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[2026] FWC 751
General information, not legal advice.
Fair Work Commission
2026-03-05
Original judgment source is linked above.
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V), Australian Rail, Tram and Bus Industry Union (139V)
Yarra Journey Makers Pty Ltd Trading AS Yarra Trams
Application to deal with a dispute under enterprise agreement dispute resolution procedure - interim application for stay of dispute proceedings - separate proceedings between parties before Federal Court of Australia - stay not granted
[1] This decision deals with a procedural application to stay three dispute applications to the Commission made under an enterprise agreement dispute resolution procedure.
[2] The dispute applications in the Commission have been lodged by the AWMU, CEPU and RTBU (collectively, the Unions). The Unions have each lodged a separate Form F10 in the Commission referring a dispute to the Commission under clause 12 (Dispute Resolution Procedure) of the Yarra Trams Enterprise Agreement 2023 - Rolling Stock, Administration, Technical & Professional (the Agreement) and s 739 of the Fair Work Act 2009 (Cth) (the Act).
[3] The respondent to the Commission dispute applications is Yarra Journey Makers Pty Ltd T/A Yarra Trams (YJM).
[4] YJM has made the procedural application seeking that the Commission stay the three dispute applications under s 589 of the Act. YJM seeks a stay of the dispute applications until such time as a proceeding (VID1407/2025), in the Federal Court of Australia including any appeal from the Federal Court proceeding, is heard and determined. YJM and the Unions are parties to the Federal Court proceeding.
[5] Since 1 December 2024, YJM has operated the Melbourne metropolitan tram network. In connection with that function, YJM employs workers (RS Employees) in its 'Rolling Stock' division to perform maintenance work on the YJM tram fleet.
[7] YJM also engages two third party providers to perform certain work on its tram fleet. Alstom Transport Australia Pty Ltd (Alstom) performs work in relation to the bogies of E-Class Trams (Alstom Work). Downer EDI Rail Pty Ltd (Downer) performs work in relation to the roofs of D-Class Trams (Downer Work).
[8] The Commission dispute applications refer a dispute in relation to the construction of clause 59 (Supplementary Labour) of the Agreement and the operation of clause 59 with respect to YJM's engagement of Alstom and Downer.
[10] Clause 59 covers subjects including consultation by YJM with employees, their representatives and union regarding a decision by YJM to "utilise supplementary labour or contractors to perform work ordinarily performed by employees" (cl.59.1(c)), the provision of information to employee representatives prior to YJM engaging a 'Third Party' (cl.59.3(b)) and the specification of certain conditions to be satisfied when YJM engage a 'Third Party' (eg cl.59.3(c)&(d)).
[12] Clause 59.3 (at least) does not apply in certain circumstances including when YJM engage a Third Party to perform "Specialised Work"(cl.59.3). The term "Specialised Work" is a defined term (cl. 59.2(c)).
[13] In addition, the expressly defined term "Work" (cl59.2(b)), which is variously used in clause 59 in connection with a number of the obligations or conditions, also excludes "Specialised Work".
[14] Furthermore, the operation of the sub-paragraphs dealing with the 'no less favourable wages and conditions' is arguably dependent on an additional requirement, being that YJM engages a "Third Party" to "Provide labour to perform Work" and/or "Source labour to perform work." (cl.59.2(a) & (b))
[15] Broadly speaking, the dispute applications refer a dispute to the Commission in relation to YJM's engagements of Alstom and Downer. The Unions assert that those engagements fall within the scope of clause 59 and that YJM has obligations under the clause in relation to consultation and must fulfil the conditions in relation to 'no less favourable wages and conditions'.
[16] The dispute applications do not specify in any great detail the relief sought from the Commission. The AMWU and CEPU merely indicate that they seek conciliation and arbitration. The RTBU seeks a determination that YJM's engagement of Alstom and Downer is inconsistent with clause 59 of the Agreement. I note that the absence of specificity in of the relief sought, is not unusual in initiating dispute applications lodged in the Commission pursuant to dispute resolution clause.
[17] As noted above, YJM's application to stay the dispute applications arises in circumstances where it has commenced a proceeding in the Federal Court. The AMWU, CEPU and RTBU are respondents in the Federal Court proceeding. The subject of the proceeding relates to YJM's engagements of Alstom and Downer with declaratory relief sought.
[18] YJM seeks declarations from the Court pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). YJM seeks declarations the effect of which is that specific obligations in particular sub-clauses and paragraphs of clause 59 of the Agreement do not apply to the Alstom Work and Downer Work.
[19] YJM seeks declarations that the Alstom Work and the Downer Work is "Specialised Work" and not "Work" for the purposes of sub-clauses 59.3, 59.5 and 59.6. YJM also seeks declarations that the Downer Work and Alstom Work does not involve the Applicant "engaging or continuing to engage or utilise a Third Party to provide labour or source labour for the purposes of clauses 59.3(c) and (d)".
[20] Alternatively, YJM seeks a declaration from the Court that to the extent that the Court finds that on their proper construction clause 59.3(c) & (d) would operate in relation to the Alstom Work or Downer Work, those clauses of the Agreement are not about a "permitted matter" identified in s 172(1) and by operation of s 253(1)(a) of the Act, are of no effect.
[21] I note that the declaratory relief sought in the Federal Court does not expressly deal with clause.59.1(c) which refers to consultation by YJM with unions and others.
The Chronology of the Dispute, Applications to the Commission and Commencement of Federal Court Proceedings
[22] Since about June 2025, the Unions and YJM have had discussions about the application of clause 59 to the worked performed by Alstom and Downer. In those discussions, the Unions conveyed certain views to YJM regarding the meaning of clause 59 and its application to YJM's engagement of Alstom and Downer. In response, YJM expressed a contrary view about those matters.
[23] On 13 October 2025, the CEPU through its Branch Organiser John Islip, sent YJM an email entitled "Notice of Dispute - Supplementary Labour engaged by Yarra Trams Rolling Stock". Broadly speaking, Mr Islip's email asserted a dispute with YJM regarding whether YJM was conforming with clause 59 in its engagement of Downer and Alstom and the proper operation of clause 59. Mr Islip asserted that Downer and Alstom employees received lower wages and conditions than YJM employees who perform the same work and set out a table of wages and conditions applicable to Downer employees which were said to be inferior to those of YJM employees. Mr Islip's email concluded with the following text:
Please accept this email as formal notification that the ETU is in dispute with Yarra Trams for failing to comply with Clause 59 Supplementary Labour.
This dispute is raised under Clause 12.1(a) - Dispute Resolution Procedure - of the Agreement. It concerns matters arising under the agreement, as outlined above.
To resolve this matter at the workplace level, could you please advise Yarra Tram's availability for good faith discussions between the parties?
[24] Later on 13 October 2025, the AMWU and RTBU emailed YJM and adopted the dispute raised by the CEPU. In substance, the AMWU and RTBU also asserted a dispute with YJM under clause 59.
[25] On 15 October 2025, YJM emailed the Unions scheduling a meeting on 28 October 2025 to "discuss the two supp labour disputes".
[26] On 16 October 2025, the AMWU sent YJM a further email setting out its views regarding the operation and history of clause 59, in preparation for the meeting between the Unions and YJM due to occur on 28 October 2025.
[27] On 27 October 2025, YJM commenced the Federal Court proceeding (VID1407/2025) by the filing of an Originating Application and Concise Statement in the Court.
[28] On 27 October 2025, YJM sent an email to the Unions indicating that YJM had filed an application in the Federal Court relating to the Downer and Alstom maintenance work. The YJM email also indicated that it wished to proceed with the meeting scheduled for the following day to continue discussions regarding the matter.
[29] On the morning of 28 October 2025, CEPU acknowledged receipt of YJM's email regarding the commencement of the Federal Court proceeding but affirmed that it would work through the dispute procedure in the Agreement.
[30] Later on that day (28 October 2025), YJM and the Unions met to discuss the dispute under clause 59 relating to the Alstom and Downer maintenance work. However, the meeting did not result in resolution of the dispute.
[31] On 28 October 2025, YJM's solicitors emailed the Unions the Concise Statement which had been filed in the Court. On 5 November 2025, YJM's solicitors emailed the Unions the Originating Application filed in the Court.
[32] On 31 October 2025, the CEPU lodged a dispute application in the Commission under clause 12 of the Agreement and s 739 of the Act (First CEPU Dispute Application). The matter was allocated to another member of the Commission.
[33] On 5 November 2025, the Commission listed the First CEPU Dispute Notification for a conference on 20 November 2025.
[34] On 6 November 2025, the AMWU emailed YJM proposing a meeting to try and resolve the dispute before "the FWC hearing", evidently a reference to the Commission conference on 20 November 2025.
[35] On 7 November 2025, YJM sent an email to the Unions responding to the AMWU and indicating availability for a meeting with the Unions on 11 November 2025.
[36] On 10 November 2025, the CEPU discontinued the First CEPU Dispute Application by sending the Commission an email indicating that "the parties had agreed to engage in further discussions about this matter" and "the [CEPU] therefore wishes to discontinue is application at this stage."
[37] On 11 November 2025, YJM and the Unions again met to discuss the application of clause 59 to YJM's engagement of Alstom and Downer. The Unions and YJM reaffirmed their respective positions regarding the operation of clause 59 and there was no resolution reached.
[38] On 19 November 2025, 21 November 2025 and 1 December 2025, the AMWU, CEPU and RTBU respectively lodged the present dispute applications pursuant to clause 12 of the Agreement and s 739 of the Act.
[39] On 20 November 2025, the dispute application filed by the AMWU was listed for a conference in the Commission before me on 28 November 2025. On 21 November 2025, the Commission amended the conference listing to include the CEPU dispute application.
[40] On 21 November 2025, YJM served on the Unions the Originating Application and Concise Statement filed in the Federal Court.
[41] On 27 November 2025, YJM lodged in the Commission its response to the AWMU and CEPU dispute applications.
[42] On 28 November 2025, the Commission conducted a conference under clause 12.5 of the Agreement. The conference was conducted in the AMWU and CEPU dispute applications and attended by all three unions and also YJM. The dispute applications were not resolved in conference.
[43] On 23 December 2025, the Federal Court listed VID1407/2025 for a case management hearing before a Judge of the Court on 28 February 2026.
[44] On 2 December 2025, YJM filed an application in the Commission to stay the three dispute applications. Shortly after the conference, the parties proposed consent directions with a proposed timetable for the stay application.
[45] On 23 February 2026, the Commission conducted a hearing in the stay application. The Unions were represented by Mr Yassir Bakri of counsel and YJM was represented by Mr Andrew Pollock of counsel. At the conclusion of the hearing, the Commission reserved its decision.
[46] As at the time of making my decision, I understand that the 26 February 2026 case management conference before the Federal Court was adjourned pending a decision of the Commission on the stay application.
[47] As noted above, the dispute applications were lodged in the Commission pursuant to clause 12 (Dispute Resolution Procedure) of the Agreement and s 739 of the Act. The Unions now press for arbitration in the Commission of the disputes raised in their applications.
[48] Clause 12 relevantly sets out a dispute procedure for disputes relating to "a matter arising under the Agreement." Clause 12.3 provides for parties to the dispute to try and resolve the matter at a workplace level. If the workplace discussions do not resolve the dispute, clause 12.4 permits a party to a dispute to refer the dispute to the Commission. Upon referral to the Commission, clause 12.5 provides for the Commission to deal with the dispute in two stages. Under clause 12.5(a), the first stage provides for the Commission to attempt to resolve the dispute by means it considers appropriate such as conciliation. If the dispute is not resolved by such means, the second stage in clause 12.5(b) provides for the Commission to "arbitrate the dispute" and "make a determination that is binding on the parties".
[49] The Commission acts as a private arbitrator when arbitrating a dispute under a dispute resolution clause in an enterprise agreement. Whilst acting as a private arbitrator, the Commission's authority to arbitrate a dispute arises from the Act. The statutory basis for the Commission to undertake an arbitration under the dispute resolution procedure of an enterprise agreement arises under s 595(3), s 738(b) and 739(4) of the Act. I also note that s 576 sets out the functions of the Commission which include in subsection (2) "dealing with disputes as referred to in section 595." Furthermore, s 186(6) of the Act requires enterprise agreements to include a dispute resolution procedure to settle disputes about any matters arising under an agreement.
[50] In dealing with such disputes under an enterprise dispute resolution procedure, the Commission may exercise all of its general statutory procedural powers unless those powers are limited by the dispute resolution procedure in the enterprise agreement. See United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198 (UFU Full Bench).
[51] The general procedural powers of the Commission include the capacity under s 589(1) to "make decisions as to how, when and where a matter is dealt with". The power under s 589 is sufficiently broad to include the power of the Commission to order a stay of a matter before it, pending the outcome of proceedings in another forum.
[52] A decision in relation to a stay application is a discretionary decision and is to be exercised in a statutory context. The statutory context includes the requirement under s 577(1) that the Commission perform its functions and exercise its powers in a manner that is fair and just, is quick informal and avoids unnecessary technicalities, is open and transparent and promotes harmonious and cooperative workplace relations. The statutory context also includes the requirement under s 578 that in performing its function in relation to a matter, the Commission take into account the objects of the Act, the objects of the part of the Act under which the matter arises and also the equity, good conscience and the merits of the matter. (See Esso Australia Pty Ltd [2018] FWC 6244 (Gostencnik DP) at [11]) (Esso Australia).
[53] In Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited [1992] FCA 72; (1992) 34 FCR 287 (Sterling) Lockhart J set out several relevant considerations his Honour took into account in determining a stay application before the Federal Court, in circumstances where another proceeding had been commenced in the High Court of New Zealand. The parties in the New Zealand and Australian proceedings were related entities and the proceedings raised a substantial identity of issues. His Honour identified the relevant considerations as follows at 291:
In my opinion relevant consideration is to be taken into account in the present case includes the following:-
[54] The factors identified in Sterling have been previously adopted in the Commission in stay applications where related proceedings between the same parties are before a court. However, the considerations identified in Sterling do not constitute a rigid test or code and are not exhaustive. Furthermore, the relevant considerations may vary depending on the facts of the particular case and whether it is necessary for the Commission to exercise its discretion having regard to the relevant statutory context including the terms of ss 577(1) and a 578. The ultimate question to be addressed is whether the interests of justice would be best served by the granting of a stay (See Esso Australia at [11] - [16]).
[55] I turn first to the consideration of which "proceeding" commenced first. There is some controversy between YJM and the Unions as to which "proceeding" commenced first.
[56] YJM submitted that the relevant comparison is as between the time of commencement of the Federal Court proceeding and the time of commencement of the dispute applications in the Commission.
[57] The Unions submitted that the relevant comparison is as between the time of commencement of the Federal Court proceeding and the time when the Unions emailed YJM formally notifying it of a dispute under clause 12 and sought a workplace discussion between the parties under clause 12.3. The Unions describe this act by the Unions as the "relevant 'proceeding' for present purposes". The Union submission arises from the structure of the dispute resolution procedure in clause 12. As is common in dispute resolution procedures in enterprise agreements, clause 12 provides for a stepped dispute resolution procedure, with the initial step being discussion at a workplace level.
[58] In my view, both matters are relevant considerations to take into account. I consider that I should take into account the timing as between the commencement of the Federal Court proceedings and the Commission dispute applications, and I should also take into account the timing as between the Federal Court proceedings and the enlivenment of the dispute procedure under the enterprise agreement.
[59] The fact that the Federal Court proceedings were commenced before the Unions lodged their dispute applications in the Commission is certainly a relevant matter. It is somewhat implicit in the Union submission that the timing of the lodgement of the Commission dispute notification is not relevant and I should only consider the timing of the Union's express invocation of the dispute resolution clause. This is something I do not accept. Under the dispute resolution clause, the Commission is the body conferred with the power to arbitrate and determine disputes. Furthermore, the Commission is an administrative body, established by statute and required to act judicially. The purpose of comparing "which proceeding is commenced first", contemplates a temporal comparison of the commencement of proceedings in formal bodies with powers to deal with and determine controversies or disputes. Therefore, it is indeed relevant to consider the timing of the Federal Court applications in relation to the timing of lodgement of the dispute applications in the Commission.
[60] However, in my view, the relevant context also requires consideration of temporal facts arising from the whole of dispute procedure specified in clause 12.
[61] Clause 12.3 requires that "[i]n the first instance parties to a dispute must try to resolve the dispute at the workplace level ... in good faith". Clause 12.4 provides that "[i]f discussions at the workplace level do not resolve the dispute, a party to a dispute may refer the matter to the Fair Work Commission." The proper construction of clause 12 tends to a conclusion that the parties to a dispute must first try and resolve the dispute at the workplace level before referral to the Commission. In that regard, the following expressions used in clause 12 support such a construction: the reference in clause 12.1 to "then the following procedures apply" (referring to the whole of the dispute procedure in relation to a dispute); the reference in clause 12.3 to "[i]n the first instance" (referring to workplace level discussions), and the reference in clause 12.4 to "[i]f discussion at the workplace level do not resolve the dispute" (referring to the reference to the Commission). The operation of clause 12 requires a party to a dispute to first try and resolve the dispute in discussions at the workplace level before referral to the Commission.
[62] Clause 12 was expressly invoked by the Unions on 13 October 2025, when Mr Islip of the CEPU sent his email to YJM, which was then adopted by the AMWU and the RTBU. Mr Islip's email referred to the subject of the dispute and invoked clause 12.1(a) (which refers to a dispute relating to matter arising under the Agreement). Furthermore, Mr Islip's email constituted an endeavour to engage with the first step of the dispute procedure, being the discussions at the workplace level referred to in clause 12.3. In that regard, Mr Islip's email reflected the terminology in clause 12.3 in his request that YJM indicate their availability for "good faith discussions" "[t]to resolve this matter at the workplace level."
[63] YJM submitted that discussions at the workplace level was a necessary precursor of both the dispute applications in the Commission (by reason of clause 12) and also the commencement of the proceeding in the Court (by reasons of s 37M of the FCA Act). YJM's submission seeks to draw an equivalence between the jurisdictional pre-conditions of a dispute application to the Commission and that of a litigant's observance of s 37M of the FCA Act before commencing proceedings in the Federal Court. I do not accept this submission. In my view, the whole of the clause 12 dispute procedure is a process to deal with a dispute. The clause 12 process specifies two discrete steps as part of a process, the first of which are discussions at a workplace level, and the second of which is referral to the Commission which may ultimately arbitrate and determine an unresolved dispute. In contrast 37M imposes a general obligation on a party to conduct a proceeding in the Court (including negotiations for resolution of the dispute to which the proceedings relates) in a way that is consistent with the overarching purpose in s 37M. Properly, considered in this fashion, the workplace discussions a party engages as the first step of the clause 12 process is of a different character to the pre-litigation steps a party may engage in order to fulfil obligations under s 37M of the FCA Act.
[64] YJM make a submission that the CEPU commenced and discontinued the First CEPU Dispute Notification in the Commission. YJM characterise this course as "member shopping" a matter in support of a stay being granted. Obviously, this matter, if correct would be undesirable. But it is not a matter which could be held against the RTBU or the AMWU. I note that no witness was called by the CEPU on this matter. The documentary evidence before me relating to the CEPU's stated reason for discontinuing the First CEPU Dispute Application is an email sent by the CEPU to the Commission on 10 November 2025. In that email, the CEPU informed the Commission that it was discontinuing the application in light of YJM agreeing to further discussion. On the evidence before me, I am not prepared to draw an inference that the CEPU was member shopping, as YJM allege.
[65] There is significant overlap between the Federal Court proceeding and the Commission dispute applications. Presently, it appears that both matters would require determination of whether the Downer Work or Alstom Work is "Specialised Work" and not "Work" and whether YJM's engagement of Downer and Alstom constitutes YJM engaging or continue to engage a "Third Party to provide labour or source labour for the purposes of clauses 59.3(c) and (d)".
[66] In these circumstances, disposition of the Federal Court proceeding will have a material effect on the Commission dispute applications. The Commission would be bound by the decision of the Court. The Court can conclusively determine controversies as to the facts, the proper construction of clause 59 and whether clause 59.3(c) & (d) are permitted matters. Consequently, the resolution of the Federal Court proceeding will likely have a material effect on the Commission applications.
[67] However, in the Federal Court proceeding YJM does not raise any express issue or seek relief in relation to any matter about consultation under clauses 59.1(c) & (d). As previously noted, the dispute applications raise disputes about consultation. In making this observation, I am mindful that both matters are at an early stage. But, while there is presently substantial overlap in both matters regarding the issues raised under clause 59, the overlap is not identical.
[68] The resolution of the dispute applications in the Commission is also certain to have a material effect on the Federal Court proceeding. This goes to the nature of a private arbitration by the Commission. Subject to one matter that I note below, the arbitral decision under a dispute resolution clause in an enterprise agreement operates to conclusively determine the rights and liabilities of the parties to the dispute. A private arbitration extinguishes the controversy between the parties to a dispute. (See Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; (2018) 264 FCR 342 (Energy Australia FC); Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 (Energy Australia First Instance). Therefore, if the dispute applications result in the Commission arbitrating the issues in paragraph [65], the arbitrated outcome would bind the parties in relation to those arbitrated issues in the proceeding in the Court.
[69] But I am also mindful that the Commission in exercising the function of private arbitration is not exercising judicial power. Consequently, unlike the Court, the Commission cannot grant declaratory relief that clauses 59.3(c) & (d) are not about "permitted matters" identified in s 172(1) and of no effect under s 253. I note that YJM seeks such declaratory relief in these terms in the Federal Court proceeding. Nevertheless, this permitted matter issue is a subject on which the Commission could form a view as a step in the exercise of its arbitral function under clause 12. In that regard, the Commission may properly form and act upon an opinion about legal rights and obligations as a step in the exercise of its own functions and powers (See Re Cram; Ex parte The Newcastle Wallsend Coal Company Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149). The Commission's formation of a view whether clauses 59.3(c) & (d) were relevantly of no effect under s 253, would inevitably be a material step in its reasoning in an arbitration under clause 12.5(b).
[70] In light of the substantial identity of issues, there is some risk of inconsistent decisions between the Court and the Commission. However, I consider that the practical reality of inconsistent decisions is low. If a substantive decision were first made by the Court, that decision would bind the Commission. If the dispute applications were arbitrated in the Commission, that outcome would bind the parties in respect of the issues arbitrated (See Yallourn Energy FC & Yallourn Energy First Instance). Furthermore, YJM has indicated that it will seek an anti-suit injunction in the Court restraining the Commission if the stay application were not granted. The Unions have indicated that they will apply to the Court to stay the Federal Court proceeding if the Commission does not grant a stay.
[71] A further matter to consider is the nature status of the Commission relative to the Court. In that regard, the Commission is a statutory tribunal undertaking private arbitration. The Federal Court is a superior court with a specialist function to finally determine the rights and liabilities of the parties under the Act. (See Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [31]).
[72] As I have noted above, a private arbitration by the Commission would bind the parties to the dispute. It seems that the parties to the dispute applications are the Unions and YJM. The RS Employees themselves don't appear to be parties principal to the dispute. As such, it may be said that those employees are not bound by an arbitration in the Commission. This is of course theoretically correct. By contrast, declarations of the Court would have broader binding legal effect. However, it seems to me that the practical reality is that if the Unions are bound by a private arbitration in the Commission, the prospect that the issue would remain industrially or legally live through the agency of individual employees, is low.
[73] However, I also note that an object of the Act is stated in s 3(e) as being "providing accessible and effective procedures to resolve grievances and disputes." Clearly, the provisions in the Act (ss 186(6), 595, 738, 739) providing for dispute resolution in an enterprise agreement including private arbitration in the Commission are intended to give effect to this purpose. The intended purpose of clause 12 of the Agreement should be construed, in that statutory context, as being to provide parties an orderly means of restoring and maintaining industrial harmony by resolving disputes, outside the courts. (Energy Australia Full Court at [30]); Energy Australia First Instance [78]); Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231 at [152] per Banks-Smith & Jackson JJ). This is of course a public interest consideration.
[74] I have also considered the nature of any appellate jurisdiction in the Commission arising from a first instance decision. This is a matter raised by YJM in support of a stay, YJM submit that a first instance decision made in error is only reviewable with permission on appeal before a Full Bench of the Commission. YJM submit that there are only limited grounds of review in the Court from a private arbitration in the Commission, being where a decision in a private arbitration was affected by error in excess of jurisdiction. YJM also submit that the appellate structure of the Commission is comprised, other than the President, of non-judicial members not all of whom are required to be legally qualified. YJM submit that in light of issues of general importance raised in this matter, this has the risk of error being transposed to other proceedings involving like clauses. However, I note that issues of the type raised in this matter are not infrequently dealt with by Full Benches of the Commission and there is considerable expertise in the Commission in respect of such issues. Furthermore, while is not for me to speculate about the constitution of a Full Bench from a decision not yet made at first instance, it could reasonably be supposed that if an appeal was instituted by a party, a Full Bench with expertise would be constituted to dispose of the appeal. In terms of the more limited grounds for judicial review available from a private arbitration, those matters are a function of the scheme of private arbitration under the Act.
[75] I also note that in the ordinary course, the institution of an appeal in the Commission first requires permission of the Full Bench (s 604). However, an appeal to a Full Bench in relation to a first instance private arbitration can be modified by the dispute resolution clause. Clause 12.6 of the Agreement provides that an "a_p_peal may be made against that [arbitrated] decision". Once again, whether permission would be required to appeal from any future first instance decision, is a matter for a Full Bench, but it seems to me very likely that clause 12.6 confers a right of appeal to a Full Bench from a first instance decision in a private arbitration. (See UFU Full Bench).
[76] As noted above, the Commission is constituted under statute and mandated to perform its functions in a manner that is fair and just, is quick informal and avoids unnecessary technicalities (s 577). These considerations are to be weighed together with the requirement to take into account the objects of the Act and the equity, good conscience and the merits of the matter. I have dealt with the relevant object of the Act above. The Unions have indicated that a five-day hearing would be required and that they would seek that that the Commission conduct a view of work performed by RS employees. YJM indicate that a one-day hearing would be required. I have indicated to the parties that if up to five days were required, the Commission could make five days available between 18 - 22 May 2026. As I am presently aware, the first case management in the Federal Court will shortly occur, so I am not yet aware of programming the parties are likely to obtain from the Court. Consequently, I cannot safely assume that the Court is in a position to programme the proceeding for hearing more expeditiously than the Commission can programme the dispute applications. Furthermore, given the early stage of the Federal Court proceeding and the Commission dispute applications, the parties will not have expended significant resources on either matter, and what has been expended in one matter on the substantive issues is likely to able be utilised in the other matter.
[77] In all of the circumstances, I do not consider that it is in the interests of justice to stay the dispute applications. The dispute applications should be programmed in the Commission in the ordinary course.
[78] For the reasons set out above, I dismiss the YJM application to stay the dispute applications.
[79] If after the first case management in the Court, any party wishes to make a further application in the Commission, then I will of course give any such application consideration.
[80] The parties are otherwise invited to provide the Commission proposed consent directions for programming of the dispute applications. Absent any consent proposals provided to Chambers by 11 March 2026, the Commission will programme the dispute applications for hearing.
[1] The Agreement identifies KDR Victoria Pty Ltd as the employer covered by the Agreement. KDR was the previous operator of the Network. It seems apparent that YJM and "transferring employees" are covered by the Agreement as a "transferrable instrument" under Part 2-8 of the Act due to a "transfer of business" within the meaning of s 311 of the Act. Furthermore, on application of YJM, the Commission has issued an order under s 319(4) of the Act that the Agreement covers or is likely to cover "non-transferring employees" of YJM who perform or are likely to perform "transferring work". See Yarra Journey Makers Pty Ltd [2024] FWC 3201 and PR781427.
[2] [2024] FWCA 507 (AE523447, PR770967).
Printed by authority of the Commonwealth Government Printer
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V), Australian Rail, Tram and Bus Industry Union (139V)
Yarra Journey Makers Pty Ltd Trading AS Yarra Trams [2026] FWC 751
(1992) 34 FCR 287
(2018) 264 FCR 342
(1987) 163 CLR 140