s.604 - Appeal of decision

Construction, Forestry and Maritime Employees Union

Appeal against decision [2025] FWCA 4158 of Commissioner Lim at Perth on December 8th, 2025, in matter number AG2025/4598.

• [1] On 8 December 2025, Commissioner Lim issued a decision and order,[1] which pursuant to s. 217 of the Fair Work Act 2009 (FW Act) retrospectively varied eighteen enterprise agreements (Agreements) made between Qube and the Construction, Forestry, and Maritime Employees Union (MUA) applying to Qube and its stevedoring employees at Ports throughout Australia (Variation Order).[2] The Agreements ceased operation in around mid-2025. Sixteen of the Agreements were replaced by new enterprise agreements, and at two ports new enterprise agreements have not been approved.

• [2] On 23 December 2025, Qube concurrently filed a Form F7 - Notice of Appeal (Appeal) in the Fair Work Commission (Commission) seeking permission to appeal and to appeal the Variation Order, and an originating application in the Federal Court (Court) seeking, inter alia, judicial review of the Variation Order under s 39B of the Judiciary Act, ss 21 and 23 of the Federal Court Act, and/or s 562 of the FW Act (Review Application).[3]

• [3] On 15 January 2026 I granted an application by Qube for a stay of the Variation Order,[4] pending the hearing and determination of the appeal. The MUA consented to the stay being granted. Qube has now applied to the Commission seeking an adjournment of the hearing and progress of the appeal, pending the hearing and determination by the Court of the Review Application (Adjournment Application).

[4] On 6 February 2026 I conducted a hearing into the Adjournment Application. At the conclusion of the hearing, I informed the parties that I had decided to refuse the Adjournment Application and that I would issue reasons in due course. These are my reasons.

[5] The background can be summarised as follows. The Agreements provided for certain categories of employees to be available for and work a certain number of 'Annualised Accumulated Hours' every year (AAH Target) in return for an annual salary. When the AAH Target is met, overtime payments are triggered. Qube has maintained a position that under the Agreements, as properly construed, hours during which an employee engaged in protected industrial action (PIA) or was on an authorised stand down, did not count towards the achievement of the AAH target. The MEU disagrees with this construction.

• [6] In 2022, the Commission arbitrated a dispute pursuant to s 739 of the Act, holding that in relation to one of the Agreements the subject of these proceedings (applying to the Port of Fremantle), the relevant provisions, on their proper construction require a reduction AAH Target to take into account any periods of PIA.[5] That decision was upheld by a Full Bench of the Commission which came to the same conclusion, via a different path.[6]

• [7] The issue arose again in 2024-2025, when employees of Qube at five ports engaged in periods of PIA or were subject to unpaid stand‑downs. Qube did not credit those hours towards the AAH Target of those employees. If the hours had been credited, some employees would have reached the overtime trigger earlier, giving rise to potential overtime liabilities. In November 2024 Qube applied to the Court for a declaration as to the correct meaning of the relevant Agreement.[7] Shortly thereafter the MUA applied to the Commission for orders under s 217 of the FW Act to retrospectively vary the Agreements to remove an uncertainty or ambiguity.

• [8] The application to vary the Agreements was heard by Commissioner Lim on 19 March 2025. In November 2025, the MUA sought a stay of the Court proceedings (VID1217/2024) pending finalisation of the Commission proceedings. The stay was granted by Justice Snaden on 3 December 2025.[8] His Honour noted that the Commission's decision had been reserved for several months and it was not unrealistic that it would be released in the near future.

• [9] On 8 December 2025, Commissioner Lim made the Variation Order under s 217 of the FW Act varying 18 of the Agreements retrospectively to 29 June 2024, with the effect that periods of PIA and unpaid stand‑down counted towards achievement of the AAH Target. The Commissioner's reasons were published in Application by CFMEU.[9] The Agreements had ceased to operate by the time they were varied. Qube states that the Variation Order eviscerates part of its November 2024 application to the Court.[10]

The positions of the partes in relation to the Adjournment Application

[10] In support of the application seeking that the Commission adjourn the Appeal pending the Court's hearing and determination of the Review Application, Qube submits that the Appeal and the Review Application raise overlapping, complex questions of law concerning the construction of ss 39 and 217 of the FW Act, and constitutional arguments including whether the variation effects an acquisition of property contrary to s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Constitution). The Review Application also seeks declarations that Qube's construction is correct, another question of law.

• [11] Qube contends that s 589(1) of the FW Act confers upon the Commission a broad power to adjourn proceedings. Whether an adjournment is granted is guided by the mandatory considerations applicable to the performance of all functions and exercise of all powers, in s 578 of the FW Act. Additionally, certain other matters have been judicially recognised as relevant to the exercise of the discretion where there are competing applications in different forums, and these are of particular relevance in the present matter. Qube contends that in considering whether to adjourn the Appeal, the Commission should have regard to the following principles identified by Bromberg J in Teys Australia Beenleigh Pty Ltd v AMIEU (Teys).[11]

[12] First, it is not the 'traditional function' of the Commission to determine controversies

concerning existing rights and liabilities, including under the FW Act.[12] Second, as the Commission 'is an inferior tribunal. It will be assisted by the reasons for judgment' of the Court on legal questions[13]. Third, 'where complicated legal issues arise, consideration ought be given to their resolution by [the] Court rather than by the [Commission]'.[14] Fourth, that is particularly true where 'the issues raised are of general importance'.[15] Fifth, the potential for inconsistency in the answers given to legal questions by the Court and Commission weighs in favour of the Commission adjourning its proceeding until the Court has given its answers to the relevant questions.[16] Sixth, the consequences and length of any delay in the resolution of the Commission proceeding should be taken into account.[17]

[13] Applying these principles, Qube submits that the Appeal should be adjourned pending the hearing and determination of the Review Application for the following reasons. First the Review Application and the Appeal both raise to a significant extent, overlapping questions of general importance concerning the proper construction of ss 39 and 217 of the FW Act, as well

as questions of constitutional law, concerning whether the Variation Order effects an acquisition of property (other than on just terms) within the meaning of s 51(xxxi) of the Constitution. These are questions on which the Court should first rule so as to give guidance to the Full Bench and the Commission more generally. Second given the nature of the grounds involved, there is no possible outcome of the Appeal that would cause the Review Application to be resolved without a hearing. Accordingly, the most efficient course is to permit the dispute to be addressed by the Court in the first instance on the basis that if the MUA were in any way successful in the Appeal, the Court would still need to decide all the questions that Qube agitates in the Review Application, and in such a case (on Qube's contentions) the Commission would have committed jurisdictional errors of the kind identified in the Review Application. Equally if Qube succeeds with the Appeal, then the answers to the legal questions raised by the Review Application would still be needed to guide that re-exercise. And even if Qube had complete success (i.e. the Full Bench quashed the Variation Order and decided that the Agreements should not be varied), that would still leave the parties in dispute over the true legal meaning of the Agreements, a matter that the Review Application seeks declarations in respect of. Qube submits that in short, all roads lead inevitably to the Court and there is little to be gained by the Full Bench first having an opportunity to opine on legal (and indeed, constitutional) questions that it has no authority to decide to finality.

[14] Thirdly and conversely, the Review Application is certain to narrow the issues in dispute on the appeal and if Qube succeeds on any of its points about construction of ss 39 or 217 of the FW Act or the Constitution, then many of Qube's grounds of appeal will fall away. If on the other hand, the MUA succeeds in relation to the construction of s 217 and the Constitution but fails in relation to the proper construction of the Agreements, then again, the Full Bench will be able to decide upon the significance of that proper construction to the exercise of the discretion in s 217. Fourth this is an unusual case in that an adjournment of the Appeal is most likely to hasten the ultimate resolution of the parties' dispute, rather than delay it. A refusal of the adjournment would likely protract the dispute, because while the Review Application has a prospect of conclusively resolving the parties' dispute, a failure to adjourn the Appeal will inevitably impel the parties to deal with: (1) the Appeal itself; (2) any judicial review application in relation to the Appeal; and (3) the extant Review Application. Further, a failure to adjourn the Appeal would require the parties and the Commission to address the legal questions raised by the Appeal, without any guidance from the Court on those questions, unnecessarily adding to the complexity of the appeal and likely result in the legal questions having to be addressed yet again in the Court.

• [15] Fifth, if the Appeal is not adjourned, but instead proceeds in parallel with the Review Application, there is a significant risk that the Commission and Court will arrive at inconsistent answers to legal question raised. The only other way that this risk could be avoided would be that the Review Application instead be adjourned in favour of the Appeal. But there is no good reason for the Court to defer its consideration of legal questions until the Commission has had an opportunity to give a non-determinative opinion about them. Such a course would also defer the ultimate resolution of those legal questions even further into the future. Sixth the authorities strongly suggest that the Full Bench in the conduct of the Appeal, would appropriately proceed upon the assumption that the Variation Order did not transgress s 51(xxxi) of the Constitution (rather than purporting to decide that question).[18] Seventh, the Review Application alleges (amongst other things) that the Variation Order is of no effect at all in relation to five of the Agreements, by force of s 39 of the FW Act. If that is true, then on one view there would be no utility to the Appeal in relation to those Agreements, since nothing is to be achieved by appealing an order that is of no effect. But the Commission cannot authoritatively decide whether s 39 has the effect that Qube alleges. Again, only the Court can do that.

[16] In oral submissions at the hearing, Qube clarified that there are currently two Court proceedings on foot - VID 1217 filed in 2024 and VID 17 of 2026 and that the 2024 proceeding will be heard by the Court come what may and regardless of the outcome in VID 17. In relation to the latter case, almost the entirety of what the Commission is asked to decide in the appeal involves identical legal questions to those before the Court on the Review Application. Counsel for Qube accepted that it was his client's choice to put the same matters in issue in both proceedings and that this is somewhat unusual in the sense that Qube is seeking to 'stay' its own proceeding. In response to this proposition, Qube emphasised that the principal reason for lodging the Appeal is to comply with statutory time limits, which would doubtless have been put against Qube if it had made an application to the Court, without an appeal.

[17] Qube reiterated its submission that proceeding with the Appeal in the ordinary way would generate duplication, risk inconsistent determinations and ultimately delay the final resolution of the broader controversy. It contended that the Court will necessarily have to determine the legal issues it seeks to ventilate and that any appellate disposition by the Commission would either be overtaken by or require re‑litigation in the Court. Qube accordingly argued that these matters favour permitting the Court to proceed first. Qube also contended that the MUA had no interest in these proceedings being resolved expeditiously, evidenced by the fact that if the Appeal proceeds first, the MUA will contend that the Full Bench should not deal with grounds based on matters that were not articulated before the Commission at first instance, which would inevitably send Qube to the Court, at the expense of Qube, the MUA and the Commission's resources, funded by the public taxpayers, being spent on a process that could be avoided if the Review Application proceeds first.

• [18] Qube further submitted that the view expressed by Justice Snaden in proceedings held on 5 February in relation to VID1277/2024 and VID17/26 indicating that he intended to defer to the long history of specialist tribunals and that the Appeal to the Full Bench was the appropriate forum in which to resolve the question of what the terms of the enterprise agreements are and potentially to determine that retrospectively,[19] was limited to the proceedings on that day and may not be His Honour's view if the Commission does not adjourn the appeal.

• [19] The MUA opposes the adjournment application. While accepting that the Commission has broad power to adjourn its own proceedings, (to the extent that doing so is consistent with equity, good conscience and the merits of the matter) the MUA submits that there will be few occasions when an adjournment of this kind is warranted, with the starting point being that the Commission should not lightly take any step to delay the resolution of any matter properly before it.[20] The MUA also submitted that contrary to Qube's submission:

• The Commission's statutory functions include the determination of applications for variation under s 217 of the FW Act, and of appeals under s 604. To suggest that its discharge of functions assigned to it by statute is not its 'traditional function' - to the extent the assertion has any legal content, is wrong.

• There is no principle or rule which requires that the Commission pause its processes in cases where a party chooses to approach a court seeking administrative law relief before exhausting statutory procedures. To the contrary, administrative law relief may be, and typically is, refused where a party has not exhausted statutory rights of appeal.

• There is in every case a risk that the Court on a judicial review application will disagree with the Commission's conclusion. That cannot be a basis on which the Commission will decline to hear a matter regularly brought before it and any risk in this regard is neither here nor there.

• Qube's proposal is likely to significantly or very significantly delay the resolution of the dispute. There is no apparent reason why the Appeal could not be heard in the March Full Bench period, subject to the Commission's availability. Determination of the Appeal may (if Qube is successful) resolve the entire controversy. The Court proceedings on the other hand are unlikely to be heard in the first half of 2026, if the Court agrees to hear the matter. In that respect it would be noted that Justice Snaden has previously determined that the Commission proceedings should proceed in advance of the Court proceeding. It was also contended that:
  • Qube has not exhausted the statutory procedures available to it before seeking judicial review, meaning that the Court may refuse administrative law relief on discretionary grounds (and the MUA will argue that it should do so);
  • Qube's Review Application involves a panoply of novel arguments, including broad constitutional questions; and
  • Qube has given no undertaking to seek expedition of the Review Application (and it is doubtful that expedition would be granted even if sought).

• Qube's suggestion that the questions arising are of 'general importance' would not be accepted. The matter is important to Qube and its employees but does not have any obvious general application.

• If Qube is successful in its appeal, a large part of the Court proceedings will be rendered otiose and the multitudinous issues raised by Qube in the Court proceedings will be unnecessary to determine.

• Many or most of the arguments made by Qube in the Commission appeal and the Court proceedings were not argued before the Commission at first instance. It is contrary to the interests of justice to permit a party to conduct a case on one basis before the Commission at first instance and then elect to impugn the Commission's decision in a different forum and on grounds that were not put to the Commission.

• Qube's arguments on the Review Application are prima facie weak.

• There is no apparent reason why the Full Bench cannot determine all of the arguments which Qube seeks to prosecute in the Review Application.

[20] The question for the Commission is whether it should allow the appeal to proceed in the usual course with the result it is likely to be heard and determined within a short number of months, or adjourn the appeal indefinitely pending determination of the Review Application, which is likely to occupy many months with no certainty that those proceedings will quell all or part of the controversy.

[21] In oral submissions, the MUA contended that Justice Snaden had indicated his view in a hearing on 6 February 2026, that he would continue the history of deferring to a specialist tribunal and that the Commission is the appropriate forum for the determination of the issues raised in the appeal. This was said to be consistent with the usual position that the court will decline on discretionary grounds to hear an application for judicial review, if an applicant has not exhausted statutory appeal mechanisms. It was also submitted that it is not a reason to depart from the usual rule, because a party has indicated that it will challenge the Full Bench's determination come what may and that this consideration is irrelevant. Further, most proceedings determined by the Commission involve some legal question en route to the ultimate conclusion and that fact is not a basis for a party to effectively elect out of the statutory appeal process.

[22] In relation to length of time to finalise the matter, the MUA contended that assuming the Court agrees to hear the Review Application in advance of the Appeal, it is improbable that it would be determined by the end of the year, both because of questions of the court's capacity to hear matters urgently and because of the scope of the court proceedings and the panoply of issues. In terms of efficiency, it was submitted that there are so many permutations of the matters in contest that it is impossible to say with certainty that proceedings in either the Court or the Commission will quell the entire controversy. In response to the assertion that the MUA was seeking to delay the matter, it was submitted that this was not the case in circumstances where the Union had succeeded at first instance and dealt with the arguments Qube had raised, and consented to a stay of Commissioner Lim's Order pending Full Bench determination of Qube's appeal.

[23] This is an unusual case in the sense that does not involve two parties making competing applications in the Court and the Commission respectively and the Applicant in the Court seeking relief to stay the proceedings of the other party in the Commission. Here, Qube is the architect of the situation it seeks to remedy. The only reason the Appeal and Review Application raise issues with significant overlap is the Appellant's decision to initiate concurrent proceedings in the Court for Judicial Review and the Appeal to the Commission, and then to seek to adjourn its own Appeal indefinitely.

• [24] It is well-established that Courts will generally (but not always) refuse relief where a party has not exhausted statutory rights of appeal. The approach was discussed by the New South Wales Court of Appeal in Ballam v Higgins,[21] where consideration was given to the question of whether prerogative relief should be granted to quash orders made by the Industrial Commission of New South Wales, despite the applicant having already lodged an appeal to that tribunal. The Court unanimously held that the application was premature and should be dismissed. Kirby P (as His Honour then was) explained:

'...an appeal has been lodged to the Industrial Commission in Court Session; it is susceptible of resolution in that venue. It should therefore, in the first instance at least, be left to be considered there."[22]

• [25] His Honour outlined several reasons supporting this view. First, requiring parties to pursue an internal appeal process gives proper effect to the legislative scheme, which expressly provided for such appeals. Second, it recognises and respects the specialised expertise of the tribunal, which is often better placed to resolve both factual and jurisdictional issues. Third, allowing the internal appeal to proceed ensures that, if Supreme Court review is later sought, the court will have the benefit of the appellate tribunal's findings and analysis. Fourth, factual matters relevant to jurisdiction are typically more efficiently and accurately determined by the tribunal itself. Finally, reserving prerogative relief for circumstances in which no other adequate remedy exists, maintains the efficiency of the system and preserves the exceptional nature of such remedies.[23]

• [26] In Kirk v Industrial Court of New South Wales,[24] the High Court had regard to maintaining the proper structure of appellate and supervisory review. In doing so, the Court emphasised that the existence of statutory appeal or review mechanisms is a central consideration in determining whether superior courts should intervene before those avenues are exhausted. The Court stated:

'The decisions of many inferior courts are open to appeal or review for error of law. (The availability of appeal or review would ordinarily be a powerful discretionary reason not to grant certiorari even if it were otherwise available.). If appeal or review for error of law is provided by statute, the availability of certiorari would not greatly alter the extent of the financial hazards to which those involved in litigation in the inferior court are exposed.'[25]

• [27] In National Tertiary Education Union v Monash University,[26] Justice Snaden was considering circumstances where the NTEU had filed an originating application in the Court seeking relief for alleged contraventions of the FW Act concerning payments said to have been due (but not made) pursuant to two enterprise agreements. The respondent in that matter, Monash University, had commenced a proceeding under s 217 of the FW Act seeking to vary provisions of the agreements upon which the NTEU's claim was founded, based on an asserted ambiguity or uncertainty. Both parties made competing interlocutory applications to the Court, with the NTEU seeking a stay of the Commission proceedings and Monash a stay of the Court proceedings. His Honour described the relief sought by the NTEU as being 'in the nature of an anti-suit injunction'.[27] Discussing the principles relevant to such applications, His Honour said that the challenge for the Court was to assess which of the competing jurisdictions is the most appropriate, based on which proceeding aligned most with the interests of justice. The following matters were relevant:

• • The power Monash sought the Commission to exercise is a specific power of long standing and the NTEU would have an opportunity to oppose the relief sought by Monash.[28]
• • Monash would be prejudiced by being denied an opportunity to benefit from those statutory processes including that they are designed to be administered quickly and cost-effectively and that if successful, the outcome may go at least some way to resolving the controversy before the Court.[29]
• • Absent the suggestion that the proceeding had been brought in the Commission for some improper purpose, the Court should be slow to interfere with the due progression of matters put conventionally before a specialist tribunal that is charged by statute to do exactly what is asked of it.[30]

• The demands of the Court were such that the application was unlikely to be heard before the end of the 2023 (the stay proceedings having been determined in November 2022).

• [28] The decision of Justice Bromberg in Teys,[31] referred to by Qube was decided in the context of very different factual circumstances. In that case, the matter was before a single Member of the Commission by way of a dispute notified by the AMIEU in which the Union effectively sought enforce - effectively by the Commission making a bare declaration - a document that it contended was a term of an enterprise agreement, binding on the employer. His Honour opined that this was not traditionally the role of the Commission, but rather was the role of the Court. The matter did not involve the interpretation by the Commission of an enterprise agreement en route to the exercise of a power or the performance of a function the Commission is charged with - such as the variation of the agreement based on ambiguity or uncertainty. Significantly, His Honour noted that the Court was in a position in that matter to move expeditiously and accordingly expressed a view that the Commission should not proceed.[32]

[29] Having regard for the approach in these cases, and extrapolating the principles to the present case, I consider the following matters to weigh in favour of refusing an adjournment and for the Appeal to proceed in the Commission. First, the Commission is a specialist tribunal, and the FW Act provides for appeals against decisions of single Members to be heard and determined by a Full Bench. To that extent, the Commission is charged by statute to do exactly what Qube asks of it by instituting the Appeal. Accordingly, for the Appeal to proceed would be consistent with the general approach in this regard. Second cost and efficiency are at best, neutral factors in the present case, regardless of whether it proceeds first in the Court or the Commission. The outcome of the Appeal may go some way to resolving the issues before the Court, although it is equally probable that the Appeal may not result in that outcome. I accept the submission for the MUA that there are so many permutations of the matters in contest that it is impossible to say with certainty that proceedings in either the Court or the Commission will quell the entire controversy. Further, as Qube points out, the Appeal proceeding will not result in other litigation concerning the same enterprise agreement provisions being resolved as those matters will be dealt with by the Court 'come what may'.

[30] Third it is probable that the Appeal will be heard and determined by the Full Bench in a shorter time period than would be the case if the Review Application proceeded first in the Court. At the time this matter was heard, the appeal was provisionally listed in the March appeal roster in the week commencing 16 March. After informing the parties that I had determined to refuse the adjournment application, the Appeal has been listed for hearing 2 April 2026, to accommodate their availability. It is unlikely that the Review Application could proceed in the Court in a comparable time frame. This weighs in favour of the adjournment application being refused.

[31] Fourth, there is nothing exceptional or unusual about the subject matter of the Appeal. The Commission is generally required to determine matters of law and involving the proper construction of enterprise agreements to exercise its jurisdiction. This also weighs in favour of the adjournment application being refused. Fifth, fairness weighs in favour of the Appeal proceeding in the Commission. I express no view about the outcome of Qube seeking to ventilate matters in the Appeal that were not raised in the first instance proceedings. However, I do consider that it is relevant that the MUA succeeded at first instance and has agreed to a stay of the Order it achieved in those proceedings, pending the hearing and determination of the Appeal. In all the circumstances, a departure from the general course of proceedings in the Commission and the Court is not warranted.

[32] For these reasons, I dismissed the application for an adjournment of the Appeal.

M. Follet KC and D. Ward, of Counsel, instructed Allens, by for the Appellant

O. Fagir, of Counsel, instructed by L. Edmonds, for the Respondent

[1] [2025] FWCA 4158.

[2] The application sought to vary nineteen agreements, but the Commissioner was not satisfied that the Qube Port Pty Ltd Port of Fremantle Enterprise Agreement 2020 should be varied.

[5] [2022] FWC 2013 (Binet DP).

[6] Qube Ports Pty Ltd v CFMEU 2023 FWC FB 66 (Easton and Hampton DPP and Platt C).

[8] Qube Ports Pty Ltd v CFMEU [2025] FCA 1533.

[9] [2025] FWCA 4158.

[11] [2015] FCA 1033.

[12] Ibid at [31] (Bromberg J). Conversely, that is the "specialist function" of the Court.

[18] Re Adams and the Tax Agents' Board [1976] AATA 1; (1976) 12 ALR 239 at 253-257 (Brennan J); Parliamentary Trustee of Parliamentary Contribution Superannuation Fund v FCT [2013] FCAFC 127; (2013) 216 FCR 329 at [1] (Kenny, Perram and Robertson JJ); Customs Officers Association of Australia v CPSU [1996] AIRC 317; CFMEU v FIMEE [1994] AIRC 2409.

[19] Transcript of Proceedings 5 February 2026 at PN25.

[20] National Tertiary Education Industry Union v Monash University [2022] FCA 1368 at [24].

[21] (1986) 17 IR 131.

[22]Ballam v Higgins (1986) 17 IR 131-132.

[23] Ballam v Higgins (1986) 17 IR 131-132.

[24] [2010] HCA 1; (2010) 239 CLR 531.

[25] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [87].

[26] [2022] FCA 1368.

[27] National Tertiary Education Union v Monash University [2022] FCA 1368 at [7].

[28] National Tertiary Education Union v Monash University [2022] FCA 1368 at [14].

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