Fair Work Commission|2025-12-10|Before: Watson VP

M People (QLD) Pty Ltd [2025] FWC 3794 (10 December 2025)

s.217 - Enterprise agreement

Application for variation of the M People Queensland Enterprise Agreement 2022 - variation opposed - Agreement specifies initiating party in other clauses if only applies to one version - relevant clause does not specify initiating party - clause applies to termination at the initiative of either party - application dismissed.

[1] This matter concerns an application made by M People (QLD) Pty Ltd (the Applicant) under s.217 of the Fair Work Act 2009 (Cth) (the Act). The application seeks for the Fair Work Commission to remove an ambiguity or uncertainty in the M People Queensland Enterprise Agreement 2022 (the Agreement).

[2] The Agreement was approved by Deputy President Asbury, as she was then, on 15 December 2022 and was stated to operate from 22 December 2022, with a nominal expiry date of 22 December 2025.

[3] M People have applied for certain amendments to be made to the Agreement pursuant to s.217 of the Act. It is said these changes are needed to correct uncertainty in interpretation of the Agreement.

[4] The application identified the Respondent as the Mining and Energy Union (MEU) which has objected to the amendments sought.

[5] Section 217 of the Act reads as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[6] This matter arises from what the Applicant submitted is a clear ambiguity in the proper construction of clause 3.9 of Schedule 3 of the Agreement which sits within the incentive payment provisions of the Agreement and provides:

"3.9 Employees who terminate for a non-disciplinary reason will receive a pro rata payment as per Table 3."

[7] Schedule 3 was the subject of a confidentiality order on approval of the Agreement because it contains commercially sensitive operational information. As such, only the disputed words have been reproduced for interpretation.

[8] Section 217 of the Act confers on the Commission a discretion to vary an enterprise agreement, but only where it is first satisfied that the agreement contains an ambiguity or uncertainty. This threshold requirement is jurisdictional in nature: unless genuine ambiguity or uncertainty is established, the discretion to vary cannot be exercised. Once an ambiguity or uncertainty has been identified, the Commission has a discretion whether to vary the agreement.

[9] The principles governing the variation of an Enterprise Agreement have been firmly established in Re Australian and International Pilots Association[1]. Whilst dealing with a predecessor provision Watson VP outlined the process for determining an application under a predecessor provision. That process requires three steps (see also Re Hobsons Bay City Council[2]):

a. the identification of an ambiguity or uncertainty;

b. exercise of a discretion as to whether a variation should be made;

c. exercise of a discretion as to the terms of a variation.

[10] The principles that are to be applied in considering an application under s.217 are summarised in Re Hobsons Bay City Council:[3]

a. The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context.[4]

b. The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions, and an arguable case is made out for more than one contention.[5]

c. However, the Commission must make a finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient.[6]

d. The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty.[7] Such contentions may be self-serving. The task is to make an objective judgement as to whether the wording of a provision is susceptible to more than one meaning.

e. On the other hand a provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion on this first step of establishing the presence of ambiguity or uncertainty.[8] Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements.

f. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, "equity, good conscience and the merits of the matter" (s.578) and it is not bound by the rules of evidence and procedure in relation to a matter (s.591). These provisions of the Act apply to the discharge by the Commission's functions under s.217(1), including by allowing the Commission to have regard to evidence of the parties' common intention and to the history of agreement provision as part of the "equity, good conscience and the merits" of the matter.

[11] Applying the above principles, the MEU submitted that clause 3.9 of Schedule 3 is neither unclear nor ambiguous.

[12] The Applicant submitted that as it stands when reading clause 3.9, at least three potential meanings arise. An employee is entitled to a payment:

(a) if they terminate at their own initiative for a non-disciplinary reason (ie payable on a resignation);

(b) if they terminate at the initiative of the employer if it was for a non-disciplinary disciplinary reasons;

(c) in both situations;

[13] The Applicant submitted that firstly, there are no other references to "non-disciplinary reason" in the Agreement. However, in a practical sense it is only ever the employer who disciplines the employee (and subsequently terminates their employment for a disciplinary reason) which makes the phrase, "Employees who terminate for a non-disciplinary reason" extremely odd as every resignation at the initiative of an employee would be non-disciplinary in nature.

[14] The Applicant said, secondly, predominantly, clauses containing references to termination outline the circumstance of the termination and whether it would be categorised as being at the initiative of the employee or the employer. For instance:

• Clause 23.14 deals with "An Employee whose employment is terminated" indicating that terminated means at the initiative of the employer

• Clause 31.8 deals with a major change where it is likely to have a significant effect on Employees if it results in the termination of the employment of Employees indicating that terminated means at the initiative of the employer as the subject matter does not lend itself to employees who terminate themselves

• Clause 32.5 deals with "Employees terminated due to redundancy indicating that terminated means at the initiative of the employer as the subject matter does not lend itself to employees who terminate themselves

• Similarly Clause 32.2 of the Agreement is quite clear in the language used in the one instance when it deals with termination by the employee - An Employee must give .... notice .........to terminate their employment

[15] The Applicant contended there are only two clauses that lend themselves to a contrary interpretation:

• Clause 32.8 which provides "Upon termination of an Employee's employment........ the Employee shall return all property belonging to the Company.

• Clause 22.5 which provides "Upon termination of employment Employees will be paid.............

[16] However, the Applicant also said, the subject matter of both clauses drives that implication and the language used is "upon termination of an Employee's employment" or "upon termination of employment". This is in stark contrast to the language used in the ambiguous clause "'Employees who terminate" and would suggest that the clause in question cannot be interpreted as meaning a pro rata payment should be made in both situations where the termination occurs at the employer's initiative and the employee's initiative.

[17] The Applicant submitted that the very presence of multiple, tenable interpretations of the Agreement's clause 3.9 is itself compelling evidence of genuine ambiguity. It said, consistent with the Commission decisions, where more than one reasonable construction is available, the threshold for ambiguity is satisfied.[9] Echoing the High Court in Amcor, which established that, ambiguity arises where the text is genuinely capable of more than one meaning, not simply because the parties disagree.[10]

[18] The MEU contended that as highlighted by the Applicant, the term 'terminate' is used throughout the Agreement to refer to all situations where an employee's employment comes to an end, whether by the employer's or the employee's initiative. In relation to the term "non-disciplinary reason", while this is not defined in the Agreement, the concept of disciplinary action has a well-known industrial meaning.

[19] The MEU agreed with the Applicant's submission that, in a practical sense, termination for a disciplinary reason would only occur if employment were terminated by the employer following a disciplinary process for misconduct. The MEU said therefore, termination for a 'non-disciplinary reason' on its ordinary meaning would include all termination situations other than termination for a disciplinary reason. This includes both termination at the employee's initiative as well as termination by the employer for a reason other than misconduct (eg incapacity or redundancy).

[20] The MEU submitted that it is clear from the language and context of the phrase 'Employees who terminate' that this incorporates both meanings. Other than where 'terminate' can only have one meaning due to context (eg in the redundancy provisions), where there is an intention to limit the meaning of 'terminate' to either termination at the employer's or employee's initiative, this is clearly articulated in the Agreement. For example:

9.6 All Employees will be engaged on a six (6) months probationary period. During the probationary period, the Employee's employment may be terminated by the Company by giving a notice period (or payment in lieu) of one (1) week.

21.7 If an Employee terminates his/her employment with the Company within six (6) months of the date of commencement, the Employee will reimburse the Company, through a deduction from the Employee's final termination pay, the pro-rata cost of any company supplied protective clothing

32.1(a) An Employee must give two weeks' written notice (or a greater or lesser period as agreed between the Employee and the Company) to terminate their employment

32.7 Nothing in this clause affects the right of the Company to terminate an Employee without notice or payment in lieu of notice for serious misconduct.

[21] The Applicant asserted that the term "non-disciplinary reason" is capable of more than one plausible construction, and orthodox principles of interpretation, therefore require clause 3.9 of the Agreement, to be read in the manner that best harmonises with the Agreement as a whole. On that footing, the Applicant maintained that the provision is ambiguous and that the amendments it has proposed remain necessary. The Applicant contended the MEU's reliance on the purportedly broad use of the term "terminate" throughout the Agreement is misplaced and does not dispel the ambiguity inherent in clause 3.9 of the Agreement, but underscores it.

[22] The Applicant submitted that the MEU treats the phrase "non disciplinary reason" as a residual category encompassing every ground for dismissal that is not misconduct. While the term "disciplinary action" does carry a well-settled industrial meaning, namely being an action taken in response to misconduct, its existence does not compel the conclusion that every other ground for termination automatically falls on the opposite side of a binary divide. The structure of the Agreement and the broader legislative framework demand a more nuanced analysis.

[23] The Applicant said while it is accepted that "disciplinary action" has a well-understood industrial meaning, it drew reference to redundancy, incapacity, and operational re-organisation 'terms', and contended that each of these terms trigger distinct procedural safeguards and financial consequences that are not easily collapsed into a single residual bucket. It said this submission is consistent with the determination and reasoning in Kenefick v Australian Submarine Corporation Pty Ltd, where the IR Court drew a careful distinction between redundancy, which it accepted was "non-disciplinary", and a termination for incapacity or other operational reasons, each of which attracted a different set of rights and obligations.[11] The Applicant said the Court's reasoning confirms that the content of the label "non-disciplinary" must be ascertained by reference to the specific scheme of an enterprise agreement rather than by merely contrasting it with 'misconduct.'

[24] The Applicant submitted the problem in clause 3.9 is that the active tense is used - 'Employees who terminate.' An employee can actively terminate by resigning, they can't actively terminate themselves for redundancy, they can't actively terminate themselves for misconduct or disciplinary reasons, and as the cases make clear they cannot terminate themselves for abandonment.

[25] Further, the Applicant said this naturally conveys an act done by the employee, i.e. a resignation. Had the drafters meant to cover the whole field of terminations, irrespective of initiative, they would have employed passive or neutral wording that detaches the actor from the act, such as:

[26] The Applicant said the deliberate choice of the active form therefore creates, at the very least, a real doubt as to the scope of the multiple meanings. The Applicant said each of the interpretations is plausible on the face of the text, and the context of the Agreement, demonstrating classical ambiguity and uncertainty.

[27] The Applicant referred to the decision of Amcor, where the High Court of Australia emphasised that "the actual words used, and their grammatical form, matter",[12] and that meaning turns on whether the language points to a particular actor or a more general state of affairs. The Applicant said in applying Amcor, the active formulation "employees who terminate" cannot lightly be read as an all-embracing reference to every termination; to do so would treat the grammar as irrelevant and expand the clause beyond what its text naturally conveys. Accordingly, it said the MEU overstated the clarity of the provision and the Commission should recognise that the drafting is, at best, genuinely ambiguous.

[28] The MEU contended that contrary to the Applicant's submission, the language in clause 3.9, while somewhat awkward, is in fact passive language that merely refers to the termination of employment without specifying who brings about the termination.

[29] The MEU submitted the term 'employees who terminate' is equivalent to 'employees whose employment comes to an end'. It said by omitting reference to who brings about the termination, this wording does not narrow the scope of 3.9 beyond the circumstance of 'non-disciplinary reasons.' Further, where there is an intention in the Agreement to include both termination at the employer's and employee's initiative, suitably broad language is used that does not specify who brings about the termination, for example:

22.5 Upon termination of employment Employees will be paid any outstanding annual leave accruals at the rate the employee would have received if they'd taken the annual leave during their employment
23.14 An Employee whose employment is terminated due to the following circumstances:

32.8 Upon termination of an Employee's employment, or as soon as practicable after termination, the Employee shall return all property belonging to the Company

[30] The Applicant referred to the MEU's 'passive approach,' stating this denies the balance of the legal principles in Amcor, where their Honours, established that construction of industrial instruments must be grounded in the text, context, and industrial purpose of the provision. Further, warning against assuming that broadly framed or ambiguous words invariably embrace every possible scenario, particularly where the instrument elsewhere speaks with greater specificity.[13] The Applicant said the principles firmly entrenched, in Amcor, when applied towards the Agreement's incentive entitlements should be construed in a manner consistent with the entitlement's purpose, being to reward retention, not voluntary resignation. Accordingly, the Applicant submitted the ambiguity remains, and the Applicant's 'active approach,' which limits pro rata payments to 'employer-initiated,' non-disciplinary terminations, is both textually and contextually preferable.

[31] Accordingly, the Applicant submitted that clause 3.9 is genuinely ambiguous within the meaning of s.217 of the Act. The wording is objectively susceptible to multiple reasonable interpretations, and the ambiguity cannot be resolved by reference to context or other provisions of the Agreement that discuss termination. The statutory threshold is therefore met, and the Commission may proceed to consider, in the exercise of its discretion, whether the Agreement should be varied to remove the ambiguity and provide the clarity intended by the parties.

[32] The MEU said the Applicant has put forward three alternative interpretations of clause 3.9. However, this in itself is insufficient for a finding of ambiguity. There must be an arguable case for each interpretation. The MEU said the Applicant submitted that there is only an arguable case for one of these interpretations which is that clause 3.9 refers to both termination at the employer's and employee's initiative for a non-disciplinary reason. The Applicant submitted it was a mischaracterisation by the MEU that the Applicant said there was a single, obvious meaning for clause 3.9 of the Agreement.

[33] The MEU was of the view that an interpretation of the clause that was limited to employee-initiated termination, although consistent with the words 'the employee terminates', is not plausible because it would render the words 'non-disciplinary reasons' redundant as employees cannot terminate themselves for disciplinary reasons. It would also not be consistent with the purpose of the clause to reward employees for retention as it would lead to the nonsensical outcome that employees would receive a pro-rata bonus when they quit but not when they were made redundant or terminated for capacity reasons.

[34] Further, the MEU submitted an interpretation that was limited to employer-initiated termination is not open on the plain wording of the clause. No reasonable analysis of the plain words of the clause could conclude that the phrase 'the employee terminates' refers to situations where the employer terminates an employee's employment and not situations where an employee terminates their own employment.

[35] The MEU submitted that clause 3.9 is not ambiguous and has a clear meaning which is that employees are entitled to a pro-rata incentive payment on termination of employment at the employer's initiative for non-disciplinary reason or on termination of employment at the employee's initiative.

[36] In response, the Applicant submitted that employees commonly use resignation as a strategic response to disciplinary jeopardy, in other words, employees terminate their employment (e.g. resign) to avoid a termination at the initiative of the employer on disciplinary grounds.

[37] The Commission has expressly recognised this argument supported by unfair dismissal decisions:
- • In Pacific National v Bell,[14] the Full Bench found that an employee, admitted to serious misconduct, resigned after seeking advice from his union, and the Commission found that his employment was not terminated by his employer.
- • Similarly, in Love v Alcoa, the employee resigned after being made aware of the seriousness of the allegations and the likely disciplinary outcome.[15]

[38] Accordingly, the Applicant submitted it goes to reason that employees have, can and will, terminate their employment for disciplinary reasons (or where disciplinary circumstances exist).

[39] The Applicant contended that under s.217 of the Act, the exercise of the discretion conferred on the Commission does not give rise to a general discretion to determine a matter based on industrial fairness.[16] Its function, is to restore the parties, to the position they objectively intended, insofar as the wording of the agreement does not reflect that intention.[17] In circumstances where the parties disagree about the proper construction of the impugned clause, the Applicant said the Commission can proceed with caution where ambiguity relates to the payment of an additional amount. As the Full Bench observed in United Voice v MSS Security Pty Ltd,[18] where ambiguity relates to the payment of an additional amount and the evidence does not establish a mutual intention to confer such an entitlement, the Commission should refrain from exercising its s.217 power in a manner that creates a right reflecting only one party's intention. The Applicant submitted that is the situation here, and the Commission should exercise its discretion to vary the clause and remove ambiguity.

[40] The Commission may have regard to the mutual or common intention of the parties at the time the Agreement was made.[19]

[41] The MEU submitted both the Applicant and the MEU contend different interpretations of the meaning of clause 3.9 and there is no evidence before the Commission of a common intention during bargaining.

[42] The Applicant referred to a PowerPoint presentation given to employees attached to the original Form 17. It provides no assistance to resolving the ambiguity, and instead simply restates the wording from the Agreement.

[43] The Applicant submitted that the Commission is assisted in this task by looking at the context of the Agreement. This is consistent with the decision of Watson VP in Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union,[20] applying the reasoning of SDP Marsh in Beltana Highway Mining Pty Ltd, which confirmed that when determining whether a provision is reasonably open to more than one meaning, and in deciding how any ambiguity should be resolved, the Commission may take into account the instrument as a whole and the underlying ideas or industrial purpose that informed the language used.

[44] The Applicant said context can be found by applying relevant principles of interpretation. Firstly, it can look at the textual choices by the parties and give effect to the textual choices of the drafters of the agreement.

[45] In Ridd v James Cook University,[21] the High Court found[22] that the correct interpretation of a clause of an enterprise agreement is one which:

a. reflects the particular textual choices made in the enterprise agreement;

b. is consistent with the ordinary meaning of the words used;

c. accords with the context and purpose of the clause as a whole; and

d. allows the clause to be applied in a practical and common-sense manner.

[46] Applying these principles, the Applicant said the Commission may and should have regard to the context and purpose of clause 3.9 of the Agreement, as well as any relevant industrial history or established industrial practice, to the extent these matters illuminate the meaning of the words chosen by the parties.

[47] The MEU referred to the case of Re: Monash[23] where Deputy President Bell summarised the authorities on the relevance of a common intention as follows:

"[154] The (relatively) low bar to establishing an ambiguity or uncertainty serves to sensitise the Commission that the power to vary an enterprise agreement under s.217 is to be approached carefully.

[155] Without limiting what might be appropriate in all the circumstances of a particular matter, the factors guiding the discretion to vary an enterprise agreement to remove and ambiguity or uncertainty might include, as appropriate:

• The absence of an antecedent "common intention" or "substantive agreement". The presence of this factor would ordinarily be a matter of significant weight in favour of variation and, equally, its absence a significant factor for refusal.

• The variation would not "give effect to a new and substantive change to the agreement".[24] This is a significant factor for refusal, if not satisfied;

• The exercise of the power of variation granted by s.217 is only for the purpose of removing "an ambiguity or uncertainty".[25] A variation extending beyond that required to remove an ambiguity or uncertainty would be beyond the jurisdiction conferred by s.217;

• The views of the employer and employees (and, for the latter, including the views expressed on their behalf by an applicable union)[26];

• The stage of bargaining between the parties, where relevant. Where an enterprise agreement has expired, it would be generally preferrable for the parties to endeavour to reach an agreed position rather than having the Commission determine a variation for the expired agreement;

• The timing of an application for variation, including delay;

• The specified date in which the variation is sought to be effective; and

• The power under s.217 "does not give rise to a general discretion to determine a matter based on industrial fairness".[28]

[48] The Applicant submitted clause 17 and Schedule 3 of the Agreement identify the incentive as a 'tenure-based payment,' not as a productivity or discretionary bonus. Its quantum is fixed in advance, it accrues automatically with the passage of service and, critically, it is expressed to improve attraction and retention of staff. The Applicant asked, in this industrial context, why would an incentive payment be made to reward employees who resign at their own initiative? It makes sense that the company would pay employees a pro rata portion of the incentive in situations where they are terminating the employee's employment (and retention is no fault of their own).

[49] The Applicant said this is consistent with industry practice and bonus/incentive schemes generally which do not pay employees who resign of their own accord but do pay bonus/incentives in situations out of the employee's control such as redundancy or termination for non-disciplinary reasons. This is often known as a 'good leaver' and frequently defined in bonus/incentive schemes and sale documents.

[50] The MEU was of the view the variation proposed by the Applicant would go beyond clarifying the ambiguity and would give effect to a new and substantive change to the Agreement beyond any reasonable interpretation open on the text and context of the clause. Such a variation would be beyond the Commission's jurisdiction under s.217.

[51] It said applying the interpretive criteria referred to in Ridd, an interpretation that provides an entitlement to a pro-rata payment on termination at both the employees' and employer's initiative for non-disciplinary reasons is the stronger interpretation. The MEU said the textual choices and the ordinary meanings of the words used favour this interpretation. It is an interpretation that also accords with the context and purpose of the clause.

[52] The MEU noted that in support of its argument, the Applicant referred to the purpose of the incentive payment in clause 3.3 which is to provide 'incentive and reward' and refers to improved attraction and retention. Clause 3.4 also states that 'The incentive scheme rewards Employees who remain with M People for a period of one to three years.' The MEU's interpretation serves this purpose equally to the Applicant's interpretation. On both interpretations, the incentive payment is not payable until one year of service has been completed, encouraging retention of more than a year and on both interpretations the value of the bonus increases with additional service. If relevant at all, this factor is neutral.

[53] The MEU said the Applicant also claimed that the MEU's interpretation is inconsistent with industry practice and bonus/incentive schemes generally. The MEU disagreed with this proposition, and the Applicant has provided no evidence in relation to that claim. In response, the Applicant said the Commission is entitled to have regard to the broad industrial context and the common features of incentive schemes in employment at large, which typically do not reward voluntary resignations with pro-rata payments. The Applicant's submitted the absence of a contrary industry practice from the MEU, further supports the Applicant's position that its interpretation is consistent with the industrial context and the parties' likely intentions.

[54] The MEU referred to the case of United Workers' Union v Coles Group Supply Chain Pty Ltd,[29] where Deputy President Easton stated:

"[86] ... The ordinary terms of the Agreement have a reasonably clear meaning and if I was confined to applying standard interpretation principles then one particular meaning, being the construction advance by the UWU, would prevail as the actual and true meaning. The other construction advance by Coles is available on the terms of the Agreement but is significantly weaker.

[87] In this circumstance there is power available under s.217 to vary the terms of the Agreement to remove the ambiguity or uncertainty. One possible outcome is that the Commission could vary the terms of the agreement in a way that the weaker construction prevails over the stronger construction - so much seems to be implied by the Full Court's reasoning in Blanco Walling.

[88] The relevance then of the "common intention" of the parties becomes immediately obvious. It is difficult to imagine circumstances where it would be appropriate for the Commission to impose the weaker construction on all the parties to the Agreement unless the Commission was satisfied that the variation reflected the 'common' intention of the parties when the original agreement was made. (emphasis added)

[55] The MEU said, in accordance with the decision in Coles, if the Commission determines that it is appropriate to make a variation to the Agreement, the variation should be in accordance with the MEU's proposed variation as this is clearly the stronger interpretation that is most consistent with the wording of the Agreement."

[56] The Applicant contended the Commission is empowered to select the interpretation that is most consistent with the text, context, and industrial purpose of the clause, even if that involves clarifying the scope of an entitlement in a way that resolves a genuine dispute.[30] It said the Applicant's proposed variation does not create a new right or entitlement but rather clarifies the intended operation of the clause in line with the purpose of the incentive scheme and the structure of the Agreement as a whole. It said the MEU's suggestion that the variation would "go beyond clarifying the ambiguity" is unsupported. The ambiguity arises precisely because the clause is susceptible to multiple plausible interpretations, and the Applicant's proposal simply resolves that ambiguity in a manner consistent with the scheme's purpose and the industrial context.

[57] The Applicant noted the Commission has previously clarified ambiguous provisions in a manner that resolves disputes about the scope of entitlements, without this being characterised as a "substantive change."[31]

[58] The Applicant concluded its proposed variation is within the Commission's jurisdiction under s.217, is necessary to resolve a genuine ambiguity, and does not effect a new or substantive change to the Agreement. The variation gives effect to the interpretation that best aligns with the text, context, and purpose of the clause, and is consistent with established authority and industrial practice.

[59] The Applicant submitted that the Commission should:

• Vary Schedule 3 of the EA by deleting the existing clause and inserting the following:

3.9 Employees who terminate at the initiative of the employer for a non-disciplinary reason will receive a pro rata payment as per Table 3.

• Direct that the variation operates from 22 December 2022;

• Make orders preserving the confidentiality of Schedule 3 and any submissions referring to its contents; and

• Make such further orders as the Commission considers appropriate.

[60] The MEU submitted that the application for a variation should be refused and the Commission should find that:

(a) there is no ambiguity in clause 3.9 of Schedule 3 of the Agreement

(b) clause 3.9 entitles employees to a pro-rata incentive payment on termination of employment at the employer's initiative for non-disciplinary reason or on termination of employment at the employee's initiative.

[61] The MEU submitted in the alternative, if the Commission is satisfied that clause 3.9 of Schedule 3 is ambiguous, it should vary the agreement to clarify the ambiguity by inserting the following:

3.9 Employees will receive a pro rata payment as per Table 3 on resignation/termination unless terminated at the initiative of the employer for a disciplinary reason.

[62] Having considered the submissions, I do not agree that clause 3.9 is ambiguous or uncertain. I do not agree the wording is objectively susceptible to multiple reasonable interpretations. I agree with the MEU's submission that the word "terminate" is used in other parts of the Agreement to refer to both termination at the initiative of the Applicant and in cases of termination at the initiative of the employee. The words "...terminate for a non-disciplinary reason..." comfortably captures both termination at the initiative of the Applicant and an employee of the Applicant.

[63] Where the Agreement intends for the use of the expression "termination" to refer to termination at the initiative of the Applicant, or at the initiative of the employee only, it does so. The fact that it does not do so in clause 3.9 supports the conclusion that the clause was intended to operate as the MEU contends. That being that an employee is entitled to pro-rata incentive payment on termination of employment at the employer's initiative for a non-disciplinary reason, or on termination of employment at the employee's initiative.

[64] Based on the conclusions above, the application is dismissed.

[4] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2010] FWAA 7742, [21].

[5] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50, [70].

[6] Fosterville Gold Mine Pty Ltd, Re Fosterville Employee Collective Agreement 2009 [2011] FWA 316, [5].

[7] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50, [70].

[8] Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees Union [2016] FWC 7256, [8].

[9] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50, [70]; Re Hobsons Bay City Council [2021] FWC 6037.

[10] Amcor Ltd v Construction, Forestry, Mining and Energy Union ('Amcor') [2005] HCA 10, [12]

[12] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10, [81].

[13] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10.

[16] AFMEPKIU v Qantas Airways Ltd [2001] FCA 54.

[17] Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121.

[19] Re Australian and International Pilots Association, [17].

[22] [22], [23], [26], [28] and [34].

[23] Monash University T/A Monash University (Monash) [2023] FWC 1148, upheld on appeal in [2023] FWCFB 181, see also United Workers' Union v Coles Group Supply Chain Pty Ltd [2024] FWC 2721, [103].

[24] Citing CFMMEU v Specialist People [2019] FWCFB 6307, [42].

[25] Citing Bianco Walling [2020] FCAFC 50 at [3]; Specialist People, [42] and [50].

[26] Citing Porter v MFESB at [58](3); Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121, [17]; Re Energy Safe Victoria [2020] FWCA 6718, [9].

[27] Citing Specialist People, [50].

[28] Citing Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121, [17].

[30] Bianco Walling [2020] FCAFC 50, [68]-[70]; Re Monash University [2023] FWC 1148.

[31] Aged Care Services Australia Group Pty Ltd v Health Services Union & Australian Nursing and Midwifery Federation [2017] FWCFB 2806, [21]-[23].

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M People (QLD) Pty Ltd [2025] FWC 3794 (10 December 2025)

At a glance

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Judgment (154 paragraphs)

M People (QLD) Pty Ltd [2025] FWC 3794 (10 December 2025)

Legislation Cited (1)

Cases Cited (1)