[2025] FWCFB 201

Fair Work Act 2009

s.604 - Appeal of decisions

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Cockburn Cement Limited, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

VICE PRESIDENT ASBURY DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS

Appeal against decision [2025] FWC 762 of Deputy President Beaumont at Perth on 17 March 2025 in matter numbers C2024/8565 & C2024/8639 - dispute under s.739 of the Act - jurisdictional objection - whether dispute relates to a matter arising under the agreement - proper construction of dispute settlement term in an enterprise agreement

[1] An enterprise agreement known as the Cockburn Cement Limited Dongara Enterprise Agreement 2023 (Agreement) covers and applies to the respondent to this appeal, Cockburn Cement Ltd (Respondent) and its employees at the Respondent's premises at Dongara, Western Australia. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Appellant, or CEPU) is described in the Agreement as a party to the Agreement.[1] In November 2024, the CEPU made an application to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (Act) to resolve an issue that had arisen at the Respondent's workplace in relation to the accrual of long service leave entitlements to employees of the Respondent covered by the Agreement. In doing so, the CEPU sought to invoke the terms of the dispute settlement procedure set out in clause 10 of the Agreement.

[2] The Respondent objected to the application on the basis that the dispute did not relate to a matter arising under the Agreement or the National Employment Standards, as required by clause 10 of the Agreement and, as such, the Respondent contended that the Commission did not have jurisdiction to hear and determine the dispute under that clause.

[3] On 17 March 2025 Deputy President Beaumont determined the Respondent's objection on the papers, upheld the objection and dismissed the application.[2] The CEPU has now lodged an appeal, for which permission is required, against that decision. For the reasons that follow, we have determined that permission to appeal should be refused.

[4] The background to these proceedings is largely uncontentious and is summarised in the decision of Deputy President Beaumont.

[5] Employees of the Respondent covered by the Agreement had, over a period of many years, received an entitlement to long service leave based on an accrual of 1.3 weeks of long service leave per year of service. Clause 33 of the Agreement, on the other hand, describes a lesser entitlement of 8 2/3 weeks long service leave after 10 years (or 0.8667 weeks per year) of completed continuous service. It does so by reference to the Long Service Leave Act 1958 (WA) (LSL Act).[3] Clause 33 of the Agreement is in the following terms:

An employee will be entitled to Long Service Leave as per the Long Service Leave Act 1958.

[6] In September 2024, the Respondent advised the CEPU amongst others, that it intended to change the long service leave accrual entitlements of its employees to 'align with' the terms of clause 33 of the Agreement. Unsurprisingly, the change was resisted by employees and their unions. Discussions did not resolve the matter. Ultimately, an application was made under s.739 in which the CEPU sought an order requiring the Respondent to:

(a) maintain the ten-year long service leave entitlement as historically applied, pending the resolution of the dispute or further negotiation;

(b) engage in proper and meaningful consultation with the union and affected

(c) be restrained from implementing the proposed change to the long service leave entitlement until the consultation process is properly conducted and the dispute resolved; and

(d) negotiate and sign a memorandum of understanding with the union, maintaining the current long service leave entitlement until the next bargaining period in June 2026.

[7] Although it is apparent from the originating application that the CEPU had initially taken issue with the Respondent's compliance with its consultation obligations under the Agreement, the decision of the Deputy President records that the Respondent had agreed to consult about the proposed change notwithstanding its view that its proposed course of action did not constitute a 'major change' that would trigger the consultation obligations under clause 8 of the Agreement.[4] The decision also notes that the Respondent had advised that the unions had accepted that the Respondent's consultation obligations under the Agreement had been met and what remained was a dispute about the implementation of the proposed change.[5] The Deputy President proceeded to characterise the nature of the dispute between the parties as being one that concerned the Respondent's 'proposed or actual reduction in the long service leave entitlements of relevant employees'[6] following the Respondent's decision to 'correct [its long service leave] accrual and align it to the [Long Service Leave Act][7] in accordance with clause 33 of the Agreement.

[8] The decision of the Deputy President sets out the factual and procedural background to the dispute and summarises the submissions of the parties. The Deputy President also describes the legislative context in which the proceedings arose and the relevant legal principles to be applied to the exercise of the Commission's functions under s.739 of the Act.

[9] The Deputy President said that the procedures to be adopted and the powers that the Commission is able to exercise in dealing with a dispute under s.739 depend on the terms of the agreement which requires or allows the Commission to deal with the dispute by which such procedures and powers are conferred.[8] The Deputy President said it was therefore necessary to consider the wording of the provision in the agreement which conferred the power of private arbitration on the Commission to ascertain the nature of the dispute and the scope of the arbitration authorised by the agreement. In this respect the Deputy President referred to the approach adopted by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union" known as the Australian Manufacturing Workers' Union (AMWU) & United Workers' Union v FreshFood Management Services Pty Ltd.[9] The approach in that matter includes a recognition that the scope of a dispute settlement clause in an enterprise agreement should not be narrowly construed and that in characterising the nature of a dispute, the entire factual background is relevant and may be ascertained from the submissions advanced on the question of jurisdiction.

[10] The Deputy President then recited the relevant authorities which set out the principles to be applied in the proper construction of enterprise agreements. At paragraph [44] of the decision, the Deputy President described the question for determination in the following terms:

Clause 10.5 of the Dongara Agreement allows the Commission to deal with the dispute in two stages, as set out in clause 10.5(A) and (B). However, it is clause 10.1 of the Dongara Agreement that prescribes the 'disputes' that the Commission can deal with. The question of whether the Commission can deal with the dispute requires the proper construction of clause 10.1 of the Dongara Agreement, making that clause the appropriate place to start.

[11] At paragraphs [46] and following, the Deputy President turned to a consideration of the provisions of clause 10.1 of the Agreement. That clause provides as follows:

This term sets out procedures to settle the dispute.

[12] The Deputy President considered and rejected the CEPU's argument that because the 'dispute' was in relation to the accrual of long service leave, that was in and of itself sufficient to establish the necessary connection between the dispute and the 'matter arising' under the Agreement. At paragraph [57] the Deputy President concluded as follows:

Whilst there is, on its face, a connection between the dispute and the Dongara Agreement, because long service leave is an entitlement referred to in the Dongara Agreement, that connection is an insufficient connection for the purposes of clause 10.1 in this context. This is because the phrase 'matter arising under the agreement' has work to do. The word 'matter' in this context is not the same as 'subject'.

[13] The Deputy President went on to consider whether, what might be described as analogous hypothetical disputes about other employment-related benefits that exceeded those expressly provided for in the Agreement, could be considered to be a dispute about a matter arising under the agreement for the purposes of clause 10.1. The Deputy President reasoned that such arrangements, like the long service leave arrangements, sat outside the Agreement and disputes about them could not properly be considered to be a dispute about a matter arising under the Agreement simply because they touched on some subject matter that is dealt with in the Agreement.[10]

[14] The Deputy President ultimately concluded that the dispute did not 'relate to a matter arising under the [Agreement] or the NES as required by clause 10 of the Agreement[11] and consequently the Commission had no jurisdiction to deal with the dispute.

[15] The CEPU advanced a single ground of appeal in the following terms:

In finding that the dispute before the Commission was not a dispute which related to a matter arising under the Cockburn Cement Limited Dongara Enterprise Agreement 2023 or the National Employment Standards, the Deputy President misconstrued clause 10 (dispute resolution procedure) of the Agreement and mistook the Commission's jurisdiction.

[16] In the Appellant's written submissions in the appeal, the CEPU said that it was unnecessary for the Full Bench to decide the 'NES limb agitated at first instance' and conceded that 'the NES provisions will not be relied on in a substantive hearing.'[12] We take from this that the Appellant has abandoned any reliance on that part of the appeal ground that refers to the dispute being related to a matter arising under the NES. We also note the Respondent's submission at first instance that the originating application did not concern a dispute that relates to the NES because the employees' entitlement to long service leave did not arise under the NES.[13] However, given the Appellant's concession, it is unnecessary to consider this point or say anything further on the reference to the NES in the Appellant's appeal ground.

[17] In support of the case for the granting of permission to appeal, the CEPU submitted that the decision discloses a reasonably arguable case of jurisdictional error and that the matter raised issues of broader application, given the terms of the dispute settlement clause were relevantly identical to those of the model disputes resolution term for enterprise agreements.[14]

[18] An appeal of a decision is not as of right and permission to appeal must first be obtained. A Full Bench must grant permission to appeal if it is satisfied that it is in the public interest to do so.[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] The public interest is not satisfied simply by the identification of error or a preference for a different result.[17] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[18] Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[19]

[19] The proper characterisation of the decision that is the subject of this appeal depends on a consideration of the decision that the Commission was required to make. In this matter the Deputy President was determining a jurisdictional objection raised by the Respondent as to whether, on a proper construction of the terms of the Agreement, the Commission was able to deal with the dispute in accordance with the terms of the dispute settlement procedure in that Agreement. There is no exercise of discretion involved in that task and the principles relating to appeals against a discretionary decision do not apply. It follows that if permission to appeal is granted, the Commission must determine for itself whether jurisdiction exists[20] and the appeal must be determined by deciding whether the interpretation adopted by the Deputy President was correct.[21]

[20] The submissions of the Appellant were, on many occasions, difficult to follow. This included the submissions in relation to the characterisation of the dispute in the proceedings at first instance. In oral submissions the Appellant appeared to accept that the Deputy President's characterisation of the dispute was not in issue.[22] In written submissions, the Appellant contended that the dispute before the Deputy President could be characterised as the employer asserting a right to modify benefits that have applied to employees, and saying they are entitled to do so as a consequence of the terms of the Agreement, and the unions contesting that course of action on the basis that it would (a) impermissibly trammel 'other lawful rights', and (b) that it was otherwise unfair, unjust and unreasonable to do so.[23] In the same submissions, the Appellant described the dispute as whether the Agreement permitted the employer to reduce the entitlement to long service leave historically enjoyed by the employees.[24] The Appellant asserted that the answer to the question was 'no' because there were contractual rights enjoyed by the employees that provided a superior benefit.[25]

[21] There was further uncertainty in the submissions of the Appellant as to the way the Appellant advanced its case at first instance. At the outset of the appeal the Appellant appeared to contend that before the Deputy President, it had sought to rely on the terms of the Agreement itself, namely clause 33, and the terms of the LSL Act, to resist the change proposed by the Respondent. In exchanges with the Full Bench it was suggested that it was not apparent on the material that such an argument had ever been put and that had the dispute been advanced on the basis of competing contentions about the application of clause 33, it is unlikely that a jurisdictional objection would ever have been taken and the question for determination would have been framed in an entirely different way. No satisfactory response was provided by the Appellant.

[22] It is apparent from the submissions of the parties at first instance and the decision of the Deputy President that the matter was determined on the basis that the Appellant did not contend that either clause 33, or clause 33 in combination with the LSL Act, operated to prevent the Respondent from making the change that they proposed to make. Rather, the Appellant's submission was to the effect that the proper construction of clause 33 was simply not relevant to the determination of the jurisdictional question because the Respondent's reliance on a term of the Agreement and the unions' disputing that reliance, was sufficient to bring the matter within the scope of the dispute settlement clause. Paragraph 23 of the Appellant's submissions at first instance was as follows:

The Employer seems to be advancing a case that 'we are just bringing things into line with what the Agreement (and the NES) already provides.' Jurisdictionally, even if that is so, and the Employer is perfectly entitled to take the actions they propose to take, the Union is disputing whether they can or should do so (and if they can how they should go about it). This is perhaps the whole answer to the question of jurisdiction. The dispute is about an action the Employer asserts they are entitled to undertake expressly because of the terms of the Agreement. They purport to be undertaking a 'correction' by reference to the terms of the Agreement.

[23] The above submission is consistent with the argument that was advanced by the Appellant in the appeal, namely that a dispute about an action purportedly taken in reliance on the terms of the Agreement will generally be a matter that arises under the Agreement[26] and that it was 'jurisdictionally unnecessary for an applicant to put the construction (of clause 33) in issue for that to be a matter which is enlivened of jurisdiction.'[27] The Appellant also asserted in oral submissions that the Deputy President had failed to grapple with the fact that 'the dispute inherently involved in the positive assertion of right by one of the parties, and that is sufficient to establish the connection.'[28]

[24] As best we can apprehend it, the central submission of the Appellant in the appeal was that the dispute settlement clause conferred a broad jurisdiction on the Commission in relation to 'a dispute' between the parties and even though the basis for the Appellant's position in that dispute was an asserted right that existed separately from the terms of the Agreement, the fact that the Respondent relied on a provision of the Agreement was sufficient to make the dispute one that 'relates to a matter arising under the Agreement.' The Appellant accepted in oral submissions that the right that it relied upon to resist the change did not owe its existence to the Agreement[29] and was contractual in nature.[30] In this regard, the Appellant's representative had the following exchange with the Full Bench:

VICE PRESIDENT ASBURY: So you say that - well, essentially you say because the company relied on a term of the agreement to do what it did - - -

VICE PRESIDENT ASBURY: - - - then the dispute must relate to the agreement?

VICE PRESIDENT ASBURY: I understand your submission. Thanks.

DEPUTY PRESIDENT ROBERTS: And you say that even though you accept that the agreement - the terms of the agreement operate in the way that the company asserts?

MR FOX: Yes, I do, and that's part of - I think there's reasonably some - a natural challenge that that proposition puts.[31]

[25] In relation to the proper construction of the expression 'relates to a matter arising under the agreement' the Appellant also submitted that analogies could be drawn from those authorities which had considered the scope of the original jurisdiction of the Federal Court of Australia conferred by s.39B(1A)(c) of the Judiciary Act 1903 (Cth). That provision confers original jurisdiction (other than in relation to certain criminal matters) in 'any matter arising under any laws made by the Parliament'.

[26] The Respondent submitted that the Deputy President accurately characterised the nature of the dispute and correctly identified the task before the Commission as involving the proper construction of two expressions as they appeared in clause 10 of the Agreement, namely 'relates to' and 'matter arising under the agreement.' The Respondent contended that a dispute that 'relates to' a matter arising under an agreement was not one that merely referred to, applied to or touched upon such a matter, but was a dispute that was 'in reality and substance' about or in relation to a 'matter arising under the agreement.'[32]

[27] The Respondent also submitted that as to the expression 'matter arising under the agreement', the word 'matter' in the context of clause 10 is confined to controversies between parties to the agreement about the proper application of the agreement itself.[33] The Respondent said that there was nothing in the text of the Agreement to suggest that the phrase should be construed more broadly and that it was only disputes about the proper application of the Agreement that can be dealt with under clause 10. Taken together, it was put that a proper construction of the two phrases was that the dispute had to be 'in reality and substance about the proper application of the agreement.' In this case it was put that the dispute did not concern the application of the agreement in the sense of how the terms of the agreement applied in particular circumstances but rather the fact that the agreement was going to be applied at all where the historical practice had been that alternative arrangements had applied which had no foundation in the express terms of the agreement itself.

[28] The Act does not confer a plenary power on the Commission to deal with disputes generally. Section 595(1) provides that the Commission may deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of the Act. In the proceedings below, the Deputy President was dealing with an application under s.739 of the Act for the Commission to deal with a dispute in accordance with the dispute settlement term in the Agreement. Section 739 applies if a 'term' referred to in s.738 of the Act 'requires or allows' the Commission to deal with a dispute. Section 738(b) provides that Division 2 of Part 6-2 of the Act, which includes s.739, applies if an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in s.186(6). Clause 10 of the Agreement is clearly such a term, and neither party contended otherwise.

[29] Section 739(3) of the Act provides that the Commission must not exercise any powers limited by 'the term'. The Deputy President was therefore empowered to deal with the dispute only to the extent that the dispute settlement term of the Agreement 'requires or allows' the Commission to do so. Whether the term requires or allows the Commission to deal with the dispute necessarily depends on a proper construction of the dispute settlement term itself.

[30] In Nguyen v Probe Operations Pty Ltd trading as Probe Group Cx[34] a Full Bench recently described the approach to be taken to determine whether a dispute is one that relates to a matter arising under the agreement as involving firstly, the characterisation of the dispute "having regard to the evidence before the Commissioner as to the factual background, the application ... and the submissions and material provided by both parties" and secondly, a consideration of whether "the dispute so characterised 'relates to a matter arising under the Agreement' as required by (the relevant clause of the agreement)."[35] The Appellant's single ground of appeal does not directly challenge the characterisation of the dispute adopted by the Deputy President, although as we have referred to above, there were some collateral challenges or attempts to recast the essential nature of the dispute in the Appellant's written submissions on appeal. We do not think there is any proper basis to argue that the Deputy President mischaracterised the nature of the issue that she was required to determine.

[31] It is readily apparent from the Deputy President's reasons that the Deputy President understood the factual context in which the dispute arose and considered that the dispute related to the proposed reduction of long service leave accrual rights and that the basis for that proposed reduction was the Respondent's intention to align those rights with the LSL Act consistent with the terms of clause 33 of the Agreement. Moreover, the Respondent had squarely raised the nature of its jurisdictional objection in its written submissions arguing that dispute was not within the scope of the dispute settlement clause because it did not relate to 'a matter arising under the agreement.' To the extent the Appellant sought to suggest in this appeal that there was some alternative basis for characterising the dispute based on the operation of clause 33 and the LSL Act and the effect of those provisions on the scope of the dispute settlement clause, we reject that submission. The dispute before the Deputy President was plainly in relation to the anterior question of whether the Commission had jurisdiction to deal with the matter at all, not whether clause 33 had been or was about to be misapplied. The question for determination was properly framed and addressed by the Deputy President having regard to the factual background and the submissions of the parties.

[32] We also observe that in relation to the approach adopted by the Deputy President as to the characterisation of the dispute, the scope of the arbitration authorised by the dispute settlement clause and the principles applying to the proper construction of enterprise agreements, the Deputy President adopted and applied entirely orthodox principles. Although the parties differed as to whether the ultimate conclusion on the construction of clause 10 was correct, it was not suggested in the appeal that the Deputy President erred in any respect in adopting the approach which was taken to the determination of the matter.

[33] The principles applicable to the proper construction of enterprise agreements were considered in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[36]and modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[37] that the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or the expression being construed. The context for the provisions at issue may be provided by the provisions of the agreement as a whole or their arrangement in the agreement in which they appear. A purposive approach is to be preferred, and words are not to be interpreted in a vacuum divorced from industrial realities.

[34] We note here that s.186(6) of the Act requires that enterprise agreements include terms that provide for a procedure for the settlement of disputes. The section requires that such a procedure provides for the settlement of disputes 'about any matters arising under the agreement'.[38] In considering the proper construction of the dispute settlement clause in the Agreement, it is relevant to note that s.186(6) sets out the minimum requirements for such clauses and it is open to the parties to extend the scope of the dispute settlement procedures to, for example, all matters pertaining to the employment relationship, including matters outside the express terms of the agreement itself.[39] The parties to the Agreement did not choose to adopt such an extended formulation for clause 10. The language that was adopted was consistent with the minimum requirements of s.186(6).

[35] We accept, as the Respondent contended, that some caution needs to be exercised in attempting to transpose the relevant authorities relating to the legislative conferral of jurisdiction to exercise judicial power in relation to matters arising under laws made by the Parliament to circumstances where private parties confer a power of private arbitration on the Commission or some other body through an instrument made under the Act. Matters may 'arise' under a law of the Parliament in a multitude of ways. The matter may involve the direct invocation of a statutory right, or it may involve a bundle of rights, including a contractual or equitable interest in respect of a right or property which is the creation of federal law.[40] In any event, we are of the view that the authorities to which we were referred by the Appellant offer limited assistance in this case and think it is sufficient to observe that the Appellant did not ultimately contend that the employee rights it sought to vindicate by the application owed their existence to the Agreement itself.

[36] The Respondent contended that it was necessary to consider the expression 'relates to a matter arising under the agreement' having regard to the characterisation of the dispute. The Respondent submitted that properly understood, the dispute was a dispute about contractual terms or some putative contractual rights adhering to the employees as a result of past conduct. In that case it was put that the dispute could not in any sense be considered as relating to 'a matter arising under the Agreement' since the Appellant had expressly disavowed the proposition that the rights that the Appellant was purporting to agitate derived from the Agreement. We accept that submission.

[37] In Australian Workers' Union v. Bekaert Wire Ropes Pty Ltd t/a BBRG Australia[41] Commissioner Saunders (as he then was) dealt with an application under s.739 and an argument as to whether the dispute that had been agitated by the application could be dealt with under the dispute settlement clause of an agreement. The relevant dispute settlement clause in the agreement provided for the referral of disputes to the Commission in relation to a matter arising under the agreement or the National Employment Standards. With regard to the construction of the dispute resolution term in that case, the following finding was made:

The expression "in relation to" in clause is of wide and general import. The use of the word "matter" in clause is of variable import. Its meaning in a particular context depends upon that context. In the context of clause , the "matter" is one "arising under" the Agreement. To arise under the Agreement, it is not necessary that the matter involve the interpretation of the Agreement. All that is necessary is that the matter will involve the Commission making a decision on a claim which is made by one of the parties to the dispute which is based on the Agreement. (citations omitted)

[38] The Commissioner rejected the applicant's characterisation of the dispute and said that upon review of the entire factual background, it was apparent that the issue between the parties was whether there was an agreement made to change the employee's retirement date from 30 November 2028 to 29 March 2021. Commissioner Saunders concluded:

Resolution of the dispute as to whether an agreement was made to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021 would not involve making a decision based on the Agreement, nor would it involve interpreting any provision in the Agreement. Resolution of the dispute would require the finding of facts necessary to make a determination as to whether Mr Baker and BBRG entered into a binding agreement to vary Mr Baker's retirement date from 30 November 2018 to 29 March 2021. Common law principles concerning variation of contracts would govern such a dispute. Viewed in that way, it is apparent that the dispute is one-step removed from the Agreement. It follows that there is no matter arising under the Agreement, and thus, there is no dispute in relation to a matter arising under the Agreement. (citation omitted)

[39] For similar reasons we are of the view that the Deputy President was correct in concluding that properly construed, the dispute did not relate to a matter arising under the Agreement. Having regard to both the wider context of the dispute and the submissions of the parties, it is apparent that the resolution of the dispute as it was advanced by the Appellant would have involved findings of fact and legal conclusions as to whether there was some pre-exiting contractual arrangement in place that prevented the Respondent from adopting the course it proposed. It would not have involved a decision in relation to the terms of the agreement itself. The simple reference to long service leave in the Agreement is insufficient to render the dispute one that related to a matter arising under the Agreement. As the Deputy President put it, 'the phrase matter arising under the agreement' has work to do. The word 'matter' in this context is not the same as 'subject''.[42] We can see nothing in the text of clause 10, the contextual setting of the clause in the Agreement, or its evident purpose, to suggest that the scope of the dispute settlement term in the Agreement extended to a resolution of the particular dispute that had been brought before the Commission. In our view the Deputy President was correct to conclude that as there was no dispute in relation to a matter arising under the agreement, clause 10 did not confer jurisdiction on the Commission to deal with the applications that had been made.

[40] Although this appeal concerns the proper construction of a dispute settlement term of an enterprise agreement which reflects the wording in s.186(6) and is common in agreements, for the reasons stated we are not persuaded that the Appellant has made out an arguable case of appealable error. Permission to appeal will not generally be granted absent an arguable case of error. Nor are we persuaded that the decision is attended by sufficient doubt to warrant its reconsideration or that it manifests any injustice. The result is not, in our view, counter-intuitive, and it is not disharmonious with other decisions of the Commission. We do not consider that the public interest is enlivened or that permission to appeal should be granted on general discretionary grounds. Even if we were minded to grant permission to appeal, for the reasons stated, we would dismiss the appeal. The Deputy President's ultimate conclusion was in our view, plainly correct.

[41] Permission to appeal is refused.

J Fox, Employment and Industrial Lawyer, for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

M Minucci, of counsel, for Cockburn Cement Limited.

J Goodwin, Manager, Industrial Relations, for AMWU.

[2] [2025] FWC 762.

[9] [2023] FWCFB 97 at [118].

[13] Submissions at [18] and see Part 2-2 Division 9 of the Act.

[14] [2025] FWCFB 39 and PR 784580.

[16] Coal & Allied v. Lawler [2011] FCAFC 54 at [44]- [46].

[17] GlaxoSmithKline Australia Pty Ltd v. Making [2010] FWAFB 5343.

[18] See for example Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; (2013) 238 IR 258 at [9]- [12].

[19] CFMEU v. AIRC [1998] FCA 1404; (1998) 89 FCR 200 and Wan v. AIRC [2001] FCA 1803; (2001) 116 FCR 481.

[20] See for example Pawel v. AIRC [1999] FCA 1660; (1999) 94 FCR 231.

[21] Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v. Berri Pty Ltd [2017] FWCFB 3005 at [35].

[32] Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [11] (Gleeson CJ), citing Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 186 (Latham CJ).

[33] NTEU v Victoria University [2008] FCA 1630 at [36] (Ryan J).

[34] [2025] FWCFB 137.

[36] [2014] FWCFB 7447.

[37] [2017] FWCFB 3005.

[39] United Firefighters' Union of Australia v. Country Fire Authority [2014] FCA 17 at [198] and United Firefighters' Union of Australia v. Country Fire Authority [2015] FCAFC 1 at [243]- [248]. See also Model terms for enterprise agreements and copied state instruments [2025] FWCFB 39 at [126] and following.

[40] L.N.C. Industries Ltd v. BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at [8].

[41] [2018] FWC 6369.

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