//
[47]
[2021] FWC 3468
General information, not legal advice.
Fair Work Commission
2021-06-23
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] The Australian Rail, Tram and Bus Industry Union and the Australian Municipal, Administrative, Clerical and Services Union (ASU) (the Unions) have filed applications pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute. The dispute involves the restructure of roles within corporate functions of Sydney Trains and NSW Trains and the interpretation and application of the Sydney Trains Enterprise Agreement 2018_[1]_ and the NSW Trains Enterprise Agreement 2018[2] (the Agreements), in respect of the status quo provision of the Dispute Settlement Procedure (DSP) in each of the Agreements.
[2] The Unions' applications are made against the two separate entities, Sydney Trains and NSW Trains (the respondents). Sydney Trains is the named employer in the Sydney Trains Enterprise Agreement 2018 and NSW Trains is the named employer in the NSW Trains Enterprise Agreement 2018. As the nature of the four dispute notifications concerns essentially the same subject matter, they have been joined for the purposes of resolution under s.739 of the Act.
[3] Further, the wording in the DSPs of both Agreements appears to be identical. Under clause 5.1 of the Agreements, the Agreements are said to be binding on the Unions.
[4] The parties were granted permission to be legally represented pursuant to s.596(2)(a) of the Act. This decision relates only to whether the status quo provisions of the DSPs are being complied with by the respondents.
[5] In 2020, a separate entity, Transport for NSW (TfNSW), made a decision to achieve an integrated approach to corporate functions in the Transport Service. As a result, in September 2020, the respondents commenced a 'Corporate Functions Review' (CFR) and held discussions regarding the CFR with TfNSW and the Unions.[3]
[6] It is appropriate at this point to note the relevant terms of the Transport Administration Act 1988 (NSW) (the TAA)[4]:
Pursuant to the TAA, Sydney Trains and NSW Trains are NSW Government agencies with separate corporate status.
• The principal objective of Sydney Trains is to deliver safe and reliable railway passenger services in an efficient, effective and financially responsible manner.[5]
• The principal objective of NSW Trains is to deliver safe and reliable NSW railway passenger services (including services outside NSW originating or terminating inside NSW) in an efficient, effective and financially responsible manner.[6]
• The affairs of Sydney Trains are to be managed and controlled by a Chief Executive in accordance with any directions of TfNSW.[7]
• The affairs of NSW Trains are to be managed and controlled by a Chief Executive in accordance with any directions of TfNSW.[8]
• The TfNSW may give directions to Sydney Trains and NSW Trains in relation to the exercise of their functions.[9]
• The affairs of TfNSW are to be managed and controlled by the Transport Secretary. The Transport Secretary is to be the Secretary of the Department of Transport.[10]
• The Transport Secretary and the Chief Executives of Sydney Trains and NSW Trains are in the exercise of their functions subject to the control and direction of the Minister.[11]
• The TAA provides that the Government of New South Wales may employ persons in the Transport Service to enable TfNSW to exercise its functions.[12] The Transport Service of NSW consists of those persons employed by the Government of New South Wales in the service of the Crown.[13]
[7] The outcome of the discussions between TfNSW and the respondents was that the CFR proposes to integrate a number of corporate functions (white collar) existing within the respondents with TfNSW.[14] As a result, some employees of the respondents subject to the CFR may be offered a role with TfNSW which they can either accept or decline.
[8] Where an employee accepts a position with TfNSW they will be covered by the Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2019.[15]
[9] In November 2020, consultation with the Unions and other employee associations (the Combined Unions) commenced regarding the CFR. In February 2021, the Combined Unions met with the respondents and TfNSW regarding the CFR, and further meetings were held in April 2021.
[10] Employees of the respondents who are offered a new role with TfNSW and who decline the offer, or are unsuccessful in applying for another role, or who are not offered a role with TfNSW or the respondents, will be subject to a Deed[16] dated 3 May 2018, which the Unions are a party to, that sets outs the process and entitlements when managing excess employees.[17]
[11] The duties of employees who accept employment with TfNSW will be functionally identical or very similar to their current role with the respondents.[18]
[12] The dispute is said by the Unions to relate to 'the imminent restructure of roles within corporate functions' of the respondents.[19] The Unions state that during the consultation process the respondents advised that where employees are matched to a role in TfNSW they will be offered employment under the Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2019 and if the employee rejects the offer and their role is no longer required, they will be managed in accordance with the Managing Excess Employees in the Rail Entities Deed 2018 (the 2018 Deed).[20]
[13] More specifically, the Unions contend that the respondents have unreasonably asked affected employees to accept inferior working conditions with TfNSW where the consequence of a refusal includes being made redundant.[21] The alleged inferior working conditions for employees accepting roles with TfNSW was identified in correspondence sent by the Unions to the respondents on 19, 24 and 29 April 2021[22] as being:
Loss of access to redundancy entitlements contained in the 2018 Deed
Loss of rights to an opal card after two years
[14] Although in an email dated 17 May 2021, sent to the parties from NSW Trains following a meeting between the parties held on 12 May 2021, two additional Union claims were identified for employees who accept a role with TfNSW as being:
No forced redundancy for a five year period
• Picnic day holiday or compensation in lieu[23]
[15] It is submitted by the Unions that the respondents are required to consult with affected employees about changes to the workforce in accordance with the consultation provisions of the Agreements. As the consultation has not resulted in agreement between the parties, the Unions submit that the respondents must observe the status quo provisions of the Agreements' dispute settlement provisions and not change any work procedures or practices of the affected employees that were in place prior to the announced restructure.[24]
[16] The originating applications sought three 'orders' from the Commission of which two relate to the status quo being maintained until the dispute is finally determined.[25] Following the hearing, an amendment to the remedy sought was provided by the Unions that proposed the Commission issue the following determination:
"1 Clause 8 of the Sydney Trains Enterprise Agreement 2018:
2 Clause 8 of the NSW Trains Enterprise Agreement 2018:
iii. otherwise progressing the restructure, including by notifying any employee that their position is redundant as a result of the CFR or terminating any affected employee's employment on that basis."[26]
[17] This decision deals with the question as to whether the status quo provisions of the Agreements are invoked by the nature of the dispute and if so, what, if any, determination should result.
[18] It is noted that the Unions' claims in respect of the alleged inferior working conditions for employees accepting a role with TfNSW are said by the respondents to be matters not within their control but rather rest with the potential employer, TfNSW, who has to date made some concessions in regard to the Unions' claims.[27] Further, the respondents do not accept that inferior conditions are being offered by TfNSW.[28]
[19] Sections 738 and 739 of the Act authorise the Commission to arbitrate a dispute in accordance with a term of a dispute settlement procedure of an enterprise agreement. Section 739 of the Act is titled Disputes dealt with by the Fair Work Commission, and states at sub-s.739(1):
"This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute."
"If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so."
[21] The Commission's jurisdiction to deal with the present applications arises from the DSPs in the Agreements. When arbitrating a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is not exercising judicial power, but a power of private arbitration.[29] As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[30] That involves deciding "all questions both of law and of fact"[31] that arise in the dispute, subject to any limitation on power in the dispute settlement clause and a requirement not to make a decision that is inconsistent with the Act, or a Fair Work instrument that applies to the parties.
[22] There is no contention that the dispute procedures of the Agreements have not been followed (other than the status quo provisions) and that the dispute is now properly before the Commission. The Unions' applications and the respondents' responses set out the discussion and consultation that has occurred to date. The Unions assert that the respondents have unreasonably asked affected employees to accept inferior working conditions with a different employer and that the dispute remains unresolved. In addition, it is submitted that the respondents are required to consult under the terms of the Agreements about changes to the workforce and where agreement is not reached, the dispute procedures require the status quo to prevail. It is said by the Unions that the respondents are not adhering to the status quo terms of the dispute procedures of the Agreements.
[23] The evidence in this matter was that the CFR comprised of a restructure of various corporate functions that are performed in-house by the respondents where instead of the respondents' employees undertaking the corporate roles, they will be centralised within TfNSW.[32] The consequence of the restructure will be that a number of roles within the respondents' workforces will be abolished.
[24] Clause 7 - Consultative Process of the Agreements lists a number of non-exhaustive issues that are subject to consultation and relevantly 7.2(a) and (e) include:
"(a) Changes in the composition, operation, location or size of the workforce, or in the duties and skills required, the elimination or reduction of job opportunities;
(e) changes to the operational structure of the Employer."
[25] Ms Justine Krajewski, a Senior Workplace Relations Consultant for Sydney Trains, (who is also affected by the restructure[33]) attested to the consultation undertaken by the respondents with the Unions and affected employees.[34] Ms Krajewski's evidence was that once a decision has been made regarding the proposed structures, employees are notified at a Determination briefing where they are advised of the final structure. Employees then attend a meeting with their manager and are informed about the decision and how it impacts them. Affected employees are sent a 'Decision on Change' letter which advises of the decision and advises that the Implementation Period under the Deed has commenced.[35]
[26] Ms Krajewski's evidence was that the Deed provides for a period of 12 months where employees will receive support including career coaching, vacancy advice, interview assistance, independent financial advice, information sessions, priority assessment and job application workshops.[36] Contained within Ms Krajewski's witness statement was a list of functions which set out the status of the process on the nominated function including whether a Determination had already been made.[37]
[27] It is necessary to set out clause 8 Dispute Settlement Procedure (DSP) (DSP) of the Agreements:
"8.1. The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.
8.2. This procedure shall apply to any dispute that arises about the following:
(a) matters pertaining to the relationship between the Employer and Employees (including workload changes);
(b) matters pertaining to the relationship between the Employer and the Employee organisation(s}, which also pertain to the Agreement and/or the relationship between the Employer and Employees;
(c) deductions from wages for any purpose authorised by an Employee who will be covered by the Agreement;
(d) the National Employment Standards; and
(e) the operation and application of this Agreement.
(a) Matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth); or
(b) Decisions made regarding priority assessment in respect of:
8.4. Any dispute between the Employer and Employee(s) or the Employee's Representative shall be resolved according to the following steps:
STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their Union delegate directly with the local supervisor/manager. The local supervisor/manager shall provide a written response to the Employee(s) or their Union delegate concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose "status quo" means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.
STEP 2: If the dispute remains unresolved, or if the dispute involves matters other than local issues, the Director Workplace Relations, Policy and Transition Services or their nominee, a divisional management representative and the Employee(s) and/or the Employee(s) Representative, Union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of the completion of Step 1 or the Director Workplace Relations, Policy and Transition Services being notified of a dispute involving matters other than local issues.
STEP 3: If the dispute remains unresolved, each party to the dispute shall advise in writing of their respective positions and negotiations about the dispute will be held between the Employee Representative(s) or Union official, the Chief Executive of Sydney Trains or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.
STEP 4: If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by the Fair Work Commission provided that arbitration is limited to disputes that involve matters listed in sub-clause 8.2 of this procedure.
8.5. By mutual agreement confirmed in writing, Step 3 outlined above may be avoided, and the parties to the dispute may seek the assistance of the Fair Work Commission in the terms outlined at Step 4.
8.6. If it is decided to refer the matter to the Fair Work Commission, the referral must take place within 72 hours, excluding weekends and public holidays, of completing Step 3. A copy of the notification must be forwarded to all relevant parties to the dispute.
8.7. The parties to the dispute may extend the timeframe of Steps 2 - 4 by agreement. Such agreement shall be confirmed in writing.
8.8. The timeframes in Steps 1 to 4 above are exclusive of weekends and public holidays."
[28] The Unions contend that the rationalisation of positions within the respective respondents' workforces will, if allowed to continue, lead to employees being redeployed to roles on less favourable conditions in another employing entity or ultimately being made redundant. It is said that the dispute is whether the changes can or should occur.[38]
[29] As the dispute has not been resolved, it is argued that the status quo provisions of the DSPs restrain the respondents from continuing to implement the proposed changes. The Unions note that consultation on the changes has occurred and no agreement has resulted, and pursuant to subclause 7.4 Unresolved Matters of clause 7 Consultative Process the unresolved matters are to be dealt with in accordance with the DSPs.
[30] Sub clauses 8.1 and 8.4 of the DSPs provide that while the dispute is subject to the DSP, work is to continue normally and the status quo in place prior to the change that gave rise to the dispute is to continue. It is acknowledged that the DSP status quo provisions refer to 'work procedures and practices'. In this regard it is submitted on behalf of the Unions that the engagement of employees in various teams to perform particular tasks in a particular way is the work procedure and practice in place. Due to the CFR, this work function is to change.[39]
[31] It is accepted that ongoing consultation as per clause 7 of the Agreements has been occurring between the parties. Sub clause 7.4 Unresolved Matters of the clause 7 Consultative Process provides that where matters cannot be resolved through the consultative process, the 'dispute' is to be dealt with in accordance with clause 8 the Dispute Settlement Procedure. Under clause 7 Definitions of the Agreements, the word dispute is defined to mean 'any grievance, claim, problem or issue at work arising between the parties'.
[32] The meaning of dispute as defined in the Agreements is extensive and the ability of a dispute to be dealt with under the DSPs is also of wide compass considering the matters that can be dealt with as set out at subclause 8.2, in particular 8.2(a), 'matters pertaining to the relationship between the Employer and Employees (including workload changes)'.
[33] The status quo provisions in the DSPs, however, are somewhat more limiting in respect of the type of dispute that is subject to their terms. Such limitation is presumed to avoid the potential situation where for example, any matter in dispute pertaining to the relationship between the employer and employee is subject to the status quo provisions until the dispute is finally resolved.
[34] The words of limitation with regard to 'status quo' are set out at Step 1 of the DSPs:
"The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose "status quo" means the work procedures and practices in place immediately prior to the change that gave rise to the dispute"
[35] The meaning of the words 'work procedures and practices' was considered by Harrison SDP in the matter of Australian Rail, Tram and Bus Industry Union v Rail Corporation New South Wales (RailCorp)[40] (RailCorp) as they appeared in the Rail Corporation New South Wales, Rail Infrastructure Corporation and State Rail Authority of New South Wales Enterprise Agreement 2005 at subclause 8.6. The wording of the status quo provisions considered in that matter are for all relevant purposes the same as those under consideration in the current Agreements.
[36] In that matter the Senior Deputy President formed the view that the wording 'means the work procedures and practices in place immediately prior to the change that gave rise to the dispute' was directed to identifying the time at which the status quo was to be assessed. The Senior Deputy President held that the definition of a work practice meant the procedures and practices of a respondent employer who in that matter was attempting to act outside its existing Selection Policy and was therefore captured by the status quo wording of a work procedure and arguably a work practice.[41]
[37] The wording in Step 1 of the DSPs, "status quo" means the work procedures and practices in place immediately prior to the change that gave rise to the dispute, can be contrasted to other enterprise agreement status quo provisions that simply state that the status quo is to be maintained until the dispute is resolved.[42] Here, the application of the status quo is specifically stated to be 'the work procedures and practices in place immediately prior to the change that gave rise to the dispute."
[38] Harrison SDP noted at [34] in arriving at her conclusion, 'It may well be that the clause (status quo) is not applicable to or able to be invoked in respect of all disputes or grievances.''
[39] A dispute resolution clause is a mandatory requirement in the approval of enterprise agreements under the Act. There is however no statutory requirement that unresolved disputes are to be dealt with by the Commission and if so by arbitration,[43] or that a dispute procedure contain a 'status quo' provision. A status quo provision may work to prevent an employer from implementing what it would otherwise be permitted to do under an enterprise agreement. In this matter the parties have agreed to such terms and are obliged to comply with them.[44]
[40] The dispute as contended by the Unions is the respondents' introduction of the workplace change that has precipitated the need to engage in consultation as required by clause 7 - Consultative Process. As a result of the changes occurring in the workplace, positions are being made redundant. It is the Unions' submission that for the purposes of the status quo it is the work systems and structures that presently exist that are to be restrained from any proposed change.[45]
[41] Ms Wright, the Deputy Branch Secretary of the New South Wales, and ACT (Services) Branch of the ASU, provided a witness statement on behalf of the Unions and filed two of the four F10 applications C2021/2817 and C2021/2821. In the F10s filed, the dispute is described as relating to 'the imminent restructure of roles within corporate functions' of the respondents as these roles will be progressively 'transferred' to TfNSW.'[46]
[42] Despite the Unions' reference to employees being directed to 'transfer',[47] on the evidence, there is no such direction. Employees are being offered a role with a new employer TfNSW, with no obligation to either accept or decline the offer.
[43] It is put that the respondents have unreasonably asked affected employees to accept inferior working conditions with a different employer where the consequences of a refusal include termination on the ground of redundancy.[48] The F10 applications state that matters raised by the Unions have not been resolved through the consultative process.
[44] The written evidence of Ms Wright was that the CFR proposal does not provide for employees who are offered a role at TfNSW the ability to maintain the terms and conditions of employment that they currently enjoy in the employment of the respondents.[49] The attachments to Ms Wright's witness statement include correspondence between the Unions and the respondents which indicates that the issues in dispute primarily relate to the conditions of employment being offered by TfNSW which are seen as inferior to those currently enjoyed by the respondents' employees.
[45] The Unions' position is at odds with that of the respondents. The respondents accept that as a result of TfNSW determining that certain corporate functions that are performed by their employees are to be integrated into TfNSW that these functions and the positions they occupy will become redundant. As such, consultation with the affected employees has commenced. The respondents submit that there is no dispute in relation to the consultation and implementation of the CFR.[50]
[46] In respect of the status quo, the respondents submit that redundancies are managed in accordance with an extant 'Deed' that all parties are subject to, which prevents any employee being forcibly made redundant for at least 12 months from notification of the 'implementation period'[51] and that there is no work procedure or practice that has been identified as being the subject of change. With the decision and redundancy process not being a work procedure or practice and having acted and continue to act in accordance with the relevant work procedures and practices, there is no dispute capable of resolution.[52]
[47] While every dispute that satisfies 8.2 of the DSPs[53] is to be dealt with under the DSP including by way of arbitration in the Commission, the status quo provisions of the DSPs are limited to maintaining the 'work procedures and practices' in place immediately prior to the change that gave rise to the dispute.
[48] The words 'work procedures and practices' must be given some work to do. I accept that the reference to work procedures and practices provides a wide field of consideration but they do not cover every occasion where a dispute is raised. As Harrison SDP opined in RailCorp, it may well be that the status quo clause is not applicable to or able to be invoked in respect of all disputes or grievances. And as also stated by Tracey J the Federal Court decision Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Thiess Pty Ltd,[54] not all disputes will necessarily be subject to a dispute procedure, it will depend on the actual wording of the dispute procedure.
[49] There was no evidence that the Unions' grievance was with the application of the 'Deed' that provides for a redundancy process where a position with the respondents is made redundant. While the gravamen of the dispute gleaned from the correspondence between the parties referred to above are the conditions TfNSW is offering to those employees who accept a role with TfNSW, it is also put that it concerns the imminent restructure of the respondent's corporate functions.
[50] The Commission accepts as advocated by the respondents that the terms and conditions of employment offered by a third party, in this case TfNSW, are not matters pertaining to the relationship between the respondents and their employees and neither on that ground or any other ground under 8.2 of the Agreements does such a dispute fall within the terms of the DSPs.
The terms of employment offered to any of the respondents' employees by TfNSW are solely within the prerogative of TfNSW which has been made clear by the respondents.[55]
[51] However, the dispute as stated by the Unions involves the imminent restructure of roles within the respondents' enterprises,[56] confirmed in the Unions' 29 April 2021 notification[57] to the respondents of a Step 3 dispute under the DSP which: 'exists regarding the Corporate Functions review' following the respondents advising that they are performing a review which involves 'transferring' corporate employees to TfNSW.
[52] The word 'work' is given an extensive meaning in the Macquarie Online Dictionary to include 'employment, a job, productive or operative activity, a task or undertaking.' The change that has given rise to the dispute is the identification by the respondents of corporate roles within the respondents' businesses that will result in those roles being considered redundant as they will no longer be required to be performed by anyone within the respondents' businesses. This change has resulted in the respondents consulting with the affected employees and commencing the processes as set out in the Deed titled: Managing Excess Employees in the Rail Entities 2018[58] and holding Determination briefings and sending affected employees a Decision on Change letter.[59] This, in the Commission's view, is a change in relation to work procedures for the purposes of the status quo provisions in the DSPs.
[53] While the respondents insist that they are not proposing a change to a work procedure or practice, they are changing the structure of their workplaces with the identification of roles as being redundant and initiating the consultation process with the affected employees and implementing the terms of the Deed. In applying the ordinary meaning of a change to 'work procedures and practices', this must relate to the structure of the workforce which is being altered as a result of the CFR and the concomitant redundancy determinations.
[54] By virtue of the terms of the DSPs, the status quo provisions operate to preserve the work procedures and practices in place immediately prior to the change giving rise to the dispute. The Unions state that the dispute relates to the imminent restructure of roles within the respondents' enterprises and whether the changes can or should occur,[60] and that the status quo is the work structures that presently exist. The result being that the respondents are bound by the Agreements' DSPs to stay the implementation of their role in the CFR until the dispute is resolved.
[55] While such an outcome may be seen by the respondents as a hinderance to what may be to the respondents a justifiable change to work procedures, as the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd[61] stated: "The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome".[62]
[56] In any event, the DSPs at Step 4 provide that the dispute may be referred to the Commission for conciliation and if not resolved shall be arbitrated, provided that the arbitration is limited to matters within subclause 8.2 of the DSPs.
[57] As submitted by the Unions, the determination by the Commission as to whether the status quo provisions of the DSPs are invoked in the current circumstances does not require the merits of the dispute to be addressed.[63] This is a separate exercise the Commission must undertake under the DSPs if requested to do so.
[58] For the forgoing reasons the Commission determines that the dispute is subject to the status quo provisions of the DSPs and the following determination is therefore made:
[59] In accordance with the Dispute Settlement Procedures of the Sydney Trains Enterprise Agreement 2018 and the NSW Trains Enterprise Agreement 2018, Sydney Trains and NSW Trains are restrained from taking further steps to implement the proposed workplace restructure arising from the Corporate Functions Review, including by:
issuing Decision on Change letters;
initiating Implementation Periods under the Managing Excess Employees in the Rail Entities Deed 2018
otherwise progressing the restructure, including by notifying any employee that their position is redundant as a result of the Corporate Functions Review or terminating any affected employee's employment on that basis.
[60] It is noted that the above Determination does not and is not intended to have any application to TfNSW.
Ms L Saunders of Counsel and Mr P Pasfield Solicitor Slater and Gordon on behalf of the applicant Unions
Ms A DeBoos and Mr P Willink Solicitors Kingston Reid on behalf of the respondents Sydney Trains and NSW Trains
[3] Statement of J. Krajewski Exhibit R1at [13-14]
[4] Statement of J. Wright Exhibit A1 at [10-18]
[14] Response to dispute dated 26 May 2021 at [2]
[15] An award of the Industrial Relations Commission of New South Wales
[16] Annexure JK2 to statement of J. Krajewski Exhibit R1
[17] Statement of J. Krajewski Exhibit R1 at [11]
[22] Attachments JW1, JW2 and JW4 to statement of J. Wright Exhibit A1
[23] Attachment JW8 to statement of J. Wright Exhibit A1
[26] Applicant's proposed determination of 18 June 2021
[27] Statement of J. Krajewski Exhibit R1 at [27]
[28] Outline of submissions of 15 June 2021 at [14]
[32] Statement of J. Krajewski Exhibit R1 at [15-16]
[38] Outline of submissions dated 9 July 2021 (sic) at [1]
[39] Written reply submissions of 16 June 2021 at [3-4]
[42] See for example the terms of the enterprise agreements in AFMEPKIU v Ardmona Foods Ltd [2006] FCA 1039; (2006) 155 IR 211 and CEPU v Thiess Pty Ltd [2011] FCA 1020; United Voice v Foster's Australia Limited t/a Carlton and United Breweries Limited [2014] FWCFB 4104
[43] Arbitration by the Commission is provided for under the Model Term for Dealing with Disputes for Enterprise Agreements at Schedule 6.1 of the Regulations
[44] Fair Work Act 2009 (Cth) s.50
[45] Reply submissions of 16 June 2021 at [9]
[47] Union's outline of submissions of 9 July 2021(sic) at [8]; F10s at 2.1(8)
[49] Statement of J. Wright Exhibit A1 at [29]
[50] Outline of submissions of 15 June 2021 at [31]
[51] Statement of J. Krajewski Exhibit R1 at [20]
[52] Outline of submissions of 15 June 2021 at [27-28]
[53] Noting the specified exclusions at 8.3
[55] See email of Ms Tooth dated 17 May 2021; attachment JW8 to statement of J. Wright Exhibit A1
[57] Attachment JW4 of statement to J. Wright Exhibit A1
[58] Annexure JK2 to statement of J. Krajewski Exhibit R1
[59] Statement of J. Krajewski Exhibit R1 at [20]
[60] Unions' outline of submissions dated 9 July 2021 (sic) at [1]
[63] Unions' outline of submissions dated 9 July 2021 (sic) at [3]
Printed by authority of the Commonwealth Government Printer
(2001) 203 CLR 645
(2006) 155 IR 211