s.234 - Application for an intractable bargaining declaration

Qube Logistics (Rail) Pty Ltd Trading AS Qube Logistics

Application for an intractable bargaining declaration

• [1] On 12 April 2024, the Australia Rail Tram and Bus Industry Union (RTBU) made an application for an intractable bargaining declaration pursuant to s.234 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a proposed enterprise agreement (the Proposed Agreement) to replace the Qube Logistics (Rail) Train Crew NSW Enterprise Agreement 2019 (the 2019 Agreement)

• [2] The Respondent to the application is Qube Logistics (Rail) Pty Ltd (Qube). Qube employs rail crews and drivers in New South Wales. These employees are currently covered by the 2019 Agreement. The 2019 Agreement replaced the Qube Logistics (Rail) Train Crew NSW Enterprise Agreement 2015 (the 2015 Agreement).[1]

• [3] The matter was initially listed for directions on 19 April 2024. The RTBU filed submissions and evidence in the matter on 10 May 2024 and 31 May 2024. Qube filed evidence and submissions on 27 May 2024. On 3 and 4 June 2024, I conducted a hearing in relation to the application. Before the conclusion of the hearing, the proceedings were adjourned by agreement of the RTBU and Qube so they could undertake a period of bargaining supervised and assisted by Deputy President Saunders.

• [4] The parties attended three conferences before Deputy President Saunders but did not resolve the matter. The matter was then listed for further directions. The RTBU filed supplementary submissions and evidence on 28 October 2024 and Qube filed supplementary evidence and submissions on 4 November 2024. The hearing resumed on 7 November 2024.

• [5] At the conclusion of the hearing on 7 November 2024, the parties consented to a further conference before Deputy President Saunders which took place on 15 November 2024.

• [6] The parties reached agreement at the conference subject to approval by a majority of RTBU delegates. However, the RTBU delegates unanimously rejected the in-principle agreement.

• [7] The RTBU filed final submissions on 23 December 2024, and Qube filed final submissions on 24 December 2024.

• [8] For the reasons that follow I have made an intractable bargaining declaration in relation to the Proposed Agreement which specifies a two-week post-declaration negotiating period.

• [9] I granted permission for both parties to be legally represented at the hearing. Mr Boncardo, Counsel appeared for the RTBU. Mr Follett KC, Senior Counsel and Mr Ternovski, Counsel appeared for Qube.

• [10] The following witnesses gave evidence on behalf of the RTBU:

1. Mr Kevin Pryor, Organiser, RTBU
2. Mr Gregory Woods, Qube Locomotive Driver and RTBU delegate
3. Mr Toby Warnes, Director of Organising, RTBU
4. Mr Peter Matthews, Legal Officer, RTBU

• [11] Mr Pryor and Mr Matthews were cross examined by Senior Counsel for Qube at the hearing on 3 June 2024. Mr Woods' and Mr Warnes' witness statements were admitted without objection, and they were not required for cross-examination. At the hearing on 7 November 2024, supplementary witness statements of Mr Matthews and Mr Woods were admitted without objection, and they were not required for cross-examination by Qube.

• [12] Mr Steven Ellem, Group Manager - Industrial Relations, gave evidence on behalf of Qube. Mr Ellem was cross-examined by Counsel for the RTBU on 3 June 2024. At the hearing on 7 November 2024, a supplementary witness statement of Mr Ellem was admitted without objection, and he was not required for cross-examination by the RTBU.

• [13] On 19 May 2022, Qube issued a notice of employee representational rights to employees covered by the 2019 Agreement notifying that Qube was commencing bargaining for a replacement agreement.[2] The nominal expiry date of the 2019 Agreement was 31 March 2023.

• [14] On 1 June 2022, the first bargaining meeting was held between representatives of Qube, representatives of the RTBU, and employees of Qube. Follow up meetings then occurred on:

• [15] Mr Pryor said that during this time, the parties had a working draft Proposed Agreement, which was a copy of the 2019 Agreement with tracked changes showing proposed amendments.[4]

• [16] On 24 January 2023, Qube provided the RTBU with an updated version of the Proposed Agreement which Mr Pryor observed had been changed as follows:
  1. previous formatting indicating changes had been removed;
  2. changes to the Proposed Agreement were not obvious or marked up;
  3. there were material changes to clause 4 with clause 4.2 being deleted; and
• d. the RTBU had not been advised of this change and other changes.[5]

• [17] Clause 4.2 of the 2019 Agreement (and the 2015 Agreement) provides that:

Upon incorporating Award terms into the Agreement, the incorporated Award terms are to be read as altered with the appropriate changes to make them provisions of the Agreement rather than provisions of the Award. So, for example, the loadings, penalties and allowances in the Award apply to the rates of pay due under the Agreement, rather than the Award rates.[6]

• [18] Mr Pryor said that he had always understood that the effect of clauses 4.1 and 4.2 was that the Rail Industry Award 2020 (the Award) was incorporated into the 2019 Agreement and the penalties, loadings and allowances in the Award applied to rates of pay due under the 2019 Agreement.[7]

• [19] On 28 February 2023, the RTBU filed an application for good faith bargaining orders in relation to Qube's attempt to change clause 4 in the Proposed Agreement. The Fair Work Commission (Commission) assisted the parties which resulted in Qube agreeing to reverse the changes.[8]

• [20] On 2 March 2023, Qube began an access period for voting in relation to the Proposed Agreement. The ballot closed on 14 March 2023. The Proposed Agreement was not endorsed by the RTBU. 81% of employees voted against the Proposed Agreement. Mr Pryor said that the main reasons why the RTBU bargaining team did not endorse this agreement was because:

• there were changes to Clause 4.2 removing "allowances and shift penalties" so these would not be incorporated into the Proposed Agreement;
• changes were made to clause 8.2, voluntary redundancy process;
• changes were made to clause 18.2 weaking the role of the WHS Committee;
• changes were made to 20.3, removing sign on protections when returning from annual leave;
• changes were made to clause 25(k) removing temporary transfer accommodation standard (which was 3.5 stars); and

• • Qube's pay offer was inadequate.[9]

• [21] Mr Pryor said that RTBU members voted against the Proposed Agreement because they were very concerned with changes that Qube had made, particularly with the paring back of Award incorporation and the low pay offer.[10]

• [22] Following this vote, the parties attended further bargaining meetings on the following dates:

• [23] Qube then began another access period for a new Proposed Agreement without endorsement from the RTBU. Voting for the Proposed Agreement closed on 8 June 2023, with 65% of employees voting against the 2023 Agreement.[12]

• [24] On 14 June 2023, Qube filed an application pursuant to s.240 of the FW Act. On the same day, the RTBU filed an application pursuant to s.437 of the FW Act.[13]

• [25] On 23 June 2023, the RTBU filed a claim in the Federal Court alleging historical and ongoing underpayment under the 2015 and 2019 Agreements (the underpayment claim). The underpayment claim alleged that Qube had been underpaying employee shift penalties and relevant allowances as required by clauses 4.1-4.2 of the 2015 and 2019 Agreements.[14]

• [26] On 26 June 2023, the parties attended a conference in the Commission before Commissioner Crawford as part of the s.240 application, where the RTBU provided Qube with unsealed copies of a statement of claim and the originating application filed on 23 June 2023 in the Federal Court in relation to the underpayment claim. Mr Pryor said that at the end of the conference, the RTBU reached an in-principle agreement with Qube in relation to the Proposed Agreement, subject to drafting.[15]

• [27] The key terms of that in-principle agreement were:
  • wage increases of 6% back-paid to 1 April 2023, 5% from 1 April 2024 and 5% from 1 April 2025;
  • overtime rate to remain at 1.6 times; and
• • no changes to the definition of 'Hourly Rate'.[16]

• [28] Mr Pryor said that soon after the conference, Qube reneged on the in-principle agreement and blamed the RTBU for blindsiding Qube by giving its representatives the Federal Court papers after the conference. Mr Pryor said that this was incorrect, as the RTBU had provided Qube with the papers before an in-principle agreement was reached.[17]

• [29] Mr Ellem explained that prior to communicating the in-principle agreement, Commissioner Crawford provided copies of lengthy legal documents to Mr Dan Coulton, then General Manager - Industrial Relations. Mr Coulton and Mr Ellem briefly scanned these documents. They understood from the documents that the RTBU was making an underpayment claim for award-based penalties and allowances. Mr Ellem said that he and Mr Coulton quickly dismissed the underpayment claim as they believed it was a 'try on' by the RTBU to get as much leverage as possible for the bargaining conference, given that neither the RTBU (nor any employee) had ever alleged that Qube should have been paying Award penalties, loadings and allowances under the 2015 Agreement or the 2019 Agreement. At the time, Mr Ellem did not appreciate the significance that the allegations had on the Proposed Agreement (given that the same award incorporation clause was also present in the Proposed Agreement).[18]

• [30] Mr Ellem said that after Qube was served with stamped copies of the documents commencing the underpayment claim from the RTBU, it undertook a detailed review of the Federal Court materials and arranged for some initial rough calculations to be done from a sample of employees. The outcome of those rough calculations was that the potential increased liability for Qube was approximately an additional 20 - 30% for each employee. Mr Ellem said that the potential backpay liability was very concerning and there was also concern about not clarifying the wording in the Proposed Agreement. There was a risk that Qube would be exposed to a similar claim in the future if it did not clarify that the rates in the Proposed Agreement are loaded rates that are paid in satisfaction of all penalties and allowances that apply to ordinary hours of work. In those circumstances, Qube was not prepared to go ahead with the in-principle agreement, which would have left the loaded rates issue unresolved in the Proposed Agreement. Qube decided that it needed the assistance of the Commission in order to address this issue.[19]

• [31] On 7 July 2023, Qube issued a memorandum to employees (dated 6 July 2023) stating that it would resolve the underpayment claim before putting the Proposed Agreement out to a vote. Qube provided an estimate of a year before the next vote and also indicated that it would be seeking to vary the 2015 and 2019 Agreements.[20]

• [32] Following requests from the RTBU to have the s.240 matter relisted before the Commission, the parties attended another conference on 10 July 2023. Mr Pryor said that in a broad sense, the outstanding matters in bargaining were:

• [33] Mr Pryor said that on 10 July 2023, the parties continued bargaining with the assistance of the Commission. At this time, the nature of the offers exchanged sought to settle all matters in issue between the parties, being wage increases, backpay and the underpayment claim.[22] The parties did not reach agreement. Accordingly, the RTBU notified partial work bans while Qube notified it would exercise its right pursuant to s.471(4a) of the FW Act.[23]

• [34] On 20 July 2023, RTBU members took protected action and Qube responded by locking out the workplace for five days from 30 July 2023. Mr Pryor said that at least 95% of employees were locked out.[24]

• [35] The RTBU filed an application under s.424 of the FW Act to terminate protected industrial action. This matter was allocated to Commissioner Crawford and listed for hearing on 31 July 2023. On 1 August 2023, Commissioner Crawford dismissed the RTBU's s.424 application and listed Qube's s.240 application for a conference on 4 August 2023.[25]

• [36] On 28 July 2023, Qube filed an application pursuant to s.217 of the FW Act to vary the 2015 and 2019 Agreements so that they did not incorporate the Award.[26] This application was dismissed by Deputy President Cross on 1 May 2024.[27] Qube filed an appeal against this decision and on 2 August 2024, a Full Bench of the Commission granted Qube permission to appeal the decision but dismissed Qube's appeal.[28] On 6 September 2024, Qube filed an application under s 39B of the Judiciary Act 1903 (Cth) in relation to the Full Bench's decision and Deputy President Cross' decision. Qube sought that this application be heard and determined in the November 2024 sittings of the Full Court. The RTBU supported that application. That application was not accepted by the Chief Justice of the Federal Court and Qube's judicial review application was to be heard by the Full Court in the March 2025 sittings.[29]

• [37] Further conferences in relation to the s.240 application took place before Commissioner Crawford on 4 and 7 August 2023. Offers were exchanged by Qube and the RTBU, however, Mr Pryor said that the parties were no closer to resolving the pay offer as Qube wished to settle all matters as a 'global settlement' including the underpayment claim. The RTBU and its members would not agree to a global settlement as it was then put by Qube.[30]

• [38] On 8 August 2023, Commissioner Crawford issued a recommendation which was not accepted by the RTBU.[31] Mr Ellem said that in September 2023, Qube expressed its willingness to proceed on the basis recommended by Commissioner Crawford and communicated this position to the RTBU on multiple occasions.[32]

• [39] The parties attended a further conference before Commissioner Crawford on 7 September 2023. Qube's legal representatives advised the RTBU that it sought to have further negotiations assisted by the Commission and advised it had suggestions to resolve the outstanding wage dispute which it was unwilling to share until a further listing proposed for 26 September 2023.[33]

• [40] On 13 September 2023, Qube sent an update to its employees about the enterprise agreement negotiations which Mr Pryor claims caused a significant setback to the progress made in bargaining because it contained incorrect and inaccurate information and information which had been exchanged on a 'without prejudice' basis.[34] Mr Ellem disputes these claims and said that the contents of the memorandum were entirely accurate and that Qube only described the RTBU's most recent 'open' offer in its memorandum.[35]

• [41] Mr Pryor said that this correspondence caused the RTBU to hold significant concerns regarding Qube's conduct and accordingly, negotiations between the parties stalled as further bargaining matters were now exchanged in writing.[36] The conference that was scheduled before Commissioner Crawford on 26 September 2023 was cancelled at the request of the RTBU.[37]

• [42] In early November 2023, Qube announced an employee vote for a new Proposed Agreement. The offer was not endorsed by the RTBU. Employees voted against this agreement in December 2023 with 85% of voters voting 'no'.[38]

• [43] On 12 December 2023, Qube wrote to the RTBU stating that Qube needed to explore other options to unlock value and savings to justify any further increases to the wage offer. The letter set out Qube's proposal involving:

1. removal of enhanced superannuation entitlements for employees who were covered by the Independent Rail EA 2011-2014;
2. reducing sick leave from 15 days to 10 days per year;
3. removal of golden weekend parameters to reduce the time off from 1600hrs on a Friday to 0600 on a Monday to 2359 Friday to 2359 Sunday, being a reduction 14 hours off;
4. removal of shift change triggers, except for lift-up / lay-back;
5. removal of wasted meal allowance;
6. removal of local working and local shift limits; and

• g. removal of barracks detention, 40-hour pattern span and barracks meals, which would instead be replaced with a simple daily allowance.[39]

• [44] On 21 December 2023, Qube wrote to the RTBU, outlining Qube's rationale for revisiting these items which Mr Pryor said were already agreed.[40]

• [45] On 18 January 2024, the RTBU wrote to Qube setting out good faith bargaining concerns that the RTBU had, then on 1 February 2024, filed an application pursuant to s.229 of the FW Act. On 2 February 2024, Qube responded to the RTBU's correspondence of 18 January 2024.[41]

• [46] The RTBU's s.229 application was listed for conference before Deputy President Cross on 19 February 2024. At this conference, Qube's lawyers made a commitment to provide financial estimates to the RTBU in support of the seven revisited items while the RTBU committed to attending a bargaining meeting after it had opportunity to review this material.[42]

• [47] On 5 February 2024, Mr Ellem wrote to Mr Pryor outlining Qube's good faith bargaining concerns with the RTBU's conduct in bargaining, which the RTBU responded to on 8 February 2024.[43]

• [48] On 26 February 2024, Qube sent the RTBU a further letter proposing to revisit a further two items which were already agreed being:

1. inclusion of an unrestrictive in-cab monitoring clause; and

• b. removal of arbitration from the dispute clause.[44]

• [49] In the same letter, Qube requested the RTBU's positions regarding Qube's proposed hourly rates for the Proposed Agreement and asked that the RTBU provide a comparator enterprise agreement from the industry.[45] Qube also confirmed it would not take further steps to agitate its good faith bargaining concerns raised in the letter of 5 February 2024, as a gesture of good will, given that the RTBU had reversed its ban on bargaining meetings with Qube.[46]

• [50] On 7 March 2024, representatives of the RTBU and Qube met to discuss the items that Qube wished to revisit. The RTBU also advised Qube that the Pacific National Bulk Enterprise Agreement was the appropriate comparator enterprise agreement.[47]

• [51] On 22 March 2024, the parties attended a conference before Commissioner Crawford which had been requested by the RTBU.[48]

• [52] During March and April 2024, the parties exchanged further correspondence.[49] On 11 April 2024, the RTBU wrote to Qube advising of its intention to make an intractable bargaining application.[50] The RTBU made an application for an intractable bargaining order on 12 April 2024.

• [53] On 15 April 2024, Qube commenced the access period for a further employee vote on a Proposed Enterprise Agreement which was voted down by employees on 24 April 2024.[51]

• [54] On 3 and 4 June 2024, I conducted a hearing in relation to the application. As noted above, before the conclusion of the hearing, it was adjourned by agreement of the RTBU and Qube so they could undertake a period of bargaining supervised and assisted by Deputy President Saunders. Bargaining meetings were then held on:
  • 27 June 2024
  • 19 July 2024; and
• • 9 August 2024[52]

• [55] By the conclusion of these meetings, both parties had indicated that they had reached their final offers. The respective wage claims of the parties were as follows:

1. RTBU - $61.00 at commencement with increases of 6%, 4% and 3% on anniversaries; and

• b. Qube - $60.20 at commencement with increases of 3%, 2% and 2% on anniversaries.[53]

• [56] Mr Matthews said that the parties' respective positions led to a difference in the final year of about $5 per hour. Mr Matthews said that the parties were otherwise broadly in agreement concerning the global settlement component of the offers and the content of the proposed enterprise agreement, subject to drafting.[54]

• [57] The parties were also in agreement as to the quantum of upfront payments being $0 for level 1, $4,000 for level 2, $7,000 for level 3, and $15,000 for levels 4, 5, and 6 employees. However, Qube advised that such payment would only be made to individuals who sign a separate deed effectively waiving their rights to the underpayments identified by the underpayment claim. The RTBU opposed this approach and indicated this to Qube.[55]

• [58] Qube advised that it intended to take its proposal to a vote of relevant employees.[56]

• [59] On 12 August 2024, the RTBU published a newsflash reporting on the meeting on 9 August 2024 and commencing a "No" campaign for the proposed upcoming approval ballot.[57]

• [60] On 28 August 2024, Mr Ellem called Mr Matthews to advise that the access period for the Proposed Agreement would start on the following day. Mr Ellem also advised Mr Matthews that the sign-on bonuses were no longer tied to a Deed or the settlement of the underpayment claim. Consequently, all qualifying employees would receive the payment if the enterprise agreement was approved.[58]

• [61] On 10 September 2024, Qube commenced the 36-hour ballot to approve the Proposed Agreement. On 11 September 2024, the ballot agent declared that of the 198 eligible voters, 193 voted, and over 77% voted "no".[59]

• [62] On 12 September 2024, after receiving the ballot results, Deputy President Saunders' Chambers requested that the parties advise if they wanted the matter listed for a further conference.[60]

• [63] On 13 September 2024, Mr Matthews received authorisation from delegates to reiterate the previous RTBU final offer (the RTBU September offer). On 13 September 2024, Mr Matthews sent an email to Mr Ellem advising the RTBU September offer would remain open to be accepted until 5pm on 16 September 2024. On 17 September, Qube rejected the RTBU September offer.[61]

• [64] On 17 September 2024, Mr Dan Ortiz, General Manager - Industrial Relations, Qube, wrote to Deputy President Saunders' Chambers advising that Qube saw benefit in a further meeting to discuss outstanding matters. On 17 September 2024, Ms Sebongile Mbele, RTBU Industrial Officer, wrote to Deputy President Saunders' Chambers advising that the RTBU did not see the utility in a further meeting where Qube had just rejected the RTBU September offer.[62]

• [65] On 17 September 2024, Mr Pryor advised the RTBU delegates that the RTBU September offer had not been accepted. Delegates responded very clearly that they did not wish to further compromise. The delegates advised of the feedback from the membership was to press ahead with the intractable bargaining declaration application.[63]

• [66] Mr Matthew's evidence is that the RTBU and its members have been willing to explore a resolution that involves amending clause 4 of the 2019 Agreement and other agreement provisions so they provide an 'all up' or 'loaded' rate. This is the express basis on which negotiations have been conducted following the Commission proceedings in June 2024.[64] The RTBU and its members' position on the quantum of a loaded rate is significantly divergent from Qube's. That is why agreement has not and, in the opinion of the RTBU, will not be reached.[65]

• [67] Mr Matthews believes that the RTBU's and Qube's position in relation to the underpayment claim has not and will not impact this stalemate. Mr Matthews states that the RTBU and its members seek a fair and reasonable pay increase to take into account significant inflation and erosion of the real value of employee wages. Qube has not, so far as the RTBU and its members are concerned, made a pay offer that is acceptable in this regard and has not come reasonably close to the RTBU's lowest offer.[66]

• [68] Mr Ellem's evidence is that he understands that the loaded rates issue will be resolved through one or both of the s.217 proceeding and the underpayment claim. Once that occurs, in his view, the chances of resolving the bargaining dispute will be significantly enhanced. The loaded rates issue has been the central stumbling block in bargaining since the underpayment claim was commenced in June 2023. Before that time, the parties were moving closer to an agreement and indeed, had reached an in-principle agreement on 26 June 2023. Once the loaded rates issue is resolved, the parties will have an agreed baseline from which to bargain on for the Proposed Agreement. If the issue is resolved in Qube's favour, he anticipates that the RTBU is likely to change its position on loaded rates. Conversely, if the issue is resolved against Qube, Qube will then understand its current (and historical) liability and approach bargaining without that uncertainty weighing into its bargaining position.[67]

• [69] The hearing resumed on 7 November 2024. Following the conclusion of the hearing, the parties consented to a further conference before Deputy President Saunders which took place on 15 November 2024.

• [70] The parties reached agreement on a resolution of the bargaining and the Federal Court proceedings at the conference subject to approval by a majority of RTBU delegates (the November agreement). The RTBU officials firmly advocated for the endorsement of the November agreement to RTBU delegates. The RTBU delegates unanimously rejected the November agreement.

• [71] The RTBU advised Qube by email on 19 November 2024 of the rejection of the November agreement by RTBU delegates. The RTBU informed Qube that without the endorsement of the delegates, it could not advocate in favour of approval of a new agreement nor discontinue the underpayment claim. The RTBU identified matters raised by delegates that could result in agreement and advised that if Qube believed that a further conference with Deputy President Saunders would be of utility, the RTBU would be willing to attend together with the delegates.

• [72] On 3 December 2024, Qube wrote to Deputy President Saunders with the RTBU's consent and asked that the Deputy President issue a statement outlining the terms of the November agreement and attach copies of relevant correspondence.

• [73] The Statement that was issued by Deputy President Saunders confirmed that main elements of the agreed position were:

(a) The agreed loaded hourly rate for a level 4 employee at the commencement of the proposed enterprise agreement will be $61. The commencement rates for other levels of employees will be adjusted in a corresponding manner.

(b) The agreed increases in loaded hourly rates during the term of the proposed enterprise agreement will be 4.5% at the end of year 1, 4% at the end of year 2, and 4% at the end of year 3.

(c) The proposed enterprise agreement will have a four year term.

(d) Upfront payments in the following amounts will be paid to employees on the commencement of operation of the proposed enterprise agreement: $0 for Level 1, $4,000 for Level 2, $7,000 for Level 3 and $15,000 for Levels 4, 5 and 6.

(e) The RTBU will discontinue its underpayment of wages claim against Qube in the Federal Court if the proposed enterprise agreement is voted up by employees. The RTBU will not bring the same underpayment claim again against Qube and will not encourage or assist a member to bring such a claim.

(f) The agreed position is subject to approval by a majority of the RTBU delegates for the proposed enterprise agreement. If a majority of RTBU delegates support the agreed position, it will be put to employees, in the form of a new enterprise agreement, for their vote and the RTBU will encourage its members to vote in support of the proposed enterprise agreement.

• [74] The main features of ss. 234 and 235 of the FW Act are described in detail in the Full Bench decision in United Firefighters' Union of Australia v Fire Rescue Victoria (UFU v FRV)[68] and I rely upon what is said in that decision.

• [75] Section 234 of the FW Act makes provision for a bargaining representative to make an application for an intractable bargaining declaration. It states:

234 Applications for intractable bargaining declarations

(1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.

Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.

(2) An application for an intractable bargaining declaration must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

• [76] Section 235(1) sets out the circumstances in which the Commission may make an intractable bargaining declaration which are that the application has been made, the Commission is satisfied of the matters set out in subsection (2) and it is after the end of the minimum bargaining period as defined in s. 235(5). It provides:

235 When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement - the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement - the day that the authorisation first comes into operation; or

(b) otherwise - the notification time for the proposed agreement.

• [77] The minimum bargaining period as defined in s.235(5) is the later of:

• the day that is 9 months after the nominal expiry date(s) of the existing agreement(s); or

• the day that is 9 months after the day that bargaining starts, being the 'notification time' for the proposed agreement.

• [78] This is essentially an issue of fact.[69] The notification time for a proposed agreement is as set out in s.173(2). The issue of the NERR in respect of a single-enterprise agreement (other than a greenfields agreement) must occur not later than 14 days after the notification time for such an agreement, so the fact that the NERR has been issued will usually be a reliable indicator that the notification time has already occurred.[70]

• [79] The matters that the Commission must be satisfied about in s.235(2) before making a declaration are:

(a) the Commission has dealt with the dispute about the agreement under section 240 and the applicant participated in the Commission's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the Commission does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

• [80] Satisfying the criteria in s.235(2)(a) requires a finding of fact that the Commission has dealt with the dispute about the agreement under s.240 and the applicant for the intractable bargaining declaration has participated in the Commission's processes to deal with the dispute.[71] The Commission must have had a real opportunity to take action with respect to the bargaining dispute in order to have dealt with it within the meaning of s.235(2)(a).[72] However, it is not necessary for the Commission to be satisfied that the Commission has had the opportunity to use all of its efforts to assist the parties to resolve the dispute, using its powers under s 595, and the Commission has dealt with the s.240 proceedings to conclusion.[73] The Commission may, at a particular point in time, have dealt with the s.240 application extensively, notwithstanding that it may have future dealings with the dispute.[74]

• [81] Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is 'no reasonable prospect of agreement being reached' if an intractable bargaining declaration is not made.[75] In assessing whether there is no reasonable prospect of agreement being reached if the Commission does not make a declaration, it is necessary to have regard to the history of negotiations and any developments or negotiations which take place up until the time of the assessment.[76] Further, consideration as to whether there is no reasonable prospect of agreement being reached does not require any assessment of the merits of possible alternative provisions that might be arbitrated in a later determination.[77] Section 235(2)(c) requires the Commission to make a further evaluative judgment, in relation to whether it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement.[78]

• [82] Section 235(2)(c) requires the Commission to make a further evaluative judgment, in relation to whether it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement.[79]

• [83] The 'reasonable in all the circumstances' criterion requires an assessment of what is 'agreeable to reason or sound judgment' in the context of the relevant matters and conditions accompanying the case.[80] The requirement to take into account the views of the bargaining representatives means that their views must be treated as a matter of significance, but not necessarily a determinative consideration, in the assessment of whether it is reasonable in all the circumstances to make the determination sought.[81] Where the Commission is satisfied as to each of the matters in paragraphs (a)-(c) of s 235(1), it retains a residual discretion as to whether an intractable bargaining declaration is actually made. However, it is difficult to identify what discretionary matters might remain for consideration if the Commission has already satisfied itself as to the criteria in s 235(2).[82]

• [84] Section 235(3) provides the matters which must be specified in the declaration. Section 235A provides that the Commission may, if it considers it appropriate to do so, specify a period in the declaration called a 'post-declaration negotiating period'. It states:

(1) The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post‑declaration negotiating period) that:

(i) the day specified by the FWC in the declaration; or

(ii) any later day determined under subsection (2).

Note: The FWC cannot make an intractable bargaining workplace determination during any post‑declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation.

(2) The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii).

• [85] Item 847 of the Revised Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, explains that s.235A 'would allow the FWC to, when making an intractable bargaining declaration, specify a period after the making of the declaration for the parties to continue to negotiate with a view to reaching an enterprise agreement before the FWC proceeds to make a workplace determination.' During this period, the Commission cannot make an intractable bargaining workplace determination but may provide other assistance during the period such as conciliation.

• [86] I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached. As further negotiations took place on two occasions before the proceedings concluded, the parties filed submissions on three occasions, prior to the hearing commencing in June 2024, then prior to the hearing recommencing in November 2024, then finally in December 2024. Although both parties rely upon all of the material they have filed in the Commission, some of the matters which the parties relied upon in their initial submissions have been overtaken by subsequent events, so where appropriate and relevant, I have placed greater weight on more recent events in my consideration of the matter.

Has an application for the declaration been made? - s 235(1)(a)

• [87] The RTBU submitted that it is a 'bargaining representative' for a proposed agreement to replace the 2019 Agreement. The Proposed Agreement is not a greenfields agreement and this application does not pertain to a multi-enterprise agreement. The RTBU has standing to make the application which is an application for the purposes of s.235(1)(a). Qube does not dispute this. I therefore find that a valid application has been made under s. 235(1)(a).

Is it after the end of the minimum bargaining period? - s 235(1)(c)

• [88] The nominal expiry date of the 2019 Agreement was 31 March 2023. The notification time for the proposed agreement was 19 May 2022. More than nine months have elapsed since the 2019 Agreement reached its nominal expiry date and the condition under s 235(1)(c) is satisfied. Qube does not dispute this. I therefore find that the precondition under s 235(1)(c) is established.

Has the Commission dealt with the dispute about the agreement under section 240, and has the applicant participated in the Commission's processes to deal with the dispute? - s 235(2)(a)

• [89] RTBU submitted that both the RTBU and Qube have participated in s.240 conferences before Commissioner Crawford about the Proposed Agreement. Qube does not dispute this.

• [90] I find that the Commission has dealt with the dispute about the agreement under s.240, and that the RTBU has participated in the Commission's processes to deal with the dispute.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? - s 235(2)(b)

• [91] The RTBU submitted that bargaining has been extensive and protracted and has been ongoing for over two years. The parties reached an in-principle agreement in late June 2023. An impasse arose following the matters raised in the underpayment claim about the incorporation of the Award in the 2019 Agreement. That issue generated further litigation under s.217 of the FW Act, which remains ongoing. Employees have voted down proposed agreements on five occasions. The outstanding issue is wage increases.

• [92] The RTBU submitted that the parties have explored reasonable options and processes to resolve the bargaining, including engaging in a substantial number of bargaining meetings and utilising the processes of the Commission to assist the parties to reach agreement, to no avail.

• [93] The RTBU submitted that at a further conciliation conference on 15 November 2024, the parties reached agreement on a resolution of the bargaining and the underpayment claim subject to approval by a majority of RTBU delegates. The RTBU officials firmly advocated for the endorsement of the position reached at the conference to RTBU delegates who unanimously rejected the resolution reached.

• [94] The RTBU submitted that it advised Qube by email on 19 November 2024 of the rejection of the November agreement by the RTBU delegates. The RTBU informed Qube that without the endorsement of the delegates, it could not advocate in favour of approval of a new agreement nor discontinue the underpayment claim proceedings. The RTBU identified matters raised by delegates that could result in agreement and advised that if Qube thought a further conference with Deputy President Saunders would be of utility, the RTBU would be willing to attend together with the delegates.

• [95] The RTBU submitted that Qube took some time to reply to the RTBU. On 25 November 2024, after prompting from the RTBU, Qube's solicitor stated that his client was willing to 'do the deal' reached on 15 November 2024 and attached a draft deed of release. Qube did not embrace the RTBU's suggestion of a further conference before Deputy President Saunders with the delegates present.

• [96] The RTBU submitted that since 15 November 2024:

1. there have been no further bargaining meetings;
2. there have been no discussions about progressing bargaining;
3. there has been no attempt by Qube to arrange a further meeting;
4. there has been no attempt by Qube to engage with the matters raised by the RTBU by way of feedback from its delegates; and
5. there has been no attempt by Qube to put any new agreement to a vote.

• [97] The RTBU submitted that the unanimous rejection by RTBU delegates of the November agreement underscores that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. The November agreement was the most generous position agreed to by Qube. Qube has not indicated it is willing to countenance any different or additional package. The November agreement also involved the RTBU foregoing the underpayment claim and was a 'global resolution' of the kind sought by Qube. The November agreement was unpalatable to all RTBU delegates, even after RTBU officials promoted its acceptance.

• [98] The RTBU submitted that there has been no indication after 19 November 2024 that Qube will vary its position to make a more generous or different offer. Qube has not engaged with the matters raised by the RTBU setting out the issues raised by the delegates which could result in their endorsement of a deal. Bargaining is plainly intractable. The parties have exhausted all reasonable efforts to reach agreement. It is readily apparent that there is no reasonable prospect of agreement being reached unless a declaration is made.

• [99] The RTBU has no objection to a post declaration period being made.

• [100] During the hearing in June 2024, Qube submitted that the key impediments that have prevented negotiations from progressing are this application, the underpayment claim, the RTBU's refusal to attend bargaining meetings for about nine months, and the incoherent and contradictory nature of the RTBU's position on what the unloaded wage rates should be.

• [101] Qube submitted that the RTBU has not exhausted all reasonable efforts to reach agreement. There was only a brief period of industrial action that ended on 3 August 2023. The RTBU has since not organised (nor have any of the employees taken) any further industrial action.

• [102] Qube submitted that the issue of whether the rates of pay under the 2019 Agreement are loaded or unloaded remains a significant stumbling block to reaching an agreement. That stumbling block will be removed by resolution of the underpayment claim. In these circumstances, there is a reasonable prospect of agreement being reached without a declaration being made, once the underpayment claim is determined.

• [103] Qube submitted that the history of bargaining confirms that the RTBU is treating this issue as a significant input into bargaining as its most recent offer is significantly higher than its global offer made in August 2023, which is likely to reflect its success in resisting Qube's s.217 variation application.

• [104] Qube submitted that the RTBU has proposed a starting rate for a replacement agreement which is in excess of $8 per hour lower than what it claims is the equivalent rate in the 2019 Agreement. It is obvious that it has factored in the risk that Qube will ultimately succeed in the underpayment claim. Qube is also factoring in the risk of the current litigation in formulating its offers and proposing a commencement rate increase for level 4 employees of 17%. Therefore, the uncertainty about the status quo is plainly a significant factor, for both parties, that impacts and complicates bargaining. The parties' different, respective weightings of that risk prevents consensus being reached on the starting loaded rates and subsequent annual increases. That uncertainty will be resolved by the determination of the underpayment claim. Once resolved, the last significant factor confounding the current negotiations will be removed and there is a real prospect that the parties will be able to reach agreement.

• [105] Qube submitted that the November agreement is almost identical to the RTBU September offer which was endorsed by RTBU delegates. Qube submitted that the delegates' rejection of the November agreement gives rise to two possibilities.

• [106] Qube submitted that the first possibility is that the RTBU (and the delegates) are still open to making an agreement reflecting the RTBU September offer and that the sticking point is the difference between that offer and the November agreement. If so, this difference is so minor that the Commission cannot be satisfied that there is no reasonable prospect of an agreement being made without a declaration being made.

• [107] Qube submitted that this is particularly so in circumstances where:

(a) Qube is prepared to undertake that if the application is dismissed, it will keep the November agreement open for at least 30 days, so the removal of the pressure created by the application will not cause Qube to move backwards;

(b) Neither Qube nor the RTBU has said that the November agreement represents its final offer, so Qube and the RTBU may have some further room to move. However, the RTBU has not come forward with any new proposal or offer. The fact that after reaching the November agreement neither party has openly bid against itself, says nothing about the prospects of agreement being reached, especially having regard to the history of the bargaining between these parties. Far from being intractable (over 0.5%), the parties are merely reluctant to weaken their negotiating position; and

(c) the delegates' position, and that of the RTBU members, is likely to be influenced by the prospect of a declaration and a workplace determination, given that the RTBU has been promoting that pathway to its members as an alternative to bargaining, and that there is still concern among employees about delay in effective wage increases. Dismissing the application is likely to soften the delegates' position and that of employees to a sufficient extent to achieve agreement, especially when confronted with the alternative which is further delays to improved wages and conditions.

• [108] Qube submitted that if the application is dismissed, there is a real possibility that the parties will be able to bridge the small gap between the RTBU September offer and the November agreement. Within the scheme of the FW Act, the extraordinary arbitral powers of the Commission as a replacement for bargaining cannot sensibly be accessed over 0.5% over three years.

• [109] Qube submitted that the second (and perhaps more likely) possibility is that the RTBU and the delegates are reneging on their previous position and are adopting a new position whereby they would no longer accept their own offer made as recently as mid-September 2024. If that is so, the inescapable inference is that the new position is purely opportunistic in that the RTBU September offer in truth remains acceptable to them, but they believe they can do better out of a workplace determination. This inference should be drawn because:

(a) the November agreement is incredibly generous, offering an initial rate increase of over 18.5%, further 12.5% increases over three years and up-front payments of as much as $15,000 for Level 4 employees and above;

(b) while the discontinuance of the underpayment claim represents a concession by the employees, its significance is reduced since the employees are planning to commence a class action making the same claims in any event. This was also an agreed aspect of the RTBU September offer;

(c) nothing of substance has changed between September 2024 and now. The RTBU has not advanced any explanation for why the RTBU September offer is no longer acceptable, or clarified whether the offer remains on the table;

(d) the RTBU has not put forward any new offer or proposal to replace the November agreement; and

(e) the RTBU has been promoting the declaration/workplace determination pathway to members as an alternative to bargaining.

• [110] Qube submitted that if the RTBU's current position is purely opportunistic, dismissing the application is likely to precipitate an agreement being reached in circumstances where Qube will keep the November agreement on the table for a period.

• [111] Qube submitted that it is prepared to explore other agreement structures, including a structure that does not involve the discontinuation of the underpayment claim, although Qube would obviously expect the removal of that concession to be reflected in lower remuneration figures.

• [112] Qube submitted in those circumstances, the Commission cannot be satisfied that there is no reasonable prospect of agreement being reached if the declaration is not made.

• [113] There appears to be no dispute between the parties that an impasse arose following the commencement of Federal Court proceedings by the RTBU in June 2023 concerning the underpayment claim. It was at that time that the RTBU articulated its view that the rates in the 2019 Agreement were base rates and Qube articulated its view that they were loaded rates. By then, bargaining had been occurring for over one year and Qube employees had voted against Qube's Proposed Agreement on two occasions.

• [114] Despite this impasse, the evidence shows that the parties continued to bargain and participate in Commission processes for a period of nine months until the RTBU filed an intractable bargaining declaration application on 12 April 2024. However, little progress was made with both parties accusing each other of breaching the good faith bargaining requirements, the RTBU insisting that bargaining take place in writing rather than in person, Qube claiming that the RTBU had failed to articulate a coherent position on what the unloaded wage rates should be and Qube revisiting conditions which the RTBU claimed were already agreed.

• [115] In June 2024, the parties jointly sought an adjournment of the hearing to participate in further bargaining assisted and supported by Deputy President Saunders. By the conclusion of the further bargaining period, both parties indicated that they had reached their final offers. The parties were unable to reach agreement about pay rises but were otherwise broadly in agreement concerning the global settlement component of the offers and the content of the Proposed Agreement, subject to drafting. Relevantly, Qube rejected the RTBU's final pay offer (referred to in this decision as the RTBU September offer) then asked employees to vote for its final pay offer. Following the unsuccessful vote, the RTBU reiterated the RTBU September offer which Qube rejected.

• [116] Following resumption of the hearing in November 2024, the parties again sought the assistance of Deputy President Saunders and reached an in-principal agreement, which was contingent upon the RTBU discontinuing the underpayment claim in the Federal Court.

• [117] Since June 2024, the parties have been bargaining on the basis that the rates in the Proposed Agreement will be loaded rates. The following table shows the parties' respective positions since September 2024 (noting that the current hourly rate for a level 4 employee under the 2019 Agreement is $51.45):

• [118] Although the parties reached agreement in November 2024, this was contingent upon a majority of RTBU delegates endorsing the proposal. Ultimately no delegates endorsed the proposal although it was strongly recommended by RTBU officials. The RTBU conveyed feedback from its delegates to Qube which included 'feedback from the depots that [the RTBU] believe[s] can be swayed to endorsing the proposal'. The RTBU also advised that the depots which it believed could not be swayed provided strong feedback that it is completely unacceptable for the RTBU to drop the underpayment claim. The RTBU advised that it would be happy to attend a further meeting convened by Deputy President Saunders with the full delegate group if Qube believed there was utility in a further meeting.

• [119] Qube initially submitted that once the Federal Court determines whether rates of pay under the 2019 Agreement are loaded or unloaded, there is a reasonable prospect of agreement being reached without a declaration. Qube relied upon the RTBU's conduct in proposing a starting rate for a replacement agreement more than $8 per hour lower than what the RTBU claimed is the equivalent rate in the 2019 Agreement to submit that the RTBU has factored in the risk that Qube will ultimately succeed in the underpayment claim. Qube contended that the parties' different, respective weightings of the risk of the current litigation prevents consensus being reached on the starting loaded rates and subsequent annual increases.

• [120] This may be the case, however, there is no evidence that the parties' positions will change significantly once the underpayment claim is finalised.

• [121] In the supplementary statement of Mr Matthews, filed after the initial conferences facilitated by Deputy President Saunders, he attached a briefing note which he provided to delegates for the bargaining meeting before Deputy President Saunders on 27 June 2024. In the briefing note, Mr Matthews noted:

• A 5% pay increase on the 2019 Agreement rates would simply restore Qube Train Crew to the position they were in when they were under the South Spur Rail Enterprise Agreement (the predecessor agreement to the 2015 Agreement) in real terms.
• The RTBU has always used the Pacific National Bulk Enterprise Agreement as a touchstone for applicable rates at Qube because Pacific National and Qube do very similar work, often with depots in the same locations in NSW, tender for the same contracts, and have a higher standard of rostering conditions that qualify them as tier 1 operators.

• • Accounting for various allowances, the loaded rate for Pacific National Bulk ranges from $68.83 (Werris Creek) to $64.24 (Enfield).[83]

• [122] Based on this evidence, and a number of Newflashes that are in evidence before me,[84] it appears to me that regardless of whether the Federal Court determines that the rates in the 2019 Agreement are loaded or unloaded, the RTBU is seeking rates in the Agreement which are comparable to the loaded rates in the Pacific National Bulk Enterprise Agreement, which are $12.79 to $17.38 per hour more than the current hourly rate in the 2019 Agreement of $51.45.

• [123] While the Federal Court case will determine whether or not historical underpayments have occurred with respect to penalties, allowances and loadings, there is no evidence that either party will change its bargaining position based upon the outcome of that case. Mr Ellem speculated that if the issue is resolved in Qube's favour, he anticipates that the RTBU is likely to change its position on loaded rates. However, this is not supported by evidence that the RTBU wishes to achieve parity with rates paid by other freight rail operators. Mr Ellem's evidence is that if the issue is resolved against Qube, Qube will then understand its current (and historical) liability and approach bargaining without that uncertainty weighing into its bargaining position. Relevantly, Qube's evidence is not that it would accept any of the offers that have been made by the RTBU including the 'agreement in-principle' reached in June 2023.

• [124] In its most recent submissions, Qube has invited me to find that the RTBU (and the delegates) would still be open to making an agreement reflecting the RTBU September offer. Although the feedback from the delegates (which deals with the upfront payments, timing of the pay rise and the discontinuance of the underpayment proceedings) indicates that the RTBU September offer may no longer be acceptable to some delegates, it would have been open to Qube to test this by making such an offer. However, it has not done this. As such, there is insufficient evidence available for me to conclude that the RTBU would still be open to making an agreement reflecting the RTBU September offer.

• [125] Mr Matthews' evidence is that the RTBU September offer was the delegates' final offer. It is therefore unsurprising that the delegates did not endorse the November agreement. Although Qube correctly points out that the parties are only 0.5% apart in their respective offers when the total increases are considered, employees will be 1.5% worse off under the November agreement at the first anniversary compared to the RTBU September offer. This remains the case until the third anniversary when the difference will be reduced to 0.5%.

• [126] In relation to Qube's submission that the extraordinary arbitral powers of the Commission as a replacement for bargaining cannot sensibly be accessed over 0.5% over three years, it seems to me that this submission understates the importance of the 0.5% difference to the parties. If the parties regarded the gap between the RTBU September offer and the November agreement as small or insignificant, it is likely that Qube would have simply accepted the RTBU September offer. The fact that Qube has not and has sought to distribute the pay rises in a different way in the November agreement compared to the RTBU September offer, indicates that there are likely to be significant financial reasons as to why the RTBU September offer is not acceptable to Qube. Similarly, the feedback that the RTBU received from delegates about the November agreement indicates that the offer is not acceptable in part for financial reasons.

• [127] Qube has submitted that it is prepared to undertake that if the application is dismissed, it will keep the November agreement offer open for at least 30 days. However, the RTBU delegates have already rejected this and there is no evidence before me which suggests that their position will be any different if I dismiss the application.

• [128] Qube submits that the November agreement is not necessarily its final offer and notes that the RTBU has not come forward with any new proposal or offer. However, the RTBU provided feedback to Qube about the November agreement and indicated its willingness to meet Qube with the Commission's assistance if Qube believed there was utility in meeting, but Qube did not do so.

• [129] Qube also submitted that the delegates' position and that of the RTBU members is likely to be influenced by the prospect of a declaration and workplace determination and that dismissing the application is likely to soften the delegates' position (and that of employees) to a sufficient extent to achieve agreement.

• [130] I accept that the RTBU sent a number of communications to members during the period from September 2023 to December 2023 advising when an application for a declaration could be made and that a declaration would 'allow the Commission to step in and give members a replacement agreement that is fair but, importantly, it will not be a basis of a global settlement.' There are a range of ways that this communication could be interpreted. During the hearing in June 2024, Senior Counsel for Qube put to Mr Pryor that the emails were in effect communicating to members that 'the only way to get a fair agreement is to go off to the Commission and get an intractable bargaining declaration.'[85] I accept that this is one way of interpreting the emails. An alternative interpretation is that the RTBU was informing members of an option that was available if the parties were unable to reach agreement through bargaining. This information was particularly important in the context of Qube's own communications to employees in June 2023 that Qube would resolve the underpayment claim before putting the Proposed Agreement out to a vote and that it might be a year before the next vote. In my view, it was reasonable for the RTBU to consider what options might be available instead of waiting for a year for the Proposed Agreement to be voted on and to advise members of these options.

• [131] Regardless of whether RTBU delegates and members were influenced by the prospect of a declaration and workplace determination during the period up to the hearing in June 2024, the events which occurred from 4 June 2024 show that RTBU delegates and members were willing to return to the bargaining table rather than pursue a declaration on two occasions. This resulted in a seven-month delay in the hearing being completed. If the delegates' position was influenced by the prospect of a declaration and workplace determination, it is unlikely that they would have agreed to 'pause' the proceedings so close to the hearing concluding, on not just one, but two occasions.

• [132] On 12 August 2024, the RTBU sent a 'Newsflash' to members advising of the conclusion of proceedings before Deputy President Saunders and Qube's intention to put its final offer to a vote of employees. Under the heading, 'Where to next in bargaining?", the Newsflash provided:

After this vote, if the agreement is voted down, we expect the matter will be declared intractable, owing to the fundamental disagreement between the parties surrounding the underpayment claim.[86]

• [133] The RTBU also made a statement to this effect in the Newsflash issued to members on 6 September 2024.[87]

• [134] Mr Woods participated in the conferences before Deputy President Saunders and gave evidence that members were consistently asking when the intractable bargaining proceedings will come to an end as they have waited for a long time to get wage increases. Mr Woods said that members had told him they understand that a declaration will result in the Commission determining wages and this will be out of their hands. However, members are not prepared to agree to a wage offer below the RTBU's claim. Mr Woods said that the offer Qube made in September 2024 maintained the gap and did not give employees an opportunity to catch up with other rail operators. This offer, from Mr Woods' perspective and that of the members, was not fair and reasonable based on cost-of-living increases in recent years and the length of time since they have had a pay rise.[88]

• [135] Mr Woods' evidence gives important context to the RTBU's email communications to members about the declaration proceedings. Mr Woods' evidence is that members are concerned about the length of time that it is taking for an agreement to be reached and for members to receive a pay rise against a background of cost-of-living increases in recent years. It appears to me that members regard the proceedings as a way of achieving a pay rise more quickly than through bargaining rather than a vehicle by which they will obtain a more favourable outcome. The thrust of Qube's submission is that dismissing the application will create a different bargaining environment which would be more conducive to reaching agreement, however, there is no evidence before me which indicates that would be the case.

• [136] Qube has invited me to draw an alternative inference which is that that the RTBU and the delegates are reneging on their previous position and are adopting a new position whereby they will no longer accept the RTBU September offer because they believe they can do better out of a workplace determination.

• [137] As noted above there is insufficient evidence available for me to conclude that the RTBU is still open to making an agreement reflecting the RTBU September offer. There is also insufficient evidence before me to support a finding that the RTBU and the delegates are reneging on their previous position. The feedback conveyed by Mr Matthews to Qube about the November agreement potentially indicates that some delegates may no longer support the RTBU September offer. However, I cannot make a finding that this is definitely the case as the feedback from delegates was provided in the context of the November agreement which has different pay rises compared to the RTBU September offer. In any event, it is difficult for me to attribute much significance to the attitude of the RTBU delegates about the RTBU September offer given that this offer was rejected by Qube and that there is no evidence to suggest that Qube is now prepared to accept this offer.

• [138] Regardless of whether the RTBU September offer is still acceptable to delegates, I do not accept that their position is motivated by a view that they can achieve a more favourable outcome through a workplace determination. I reiterate my previous finding that if this was the case, it is unlikely that delegates would have agreed to 'pause' the proceedings so close to the hearing concluding on two occasions, resulting in a seven-month delay in the finalisation of the proceedings.

• [139] The matter has evolved since the initial hearing in June 2024. At that time, Qube was critical of the RTBU for failing to meet in person for many months and to articulate its position in relation to loaded rates. Qube pointed to this conduct as the real reason that bargaining was not progressing. Since that time, the parties have met in person and the RTBU has articulated its position in relation to rates of pay through a series of papers prepared by Mr Matthews. The parties have not criticised each other in relation to their participation and conduct in conferences facilitated by Deputy President Saunders. However, Qube pointed to the RTBU not participating in any further conferences after August 2024 and the RTBU pointed to Qube not participating in any further conferences after November 2024. It is clear that significant progress was made in these conferences however that progress has not been sufficient for the parties to reach agreement. There is no evidence before me which establishes that the parties are more likely to reach agreement if the RTBU engages in further industrial action.

• [140] In my view, the reason that the bargaining is intractable is because Qube's willingness to provide pay rises which are close to the RTBU's claims for parity with other freight rail operators is contingent upon RTBU discontinuing the underpayment claim. The fact that the November agreement permits individual members to bring their own underpayment claims without assistance from the RTBU does not appear to have persuaded the RTBU delegates that the RTBU should discontinue the claim. Relevantly, the RTBU September offer involved the discontinuance of the underpayment claim but permitted members to bring their own claims with the assistance of the RTBU. In its most recent submissions, Qube has indicated that it is prepared to explore other agreement structures, including a structure that does not involve the discontinuation of the underpayment claim, although Qube expects the removal of that concession to be reflected in lower remuneration figures. However, there is no evidence before me that indicates that the RTBU is willing to reduce its wages claim, regardless of whether the underpayment claim is discontinued or not and whether it is successful or not.

• [141] In all of the circumstances, and taking all of these matters into account, I find that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? - s 235(2)(c)

• [142] The RTBU submitted that it is reasonable in all the circumstances to make a declaration given that:
  1. bargaining has been occurring since 19 May 2022;
  2. the 2019 Agreement reached its nominal expiry date on 31 March 2023;
  3. employees last received a pay rise in April 2022. Since this time, inflation has increased by 11.5% and the living cost index for employees has increased by 16.8%. There has been an appreciable erosion in the real value of employee wages and that erosion will continue unless a declaration is made given the intractability of the bargaining;
  4. subsequent to these proceedings being before the Commission in early June 2024, the parties have participated in structured and comprehensive conferences with Deputy President Saunders but have been unable to reach agreement;
  5. Qube's 'final offer' has been resolutely rejected by its workforce;
  6. the bargaining is not (as it may have previously been) affected in a real and tangible way by the ongoing litigation. That litigation is a fact of life for the parties and they will continue to robustly prosecute their respective claims. The RTBU and Qube have negotiated on the basis that new rates will be loaded rates and the litigation has not been a matter that has held up or otherwise impacted the ultimate negotiating positions of the parties on wages;
  7. the parties' respective positions on the central issue of wage increases are not rationally reconcilable; and
  8. the RTBU's firm view, and the view of its delegates, is that the bargaining is intractable and will not resolve and it is appropriate that a declaration be made.

• [143] The RTBU's view is that an intractable bargaining declaration should be made as it is apparent that, absent in the making of a declaration, agreement will not be reached.

• [144] The RTBU submitted that almost two years have passed since the 'agreement in-principle' was reached before Commissioner Crawford, which later fell over. The Commission has given the parties substantial assistance, and it is apparent that there is no sensible prospect of agreement being reached between them. The recent events emphasise that it would be reasonable in all the circumstances, including taking into account the RTBU's views, to make a declaration.

• [145] Qube submitted that making the declaration would not be reasonable, for the following reasons.

• [146] First, to the extent that there is an impasse, it is largely the result of the unreasonable conduct of the RTBU in:

(a) derailing the in-principle agreement by dropping its Federal Court Proceeding on Qube in a s.240 conference, several days after it had been filed and just as the in-principle agreement was about to be reached;

(b) reneging on its proposal for a global settlement based on loaded rates;

(c) cancelling a s.240 conference scheduled for 26 September 2023 and then refusing to participate in bargaining meetings until 7 March 2024, so as to 'run down the clock' on the "minimum bargaining period"; and

(d) making incoherent and contradictory wage claims in relation to unloaded rates.

• [147] Qube submitted that making a declaration would reward the RTBU for this conduct and allow legal devices to override constructive negotiations and enterprise-level agreement making through collective bargaining. Such an outcome would be contrary to the objects of the FW Act.

• [148] Secondly, until the loaded rates issue is resolved, it will be very difficult, if not impossible, for the Commission to arbitrate a workplace determination. This is because:

(a) the appropriateness of any proposed remuneration outcome under the workplace determination must take into account the current status quo: that is, the remuneration payable under the 2019 Agreement. While a significant matter in any event, the status quo is made critical by s.270A of the FW Act, which will require the provisions of the workplace determination dealing with wage rates, penalties, loadings and allowances to be no less favourable than the corresponding terms of the current 2019 Agreement;

(b) the status quo is unclear because there is currently an unresolved dispute as to whether the wage rates in the 2019 EA are loaded rates;

(c) it is difficult to see how several of the factors the Commission must consider under s.275 of the FW Act could be approached and assessed, without knowing whether the employees are presently entitled to a 20%-30% uplift on current payment arrangements (and the potential existential impact that might have on the ongoing viability of Qube's rail logistics business); and

(d) determining this issue will involve the Full Bench deciding the very question which is the subject of the underpayment claim proceedings, and which will be determined by the Federal Court soon after any workplace determination was made. Further, if the Court reaches a different conclusion on that issue, the workplace determination will be liable to be quashed, leading to a considerable waste of public and private resources.

• [149] Qube submitted that once the dispute is resolved through the s.217 application and/or the underpayments claim, there is a real prospect that agreement would be reached in any event, without the need for a workplace determination.

• [150] Following the November agreement, Qube submitted that:

(a) Qube and the RTBU were able to reach an agreement acceptable to each of them as bargaining representatives, which only unravelled because it was not approved by the delegates;

(b) the November agreement is within 0.5% (over three years) of the RTBU September offer;

(c) the RTBU has not put forward any new proposal or offer, nor said that the November agreement was its 'final' offer. Nor has Qube;

(d) the position of the RTBU and the delegates appears to be significantly influenced by the perceived benefit of the declaration/workplace determination pathway over bargaining;

(e) the intractable bargaining process was intended as a mechanism of last resort to break an irresolvable impasse in bargaining and should not be deployed as a substitute for and become an impediment to enterprise bargaining. It is not reasonable to grant a declaration if the intractable bargaining process itself is the very thing that is preventing an agreement from otherwise being reached. Nor should the Commission simply make declaration with a post declaration negotiating period, as a means of encouraging the parties to take 'one last chance' to reach agreement. Such a course is the antithesis of the statutory criteria for the making of the declaration in the first place; and

(f) the Commission should be very slow, under the rubric of reasonableness, to reward industrial parties (employers and employees alike) who 'backtrack' and renege on earlier proposals to reach agreement (if that is what the Commission concludes the RTBU and its delegates are doing), because of perceived improvements in their position in relation to an intractable bargaining.

• [151] Qube concluded by stating that if further bargaining fails to yield an agreement, it would be open to the RTBU to bring a further intractable bargaining declaration application.

• [152] I have taken into account the respective views of the RTBU and Qube in determining whether it is reasonable in all of the circumstances to make the declaration.

• [153] I accept that conduct by a party during bargaining is a relevant consideration as to whether it is reasonable in the circumstances to make the declaration. I do not accept that the RTBU derailed the in-principle agreement by providing the Federal Court documents in relation to the underpayment proceedings to Qube in the s.240 conference before Commissioner Crawford. In my view, it was appropriate for the RTBU to put Qube on notice of its interpretation of clause 4.2 of the 2019 Agreement before the parties took steps to formalise a new agreement with the same clause. To the extent that the in-principle agreement reached in June 2023 was derailed, this was because the parties had different views about the meaning of clause 4.2, not because of the conduct of the RTBU in the s.240 conference.

• [154] I accept the RTBU's conduct in requesting the cancellation of the conference scheduled for 26 September 2023 and refusing to participate in bargaining meetings until 7 March 2024 is likely to have impeded bargaining proceeding efficiently. Mr Pryor's evidence was that that the RTBU held concerns about Qube's update to employees on 13 September 2023 about the negotiations and that this is what caused the RTBU to require that bargaining occur in writing. Mr Ellem refuted the basis for the RTBU's concerns. Although I believe that the decision by the RTBU to refuse to participate in bargaining meetings was unwise, I have no reason to believe that Mr Pryor's concerns were not genuinely held and that these were the reasons that the RTBU participated in bargaining for a number of months through correspondence rather than by attending meetings.

• [155] I do not accept that the RTBU's actions in requesting cancellation of the conference scheduled for 26 September 2023 and refusing to participate in face-to-face bargaining meetings until 7 March 2024 were for the purpose of 'running down the clock' on the minimum bargaining period. If this was the case, the RTBU would have filed the application in December 2023 rather than four months later. In any event, any concerns about the RTBU's conduct have been overtaken by the parties' agreement to meet on four occasions during the proceedings as described above. In my view, the RTBU's actions in agreeing to delay the conclusion of the hearing by a period of seven months to participate in further conferences, providing detailed position papers, making offers, recommending the November 2024 Agreement to delegates, providing detailed feedback to Qube about the November Agreement after it was rejected and proposing a further meeting outweighs any concerns that the Commission might have about the RTBU's conduct prior to June 2024.

Requirement for Commission to determine the loaded rates issue

• [156] If the Commission makes an intractable bargaining declaration, the Commission is required by s.269 of the FW Act to make an intractable bargaining workplace determination. The parties agree that in making a workplace determination, the Commission will be required to determine the loaded rates issue because of ss. 270(3) and 270A of the FW Act.

• [157] Section 270(3) requires that the determination include terms that the Commission considers deal with the matters that were still at issue at the end of a post‑declaration negotiating period (if there was one) or otherwise after making the declaration under s.235.

• [158] Section 270A applies if an enterprise agreement applies to one or more employees who will be covered by the determination immediately before the determination is made. It provides that a term included in the determination that deals with a matter at issue (apart from a term which provides for a wage increase) must not be less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the matter.

• [159] If the declaration is made, s.270A will necessitate the Commission determining the meaning of clause 4 of the 2019 Agreement so that it can ensure that any corresponding term in the workplace determination is no less favourable. If the Commission determines that clause 4.2 is to be read to provide that penalties, loadings and allowances in the Award are to be paid in addition to rates of pay, the workplace determination will need to provide:
  • Penalties, loadings and allowances equal or greater than those in the Award; and
  • Rates of pay which are no less than the 2019 Agreement.

• [160] If the Commission determines that clause 4.2 is to be read so that the rates of pay are loaded and incorporate penalties, loadings and allowances, the Commission will still need to form a view about the quantum of the rates of pay and the quantum of the penalties, loadings and allowances with regard to reasonably foreseeable patterns of work[89] to ensure that the determination meets the better off overall test as required by s.272(4).

• [161] Once the current entitlements are determined for the purpose of s.270A, a range of matters potentially inform the quantum of any pay rise such as:

• the maintenance of real wages including consideration of CPI figures;
• wage outcomes for the same class of workers in the same industry;

• • wage rates and increases in comparable instruments.[90]

• [162] Ultimately, the wage increase determined depends upon a consideration of all the relevant circumstances including other aspects of the determination.[91]

• [163] In Schweppes Australia Pty Ltd v United Voice - Victoria Branch[92] the Full Bench observed in the context of an industrial action related workplace determination that:

Determining the level of wage increases in this context does not lend itself to the adoption of a decision rule or a mathematical formula. Fundamentally, the Tribunal is seeking to arrive at an outcome which is fair in all the circumstances and that appropriately balances the interests of the parties. The factors in s.275 and ss.577 and 578 of the Act are also relevant and must be taken into account.[93]

• [164] As previous decisions of the Commission in relation to workplace determinations make clear, the assessment of any wage increase does not simply involve the Commission formulating what it regards as an appropriate percentage increase and applying this to either a loaded rate or a base rate. The current base rate of pay and applicable penalty rates must be determined for the purpose of complying with s.270A, but the final outcome is only contingent upon these findings in the sense that the rates of pay, penalties, loadings and allowances cannot be lower than what the Commission determines are the current entitlements under an enterprise agreement.

• [165] I accept that a matter which is relevant to whether it is reasonable in all the circumstances to make a declaration, is whether a workplace determination made by the Commission would ultimately take effect. I accept that it is possible that the Commission and the Federal Court could arrive at either the same or a different view in relation to the loaded rates issue. However, even if the Commission comes to a different view to the Federal Court about the interpretation of clause 4.2, this will not necessarily lead to an outcome which is inconsistent with s.270A and which would not be regarded as fair in all the circumstances, having regard to the approach that the Commission must take in determining wage increases in workplace determinations. It follows that the Commission and the Federal Court arriving at different views in relation to the loaded rates issue will not automatically result in the workplace determination being vulnerable to judicial review.

• [166] The Commission's capacity to make a workplace determination is also a relevant factor in determining whether it is reasonable in all the circumstances to make the declaration. A matter which could affect the Commission's capacity to make a workplace determination is action which Qube may take in the Federal Court to prevent the Commission from doing so. It is not known whether Qube will take such action and if so, whether such action would be successful.

• [167] During the hearing on 7 November 2024, I expressed concern to the parties that if a declaration is made, the parties will be 'locked into' the Commission making a workplace determination, even if the Commission is initially prevented from making the determination by the Federal Court pending the outcome of the underpayment claim or the determination is quashed by the Federal Court following a successful judicial review application.

• [168] However, since that time, the decision in Australian Rail Track Corporation Limited v ARTBIU[94] has been handed down which confirms that after a termination of industrial action instrument has been made and prior to the making of a workplace determination, an employer and its employees remain able to make an enterprise agreement. By parity of reasoning, this suggests that if the Commission made a declaration in this case, there is no legal impediment to a new enterprise agreement being made prior to the making of a workplace determination.

• [169] Having regard to all of these matters, I accept that there is some risk that finalisation of pay and conditions of employees could be delayed if the Commission is either unable to proceed to make a workplace determination or any workplace determination is quashed as a result of judicial review. This is a matter which is relevant to whether it is reasonable in all of the circumstances to make the declaration.

Are the intractable bargaining declaration proceedings an impediment to bargaining?

• [170] I have already considered the submissions of Qube in relation to the progress made in bargaining in November 2024 and whether the position of the RTBU and the delegates appear to be significantly influenced by the perceived benefit of the declaration/workplace determination pathway over bargaining in my determination that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration. My findings about these matters are applicable to whether it is reasonable in all of the circumstances to make the declaration.

• [171] In short, the RTBU September offer was expressed to be the RTBU's final offer, the November agreement was less than that offer, the RTBU delegates did not ultimately accept the November agreement and Qube has not accepted a further invitation from the RTBU to attend a meeting with Deputy President Saunders. All of these events occurred while the declaration proceedings were on hold, so there is no basis for me to find that the position of the RTBU and the delegates is significantly influenced by the perceived benefit of the declaration/workplace determination pathway over bargaining or that the declaration proceedings have become an impediment to bargaining. Such a finding would be inconsistent with the RTBU's decision to pause the declaration proceedings for seven months to undertake bargaining with the assistance of the Commission.

• [172] There is no dispute between the parties that employees last received a pay rise more than three years ago in April 2022. According to the RTBU, at the time it filed supplementary submissions on 28 October 2024, inflation has increased by 11.5% and the living cost index for employees has increased by 16.8%. since April 2022.

• [173] This is a matter which is relevant to whether it is reasonable in all of the circumstances to make the declaration.

• [174] I do not have any concerns about the RTBU's conduct which causes me to believe that it is not reasonable in all of the circumstances to make the declaration. Any concerns that I might have had about the RTBU's conduct prior to June 2024 including its decisions not to participate in face to face bargaining meetings from September 2023 to March 2024 have been overcome by the RTBU's conduct since June 2024, particularly with respect to agreeing to delay the conclusion of these proceedings for a period of seven months to participate meaningfully in bargaining meetings facilitated by Deputy President Saunders. In my view, this conduct establishes that the RTBU is not using the proceedings as a substitute for bargaining and there is no evidence that RTBU delegates are using the proceedings to achieve a more favourable outcome than bargaining. The evidence shows that delegates want the Commission to determine the application before it in circumstances where the November agreement is not acceptable to them and bargaining has been proceeding for a protracted period. In other words, they want finality in relation to their pay and conditions.

• [175] I have accepted that there is some risk that finalisation of pay and conditions of employees could be delayed if the Commission is either unable to proceed to make a workplace determination or any workplace determination is quashed as result of judicial review. This is a matter which weighs against the making the declaration. However, this is simply a risk and there is also a possibility that the Commission will proceed to make a workplace determination which is acceptable to the parties and not subject to any further proceedings. Against the risk of a delay in the making of a workplace determination, is the fact that employees have not received a pay rise for more than three years. If a declaration is not made, it is not known whether agreement in relation to pay rises will ever be reached. Qube is confident that if a declaration is not made, agreement could be reached very quickly but there is no evidence to support that this will occur. If, as Qube earlier submitted, the underpayment proceedings need to be concluded in order for the parties to be certain about their position in relation to rates of pay, this could take many more months or even years, according to Qube.[95] I am not satisfied, based on the evidence before me, that agreement would be reached at that stage, given that the RTBU appears to be seeking parity with other freight rail operators, regardless of the outcome of the underpayment claim and that Qube has not indicated how the outcome of the proceedings would affect its bargaining position.

• [176] Taking all of these matters into account, including the views of the bargaining representatives for the agreement, I am satisfied that it is reasonable in all of the circumstances to make the declaration.

Conclusion re intractable bargaining declaration

• [177] All the preconditions for the making of an intractable bargaining declaration pursuant to s.235(1) are satisfied. In the exercise of my residual discretion, there is no matter which I can identify which would weigh against making an intractable bargaining declaration. Accordingly, I make the declaration applied for by the RTBU.

Post-declaration negotiating period - s.235A

• [178] Although I have found that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration, I have accepted that there is some risk that finalisation of pay and conditions of employees could be delayed if the Commission is either unable to proceed to make a workplace determination or any workplace determination is quashed as result of judicial review. In the circumstances, I consider that it is appropriate to provide the parties with an opportunity to avoid that risk and further delays by specifying a post-declaration negotiating period of two weeks during which the parties can resume their discussions about resolving the matter.

• [179] I make an intractable bargaining declaration in relation to the Proposed Agreement. A post-declaration negotiating period will start today, 8 May 2025, and end on 22 May 2025. The declaration is made by a separate order that is published in conjunction with this decision and which, in accordance with s.235(4)(a) of the FW Act, will operate from the date of this decision. The parties may request assistance from the Commission during the post-declaration negotiating period.

Mr M. Follett KC and Mr D. Ternovski, Counsel, for the Respondent

[1] Witness Statement of Steven Garry Ellem dated 27 May 2024 [5], DHB 644

[2] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [5], Digital Hearing Book (DHB) 33

[16] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 646

[17] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [27], DHB 37

[18] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 646

[20] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [28], DHB 37

[25] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 649

[26] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [38], DHB 39

[28] Witness Statement of Peter Matthews dated 28 October 2024 [25], DHB 1109

[30] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [39]-[44] DHB 39-40

[32] Witness Statement of Steven Garry Ellem dated 27 May 2024 [20], DHB 669

[33] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [47], DHB 41

[35] Witness Statement of Steven Garry Ellem dated 27 May 2024 [22]-[23], DHB 669

[36] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [52] DHB 42

[37] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 652

[38] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [53], DHB 42

[41] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 656

[42] Witness Statement of Kevin Thomas Pryor dated 10 May 2024[59]-[63], DHB 44-45

[43] Witness Statement of Peter Matthews dated 10 May 2023 [56]-[57], DHB 425-426

[44] Witness Statement of Kevin Thomas Pryor dated 10 May 2024 [64], DHB 45

[46] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 658

[47] Witness Statement of Kevin Thomas Pryor dated 10 May 2024, [69]-[76], DHB 47

[48] Witness Statement of Steven Garry Ellem dated 27 May 2024, DHB 661

[49] Witness Statement of Kevin Thomas Pryor dated 10 May 2024, [82]-[88] DHB 48

[52] Witness Statement of Peter Matthews dated 28 October 2024 [3], DHB 1105

[67] Witness Statement of Steven Garry Ellem dated 27 May 2024 [15], DHB 666

[68] [2023] FWCFB 180.

[72] Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 127, [12]

[75] UFU v FRV [2023] FWCFB 180, [29].

[76] Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 127, [11]

[78] UFU v FRV [2023] FWCFB 180, [30]

[80] Suncoast Scaffold Pty Ltd [2023] FWCFB 105, [17] cited in UFU v FRV [2023] FWCFB 180, [30]

[81] UFU v FRV [2023] FWCFB 180, [31]

[83] Witness Statement of Peter Matthews dated 28 October 2024 PM-1, DHB 1121-1129

[88] Witness Statement of Gregory Woods dated 28 October 2024 [25], DHB 1229

[90] Parks Victoria v The Australian Workers' Union and others [2013] FWCFB 950, [177].

[92] [2012] FWAFB 8599

[94] [2024] FCAFC 170

[95] Witness Statement of Peter Matthews dated 28 October 2024 PM-5, DHB 1145

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