s.269 - Intractable bargaining workplace determination

Terminals Pty Ltd Trading AS Quantem Bulk Liquid Storage & Handling

Quantem Bulk Liquid Storage and Handling (Queensland) Workplace Determination 2024

[1] On 29 September 2025, we issued a decision[1] in which we concluded that with the exception of the part-time employee clause, the terms of the draft intractable bargaining workplace determination filed by Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling (Quantem) with its submissions in this matter dated 28 November 2024 (Quantem's Proposed Workplace Determination)[2] are all agreed terms within the meaning of s 274(3)(a) of the Fair Work Act 2009 (the Act). The consequence of our decision is that the part-time employee clause is the only matter "still at issue" within the meaning of s.270(3) of the Act and we therefore outlined the following:

"As to the terms of the part-time employee clause to be included, our provisional view is that the terms of clause 4.6 in the UWU's Proposed Workplace Determination[3] should be included in the workplace determination we make as the part time employees clause, having regard to the considerations in s.270A and s.275 of the Act. In these circumstances, and noting that each of the other requirements in ss 272 and 273 of the Act appear to have been met, our provisional view is that a workplace determination reflecting the terms of Quantem's Proposed Workplace Determination ought to be made, save that clause 4.6 should be expressed in the terms of clause 4.6 in the UWU's Proposed Workplace Determination."[4]

[2] The parties were afforded the opportunity to provide any written submission in response to our provisional view. The United Workers' Union (UWU) subsequently advised that having conferred, the parties had agreed that the workplace determination should reflect Quantem's Proposed Workplace Determination and had reached a consent position as to the content of part-time employee clause. The UWU provided a copy of the clause which the parties submit should be included and advised:

"The clause contains a minor amendment to clause 4.6 of the UWU's Proposed Workplace Determination, in which the phrase "hours as mutually agreed" is replaced with the phrase "Core Hours or Additional Hours" in clause 4.6(g). The parties consider this phrasing is more specific but otherwise reflects, in practice, the part-time employee clause provisionally endorsed by the Full Bench for inclusion in the proposed workplace determination."[5]

[3] Further advice was received from the lawyers acting for Quantem.[6] This confirmed, on behalf of both parties, their consent position regarding the content of the part-time employee clause and outlined a request that we issue a workplace determination in the terms agreed (and provided) by them, in the event we did not wish to hear further from them.

[4] Section 270(1) of the Act requires that an intractable bargaining workplace determination complies with s.270(4) of the Act. Noting that Quantem's Proposed Workplace Determination is expressed to cover Quantem, certain employees of it engaged at its Pinkenba terminal and the UWU as their bargaining representative, we are satisfied that it does so. We are also satisfied (and note that the parties agree) that Quantem's Proposed Workplace Determination includes the 'core terms' detailed in s.272 of the Act. In addition, we are satisfied that the parties have reached the requisite agreement in relation to the 'mandatory terms' in s.273 of the Act and note that these are also included.

[5] Sections 270(1)(a) and 270(2) of the Act further require that the terms that have been agreed between the parties must be included in the workplace determination. Section s.274(3)(a) relevantly outlines that an 'agreed term' for an intractable bargaining workplace determination is a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement. As outlined above, we have previously concluded that except for the part-time employee clause, the terms of Quantem's Proposed Workplace Determination are all agreed terms within the meaning of s.274(3)(a). Section 270(3) of the Act provides that a workplace determination must also include terms that the Commission considers 'deal with the matters that were still at issue' and in this regard, we have previously expressed the view that the part-time employee clause was the only matter 'still at issue' for the Commission to arbitrate. As we have outlined, the parties have now arrived at a consent position regarding the content of the part-time employee clause and having considered the terms of that clause, we are satisfied that no issues in relation to the requirements in s.270A of the Act arise.

[6] In deciding whether to include the part time clause proposed by the parties in the workplace determination we make, we must take into account the factors in s.275 of the Act. We do not consider that any of the s.275 factors weigh against the inclusion of the part time clause proposed by the parties. That it represents a consent position is a compelling merit consideration (s.275(a)) and we also observe that the proposed clause has a number of features resembling those in the part-time employees clause in the relevant modern award, the Storage Services and Wholesale Award 2020. In terms of employer interests, we note that a part time employee's hours may be increased beyond their 'Core Hours' in order to meet operational needs but that any such 'Additional Hours' must be agreed in writing before the next scheduled shift and must not result in the total hours worked being in excess of the proposed full time hours over a 4-week cycle. We also note that all time worked in excess of 'Core Hours' or 'Additional Hours', as the case may be, must be paid at overtime rates. As such, it is apparent that the proposed clause takes into account the interests of both Quantem and its employees (s.275(c)). We also apprehend that a consequence of part time employees working additional hours to meet operational needs might improve productivity (s.275(e)) and we do not understand the existing enterprise agreement to have had similar arrangements or benefits as far as part time employment was concerned (s.275(ca)). Nor do we consider there are public interest considerations that would weigh against the inclusion of the clause (s.275(d)). Finally, we are not persuaded that either the s.275(f) or s.275(g) considerations are determinative and nor do we consider that the part time clause will have any discernible impact on the incentives to continue bargaining at a later time

[7] Attached to this decision is the workplace determination which reflects Quantem's Proposed Workplace Determination and the part time clause now proposed by the parties. It is entitled the Quantem Bulk Liquid Storage and Handling (Queensland) Workplace Determination 2024 (Workplace Determination). Further to our provisional view, having had regard to the position of the parties, for the reasons we have outlined above and in accordance with s.269 of the Act, we make an intractable bargaining workplace determination in the terms set out in the Workplace Determination. Pursuant to s.276(1) of the Act, the Workplace Determination operates from 11 November 2025.

[1] [2025] FWCFB 221.

[4] [2025] FWCFB 221 at [82].

[5] Email from the UWU dated 10 October 2025.

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