principles. Both parties relied on Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2020) 295 IR 373 (Qantas) at [7]–[9] wherein Katzman J said:
[7] The relevant principles for granting interlocutory relief are well-established.
[8] The Court must be satisfied that the Airlines have a prima facie case, in the sense that there is a serious question to be tried that, if the evidence remains as it is, it is probable that at trial they will be entitled to relief. The Court must also be satisfied that the balance of convenience is in their favour, that is to say, the inconvenience or injury which they would be likely to suffer if interlocutory relief were refused outweighs or is outweighed by the injury which the ALAEA would suffer if interlocutory relief were granted. See, for example, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [67].
[9] Since the relief the Airlines seek is in the nature of an anti-suit injunction, they must establish that the interests of justice favour the action in this Court proceeding first: Transport Workers Union of Australia v Lee (1998) 80 IR 106 at 109 per North J, applying Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152 at 156 (Lee and Tamberlin JJ), and Teys at [27] per Bromberg J.
The Union also relied on the guiding principles in National Tertiary Education Union v Monash University [2022] FCA 1368 at [7], wherein Snaden J said:
[7] The relief that the NTEU seeks is in the nature of an anti-suit injunction. Such relief will only be granted where the interests of justice so require: … It should not normally be granted if doing so risks unjustly depriving an applicant in another proceeding of the benefits that he or she hopes thereby to realise (citations omitted).
Prima facie case
The University contended that a prima facie case exists and that it was entitled to the relief sought, being declaratory orders that the temporary suspension decision was not one which engaged the dispute settlement procedure in clause 12 of the Enterprise Agreement and that the letter of 22 August 2025 seeking to invoke clause 12 was invalid.
With respect to the first declaratory order, the University claimed there was a genuine dispute between the parties as to whether clause 12 of the Enterprise Agreement, on its proper construction, could be invoked in respect of the temporary suspension decision. They contended that the questions, being those raised in their originating application and statement of claim regarding clause 12, were the same as those raised by the Union in their application to the Commission and, on that basis, there was a serious question to be tried.
With respect to the second declaratory order sought, it was contended that the University had the statutory power to rescind courses, this was a normal established process, and that the temporary suspension decision only proceeded after the Union had agreed, on 4 August 2025 at conciliation, that they would not object to the suspension of courses. In that regard, it was contended that there was no ongoing dispute with the Union, and that the same dispute could not be reinvoked in the Commission by the Union via its letter of 22 August 2025.
While the Union has raised substantive counter arguments in response to the University’s interpretation of clause 12 of the Agreement and what was or was not agreed to at the conciliation conference, it cannot be said that the University’s case is not at least arguable or that there is no question to be tried. Accordingly, I am satisfied that a prima facie case exists.
The balance of convenience and where the interests of justice lie
Consideration of whether the interests of justice require the anti-suit injunction be granted necessarily involves the balancing of competing factors.
The University relied on Teys and the six matters considered by Bromberg J at [31]–[38] as to why the interests of justice favoured the action in the Court being determined first rather than in the Commission. These factors were adopted and applied by Katzman J in Qantas and Collier J in UGL Rail Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Pluming and Allied Services Union [2024] FCA 860 (UGL), and in both cases their Honours concluded that the action in the Court (rather than in the Commission) should be determined first.
It is useful to extract the pertinent matters considered by Bromberg J in Teys:
[31] First, this Court’s specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act. Conversely, that is not the traditional function of the FWC. True it is that the FWC has been given some ability to address rights and liabilities through its capacity as a private arbitrator, but that is not its specialist function. I recognise that the FWC does deal with the interpretation of enterprise agreements and their consistency with provisions of the Act. But, that is different to the final determination of the legal rights of the parties under the FW Act, that being the specialist function of this Court.
Second, and relatedly, the FWC is an inferior tribunal. It will be assisted by the reasons for judgment of superior courts of record such as this Court.
[32] Third, this dispute is not without difficulty. It raises complex legal issues concerning the interpretation of the FW Act scheme for the making of enterprise agreements and their variation…where complicated legal issues arise, consideration ought be given to their resolution by this Court rather than by the FWC.
[33] Fourth, …the issues raised are of general importance.
[36] Fifth, and most importantly, if the substantive question continues to determination in private arbitration and in this Court, there is the potential for the answers to be inconsistent.… There is no appeal to the Full Bench of the FWC otherwise than with permission. There is no statutory appeal to this Court or to any other. …Constitutional writs would not go to the Commission in its capacity as a private arbitrator.
[38] The sixth consideration is the potential for delay in the FWC proceeding. … if this Court can move quickly in determination of the substantive question, the delay would not be great. I expect that this Court will be able to move quickly. This is a question of construction; the factual issues that arise are limited.
There are, as submitted by the parties, similarities and differences between the circumstances of this case and those in Teys, Qantas and UGL.
I now turn to consider the matters raised by the parties as to what the interests of justice favour.
As submitted by the University, a trial in respect of the substantive application has already been programmed by this Court to commence on 8 December 2025. Programming orders have also been made by the Court for the filing and serving of material. The University submitted that it had already commenced preparation for the trial on this basis and that, by contrast, nothing of substance has occurred in relation to the proceeding before the Commission.
The University also submitted that, in circumstances where the Court has programmed an expedited trial concerning the same subject matter raised by the Union before the Commission, there would be a duplication of resources for the parties. It was also submitted there would be a duplication of public resources, having regard to the increased workload of the Commission and the interests of other litigants before the Commission.[15]
[15] DeBoos Affidavit, annexure ADB-2.
The Union accepted that there was no firm evidence as to when the Commission would be able to deal with their dispute application, but they nevertheless noted that, conventionally, it can be accepted that the Commission could deal with disputes more quickly than a Court.[16] The Union has also submitted that, in their experience, the Commission would be able to deal with the dispute relatively quickly if requested.[17]
[16] Qantas at [59].
[17] Rickard Affidavit and McAlpine Affidavit.
The Union raised concerns that if they had to wait for the resolution of the Court proceeding, this would undermine the utility of the proceeding before the Commission. Concerns were raised about when the Court would deliver judgment in the matter, by which time it may be too late for the suspension decision to be reversed. Key dates included the period by which consultation on the University’s change proposal ended and the closure of new course enrolments for 2026. The Union was concerned that if the lawfulness of the University’s decision was not resolved before late October or early November 2025, that it would be too late to undo the consequences. The Union was concerned that the University, following these dates, would permanently discontinue the suspended courses which could lead to significant job losses, estimated to be at least 134.1 permanent full-time equivalent (FTE) positions.
In responding to the Union’s concerns about delay, the University has put evidence before the Court which indicated that students would receive their ATAR results on 18 December 2025 and could change their course preferences through the University Admission Centre (UAC) up until early February 2026.[18] On Mr Xiao’s evidence, if the University reversed the temporary suspension of student intake, students would still be able to apply for admission into the courses until February 2026 and enrol in subjects associated with those courses up until the census date of 19 March 2026.[19]
[18] Xiao Affidavit at [5].
[19] Xiao Affidavit at [6]. I note the errors in the dates of the Xiao Affidavit: February 2025 should read ‘February 2026’ and ‘19 March 2025’ should read ‘19 March 2026’.
At the hearing I asked the parties about what was likely to occur at the directions hearing before the Commission on 7 October 2025 at 2:00pm. The Union indicated they would be requesting for the matter to be expedited and the matter could be timetabled. The University indicated they would object to the proceeding being expedited on the basis of the proceeding before Court and a trial date having been scheduled.
Today, my chambers received an email from the Union’s solicitors advising that at the directions hearing before the Commission, on 7 October 2025, Deputy President Wright indicated that if an interlocutory injunction was not granted by the Court, the matter would be listed for a conciliation conference and further case management on 10 October 2025.
The above matters raise issues of practicality, efficiency and expense, all of which predominantly favour the proceeding in this Court being determined first.
First, the Court has already accommodated an expedited trial in respect of the substantive application which is due to commence in two months. The substantive application has been docketed to Judge Mansini, who has specialist knowledge in this area of law. Subject to any unforeseen circumstances, there is no reason why judgment in the matter could not be delivered within a short period after conclusion of the hearing.
If the Union is successful before the Court, they could request the Commission to resume the dispute proceeding before it on an expedited basis which, on the evidence before me,[20] could occur expeditiously. Working on the basis that the decision to temporarily suspend student intake for Autumn 2026 could be reversed up until early February 2026, it would not necessarily be the case, as feared by the Union, that the Court proceeding being determined first would undermine the utility of the proceeding before the Commission.
[20] Rickard and McAlpine Affidavits.
The Union’s concern that the temporary suspension of student intake into specified courses could lead to the University permanently discontinuing those courses, the consequences of which could lead to significant job losses, is a legitimate one. However, it is not entirely clear how this is relevant to the substantive proceeding before this Court which concern the temporary suspension decision. Any decision by the University to permanently discontinue courses will no doubt be the subject of further consultation and/or dispute resolution between the parties.
Running parallel proceedings at the Commission on the same issues when the matter has already been programmed for trial and exchange of material is not, in my view, the best use of resources. This is particularly so in circumstances where the University has indicated it would object to any expedition of the proceedings before the Commission. The time, effort and expense that would be incurred by the parties in the proceeding before the Commission and the limited resources of the Commission being taken up to deal with the dispute, which is still in its preliminary stages, favour the proceeding in this Court being determined first.
Another important consideration is, if the substantive issues proceed to determination by private arbitration before the Commission as well as in this Court, there is the potential for the outcomes to be inconsistent. Although this is entirely speculative, this situation could be avoided, as would other difficulties, if the proceeding in this Court is determined first.
A further and related issue, which was noted in Teys at [36], is that an appeal of the Commission’s decision to the Full Bench of the Commission could only be pursued if permission was granted, and there is no right of appeal to a court and constitutional writs would not be available. The University’s ability to challenge the Commission’s decision would be limited to judicial review on the basis that the Commission had no authority to determine the dispute: MaerskCrewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595 at [24]–[34].
This Court has the authority to determine the jurisdictional and construction questions that arise in the substantive application. While it is not a ‘superior court of record’,[21] it is nevertheless a court of record and a court of law and equity[22] and has been vested with the same jurisdiction as the Federal Court under the FW Act: Teys at [31]–[32]. This Court can issue writs and make orders which bind the Commission, subject to any appeal to the Federal Court.
[21] cf FCFCOA Act s 9(1)(a), which applies to Division 1 of this Court.
[22] FCFCOA Act s 10.
The Union contended that the Court proceeding would not, on the pleadings exchanged, quell the underlying dispute between the parties. I acknowledge that the University’s case developed somewhat in its written and oral submissions, however, it cannot be said that the Court’s determination would not at least resolve the issue about the validity of the 22 August 2025 notification letter, which would have implications on the Commission’s jurisdiction to deal with the dispute under s 739 of the Act. If it is found that the Commission does have jurisdiction to deal with the dispute, the Commission will also be assisted by the Court’s reasons as to the proper construction of clause 12 in the context of the temporary suspension decision made by the University.[23] This will be of assistance to the Commission when considering whether the University had breached its obligations under the Agreement. This consideration favours the proceeding in this Court being determined first.
[23] Teys at [31].
The Union contended that the University’s substantive application did not cast sufficient doubt over the jurisdiction of the Commission to justify the Court interfering with the ordinary course, that being adherence with the dispute settling procedure in clause 12. It was submitted that the parties entered into an agreement which set out the process to be followed when a dispute arises and that it was in the interests of justice to hold parties, especially industrial parties, to their bargain.[24]
[24] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [36] per Logan J.
I accept that the University had entered into an agreement which required it to adhere with the procedure in clause 12 when a dispute arises. However, as held in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [76:
An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party's rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated. The jurisdiction of the courts is not and cannot be ousted by a private agreement.
While it can be accepted that the public interest is best served by parties, especially industrial parties, being held to their bargain, this could not oust the jurisdiction of the Court in circumstances where legitimate issues arise on matters of interpretation or jurisdiction.
The University submitted that the relief sought by the Union from the Commission in the form of a ‘declaration that the UTS has failed to comply with its obligations’ was misconceived as the Commission has no power to make declarations of right. While this point is noted, it need not be overstated considering the issues before the Commission would have likely evolved, and the relief sought reformulated, if the University had participated in the dispute resolution process.[25]
[25] Australian Workers' Union v John Holland Pty Ltd [2023] FCA 892 at [31] per Jackman J.
I accept, as submitted by the Union, that the questions before the Federal Court in Qantas and Teys involved substantive issues that were before the Commission which were of general importance, with their resolution potentially having wider implications beyond the parties. While the questions that arise in the present matter are unlikely to have wider application, nor involve particularly complex legal issues, they nevertheless involve a justiciable controversy between the parties about the interpretation of a clause of the Enterprise Agreement in the context of a decision made by the University about the temporary suspension of student intake. The University wants the matter judicially resolved on the basis that a dispute about the same issue had already been before the Commission and resolved, and there was no basis for the same dispute to be reagitated before the Commission. This consideration weighs in favour of the proceeding in this Court being determined first.
The Union contended that the University’s substantive application was weak and that it was difficult to discern from the material it had filed to date how a dispute raised by the Union about the temporary suspension decision was not ‘a dispute about the interpretation, application or operation of any provision of the Agreement’, having regard to the definition of minor or major workplace change at clauses 51 and 52 of the Agreement. There is some merit to this contention.
As to the validity or otherwise of the notification letter of 22 August 2025, I accept that there was nothing in the statement of claim about what was said or agreed to at the conciliation conference of 4 August 2025 which somehow affected the validity of that letter.
The matters raised by the Union, however, do not establish that there is no genuine controversy between the parties or that the University’s claims are not capable of legal argument. Whether the claims succeed will depend on the evidence that is adduced before the Court in the substantive proceeding.
The issues that arise in the substantive application, on which the declaratory relief is sought, do not involve questions of pure construction. Nevertheless, this Court is being asked to interpret a clause in the Enterprise Agreement in the context of a decision made by the University, as well as an issue going to jurisdiction. The questions for determination involve mixed questions of law and fact, which this Court can proficiently resolve according to law.
I accept that it was the Union who initiated the dispute resolution process under the Agreement by its letter dated 22 August 2025, however, of the proceedings in this Court and the Commission, it was the University’s originating application to the Court that commenced first. This matter of itself is not significant, though I have taken it into account as part of the many competing matters.
Conclusion
Having considered the relevant matters, I am satisfied that, on balance, the interests of justice favour determination of the proceeding in this Court first. The University has made out its case of interlocutory relief.
I will make the first two orders sought by the University in their interlocutory application. As for the third and fourth orders, which relate to costs, I note that costs are generally not awarded as a matter of course in fair work cases: s 570 of the FW Act. At the hearing, counsel for the University instead sought an order that costs be reserved. I will so order.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 8 October 2025
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