//
[47]
[2026] FWC 805
General information, not legal advice.
Fair Work Commission
2026-03-12
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
Application for approval of the Lady Gowrie Tasmania Enterprise Agreement 2025 - agreement not capable of approval - views sought on amendment.
[1] An application has been made for approval of an enterprise agreement known as the Lady Gowrie Tasmania Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd. The Agreement is a single enterprise agreement.
[2] The bargaining representatives for the Agreement have corresponded with my chambers regarding numerous concerns I have raised concerning the Agreement. This process resulted in me issuing a Statement on 20 February 2026 detailing the concerns that I considered had been resolved, the concern that remained and some additional new concerns relating to the relevant approval requirements. A copy of the Statement is attached as Annexure A to this decision. The Statement afforded the bargaining representatives an opportunity to respond to the residual concern and new concerns. Such opportunity was embraced and I have received and considered material provided by the Applicant and by the United Workers Union (UWU), a bargaining representative for the Agreement.
[3] The unresolved concern in respect of which I had expressed preliminary views related to the dispute resolution term of the Agreement, and in particular paragraph (c) of clause 41.3, which provides as follows:
"If an application is not filed within 7 working days to the FWC following completion of the steps under clause 41.2 (Internal Dispute Process), the dispute is deemed to have been resolved and the matter cannot be referred to FWC"
"...the key concern is whether clause 41.3(c) has the result that there are some disputes (about matters arising under the Agreement or in relation to the NES) that the provision does not "allow" the FWC to deal with, and if that is the case, can I be satisfied as required by section 186(6)?"
[4] Subsection 186(6) of the Act sets out a requirement for the approval of an enterprise agreement in the following terms:
"(6) The FWC must be satisfied that the agreement includes a term:
(a) That provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees, or employee organisations covered by the agreement, to settle disputes:
- about any matters arsing under the agreement; and
- in relation to the National Employment Standards.
[5] My provisional view was that I could not be satisfied as required by subsection 186(6). The additional matters that I sought the parties to address were:
a) Whether any of the provisional views expressed were also applicable to the time limit expressed in clause 41.3(d) concerning access to arbitration;
b) The dispute resolution procedure seems to operate on the basis that only employees can raise a dispute, and accordingly the FWC is not allowed to settle disputes about matters arising under the Agreement or in relation to the NES that the employer has initiated. How might the Commission be satisfied as required by s.186(6) in those circumstances?; and
c) Does the time limit in clause 41.3(c) for accessing conciliation at the FWC have any consequences for the application of the better off overall test?
[7] The Applicant also pointed out that, in the event that the internal dispute resolution procedures did not result in a resolution of an employee's dispute within the required timeframe because of a failing on the employer's part to respond to the dispute in the required time, this would not be the proximate cause of the right to bring the dispute to the Commission being lost. Rather the loss of the right would be properly attributed to the employee failing to refer the dispute to the Commission within the prescribed time.
[8] As to the additional concerns raised, the Applicant put what seemed to be an internally inconsistent position that the time limit on access to arbitration did not limit access to arbitration but merely limited a role afforded to the Commission. As to the capacity of the employer to initiate disputes, the Applicant submitted that the requirement of the first step of the dispute procedure - that "the dispute will be referred to the Employee's immediate supervisor" - was equally capable of being fulfilled in relation to disputes that were initiated by the employer. Further, it was said that because the right to refer a dispute was expressly conferred on "either party", disputes initiated by the employer could be progressed to the Commission. In relation to the Better Off Overall Test (BOOT), the submission was that the content of the dispute resolution procedure was relevant to the assessment. However, the Applicant considered that the time limit imposed, together with the expanded scope of the dispute resolution procedure in the Agreement (which dealt with "a matter pertaining to the employment relationship") had the result that the dispute resolution procedure in the Agreement was more beneficial to employees than the procedure in the Children's Services Award. In the alternative, it was submitted that the 7 working day time limit does not remove the ability to refer a dispute to the Commission and carried limited weight in the BOOT assessment so the Agreement would still pass the BOOT in light of its other benefits.
[9] The Applicant offered alternative formulations of the dispute resolution procedure, on the basis that these might be given effect to by way of an undertaking in the event I considered my concerns had not been resolved. A version supplied with the Applicant's initial submissions in response to the Statement was superseded by a further version supplied with its submissions in reply.
[12] I am not moved by the Applicant's submissions in relation to the preliminary view expressed in the Statement. I consider that there are some disputes relating to matters arising under the Agreement or in relation to the National Employment Standards that the dispute resolution procedure does not allow the Commission to settle. Those are disputes that, for one reason or another, are not able to be notified to the Commission within 7 working days of the General Manager of the Employer convening a meeting under paragraph (c) of clause 41.2. I consider that my understanding of the requirement that the Commission must be permitted by the procedure to settle all such disputes, is consistent with the Full Court's observations in Yallourn as to the scope of disputes that must be permitted to be agitated:
"Clearly enough, the literal phrasing of each of par (3) of the model term and steps 1 and 2 in cl 28.1(a) is apposite to cover a dispute that involves only the employer and one or more employees. However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, "a procedure that requires or allows [the Commission] ... to settle disputes ... about any matters arising under the agreement" (emphasis added). Therefore, a literal construction of cl 28 that precluded any of the five unions that are parties to the Yallourn agreement from initiating a dispute about a matter arising under it for which it has a workplace right, would defeat the purpose which the first three paragraphs of cl 28 (preceding cl 28.1) and ss 186(6) and 341(1) required the dispute resolution process in the clause to serve.
Energy Australia's argument that the Yallourn agreement did not provide any basis for any of the five unions to raise a dispute under cl 28 must be rejected. That is because, if the five unions themselves could never raise or pursue a dispute about their workplace rights, as employee organisations, covered by the Yallourn agreement within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), then cl 28 would not provide a procedure to settle a class of category 1 matters that could arise under the enterprise agreement. Accordingly, cl 28 would not comply with s 186(6)."[5] (emphasis in original)
[14] The alternate clause offered by the Applicant in its submissions in reply, as the basis for a potential undertaking, extends the relevant time limit to 10 working days "unless otherwise agreed" and also provides an option to refer matters to the Commission prior to completing the "internal" dispute procedure, in limited circumstances. I consider that it does not resolve the concerns I have expressed, it merely narrows the number of disputes that might be affected.
[15] I accept that placing a time limit on accessing arbitration after conciliation imposes a limitation on the powers that the Commission may exercise when seized of a dispute, rather than a prohibition on the Commission dealing with a dispute at all. I regard a limitation of that nature as no barrier to reaching the state of satisfaction required by subsection 186(6).
[16] I agree with the UWU's submission that the dispute procedure appears designed to operate only with respect to disputes raised by an employee. The Applicant's submissions in relation to this issue seem not to appreciate that "Employee" is a defined term in the Agreement, such that the capacity to for the employer escalate the dispute through the internal procedure ("...the Employee(s) concerned may refer....") can only sensibly operate in respect of an employer initiated dispute where the employer's agent for raising that dispute is an employee covered by the Agreement.
[17] Notwithstanding this, clause 41.3(a)(ii) of the Agreement allows a referral of a dispute to the Commission without completion of the "internal" procedure in some circumstances:
(a) The dispute may be referred, by either party, to FWC who may deal with the dispute by conciliation which includes expressing an opinion or making a recommendation only if:
(i) The dispute is not resolved following compliance with the Internal Disputes Process; or
(ii) Following discussions with the other party (or their representative), a party reasonably considers it is not practicable for all of those steps to be completed because of the urgency or nature of the dispute." (emphasis added).
[18] In my view, the "nature" of a dispute being that it is an employer initiated dispute, would lead to the consequence that it is "not practicable" for the internal dispute resolution steps to be followed in respect of it. Whilst there is a requirement that a direct referral to the Commission be the subject of "discussions" with the opposing party, there is no capacity in that other party to veto that direct referral. Further, because the time limit in clause 41.3(c) is activated only if the internal disputes procedure has reached completion, it is no fetter on the capacity of the employer to refer its disputes directly to the Commission. I therefore consider that the Commission is allowed by the procedure to settle employer initiated disputes. By the same reasoning, it also permits disputes raised by the UWU (another 'party' to the agreement whom may have its own matters to dispute) to be dealt with should they arise.
[19] The features of the dispute resolution clause that are most relevant to the consideration of the BOOT are the 7 working day time limit to refer a dispute to the Commission, the deeming provision with respect to disputes that are not referred in that time frame, and the expansion of subject matter of eligible disputes to include matters pertaining to the employment relationship. The consideration of these aspects arises in the context of an agreement in which some rates of pay are as little as 2% or less above the applicable award rate, while others are in excess of 20% above.
[20] There are certainly some features of the Agreement that are more beneficial to employees than would be the case under the relevant Awards for employees, including the provisions relating to the accrual of time in lieu, the availability of paid parental leave, more generous redundancy pay (at least for employees with two years of service or more), greater opportunity for consultation in respect of workplace change, and the provision of salary packaging services. There are also a host of less beneficial provisions, which necessitated the undertakings in respect of maximum daily hours, the calculation of Saturday penalty rates and broken shifts.
[21] As the UWU points out in its submissions, the evaluation of a non-monetary condition in a BOOT assessment is necessarily imprecise. This is even more the case where the condition concerned is subject to contingencies as to whether the occasion for reliance on it will arise. My assessment is that, setting the dispute resolution procedure to one side for a moment, but taking into account the undertakings offered, the agreement passes the BOOT comfortably with respect to classes of award covered employees, but only narrowly in respect of others.
[22] Whilst I accept that the expansion of the dispute resolution procedure to include matters pertaining to the employment relationship carries some benefits, it also creates some detriments in circumstances where the 7 working day time limit is unable to be met and the deeming provision activates.
[24] Viewed in that light, the expansion of the scope of the dispute resolution procedure to include "any.....matter pertaining to the employment relationship" compounds the disadvantages which might arise, by exposing disputes relating to matters outside of the NES and the Agreement to potential extinguishment (for example matters relating to contractual rights)
[25] In my view, the potential loss of the right to pursue a dispute in the Commission and elsewhere on account of a failure or inability to comply with a 7 working day time limit is major deficit from a BOOT perspective. I consider it a deficit sufficient to preclude me from reaching the required state of satisfaction that each award covered employee and each reasonably foreseeable employee would be better off overall if the agreement applied to them.
[26] Had this matter turned exclusively on subsection 186(6), I would be forced (in light of the employer's refusal to offer an undertaking that addressed the concern) to issue a decision dismissing the application for approval of the Agreement.
[27] However, as the features of the dispute resolution procedure which have led to me forming conclusions about the approval requirement in subsection 186(6) are the same features that have led to my view concerning the BOOT, there is an opportunity to approve the Agreement with an amendment under section 191A.
[28] The UWU have proposed an amendment. I consider the amendment proposed by the UWU goes beyond what is required to address the identified concerns. My intention in specifying an amendment is to address that concern while giving effect as closely as possible to the terms that were the subject of bargaining and approval by the affected employees. I intend to specify an amendment, and my provisional view as to the amendment that should be made is set out in Annexure B.
[29] I make the following directions in order to seek the views of the affected persons as required by subsection 191A(3):
a) The employer is to provide a copy of this decision (with its annexures) to the employees covered by the agreement by no later than 4:00PM Thursday, 19 March 2026.
b) The bargaining representatives and any employee covered by the agreement may provide any view about whether an amendment should be specified, either in the terms set out in Annexure B or otherwise, by no later than 4:00PM Thursday, 26 March 2026.
c) Views should be provided in writing to chambers.clarke.c@fwc.gov.au.
[30] I will publish a final decision in this matter having had the benefit of the views of the parties.
s.185 - Application for approval of a single-enterprise agreement
Application for approval of the Lady Gowrie Tasmania Enterprise Agreement 2025.
[1] An application has been made for approval of an enterprise agreement known as the Lady Gowrie Tasmania Enterprise Agreement 2025. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd. The Agreement is a single enterprise agreement.
[2] The bargaining representatives for the Agreement have corresponded with my chambers regarding numerous concerns I have raised concerning the Agreement. This statement deals with those concerns, while providing the bargaining representatives with a further opportunity to address my residual concern.
[3] In note that the United Workers' Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I will note that the Agreement covers the organisation if a final decision to approve the agreement is issued.
[4] Material provided with the application for approval included an e-mail to employees dated 29 August 2025 with the subject line "Kicking off negotiations for Lady Gowrie Tasmania's new Enterprise Agreement". The e-mail attached a Notice of Employee Representational Rights and form by which employees could nominate a bargaining representative. The text of the e-mail included the following:
"If you would like to nominate yourself or a colleague to represent you, please read the NERR and Fair Work Fact Sheet on what is involved. You can then provide details of your nomination via the attached nomination form and email to the nominee (if it is not yourself), your manager and to [e-mail address removed] by 19 September 2025."
[5] I sought submissions from the bargaining representatives about "how the imposition of a deadline for the appointment of bargaining representatives interacts with the requirement that the Agreement be genuinely agreed to, including by reference to paragraph 3 of the Statement of Principles on genuine agreement making".
[6] In response, the applicant provided submissions indicating that the e-mail concerned was "...an attempt to get employee bargaining representatives that did not have union representation involved from the commencement of bargaining and attempt to schedule meetings to suit their availability". Whilst the applicant disputed the characterisation of the e-mail as imposing any deadline, it indicated that as matter of fact nominations continued to be received after 19 September 2025 and were accepted. The UWU separately confirmed its participation and the participation of several individual bargaining representatives.
[7] In the circumstances, I consider that the employees were not misled as a matter of fact and as such the events that did occur in relation to the appointment of bargaining representatives did not evince a lack of genuine agreement. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[8] A concern was raised that clause 25.1 of the Agreement restricted access to compassionate leave for events that were associated with a stillbirth or miscarriage, in a manner that was inconsistent with the National Employment Standards. The applicant has offered undertakings to address this concern. The UWU has expressed the view the undertaking is acceptable. The other bargaining representatives, who appear to have been copied into the relevant correspondence, have expressed no view.
[9] I am satisfied that the undertaking offered to resolve this concern will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertaking will be taken to be a term of the Agreement, if the Agreement is ultimately approved. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[10] A concern was raised that clause 23.7 of the Agreement, which provided for the cashing out of annual leave, did not comply with the NES requirement in section 93(2)(c) of the Act that the employee be paid at least the full amount that would have been payable had the leave been taken. The applicant has offered undertakings to address this concern. The UWU has expressed the view the undertaking is acceptable. The other bargaining representatives, who appear to have been copied into the relevant correspondence, have expressed no view.
[11] I am satisfied that the undertaking offered to resolve this concern will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertaking will be taken to be a term of the Agreement, if the Agreement is ultimately approved. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[12] A concern was raised regarding how employees covered by the Children's Servies Award and the Educational Services (Teachers) Award whom agree, pursuant clause 18.1(c) of the Agreement, to work 10 ordinary hours on a day are better off overall. The concerns arise in a context where agreement to that number of ordinary hours in those awards is subject to making an individually flexibility arrangement, that carries with it a better off overall requirement.
[13] The applicant has offered undertakings to address this concern. The UWU has expressed that an amendment under section 191A of the Act is preferable. The other bargaining representatives, who appear to have been copied into the relevant correspondence, have expressed no view.
[14] The power to approve an agreement containing a variation made under section 191A is conditioned, inter alia, on the Commission being satisfied that an amendment under that section is necessary to address the concern raised. In the face of the undertaking offered by the applicant, I am not satisfied that such a variation is necessary.
[15] I am satisfied that the undertaking offered to resolve this concern will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertaking will be taken to be a term of the Agreement, if the Agreement is ultimately approved. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[16] A concern was raised that employees who work ordinary hours on a Saturday may not be better off overall. This arose as the Agreement provides two penalty rates for this work, that vary according to how many ordinary hours are worked in the week, rather than on the basis of the hours being worked on the Saturday.
[17] The applicant has offered undertakings to address this concern. The UWU has expressed the view the undertaking is acceptable. The other bargaining representatives, who appear to have been copied into the relevant correspondence, have expressed no view.
[18] I am satisfied that the undertaking offered to resolve this concern will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertaking will be taken to be a term of the Agreement, if the Agreement is ultimately approved. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[19] A concern was raised regarding whether the extent of "non-contact time" provided in the Agreement resulted in some employees not being better off overall. The applicant provided further submissions about that matter which demonstrated that the "non-contact" time provided under the Agreement was in fact more beneficial that that provided under the Children's Services Award and the Educational Services (Teachers) Award. The UWU accepted the submissions made.
[20] Having regard to the submissions made and the definition of "room leader" provided in the Agreement, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[21] A concern was raised about the absence in the Agreement of many allowances otherwise provided for in the awards that applied to the employees, in terms of how this impacted the assessment as to whether these employees were better of overall.
[22] The Applicant made submissions about these issues, with which the UWU concurred. In relation to the qualification allowance, it was submitted the rates of pay provided under the agreement compensated for this. In relation to other allowances, it was submitted in effect that it was not reasonably foreseeable that particular groups of employees would perform a type of work that attracted such allowances.
[23] Having regard to the submissions made, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[24] A concern was raised about access to shift penalties for employees covered by the Children's Services Award, on the basis that the definition of an "afternoon shift" in the Agreement was different to that in that Award.
[25] Submissions of the applicant in response to that concern, with which the UWU concurred, correctly identified that the concern was misconceived. Having regard to the submissions made, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[26] A concern was raised regarding the treatment of broken shifts in the Agreement, from a better off overall test perspective. Additional information was sought from the bargaining representatives about this issue in a context where broken shifts were expressly prohibited by the Clerks Private Sector Award and only the Children's Services Award expressly contemplated them.
[27] The applicant has offered undertakings to address this concern. The undertaking operates by supplementing broken shifts for particular employees with minimum engagement/minimum payment provisions. The UWU has expressed that an amendment under section 191A of the Act is preferable. The other bargaining representatives, who appear to have been copied into the relevant correspondence, have expressed no view.
[28] I am satisfied that the undertaking offered to resolve this concern will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The provision of a satisfactory undertaking disposes of the need to consider an amendment under section 191A, for reasons already given. The undertaking will be taken to be a term of the Agreement, if the Agreement is ultimately approved. Accordingly, I consider this concern to be resolved and no barrier to the approval of the Agreement.
[29] A concern was raised about the dispute resolution procedure in the Agreement. The concern related to whether the clause was compliant with the requirement set out in section 186(6) of the Act, insofar as it imposed limitations on the scope of employee representation and imposed a time limit on the referral of disputes to the Commission.
[30] As to the first issue, the applicant has offered an undertaking to the effect that an employee would not be restricted in whom it was represented by in any dispute. The applicant submits that the clause is otherwise compliant with requirement in section 186(6)(a) of the Act, which provides as follows:
The FWC must be satisfied that the agreement includes a term:
(b) That provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees, or employee organisations covered by the agreement, to settle disputes:
- about any matters arsing under the agreement; and
- in relation to the National Employment Standards.
[31] The dispute resolution procedure is found at clause 41 of the Agreement, and contains an "Internal" process which comprises a number of steps, ending at clause 41.2 with the General Manager of the employer convening a meeting. Thereafter, a dispute may progress into the "External" process at clause 41.3, which deals with referring disputes to the Fair Work Commission. The concern raised with the bargaining representatives concerns paragraph (c) of clause 41.3, which provides as follows:
"If an application is not filed within 7 working days to the FWC following completion of the steps under clause 41.2 (Internal Dispute Process), the dispute is deemed to have been resolved and the matter cannot be referred to FWC"
[32] Leaving aside the uncertainty that might be introduced, for section 217 purposes, by deeming a dispute to be resolved while saying nothing about the terms on which it has been deemed to be resolved, the key concern is whether clause 41.3(c) has the result that there are some disputes (about matters arising under the Agreement or in relation to the NES) that the provision does not "allow" the FWC to deal with, and if that is the case, can I be satisfied as required by section 186(6)?
[33] The applicant's submissions approach the issue on the basis that section 186(6) does not place any restriction on how a dispute resolution procedure is to operate, that the procedure "allows" the FWC to settle disputes in the relevant sense, and that the time frame is reasonable. For my part, I do not consider the submission that the timeframe is reasonable takes the matter very far. What the time frame does is introduce a condition as to whether a dispute can or cannot be referred to the FWC. To my mind the conclusion as to whether this is permissible would be no different if the time limit was 7 days or 2 days or 30 days, although I accept that a time limit that was impossible to comply with may introduce concerns as to whether the FWC was actually "allowed" to deal with any disputes at all.
[36] Having had regard to the positions of the parties, my preliminary view is that clause 41.3(c) of the Agreement has the effect of confining the disputes that may be referred to the FWC. It does this in two ways. Firstly, it erects a legal fiction that the disputes are resolved if not referred to the FWC within 7 working days of the "completion of the steps under clause 41.2". It is to be noted in that regard that the final "step" in clause 41.2 does not even require any person to put their position about a dispute, it simply requires a meeting. The internal process could therefore conclude with a meeting being held at which the General Manager says words to the effect: "Well thank you for that, I'll carefully consider what you've said and endeavour to get back to you in a fortnight". In the intervening time, the dispute would be deemed to be "resolved" and the right to refer it to the FWC would evaporate. Secondly, the 7 day time limit is described as having the effect that "the dispute cannot be referred to FWC". The provision self-evidently therefore creates conditions in which some disputes that are about matters arising under the Agreement or are in relation to the NES cannot be settled by the FWC. The question is whether the fact that some such disputes are allowed to be settled by FWC (because the time limit is complied with) is sufficient to satisfy me that the dispute settlement term "allows" the FWC to settle disputes about matters arising under the Agreement or in relation to the NES. My provisional view is that it is not sufficient.
[37] It is not controversial that dispute resolution procedures can (and all that I have seen do) contain conditions precedent to referring a matter to FWC, in the terms of steps that must be taken prior to doing so. But procedural conditions of that nature are of a different character than a time limit that operates to extinguish a dispute in totality, including as is the case here where the relevant procedure effectively provides the General Manager of the employer with a right of veto through unresponsiveness.
[38] It is accepted that dispute resolution terms in enterprise agreements may confine the powers that the FWC may exercise when settling disputes. So much is necessitated by a harmonious reading of sections 739(3) and 186(6) of the Act. But confining the powers that may be exercised is a different issue to preventing the FWC from dealing with a dispute at all.
[39] In light of the provisional views I have expressed above, I propose to allow the applicant and the bargaining representatives a further opportunity to consider their position and to provide any further submissions and/or proposed undertakings in response. I also now put the bargaining representatives on notice of additional concerns in relation to the dispute resolution term, which I invite them to consider and address in the submissions or undertakings they propose to provide:
(a) Are any of the provisional views expressed above also applicable to the time limit expressed in clause 41.3(d) concerning access to arbitration?
(b) The dispute resolution procedure seems to operate on the basis that only employees can raise a dispute, and accordingly the FWC is not allowed to settle disputes about matters arising under the Agreement or in relation to the NES that the employer has initiated. How might the Commission be satisfied as required by s.186(6) in those circumstances?
(c) Does the time limit in clause 41.3(c) for accessing conciliation at the FWC have any consequences for the application of the better off overall test?
[40] I seek that the bargaining representatives address the above matters in written materials by no later than 4:00PM Friday, 27 February 2026. Any reply materials should be provided by 4:00PM on Wednesday, 4 March 2026.
Any disputes arising out of the application of the NES, this Agreement or a matter pertaining to the employment relationship will be dealt with according to the procedure set out below.
(a) Where a dispute arises, the parties to the dispute will endeavour to promptly settle it in the workplace. The parties to a dispute commit to using every reasonable opportunity to resolve matters between themselves before proceeding to external dispute resolution.
(b) At any stage in this dispute resolution procedure, Employees may request the Union or other representative of their choosing (other than a LGT manager) to represent them.
(c) While the parties are trying to resolve the dispute using the procedures in this clause, work must continue normally unless Employees have a reasonable concern about an imminent risk to their health or safety in which case Employees must comply with a lawful and reasonable direction given by LGT to perform other available work at the same workplace, or at another workplace.
(d) Each party to this Agreement will bear its own costs in connection with the Dispute Resolution Procedure.
(a) In the first instance, the dispute will be referred to the Employee's immediate supervisor who will discuss the dispute with the Employee(s) concerned.
(b) If agreement is not reached after this step, the Employee(s) concerned may refer the matter to the Program Manager in writing (including the nature of the dispute, the basis of it and outcome sought) who will convene a meeting with the Employee(s) concerned.
(c) If agreement is not reached after this step, the Employee(s) concerned may refer the matter to the General Manager in writing (including the nature of the dispute, the basis of it and outcome sought) who will convene a meeting with the Employee(s) concerned.
(a) The dispute may be referred, by either party, to FWC who may deal with the dispute by conciliation which includes expressing an opinion or making a recommendation only if:
(i) The dispute is not resolved following compliance with the Internal Disputes Process; or
(ii) Following discussions with the other party (or their representative), a party reasonably considers it is not practicable for all of those steps to be completed because of the urgency or nature of the dispute.
(b) If an application is filed with FWC the status quo will prevail until conciliation.
(c) A party wishing to file a dispute with the FWC will endeavour to do so If an application is not filed within 7 working days to FWC following completion of the steps under clause 41.2 (Internal Dispute Process)., the dispute is deemed to have been resolved and the dispute cannot be referred to FWC.
(d) If the conciliation process fails to resolve the dispute, then subject to FWC considering that the dispute is genuine, and the party has a reasonably arguable case, the dispute may be referred, by either party, to FWC within 10 working days for arbitration, otherwise the dispute is deemed to have been resolved.
(e) At any stage during conciliation and prior to arbitration FWC may make any directions it considers appropriate including but not limited to the proper characterisation of the dispute and the status quo to apply in relation to the dispute which will be without prejudice to either party in arbitrating the dispute.
(f) If FWC arbitrates the dispute, it may use the powers that are available to it under the FW Act and make a determination that is binding on the parties.
(g) The parties may appeal in full any decision arising from arbitration as if it were a decision under the Act. Any decision of a full bench of FWC on appeal will be final and binding on the parties and will be by way of review.
[4] [2018] FCAFC 146_,_ at [65]-[67].
[6] See John Pfieffer v. Rogerson [2000] HCA 36 at [97]- [102], and per Kriby J at [161].
[7] Vassallo v. Easitag [2020] FCA 875; Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146. The situation may be different if what is sought are remedies from the Court that do not contradict the binding outcome of the arbitration - see Civil Air v. Airservices Australia [2020] FCA 1665.
[8] CFMEU v. AIRC [2001] HCA 16.
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