Application for variation of 19 Qube Ports Pty Ltd enterprise agreements - ambiguity and uncertainty established - ascertainment of common intention - significance of common intention in relation to s.217 - significance of pre-existing arbitrated outcome under s.739 - discretion exercised - variation granted

[1] This decision concerns the Construction, Forestry and Maritime Employees Union's application under s 217 of the Fair Work Act 2009 (Cth) to vary the 19 Enterprise Agreements listed at Annexure A. The Agreements cover and apply to the CFMEU, Qube Ports Pty Ltd and Qube's employees at ports across the country.

[2] This application is the latest development in a long running industrial dispute between the CFMEU and Qube about how the remuneration and work of employees covered by the Agreements is affected by certain types of absences, such as protected industrial action. The Agreements have an 'Annualised Accumulated Hours' Requirement, whereby employees have a minimum number of total work hours for a year, and their salary is calculated and paid based on that minimum number of work hours. The AAH Requirement in the Agreements is adjusted on a pro rata basis for any approved leave of absence without pay. The disagreement over what "approved leave of absence without pay" means is the heart of the dispute and various litigation between the parties.

[3] In a nutshell, the CFMEU's position is that where an employee takes PIA in the form of work stoppages, that time should be deducted from the employee's AAH Requirement. Qube's position is that time spent engaging in PIA should not be deducted. This has ramifications for how much employees are to work and how they are to be paid for the rest of the year if they engage in PIA.

[4] In 2022, the dispute over the AAH Requirement in the Qube Port Pty Ltd Port of Fremantle Enterprise Agreement 2020 was arbitrated by Deputy President Binet pursuant to s 739 of the Act. In her decision in CFMMEU v Qube Port Pty Ltd T/A Qube Port and Bulk (Fremantle Decision),[1] the Deputy President agreed with the CFMEU's interpretation that time spent engaging in PIA should be deducted from an employee's AAH Requirement.

[5] The matter was then heard by a Full Bench in Qube Ports Pty Ltd v CFMMEU [2023] FWCFB 66 (Fremantle FB Decision). The Full Bench agreed with Deputy President Binet's conclusion, though for different reasons.

[6] Qube subsequently applied to the Federal Court for a declaration on the construction of the clauses regarding the AAH Requirement in five of the Agreements (though notably, not the Port of Fremantle Agreement).

[7] The CFMEU then made this application under s 217 to vary the clauses in the Agreements that relate to the AAH Requirement, specifically clauses 9.1.1(b) and 9.2.1(c) (Relevant Clauses). The application is made on the basis that there is an ambiguity or uncertainty and the CFMEU seeks that the variation take effect from 29 June 2024.

[8] The effect of the variation would be to essentially reflect the CFMEU's interpretation of the relevant AAH clauses, in line with the Fremantle FB Decision. However, where the dispute regarding the Port of Fremantle Agreement only dealt with the issue of how PIA is deducted from the AAH Requirement, the CFMEU seeks a variation that also recognises employer PIA in the form of lockouts as well as stand downs without pay by Qube.

[9] Qube does not disagree that there is an ambiguity or uncertainty in the Relevant Clauses but objects to the application to vary the Agreements.

[10] I heard the matter on 19 March 2025. I granted permission for both parties to be legally represented. Following the Full Court of the Federal Court's decision in Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union,[2] handed down on 2 June 2025, I invited the parties to make further submissions.

[11] Having considered the submissions and evidence of the parties, I am satisfied that except for the Port of Fremantle Agreement, there is an ambiguity or uncertainty in all the Agreements and that it is appropriate to exercise my discretion to amend the Agreements in the manner sought by the CFMEU.

[12] The detailed reasons for my decision follow.

[13] The parties filed a Statement of Agreed Facts, which is largely reproduced below.

[14] The Agreements nominally expired on 30 June 2024 (except for the Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2020, which has a nominal expiry date of 30 June 2020).[3]

[15] The Agreements are composed of two parts - Part A and Part B. Part A consists of common terms which apply to national agreements resulting from national negotiations. Part B is composed of negotiated agreements specific to local port sites.[4]

2.1 The 'annualised accumulated hours' requirement

[16] Qube engages employees in various employment categories as set out in the Agreements. These include:

• Full-time Salary Employees; and

• Provisional Full-time Salary Employees.

[17] FSEs and PFSEs are paid an annual salary, which is paid fortnightly. The fortnightly pay of an FSE or PFSE does not reflect the number of hours that the employee actually works in the relevant fortnight.

[18] Over the course of a full financial year, an FSE or PFSE is ordinarily expected to work a minimum number of total hours. The Agreements refer to these total hours as Annualised Accumulated Hours.

[19] Clause 9.1.1 of Part A of each of the Agreements sets out the terms of the engagement of an FSE and relevantly provides:

a. An FSE has an AAH requirement of 1820 hours, inclusive of all forms of approved leave.

b. FSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay.

[20] Clause 9.2.1 of Part A of each of the Agreements sets out the terms of the engagement of a PFSE and relevant provides:

a. An PFSE has an AAH requirement of 1820 hours, inclusive of all forms of approved leave.

c. PFSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay.

[21] As per the above, FSEs and PFSEs are ordinarily required to complete 1820 hours of work each year, inclusive of all forms of approved leave (the AAH Requirement).

[22] The salary for FSEs and PFSEs is calculated on the basis an FSE/PFSE will, over the course of a financial year, meet their AAH Requirement by working (or taking approved leave for) an average of 35 hours per week for 52 weeks.

[23] Specifically, under each of the Agreements:

• (a) Qube is responsible for managing the allocation of work to ensure that FSEs/PFSEs meet their AAH Requirement (Part A, clause 10.2(a));

• (b) any hours worked by an FSE/PFSE after their achievement of the AAH Requirement are considered "overtime" for the purposes of the Agreements. As a result, an FSE/PFSE who has met their AAH Requirement is "free to accept or decline an offer to work" (Part A, clause 30.1); and

• (c) Part A, clause 30.5 provides that, in addition to their annual 'salary':

"Permanent Employees who work hours in excess of their AAH Requirement will be paid for such hours as follows:

1. Double the rate set out at clause 11 in Part A of the Agreements for hours worked between Monday and Saturday.

2. Double time and one half of the rate set out at clause 11 in Part A of the Agreements for hours worked on Sunday".

[24] Part B of each Agreement sets out the annual salary payable to FSEs and PFSEs.

[25] Over the course of June 2024 to November 2024, the CFMEU applied for protected action ballot orders in relation to proposed agreements for the Port of Melbourne; Port of Port Kembla; Port of Brisbane; Port of Darwin; Port of Adelaide; Port of Bunbury; Port of Dampier; Port of Fremantle; Port of Geraldton; and Port of Port Hedland.[5] The results for the listed ballots were all declared by December 2024.

[26] Since the results of the ballots were declared, notices of protected industrial action have been provided in each of the ports advising of the intention to take PIA consisting of various forms of partial work bans and stoppages of work.[6]

[27] FSEs and PFSEs who have taken PIA have occasionally had their fortnightly pay reduced in accordance with (or purportedly in accordance with) s 470 of the Act.[7]

[28] Where Qube reduces an FSEs/PFSEs fortnightly pay, it does so as follows:

• Qube calculates the relevant employee's hourly rate by dividing their annual 'salary' by 1820.[8]

• The resulting figure is then deducted from the relevant fortnightly pay, for each hour of PIA taken by the employee which involves a work stoppage (Relevant PIA).[9]

• Where an FSE/PFSE has engaged in an hour of Relevant PIA (and has had their pay reduced accordingly), Qube does not count that hour towards the employee's fulfilment of the AAH Requirement.[10]

• For example, in a given fortnight, if an employee completes 27 hours of work plus eight hours of Relevant PIA, then Qube counts the 27 hours of work - rather than 35 - towards the employee's total AAH for the year.[11]

2.3 Decision of the Commission under s 739 of the Act

[29] Following a period of protracted industrial disputation at the Port of Fremantle, the CFMEU applied to the Commission pursuant to s 739 of the Act to resolve a dispute over the application of clauses 9.1.1 and 9.2.1 of Part A of the Port of Fremantle Agreement.

[30] The application was determined by Deputy President Binet, who handed down her decision in CFMMEU v Qube Port Pty Ltd T/A Qube Port and Bulk[12] on 21 October 2022.

[31] The Deputy President determined that[13]:

'When the words of the relevant clauses are read as a whole and in context, understood in the light of the customs and working conditions of the stevedoring industry I am satisfied those words require that the number of 'ordinary' hours FSEs and PFSEs are required to work when their annualised salary is withheld because they are engaging in PIA must be reduced on a pro rata basis.'

[32] Qube appealed the Deputy President's decision. On 28 March 2023, the Full Bench dismissed Qube's appeal and upheld the Deputy President's decision, though the Full Bench reached the same finding through a different path.[14]

[33] The Full Bench did not find that absence due to PIA was "approved leave". However, the Full Bench found that in the circumstances that where an employee engaged in PIA, Qube was required to reduce each employee's AAH Requirement by the equivalent amount. The Full Bench made the following observations:

[49] In this context there are three variables that are inextricably linked: the number of hours over the year the employee is available to work, the number of hours over the year the employee actually works, and the amount the employee is paid over the year. The links between the variables are in essence the wage-work bargain referred to by Qube, and also the "relationship" emphasised by the CFMMEU in its case. The parties do not agree on what the precise links are, but both parties recognised that there is a link.

[50] The Accumulated Annual Hours concept in the Agreement contains two slightly different elements: it is referred to in the Agreement as both a target and a means of measuring whether the target has been met. The AAH target is another way of referencing the number of hours that an employee must be available to work in a year. For example a reference to a reduction in the AAH target is another way of referring to a reduction in the number of hours an employee must be available to work.

[56] However, the Agreement's approach to the establishment and adjustment of the AAH target informs the proper approach to be adopted to clauses 9.1.1b. and 9.2.1c, which lies at the heart of the present controversy.

[57] The parties presented their case below, and the Deputy President decided the case, largely on the assumption that only approved leave or approved absences of some kind can reduce the AAH. The contest between the parties, and the findings of the Deputy President, focused on whether a period of protected industrial action is either approved leave or an approved leave of absence without pay. We observe that these two notions are not necessarily two sides of the same concept. Further, the absence of any express provisions in clause 8.9 does not mean that no reduction in the AAH target may occur where otherwise authorised or required by the Agreement.

[34] The Full Bench ultimately found as below:

[71] Qube cannot, in our view, reduce the salary payments unless Qube also reduces the AAH target (and consequentially the work performed by the employee over the year). Reducing the salary without reducing the AAH would be inconsistent with the express terms of the Agreement understood as a whole and would be inconsistent with the wages-work bargain that underpins the Agreement. It would also permit an absurdity (such as the situation where an employee took protected industrial action for 6 months and would still be required to be available to work 1820 hours in that year for 6 months pay). The alternative approach we prefer is open on the words of the Agreement and avoids the inconvenience and injustice that would otherwise arise (per Kucks at 184).

[72] As the CFMMEU submitted, the terms of the Agreement reveal and maintain a relationship between the salary paid to an employee over the year and the amount of work performed by the employee.

[73] In fact, it is important to recognise that no term of the Agreement severs or even alters the direct relationship between the "worked hours", as defined in the Agreement to include hours worked plus paid leave and any other paid arrangements - see [41] above, and the salary payments made.

[74] Reducing the salary without reducing the AAH would sever the direct relationship between worked hours and salary payments. To so do would not just be different to the other provisions of the Agreement, it would be inconsistent with those other provision. By contrast the surrounding provisions allow for adjustments to the three variables considered above (AAH target, hours worked and salary paid) in order to maintain the direct relationship between worked hours and salary payments.

[75] Moreover, in order to maintain the wages-work bargain, Qube must adjust the AAH if it adjusts the salary paid.

[76] Correspondingly, if Qube insists after an absence that an employee still be available and actually work the same number of hours over the whole the year, then Qube cannot reduce the employee's salary because of the same absence.

[77] Simply put, if an employee is absent Qube cannot reduce the employee's pay and also require the employee to make up the time without additional payment. In this regard the Deputy President was correct in her analysis of the outworking of Qube's interpretation:

"[58] As a consequence of the Qube's refusal to adjust the AAH Target in light of the withholding of salary as a result of the PIA:

a. FSE's and PFSEs either didn't reach their AAH Target or did so later in the year as compared to a year when no PIA occurred, as a result they performed none or more limited hours of work at an overtime rate as compared to other years; and

b. FSEs and PFSEs lost pay for not working during the PIA but were then required to work those hours later in effect for no pay."

[35] The clauses considered by Deputy President Binet and the Full Bench are in identical terms to those contained in the Agreements the subject of this matter.

[36] On 8 November 2024, Qube applied to the Federal Court of Australia for a declaration that, on the proper construction of clauses 9.1.1(b) and 9.2.1(c) of Part A of each of the following enterprise agreements, a period during which an FSE or PFSE engages in protected industrial action within the meaning of s 408 of the Act, is not a period during which that employee is on or engaged in "any approved leave of absence without pay":

• Qube Ports Pty Ltd Port of Melbourne Enterprise Agreement 2020;

• Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2021;

• Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2020;

• Qube Ports Pty Ltd Port of Brisbane Enterprise Agreement 2020; and

• Qube Ports Pty Ltd Port of Darwin Enterprise Agreement 2020.

[37] The parties did not seek to cross-examine each other's witnesses. Both Mr Smith and Mr Ortiz gave further evidence regarding the history of the AAH Requirement and how the parties have approached it.

[38] The CFMEU relies on the evidence of Mr Warren Smith, Divisional Deputy National Secretary of the Maritime Union of Australia Division of the CFMEU. Mr Smith was appointed to this position on 25 January 2021. Prior to this, Mr Smith held a variety of positions in the then Maritime Union of Australia going back to 2003.[15] Before he became a union official, Mr Smith worked as a stevedore for Conaust and then P&O Ports Limited from 1990. This employer would eventually become Qube through various corporate mergers and restructures.[1]

[39] Mr Smith's evidence is that the concept of AAH in bulk and general stevedoring first arose in 1998 because of the 1998 Patrick Stevedores waterfront lockout (Patrick Dispute), and developed as follows:[16]

• (a) The Patricks Terminals Enterprise Agreement 1998 (1998 Patricks Agreement), provided for a roster working 240 hours over a 6-week period. The purpose of this arrangement was to remove idle time from the stevedoring industry. The 1998 Patricks Agreement delivered the required outcome as idle time has now been extinguished completely in Bulk and General stevedoring operations.

• (b) In 1999, an in-principle agreement between the MUA National Office and P&O nationally was reached to introduce AAH into P&O's bulk and general operations.

• (c) P&O was acquired by DP World Australia Limited in 2007, leading them to divest from bulk and general stevedoring operations. In 2006, P&O Automotive and General Stevedoring Pty Ltd, a predecessor company of Qube, became the primary company negotiating stevedoring agreements with the MUA.

• (d) The implementation and outcomes across P&O's operations were varied from 1999 until about 2012 when agreements commenced under the entity name of Qube Ports Pty Ltd.

• (e) AAH was implemented across all P&O and POAGS operations. In most ports in Australia, this was achieved through a requirement for stevedores to work 1820 hours annually, which equates to 52 weeks x 35 hours averaged over a defined 12-month period, inclusive of annual leave.

• (f) In two ports - Sydney and Brisbane - the AAH concept was rejected and varied. In both the Sydney and Brisbane agreements the AAH target hours were initially set at 1365 Annual Hours. In 2003 an additional 70 hours were added to this amount (making for a total of 1435 hours), taking into account sick/personal leave.

• (g) Other ports under P&O and POAGS coverage operated on the 1820 AAH from its inception in 1999 (or thereabouts, depending on local implementation).

[40] Mr Smith also gave evidence on how the AAH and salaries have historically been calculated as follows: [17]

• (a) The salaries in Bulk and General stevedoring have been historically based on generalities of historic vessel calls and berth windows. This also includes a 'consolidated allowance' which rolled up job allowances into the salary.

• (b) The normal 8-hour day/three shift type rostering normally seen in stevedoring work arrangements does not apply in Bulk and General stevedoring. This is due to factors such as the large range of start times (up to 20 a day) and varying shift lengths. AAH was introduced along with salary arrangements.

• (c) Before the introduction of annualised salaries, work was remunerated by payment for specific shifts and their applicable premiums or overtime factors applied to the base rate of pay. This was referred to as wages and overtime.

• (d) The methodology used to formulate salaries for the first time is as follows: average the amount of work undertaken across various shifts and weekends to arrive at a general average salary based on those circumstances.

• (e) This calculation methodology has not changed since it was originally formulated, except for wages increases arising from enterprise bargaining.

• (f) The same situation applies to composite rates for supplementary (casual) employees, Guaranteed Wage Earners, Variable Salaried Employees and associated provisional positions.

• (g) These salary arrangements were determined through discussions between the company and the MUA's National Office at the time.

• (h) The figure of 1820 AAHs was calculated from the base 35 hour working week in the relevant stevedoring Award. This figure has historically been different in the Sydney and Brisbane ports. There is no longer a Sydney operation. There are still six workers in Brisbane who are 'grandfathered' on the 1435 AAH arrangements today.

[41] Shortly before the hearing of this matter, the CFMEU sought permission to file a supplementary witness statement for Mr Smith. I granted this request and gave Qube the opportunity to either adjourn the hearing or file further evidence. Qube did not take up either option. Qube also did not seek to cross-examine Mr Smith on his supplementary witness statement.[18]

[42] Mr Smith's supplementary witness statement relevantly provides as follows:

(a) He has represented the industrial interests of MUA/CFMEU members employed by Qube since August 2009 and was involved in the negotiations for Qube's enterprise agreements in 2012, 2016, 2020 and 2024.[19]

(b) Whilst the current iteration of clauses 9.1.1 and 9.2.1 did not exist in the P&O and General Stevedoring agreements made in and about 2008 and 2009, the broad concept of AAH did exist in those agreements.

(c) Based on Mr Smith's employment with P&O and as a union branch Official the practice of P&O was to adjust the hours for an employee's accumulated hours when pay was deducted for the taking of industrial action. This practice applied to any protected action that may have been taken in support of the making of the 2011 Qube agreements in 2012 as the employees were still covered by the previous P&O agreements.[20]

(d) In 2016, the CFMEU and Qube agreed to the making of new agreements with little or no industrial action. This meant that the issue of how PIA interacted with AAH did not arise.[21]

(e) In 2020, the only work stoppages that occurred during bargaining for new enterprise agreements took place in Fremantle. The PIA and how it interacted with AAH was resolved by orders from the Commission requiring the adjustment of employees' AAH Requirement when salaries were reduced by the taking of PIA.[22]

[43] Qube relies on the evidence of Mr Daniel Ortiz, General Manager of Industrial Relations for Qube. Mr Ortiz has held this role since 2022.

[44] Mr Ortiz's evidence regarding the AAH and how Qube has dealt with it is as follows:[23]

• (a) As per clause 9.3.1 of the Agreements, the yearly AAH Requirement 'will stand alone'. This means that at the end of each financial year, an employee's number of hours accumulated towards meeting the AAH Requirement resets to zero. Where an employee does not meet the AAH Requirement, the shortfall is rolled over into the next financial year.

• (b) Salaries are calculated on the basis that an FSE/PFSE will meet their AAH Requirement by working (or taking approved leave for) an average of 35 hours per week for 52 weeks. This salary is paid in equal fortnightly instalments, regardless of whether the AAH Requirement has been met, and irrespective of the employee's progress towards achievement of that requirement at any given point.

• (c) An employee's progress towards (or achievement of) their AAH Requirement determines their terms and conditions of employment as they relate to the allocation of work; acceptance or rejection of work; and payment of overtime.

• (d) The AAH Requirement existed in predecessor enterprise agreements before Qube acquired the relevant business from POAGS. However, the current wording of clauses 9.1 and 9.2 was first introduced in 2012 with the making of the 2011 enterprise agreements.

• (e) Since then, Qube's practice has been to credit hours of PIA towards the AAH Requirement only where that PIA falls short of a work stoppage. For example, when an employee engages in a partial work ban and is paid in accordance with the Act in relation to that partial work ban, their AAH Requirement is updated accordingly. However, Qube's practice has always been to refrain from crediting hours of PIA in the form of work stoppages towards the AAH Requirement.

• (f) Qube has always been of the view that PIA is not "approved leave" for the purpose of the relevant clauses since the 2011 agreements came into effect. This has remained the case even since the Fremantle Decision and Fremantle FB Decision.

[45] The CFMEU seeks to vary all Agreements by inserting the words that are underlined and in bold as below:

FSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay, for any period where an employee has pay deducted while engaged in protected industrial action, for any period where an employee is locked out by the employer without pay, or for any period where an employee is stood down by the employer without pay.

PFSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay, for any period where an employee has pay deducted while engaged in protected industrial action, for any period where an employee is locked out by the employer without pay, or for any period where an employee is stood down by the employer without pay.

[46] Section 217 of the Act provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

• (a) one or more of the employers covered by the agreement;

• (b) an employee covered by the agreement;

• (c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[47] Section 217 broadly poses three considerations:

• Is there an ambiguity or uncertainty in the enterprise agreement?

• Is there an application by one of the persons listed in s 217(a) - (c)?

• Is it appropriate for the Commission to exercise its discretion to vary the enterprise agreement?

[48] It is not in contest that the application has been validly made by the CFMEU as an employee organisation covered by the Agreements. The questions I must determine relate to the presence of ambiguity or uncertainty, and if so, is it appropriate for me to exercise my discretion to vary the Agreements.

6. Firstly: is there an ambiguity or uncertainty in the Agreements?

[49] The principles that apply to task of assessing whether there is an ambiguity or uncertainty were summarised by Deputy President Bell in Monash University v National Tertiary Education Industry Union[24] at [85] as follows:

a) The process of ascertaining ambiguity or uncertainty in an enterprise agreement is "distinct" from the process of construction, the latter of which involves determining the "true meaning" of a provision: Bianco Walling[25], [66] - [67].

1. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning: Bianco Walling, [67].

1. Ambiguity may be apparent on the face of the document or may only become apparent when extrinsic evidence is adduced: Bianco Walling, [67].

1. A provision may be ambiguous even though capable of interpretation: Bianco Walling, [67].

2. Evidence of the parties "common intention" and the history of the impugned provisions are matters the Commission is permitted to have regard to in ascertaining whether ambiguity or uncertainty exists: Bianco Walling, [68].

3. The mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is unlikely to be sufficient to indicate ambiguity or uncertainty for the purposes of s 217: Bianco Walling, [70].

g) And while the mere existence of rival contentions is insufficient to permit a finding of ambiguity or uncertainty, the Commission "will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention" (original emphasis): Bianco Walling, [70].[26]

1. The words "ambiguity" and "uncertainty" are not synonymous: Bianco Walling, [75].

"There may, for example, be uncertainty in an enterprise agreement even when its terms are not ambiguous. The uncertainty may arise from the application of the unambiguous terms to a given set of circumstances. The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy" (citations omitted).

1. A form of "uncertainty" can extend to the common law analogy of uncertainty, where a provision might be found to be void, because no definite meaning can be put on that provision. However, "uncertainty" in s 217 is not so limited: Bianco Walling, [77].

[50] The Full Court of the Federal Court in _Qube Logistics[27]_also recently affirmed:

[21] As to the existence of an ambiguity or uncertainty, which is a necessary condition before the discretionary power under s 217(1) of the Fair Work Act to vary an enterprise agreement is engaged, in Bianco Walling at [68] the Full Court referred to s 578(b) under which, in performing functions or exercising powers under the Act, the Commission is required to take into account "equity, good conscience and the merits of the matter". The Full Court also referred to s 591 under which the Commission is not bound by the rules of evidence or procedure. In consequence, the Full Court held that in discharge of its functions under s 217(1) in ascertaining whether ambiguity or uncertainty exists, the Commission is permitted to have regard to the common intention of the parties, and to the history of the relevant clause in the enterprise agreement which is the subject of the application for variation.

[51] The CFMEU submits that the Relevant Clauses are ambiguous and/or uncertain. Qube makes a more qualified submission; it says that Relevant Clauses are ambiguous and/or uncertain to a certain degree when considered alone.

[52] It is not controversial that the parties hold competing interpretations of the relevant provisions. Nor is it controversial that though a single member and Full Bench of the Commission reached the same interpretation of the relevant provisions, they did so through different constructional paths.

[53] Considering the principles at [49] of this decision, I find that the Relevant Clauses are ambiguous and/or uncertain. There is no definition of what "approved leave of absence without pay" includes, which is what led to the s 739 arbitration over the Port of Fremantle Agreement. As can be seen from the Statement of Agreed Facts and Mr Smith's evidence, the taking of protected industrial action is not uncommon in enterprise bargaining between the parties. Despite this, it is unclear how the words "approved leave of absence without pay" apply to situations where the approval comes from a source other than Qube - such as in the case of employee PIA - or whether it includes situations such as stand downs without pay, which occur on Qube's initiative.

[54] Simply put, I agree with Qube's oral submission that, "approved leave of absence without pay is not a term of art. It can include certain things, or it might not include certain things".[28]

[55] Can a clause in an enterprise agreement be ambiguous or uncertain after its meaning has been arbitrated? I find that the answer to this is 'yes'.

[56] The effect of arbitration is that the objective meaning of the words is determined, using the well-established principles of construction.[29] However, the words in an enterprise agreement do not change after being arbitrated; it is the meaning that is clarified, so any linguistic ambiguity or uncertainty remains. I find that the Relevant Clauses in the Port of Fremantle Agreement remain ambiguous in terms of the words and how they remain undefined, though the Fremantle FB Decision removed the uncertainty in how the clauses are applied in practice.

[57] Where there is an inconsistency between Part A and Part B of any of the Agreements, Part B prevails to the extent of any inconsistency.[30] Qube submits that this presents difficulty in concluding that there is ambiguity or uncertainty in all the Agreements considering relevant differences in Part B of some of them.[31]

6.2.1 Agreements that have a different AAH Requirement

[58] Qube drew my attention to the Qube Ports Pty Ltd Port of Brisbane Enterprise Agreement 2020, which has a lower AAH Requirement for certain employees.[32] I find that the lower AAH Requirement does not change the fact that there is still an AAH Requirement that is dependent on the interpretation and application of the Relevant Clauses.

[59] Qube also noted clause 1.1.1 of Part B of the Port of Brisbane Agreement, which states that the AAH will be 1645, "unless it is mutually agreed between the parties that their hour's [sic] increase/decrease. In these circumstances, an appropriate remuneration adjustment will be applied".[33]

[60] Qube did not advance a view as to whether this means the Relevant Clauses in the Port of Brisbane Agreement are ambiguous or uncertain. Their argument is simply that the onus is on the CFMEU to prove ambiguity or uncertainty. This is true.

[61] However, I find that with regards to the Port of Brisbane Agreement, it remains unclear to me on the words how time spent engaging in PIA or standdowns without pay will interact with the AAH Requirement. I refer to the findings in the Fremantle FB Decision, which did not rely on discerning the meaning of "approved leave" to resolve the dispute. I find that the Relevant Clauses in the Port of Brisbane Agreement remain ambiguous or uncertain.

[62] Qube also drew my attention to the Qube Ports Pty Ltd TT Line Victoria Enterprise Agreement 2020 and Qube Ports Pty Ltd TT Line Tasmania Enterprise Agreement 2020 (TT Line Agreements).[34] Part B of the TT Line Agreements sets out that hours of work and salaries will be calculated on a different system to the AAH method. Employees are rostered on a split shift, four-on-four-off arrangement, and paid accordingly. Qube submits that it would be difficult to find an ambiguity or uncertainty in the Relevant Clauses in the TT Line Agreements as they are effectively overridden by Part Bs of the agreements.

[63] The CFMEU submits that it may be that given the specific and idiosyncratic terms of Part Bs in the TT Line Agreements that the relevant parts of Part A have limited operation, but they still appear in the TT Line Agreements. The CFMEU further submits that to the extent the Relevant Clauses in the TT Line Agreements have any operation, they are ambiguous, and it is therefore appropriate that they be varied.[35]

[64] Having reviewed Part Bs of the TT Line Agreements, I agree with Qube's observations that the hours of work and salaries do not use an AAH model. However, it brings to mind the adage about if a tree falls in a forest with no one around to hear it - is a clause still ambiguous or uncertain if another clause reduces its practical operation?

[65] I find that while Part Bs of the TT Line Agreements may reduce the practical effect and application of the Relevant Clauses, they do not clarify the ambiguity or uncertainty in the Relevant Clauses. The Relevant Clauses in the TT Line Agreements remain ambiguous or uncertain.

[66] I have reviewed Part Bs of all the Agreements. Except for the TT Line Agreements, they all operate on the AAH model. Whilst I appreciate that the onus is on the CFMEU to prove ambiguity or uncertainty, I also accept their argument that the onus does not include taking the Commission to each clause in all the Part Bs to explain why each clause is immaterial.[36]

[67] I remain satisfied that the Relevant Clauses in the Agreements are ambiguous or uncertain.

6. Secondly: should the Commission exercise its discretion to vary the Agreements?

[68] The parties largely agree on the relevant authorities that guide the exercise of the Commission's discretion under s 217; unsurprisingly they do not agree on how they should be applied to the present situation.

[69] As per the plain language of s 217, once a finding of ambiguity or uncertainty has been made, the Commission has the discretion to remove said ambiguity or uncertainty.

[70] In removing ambiguity or uncertainty, the Commission should give effect to the substantive agreement that was ambiguously or uncertainly reduced to writing in the terms of the agreement. In exercising its discretion, it is not the role of the Commission to give effect to a new and substantive change to the agreement, which should be sought through other provisions of the Act.[37]

[71] The principles regarding common intention in the context of s 217 can be summarised as follows:

a) Common intention is a significant consideration but is not an express statutory component of s 217.[38]

b) Common intention must exist in the minds of the parties.[39]

c) There does not need to be any express or outward communication of the common intention. [40]

d) Common intention is concerned with the subjective or actual intention of each party. [41]

e) The objective ascertainment of common intention of each party by reference to their words or actions is concerned with the proof of their actual intention. It is not a search for an objectively attributed common intention. Recourse to objectively ascertained facts in proof of actual intention serves to meet the "high standard" to which common intention must be proved in order to displace the terms chosen by the parties in the written instrument. [42]

f) Objective evidence of common intention is not confined to evidence involving mutual dealings between the parties.[43]

g) Regardless of approach, common intention for the purposes of an enterprise agreement is not lightly found.[44]

h) There are difficulties with the concept of mutual or common intention in the context of non-greenfields enterprise agreements.[45]

[72] Qube submits that there is no evidence of the CFMEU's, Qube's or the employees' intention at the time of making the Agreements, and that this is fatal to the CFMEU's application.[46]

[73] The CFMEU submits that there was a consensus regarding the operation of the AAH Requirement and that it can be seen in the construction of the terms of the Agreement. The CFMEU also effectively submits that I should make various findings on the interpretation of the Agreements in support of a conclusion that the parties would never have agreed to a deal whereby the AAH Requirement was not reduced by the taking of PIA.[47]

[74] The CFMEU's submissions on this point are largely a rerun of its arguments made during the Port of Fremantle Agreement decisions. During the hearing, the CFMEU made the following submission regarding how the objective intention as determined by Fremantle FB Decision should be considered in the context of s 217:

In relation to the submissions about common understanding and what I've said is ultimately cast as an effective criterion to the exercise of a power, I have said what I can usefully say. Can I just try to be clear about one thing. As I tried to explain earlier, as we see it there are real difficulties with the concept of common intention operating in this context.

It is not at all clear on the cases whether the concept is - or the objective intention that would normally be the focus of attention in construction, whether it is a purely subjective intention which would be the focus in rectification in equity or it is something in between. The difficulty arises not least given the sui generis nature of enterprise agreements and the absence of any parties in the strict sense. There are real conceptual difficulties, some of which were catalogued but none of which were resolved by the Deputy President in Monash at first instance.

As I tried to say earlier, it matters not in this case because, whichever way one comes at it - it's a question of an intention which is manifested in the terms of the agreement understood in context or one views it as a matter of subjective or actual intention - the result is the same. We pointed to the terms of the agreement and pointed to the analysis of the Full Bench in the Fremantle dispute as dealing with the effect of the objective intention manifested in the terms of the agreement. We have also dealt or tried to deal with what might be termed the actual or subjective intention.

All of this serves to emphasise this point that common intention - the Full Bench in Monash among others has said - is relevant, it is a factor. It is a factor which in some cases or many cases might be significant, but to attempt to elevate it beyond that to an effective precondition or criterion is an error not only because it's a view that has no foundation in the text of the section, not only because it's contrary to what the Full Federal Court said in Bianco Walling, but because there is just a basic difficulty in identifying what common intention is being referred to - doctrinally or gleaning in evidence the common intention of the relevant sense - without hearing from every worker who voted on the agreement at the relevant time.

[75] I accept that the Fremantle FB Decision determined the 'objective intention' of the AAH scheme in the Port of Fremantle Agreement. However, the various authorities on the operation of s 217 that have examined the difference between objective and subjective intention are clear that ascertaining common intention is a far broader task than the task of constructing the legal meaning of an enterprise agreement. It is clear from the principles summarised at [74] of this Decision that ascertaining mutual attention draws on evidence and considerations that would ordinarily not be within the remit of a constructional exercise.

[76] The evidence of Mr Smith and Mr Ortiz is that the AAH Requirement did exist in the predecessor agreements before Qube acquired the relevant business from POAGS. They both agree that the current iteration of clause 9.1 and 9.2 was first introduced in 2012 with the making of the 2011 enterprise agreements. The reality is that those clauses and how they interact with PIA were not substantively tested until the taking of PIA in the form of work stoppages in 2021.

[77] In Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd[48], Justice Gray stated, "[c]are must be taken, however, to distinguish a common understanding from common inadvertence" and that "[t]here can be no meeting of minds, no consensus, if no-one has thought about the issue."[49]

[78] Based on the evidence of the parties before me, I am not satisfied that there was common intention regarding the operation of the Relevant Clauses in the context of PIA. This is a factor that weighs strongly against granting the Proposed Variation.

6.2 Consistency with the legal meaning of the Agreements

[79] The CFMEU submits that the variation would clarify the existing legal meaning of the Agreements, rather than introduce a new meaning. The CFMEU relies on the Fremantle FB Decision in support of this submission.[50]

[80] Qube submits that numerous clauses of Part A and Part B of the Agreements tell against the Proposed Variation being a reflection of any mutual or objective intention. In its written submissions, Qube points to clauses 2.1(x); 9.4.1(a); 13.1.1; 13.3.3; 29.4; 33.3; and 52.4 in Part A of the Agreements in support of its contention that the AAH Requirement must be satisfied by actual work, except where explicitly provided for in the Agreements.[51]

[81] The decisions regarding the clauses in the Port of Fremantle Agreement arose from the Commission (both at first instance and on appeal) exercising its power as a private arbitrator under s 739 of the Act. It is well established that such an exercise operates on the consent of the parties, and that in the exercise of such power the Commission is determining the parties' legal rights and liabilities for resolution, and that the outcome is then binding on the parties.[52]

[82] The Fremantle FB Decision determined the meaning of the Port of Fremantle Agreement in relation to how PIA interacts with the AAH Requirement, though Qube obviously disagrees with the outcome. Given the nature of private arbitration, the Fremantle FB Decision is not binding on the parties in terms of the other 18 Agreements, which is presumably why Qube has applied to the Federal Court for declarations as to the proper construction of the Relevant Clauses in five of the other Agreements.

[83] It would not be appropriate for me to make a finding as to the correct legal meaning in the other 18 Agreements, as this is not an application made under s 739 of the Act. However, four Members of the Commission have reached the same conclusion on how the AAH Requirement in Port of Fremantle Agreement must be adjusted for PIA, and it is uncontroversial that the Relevant Clauses in the Port of Fremantle Agreement are replicated across the other 18 Agreements; indeed, all 19 Agreements have the same Part A.

[84] Given the above, I find the argument that all 19 Agreements should be consistent with the arbitrated outcome of the Fremantle FB Decision to be highly persuasive. This is a factor that weighs in favour of exercising my discretion to vary the Agreements.

[85] The CFMEU submits that refusing the variation would risk Qube enforcing its interpretation of the relevant provisions. This would produce unfair and arbitrary results for employees, as it would allow Qube to demand a full year's work for less than a full year's pay. The CFMEU submits that this outcome would result not only from the taking of PIA, but also from any unpaid stand down pursuant to s 524 of the Act, or any other form of leave without pay which does not depend on Qube's approval (such as parental leave).[53]

[86] Qube disagrees with the CFMEU's submission that not making the variation sought would result in unfairness or arbitrary outcomes. Qube submits that in the case of employee PIA, the lower salary is a consequence of s 470(1) of the Act and is consistent with the industrial bargain made by the parties.[54]

[87] Qube submits that PIA is engaged in voluntarily, and part of PIA is that there are consequences, such as not receiving pay under s 470 of the Act.[55] Qube submits that its interpretation of the relevant provisions is the orthodox position in the stevedoring industry.[56]

[88] Qube further submits that the CFMEU's interpretation leads to 'perversity'. This is because the variation sought would result in Employees reaching (or reducing) the AAH target by engaging in PIA, and having reached the target, they could refuse to work. This goes against what Qube bargained for - certainty of labour supply.[57]

[89] Qube also draws attention to clause 30.5 of Part A, which provides for penalty rates for hours worked beyond the AAH Requirement. This means that if the variation sought is made, engaging in PIA would "hasten the day when an employee is entitled to penalty rates if they consent to work". The Proposed Variation thus incentivises PIA and dulls its consequences, because pay reductions due to PIA could be recouped via penalty rates after the AAH Requirement is met.[58]

[90] Qube also points to the case of CFMEU v Sydney International Container Terminals[59], which it says has similar facts to the current matter. In SICT, some employees had reached a 1560-hour threshold before the end of the year. This meant the employees had worked more hours than they had been paid for, as they were paid fortnightly, and their pay was calculated based on assigned weekly hours tied to the 1560-hour threshold. These employees then engaged in PIA, and the employer reduced their pay under s 470 of the Act. The CFMEU challenged this course of action but was unsuccessful at first instance and on appeal in the Federal Court.

[91] I agree with the CFMEU's argument that SICT dealt with a different industrial instrument and a different set of facts. While SICT did concern the stevedoring industry and a dispute over how PIA in the form of work stoppages interacted with an analogue of the AAH Requirement, it was in the context where the relevant employees had worked their minimum annual hours and had subsequently taken PIA. The dispute then arose in the context of the agreement's overtime provisions. I find that the decision in SICT to be informative, but not probative or binding in this matter.

[92] I find that the Fremantle FB Decision is similarly not binding, but more instructive on the issue of fairness. I find that the Full Bench's analysis of the Port of Fremantle Agreement to be relevant to my consideration of the parties' arguments as to the outcomes of the competing constructional positions.

[93] The arguments that both parties have run in this matter regarding how I should interpret various clauses in the Agreements - whether in support of common intention or other factors relevant to the exercise of my discretion - appear to have been well-ventilated before Deputy President Binet and the Full Bench.

[94] Like Deputy President Binet and the Full Bench in the Fremantle FB Decision, I recognise that there are good arguments on both sides as to how the two different interpretations of the Relevant Clauses can lead to odd or unfair outcomes. That is not uncommon in enterprise agreements, which are often the product of years of bargaining and rolled over clauses between parties who are often more focused on pragmatic operation than precise drafting.

[95] However, I found the Fremantle FB Decision at [71] - [74] (reproduced above at [34] of this decision) to be particularly persuasive.

[96] Without negating Qube's arguments as to the "perversities" such a finding leads to, I agree with the Full Bench's analysis and findings that reducing an employee's salary without reducing the AAH Requirement would be contrary to the wage-work bargain between Qube and its employees, and that this is a significant factor as to fairness. I find that this consideration weighs in favour of exercising my discretion to vary the Agreements.

[97] The CFMEU submits that it is doubtful whether the Agreements could have been approved by the Commission if Qube's interpretation of the Relevant Clauses is correct. This is because Qube's interpretation would permit Qube to pay a flat rate of pay of $34.69 per hour (using the example in the Fremantle FB Decision) for 70 hours' work each week, and this cannot pass the better off overall test.[60]

[98] The CFMEU further submits that permitting the Agreements to operate in the way Qube contends would undermine the statutory scheme of enterprise bargaining. This is because a primary goal of enterprise bargaining is to ensure that enterprise agreements do not undermine the modern award safety net.[61]

[99] Qube says that the CFMEU's argument is unfounded due to how clause 9.3 of Part A of each Agreement operates. The Agreements contemplate that an employee might not meet the AAH target in a given year, and the course of action in such a case is that "any remaining shortfall" in the hours the employee works is "rolled over on 1 July". This means that it is already a feature of the Agreements that an employee might work more hours in a year than what they are remunerated for.[62]

[100] Whilst it is true that the Agreement expressly provide for situations where an employee might work more hours in a year than what they are paid for, this does not mean that the Agreement should provide for situations where the better off overall test is not met. I find the CFMEU's arguments on this point more persuasive and I find this is a factor that weighs in favour of exercising my discretion.

[101] Qube submits that all the Agreements have reached their nominal expiry date, and the parties have been bargaining for replacement agreements. This includes litigation regarding the Relevant Clauses. It would be preferable for the parties to reach an agreed position in bargaining, or for the Court to decide the matter. This application has come late in the overall life of the Agreements and involves extensive delays.[63]

[102] I agree that it would be preferable for the parties to resolve the matter going forward through bargaining. However, that would not address the clauses as they currently are. It is also arguably preferable for the Court to decide the matter, but I note that Qube has not applied for the Court to determine the meaning of the Relevant Clauses in all the Agreements. Whilst Qube no doubt has a strategy as to why the five enterprise agreements identified in [36] of this Decision have been picked, I am not privy to that strategy and so can only observe that an application to the Court has not been made in respect of all the Agreements.

[103] Qube also submits that the retrospective effect of the Proposed Variation would create the risk of significant adverse consequences. This includes the risk of Qube unwittingly contravening one or more Agreements in various ways, including failure to pay penalty rates.[64]

[104] I agree that this application being made late in the life of the Agreements raises potential complications for Qube and that it would have been desirable for such an application to have been made earlier. This is a factor that weighs against the exercise of my discretion.

[105] There are strong considerations both for and against exercising the discretion to vary the Agreements and reasonable minds will certainly differ when it comes to the outcome in this matter

[106] In considering the competing factors that have been put forward by the parties, I recognise that the lack of established common intention is a significant factor as to why I should not exercise my discretion.

[107] However, as recognised by many of the authorities already cited throughout this Decision, it is not a pre-requisite to exercising my discretion. This makes sense when you consider the difficulty in establishing common intention with enterprise agreements, which are often negotiated between an employer and a union, but voted up by the relevant workforce. This difficulty compounds in the common situation where the terms of an agreement are rolled over, sometimes multiple times, where the people who may have originally negotiated a clause have long left the business, and because there has been no recent controversy, the clause goes largely unlooked at.

[108] That is not to say that common intention is not a significant factor, if not the most significant factor. It is clear from the authorities that the discretion in s 217 ought to be exercised cautiously if common intention is not established. I refer to Deputy President Bell's review of s 217 decisions in Monash at [120] - [128], where he observed that the discretion under s 217 is not unfettered. Further, the Deputy President noted that in past matters where there had not been a finding of common intention, the Commission had exercised its discretion in limited circumstances, such as where the parties had consented.

[109] However, this is a unique situation. It does not appear that there has been any other s 217 application before the Commission where the disputed clauses have been first arbitrated under s 739 of the Act. As I have already noted, the outcome of the Port of Fremantle Agreement decisions is not binding on the parties or the Commission in relation to the other Agreements. But I find the fact that four members of the Commission have reached the same outcome as to how the AAH Requirement interacts with PIA in the Port of Fremantle Agreement to be highly significant.

[110] In weighing up all the factors identified to the parties and giving significant weight to the lack of common intention and the outcome of the Port of Fremantle decisions, I am also mindful of my obligation to take into account equity, good conscience and merits of the matter.

[111] Ultimately, I find the factors that weigh in favour of exercising my discretion to be stronger. The findings of the Full Bench in the Fremantle FB Decision remain untouched and provide a cogent analysis of how the AAH Requirement interacts with PIA and the resulting legal rights for the parties. The Agreements were negotiated together by the same parties, with identical wording across Part As, and I am persuaded that they should have consistent meaning, especially with regards to identical clauses. I am satisfied that it is appropriate to vary the Agreements - except for the Port of Fremantle Agreement - to resolve the ambiguity or uncertainty in the Relevant Clauses in the Agreements.

[112] Even though I have found that the Relevant Clauses in the Port of Fremantle Agreement remain ambiguous or uncertain, I find that there is no utility in varying the agreement as the parties are bound by the findings in the Fremantle FB Decision. I accept that the Fremantle FB Decision only dealt with a dispute involving PIA and the Proposed Variation deals with employer PIA and standdowns without pay. However, as I explain later in this decision at [114] - [116], I believe it would be very difficult to argue that the Full Bench's decision does not extend to employer PIA or standdowns without pay.

[113] The CFMEU seeks to insert into the Relevant clauses the words:

"for any period where an employee has pay deducted while engaged in protected industrial action, for any period where an employee is locked out by the employer without pay, or for any period where an employee is stood down by the employer without pay"

[114] I accept that the Port of Fremantle Agreement decisions only dealt with employee PIA. However, in the Fremantle FB Decision, the Full Bench clearly stated at [71] its finding that Qube cannot reduce salary payments unless the AAH Requirement is also reduced.

[115] Whilst the dispute the Full Bench was dealing with involved employee PIA, it is extremely difficult to see how this finding would not also extend to employer PIA and standdowns without pay.

[116] With employee PIA, the stoppage of work is at the employees' initiative. With employer PIA and standdowns without pay, the stoppage of work is at the employer's initiative. For Qube to engage in PIA through a lockout or to standdown employees without pay and to then require employees to meet an unaltered AAH Requirement goes entirely against the wages-work bargain the Full Bench found existed in the Port of Fremantle Agreement.

[117] I note that Qube did not make any substantive submissions on the actual wording of the Proposed Variation.

[118] I am satisfied that the Proposed Variation is appropriate having regard to the nature of the ambiguity or uncertainty and considering the factors that I have considered in the exercise of my discretion.

[119] To conclude, I am satisfied that the Relevant Clauses in the Agreements are ambiguous or uncertain; that it is appropriate to exercise my discretion to vary the Agreements; and that the variation sought by the CFMEU will remove the ambiguity or uncertainty in an appropriate manner.

[120] Part A of each of the Agreements in Annexure A - except for the Port of Fremantle Agreement - is to be varied by inserting the below words that are underlined and in bold:

FSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay, for any period where an employee has pay deducted while engaged in protected industrial action, for any period where an employee is locked out by the employer without pay, or for any period where an employee is stood down by the employer without pay.

PFSE hours and salary will be adjusted on a pro rata basis for any approved leave of absence without pay, for any period where an employee has pay deducted while engaged in protected industrial action, for any period where an employee is locked out by the employer without pay, or for any period where an employee is stood down by the employer without pay.

[121] In accordance with s 217(2) of the Act, the variation to each Agreement will operate from 29 June 2024.

[122] An order[65] to this effect will issue concurrently with this decision.

O Fagir of Counsel, instructed by L Edmonds, CFMEU.

M Follet KC of Counsel, instructed by Allens for Qube Ports Pty Ltd

Qube Ports Pty Ltd Port of Fremantle Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Bunbury Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Geraldton Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Esperance Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2021

Qube Ports Pty Ltd Port of Newcastle Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Darwin Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Brisbane Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Melbourne Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Portland Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2020

Qube Ports Pty Ltd South Australian Outports Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Whyalla Enterprise Agreement 2020

Qube Ports Pty Ltd Port of Tasmania Enterprise Agreement 2020

Qube Ports Pty Ltd TT Line Victoria Enterprise Agreement 2020

Qube Ports Pty Ltd TT Line Tasmania Enterprise Agreement 2020

Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2020

[1] [2022] FWC 2013.

[2] [2025] FCAFC 73.

[3] Statement of Agreed Facts, Digital Court Book 13 at [2].

[12] [2022] FWC 2013.

[14] Qube Ports Pty Ltd T/A Qube Ports and Bulk v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCFB 66.

[15] Witness Statement of Warren Smith, DCB 91 at [1] - [2].

[19] Supplementary Witness Statement of Warren Smith at [2].

[23] Witness Statement of Daniel Raul Ortiz, DCB 98 at [6] - [14].

[24] [2023] FWC 1148, affirmed in Monash University v National Tertiary Education Industry Union [2023] FWCFB 181 (Monash Full Bench).

[25] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR 385.

[26] Bianco Walling at [70], citing Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [31].

[27] [2025] FCAFC 73.

[29] See: WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197].

[30] Clause 5.6, Part A of the Agreements.

[31] Outline of Submissions of Qube Ports Pty Ltd, DCB 116 at [13]; Transcript PN230 - PN233.

[37] Qube Logistics [178]; CFMMEU & ors v Specialist People Pty Ltd [2019] FWCFB 6307 [42]; Monash Full Bench [24].

[38] Monash Full Bench at [20] - [21], [25]; Qube Logistics at [178].

[41] Ibid at [27], citing Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603 at [267] (Campbell JA, Mason P agreeing).

[42] Ibid at [27], citing Simic at [41] (Kiefel J); and Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) [2019] NSWCA 11; 99 NSWLR 317 at [13]-[15] (Leeming JA).

[46] Outline of Supplementary Submissions of Qube Ports Pty Ltd at [10].

[48] [2006] FCA 11; (2006) 149 FCR 209.

[50] Outline of Submissions for the MUA, DCB 111 at [43].

[51] Outline of Submissions for Qube Ports Pty Ltd, DCB 120 at [32] - 122 at [42].

[52] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at [30]; ALS at [53]; [57] - [58].

[53] Outline of Submissions for the MUA, DCB 111 at [41] - [42].

[54] Outline of Submissions of Qube Ports Pty Ltd, DCB 118 at [21].

[59] [2025] FCAFC 19.

[60] Outline of Submissions for the MUA, DCB 112 at [45].

[62] Outline of Submissions of Qube Ports Pty Ltd, DCB 120 at [29].

[65] PR794639.

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