Fair Work Act 2009

s.604 - Appeal of decisions

Appeal from decision of Deputy President O'Keefe made on 15 October 2025 at Perth in Matter Number C2024/8740 - Dispute in relation to academic workloads - Deputy President expressed conclusion in relation to whether University had properly complied with obligations under enterprise agreement - Further proceedings envisaged to consider question of remedy - Whether the University has a right to appeal or permission to appeal is required - Permission to appeal required - Whether permission to appeal should be granted in circumstances in which the proceedings at first instance have not been finalised - Permission to appeal refused.

[1] The question of academic workloads is an important one for universities, for academic employees and for the quality and sustainability of the higher education sector. As long ago as 2001, a Full Bench of the then Australian Industrial Relations Commission described academic workloads as a 'sensitive industrial issue'.[1] Later, in 2010, a Full Bench of this Commission commented that '[a]llegedly excessive academic workloads is a perennial industrial issue at many universities'.[2] This continues to be the case.[3]

[2] The present appeal arises from another dispute concerning the method used by a university to determine the workload allocation of a group of academics, on this occasion at Curtin University (the University). The dispute was referred to the Commission under s 739 of the Fair Work Act 2009 (Cth) (the Act) and clause 65 of the Curtin University Enterprise Bargaining Agreement 2022-2025 (the Agreement) by the National Tertiary Education Industry Union (the NTEU). The dispute was described by the NTEU as involving the interpretation of clauses 19.2(e) and 19.2(f) of the Agreement and 'whether Curtin University ... has allocated workloads to academic staff in the Faculty of Humanities in compliance with those clauses'.

[3] Clause 19 of the Agreement is entitled 'HOURS OF WORK AND WORKLOAD'. As the University points out, it is always important to understand particular provisions in context rather than in isolation. Nonetheless, for present purposes, it is sufficient to set out the provisions which are most central to the dispute being clause 19.2(e) and (f):

19.2(e) The Head of School will allocate workload in consultation with individual Academic Employees within the School and in accordance with the applicable work allocation model as per this clause in a fair, equitable and transparent manner.

19.2(f) Through this process, the Head of School will, in consultation with directly affected Academic Employees, ensure that the time allocated to perform any defined task is reasonable and will be an accurate representation of the time taken to perform that task.

[4] The dispute arose in the following way. On 27 September 2024 and 1 October 2024, the NTEU wrote to the University on behalf of 41 academic staff in the Faculty of Humanities who it alleged received individual workload allocations that were not compliant with clauses 19.2(e) and 19.2(f) because the time allocated to perform tasks was not reasonable, and did not accurately reflect the time taken to perform the relevant tasks. The NTEU says that it arrived at the view that the University had not taken any steps or developed any mechanisms since the introduction of, in particular, clause 19.2(f) to ensure that they understand how long it takes to perform the tasks, or to adjust their pre-existing workload parameters accordingly. The dispute was notified to the Commission on 18 October 2024.

[5] The dispute was allocated to Deputy President O'Keefe. The dispute was not resolved by conciliation, and the Deputy President conducted a hearing over a number of days in May and June 2025. The Deputy President received a considerable amount of evidence and handed down a decision on 15 October 2025. The Deputy President recorded (at [4]) that, although a number of jurisdictional issues had been raised by the University during the proceedings, by the time of the hearing, it took the view that the Commission could arbitrate the dispute but submitted that the Commission should not provide a remedy sought by the NTEU.

[6] The Deputy President considered the evidence and submissions advanced by the parties in considerable detail. The Deputy President expressed his conclusion (at [183]) in the following terms:

[183] In summary, I do not accept that the Respondent has met the obligations set out in the workload clauses of the Agreement. I am not satisfied that it has taken appropriate actions to do so with respect to the issue of marking, nor with respect to the issue of dealing with AI-related Academic misconduct. It may well be the case that there are other tasks where this is the case. However, for the purposes of the dispute, I find that for at least those two issues, the Respondent is not compliant with clauses 19.2(e) and (f).

[7] The Deputy President then addressed what should be done following his conclusions, particularly in light of the genuine concerns of both parties in relation to workload issues and the resources available to the University. The Deputy President concluded:

[187] Given the above, I think the parties have some options before them - noting that doing nothing would not be the one I would recommend. Given the level of investment the parties have made in this dispute to date, it is clear that one option is for the Respondent to appeal this decision and see if a full bench or higher court will give it some relief. It appears to me that such an approach will not only run the risk of consuming significant financial resources ironically an outcome I would assume the Respondent is trying hardest to avoid - but it is unlikely to make the problem go away. The Applicant and its members have other options they can explore to bring this issue to a head.

[188] On the other hand, I note that the Applicant in its submissions has indicated some flexibility in its thinking about how timings might be established - I note particularly the Applicant's reply submissions at [22]-[23]. On this basis, another option might be for the parties to consider engaging with each other to explore what meaningful and practical steps might be taken to address both of their issues.

[189] While it is perhaps somewhat optimistic, I am thus proposing to call a conference between the parties to discuss what remedy the FWC should - and no doubt from the Respondent's perspective could - order. However, I am hopeful that it may be that the parties can find a way to engage with each other such that they can achieve a resolution of this dispute that is an acceptable outcome for both of them. Of course, if the parties cannot find any common ground, I will then issue a decision on remedy.

[8] As will be apparent, the Deputy President proposed to convene a conference of the parties to discuss 'what remedy the FWC should - and no doubt from the Respondent's perspective could - order'. If the matter could not be resolved, the Deputy President indicated he would 'issue a decision on remedy'. By his reference to a 'remedy', we understand that the Deputy President is proposing to order or determine that some active step or steps be taken by the University to address the deficiencies identified in his decision. Plainly, the Deputy President did not regard the dispute as having been resolved by his decision.

[9] The Deputy President regarded one option as being for the University to appeal his decision, although he did not regard an immediate appeal as an advisable course. Notwithstanding the Deputy President's view, the University filed a notice of appeal on 5 November 2025.

[10] The notice of appeal contains eight grounds. Grounds 1 and 2 raise a matter concerning the process by which the dispute was put before the Commission by the NTEU. Grounds 3, 4 and 5 contend that the Deputy President erred in the construction he adopted of the clause 19.2 of the Agreement. Grounds 6, 7 and 8 contend that the Deputy President erred with respect to certain factual findings made in the decision and in relation to the approach adopted by the Deputy President with respect to the onus of proof.

[11] It is convenient to set out the grounds of appeal which are as follows:

1. The Deputy President erred by failing to find that there was a fundamental failure to follow the procedure in cl.19.2 making it impossible to conclude that the University had not complied with cl 19.2. Specifically -

1. despite a request from Professor Richard Blythe, the NTEU failed to provide the information necessary to facilitate a review of staff members' workloads pursuant to cl 19.2(j) of the Agreement - instead, the NTEU chose to notify a dispute under cl 65 of the Agreement.
2. the approach taken by the NTEU deprived the University of the opportunity to utilise the consultative mechanisms provided for in the Agreement to achieve compliance with cls 19.2(e) and (f).

2. Further, the Deputy President erred in not giving sufficient weight to the matters described in paragraph 1.

3. The Deputy President misapplied the principles outlined in Australian Manufacturing Workers Union v Berri Pty Limited [2017] FWCFB 3005 and James Cook University v Ridd [2020] FCAFC 123 by:

1. failing to give appropriate weight to the text of the Agreement viewed as a whole, including:
   1. the clear identification that workloads are to be allocated through individual consultation (cls 19.2(e) and (f)); and
   2. ii. the existence of a mechanism for dissatisfied individual employees to seek a review by the Pro-Vice Chancellor (cl 19.2(j)).
2. by relying on extraneous and irrelevant matters, namely the subjective intentions or expectations of the NTEU (and its members). Specifically -
   1. the Deputy President relied on the results of a survey of employees conducted two years prior to the approval of the Agreement as a matter relevant to the interpretation of the Agreement.
   2. the Deputy President relied on the witness evidence of Dr Francis Russell as to the significance of amendments to cl 19.2 of the Agreement to an unidentified group of members of the NTEU.

1. by relying on extraneous or irrelevant matters, being the introduction of the Western Australian Government's 'new regulations on the management of psychosocial health' in December 2022 - a matter that was not raised by, or put to, the NTEU or the University (or established to be known to both parties and/or to have informed the subject matter of the Agreement).

1. failing to afford appropriate weight to the "industrial context and purpose" underlying cl 19.2 and the customs and working conditions of the tertiary education sector - including by:
   1. failing to give appropriate weight to the prospective nature of workload allocations and the nature and diversity of academic work; and
   2. concluding that matters such as 'practicality and economic viability' are not relevant considerations when interpreting the Agreement.

4. The Deputy President erred in concluding that cls 19.2(e) and (f) require that 'all timings be accurate' at a collective level and in the absence of input from directly affected staff members - notwithstanding:

1. the express terms of the Agreement, which identify that workloads will be allocated 'in consultation with individual Academic Employees' (emphasis added); and
2. the Deputy President's acceptance that:
   1. the process of workload allocation is not static ([161]);
   2. 'changes are regularly made to allocations' ([180]);
   3. 'there would be some significant variation in the time taken by a particular academic to mark different papers and indeed variation between different academics asked to mark the one paper' ([173]); and
   4. 'there will be cases where one hour may be sufficient to properly and accurately mark assessments that have been set in accordance with [TEQSA] standards' ([182]).

5. Further, by reason of the matters identified in paragraph 3 and 4, the Deputy President fell into error in his interpretation of cl 19.2 in that he erroneously concluded that a contravention can be established without any finding of fact in respect of individuals in respect of whom the contravention is said to have occurred.

6. The Deputy President erred in concluding that 'there is no specific time provided' for the task of managing AI-related misconduct despite evidence that 'adjustments were made to workloads' in respect of such time (20 May 2025, [858]-[859]; 10 June 2025, [635]) and that such time falls within other, broader allocations (10 June 2025, [628]-[636] and [790]).

7. The Deputy President erred in concluding that the process used by the University to allocate workload was 'ad-hoc' ([168]) and 'purely reactive' despite evidence of systematic and rigorous consultation with individual Academic Employees - see, for example, 19 May Transcript, [280]-[282], [355]; 20 May Transcript, [246].

8. The Deputy President erred by misapplying the onus of proof in that he erroneously started from the position that the University had contravened cl 19.2 (unless it could prove otherwise).

[12] The University and the NTEU filed written submissions in advance of the hearing of the appeal. The University submitted that permission to appeal is not required because clause 65.8 of the Agreement confers a right of appeal and that the appeal should be allowed, the decision of the Deputy President quashed and the NTEU's application dismissed. The NTEU submitted that permission to appeal is required and should be refused because, it submits, the University has not identified a reasonably arguable case of error and seeks to run a new case on appeal.

[13] The day prior to the scheduled hearing of the appeal, the chambers of Vice President Gibian communicated to the parties that the Full Bench wished to be addressed in relation to the following matter:

We refer to the above matter which is listed for hearing tomorrow. At the hearing of the appeal, the parties are asked to address the Full Bench in relation to the following issue.

The proceedings before the Deputy President at first instance arose from a dispute being referred to the Commission under clause 65 of the Curtin University Enterprise Bargaining Agreement 2022-2025 (the Agreement). Clause 65.8(a) of the Agreement provides that:

(a) The FWC, the FWC may deal with the Dispute through conciliation and/or arbitration, in order to resolve the Dispute the outcome of which will be binding on the parties, subject to either party to the dispute exercising a right of appeal.

On one reading of clause 65.8(a), the parties may exercise a right of appeal only with respect to the 'outcome' of an arbitration conducted 'in order to resolve the Dispute'. The parties are asked to address whether the University is able to appeal against the decision of Deputy President O'Keefe in circumstances in which the Deputy President has expressed an opinion (at [184]) as to whether the University has properly complied with its obligations under clause 19.2(e) and (f) of the Agreement, but (at [185]-[189]) contemplates further steps to determine 'what should be done', including (if necessary) a decision on remedy.

[14] To understand the issue raised, it is necessary to briefly set out relevant parts of clause 65 of the Agreement. Clause 65 is entitled 'Dispute Resolution Procedure' and, in clause 65.1, indicates that it sets out procedures to resolve a dispute relating to a matter arising under the Agreement or the National Employment Standards. In a common pattern, clause 65 provides for attempts to be made to resolve a dispute at the workplace level and escalated within the University. Clause 65.7 and 65.8 then provide:

65.7 If the Dispute is not resolved as provided by 65.4 or 65.6, a party to the Dispute may refer the matter, within 10 working days, to the FWC or by agreement to another person or body for resolution. If the Dispute is not referred for resolution within the specified timeframe, then the Dispute lapses.

(a) The FWC, the FWC may deal with the Dispute through conciliation and/or arbitration, in order to resolve the Dispute the outcome of which will be binding on the parties, subject to either party to the dispute exercising a right of appeal, or

(b) Another person or body, then that person or body may deal with the Dispute in a manner as agreed by the parties.

[15] The role performed by the Commission in dealing with a dispute referred to it pursuant to the dispute settlement term of an enterprise agreement is in the nature of private arbitration.[4] Sections 738(b) and 739 provide for the Commission to 'deal with' a dispute if a term of an enterprise agreement that provides a procedure for dealing with disputes requires or allows the Commission to perform that function. In hearing an appeal from a decision made in dealing with a dispute under s 739, the Full Bench is undertaking an appeal which itself forms part of a process of private arbitration.[5]

[16] The consequence of the characterisation of the role of the Commission being in the nature of private arbitration is that the powers able to be exercised by the Commission in the performance of its arbitral function as contemplated by s 739(4) are primarily defined by the terms of the agreement under which the dispute is referred to it,[6] at least in the sense that s 739(3) provides that the Commission 'must not exercise any powers limited by the term'. If the relevant enterprise agreement is silent in relation to the nature of the powers able to be exercised by the Commission, it is generally to be assumed that the parties intended to take the Commission as they find it.[7]

[17] Clause 65.8(a) presents two questions in the present circumstances. The first question is whether the University has a right to appeal from the decision of the Deputy President such that permission to appeal is not required. Given the text of clause 65.8(a), we consider that the University has a right of appeal from 'the outcome' of an arbitration conducted under the clause. The NTEU submitted, albeit faintly, that the reference to either party 'exercising a right of appeal' should be understood to refer to a right of appeal which is otherwise available, namely, an appeal under s 604(1) with permission of the Commission. We do not accept the submission. Dispute settlement provisions in enterprise agreements which refer to 'a right of appeal' have generally been construed as creating an independent right of appeal for which permission to appeal is not required.[8] Clause 65.8(a) should be construed in the same manner.

[18] However, the right of appeal conferred by clause 65.8(a) is only with respect to 'the outcome' of the arbitration. The University submitted that the phrase 'the outcome' should not be construed in a narrow fashion and that there has been an 'outcome' of the dispute because the Deputy President concluded that it had not properly complied with its obligations under clause 19.2(e) and (f) of the Agreement. It submitted that the Deputy President had, through his decision, resolved at least an aspect of the dispute and, in the circumstances, the University has a right of appeal. The NTEU essentially agreed with the position put by the University. It submitted that there had been 'an outcome' with respect to some aspects of the dispute.

[19] In our view, the reference to 'the outcome' of an arbitration in clause 65.8(a) can only sensibly be understood to refer to the ultimate outcome of the dispute resolution process. The clause should be read as a whole. The 'outcome' referred to in the clause is the outcome of an arbitration conducted 'in order to resolve the Dispute'. We do not consider that a conclusion reached along the way to resolving a dispute can be described as an outcome in resolution of the dispute. It is plain that, although the Deputy President arrived at certain conclusions in relation to the matters raised by the parties, he contemplated that further steps would be necessary, either by conciliation or arbitration, to resolve the dispute. The consequence is that clause 65.8(a) does not confer a right on the University to appeal the decision of the Deputy President.

[20] The second question is whether, if the right of appeal referred to in clause 65.8(a) is confined to the outcome of the arbitration, the clause should be construed as restricting the right which ordinarily exists for a person aggrieved by a decision of the Commission to seek permission to appeal under s 604(1) of the Act. Section 604(1) permits a person aggrieved by any 'decision' of the Commission to appeal, with permission. Section 598(1) provides that '[a] reference in this Part to a decision of the FWC includes any decision of the FWC however described'. Although there may be a question as to the precise extent of the concept of a 'decision', there is no doubt that the decision of the Deputy President is a 'decision' in relation to which permission to appeal could generally be sought under s 604(1).

[21] As the parties are assumed to take the Commission as they find it, a person aggrieved by a decision of the Commission made pursuant to an arbitral process under an enterprise agreement is ordinarily able to appeal with permission under s 604(1) as incorporated into the agreement. Section 739(3) provides that the Commission must not exercise any powers limited by the term. A term of an enterprise agreement that requires or allows the Commission to deal with a dispute may limit the powers of the Commission on appeal. That at least includes dispensing with the requirement to obtain permission to appeal.[9] There is no reason why a term could not remove the capacity to appeal entirely, either with respect to all decisions made as part of the arbitral process, or certain types of decisions.

[22] It is possible for clause 65.8(a) to be construed as limiting the capacity to appeal a decision to the ultimate 'outcome' reached in resolution of the dispute and precluding an appeal being brought at all with respect to an earlier or intermediate decision. That is at least an available construction of the words of clause 65.8(a). However, we accept the submission of both the University and the NTEU that it is not the preferrable interpretation. The better view is that clause 65.8(a) enlarges the capacity of a party to appeal from a decision representing the ultimate outcome of a dispute by conferring a right of appeal without the need to seek permission. We do not consider that the clause otherwise constrains the capacity of a party to a dispute to seek permission to appeal as contemplated by s 604(1) with respect to other decisions made as part of the arbitral process.

[23] Clause 65.8(a) does not, by its express terms, constrain the avenue of appeal ordinarily available with respect to decisions of the Commission. The language used is, in our view, insufficient to support a negative inference that the clause intends to prevent a party seeking permission to appeal with respect to decisions made as part of the arbitral process other than the ultimate outcome. It is also unlikely the parties intended such a result. That construction would mean that there would be no avenue of appeal at all with respect to procedural or interlocutory decisions made in the arbitral process. It is likely that the parties would have used clear language if that was their intention. They did not.

[24] The consequence is that, although it does not have a right to appeal, the University is entitled to seek permission to appeal from the decision of the Deputy President under s 604(1) of the Act as incorporated in the Agreement.

[25] The question of whether permission to appeal should be granted under s 604(1) of the Act in this matter is not straightforward. Section 604(2) requires that the Commission grant permission to appeal if it is satisfied it is in the public interest to do so. Otherwise, the Commission has a general discretion as to whether to grant permission to appeal which is commonly informed by considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration, and whether substantial injustice to the parties may result if permission is refused.

[26] Conflicting considerations arise in this matter. On the one hand, the decision of the Deputy President has not resolved the dispute. The Deputy President has, in substance, done nothing more than express an opinion in relation to the application of clause 19 of the Agreement. Further proceedings are proposed to take place to resolve the dispute and address what the Deputy President described as the question of 'remedy'. Even if an appeal is available, it will frequently not be in the public interest, or otherwise appropriate, to grant permission to appeal with respect to a preliminary or interlocutory decision which has not finally disposed of the relevant proceedings. Granting permission to appeal in those circumstances has the potential to result in unnecessary delays in the resolution of a matter and to increase the costs and disruption for the parties involved. The resources of the Commission may be consumed by having to deal with multiple appeals in the same proceeding. Whilst there will be exceptions, it is generally preferrable for an appeal to be heard and determined only after the first instance proceedings have concluded.[10]

[27] On the other hand, the present appeal raises a significant question concerning the interpretation and application of the Agreement, particularly clause 19, which is plainly of importance to the parties and to academic employees at the University. As we have indicated, the question of academic workloads is an important one and the evidence in this matter indicated a concern by academic staff in the Faculty of Humanities about the method of workload allocation. The parties fundamentally disagree about the proper interpretation and application of the relevant provisions of the Agreement. We accept that this consideration favours granting permission to appeal in order to allow the early resolution of the dispute.

[28] In this matter, both the University and the NTEU submit that the convenience of determining the questions raised in the appeal outweighs the inconvenience of potentially split appeals at least given the stage which the proceedings have reached. Both parties submit that they had prepared to have the argument in relation to the appeal and that the Full Bench should determine the questions raised. We should add that the NTEU separately submits that permission to appeal should be refused having regard to the grounds of appeal advanced by the University. It does not submit that permission to appeal should be refused on the basis of the bifurcation of the determination of the dispute.

[29] Although the matter is relatively finely balanced, having considered the whole of the circumstances, we are not satisfied it is in the public interest to grant permission to appeal or that we should otherwise exercise our discretion to do so. A number of considerations are, in our view, significant.

[30] First, both the University and the NTEU accept that, if permission to appeal is refused and the Deputy President ultimately orders that the University take steps to address the deficiencies he found exist in its processes for determining workload allocations, it would be then open to the University to appeal that outcome, including on the grounds sought to be advanced in this appeal. The University's position is not prejudiced by permission to appeal now being refused. It will remain open to the University to appeal any final outcome of the proceedings on grounds that, in his existing decision, the Deputy President misconstrued the Agreement or erred in any factual findings he has made.

[31] Second, the Deputy President has foreshadowed further proceedings be conducted to resolve the dispute. The first step the Deputy President proposes to take is to convene a conference between the parties to discuss what type of order should, or can, be made by the Commission in arbitration of the dispute. The Deputy President indicated that he was hopeful that the parties may be able to find a way to engage with each other such that they can achieve a resolution of the dispute in a manner that is acceptable for them both. In our view, that process should be permitted to play out before the Full Bench is called upon to determine the difficult questions raised in the appeal. Given that a significant dispute exists concerning workloads, the underlying dispute is unlikely to go away even if the University is successful in its appeal. It is desirable for the parties to attempt to explore a practical path forward in light of the findings of the Deputy President before the Full Bench is called upon to determine the questions raised in the appeal.

[32] Third, if the dispute cannot be resolved, it will be necessary for the Deputy President to decide what further steps to take to resolve the dispute. As the Deputy President suggests, the nature of any further order or determination that can or should be made in arbitration of the dispute is likely to be subject of controversy. Unless the University is entirely successful in its present appeal, it is overwhelmingly likely that there will be a further appeal process arising from the final resolution of the dispute. We do not consider that to be an outside possibility, but a virtual inevitability. That consideration favours refusing permission to appeal at this point. There is much to be said for the Full Bench considering the questions of construction, and the question of what steps are available to the Commission to require the failures found by the Deputy President to be addressed, at the same time.

[33] Fourth, the possibility of multiple appeals in this matter has the potential to cause greater confusion and inconvenience than would ordinarily be the case. For the reasons we have explained, the parties have a right to appeal from the eventual 'outcome' which resolves the dispute. If we were to now grant permission to appeal in order to consider the constructional and factual questions raised and a further appeal is subsequently necessary, the status of any conclusions of the Full Bench in this appeal would be uncertain. It is possible that the parties would be bound by the conclusions of this Full Bench. However, that question is not free from doubt. A later Full Bench would not be bound, at least in a strict sense, by the findings of this Full Bench and there is a possibility of inconsistent outcomes. The better course, in order to avoid uncertainty and unnecessary disputation, is for permission to appeal to be refused at this juncture and for all issues raised in the dispute to be considered on appeal at one time (if it is ultimately necessary to do so).

[34] Fifth, although we have not formed any concluded views in relation to the matters raised in the appeal, it appears to us that the University may have misapprehended some parts of the Deputy President's decision. In particular, the University has understood the Deputy President to have found that the reference in clause 19.2(f) to the time allocated to a task being 'an accurate representation' of the time taken to perform the task to mean that the University will contravene the provision if an academic later performs more hours than it is predicted should be necessary to undertake a task. It is not clear to us that this is what the Deputy President decided. It is possible to read the decision of the Deputy President as suggesting that the University must ensure that the time allocated to particular tasks is an accurate 'representation' of the time required to undertake a task.

[35] Furthermore, a substantial aspect of the University's submissions on appeal is that the Deputy President was wrong to find that it could have failed to comply with clause 19.2(e) and (f) as a result of the content or adequacy of the 'Faculty Parameters' document used in the Faculty of Humanities to estimate the time required for different tasks. The University submits that any finding of non-compliance would require evidence relating to an individual academic. Even if that submission were to be accepted, it is not clear that there could not be, and is not, a dispute before the Commission as to whether the process used by the Faculty to inform the allocation of work to individual academics is unsatisfactory in a manner that would permit the Commission to intervene in arbitration under clause 65 of the Agreement. That may be the case whether or not a contravention of the Agreement has been established. That is a matter which may need to be explored in any further proceedings before the Deputy President.

[36] For these reasons, we consider that the University requires permission to appeal and that permission to appeal should be refused.

[37] The Full Bench makes the following order:

J Bourke KC and A Denton, of counsel, instructed by MinterEllison for Curtin University.

L Saunders, of counsel, instructed by Nicholas Aplin, Senior National Industrial Officer, for the National Tertiary Industry Education Union.

[1] Miller v University of New South Wales (2001) 110 IR 1 at [52].

[2] Victoria University v National Tertiary Education Industry Union [2010] FWAFB 4195; (2010) 195 IR 148 at [2].

[3] See, for example, University of New England v National Tertiary Education Industry Union [2019] FWCFB 8, University of the Sunshine Coast v National Tertiary Education Industry Union [2021] FWC 6490 and National Tertiary Education Industry Union v Flinders University of South Australia [2025] FWCFB 62.

[4] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [31] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; (2012) 203 FCR 371 at [41] (Buchanan and Katzmann JJ); Linfox Australia Pty Ltd v Transport Workers' Union of Australia [2013] FCA 659; (2013) 213 FCR 479 at [27] (Rares J).

[5] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [57]- [58] (Dowsett, Tracey and Katzmann JJ).

[6] United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84; (2024) 304 FCR 219 at [10] (Colvin, Raper and Dowling JJ).

[7] DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557; (2013) 237 IR 180 at [47]- [48]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [51] and [57] (Dowsett, Tracey and Katzmann JJ).

[8] Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths [2013] FWCFB 2814; (2013) 232 IR 255 at [22]; Vendrig v Ausgrid Pty Ltd [2021] FWCFB 370 at [24]; Ricegrowers Ltd v United Workers' Union [2022] FWCFB 205 at [46]- [47]; PHI (International) Australia Pty Ltd v Nash [2024] FWCFB 396; (2024) 333 IR 366 at [19]; Toll Transport Pty Ltd v Transport Workers' Union of Australia [2026] FWCFB 30 at [8].

[9] United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 198; (2025) 343 IR 1 at [84] and [107]; Toll Transport Pty Ltd v Transport Workers' Union of Australia [2026] FWCFB 30 at [7].

[10] See, for example, ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association [2025] FWC 3356 at [18].

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