Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] The University of Melbourne Enterprise Agreement 2024 (the Agreement) contains a clause which appears to confer upon certain types of its employees preferential treatment in respect of recruitment for some vacant positions. The National Tertiary Education Union (NTEU) contends that the University of Melbourne (the University) has not conducted its recruitment processes in accordance with this clause and intends to continue not to do so.

• [2] A dispute has arisen over this matter. The Agreement contains a dispute resolution power which allows for "referral to the FWC" of a dispute arising from the application of the Agreement[1].

• [3] The NTEU referred the dispute to the Commission pursuant to the Agreement and s 739 of the Fair Work Act 2009 (Cth) (the Act). After an attempt to resolve the matter by conciliation proved unsuccessful, I arbitrated the dispute pursuant to clause 1.42.9.1(b) of the Agreement and s 739(4) of the Act.

• [4] The arbitration was conducted by way of hearing on 23 April 2025. Ms Tomassini appeared for the NTEU, and I granted permission to the University to be represented by a lawyer or a paid agent on the basis it would assist with the more efficient conduct of the proceeding. Mr Minucci of Counsel appeared for the University.
• [5] At the commencement of the hearing, the parties indicated that neither intended to cross examine the others' witnesses. Statements of evidence were tendered by the NTEU from Ms MacKenzie (including a Statement and a Supplementary Statement), Dr Brown and Mr Debets and for the University, Ms McAllister. The University in particular took issue with some of the evidence tendered by NTEU as to relevance and to some extent, admissibility, but was content to deal with those objections by making submissions as to the weight I should accord some aspects of the evidence. The parties made final oral submissions in addition to having previously filed written submissions. I have considered all of that material even if it is not specifically referred to.

The dispute resolution procedure under the agreement

• [6] Clause 1.42 of the Agreement contains a grievance and dispute settlement procedure which is set out below, omitting those parts which are not relevant to this matter:

1.42 GRIEVANCE AND DISPUTE SETTLEMENT PROCEDURE

1.42.1 The grievance and dispute settlement procedures (Dispute Procedure) apply to employment grievances and disputes arising from the application of this Agreement and the relevant provisions of the NES.

1.42.2 The Dispute Procedure also applies to employment grievances and disputes that do not arise from the application of this Agreement or the relevant provisions of the NES with exception to referral to the FWC at clause 1.42.9.1(b) and 1.42.9.2.

1.42.3 Grievances and disputes regarding alleged non-compliance by the University with processes set out in the Agreement (including matters of procedural fairness) when coming to a decision may be brought under this Dispute Procedure but not grievances or disputes about the decision itself.

1.42.4 The following are not covered by the Dispute Procedure:

1.42.4.1 occupational health and safety matters not addressed in the Agreement; and

1.42.4.2 the formation, amendment or rescission of University Policy that accord with the terms of the Agreement.

1.42.5 An Employee may be assisted by a support person or nominated representative with the exception of a University Employee employed in the Employee's faculty or administrative business division where a conflict of interest exists. For the purpose of this clause 1.42.5, "be assisted by a support person or nominated representative" does not displace or interfere with direct interaction between the Employee and the University when attempting to resolve disputed matters.

1.42.6 The parties will genuinely attempt to resolve grievances and disputes at the workplace in good faith and in confidence. Where possible, grievances should, in the first instance, be dealt with locally, impartially, efficiently and informally.

1.42.7.1 Where a grievance or dispute (excluding disputed matters set out at clause 1.42.8) arises between an Employee and the University the matter will first be discussed between the Employee concerned and their immediate supervisor.

1.42.7.2 If the grievance or dispute is unable to be resolved within a reasonable timeframe, the matter may be referred to the next level of management.

1.42.7.3 If the grievance or dispute cannot be resolved within a reasonable timeframe at the next level of management, the matter may be referred in writing to the Chief People Officer (or delegate).

1.42.7.4 The Union may directly raise a dispute relating to the interpretation, implementation or application of the Agreement or applicable NES provisions which does not relate to a particular Employee in writing with the University through the Chief People Officer (or delegate).

1.42.7.5 For the purpose of this clause 1.42.7 reference to "a reasonable timeframe" means five working days unless an extension of time is agreed to facilitate resolution of the matter.

1.42.9.1 If the grievance or dispute is unable to be resolved in accordance with clause 1.42.7, and without limiting the FWC's power to deal with disputes about statutory flexible work arrangements under the NES, a party to the grievance or dispute may apply to the FWC:

(a) for assistance to resolve the grievance or dispute through conciliation;

(b) to have the matter arbitrated if conciliation is unsuccessful.

1.42.9.2 The decision of the FWC will bind the parties to the dispute, subject to either party exercising a right of appeal in accordance with the FW Act.

1.42.9.3 Disputed Matters dealt with by the Dispute Committee as set out at clause 1.42.8 may not be referred to the FWC.

• [7] While I have taken some time below to properly characterise the dispute before me, it is plainly one arising from the application of the Agreement. There appears with no doubt that attempts were made to resolve the dispute as envisaged by the dispute settlement procedure No issue was taken as to the Commission's power to exercise the power to arbitrate the matter[2], and I have done so pursuant to clause 1.42.9.1(b) of the Agreement.

• [8] Clause 1.15.9 and 1.15.10 of the Agreement provide as follows:

1.15.9 Employees engaged in Casual or Fixed-Term employment will be provided prior opportunity to apply and be considered for vacant Continuing positions (where the Employee has the skills, experience, qualifications and expertise commensurate with the selection criteria) through the University's internal recruitment processes ahead of external recruitment. The University will apply all reasonable endeavours to select suitably qualified internal candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria determined by the University for the purpose of transferring existing Employees into secure work. Nothing in this clause inhibits the University from selecting the best candidate for the role.

1.15.10 In relation to managing Workload (as defined in clause 2.11 or 3.15 (as applicable)), the University will use reasonable endeavours to recruit for a vacant position in a timely fashion.

• [9] It is evident from the outset that whatever the obligation imposed on the University by the words "provided prior opportunity to apply and be considered", it only applies to a class of its employees - namely - employees engaged in casual or fixed term employment. A fixed term employee is not defined in the Agreement in strict sense, but this category of employment is dealt with extensively by clauses 2.6 and 3.10 of the agreement and, in essence, is employment for a specified period of time, for a specified task, project or purpose, a position required to backfill/accommodate a temporary absence or where work is not required on an ongoing basis for a period of not in excess of five years. A "Casual Employee" is defined at clause 4.1.2 where a feature of the nature of such an engagement is that an offer of employment is made with no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. In other words, the obligation arising from the clause, however characterised, does not apply in respect to part time or full-time employees. Fixed term and casual employment may be distinguished from full time and part time employment.

• [10] Much of the dispute before me appears to turn on whether clause 1.15.9 of the Agreement requires the University, when recruiting to a vacant "Continuing position", to first exhaust some kind of internal recruitment process before it advertises the vacancy externally and is thus not permitted to advertise for or interview external candidates until it completes the internal process. The NTEU put it this way:

"When both limbs are read together, it is clear that both the obligations within those limbs must be discharged before external recruitment can be initiated. It follows as a logical corollary that vacant continuing positions can only be advertised externally if internal applicants have not met the selection criteria for the vacant continuing position or the internal recruitment process has otherwise been exhausted (i.e no internal applicants are able to be appointed for the position) first. Only after the internal recruitment process has been exhausted, does the Respondent have the option of initiating a second recruitment round for external applicants."[3]

• [11] The University disagrees. It asserts that:

"For the reasons canvassed in these submissions, clause 1.15.9 simply requires the University to apply "all reasonable endeavours" to select internal candidates who:

(b) "have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction"; and

(c) "Satisfy the selection criteria [for a vacant position as] determined by the University".

However, those "reasonable endeavours" do not extend to require the University to conduct any process which excludes or deprives the University of the opportunity to advertise a vacant position to the external maker, or from otherwise recruiting external candidates for a vacant position ..."[4]

• [12] At my Direction, the parties in this matter attempted to agree on questions to be determined for arbitration but this proved not possible. The single question contended for by the University was:

"Does clause 1.15.9 of the University of Melbourne Enterprise Agreement 2024 require the University to commence and complete the internal recruitment and selection process for vacant Continuing positions ahead of initiating any external recruitment and selection process?"

• [13] The questions proposed by NTEU, to which the University did not agree, were[5]:

1. Does subclause 1.15.9 of the University of Melbourne Enterprise Agreement 2024 require the University to commence and complete an internal recruitment process (including application, interview and selection) for vacant Continuing positions ahead of initiating any external recruitment process?

2. If the answer to Question 1 is "yes", would the University have acted inconsistently with subclause 1.15.9 by implementing a single recruitment round for both internal and external applications, wherein both internal and external applicants are shortlisted and interviewed together?

3. Is there a separate and additional obligation in subclause 1.15.9 obliging the University to:

"apply all reasonable endeavours to select suitably qualified internal candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria determined by the University for the purpose of transferring existing Employees into secure work?"

4. Is the process (or processes) which the University has implemented to operationalise subclause 1.15.9 consistent with its obligations under this subclause?

5. What remedies, if any, does the Commission order to resolve the dispute?

• [14] In its written submissions, the University suggested that NTEU had attempted to expand the dispute to encompass a complaint made by Dr Jeremiah Brown in respect of the unsuccessful application he made for a Lecturer in Public Policy role[6]. In its Reply Submissions, NTEU said this was not the case, that it had not sought to expand the dispute to include Dr Brown, and that it had sought to lead evidence from Dr Brown as an example of how the University's incorrect interpretation of the clause is disadvantaging insecurely employed employees[7].

• [15] At the commencement of the hearing, I clarified with both parties that I was not being asked to arbitrate as to whether the University's failure to select Mr Brown for Lecturer Role was inconsistent with the Agreement or otherwise improper. Both parties agreed this was so[8].

• [16] Also at the commencement of the hearing, I queried with parties as to whether I was being asked to determine whether the University's "existing" approach to recruitment is consistent or not consistent with the clause at issue, as opposed to simply making a determination as to how the clause is supposed to work in terms of the University's recruitment processes. Both parties appeared to agree that I am being asked to determine whether the University's "current" approach to recruitment is consistent with the clause. Or as the University put it I am being asked to (1) first construe the clause, and then (2) examine the evidence that is before the Commission in respect of the University's current recruitment processes, "and determine, having regard to the proper construction of the clause, whether those processes are, in fact, compliant or not"[9].

• [17] There is some evidence before the Commission about the University's "current processes". None of this evidence was scrutinised, as no witness in this proceeding was subjected to cross examination by the other party. Ms McAllister is the Human Resources Director of the Faculty of Arts and Faculty of Fine Arts and Music for the University. Ms McAllister gave evidence that there are various different cohorts within the University that are subject to recruitment including Academics, Professional, Administrative and Support Occupations (PASO) and subject matter experts who may be engaged on a full-time, part-time, continuing, fixed-term or casual basis, and, the "particular recruitment process for each cohort can vary depending on the nature of the engagement"[10]. She also said that "recruitment at the University is "broad and varied"[11]. Ms McAllister set out in her Statement what she described as the University's "current process" for recruiting vacant continuing positions[12]. Ms McAllister also provided documentary evidence of various policies, procedures and advisory material apparently reflecting those processes. Some of that material was also provided by the NTEU, together with evidence which I took to be the processes relating to recruitment and selection as they are experienced in practice by the University's employees, such as Ms MacKenzie or Dr Brown.

• [18] It seems to me, if the Commission is being asked in this matter to determine whether the University's current recruitment practices are being conducted in accordance with the proper construction of clause 1.15.9, there is a paucity of evidence before me allowing such a determination to be made with any precision. Only one of the University's recruitment practitioners has given evidence - apparently a person working in a particular area (the Faculty of Arts and Faculty of Fine Arts and Music) - perhaps not at large across the University's various cohorts, and that person describes the University's practices as "broad and varied". There is some documentary material in evidence about the University's recruitment process which was not subjected to any scrutiny before me albeit there was some suggestion by the University that some of it may be outdated or has been replaced[13]. This material can be interpreted, although in the circumstances, an appropriate level of caution must be exercised. There is also some evidence from two of the University's employees of their own experience of recruitment as it happens - or has happened in the past. Taking into account this evidence and the submissions before me it would be an onerous task for the Commission to determine compliance with respect to the "broad and varied" recruitment and selection processes used by the University, both as they are understood to operate by those that operate them (such as Ms McAlister), by those in respect of whom they operate (such as University employees like Ms MacKenzie and Dr Brown) and the way they are expressed in the various documents before me. I consider this exercise to be beyond the scope of the Commission in this matter.

• [19] Having said that, it appears clear that all of the various expressions of the University's "current processes" are based on the notion it is permitted to advertise to and interview external candidates for continuing vacancy roles before it has extinguished an internal process of advertisement, consideration, interview and decision for such roles; and may simultaneously interview and assess candidates drawn both internally and externally. The NTEU's position, as I understand it, is that this approach will always be inconsistent with clause 1.15.9.

• [20] It therefore seems clear to me that to dispose of this dispute, I must at least determine whether the University is required, by operation of clause 1.15.9, when filling a continuing vacancy role, to advertise the role to internal candidates, consider internal candidates' applications and "determine them" before any external advertisement and subsequent interview of external candidates can occur. In this formulation "determine them" would mean forming a view either that the applications are dismissed as not appropriate for the role, or candidates are interviewed and dismissed as not appropriate, or a candidate is offered the job but does not accept it. As I understand it, the NTEU would contend that it is in these circumstances (and only these circumstances) that the University might then move to an external recruitment process.

• [21] However, it appears this would not be the end of the matter. The NTEU also contends there is a "separate and additional obligation" to "apply all reasonable endeavours" to select "suitably qualified internal candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria determined by the University"[14].

• [22] Because the University contends that it is entitled to conduct its recruitment process in a way that might involve it considering both internal and external candidates together, it contends that the meaning of this part of the clause is that if two candidates are under consideration - an external and an internal candidate that meets the description set out in clause 1.15.9 - and they are otherwise "identical in every material respect", and the last two candidates in the selection process, there is an obligation that the University select the qualifying internal candidate[15]. Presumably, the NTEU agrees with this contention - that if internal and external candidates can be interviewed together (a proposition it strongly contests) the "reasonable endeavours" requirement would operate to give preference to the internal candidate over the external one.

• [23] But the NTEU's primary submission goes much further than this. It says that after preferential and exclusive advertisement, "consideration" and interview, for employees who meet the criteria, the University is obliged to "make every effort that is reasonable in the circumstances" to give the qualifying internal candidate the job - and to do so before it is permitted to seek external applicants at all.

• [24] Taking these submissions into account, I consider it appropriate to note the somewhat invidious position the Commission is being placed in, if it is being asked to provide an exhaustive explanation as to the circumstances in which the University's obligation to apply "reasonable endeavours to select" will require it to give an applicant the job, and when it is not obliged to do so. The question simply cannot be answered definitively.

• [25] Taking all of this into account, I intend to arbitrate this dispute by providing answers to the following questions which I have formulated taking into account the questions submitted by the parties (about which they could not agree) and my characterisation of the dispute:

1. Does clause 1.15.9 of the Agreement require the University to commence the internal recruitment and selection process for vacant Continuing positions before it initiates any external recruitment and selection process (including before advertising the vacant Continuing position(s) externally)?

1. Does clause 1.15.9 of the Agreement require the University to complete the internal recruitment and selection process for vacant Continuing positions before it initiates any external recruitment and selection process (including by advertising the vacant Continuing position(s) externally) if a casual or fixed term employee who has the skills, experience, qualifications and expertise commensurate with the selection criteria applies for the job?

1. Does (and if so, in what circumstances does) clause 1.15.9 of the Agreement require the University to offer a casual or fixed term employee who is suitably qualified, who has been employed by the University over two or more semesters over two consecutive calendar years on a 0.5 FTE or more time fraction, and who satisfy the selection criteria determined by the University, a vacant Continuing position if they apply for it, in preference over another candidate who is not a casual or fixed term employee?

• [26] My answers to some of these questions may raise issues as to whether the University's existing recruitment practices are consistent with the proper construction of the clause. I expect that if this is the case, those practices, including their documentary expression, will be adjusted to reflect that proper construction. Indeed, in urging me against "getting into the reeds as to the drafting of particular policy documents" the University submitted before me that it would be sufficient, if I thought it appropriate, to identify in broad terms "deficiencies" in its materials, which it would then rectify[16]. To assist the parties, I intend to comment where it is obvious to me that existing processes appear to be inconsistent with my construction of the clause at issue, but do not intend to conduct a forensic examination of the University's existing recruitment practices in so far as there is evidence before me as to what those "broad and varied" practices are, and, for example, make orders about their form and content (such power being plainly discretionary)[17].

• [27] It is said by both parties that the principles that apply to the construction of enterprise agreements are well settled[18]. Both began by referring to the often cited passage in the Full Court of the Federal Court's decision in WorkPac Pty Ltd v Skene[19] (Skene) (references removed):

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement understood in light of its industrial context and purpose...." The words are not to be interpreted in a vacuum divorced from industrial realities, rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced."

• [28] Despite being apparently well-settled, a significant divergence between the parties appeared to arise in relation to the principles of construction relating to the extent to which I can and should have regard to evidence of the "surrounding circumstances": evidence as to the negotiations concerning the making of the agreement as they may relate to the question of whether a common understanding of the clause existed, and "post-agreement conduct".

The submissions about principles of construction made by the NTEU

• [29] In its submissions as to the principles to be adopted in the construction of the agreement, the NTEU emphasised Full Court's comments in Skene about the requirement to construe the ordinary meaning of the words of an enterprise agreement "read in whole and in context", using a purposive approach, not a narrow or pedantic one, mindful that the framers of an enterprise agreement were likely to have a "practical bent of mind" in the way the document was drafted[20].
• [30] Apparently central to the NTEU's submissions as to the approach I should take to the construction of the agreement are the principles set out in Automative, Food, Metals, Engineering, Printing and Kindred Industries' Union known as the Australian Manufacturing Workers Union v Berry Pty Limited[21] (Berri). It also referred me to the principles set out in James Cook University v Ridd[22] (Ridd).

• [31] It was on this basis that NTEU submitted the a purposive construction of the "plain and ordinary meaning" of clause 1.15.9 supports its contentions as to its correct operation, also taking into account that it is "placed amongst other obligations in clause 1.15 that foster security of employment and that encourage [the University] to utilise continuing employment"[23]. It also submitted variously that the manner in which the University contends the clause should operate would render it "inutile", or not conferring any benefit or entitlement, or being stripped of any operative work to do[24]. This line of submission is no doubt a reference to, for example, the principle identified in Berri - that in undertaking the task of construction, it may be inferred that an enterprise agreement is intended to establish binding obligations[25].

• [32] On the basis of its submission that the "plain and ordinary" meaning of clause 1.15.9 supports its contended for operation, and that it contains "neither ambiguity or uncertainty", NTEU submits that evidence of the "surrounding circumstances" as to the clause should not be "admitted"[26], or is "not needed"[27]. However, in the alternative, NTEU contends that if the Commission finds the clause is "ambiguous and/or capable of more than one meaning", it is entitled to take into account evidence that it has tendered as to the "surrounding circumstances"[28]. This submission also appears to be based particularly on the principles set out in Berri (to which I was taken by the Union).

• [33] I note that some of the evidence the NTEU asks me to consider (in the alternative), relates to the negotiations between the Union and the University concerning the making of the agreement and evidence about "post agreement conduct"[29]. The NTEU - again most particularly based on Berri - submits I am entitled to take all of this material into account in construing the clause[30].

The submissions about principles of construction made by the University

• [34] The University's submissions as to the correct approach to the construction of enterprise agreements also began with the comments of the Full Court of the Federal Court in Skene, which emphasise the contextual and purposive nature of the exercise[31].

• [35] With these principles in mind, the University also ask me to have regard to clause 1.15 and its subject matter generally, to provide context to the construction of the clause in dispute, albeit to support a different conclusion than that contended for by NTEU[32]. It also appears to invite me to consider the agreement as a whole, both in terms of what it does not say[33], and other examples of similar language used elsewhere[34].

• [36] With respect to the extent to which I can have regard to the "surrounding circumstances", in its written submissions, the University asserted there is "limited use to be made of the evidence of prior industrial history", particularly because clause 1.15.9 is a new clause and has not been previously included in an earlier enterprise agreement[35]. In oral submissions for the University, this submission was made somewhat more vigorously. Rather than "limited use", it was submitted the Commission should not have any regard at all to evidence of "common understanding" in circumstances where the clause at issue is new and has no earlier progenitor[36].

• [37] The basis of the University's submission in this regard was Gray ACJ's comments in SDA v Woolworths[37], where reference is made as to the appearance of a provision in a "series of agreements". His honour's comment in its entirety was[38]:

"Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. ... . It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning."

• [38] The University also contended that if the Commission is to consider evidence of "common understanding", in the case of an enterprise agreement, only matters which rise to the level that are "notorious or known", by those intended to be bound by the agreement - the employees (not the negotiators) - should be taken into account[39]. Heavy reliance in this regard was given to Colvin J's comment in Sheehan v Theiss Pty Ltd[40], where his honour said[41]:

"Therefore, peculiar contextual matters that may have been commonly known to representatives of Thiess and the Union when negotiating the terms of the Agreement are not matters to be brought to account. The Agreement is within the category of instruments where it is intended to apply to parties who were not participants in the process by which the terms of the instrument were formulated. In such cases it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of mattes that would be notorious or known to those intended to be bund by the instrument who did not participate in the negotiations or dealings by which the terms were formulated."

• [39] The novelty of clause 1.15.9, as compared with previous agreements covering the University is also apparently the basis upon which it opposes the NTEU's contention that, if the clause is ambiguous, regard may be had to what is commonly described as "post contractual conduct". In this regard, emphasis was placed by the University on the final sentence of "point 15" in Berri where while the Full Bench appears to confirm that in some circumstances subsequent conduct may be relevant to the interpretation of an industrial instrument, "post agreement conduct which amounts to little more than absence of a complaint or common inadvertence will be insufficient to establish a common understanding"[42]. The University argued that in this phrase, the Full Bench was adverting to Gray ACJ's comments in Woolworths, said by the University to be authority for the proposition that it only where a clause has an earlier history can regard be had to the surrounding circumstances, and, apparently by consequence, post-contractual conduct.

• [40] In my view, the University contends for an overly restrictive application of the comments made by Gray ACJ in Woolworths. In the decision, his honour emphasises, as he did in a line of authority, the caution which must be applied when any regard is had to evidence said to be of a "common understanding" between parties to an agreement. References to a "series of agreements", or, as his honour put it in Health Services Union v Ballarat Health Services[43], where terms "have been repeated in successive instruments" are to a kind of circumstance in which it may be that more confidence might be had that the evidence is indeed reflective of common understanding. But these comments are cautionary, not prohibitive. It is conceivable that evidence of surrounding circumstances might show a common understanding existed between the parties even where a clause is new. It is also conceivable that evidence relating to the creation of a new clause may be more reliable than evidence relating to an earlier version[44]. The point is, caution must be exercised[45].

• [41] Similarly, I do not agree that in respect to enterprise agreements made under the Act, regard may never be had to the conduct of the negotiating parties, and only matters known or notorious to the employees to be covered by the agreement (as opposed to the negotiators) may be considered. The comments relied upon made by Colvin J in Theiss were later considered by Wheelahan J in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd (T / A Yarra Trams)[46] who in my view, captured his honour's comment in better context than the manner in which it was put before me[47]:

"The reasons for caution before regard may be had to a suggested common understanding commence from the premise that it is the instrument itself that is to be construed, and any recourse to industrial practices said to amount to a common understanding are no more than part of the context in which the text of the instrument is to be construed. Industrial practices do not take the place of the terms of the instrument. There is also the need to maintain coherence with other principles, including that: (1) usually, recourse to extrinsic matters cannot displace the clear meaning of text; (2) the subjective understanding of individuals is rarely relevant to objective meaning; (3) this is also the case in relation to collective agreements where surrounding circumstances might have to rise to the level of being notorious or known by those intended to be bound by the instrument (Sheehan v Thiess Pty Ltd at [22] (Colvin J)); and (4) parties cannot by words or conduct contract out of, or waive the terms of an enterprise agreement, which has statutory force ...".

• [42] I note in that decision, Wheelahan J went on to consider an exchange of correspondence between the Union negotiators and the Respondent, relating to the negotiation of the clause in question although did not accord it much weight[48].

• [43] The core point made by the University is however well-established. Consideration of evidence of surrounding circumstances, whatever it may be, must be limited to that which may tend to establish objective background facts known to the parties, and not evidence of the subjective intentions of the parties, even if the evidence relates to what that party hoped, intended or expected at the time the agreement was made[49].

• [44] Thus, while evidence in relation to the nature of the negotiation that occurred between what will often be a Union bargaining representative and an employer may be considered, if it is evidence about what the Union hoped or thought it had achieved by managing to convince an employer to agree to something, it will often not be of assistance. Further, the consideration of evidence of this kind must bear in mind that, under the scheme of the Act as it now exists, the Union negotiator (using this example) is not a party to the agreement - the agreement is made by a vote of the employees who will be covered by it. Again, in my view, this does not prohibit the consideration of such evidence, but it may often mean it is of dubious assistance[50].

• [45] In the same vein, while consideration may be given to evidence about how the parties approached a provision of an enterprise agreement after it was made, to aid the resolution of ambiguity in language to the extent that it illuminates the common understanding of the parties, extreme caution must be exercised. While it might be said that a party who enters into an agreement based on a common understanding with the other party should not, in a general sense, be permitted to resile from that understanding, the circumstances in which, based on evidence of the surrounding circumstances it can be said with confidence this is so are limited[51]. As Gostencnik DP said in Transport Workers' Union of Australia v Jetstar Group Pty Ltd[52]:

"There are several difficulties in accepting evidence of conduct after the Agreement was made in construing the meaning and effect of the disputed provisions. First, the evidence is limited because it is evidence of the experience of one casual employee and says nothing about Jetstar's practice more generally. Second, as Gray J explained in Shop Distributive and Allied Employees' Association v Woolworths Limited a difficulty in relying on evidence about the conduct of an employer to establish a common understanding is the absence of any explanation for the conduct. The reason for the conduct might have been 'inadvertence on the part of those responsible for making the payments', or an 'act of generosity on the part of the respondent, from which it has now resiled.' The mere fact that something was done in the past is not "evidence of a settled interpretation, of which the parties had a common understanding".

The principles I will adopt to construe the clause

• [46] Taking into account the submissions of the parties, I remain of the view that the principles set out by a Full Bench of this Commission in Berri, reflected as they are to some extent in Ridd, are an appropriate guide as to the construction task before me. While I have considered each of those principles, taking into account the submissions of the parties and some of the other authorities, the particular formulation of several of them as they apply to this matter are as follows:

• a. I must first begin with the meaning of the ordinary meaning of words of the clause. The construction exercise is a purposive one, and not a narrow or pedantic one, taking into account that the framers of an enterprise agreement were likely of a "practical bent of mind"[53] and so construction should not occur in isolation from the context in which the words are used and the purpose for which the words were apparently chosen[54]. For example, where a provision such as clause 1.15.9 contains the words "for the purpose of transferring existing Employees into secure work" such words are of assistance in construing the words of clause to give effect to their intended meaning.

1. The context of the clause, taken from the text of the agreement viewed as a whole, its place and arrangement in the agreement and the legislative context under which it was made and which it operates should be considered. Accordingly, as both parties submitted that I should do, I intend to have regard to the entirety of clause 1.15 and the agreement viewed as a whole.

• c. The task is to interpret the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferable outcome[55].
• d. An important matter of context in construing an enterprise agreement is that it is natural to suppose the parties intended to create binding and enforceable obligations[56].

• e. Where the language under consideration is ambiguous or susceptible of more than one meaning, regard may be had to evidence of surrounding circumstances tending to establish objective background facts. "Surrounding circumstances", may include, among other things, evidence of the negotiations about the agreement between the negotiators[57]. I do not agree with the submission made by the University, that when considering a brand new clause, the Commission is never entitled to have regard to the surrounding circumstances, such as evidence about the negotiations, to assist in the construction of a clause or provision that is cast in terms capable of more than one meaning.

1. Caution must be exercised in having regard to evidence of surrounding circumstances, such as evidence as to what was said and done during the negotiations over the making of the agreement, particularly taking into account that an enterprise agreement is "made" as a result of employees providing their genuine agreement to it by voting for it. Evidence of surrounding circumstances of a subjective nature, such as evidence about a party's actual intentions and expectations is not relevant.

1. In limited circumstances, regard may be had to post-agreement conduct to aid the construction exercise but only to assist in ascertaining the common understanding of the parties. A party should not be permitted to resile from obligations it took on in making an enterprise agreement, but in its post-agreement conduct, it may act inadvertently or in an "overly generous" manner. Thus, if I am told the University's conduct post the making of the agreement was consistent with what the Union thought was agreed to, the question is whether this shows "common understanding" or was engaged in for some other reason.

Consideration of the ordinary meaning of the clause and the question of ambiguity.

• [47] It is necessary that I begin by attempting to construe the clause with regard to its ordinary or plain meaning. It may be that from this analysis, ambiguity emerges. In this matter, I consider there are indeed several aspects of clause 1.15.9 that might be attributed with more than one meaning.

• [48] The clause begins by providing that employees engaged in casual or fixed term employment will be provided "prior opportunity" to "apply" and "be considered" for vacant continuing positions, where they have the skills, experience, qualifications and expertise commensurate with the selection criteria for the role, through the University's internal recruitment processes, "ahead of external recruitment".

• [49] The words "prior opportunity" and "ahead of external recruitment" might be said to involve the kind of preferential exclusivity for internal applicants the NTEU contends for. Or they might mean the external process can start before the internal process is finished, provided the internal process commences first. This appears to me to be the first obvious element of ambiguity in the clause.

• [50] The "prior opportunity" afforded to employees is not just to "apply" for the job. It is also to "be considered" for the job. This might mean "considered" such that a decision can be made as to whether they should get the job or not (usually in recruitment processes such a decision is aided by the conduct of an interview, and sometimes other processes such as referee checks or other analysis). Alternatively, "considered" might mean something akin to the application being the subject of a preliminary but not determinative consideration or "vetting" before the process continues. A second element of ambiguity emerges.

• [51] The clause then requires the University to "apply", "all reasonable endeavours", "to select" suitably qualified internal candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE time fraction or more, and who satisfy the selection criteria determined by the University for the role.

• [52] While the application of "reasonable endeavours" might lead to a wide variety of different outcomes depending on the circumstances, this language is perhaps less ambiguous than other parts of the clause. The concept of the application of "all reasonable endeavours" is a familiar mechanism used in enterprise agreements, and in a range of obligatory settings, used to "condition the extent of an obligation to the prevailing circumstances"[58]. Plainly, the University is not obliged in every case to give the qualifying employee the job. Equally plainly however, there will be circumstances in which it is unreasonable that a qualifying candidate not be "selected" and in these circumstances the University's failure to do so may well place it in breach of the clause. What is "reasonable" will depend on the circumstances, but the word has a plain meaning.

• [53] At the heart of this dispute is however the temporal nature the obligation to "apply all reasonable endeavours to select". With respect to the meaning of "prior opportunity to apply and be considered", does the application of reasonable endeavours to select arise before external candidates can be sought, or can it occur simultaneously with their consideration?

• [54] It is appropriate at this point to look at the apparent purpose and context of the clause. Within its own text are the words "for the purpose of transferring existing Employees into secure work [my emphasis]". These words are attached to the end of the second sentence of the clause, which contains the "reasonable endeavours" obligation. Occasionally, in the submissions before me, the NTEU in particular sought to sever, to some extent, the first two sentences of the clause as part of its analysis, characterising them at times as "limb 1", "limb 2", "limb 3" and so on. However I consider that words "for the purpose of transferring existing Employees into secure work" indicates the purpose of the clause as a whole, not only the "second limb" (noting that the term "secure work" is itself an often an elusive concept).

• [55] The University submits that the clause's place in the arrangement of the agreement support its contentions as to how the clause should be construed. It points out that the clause in contention is a sub clause of clause 1.15 of the Agreement, itself entitled "Workforce Planning". It notes that clause 1.15.1 provides that it is the University "at its discretion" that "determines the nature, number, mix and tenure of positions within the University" and that nothing in clauses 1.15.1 - 1.15.8 compels the University to hire any particular person, or engage any particular type of employee.

• [56] To an extent, these submissions suggest the clause sits within the context of managerial prerogative, as opposed to managerial compulsion[59]. However, this submission does not give due regard to several aspects of the clause's context and apparent purpose.

• [57] Several aspects of the clause within which clause 15.1.9 of the Agreement is placed (clause 15.1) contain "acknowledgements" which appear to have little more effect than to provide context for what rights and obligations are created by other aspects the clause. However, these "acknowledgements" are illuminating. Clause 15.1.2 provides that the University acknowledges "where appropriate, Continuing employment shall be the preferred option for the engagement of new Employees under the Agreement". Clause 1.15.5 provides the parties "acknowledge" the "significant investment and outcomes achieved by the University prior to the" commencement of the agreement "in the reduction of our reliance on Casual employment" (which is then quantified). Clause 1.15.6 provides the parties "acknowledge" a "shared objective throughout the life of the Agreement to achieve viable and sustainable engagement of the Core Workforce Baseline" (which is thereafter defined).

• [58] The clause also creates apparent obligations. Clause 1.15.5 also provides within the context of the various "acknowledgements" that the University is obliged to continue to apply all reasonable endeavours to reduce the FTE proportion of Casual and Fixed Term employment.

• [59] Clause 1.15.6 also obliges the University to "apply all reasonable endeavours to achieve a Core Workforce FTW of 75% or more of the total FTE of the Core Workforce and Flexible Workforce combined, averaged on an annual basis across the casual year, and where practicable and/or viable grow Continuing jobs during the life of the Agreement with the intent to also increase the proportion of Continuing employment FTE within the Core Workforce Baseline in comparison to Fixed-Term employment.

• [60] The strength of this obligation is perhaps underscored by clause 1.15.8, which provides that if there are exceptional and unanticipated adverse impacts upon the University's financial circumstances, the obligations in clause 1.15.6 do not apply. Otherwise, they do apply.

• [61] As mentioned above, clause 15.1.9 itself provides that it is for the "purpose of transfer existing Employees into secure work". In the context of clause 15.1 itself, I consider it likely "secure work" in this regard means employment of a kind described as the "Core workforce" - namely, continuing employment or fixed term employment with a duration equal to or greater than 18 continuous months, and that is not casual[60].

• [62] Further, the clause seems plainly to apply some kind of imposition upon what would ordinarily be an unfettered managerial prerogative for the University to hire into a vacant position any person it wishes. The scope of that imposition is what has brought the parties to dispute. But, to the extent the University claims the context of the clause supports a construction that is such that it retains the right to "determine the nature, number, mix and tenure of positions with the University" on an unfettered basis, I disagree.

• [63] I am fortified in this view by having regard to the limited class of persons upon whom benefit, of some kind, is purported to be conferred by the clause. The clause gives preference only to casual employees or fixed term employees, and then, in regard to "selection", only to employees with extended tenure and hours of work - at least two or more semesters, over two consecutive calendar years, working at least fifty per-cent of the full time load.

• [64] The purpose of the clause seems to me to be to achieve conversion or transfer to "continuous employment" for more internal University employees who are casual or fixed term than would otherwise be the case, if the clause did not exist. It should therefore be construed with respect to that purpose.

• [65] Emphasis was placed by the University on the final sentence of clause 1.15.9, which provides that nothing in the clause "inhibits the University from selecting the best candidate for the role". The University submits that this part of the clause "makes clear" that it's "reasonable endeavours" do not need to extend so far as to deprive it of the opportunity to advertise a vacant position to the external market[61]. It also appeared to be said that the words "nothing inhibits" are so emphatic as to overwhelm any other obligation created by the clause such that in the end, it can choose whichever person it prefers for a role from the world at large[62]. This might be the import of those words, or they may simply mean that of the candidates before the selector (which may be limited to internal candidates if the NTEU's construction is preferred), the best of those candidates should get the job. Further ambiguity arises.

• [66] Having found, as I have, that the clause is ambiguous or susceptible of more than one meaning in several respects I may have regard to evidence of the surrounding circumstances, if it assists me.

• [67] I will say at the outset that to a large extent I find the evidence does not assist me. The evidence given by Ms McAllister, for the University, is not proffered as evidence of the surrounding circumstances - but rather evidence of how the University approaches recruitment now (at least in Ms McAllister's area). The evidence of Dr Brown, as I observe below, is largely an "example" of very dispute before me, where the University took an approach to recruitment the NTEU (and Dr Brown) say is not consistent with the clause. The evidence of Ms MacKenzie and Mr Debets is, to a large extent, evidence of what they and Union intended, understood and even hoped they had achieved from the clause, whether or not that understanding was shared by the University. I have given regard to each witnesses' evidence, and will deal with each in turn below, but do not intend to traverse every aspect of that evidence given its limited utility.

• [68] Ms Mackenzie filed a Witness Statement and a Supplementary Witness Statement in these proceedings. Ms Mackenzie works at the University as the School Operations Coordinator in the School of Culture and Communication. She is an NTEU member and the University of Melbourne Branch Vic President (General Staff) of the Union. She was also part of the "bargaining team" during negotiations about the Agreement from during the second half of 2023, until the end of that year, and attended meetings at which what became clause 1.15.9 was discussed between the University and NTEU representatives, and was privy to communications between the bargaining representatives about the creation of the clause and the eventual Agreement.

• [69] Ms Mackenzie said that her "recollection of the clause during bargaining" was that "the NTEU was very clear that the aim of the clause was to give opportunity to current precariously employed staff to find continuing employment with the University", and the NTEU bargaining team "made clear" "we did not want a tick-box exercise and that our members would only accept a meaningful pathway for precariously employed staff into continuing employment to accept the agreement"[63]. Ms Mackenzie said she took notes during some of the bargaining meetings she attended in relation to negotiations for the Agreement and provided some of those notes in evidence[64]. These notes deal only relatively briefly with clause 1.15.9 as it continued to evolve during the negotiations.

• [70] I consider this evidence provides me with little assistance in this matter. It lacks specificity and appears to relate perhaps to Ms Mackenzie's impression of the Union's subjective hopes or aspirations in relation to their proposals. To the extent it assists to construe the purpose of the clause in question, it does not take me further than what the clause itself already says: "for the purpose of transferring existing Employees into secure work".

• [71] As I understood her evidence, Ms Mackenzie asserts that the University's initial approach to the application of clause 1.15.9 was more consistent with her own understanding as to how the clause was supposed to (or she hoped) would operate. In particular, Ms MacKenzie said she received a message from the talent acquisition manager from her team, Ms Gencic in April 2024 which she provided in evidence[65]. This document said, among other things that "...after seven days of internal advertising, current casual or fixed-term employees of the University will be provided with prior opportunity to apply for and be considered for vacant continuing positions if they meet the following criteria ..". Presumably, Ms MacKenzie interpreted this to mean that such persons would be provided with a discrete recruitment process before other applications were called for, but, in the absence of Ms Gencic's explanation (who did not give evidence in this matter), one cannot be entirely sure.

• [72] In June 2024, Ms MacKenzie explained a document was circulated by the University called an "Assessment Panel Report", apparently for the purpose of being used by an Assessment Panel Chair or hiring manager to "ensure compliance with the Recruitment and Appointment Policy". In its "checklist" it asked for confirmation that if the role was a continuing one, the Assessment Panel "has first assessed only Priority Candidates for the role (candidates eligible under clause 1.15.9 of the Enterprise Agreement and redeployment candidates) including shortlisting and interviewing as required, before assessing any internal or external candidates"[66].

• [73] I suspect that for Ms MacKenzie, this document contained even more promise as to the possibility that her understanding as to how the clause would operate was in accord with the University's. Most particularly it appears to require more than just vetting of qualifying internal candidates before assessment of any other internal or external candidates is permitted - they must also be shortlisted and interviewed as required. This seems more aligned with what the NTEU says is required from the clause.

• [74] Ms MacKenzie's evidence then goes on to assert that the University changed this initial approach to the application of the clause. Ms MacKenzie provided a copy of an MS Teams message sent by Ms Gencic on 20 June 2024. Ms MacKenzie said "we" were sent the message - it was not clear who "we" referred to - but I consider it safe to assume, at least, that the message was sent by Ms Gencic to Ms MacKenzie. The message said "after careful consideration of the Priority Candidates who meet the skills, experience, qualifications, and expertise commensurate with the selection criteria, a hiring manager could request to "test the field" by assessing both internal candidates (initially identified by Clause 1.15.9 and other internal candidates) and external candidates. We will require a written confirmation for this request. This offers the opportunity to determine the best candidate for the role through a competitive selection process.".

• [75] On 6 September 2025, Ms Mackenzie attended a meeting with Ms Gencic. Ms Mackenzie said "we were advised that the process relating to clause 1.15.9 was changing due to push back from some Faculties (including Faculty of Science, who were specifically named)"[67]. Ms Mackenzie relayed information about what Ms Gencic said to Mr Debets, NTEU Senior Industrial Officer on 10 September 2024 in an email provided in evidence, which said:

"... My team had a briefing from Talent Acquisition this week (who look after recruitment) about the new process for priority internal candidates. It's pretty worrying. They have advised that the changes are:

• Priority internal candidates will now have the full advertising period to submit their application
• The jobs will be advertised externally and priority internal applicants can apply
• Previously the process was that Talent Acquisition (TA) would send a bulk compile of all the priority internal candidates received after the 7 day window. The Chair of the panel would have to review them all and provide written feedback on whether they do/don't meet all the selection criteria. Only if all priority internal candidates did not meet the selection criteria, and that written feedback was return to TA, would they then release the bulk compile of external candidates to the panel (once the advertising period closed).
• Now, TA have advised they will send both bulk compiles at once. This means that panels will have access to the list of external candidates at the same time as they are supposed to review the priority internal candidates. The advice to panels will be 'don't look at the external candidates until you complete the assessment of priority internal candidates'. Which is to say, there is no control of that conflict of interest and no way of ensuring in any process that the panels have not opened the external candidate list before reviewing the priority internal candidates.
• We have also been advised by Arts that only the panel chair needs to undertake the assessment of priority internal candidates - we are waiting of official advice from TA about whether this is ok."

• [76] I have no doubt Ms Mackenzie (and perhaps others) were told by Ms Gencic of a "change" in the University's process on 6 September 2024 (Ms Mackenzie's account is later reflected in her email to Mr Debets). But Ms Gencic did not give evidence in these proceedings.

• [77] In her absence, it is difficult to attribute precise meaning to matters such as the nature of the "change" in the University's practices she may have been referring to. Similarly, her advice that a hiring manager would be permitted to "test the field" cannot be interrogated for its relevance to the task before me. As the University submitted, I consider I must treat this evidence with caution, in so far as it is said to be evidence that the University's current approach to recruitment is not the same is its initial approach, after the Agreement was approved - this initial approach being said by NTEU to be more consistent with its preferred construction of the clause and thus evidence of "common understanding" between the parties.

• [78] As the year 2024 continued, Ms MacKenzie, and as she and her NTEU counterparts continued to agitate the matter, it became evident that the University's approach was not consistent with what she understood it to be initially, and not consistent with her original understanding as to how clause 1.15.9 was to operate. Her concerns were reflected in University guidance material which she became aware of, such as a version of a "Knowledge Based Article" which appeared to allow both internal "priority" and external applicants to be considered for shortlisting in the same meeting of hiring managers or selection committee members[68]. Ms MacKenzie continued to agitate her concerns about these perceived errors in the process, and her and the NTEU's efforts in that regard culminated in the dispute that is before me[69].

• [79] Ms MacKenzie filed a supplementary witness statement. Again, this evidence was not challenged, and very little was said about it in submissions. The evidence in this Statement as I understand it is that recently, Ms MacKenzie made her own enquiries in relation to a position advertised by the University as a vacancy, which appears to be a "continuing position". Through these enquiries, Ms MacKenzie discovered that the role was being advertised through the University's internal mechanisms - to potential internal candidates - and externally, through the platform "Seek". It was not clear to me from the evidence whether the internal job advertisement had been displayed for at least five days before the Seek advertisement began to be displayed (consistent with what I understand to be the University's stated usual practice). In any event, if Ms MacKenzie's research is correct, the external advertisement was placed at least before the internal recruitment process had been concluded - and in that sense "simultaneous" with that internal process. NTEU said that this was another example of the approach of the University not being in accordance with its view of the proper operation of the clause[70].

• [80] Dr Brown is a researcher, and lecturer in public policy at the University. In mid-October 2024, Dr Brown applied unsuccessfully for a position as a continuing lecturer in public policy. In his evidence, it appeared Dr Brown asserted that he had the qualifying characteristics identified in clause 1.15.9 - he was a casual or fixed term employee, and had been employed by the University for over two or more semesters, over two consecutive calendar years on a 0.5 FTE or more time fraction. As the evidence was not contested, I accept this was indeed the case.

• [81] It was unclear to me whether Dr Brown was afforded the opportunity to submit his application for the vacant lecturer position before external applicants had been called for. In any event, he was shortlisted against three other candidates, two of whom were external candidates. He knew, from the nature of the way his interview was scheduled that the process involved each candidate being interviewed consecutively by the same panel. In the end, an external candidate was offered the job[71].

• [82] Dr Brown believes he met the selection criteria for the role. He also believes - because someone told him - that the interview panel were directed to treat each of the candidates the same - and felt that the nature of the interview conducted with him gave no regard to his assumed status of a "priority candidate"[72].

• [83] NTEU submitted Dr Brown's evidence displays how the University has acted "inconsistently" and inequitably in relation to the shortlisting of "priority candidates"[73]. It was also said to be an "example" of how the University's interpretation of the clause is disadvantaging employees[74].

• [84] The University submitted Dr Brown's evidence is "entirely irrelevant" to the construction task before the Commission[75]. It accepts Dr Brown, an internal candidate, was interviewed together with external candidates - an approach NTEU says is not permissible under clause 1.15.9. But it says, in effect, this does not take the Commission anywhere because the University concedes this is how it has been approaching recruitment, and considers it is entitled to do so, and is not acting inconsistently with the clause[76]. It says Ms McAllister's evidence confirms this and is in any event a more current account of the University's practices.

• [85] Dr Brown's evidence can be reduced to two fairly straightforward propositions. First, that the University has in the past (and, as I understand it, continues) to allow for external applications for continuing positions to be made before it has completed the consideration of internal applications, including ones meeting the criteria set out in clause 1.15.9. Second, that the University might, even when confronted with an external candidate and an internal candidate apparently meeting the criteria set out in clause 1.15.9, give the job to the external candidate.

• [86] As I understand it, the University does not cavil with either of these two propositions. It is why there is a dispute before me.

• [87] In any event, the evidence does not assist me with the construction task. It is, as the NTEU itself put it, simply an "example".

• [88] I note for completeness that Dr Brown gave brief evidence as to his recollection as to the adoption in the Agreement of a "preferential hiring clause". He said it was recognised as a "significant moment" when the University agreed to clause 1.15.9[77]. For similar reasons I mentioned above, I do not consider this evidence assists me in construing the clause.

• [89] Mr Debets is a Senior Industrial Officer with NTEU and was the chair of the NTEU bargaining team and lead negotiator for the Agreement for the majority of bargaining[78].

• [90] Mr Debets gave evidence which indicated that from the commencement of the bargaining process to make the Agreement, "job security" including a proposition that a new agreement include a right for fixed term and casual staff to be able to convert to continuing employment, was a key aspiration for the Union[79]. In Augst 2023, some NTEU members took protected industrial action in support of a "job security target"[80]. Eventually, the Union tabled a proposal for a "preferential hiring clause" relating to "insecurely employed employees"[81]. The text of this clause was the subject of typical bargaining "back and forth" between negotiators and took on a number of iterations[82]. It eventually evolved into what became clause 1.15.9[83].

• [91] After explaining how the clause evolved and was settled, Mr Debets' explained in his evidence what his understanding of the clause was[84]. Mr Debets said, among other things, that he understood the clause to mean that internal candidates would get "the benefit of their own, initial, discrete , hiring round" and those candidates who satisfied the service requirement would be "owed reasonable endeavour's to select them without the University being able to test the market for external candidates"[85].

• [92] In his account, he gave evidence on occasion of what he said he said or "communicated" to University negotiators[86]. His evidence as to the evolution of the clause also appears to invite me to, by implication, deduce that because of the University's initial opposition to the adoption of particular language and then its decision to later adopt that language (or language said to be of similar import), that its "understanding" aligned with his.

• [93] I consider Mr Debets' evidence in this regard amounts to nothing more than an explanation as to the evolution of the text I am required to interpret and his understanding of what it meant provides no reliable insight into what the University understood the clause to mean, short of the fact that it ultimately agreed to that text.

• [94] In reaching this finding, I have taken into account NTEU's Submissions in Reply, in which it further expands on the process by which the "back and forth" regarding the drafting of the clause occurred[87]. I have also taken into account the submission made, that I should draw an adverse inference against the University who did not call as witnesses any of the people involved in that negotiation with Mr Debets and others[88]. I do not consider it appropriate to draw such an inference. The University, as I understand it, contends that the construction of the clause should be conducted based on its plain and ordinary meaning, and is not ambiguous. Even the clause is ambiguous, the University contends (for the reasons explored above) that I should not have regard to evidence of what occurred in the negotiations over the clause, whether from Mr Debets or, presumably, anyone else (including its own negotiators). In these circumstances, it is not appropriate to infer its failure to call its negotiators as witnesses would not have been beneficial to its argument.

• [95] Mr Debets gave evidence as to his initial formulation as to his understanding of what had been agreed to, and the University's, by reference to his own and the University's explanatory notes, distributed to employees in late 2023 and early 2024 respectively[89]. Both of these statements seemed to be to be largely a re-statement of the text of clause 1.15.9 and I did not consider they provided any particular insight into either party's common understanding as to the aspects of the clause at issue before me.

• [96] Mr Debets did not give evidence as to how the University approached recruitment following approval of the agreement in April 2024. He said he first became aware that the University may not have been implementing recruitment processes which were consistent with his view of how clause 1.15.9 should operate from June 2024 onwards and described his own and others' efforts to dispute those practices[90]. He explained how ultimately, those efforts eventuated in the dispute before me[91].

• [97] As I mentioned above, in her evidence (which was not contested) Ms McAllister explained recruitment at the University is "broad and varied" across a range of different cohorts.

• [98] The University submitted that Ms McAllister's evidence as to the recruitment process was "current" and thus should prevail over, for example, formulations relating to earlier periods of time (such as the experience of Dr Brown)[92]. NTEU appeared to accept that Ms McAllister's account is, at least "what she believes to be the case" and did not contest it. As I understand it, Ms McAllister's evidence is accepted as an accurate account as to how the University is currently approaching recruitment including, in the light of clause 1.15.9[93].

• [99] Ms McAllister explained the recruitment process is governed by a "Recruitment and Appointment Procedure" (the Recruitment Procedure) which was provided in evidence[94]. Ms McAllister made reference to that document in her explanation of the process.

• [100] The first step, as explained by Ms McAllister is that it is established, pursuant to various internal considerations, that a position is vacant.

• [101] Secondly, the vacancy is advertised, pursuant to an advertising strategy created in conjunction with an area called "Talent Acquisition". Clause 2.2.1 of the Recruitment Procedure envisages various considerations will be involved in developing the strategy, including whether overseas candidates will be eligible to apply, whether advertising copy promotes the University's commitment to diversity and the timing of the advertising campaign. It also provides that a vacant continuing position covered by the Enterprise Agreement must be internally advertised, consistent with a different section of the Recruitment Procedure - clause 5.3.2. Clause 5.3.2 provides that a vacant continuing position covered by the Enterprise Agreement must be internally advertised "for a minimum of 5 business days"[95].

• [102] Thirdly, in the case of "a vacant continuing position covered by the Enterprise Agreement", the internal applicants are "assessed by the hiring manager or nominated delegate". Ms McAllister said this can in some cases occur alongside the Assessment Panel[96]. At this point, according to the Recruitment Procedure, "feedback to internal applicants needs to occur prior to advertising externally".

• [103] I note that at this point, according to the Recruitment Procedure, it appears that for a vacancy of this kind, external advertisements are not yet permitted.

• [104] The "feedback" which the Recruitment Procedure requires occur "should consist of":

1. For unsuccessful candidates - that their application did not meet the selection procedure and will not be progressing; or

1. For successful candidates, their application will proceed to the next phase of the recruitment process, which may or may not include further shortlisting or an invite to an interview.

• [105] At this point, the consideration which occurs (by the hiring manager, nominated delegate and/or perhaps the Assessment Panel) was described by Ms McAllister as relating to "whether the position will need to be advertised externally to broaden the field of candidates in order to find the best candidate for the role", "based on the strengths of the internal candidates"[97]. The Recruitment Procedure says at this point "it will be determined whether there is a need to advertise the position externally".

• [106] Ms McAllister said that sometimes, a decision will be made at this point not to advertise the role externally (and gave examples of when that has happened)[98]. However, it was clear from her evidence (and from the Recruitment Procedure) that sometimes a decision will be made to advertise externally, at this point[99].

• [107] This appears to be so regardless of whether any of the internal applicants have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction (where obviously, they satisfy the selection criteria because at this point their application has not been dismissed).

• [108] Fourthly, in circumstances where external applications are called for, once external applications are received, there will be a decision as to whether any external applications should be shortlisted. Some may be discarded[100].

• [109] Fifthly, the candidates - both internal and external - will be assessed. Various assessment methods may be used, although it appears in particular, interviews will usually be conducted[101].

• [110] Sixthly, as Ms McAllister describes it, then "the Assessment Panel will conduct interviews with internal and external candidates and make an assessment on the best candidate for the role".

• [111] In her evidence, Ms McAllister also referred to a number of other documents, provided in evidence, including the University's "Recruitment and Appointment Policy"[102], "HR - Prior Opportunity Clause Operationalisation (POCO) - 1.15.9" (described as the "Knowledge Based Article")[103] and "Information Guide - Prior consideration of internal applicants"[104].

• [112] I was not taken specifically to any particular aspect of these documents in any submission made before me by the University. I do however note that it does not appear in any of these documents there is any reference provided as to the concept of there being applied "reasonable endeavours to select suitably qualified internal candidates who have been employed by the University over two or more semesters, over two calendar years, on a 0.5 FTE ore more time fraction". In so far as these documents describe the University's current process to recruitment, there appears to be no procedural direction as to the application of "reasonable endeavours to select" qualifying candidates at all.

• [113] Ms McAllister also referred to and exhibited a document called "Prior consideration of internal applicants under clause 1.15.9 of the 2024 Enterprise Agreement Frequently Asked Questions"[105]. Again, there were no submissions made in relation to this document by the University. This is the only one of the University's procedural documents provided by Ms McAllister that references the "reasonable endeavours to select" language, albeit only in the form of a simply re-statement of the words.

• [114] Where these documents were not the subject of any particular scrutiny before me, I will tread carefully in terms of making assumptions as to what it may mean. I note however that it appears to address a change to the process adopted by the University in relation to the application of clause 1.15.9 that has occurred at some point. It references "updating the process", and "making a change". It says:

"The previous process was built based on a misunderstanding of the primary obligations created by 1.15.9. This includes an artificial "priority applicant" construct, and a belief that to "consider" internal applicants requires a full selection process for those internal applicants, as opposed to a high-level vetting process, as was intended".

"The new process provides an opportunity for internal employees who apply for continuing positions to have their application reviewed prior to external advertisement ...

Based on feedback from staff, supervisors and Human Resources team, the new process will provide genuine prior consideration of all casual and fixed term applicants before external candidates. The previous process was complex and has resulted in an administrative burden".

• [116] I note finally that several of the documents provided by Ms McAllister fortify my view that purpose of clause 1.15.9 is, as I have characterised it above, to achieve conversion or transfer to "continuous employment" (sometimes referenced by the phrase "secure work") for more internal University employees who are casual or fixed term than would otherwise be the case, if the clause did not exist. In the "Knowledge Base Article" referencing clause 1.15.9, the University's commitment to "growing the number of Continuing jobs, and to increase the proportion of Continuing employment FTE in comparison to Fixed Term or Casual employment is described as a "shared objective". In the Information Guide, "benefits" (of clause 1.15.19) are said to include "more secure work for internal employees".

• [117] For the reasons outlined above I consider I can have regard to these extraneous materials to assist in determining common understanding of the parties, to resolve the ambiguities in the textual analysis. I also consider that the materials provided by Ms McAllister can be taken as an expression, to some extent, of the University's understanding as to the language. Undoubtedly, NTEU were of the view that when the agreement was made, the purpose of clause 1.15.9 was to increase the proportion of "secure employment". Taking into account the materials provided by Ms McAllister as referenced above, it appears to me the University had a similar understanding of the purpose of the clause.

• [118] I will start my conclusion in relation to this matter by observing that, if I were to prefer the construction of clause 1.15.9 contended for by the University, it appears no great benefit is conferred upon employees covered by the Agreement, and it is unlikely to achieve the purpose for which I consider it is intended. A casual or fixed term employee would simply be entitled to have their application "vetted" prior to applications being called for from other candidates (including external candidates) only to then be interviewed, and in this sense "considered" for the vacant continuing position alongside those candidates, with no apparent preference or advantage, even where they have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction. On that formulation, apart from staggering the call for applications, and giving initial applications what may only be a preliminary glance, the University would have what appears to be an unfettered prerogative to call for applications for vacant roles from anyone, and to offer the job to whomever it chooses. The entirety of the clause aside from its final sentence would appear to give rise to no particular right or obligation, save to allow casual or fixed term employees to lodge their application earlier than others.

• [119] I am required to construct the clause having regard to its context and purpose. Its purpose, as I have found, is to achieve conversion or transfer to "continuous employment" for more internal University employees who are casual or fixed term than would otherwise be the case, if the clause did not exist. This supports the notion that the words "prior opportunity to apply and be considered" (my emphasis), "ahead of external recruitment" and "apply reasonable efforts to select" contain an obligation to prefer particular candidates, by initially excluding others.

• [120] The context of the clause, including its position within clause 1.15 of the Agreement, supports this notion. Within its own text are the words "for the purpose of transferring existing Employees into secure work". It sits within a part of the agreement replete with aspirational and obligatory provisions aimed at enhancing "job security", by converting more casual and fixed term employees to continuing positions.

• [121] The clause provides that casual or fixed term employees "will be" provided prior opportunity to "apply and be considered", "through the University's internal recruitment process". The construction contended for by the University would equate these words with the notion of "vetting" or preliminary appraisal. I disagree.

• [122] Evidence of the University's recruitment processes were provided by Ms McAllister, who made reference to several policies and procedures. Among those was the University's Recruitment and Appointment Procedure, which sets out "the process for assessment of candidates and the selection of a preferred candidate", which includes, in summary, the convening of an Assessment Panel, shortlisting of candidates, a pre-determined ranking of the candidates according to the selection criteria and then the application of various methods to assess candidates for positions, "including but not limited to" processes such as interviews[106].

• [123] On this basis "apply and be considered", "through the University's internal recruitment process" requires more than just vetting. "Apply and be considered" in a recruitment process will ordinarily require the application to be examined properly and a decision made to award the job to the candidate or not. Ordinarily, this will require a recruitment process to be applied which involves an interview process. This is what is required by the University's process.
• [124] The entitlement to "apply and be considered" must occur "ahead of external recruitment" and is described as a "prior opportunity" in that regard. I note the University's current practice is advertise internally vacancies for continuing positions for a period of 5 working days. It therefore seems to me uncontroversial that what is required of by the entitlement to "apply" and "be considered" must occur before the external recruitment process begins. Because the University considers it is obliged to do no more than "high level vetting" in respect to qualifying internal applications, it considers that once this vetting process is complete (which occurs at the end of the 5 working day period)[107] it can move to external recruitment.

• [125] However, in my view, "apply and be considered" means to (a) analyse the application and decide whether to interview the candidate, or offer them the job without an interview or refuse the application, and (b) if necessary conduct an interview; and (c) offer the job or refuse the application. Other steps may also be conducted such as referee checks or other analytical exercises. But this process of "prior opportunity" must be undertaken "ahead of external recruitment". I therefore agree with the central contention made by NTEU - that "apply and be considered" means the conduct of a discrete recruitment round for eligible candidates and only after this round is exhausted, can a second round be conducted involving external candidates commence_._

• [126] I note that the entitlement with respect to casual and fixed term employees to "apply and be considered" is to occur "ahead of external recruitment". In my view, this means that while casual and fixed term employees must be provided with prior opportunity to apply and be considered, there is no impediment in the clause preventing the exclusion of other internal candidates in this initial round.

• [127] Above I observe the difficulty for the Commission in determining the circumstances in which "apply reasonable endeavours to select" means a qualifying candidate must be offered the job. I do however consider that this exercise - the "application" of reasonable endeavours to select" must be applied in respect of qualifying candidates before it is possible for the University to call for other applications. This is because the application of reasonable endeavours to select is required as part of the process of "considering" the application. As I find above, this must occur before other applications are called for.
• [128] What is "reasonable" will depend on the circumstances. There are perhaps circumstances in which it will be obviously unreasonable that a candidate be selected. For example, despite having the particular qualifying criteria identified in clause 1.15.9, and perhaps also satisfying the selection criteria, it may be unreasonable to select a candidate because evidence of prior misconduct, relevant to the role, may be discovered. The candidate may be the subject of some kind of restraint. A particularly negative referee check may render the candidate unsuitable.

• [129] In the absence of such factors, clause 1.15.9 creates a positive obligation on the University to prefer a candidate who has been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria, over one who does not, to the extent of what is reasonable in the circumstances.

• [130] On this construction, more casual and fixed term employees will achieve "continuing employment" and, as the NTEU put it, "secure employment", than would otherwise be the case if they were not entitled to preferential treatment in recruitment for those positions, when they become vacant.

• [131] The final sentence of clause 1.15.9 is somewhat incongruous with the notion I consider to be evident from the preceding parts of the clause, that qualifying employees must receive preferential treatment in respect of recruitment into vacant continuing positions. On an entirely literal reading, devoid of context and purpose, the words "nothing in this clause inhibits" carry something of a redaction of all that comes before them. However, it is not appropriate to resolve this incongruity by rendering nugatory all that precedes this sentence. It makes no sense that the parties' common understanding was to establish, by the first two sentences of the clause, binding rights and obligations, and then void them by way of the final sentence.

• [132] I note above the clause does not appear to impede an initial recruitment round for vacancies of the kind in question involving both casual and fixed term internal employees and other internal employees. With this in mind, it seems to me that it may frequently be the case that in a process dealing with a vacant continuing position, the University may be dealing with more than one qualifying applicant - more than one candidate who has been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria. In those circumstances, the University, by operation of the final sentence of the clause, is entitled to offer the role to the best candidate. The reference to the best candidate means the best of those candidates who are before the relevant selection panel at the time, which will arise from the application of a process informed by the preceding two sentences of the clause. The final sentence of clause 1.15.9 does not mean, as the University contended, that:

"nothing stops - there is nothing in this clause that impacts in any way at all the University determining who is the best candidate for the role. Full stop. End of story."[108]

• [133] While I have found the clause to contain ambiguity, my conclusions are largely textual, based on a purposive and contextual construction of the clause. As I observed above, I did not find the evidence of the "surrounding circumstances" of particular assistance in the task before me. In particular, it struck me that the evidence of Ms MacKenzie and Mr Debets was laced with subjective intent - genuine no doubt - but evidence of exactly the kind in respect of which the authorities urge caution.

• [134] Having said this, it did seem to me that people concerned with the making of the agreement on the part of the Union, and employees covered by the agreement, such as Dr Brown and Ms MacKenzie, had an understanding that the adoption of the clause in the agreement meant that, because clause 1.15.9 was new, upon the approval of the agreement, it was necessary for the University's approach to recruitment to change, such that for vacant continuing positions, a separate and discrete recruitment round must begin to be carried out involving qualifying employees before external candidates were called for. There was also some evidence before me that this was the University's understanding - that its approach to recruitment had to change and did change such that, according the "Assessment Panel Report", if the role was a continuing one, an assessment first occur in respect to "Priority Candidates", involving "shortlisting and interviewing as required before assessing an internal candidates"[109] - until, according to several sources this approach was resiled from. The most reliable evidence in that regard was the "Prior consideration of internal applicants under clause 1.15.9 of the 2024 Enterprise Agreement Frequently Asked Questions"[110], which said "the previous process was built on a misunderstanding of the primary obligations created by 1.15.9", and "a belief that to "consider" internal applicants requires a full selection process for those internal applicants, as opposed to a high-level vetting process, as was intended". I note the University led no evidence to explain all of this - Ms McAllister referred to the document, but provided no explanation as to its plain reference to the previous "misunderstanding" of the operation of the clause[111].

• [135] In Transport Workers' Union of Australia v Jetstar Group Pty Ltd, Gostenik DP warned against assuming that the mere fact something was done in the past is evidence of settled interpretation - that such conduct may be inadvertence or an "act of generosity". It was not submitted before me that the University's apparent changed approach to recruitment after the agreement was approved by the Commission - including "shortlisting and interviewing as required before assessing an internal candidates" - was an act of generosity. It was also not submitted that the approach was inadvertent - and nor would it have been appropriate to do so given the approach (whether a "misunderstanding" or not) was so plainly deliberate. However, in circumstances where the University's changed approach was not articulated in its evidence, I intend to take a cautious approach in relation to the evidence as to this conduct. As much as I will say is that I consider this evidence fortifies my preferred construction of the clause, but I would have reached the same conclusions without it.

• [136] My answers to the questions I consider necessary to determine this dispute are as follows:

A. Does clause 1.15.9 of the Agreement require the University to commence the internal recruitment and selection process for vacant Continuing positions before it initiates any external recruitment and selection process (including before advertising the vacant Continuing position(s) externally)?

The answer is yes. I note for completeness this is apparently what the University already does, by advertising vacant continuing positions internally only, for a period of at least 5 days_._

B. Does clause 1.15.9 of the Agreement require the University to complete the internal recruitment and selection process for vacant Continuing positions before it initiates any external recruitment and selection process (including by advertising the vacant Continuing position(s) externally) if a casual or fixed term employee who has the skills, experience, qualifications and expertise commensurate with the selection criteria applies for the job?

The answer is yes. In respect of these employees, they must be provided prior opportunity to apply for a vacant Continuing position and be considered for that position before any other external applications are called for. "Considered" means they are either considered and offered the job, considered and offered an interview, and then interviewed and offered the job, or considered and offered an interview and a decision made not to offer them the job. Other processes relevant to the role, such as referee checks or other analytical measures may be applied. As part of this process of "consideration", there is an obligation to give preference candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction in the circumstances as set out below.

Because the clause requires this to occur "ahead of external recruitment [my emphasis]", nothing in this determination should be taken as precluding the University from advertising continuing positions to other internal applicants should it chose to do so - but the clause does not oblige it to do so.

C. Does (and if so in what circumstances does) clause 1.15.9 of the Agreement require the University to offer a casual or fixed term employee who is suitably qualified who has been employed by the University over two or more semesters over two consecutive calendar years on a 0.5 FTE or more time fraction, and who satisfy the selection criteria determined by the University, a vacant Continuing position if they apply for it, in preference over another candidate who is not a casual or fixed term employee?

The answer is yes, but only if it is reasonable. In respect to a vacancy for a continuing position, a positive obligation exists requiring the University to prefer a candidate who has been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction over one who does not (where it assumed both meet the selection criteria), to the extent of what is reasonable in the circumstances. The circumstances where it might be unreasonable cannot be described definitively, but might include where the candidate is otherwise disqualified, such as through a restraint, prior misconduct or due to some other evidence that they are manifestly inappropriate for the role.

• [137] Having reached these conclusions, I expect the University will modify its approach to recruitment accordingly, including in relation to its written and on-line guidance material, as it indicated before me it would do[112]. To assist this process, upon my consideration of the evidence before me as to how the University currently approaches recruitment, I make following comments:

1. The absence of any reference to the requirement that the University apply "all reasonable endeavours" to select for a vacant continuing position suitably qualified internal candidates who have been employed by the University over two or more semesters, over two consecutive calendar years, on a 0.5 FTE or more time fraction, and who satisfy the selection criteria, in the University's Recruitment and Appointment Procedure, documents such as an "Assessment Panel Report" and it's various other guidance materials is an omission which should be rectified to ensure that the University personnel responsible for recruitment and thus the University itself comply with clause 1.15.9

1. In the University's Recruitment and Appointment Procedure, at the least, item 5.3.2(b) (p.20) - "External advertising and feedback" - should be amended to provide that in the circumstances dealt with by this item, a determination to advertise a position externally cannot occur until the internal recruitment process is complete (including shortlisting, interviews and any other process).

• c. Documents like the "Assessment Panel Report"[113] or the "Hiring Manager's Guide to Recruitment"[114] should be adjusted to reflect that clause 1.15.9 requires a separate and discrete process to be conducted in relation to the consideration of internal applicants for continuing vacancies before external applicants can be sought.

1. Documents such as the "HR - Prior Opportunity Clause Operationalisation (POCO) - 1.15.9" and the "Information Guide Prior consideration of internal applicants" should be adjusted to reflect that clause 1.15.9 requires a separate and discrete process to be conducted in relation to the consideration of internal applicants for continuing vacancies before external applicants can be sought.

1. The document "Prior consideration of internal applicants under clause 1.15.9 of the 2024 Enterprise Agreement Frequently Asked Questions" should be withdrawn and if considered appropriate, replaced with information consistent with the determinations made above in relation to the proper operation of clause 1.5.9.

• [138] The NTEU sought further remedy from the Commission in this matter, including determinations including that "all of the process (or processes) which the University has implemented to operationalise subclause 1.15.9 operate contrary to subclause 1.15.9 of the Agreement", and that "the Respondent must immediately prepare and issue replacement processes, operating rules or other policy documents to replace the non-compliant ones". I decline to grant those remedies. They lack specificity and on the evidence before me, I do not consider it possible to craft orders with a sufficient level of precision that they would be appropriate to be made. I also do not consider it necessary for such orders to be made, taking into account the University's submission before me, that, as a "model citizen" it would voluntarily correct its recruitment processes and materials to align with my construction of the clause at issue.

• [139] Having answered the questions I consider necessary for the determination of the dispute, and in addition, providing further comment as to the implementation of that determination (taking into account the limitations I consider I am dealing with as to the evidence before me) I consider the dispute before me to be determined accordingly.

[1] University of Melbourne Enterprise Agreement 2024 clause1.42.9 and 1.42.1

[3] Applicant's Outline of Arguments, 3 April 2025 [69]

[4] Outline of Submissions of the Respondent, 17 April 2025 [5] - [6]

[5] Applicant's Outline of Argument [29]

[6] Outline of Submissions of the Respondent, 17 April 2025 [2]

[7] Applicant's Arguments in Reply, 21 April 2025 [6]

[10] Witness Statement of Paula McAllister, 17 April 2025 [12]

[14] Applicant's Outline of Submissions [66], [109]

[17] FreshFood Management Services Pty Ltd v AMWU & UWU [2023] FWCFB 97 [123]

[18] Applicant's Outline of Submissions [31], Outline of Submissions of the Respondent [8]

[19] [2018] FCAFC 131 [197]

[20] Applicant's Outline of Submissions [31]

[21] [2017] FWCFB 3005

[22] [2020] FCAFC 123 [65]

[23] Applicant's Outline of Submissions [37]

[25] Berri [33 (4)] See also South Australian Water Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FCAFC 40 [24] - [26]; Bluescope Steel (AIS) Pty Ltd & Anor v Commissioner of Taxation [2019] FCAFC 84; (2019) 368 ALR 643 [20]

[26] Applicant's Outline of Submissions [56]

[27] Applicant's Arguments in Reply [8]

[28] Applicant's Outline of Submissions [57]

[29] Applicant's Arguments in Reply [13] - [14]

[31] Outline of Submissions of the Respondent [8]

[36] Transcript PN190-PN191; PN233 - PN243

[37] (2006) 151 FCR 513; [2006] FCA 616

[39] Outline of Submissions of the Respondent [30]; Transcript PN193 - PN198; PN254 - 262

[40] [2019] FCA 1762

[43] [2011] FCA 1256 [77]

[45] Ibid [79]; see also Australian International Air Pilots Association v Qantas Airways Limited [2017] FCA 346 [29]

[46] [2021] FCA 1377

[49] See in particular Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 [352]; Berri [62]

[50] Linfox Armaguard Pty Ltd (T/A Linfox Armaguard) v Transport Workers' Union of Australia [2024] FWCFB 373 [42]

[51] Health Services Union v Ballarat Health Services [2011] FCA 1256 [79]

[52] [2022] FWC 253 [27]

[54] Amcor v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (2005) CLR 241 [66]

[55] City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 [379]

[56] Berri [47]; National Tertiary Education Union v La Trobe University [2015] FCAFC 142; Bluescope Steel (AIS) Pty Ltd v Australian Workers Union [2019] FCACF 84 [20]

[58] National Tertiary Education Union v La Trobe University [2015] FCAFC 142 [74] - [75]

[61] Outline of Submissions of the Respondent [6]

[62] Transcript [394]; Outline of Submissions of the Respondent [6], [17]

[63] MacKenzie Witness Statement [14] - [15]

[65] MacKenzie Witness Statement [20], [CM5]

[73] Applicant's Outline of Submissions [103]

[77] Brown Witness Statement [10] - [12]

[83] Ibid [57] and for the addition of the last sentence of the clause, see [58] and [59(c)]

[87] Applicant's Arguments in Reply [11]

[94] McAllister Witness Statement, "PM-2"

[106] McAllister Witness Statement, "PM-2" p.6

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