Australian Rail, Tram and Bus Industry Union v Qube Logistics

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. By an Originating Application filed on 23 June 2023, the applicant seeks relief in the form of, among other things, declarations that the respondent contravened certain provisions of a 2015 and 2019 Enterprise Agreement, and therefore, s 50 of the Fair Work Act 2009 (Cth) (FW Act) by failing to correctly pay employees penalty rates and various forms of allowances. Various forms of relief are sought including the appointment of a referee to inquire into the employment records of the respondent in relation to the employees and prepare a written report in relation to amounts that ought to have been paid, but have not been.
2. There is an issue concerning the standing of the applicant to bring the proceeding to the extent that it seeks relief for contraventions of s 50 of the FW Act deriving from alleged contraventions of the Qube Logistics (Rail) Train Crew and RTBU NSW Enterprise Agreement 2015 (2015 EBA). There are additional claims concerning contraventions of a 2019 Enterprise Agreement. The point taken by the respondent in its defence finds crisp expression at paragraph 59A:

Further to the matters alleged in paragraph 59 herein and in any case:

(a) it refers to and repeats the matters alleged in paragraph 3(d) of the statement of claim and herein;

(b) it says that the 2015 EA did not apply to the RTBU at the time it commenced these proceedings; and

(c) by reason of the matters alleged in subparagraphs (a) and (b) above and column 2 of item 4 of s 539(2) of the FW Act, it says that the RTBU does not have standing to seek any of the relief sought in relation to the alleged contraventions of s 50 of the FW Act, deriving from alleged contraventions of the 2015 EA.

1. The effect of s 539(2) of the FW Act is that for each civil remedy provision, the persons referred to in column 2 of the table may, subject to ss 540 and 544, apply to the courts referred to in column 3 in relation to a contravention or proposed contravention of the specified provision. Item 4 is concerned with s 50 of the FW Act. Column 2 relevantly refers to an employee, an employer and "an employee organisation to which the enterprise agreement concerned applies". The issue raised by the defence is that the applicant does not have standing because, when the proceeding was commenced, the 2015 EBA had ceased to apply to the applicant.
2. On the evidence before me, the applicant's legal representatives were untroubled by that defence, confident that the law had been correctly stated in the applicant's favour by Branson J in Miller v University of New South Wales [2000] FCA 1563, where her Honour considered a corresponding provision relating to the ability to recover penalties for breach of an award at s 178 of the Workplace Relations Act 1996 (Cth). That confidence was weakened upon publication of the judgment of the Full Court, on 17 October 2024, in the matter of Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCAFC 132; (2024) 305 FCR 554, where Wheelahan J, with the concurrence of Rangiah and Snaden JJ at [101] -[113], doubted the conclusion of Branson J, at least as representing the present position under s 539(2) of the FW Act.
3. A decision was then made to identify a potential plaintiff to be the representative applicant to commence a representative proceeding on behalf of each of the affected employees, in order to preserve their claims in the event that the respondent succeeds on the standing defence. But rather than commence a new proceeding, the applicant has chosen to apply to amend the current proceeding by adding to it a representative proceeding, initially proposed to be in the name of Mr Paul Kenny but now in the name of Mr Antonio Gaudiosi.
4. The form of the amendments to the Originating Application and the Statement of Claim, save for the references to Mr Kenny, is in accordance with the attachments to the applicant's interlocutory application dated 3 April 2025. The respondent opposes the amendment application.
5. Separately, the respondent by interlocutory application dated 22 April 2025 sought an order pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth) that the determination of the question of the applicants standing arising from paragraph 59A of the defence be heard and determined separately. The applicant initially opposed that application.
6. I resolved that issue when I ordered on 9 May 2025, that the question of the applicant's standing arising from paragraph 59A of the defence be heard and determined separately from and before any other questions arising in the proceeding. The separate question hearing was listed for 8 September 2025.
7. At a hastily convened case management hearing on 25 August 2025, the parties made submissions about the effect of the decision of Snaden J in National Tertiary Education Union v Monash University (No 2) [2025] FCA 728, published on 4 July 2025. In that matter his Honour addressed the same issue as to the proper construction of column 2 of item 4 of s 539(2) of the FW Act at [39] - [60]. His Honour concluded that the applicant had standing to pursue contraventions of an enterprise agreement that had ceased to apply prior to the commencement of the proceeding. His Honour's reasons are comprehensive and if I may say so, correct. The gravamen of his Honour's reasons finds expression at [56] - [60]:

The statutory object to which the FW Act is directed is to "...provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by [amongst other things] enabling fairness ... at work ... by ... protecting against unfair treatment and discrimination, [by] providing accessible and effective procedures to resolve grievances and disputes, and [by] providing effective compliance mechanisms": FW Act, s 3(e). Having regard to that object, there is no obvious reason why - and, indeed, reason to doubt that - the legislature should be presumed to have seen fit to empower employee organisations to prosecute alleged breaches of enterprise agreements only during their currency.

That construction would seem very much to dampen, rather than promote, the statutory aspiration for effective compliance mechanisms. Moreover, there is a measure of absurdity in the notion that an employee organisation should be competent to prosecute an enterprise agreement breach that transpires on the final day of the agreement's operation but only if its application for relief is made that same day. And, plainly, the promotion of effective compliance mechanisms sits no less uneasily with the curtailment of a right of enforcement otherwise conferred upon employee organisations, which invariably act as bargaining representatives in the negotiation and perfection of enterprise agreements; and which, just as invariably, possess greater means and incentive to hold employers to their bargain than the individual employees that they represent.

Beyond the present tense in which item 4 is relevantly expressed, there is no contextual cue supportive of Monash's construction. But that present tense was equally present in Miller (and, indeed, in the competing construction for which the NTEU contends). Although expressed in different terms, I discern nothing that substantively differentiates the statutory object that was there in play from the object that relevantly underpins the FW Act. Respectfully, then, the reasoning in Miller is compelling.

The present tense in which item 4 is relevantly expressed is not dispositive. What is material is the point in time to which it pertains: does standing turn upon whether an applicant answers the description at the time that a proceeding is commenced or at the time that a cause of action accrues? If, as Monash contends, it is the former, then there is considerable scope for absurdity. It is to be recalled that item 4 confers standing upon "an employee" (qualified in the ways for which s 540(1) of the FW Act provides). As Miller makes sufficiently clear, it cannot be that a person who was an employee at the time that conduct was engaged in in contravention of an enterprise agreement - and who was relevantly affected thereby - should be precluded from prosecuting an action for relief if, at the time of applying for it, he or she had ceased to be an employee. It must, instead, be that the reference to "an employee" is to be understood as a reference to a person who is an employee when the conduct in question transpires.

So too must one read the reference in item 4 to "an employee organisation to which an enterprise agreement concerned applies". Insofar as concerns its assertions that Monash contravened the 2014 EA, the NTEU qualifies as such a person; and, thereby, has standing to prosecute the claims for relief that are pressed.

1. At the case management hearing, Mr Ternovski for the respondent did not concede the answer to the separate question in this proceeding. Rather, he requested that the hearing date be vacated and that I determine the separate question on the papers. He did not submit to me that the reasoning of Snaden J in Monash University is plainly wrong and that I should not follow it. Rather, he put a formal submission that the decision is wrong. In doing so he accepted the inevitability that I would then resolve the separate question in this proceeding adversely to the respondent. To his credit he was quite frank about the tactical course that the respondent wishes to consider. Once I have answered the separate question, there may be an application for leave to appeal to the Full Court. Accordingly, he also submitted that I should adjourn this proceeding for case management until after expiry of the time period for an application for leave to appeal.
2. Mr Boncardo for the applicant did not oppose that course. Mr Ternovski stated that he did not intend to file any further submissions and was content to rely on his written submission filed on the separate question application. I granted Mr Boncardo until 4 pm on 29 August 2025 to file any further written submission for his client. He took up the opportunity. His submissions, unsurprisingly, are to the effect that the decision in Monash University forecloses the argument of the respondent in this proceeding. I agree.
3. This explains my answer to the separate question. There is one final matter. A suggestion was made that I should give leave to appeal pursuant to r 35.01 of the Rules, in anticipation that an oral application for leave will be made upon pronouncement of these reasons. I do not consider that I should be the one to consider the leave application. Properly, it is a matter for the intellectual engagement of another judge of this Court. A more practical reason is that I intend to simply publish these reasons by email to the legal representatives for the parties, so as to avoid incurring unnecessary costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.