s.739 - Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union

Alleged dispute about any matters arising under the Greater Shepparton City Council Enterprise Agreement 2024; request by consent for the issue of a recommendation; whether the entitlement to complimentary gym membership a term of contract; recommendation issued

• [1] The Greater Shepparton City Council Enterprise Agreement 2024 (the Agreement) contains a dispute resolution procedure which provides, among other things, that a dispute arising in relation to the Agreement may, after steps are taken to resolve it, be referred to the Fair Work Commission. Once referred to the Commission for "conciliation", the Commission member is to do everything deemed "right and proper to assist the Parties to settle the dispute". If the matter cannot be resolved, the Commission may, subject to the Agreement, "proceed to determine the dispute by arbitration".
• [2] In this matter, both parties - the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Greater Shepparton City Council (the Council) have asked me to issue a recommendation in relation to the dispute described below[1].
• [3] While the ASU construed this request as being that "the Commission determine the matter in dispute by making a recommendation [my emphasis]"[2], I do not consider this recommendation to be an exercise of the Commission's apparent power to determine a dispute by conducting arbitration. Rather I consider I am being asked, by consent, to issue a recommendation as part the Commission's duty to do everything "right and proper" to assist the parties to settle the dispute, and my recommendation, set out below, is made on this basis. Whether the issue of this recommendation determines the dispute is a matter for the parties.
• [4] Having said that, as will become clear, it seems likely that the dispute, as it has been characterised by the parties to date, is about the terms of particular employees' contracts of employment. A question arises as to whether the dispute is about a matter arising under the Agreement, and I will observe that, had I not been asked to issue this recommendation by consent, there may have been significant problems with the Commission doing anything about this matter at all. Be that as it may, I have been asked to make a recommendation, and I have done so.
• [5] The parties have both filed and served written outlines of argument and witness statements on behalf of various people. They have also filed a short Statement of Agreed Facts. Despite this, as I have observed to the parties, there are discrepancies in the evidence between the parties, and submissions have been made as to the weight I should accord some of the evidence[3].
• [6] However, both parties submitted, as the ASU put it, that "it is not necessary for the Commission's approach to assessing the evidence to be elevated to the same degree of rigour as may be the case where the Commission is required to make a determination, however so described"[4]. Both parties also expressed a preference that the matter should be dealt with on the basis of the material filed, without the need for a hearing.
• [7] I have approached the making of this recommendation on this basis. While I have had regard to all of the material filed in the Commission in relation to the dispute, what follows is a summary of the background only in respect to what I consider necessary to explain the basis of my recommendation.

The removal of complimentary Aquamoves membership

• [8] Prior to 1 July 2025, for at least the preceding 20 years, people engaged to work at a facility run by the Council called "Aquamoves" were provided free access to the facility. Aquamoves is a health and fitness facility run by the Council[5].
• [9] In April 2025 employees of the Council were advised that the complimentary or free membership would be withdrawn from July 2025. Eventually, the relevant employees were advised that from 15 July 2025 onwards they would be required to pay for membership at a 50% discounted rate[6].
• [10] Some employees, some of whom are members of the ASU, are aggrieved about this decision. The financial result of the decision for employees is $669.50 per annum[7].

• [11] The ASU characterised the dispute as one being, at least in part, about whether its members affected by the decision to remove the complimentary Aquamoves membership had a contractual right to it, meaning that its unilateral removal by the Council was impermissible. The ASU described this alleged right as an "ongoing implied contractual right" [8].
• [12] Based on the submissions it has filed, this characterisation of the dispute appears to have been to some extent embraced by the Council[9]. There is no suggestion I am aware of that there is anything in the Agreement itself which gives rise to a right to complimentary membership[10].
• [13] The ASU framed the dispute about which it now seeks a recommendation around the following questions:

Question 1: Did the complimentary Aquamoves membership for Aquamoves employees constitute an ongoing implied contractual right? Yes/No

Question 2: Can GSCC unilaterally remove Aquamoves employees' complimentary Aquamoves membership and replace it with a discounted membership? Yes/No

• [14] There are several matters which seem apparent to me from the materials filed by the parties that are relevant to the question as to whether the relevant employees may have had a contractual right to complimentary Aquamoves membership. They are set out as follows.
• [15] First, I did not understand it to be the case on the evidence before me that the relevant employees' contracts of employment have been reduced to writing. The Council said, "terms and conditions of employees for Aquamoves employees are contained in the" Agreement[11]. None of the witnesses, including existing Council employees who work at Aquamoves made any mention of a written contract of employment. Taking into account the manner in which I have been asked to approach this matter, I have formulated my recommendation based on the assumption that there is no written contract (albeit that various terms of employment are set out in the Agreement).
• [16] Secondly, it appears to me it is not contested that all Council employees who work at Aquamoves had, up until July 2025, been provided with complimentary membership of Aquamoves.
• [17] Thirdly, I note it is asserted by Ms Liversidge (a witness called by the Council) that the Council's Leadership Team did not know, at least until around 2019, that Aquamoves staff were being provided with complimentary membership[12]. Ms Liversidge is a member of the Council's Executive Leadership Team and has worked for the Council since 2013. In relation to this evidence, I will note that while I have no reason to doubt Ms Liversidge's evidence, this organisational ignorance is difficult to square with several other aspects of the evidence, including that, whether the Leadership team knew it or not, employees were provided with complimentary membership.
• [18] Fourthly, at least some of the Council's employees were told when they were hired that membership would be provided for free[13]. Ms Liversidge says any such representation was not authorised by her, the Manager in charge of recruitment, to be made during the recruitment process[14]. But, given that all staff were receiving complimentary memberships, universally, and for quite some time, it is not surprising such representations were being made whether authorised or not, and it seems plain they were being made to new employees.
• [19] Thus, to some extent, some employees commenced employment with the Council having been told they would receive complimentary Acquamoves membership and, presumably relied on those representations when they accepted employment.
• [20] Fifthly, these representations were confirmed, for at least some employees, in the Council's induction process, in which employees were told they would receive free membership. There were several examples provided in the evidence of this having occurred, including a copy of a powerpoint presentation which contained a slide entitled "complimentary access" and which said "during your employment, you will receive free access to the entire centre"[15], and a manager's induction briefing document which contained similar representations[16]. Ms Liversidge said that the manager's briefing document was out of date[17]. I observe however that it appears clear on the evidence, some, employees, presumably some existing employees, were told during their induction that Aquamoves membership was complimentary.
• [21] Sixthly, in 2019, the Council introduced what was described as a "Membership Procedure". The procedure was introduced after, as Ms Liversidge described it, the Leadership team discovered the membership was being provided on a complimentary basis. This policy confirmed that Aquamoves employees would continue to receive complimentary membership[18].
• [22] I consider there is a high likelihood that any Aquamoves employee commencing employment before April 2025 was given to understand at around the time they were engaged that membership to the facility would be provided to them on a complimentary basis, either by already being aware of this by operation of notoriety, by being told this was the case in their job interview, by being told this was the case during induction, including by being required to do whatever it is that is necessary to have the complimentary membership activated, and then commencing to use it.
• [23] Two further matters are worth mentioning, although may be of more peripheral relevance, taking into account they are contested. First, there was some suggestion that employees were told complimentary membership was provided to assist employees to understand and sell gym membership products[19]. The Council disputes this.
• [24] Secondly, there was some suggestion that the provision of complimentary membership is an industry standard. The Council disputes this. I note however that it's procedure (referred to above) said[20]:

"As per Acquatics and Fitness Industry standards, staff members meeting these criteria are not required to pay for the use of the facilities of AQUAMOVES but do have conditions of use placed on their access not consistent with paying members and guests" [my emphasis].

Is Aquamoves' membership a term of the contract?

• [25] The ASU submitted that the entitlement of its members to complimentary Aquamoves membership arises as an implied term of their contracts of employment, as a result of custom and practice.
• [26] Before commenting on this proposition, I will say something about how the express terms of a contract are ascertained. This is because I think it is more likely an entitlement to complimentary Aquamoves membership arises, at least for some Council employees, as a result of an express term of their contract of employment, not through an implied term.
• [27] It is well understood that a contract of employment may be reduced to writing, in whole or in part, or be oral (sometimes described as "informal"[21]). A contract of employment operates separately from an enterprise agreement - which is not part of the employees' contract of employment - it operates by way of statute.
• [28] When a contact is informal, as appears to be the case here, the terms must be ascertained as a question of fact[22]. The principles used to ascertain the terms of a contract of employment are the same as with any other contract - that is - the objective intention of the parties must be ascertained[23]. When the contract is informal, ascertaining these intentions requires reference to what a reasonable person would understand by the language the parties used to express their agreement[24]. Regard may be had to the "surrounding circumstances" concerning the making of the contract[25]. Some authority supports the proposition that the conduct of the parties after the contract is concluded may be given regard to, to ascertain, on an objective basis, its terms[26].
• [29] The Council submitted that the ASU have suggested in this matter that "an awareness of policy or custom or practice at the recruitment stage satisfies the threshold for the custom being an implied term of a contract". The Council takes issue with this proposition, and said[27]:

"If that were the case, it would leave existing customs and practices as an implied term.

[21] For example, if the current practice is for a new employee to be provide with a uniform, which would be a normal conversation in an employment interview, the provision of a uniform would be an implied term.

[22] In the same way, if the current practice is that the cost of obtaining and maintaining required certifications, e.g. Bronze Medallion, is covered by the employer. Again, this is a custom that may well be identified in a job interview. The Respondent respectfully suggests that all of these practices are not enshrined by implication in employment contract."

• [30] While made to refute the suggestion that complimentary Aquamoves membership is an implied term, these submissions serve to demonstrate the point made in the authorities - that the ascertainment of terms of a contract is a question of fact, requiring an objective analysis of the intentions of the parties based on what they said and the surrounding circumstances. It seems to me entirely possible and indeed it is not uncommon that in a particular case an employer will include, as part of the terms of its offer of employment, an entitlement that an employee be reimbursed for costs associated with obtaining and maintaining required certifications (taking up the Council's example). And equally, sometimes they will not. Often an employee's "package" might be made up of a range of entitlements having contractual attribution, such as, for example, the provision of a vehicle, a fuel card, gym membership or discount on product. Whether those matters may be said to be part of an employee's contract of employment depend on the words of the contract, but it will often be so. When the contract is not written, they must be ascertained in the matter described above - the words of the parties and, if necessary, the surrounding circumstances must be considered.
• [31] I have been asked to make this recommendation taking an approach to the assessment of the evidence less rigorous that might ordinarily be the case. On this basis, I consider that a reasonable person would consider that what at least some employees were told by the Council (or the person presumed to be representing the Council) when they were employed, supports the notion that part of their contractual "package" was free Acquamoves membership. This notion is supported by several of the surrounding circumstances, which, if I were construing this contract, I would be entitled to have regard to, namely:
  1. The fact that all of the relevant employees received complimentary membership.
  2. The fact that because of what was said to employees in job interviews or during induction (or otherwise) there is a high likelihood that any Aquamoves employee commencing employment before April 2025 was given to understand at around the time, they were engaged that membership to the facility would be provided to them on a complimentary basis.
  3. The fact that in 2019 the Council formalised a policy confirming that these employees would be provided with complimentary Acquamoves membership.
• [32] I consider that complimentary Aquamoves membership was an express term of the informal (oral) contracts of employment of these employees. There is no evidence before me that the employees agreed to vary their contracts of employment to remove or alter what I consider to be an express term entitling them to complimentary membership. There was thus no basis to unilaterally remove the entitlement, and the answer to the ASU's second question, as framed, is "no" for these reasons.

• [33] Both parties referred to the decision of the High Court in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (Con-Stan)[28] as the appropriate authority dealing with the circumstances in a term can be said to be implied into a contract, as a result of custom or practice. As alluded to by both parties, in that decision the High Court set out several propositions in which the circumstances in which a custom or usage might form the basis for the implication of terms into a contract. One of those principles was expressed as follows[29]:

"(2) There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract".

• [34] The Court went on to refer to a previous decision, in which it was said the custom must be "so notorious that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract"[30].
• [35] I intend to base my recommendation below on my view, formed without a "rigorous" approach to the assessment of the evidence, that the relevant Council employees engaged before April 2025 had an express contractual right to be provided with complimentary Acquamoves membership. It is therefore not necessary for me determine whether the entitlement also arises by way of an implied term. I will observe that the proposition that it is notoriously well known that everyone that works at a fitness facility receives complimentary membership seems to be drawing a long bow or is at least unsupported by the evidence before me. As Gostencnik DP (as he then was) said in CEPU v Siemens Ltd[31], there is a "high threshold to overcome before a term will be implied into a contract by reason of custom and usage"[32]. But it is unnecessary for me to determine this question and thus I will leave the first of the ASU's questions unanswered.

• [36] In the course of this matter, I observed that it appeared some of the material filed by the parties suggested that some Council employees who had been receiving the benefit of complimentary Aquamoves membership were originally employed by a different entity and became Council employees when it took over the facility. I observed that the contractual position in respect to these employees may be different in relation to these employees.
• [37] The evidence in relation to the circumstances in which these employees first began to be provided with complimentary membership - by the previous employing entity - was not detailed. I note that in some cases they were engaged by the previous entity some time ago[33]. While I am mindful as to the manner in which I have been asked to approach the evidence, it remains the case that I do not consider I can distinguish between the circumstances, relevant to the possible existence of a contractual right, in relation to these employees, as compared with other employees. I simply do not have sufficient material for me to do so.
• [38] However, I note that in its Supplementary Submissions, the Council said that it has ascertained there are seven such employees, and it has offered to exempt them from the amended policy. As I understand it, this offer would be to continue to provide those seven employees with complimentary Aquamoves membership.
• [39] The Council's Submissions suggested that this offer had been made "in order to settle the dispute", and that the proposal was unacceptable to the ASU.
• [40] In my view, the Council should make this offer to those employees unconditionally. This seems appropriate when the details of the circumstances in which those employees began to receive the benefit may now be hazy, after an elapse of time. This matter might now be moot given my recommendation below.

• [41] I consider that on the evidence before me, and using the approach to the evidence I have been asked to adopt by the parties, Council employees working at Acquamoves were entitled to complimentary membership as part of their contracts of employment. The unilateral removal of that entitlement should not have occurred. I recommend that the entitlement should be reinstated in relation to all of these employees.

[1] Supplementary Submissions of the Applicant, 21 November 2025 [3], Supplementary Submissions (Respondent), 25 November 2025 [2]

[2] Supplementary Submissions of the Applicant, 21 November 2025 [3]

[3] See for example Outline of Respondent's Submissions, 17 October 2025 [15]

[4] Supplementary Submissions of the Applicant, 21 November 2025 [5], Supplementary Submissions (Respondent), 25 November 2025 [2]

[8] Outline of Submission of the Applicant, 3 October 2025 [3]

[9] See for example Outline of Respondent's Submissions [7] - [9]

[10] Outline of Respondent's Submissions, 17 October 2025 [5]

[12] Witness Statement of Karen Liversidge, 17 October 2025 [6]

[13] Witness Statement of Dale L Anwyl, 3 October 2025 [6]; Witness Statement of Vanessa Portia, 3 October 2025 [6(b)]; Witness Statement of Jacqui Hiscock, 3 October 2025 [7]

[14] Witness Statement of Karen Liversidge [20]

[15] Form F10 Application, 1 August 2025, Attachment B

[16] Witness Statement of Vanessa Portia, [VP-3]

[17] Witness Statement of Karen Liversidge [27]

[19] Witness Statement of Vanessa Portia, [5(c)], [VP-3]

[20] Witness Statement of Karen Liversidge [9]

[21] See Realestate.com.au Pty Ltd v Hardingham (2022) [2022] HCA 39 [41] (Hardingham)

[22] Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 [90(4)]

[23] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 [34]

[24] Cellarit Pty Ltd v Cawarra Holdings Pty Ltd [2018] NSWCA 213 [189] citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) CLR 165 [40]

[25] Hardingham [51]; see also Handbury v Nolan (1977) 13 ALR 339 [341] - [342]

[26] Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [85]; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [21]

[27] Outline of Respondent's Submissions, 17 October 2025 [20] - [22]

[28] [1986] HCA 14; (1986) 64 ALR 481

[31] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Siemens Ltd [2016] FWC 2041

[33] See for example the Supplementary Statement of Dale Anwyl, 21 November 2025, [1], which indicates he was engaged in 1997

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