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[2026] FWC 294
General information, not legal advice.
Fair Work Commission
2026-02-18
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
[1] On 10 November 2025, Dr Milad Bazli (the Applicant) lodged an application with the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the FW Act), raising a dispute in accordance with clause 63 of the Charles Darwin University and Union Enterprise Agreement 2025 (the Agreement).
[2] The dispute relates to the 'District Allowance' as provided under clause 26 of the Agreement:
26.1 This clause does not apply to casual Employees.
26.2 This allowance will be paid on a pro rata basis for Part-Time Employees.
26.3 Upon application, Employees working and residing in the Northern Territory shall receive a district allowance, paid fortnightly, in accordance with the following:
26.3.1 Professional Employees and VET Academics, with dependents - $1,171.80 per annum.
26.4 For the purposes of this clause dependent means, an Employee's spouse, including de facto partner, and children under the age of 18 years, who permanently reside with the Employee and who are not in receipt of income in excess of the weekly minimum adult wage including any Northern Territory Allowance or district allowance."
[3] A Telephone Conference was scheduled in this matter on 1 December 2025.
[4] Ahead of the Conference, the Respondent wrote to my Chambers raising an objection to the application, on the basis that the claimed entitlement is 'contingent upon application', and the Applicant did not lodge the required application until 23 July 2025. Whilst the Applicant has claimed that he should be 'backpaid' this allowance to the date he became eligible to receive the higher rate. The Respondent's position is that no entitlement existed prior to the date of his application.
[5] Further to the Conference of 1 December 2025, Directions issued for filing of materials by the parties.
[6] As provided for in the Directions, in light of neither party requiring witnesses to attend a hearing for cross-examination, this matter is being determined on the papers.
[7] The Applicant commenced employment with the Respondent on 1 July 2021 as a Higher Education Academic in the Northern Territory.
[8] As part of his onboarding process, the Applicant completed documentation to seek payment of the 'District Allowance' at the "without dependents" rate. The Applicant has confirmed that this allowance was paid to him from the first pay period.
[9] In November 2022, the Applicant's personal circumstances changed and he became eligible to claim the 'District Allowance' at the "with dependents" rate provided at clause 26.3.2(b) of the Agreement.
[10] On 1 August 2024, the Respondent introduced a new HR and Payroll System, which resulted in a change of appearance to employee payslips.
[11] As a result of this Payroll System change, the Applicant realised that he needed to amend his 'dependents' status for the purposes of the 'District Allowance'.
[12] The Applicant submitted a new 'District Allowance' Declaration form on 23 July 2025 to detail this change in circumstances and to seek the allowance at the higher rate. The Applicant has been paid the allowance at the higher "with dependents" rate from this date.
[13] The Applicant has sought for the allowance to be backdated at the "with dependents" rate, to the date he became eligible in November 2022.
[14] The Respondent's position is that the Agreement does not provide for back pay, and as a result, the Applicant's request for back pay has been denied.
[15] The Applicant confirmed that he submitted an updated District Allowance form on 23 July 2025 and has received the allowance at the higher "with dependents" rate from that date. The Applicant's concern, however, is that the Respondent has refused to backdate the allowance to the date he became eligible in November 2022. The Applicant submitted that the Respondent's systems, including HR records relating to 'parental leave', meant that the Respondent had access to information proving his 'dependents' status, yet the Respondent did not update his 'District Allowance' rate in their systems.
[16] With reference to clause 26, the Applicant submitted that the Agreement does not expressly state that any increase to the allowance rate can only take effect prospectively from the date that a new application is lodged, nor does it expressly prohibit retrospective adjustment where a higher entitlement is found to have been applicable.
[17] As to the words "upon application" contained in clause 26.3, the Applicant argued that this requirement was satisfied by way of his application lodged with the Respondent on commencing employment. The Applicant argued, therefore:
"...the dispute is not whether the Applicant made an application for District Allowance; it is whether the University correctly administered the rate after the Applicant's circumstances changed."
[18] The Applicant submitted that the relevant allowance rate is determined by eligibility. The Applicant submitted that his 'updated form' was an amendment to his original application and not a new application.
[19] The Applicant maintained that the Respondent's 'prospective-only' approach to the allowance is not provided for in the words of the Agreement.
[20] However, the Applicant submitted that if the Commission finds that a 'new application' was required in order to receive the higher entitlement, then backpay should be ordered to the earliest date that the University had notice, or ought reasonably to have had notice, of the Applicant's 'dependents' status.
[21] The Applicant submitted that he has been underpaid by the Respondent. The Applicant submitted that the Commission should determine the dispute and make orders as follows:
"• A determination that the Applicant made an "application" for District Allowance at the commencement of employment (through the onboarding / personal details documentation relied upon by the University to commence payment of District Allowance from the first pay period).
[22] The Respondent submitted that this dispute is contingent on the meaning of the words "upon application" in clause 26.3 of the Agreement.
[23] The Respondent submitted that the words "upon application" should be given their plain English meaning.
[24] The Respondent submitted that on a plain English reading of clause 26, it is clear that an 'application' is the trigger point for receiving an entitlement. The Respondent submitted that the entitlement is not automatically enacted by simply meeting a criterion. Further, the Respondent submitted that "upon application" is the defined commencement time for the entitlement.
[25] The Respondent submitted that the Applicant made an application for the District Allowance upon commencement of employment, for the entitlement 'without dependents'; however, the Applicant was required to make a new and separate application for any new entitlement.
[26] The Respondent submitted that the application completed by the Applicant on commencement of employment specifically stated, and required the Applicant to 'accept and acknowledge' that:
"If there are any changes in personal circumstances that may affect the payment of district allowance .... you must immediately submit an updated district allowance declaration to HRS".
[27] The Respondent noted that the Applicant did not complete a 'new application' to detail his change in circumstances, until 23 July 2025.
[28] The Respondent submitted that "upon receipt of the new application", in compliance with clause 26.3.2(b) of the Agreement, it applied the District Allowance 'with dependants' rate from the date of that new application.
[29] The Respondent submitted that each rate for the 'District Allowance' is a separate entitlement, with its own independent criteria, requiring a new application in each circumstance to meet the "upon application" requirement prescribed in the Agreement.
[30] As part of its submissions in this matter, the Respondent advised that it was prepared to resolve the dispute by applying the District Allowance at the higher rate "from the commencement of the current Agreement on 23 June 2025".
[31] However, as to the determination of the dispute by the Commission, the Respondent submitted that the Commission should find that the interpretation and application of the words "upon application" mean that the application of any entitlement only exists from such a time as the application is made; and that the administrative practice of requiring a new application for changes in circumstances of an individual requires a new application to trigger change in entitlement.
[32] The Applicant disputed the Respondent's submission that the words "upon application" require a new and separate application for any new entitlement under clause 26 of the Agreement. The Applicant maintained that the words "upon application" were satisfied by his application made on commencement of employment.
[33] The Applicant maintained that the issue before the Commission is not whether he had made an application, but whether the Respondent applied the correct rate of the allowance once he met the "with dependents" definition, which he stated he met from November 2022. The Applicant submitted that the issue before the Commission is "not whether the allowance could exist at all".
[34] The Applicant submitted that the Respondent's interpretation of the clause requiring a 'new and separate application for each entitlement' is not supported by the words in clause 26.
[35] The Applicant maintained that nothing in clause 26 expressly prohibits backpay of the entitlement. The Applicant rejected the Respondent's proposed remedy to backpay the allowance from 23 June 2025 and continued to press his application for the allowance to be back paid from the date that he became eligible for the higher rate in November 2022.
[36] I have taken into account all of the submissions and evidence that have been provided by the parties.
"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."
[38] It is uncontroversial that the Berri Principles apply in this matter, and that the 'ordinary meaning' of the words in the Agreement must be considered.
[39] I agree with the Respondent that this dispute hinges on the interpretation of the words "upon application" contained in clause 26.3 of the Agreement, and that these words should be given their plain English meaning.
On: 'at the occasion of' / 'by means of' / ' in the process or course of'
Application: 'the act of applying to a particular purpose or use' / 'the act of asking for something' / 'a verbal or written request'
[41] The Oxford Australian Law Dictionary defines "a condition precedent" to be a "prerequisite that must be satisfied before a valid offer comes into existence". I am satisfied that the phrase "upon application" is a condition precedent to the payment of the higher allowance.
[42] Adopting the Collins Dictionary definitions above of the relevant words, I am satisfied and find that the phrase "upon application" means:- the process of asking for something. In this instance, the Applicant has asked for an increase in his District Allowance payment, but the higher payment only became available when the Applicant submitted his application.
[43] Further, I am satisfied and find, based on the wording in the Applicant's original application for the District Allowance, that he was required to immediately submit an updated District Allowance declaration upon his change of circumstances. Whilst this wording may be targeted to those employees who may no longer be entitled to claim the higher payment, the section emphasises the need to immediately notify the relevant body. If backpay was an entitlement, there would have been no need for any immediate action on behalf of an employee. An employee could simply take their time in any notification process thus accumulating a quantum of money which would be unknown to the Respondent and therefore unbudgeted, in this case, for 3 years.
[44] I have adopted the Berri Principles in reaching my decision and applied the ordinary meaning to the phrase "upon application".
[45] For the reasons identified above, I am satisfied and find that the Respondent was only required to pay the higher District Allowance rate to the Applicant from the date that the Applicant completed a new application. I note that the Respondent has agreed to pay the Applicant from the commencement of the new Agreement.
[46] As a result, the Application's application for backpay to November 2022 is dismissed.
Printed by authority of the Commonwealth Government Printer
Dr Milad Bazli
Charles Darwin University [2026] FWC 294