Fair Work Act 2009

s.234 - Intractable bargaining declaration

Terminals Pty Ltd Trading AS Quantem Bulk Liquid Storage & Handling

Application for an intractable bargaining declaration- dispute as to what are the agreed terms for the intractable bargaining workplace determination.

[1] On 2 September 2024, Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling (Quantem) applied for an intractable bargaining declaration (IBD Application) pursuant to s.234 of the Fair Work Act 2009 (the Act). The IBD Application related to Quantem's bargaining with the United Workers' Union (UWU) for a proposed Quantem Bulk Liquid Storage and Handling (Queensland) Enterprise Agreement 2022 (Proposed Agreement) to cover Quantem and certain of its employees at its Pinkenba terminal.

[2] On 26 September 2024, an intractable bargaining declaration (Declaration)[1] was made by the Commission pursuant to s.235 of the Act. The Declaration specified a post-declaration negotiating period that started on 26 September 2024 and ended on 24 October 2024 (s.235A of the Act). During that post-declaration negotiating period, the parties attended two conferences before Commissioner Hunt. Agreement was not reached. As the post-declaration negotiating period was not extended, s.269(a) of the Act applies and requires a Full Bench of the Commission to make an intractable bargaining workplace determination as quickly as possible.

[3] Section 270(4) of the Act outlines who an intractable bargaining workplace determination must cover, while s.270(1) deals with what is to be included, specifically:

1. The 'core terms' set out in s.272 of the Act (s.270(1)(b));

2. The 'mandatory terms' set out in s.273 of the Act (s.270(1)(c));

3. The 'agreed terms' as provided for in s.274 of the Act (ss.270(2) and 274(3)); and

4. The terms that the Commission considers deal with the matters that were still at issue either at the end of any post-declaration negotiating period or, otherwise, after the making of the intractable bargaining declaration (s.270(3)).

[4] This decision concerns the parties' dispute in relation to which terms are 'agreed terms' for the intractable bargaining workplace determination for the purposes of ss.270(2) and 274(3) of the Act.

[5] The note to s.274 specifies that an intractable bargaining workplace determination must include an "agreed term" and references s.270(2). Section 270(2) specifies that the determination must include "the agreed terms", referencing s.274(3).

[6] Section 274(3) defines an "agreed term" for an intractable bargaining workplace determination as follows:

"274(3) An agreed term for an intractable bargaining workplace determination is:

1. 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; and

2. any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and

1. if there is a post declaration negotiating period for the declaration - any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement."

[7] The parties were directed to file and serve a draft intractable bargaining workplace determination identifying which terms are agreed and which are not agreed. Quantem filed a draft intractable bargaining workplace determination with its submissions dated 28 November 2024 (Quantem's Proposed Workplace Determination)[2] and contends that all the terms contained therein are 'agreed terms' for the purpose of s 274(3)(a) of the Act.[3]

[8] The UWU's position about whether there are 'agreed terms', and what they are, has altered over time. By the time of the hearing, the UWU's position was that, save for three particular terms (the Disputed Agreed Terms), the terms in Quantem's Proposed Workplace Determination are agreed terms for the purpose of s 274(3)(a).[4]

[9] The Disputed Agreed Terms are in summary:

a) the term governing the mechanism for varying hours worked in excess of core hours for part-time employees (part-time employee clause);[5]

b) the term governing the base wage of Existing Shift Employees working the Terminal Roster or, in the alternative, the term governing annual leave loading for these employees;[6] and

c) the term governing the overtime rate for Existing Shift Employees working the Terminal Roster.[7]

The identity of the bargaining representatives for the Proposed Agreement

[10] Bargaining for the Proposed Agreement, which would cover approximately 16 employees, commenced in July 2022 after Quantem issued a notice of employee representational rights to bargain for a replacement to the GrainCorp Operations Limited Queensland Operations Enterprise Agreement 2019.[8]

[11] It is not in dispute that at all relevant times, there were only three bargaining representatives for the Proposed Agreement:

a) Quantem, as employer bargaining representative for itself;[9]

b) Mr Jon De Unamuno, who bargained on behalf of Quantem from the commencement of the bargaining and was formally appointed as Quantem's bargaining representative on 19 April 2024;[10] and

c) the UWU, as the default bargaining representative for those of its members, proposed to be covered by the Proposed Agreement, who had not appointed themselves or someone else as bargaining representative.[11]

[12] While there have been bargaining teams for both Quantem and the UWU which have, at various times, included other individuals, Mr De Unamuno and Mr Quan Chuc, a Lead Organiser for the UWU, have had primary carriage of bargaining for the respective parties.[12] It is significant to note in the context of the dispute to be resolved that Mr Chuc has agreed that he was the voice of the union when he wrote or spoke.[13]

[13] Bargaining for the Proposed Agreement has been protracted. Between October 2022 and August 2024, there were 20 bargaining meetings. There have also been 10 conferences before Commissioner Hunt under a s.240 application made by Quantem.[14]

[14] A chronology of events setting out the history of bargaining is appended to Quantem's submissions but it is not necessary to traverse this in its entirety. The relevant starting point in the chronology for the purposes of this decision is 10 July 2024. On that date, Mr De Unamuno wrote to the UWU raising concerns that the UWU was not meeting its good faith bargaining obligations. In that letter, Mr De Unamuno requested the "UWU identify in writing whether there are any other bargaining claims that the UWU presses in order to endorse and provide in-principle agreement to the Proposed EA."[15]

[15] On 12 July 2024, Mr Chuc sent an email in response to Mr De Unamuno.[16] This set out what the UWU considered to be the "remaining outstanding issues for resolution" (Two Remaining Issues), which were described in the following terms:

1. The inclusion of the 17.5% Annual Leave loading amount in the annualised salary calculations for Existing Shift Employees on the Terminal Roster - with the UWU's position being that the proposed annualised base wage of $96,016.45 for the Terminal Roster was not inclusive of the 17.5% Annual Leave loading and if Quantem sought to retain the wording in clause 19.2(a) of the draft, it would either need to be amended so as to only apply to the 24/7 Continuous Roster, or the annualised base wage proposed for the Terminal Roster would need to be amended to reflect the inclusion of the 17.5% loading over and above the current rate.

2. Overtime for the Terminal Roster - with the UWU's position being that overtime would need to be paid on the basis of the $96,016.45 annualised base wage as it does not accept that it includes the 17.5% annual leave loading component.

[16] On 18 July 2024, Mr De Unamuno wrote to the UWU in relation to the Two Remaining Issues, providing three options to resolve the annual leave loading issue. [17] These options were referred to as options 1, 2 and 3.[18]

[17] Mr De Unamuno said that Mr Chuc subsequently called him on 5 August 2024 and said words to the effect that that the UWU was going to endorse option 1.[19]

[18] A bargaining meeting was arranged for 6 August 2024. Before the meeting started, Mr De Unamuno had a conversation with Mr Chuc. The evidence of Mr De Unamuno was that Mr Chuc said words to the effect that he had read the 18 July 2024 letter and the UWU would be endorsing option 1 because that is what his members wanted.[20] Under cross examination, Mr Chuc firstly said that he could not recall saying those words, before stating that he did not believe he had said them and then ultimately stating that he didn't recall having the discussion.[21]

[19] Mr De Unamuno's further evidence was that during the 6 August 2024 bargaining meeting, Mr Chuc asked some questions about the Two Remaining Issues and the options Quantem had proposed in the 18 July 2024 letter. Mr De Unamuno said that when Mr Chuc specifically asked for confirmation as to whether option 1 in the 18 July 2024 letter was inclusive of annual leave loading and whether overtime was based on the hourly rate of $47.03 (being the rate that did not incorporate annual leave loading), he confirmed these matters.[22] Mr Chuc conceded during the hearing that he knew that the applicable rate for overtime would be the lower rate.[23]

[20] Mr De Unamuno said that when he was asked how personal leave would accrue under the terms of the Proposed Agreement, he responded by stating that the only things that were to be discussed during the 6 August 2024 bargaining meeting were the Two Remaining Issues. He said that Mr Chuc then requested to take a break to discuss the Two Remaining Issues with the UWU delegates and that when he returned after approximately 10 minutes, Mr Chuc stated that the "UWU endorsed option 1".[24] Mr De Unamuno said that when he asked Mr Chuc whether $47.03 could be confirmed as the rate used for overtime payments, Mr Chuc responded "yes".[25] Mr McSherry and Mr Grant, who are Operators and UWU delegates at the Pinkenba terminal, accepted that it was communicated that the UWU endorsed option 1 without qualification[26] and Mr Chuc himself accepted this when it was put to him during cross examination.[27] Mr De Unamuno said that when he then asked Mr Chuc whether Quantem had the UWU's endorsement and in-principle agreement and whether the UWU would recommend approving the Proposed Agreement to their members, Mr Chuc's answer was "yes".[28] Mr Bland, Quantem's Operations Supervisor at its Pinkenba terminal, asserted that Mr Chuc said words to the effect that the UWU would endorse the deal.[29]

[21] Mr De Unamuno said he then read out some other minor drafting changes to the Proposed Agreement which did not relate to the Two Remaining Issues and having done so, Mr Chuc said words to the effect that they seemed fine and that Ms Ananth would review them. Consequently, at 10.54am on 6 August 2024, Mr De Unamuno emailed Mr Chuc the final Proposed Agreement (Final Agreement).[30] He said this reflected the UWU's endorsement of option 1 and the rate of overtime pay to be paid for employees working the Terminal Roster, together with the other minor amendments they had discussed.[31]

[22] Mr Chuc emailed Mr De Unamuno at 10.55am on 6 August 2024, outlining that "as discussed at today's EA meeting the union has endorsed option 1 subject to agreement on the final drafting of the EA document."[32] Mr Chuc accepted his words of qualification regarding drafting changes were about the minor drafting changes that Mr De Unamuno had read out.[33] Mr De Unamuno said that following these events, he understood that the Two Remaining Issues had been resolved and that Quantem and the UWU had reached agreement.

[23] We note that it is not in contention that the UWU did not provide further any feedback on terms relevant to the Two Remaining Issues. The only feedback Quantem received from the UWU before 2 September 2024 concerned an alleged BOOT issue regarding the rate of pay for part-time employees. This was unrelated to the Two Remaining Issues.

Correspondence after 6 August 2024 until 2 September 2024

[24] The next communication was an email from Mr De Unamuno to Mr Chuc sent on 13 August 2024. In that email, Mr De Unamuno provided a clean copy of the Final Agreement and the summary documentation relating to it and he advised that the access period would commence the following week. Mr De Unamuno said there was no reply to this email. On 19 August 2024, Mr Bland sent an email to all operators which attached a copy of the Final Agreement, an explanatory document, voting information and advice that there would be briefing sessions and a UWU mass meeting.[34] Also attached was a Notice of Vote document which included a statement in bold font, "The UWU and Quantem endorse the Proposed Agreement."[35] The UWU took no issue with that statement at that time.[36]

[25] At this stage, the UWU had not raised any concerns in relation to the minor drafting changes referred to in paragraph [21] above, and nor did Mr Chuc (or anyone else from the UWU) either raise any issues with the terms of the Final Agreement or attempt to retract, retreat or resile from them.

[26] The first correspondence sent by the UWU following the 6 August 2024 bargaining meeting was after the access period had commenced. In correspondence emailed on 20 August 2024, Mr Chuc raised a perceived BOOT concern regarding the rate of pay for part-time employees.[37] This concern had not previously been raised and has materialised into the disputed part-time employee clause.

[27] On 21 August 2024, Mr De Unamuno responded by advising that Quantem does not employ part-time employees at the Pinkenba terminal and otherwise maintaining that there was no BOOT issue. Mr De Unamuno also suggested that Quantem would consider giving an undertaking as part of the enterprise agreement approval process if required.[38] Mr Chuc replied by email later that evening, maintaining that the part-time employee clause should be updated and "reminding" Mr De Unamuno that the UWU's "endorsement of this offer was subject to wording of the final draft."[39] This point was not further pressed by the UWU and nor did the UWU indicate any other issues with the Final Agreement or a departure from the endorsement that had been given at the 6 August 2024bargaining meeting. While unrelated to the Two Remaining Issues, the UWU contends that the part-time employee clause is not an "agreed term" and forms, with the Two Remining Issues, the Disputed Agreed Terms.

[28] Voting for the Final Agreement took place on 29 and 30 August 2024. The Final Agreement was not approved.

[29] There was no further correspondence sent from the UWU prior to the IBD Application being made on 2 September 2024.

[30] Quantem submits that the only question to be determined is what are the agreed terms within the meaning of s.274(3)(a) the Act, that is, the agreed terms at the time the IBD Application was made on 2 September 2024.

[31] As for determining what the agreed terms are, Quantem contends this requires the application of an objective test, with an objective assessment to be undertaken as to whether there was a meeting of the minds between Mr De Unamuno, as bargaining representative for Quantem, and Mr Chuc, the voice of the UWU as the bargaining representative of the UWU members. Quantem argues that it has been established that the objective intention of the parties is arrived at by assessing what a reasonable person, with the knowledge of the words and actions the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude the parties had. Relatedly, Quantem argues that evidence of uncommunicated subjective intention is irrelevant.

[32] Quantem argues that in this case, the words that were spoken, and the conduct that was engaged in are to be taken at face value and there should be no acceptance of an argument that Mr Chuc's words did not mean what he actually said. In particular, Quantem contends that the Full Bench should disregard both the evidence of the UWU witnesses going to what they say they discussed in another room on 6 August 2024 and what Mr Chuc says was in his mind when he said what he said or wrote what he wrote that day because these matters were never disclosed to Quantem. Quantem argues that the communications between the parties leading up to and on 6 August 2024 is direct evidence of what was objectively intended and agreed between the parties prior to 2 September 2024. Quantem submits that Mr De Unamuno gave an unchallenged account that Mr Chuc said words to the effect that the UWU was going to endorse the option 1 outlined in the 18 July 2024 letter during their telephone conversation on 5 August 2024. As to what was said on 6 August 2024, the broad position of Quantem is that Mr De Unamuno's account was almost entirely uncontested. Quantem emphasises that while Mr Chuc gave equivocal evidence when re-examined, the evidence of Mr De Unamuno, Mr McSherry and Mr Grant was that after having taken a break during the 6 August 2024 bargaining meeting, Mr Chuc returned and said that the UWU endorsed Option 1. Quantem also submits that Mr Unamuno's account that $47.03 would be the rate used for overtime payments was confirmed by Mr Chuc. Quantem says that Mr Chuc responded affirmatively when Mr De Unamuno enquired as to whether the UWU endorsed and gave in-principle agreement to the Final Agreement, and would recommend to their members that it be approved.

[33] Quantem contends that the contemporaneous documentary evidence can assist the Full Bench to draw conclusions as to what was said in the meetings, and in particular, the 6 August 2024 bargaining meeting. In this regard, it relies on the email Mr Chuc sent to Mr De Unamuno at 10.55am on 6 August 2025.[40] This stated that the UWU endorsed Option 1 subject to agreement on the final drafting, which Quantem submits was endorsement of the changes tracked in the version of the Final Agreement emailed one minute earlier,[41] which ultimately presented no issues for the UWU. Quantem argues that the wording Mr Chuc used was unambiguous. It also points to the fact that the UWU took no issue with the statement "The UWU and Quantem endorse the Proposed Agreement" in the Notice of Vote document[42] circulated on and after 19 August 2024. Quantem also emphasises that the UWU has not suggested that the unsuccessful ballot vote undid any of that which was contained within the Final Agreement, accepting that everything other than the Two Remaining issues, and the part-time employee clause, are agreed terms.

[34] Quantem submits that 'endorse' is an acceptable word to use for the purpose of identifying the terms that should be included in the agreement pursuant to s.274(3)(a) of the Act. Quantem contends that 'endorse' is to have its ordinary meaning, which is to express a positive opinion, to approve or support, unless context otherwise dictates. Quantem argues that the context does not dictate otherwise in this case and emphasises that Mr Chuc had accepted under cross-examination that from May 2024 until it was used on 6 August 2024, 'endorse' meant 'support'. Quantem submits that Mr Chuc's suggestion that 'endorse' meant something less than 'support' when used after 6 August 2024 should not be accepted. Quantem proffers that Mr Chuc having some other, different meaning of the word in his mind cannot change the objective meaning of the word. Quantem also emphasises that because Mr Chuc was the voice of the UWU and the UWU is the bargaining representative, the relevant question when considering s.249(3)(a) is whether the bargaining representatives agreed. Quantem asserts that what non-bargaining representatives, such us Mr McSherry and Mr Grant, thought or felt about the Final Agreement does not matter. Quantem submits that based on what was actually communicated between the parties, the Full Bench should find that the UWU did endorse and support the Final Agreement, inclusive of option 1 and the $47.03. Quantem's position is that objectively assessed, the bargaining representatives had agreed, at the time the IBD Application was made, that the terms in the Final Agreement put out to the vote should be included in the "agreement".

[35] As regards the part-time employee clause, Quantem submits there was no matter at issue in relation to part-time employees being paid overtime rates above their agreed hours at the time the IBD Application was made on 2 September 2024. The basis of Quantem's submission is that the clauses for part-time employees in the Final Agreement already do what the UWU wants to ensure they do. Further, Quantem submits that there was nothing in the evidence or submissions that suggests that the requirement for part time employees to agree in writing to work in excess of their agreed hours at the Hourly Rate of Pay was an extant claim as at 2 September 2024.

[36] Quantem therefore submits that the Full Bench should conclude that everything is agreed and that Quantem's Proposed Workplace Determination[43] outlines the agreed terms for the purpose of s.274(3)(a) of the Act. Quantem also submits that Quantem's Proposed Workplace Determination includes all core terms required by s.272 of the Act and all mandatory terms required by s.273 of the Act.[44] As such, Quantem submits that the Full Bench should make a workplace determination in the terms of Quantem's Proposed Workplace Determination.

[37] The UWU acknowledges that to the extent that the Full Bench has to determine whether a term is agreed, it is to look at the objective circumstances and not the subjective intentions of the parties and it concedes that when considering the circumstances leading up to the relevant events, what is only in the minds of one or more of the witnesses and never articulated remains an irrelevant consideration. The UWU accepts that at the time the IBD Application was made on 2 September 2024_,_ the vast majority of the Final Agreement was objectively, if not expressly, agreed by the bargaining representatives and places significance on the email correspondence dated 12 July 2024 from Mr Chuc to Mr De Unamuno setting out the Two Remaining Issues. [45] Relatedly, the UWU accepts that at that point, viewed objectively, it could be accepted that the terms of the Final Agreement which did not touch on the Two Remaining Issues, were agreed terms for the purposes of s 274(3) of the Act.

[38] The UWU contends that Quantem was aware that the UWU delegates were pushing certain claims which were important issues in the context of the bargaining. In support of this contention, the UWU places significance on events leading up to the 6 August 2024 bargaining meeting. The UWU relies on the industrial action that was aborted on the basis of discussions between Quantem and the UWU delegates, the exchange of draft agreements which had not resulted in agreement being reached, the good faith bargaining concerns conveyed to Mr Chuc by Mr De Unamuno, which it suggests had prompted Mr Chuc's 12 July 2024 response articulating the Two Remaining Issues, and Mr Grant's continuing frustration and disappointment arising from his belief that Quantem had reneged on an earlier agreement in relation to the Two Remaining Issues.

[39] The UWU submits that when objectively viewed in this context, Mr Chuc did not accept that every term of the Final Agreement had been agreed at the 6 August 2024 bargaining meeting but rather, his endorsement of option 1 was an agreement that the Final Agreement should be put out to a vote. In order to make good this submission, the UWU argues that neither Mr Chuc nor the union delegates, whom it submits form part of the "bargaining team", conceded the claims in respect of the Two Remaining Issues during the 6 August 2024 bargaining meeting. The UWU contends Mr Chuc's subsequent email sent to Mr De Unamuno at 10.55am on 6 August 2024 reflected the context of their meeting and was meant to summarise the position he had articulated (i.e. that option 1 was the option upon which the UWU members should vote).

[40] The UWU relies on Mr Chuc not having said that the UWU agreed to the content of option 1 and submits that he simply agreed that Quantem be given an opportunity to put the agreement out to a vote again. The UWU concedes the language used by Mr Chuc in the 6 August 2024 bargaining meeting and the phrasing he used in his email was infelicitous and "loose" but submits that infelicitous language used in the context of long-running and fractious enterprise bargaining should not obscure the fundamental disagreement which remained. The UWU also urges the Full Bench to accept that one or both of the UWU delegates expressing the view that the Final Agreement would not be voted up is an important contextual consideration because it was a position put forward from the "UWU bargaining side" conveying that the Two Remaining Issues are not agreed terms for the purposes of s.274(3) of the Act.

[41] The UWU dismisses the Notice of Vote document circulated on and after 19 August 2024 on the basis that it was Quantem's document, as opposed to being a representation made by the UWU or anyone on the UWU "bargaining team" that the Two Remaining Issues were resolved and that all outstanding claims had been withdrawn. The UWU argues that while it may be considered obvious that Quantem believes the UWU had given its endorsement, this does not prove, in the necessary objective sense, that the UWU had agreed to the Final Agreement.

[42] The UWU submits that even setting aside the subjective, uncommunicated opinions of its witnesses and the result of the ballot when the Final Agreement was put to the vote, the objective circumstances were such that the Two Remaining Issues articulated in the 12 July 2024 email from Mr Chuc to Mr De Unamuno were still not resolved.

[43] As regards the wording of the part-time employee clause, the UWU submits that Mr Chuc raised his concern with the formulation of the part-time employee clause prior to Quantem making the IBD Application on 2 September 2024, having clearly identified that it was not agreed in its current state in his 20 August email to Mr De Unamuno. The UWU submits that it is of no consequence that the UWU did not provide an alternative draft or that the Final Agreement was already in the access period. It relies on Mr Chuc having outlined that the UWU had problems with the part-time clause related to the BOOT, as an indication that it wanted it amended. The UWU contends that it is enough that it had articulated that the part time clause was not an agreed term and submits that it matters not that the part time clause was not a "huge" issue within the context of the bargaining.

[44] The UWU submits that the Full Bench should conclude that there remain three issues in dispute and that the entirety of Quantem's Proposed Workplace Determination does not constitute agreed terms within the meaning of s.274(3) of the Act.

[45] The parties are in broad agreement as to the applicable principles to be applied to determining a matter of this type.[46]

[46] It is convenient to again outline the current text of s.274(3) of the FW Act, which provides that an "agreed term" for an intractable bargaining workplace determination is any of the following:

"274(3) An agreed term for an intractable bargaining workplace determination is:

1. 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; and

2. any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and

1. if there is a post declaration negotiating period for the declaration - any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement."

[47] This text was inserted into the Act by item 70C of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).[47]

[48] Subsection 274(3) is intended to operate cumulatively, such that additional terms may become "agreed terms" at each stage. Once a term is an "agreed term" according to any of ss 274(3)(a)-(c), it remains an "agreed term" and cannot later become a term dealing with a matter still at issue or be left out of the determination.[48] This ensures that bargaining representatives cannot retract their agreement to proposed terms once an intractable bargaining declaration application is made.

[49] Resolving the parties' dispute in this case in relation to which terms are 'agreed terms' for the intractable bargaining workplace determination requires determining what were the agreed terms at the time the application for the intractable bargaining declaration concerned was made on 2 September 2024 (s.274(3)(a) of the Act).

[50] While the Act does not define the meaning of "agreed" or "term" as those words are used in s 274(3), three Commission Full Bench decisions include consideration of the interpretation of s.274(3):

1. U_nited Firefighters' Union v Fire Rescue Victoria_ [2024] FWCFB 43 (UFU v FRV); [49]

1. Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 305 (TWU v Cleanaway); and

2. Network Aviation Pty Ltd as Trustee for The Network Trust T/A Network Aviation Australia v Australian Federation of Air Pilots, Australian and International Pilots Association, Transport Workers' Union of Australia [2024] FWCFB 308 (Network Aviation).

[51] While UFU v FRV was decided in a slightly different legislative context[50] the principles expressed by the Full Bench in UFU v FRV remain apposite and have been broadly endorsed in both TWU v Cleanaway and Network Aviation. The UWU submits, and we agree, that those decisions should be followed unless the Full Bench considers them to be plainly wrong.[51]

[52] In UFU v FRV, the Full Bench set out the following "elements" to s 274(3):

• First, s 274(3) has, at its centre, a requirement that certain matters be "agreed";

• Second, the FW Act does not state that a term must be "agreed" simpliciter. The subject matter of what must be "agreed" is that there be a "term" of the proposed enterprise agreement concerned which "should be included in the agreement";

• Third, that agreement must be between the "bargaining representatives"; and

• Fourth, that agreement must exist at a defined point of time. Where there is a post declaration negotiating period in place, the point in time is at the end of that period. If there is no post-declaration negotiating period, the point in time is at the time the intractable bargaining declaration was made.[52]

[53] In addition to the elements of s 274(3) identified in UFU v FRV, other relevant principles of interpretation have been expressed.

[54] The Full Bench in Network Aviation subsequently summarised, and adopted, the following points of principle drawn from UFU v FRV regarding how the term "agreed" should be understood:

1. agreement must co-exist at the point in time defined by the statute;

2. 'agreed' takes on its ordinary meaning; being the past participle form of 'agree', it refers to 'consent', to 'be of one mind' and to 'come to an arrangement or understanding';

3. agreement may assume many forms, the looser form - an arrangement or understanding to the more formal, such as contract. However, within that 'spectrum of consensual dealings', there remains a requirement for a meeting of minds or consensus about the proscribed [sic] statutory subject matter; and

4. it is understood that parties are free to resile from most forms of agreement, an agreement being a consensual dealing; and

e) an assessment as to whether parties are 'agreed' on a term is a matter to be assessed objectively."[53]

[55] The agreement required is between the "bargaining representatives for the proposed enterprise agreement concerned."[54] Specifically, this requires agreement by all those bargaining representatives.[55]

[56] As to what is meant by "term", the Full Bench in Network Aviation said as follows:

"... when one considers ss 270, 270A, 271, 272, 273, 274 and 275 of the Act, in addition to Part 2-4, it is apparent that the meaning of the word 'term' in Part 2-5 is analogous to the meaning attributed to the word in Part 2-4. The equivalent of the word in other legal settings and oft used in industrial parlance - is a 'clause'."[56]

[57] In UFU v FRV, the Full Bench confirmed that whether the parties are "agreed" is a matter to be assessed objectively.[57] Having regard to the conflicting submissions of the parties in relation to the witness evidence, we note the assistance that contemporaneous documents can give in determining contested factual issues, described in the following terms by Justice Lee in Transport Workers' Union of Australia v Qantas:

"Although this is an industrial case, as those experienced in commercial litigation are aware, in determining contested factual issues, what matters most is usually "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J). As Leggatt J (as his Lordship then was) said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (at [22]):

... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

Whether, as Full Court recently observed (in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 (at [239] per Allsop CJ, Besanko and Middleton JJ), this approach is best seen as a helpful working hypothesis rather than a form of rule or general practice of placing little reliance on recollections is not something that matters for present purposes. What presently matters is that, at least in part, such an approach has an unstated assumption: that is, that the contemporaneous notes and documents that do exist emerged as the extemporaneous and unvarnished product of the conduct of internal dealings or communications between the contesting parties. The confidence that can be placed in the narrative that emerges from the contemporaneous record is increased when the relevant documents can be seen as the unfiltered and sufficiently complete record of what people were thinking and doing in "real time"."[58]

[58] As regards the documentation in this case, Mr Chuc sent Mr De Unamuno the email dated 12 July 2024 in which he outlined "the remaining outstanding issues for resolution." Having set out the Two Remaining Issues, we are satisfied, and note the UWU accepts, that at this point the terms of the Proposed Agreement which did not touch on the Two Remaining Issues were capable, on an objective assessment, of being accepted as "agreed terms" for the purposes of s.274(3).[59] We are fortified in this conclusion by the fact that Mr De Unamuno confirmed what was the UWU's understanding as to the Two Remaining issues when he wrote in reply on 18 July 2024 and then proposed options 1, 2 and 3 to resolve one of them, namely the annual leave loading issue. In this letter, Mr De Unamuno requested that the UWU reply with its position on the Two Remaining Issues.

[59] It is not in dispute that Mr Chuc telephoned Mr De Unamuno on 5 August 2024. By this time the UWU had had nearly 3 weeks to consider the options 1-3. Mr De Unamuno has given unchallenged evidence that during this phone call, Mr Chuc said words to the effect that that the UWU was going to endorse option 1.[60] Mr De Unamuno also said that just before the 6 August 2024 bargaining meeting started, Mr Chuc said words to the effect that he had read the 18 July 2024 letter and the UWU would be endorsing option 1 because that is what his members wanted.[61] We prefer the evidence of Mr De Unamuno in this respect because the evidence given by Mr Chuc on this point was inconsistent and uncertain.[62] We have also noted Mr De Unamuno's evidence:

1. that in discussions during the 6 August 2024 bargaining meeting, Mr Chuc asked for, and was given, confirmation that option 1 in the 18 July 2024 letter was inclusive of annual leave loading and that overtime was based on the hourly rate of $47.03; and

2. that when Mr Chuc returned from discussions with the UWU delegates, he told Mr De Unamuno that the UWU endorsed option 1 and, when asked to do so, Mr Chuc also confirmed that the $47.03 rate could be used for overtime payments.[63]

[60] Mr De Unamuno also gave unchallenged evidence that Mr Chuc answered in the affirmative when asked whether Quantem had the UWU's endorsement and in-principle agreement and whether the UWU would recommend approving the Proposed Agreement to its members.[64]

[61] In terms of documentation that was contemporaneous with the discussions at the 6 August 2024 bargaining meeting, the email Mr De Unamuno sent Mr Chuc (and others) at 10.54 am that day attached marked and clean copies of the Final Agreement "as discussed"[65] and we note these copies contained the annualised base wage proposed by Quantem under option 1 and the $47.03 hourly rate of pay for a fully qualified operator from which overtime rates were to be paid. There was also Mr Chuc's email to Mr De Unamuno sent at 10.55am that day, which stated:

"As discussed as today's EA meeting the union has endorsed option 1. (Reference letter received on 18-7-2024) subject to agreement on the final drafting of the EA document."[66]

[62] While the UWU submitted that this particular email was meant to convey Mr Chuc's position that option 1 was the option upon which the UWU members should vote, we note that the email specifically referenced Mr De Unamuno's letter dated 18 July 2024 which included the request that the UWU indicate which of the three options were acceptable and to confirm whether it maintained its claim regarding the overtime rate of pay.

[63] We note that on the question of whether terms were agreed for the purpose of s.274(3) of the Act, the Full Benches in both UFU v FRV and Network Aviation addressed circumstances in which one party reserves its position. In UFU v FRV, it was held that:

"Where a party has, objectively assessed, genuinely reserved its position on particular terms or the entire agreement to the effect that matters are only agreed "in principle" or are "subject to" a satisfactory overall package being determined, then that is strongly indicative that those matters would not be "agreed" for the purpose of s 274(3)."__[67]

[64] The circumstances of each case will be determinative and the Full Bench in UFU v FRV made clear that simply making statements during negotiations that particular terms or the entire agreement is agreed, for example, "in principle" does not automatically preclude a finding of "agreed terms" for the purpose of s 274(3). We consider it uncontroversial that UFU v FRV establishes that in the search for an agreed term, substance will prevail over form.[68]

[65] Therefore, as to the reference "subject to agreement on the final drafting of the EA document" in Mr Chuc's 6 August 2024 email, we have considered the circumstances in which this was conveyed. Mr De Unamuno's account was:

1. After Mr Chuc had communicated the UWU's endorsement of the Two Remaining Issues, he (Mr De Unamuno) read out some unrelated, minor drafting changes to the Proposed Agreement;

2. Mr Chuc said words to the effect that these seemed fine and that Ms Ananth would review them; and (as a result)

3. He emailed Mr Chuc the Final Agreement at 10.54am.

[66] Whereas Mr Chuc had agreed under cross-examination that the words "subject to agreement on the final drafting of the EA document" were used in reference to the minor drafting changes that had been discussed,[69] when re-examined his evidence was that the UWU's endorsement was subject to the terms of the Final Agreement being reviewed by the UWU members.[70]

[67] In addition to arguing that Mr Chuc did not explicitly concede the claims in respect of the Two Remaining Issues during the 6 August 2024 bargaining meeting, the UWU has otherwise relied on Mr Chuc's evidence that when he uses the word "endorse", he does so to convey his support for an agreement going out to the UWU members for consideration, so they can vote on it.[71] As to the first argument, we do not consider it was necessary for Mr Chuc to state the UWU was conceding its claims when he conveyed his endorsement of option 1 and confirmed that the $47.03 rate could be used for overtime payments.

[68] As to the second proposition, in circumstances where Mr Chuc at no stage explicitly stated that he was endorsing the Proposed Agreement "being put out to a vote",[72] the UWU seeks for us to forgive Mr Chuc's use of the word "endorse" as having simply been "infelicitous" or "loose" and to accept that fundamental disagreement remained between the parties. We do not accept the UWU's characterisation of Mr Chuc's use of the word "endorse" as "infelicitous" or "loose" when regard is had to the sequence of events we have outlined above.

[69] Further, apart from asking us to unrealistically strain what is commonly regarded as the ordinary meaning of "endorse" in the context of enterprise bargaining, Mr Chuc's uncommunicated subjective intention is irrelevant. As was discussed in Ryeldar Pty Ltd v Euphoric Pty Ltd (Ryeldar),[73] the type of intention relevant to contract formation and construction is_:_

"...the "objective intention" of the parties. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had, concerning the subject matter of the alleged contract."[74]

[70] We consider that a reasonable person, operating within the context within which this bargaining was occurring, which we have outlined above, would conclude that when it was communicated that something was "endorsed" and no more, it was agreed.

[71] It was not enough for Mr Chuc to hold the belief that when he uses the word "endorse", "it's to support the agreement to go out to the members for consideration so they can vote on it." This belief was not conveyed to Quantem. Further, there was no reason for Quantem, having regard to the sequence of events and the correspondence exchanged, to have understood this was what Mr Chuc meant. The UWU concedes that what is only in the minds of one or more of the witnesses and never articulated remains an irrelevant consideration,[75] and as was outlined in Ryeldar:

"a subjective intention not to contract, not communicated in any way to the person with whom one is dealing, and not ascertainable from the context within which one is speaking or acting, is not sufficient to stop a contract being entered."[76]

[72] As to Mr Chuc's evidence regarding what he meant when he used the words "subject to agreement on the final drafting of the EA document", we do not consider it persuasive. The reality is that save for Mr Chuc's emails on 20 August 2024 and 21 August 2024 concerning the part-time employee clause, neither he nor anyone else from the UWU felt compelled to provide any feedback whatsoever in relation to the contents of the Final Agreement, even while it was being put to a vote. This leads us to prefer Mr De Unamuno's evidence that the words "subject to agreement on the final drafting of the EA document" were in reference to the minor drafting changes to the Proposed Agreement to be subsequently reviewed by Ms Ananth. That there was at no stage correspondence sent by the UWU after 6 August 2024 in relation to these minor drafting changes, let alone the Two Remaining Issues, leads us to conclude that the contents of the Final Agreement were "agreed terms", subject to what we outline below in relation to the part-time employee clause.

[73] We acknowledge there was also evidence led as to what was discussed between Mr. Chuc and the UWU delegates in their private meeting on 6 August 2024. However, whatever was discussed in that meeting is irrelevant unless it was articulated to Quantem and Mr De Unamuno as the other bargaining representatives. So while the UWU has sought to reference what was said in Mr Chuc's private conversation with the UWU delegates, this does not change what was communicated to Quantem. That is, the UWU endorsed option 1 and gave in-principle agreement to the Proposed Agreement subject to agreement on the final drafting.

[74] The UWU has also sought to rely on extensive evidence relating to what was said to have occurred at meetings on 19 and 20 June 2024 between Mr Grant, Mr McSherry and Mr Bland and Mr Gavin Bath (General Manager Operations) from Quantem. This evidence was led after the UWU's appropriate concession in its written submissions that the real controversy in this matter involves the events which occurred after Mr De Unamuno's email of 12 July 2024 and, in particular, what happened at the 6 August 2024 bargaining meeting. Accordingly, while we accept that this evidence established that two of the Disputed Agreed Terms were important to the UWU, we note, and adopt, the approach outlined by the UWU in final submissions:

"[But] ... we don't come here to say that that evidence rises to the level of us claiming that, in fact, there was an agreed term and the basis of the agreed term was these discussions in late June. It's nothing like that. We say that it is merely a background circumstance leading into the August meeting. So we say what is clear is that there are a number of discussions prior to a five-day stoppage in late June where the delegates came away from that, those discussions, believing certain things were agreed. The company, I would concede on the evidence, they didn't believe that those things were agreed, and that's neither here nor there, but we say that the company did understand that the delegates were pushing certain claims from those discussions and that those were important issues in the context of the bargain."[77]

[75] We do not consider it necessary to deal with the 19 and 20 June 2024 evidence in any detail other than to note that it forms part of the negotiating background which extends over a two-year period. We also note that the UWU has variously contended that the UWU delegates were part of the "bargaining team", that they did not concede the claims in respect of the Two Remaining Issues during the 6 August 2024 bargaining meeting and that they proffered that that the Final Agreement would not be voted up.

[76] While we accept that the UWU delegates have held strong views throughout the bargaining, none of these contentions are determinative. The agreement reached need not involve any consensus between bargaining representatives and employees that the bargaining representatives represent. Section 274(3) is concerned only with whether there is agreement between bargaining representatives about what "should be included" in a proposed agreement.[78] In this regard, there can be no dispute that the UWU was the bargaining representative of the UWU members and that Mr Chuc was the voice of the UWU. Being part of the UWU "bargaining team" did not make the various employees serving as UWU delegates a bargaining representative for the purposes of s.274(3).

[77] As for the third of the Disputed Agreed Terms, the part-time employee clause, the background is that Mr Chuc first raised a perceived BOOT issue regarding the rate of pay for part-time employees in his email to Mr De Unamuno dated 20 August 2024. The contention of Mr Chuc appeared to be that under the terms of the Final Agreement, any extra hours worked by part time employees would not be paid at overtime rates unless the employee had been directed to perform them. In his reply mail, Mr De Unamuno asserted that clause 4.6(d)(i) of the Final Agreement requires an employee to agree to work additional hours at the hourly rate of pay, meaning that if an employee worked additional hours where there had been no agreement to do so, they would be paid at overtime rates. In pressing the concern in his 21 August 2024 email to Mr De Unamuno, Mr Chuc outlined that the UWU wanted to ensure that part time employees would be paid overtime if they worked above their agreed hours "with no caveat's attached." Although it was not articulated by Mr Chuc in such terms, the UWU contends that the issue Mr Chuc had raised "was plainly tethered to an assessment by the UWU that the clause departed in significant respects from the underlying Award term, posing a BOOT issue in certain circumstances"[79] and that it seeks for any variations to the agreed hours of work of a part-time employee (i.e. the hours were agreed on engagement) to be in writing.

[78] We have noted that Mr Chuc did not include the part-time employee clause amongst "the remaining outstanding issues for resolution" in his email to Mr De Unamuno dated 12 July 2024, and that UWU concedes that it had not sought amendment of the part-time employee clause at any stage prior to 20 August 2024. We also note Mr De Unamuno's unchallenged assertion that the wording of the part-time employee clause had not changed throughout the bargaining and the Quantem submission that there was no matter at issue at the time the IBD Application was made because the part time employee clause in the Final Agreement already does what the UWU wants to ensure it does. Ultimately, we consider that while the part-time employee clause was an agreed term as at 12 July 2024, the emails from Mr Chuc dated 20 August 2024 and 21 August 2024 indicate that UWU had resiled from its agreement in relation to it by the time the IBD Application was made on 2 September 2024.

[79] However, in the absence of any other correspondence and any other form of communication from the UWU after the 6 August 2024 bargaining meeting, we are not persuaded that the UWU resiled from its agreement to the balance of the terms of the Final Agreement.

[80] For the reasons we have outlined, we are satisfied that:

1. by the time of the 6 August 2024 bargaining meeting, all but the Two Remaining Issues had been agreed between the parties;

2. during the 6 August 2024 bargaining meeting, the Two Remaining Issues were agreed;

3. the UWU resiled from the agreement in relation to the part-time employee clause by the time the IBD Application was made on 2 September 2024;

4. the part-time employee clause was a matter at issue at the end of the post-declaration negotiating period;

5. as at the date that the intractable bargaining declaration was made on 2 September 2024, the bargaining representatives had agreed that, with the exception of the part-time employee clause, the terms of the Final Agreement should be included in the agreement; and

6. therefore, with the exception of the part-time employee clause, the terms of the Final Agreement are all agreed terms within the meaning of s 274(3)(a) of the FW Act.

[81] We are satisfied that with the exception of the part-time employee clause, Quantem's Proposed Workplace Determination[80] reflects the terms of the Final Agreement. It follows that the part-time employee clause is the only matter "still at issue" for the Commission to arbitrate.

[82] 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[81] 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.

[83] The parties will have until 3.00pm on Monday 13 October 2025 to provide any written submission in response to our provisional view in relation to the part-time employee clause.

B Avallone and D Fawcett of counsel for Terminals Pty Ltd.

[1] Order dated 26 September 2024 (PR779673). For the reasons for decision for making the Declaration, see Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling v United Workers' Union [2024] FWC 2707.

[3] Save for what Quantem describes as necessary machinery and other changes.

[4] Transcript 17 December 2024 PN 2000.

[5] Clause 4.6 of Quantem's Proposed Workplace Determination - CB 850.

[6] Clauses 8.3(b) or 19 of Quantem's Proposed Workplace Determination. An "Existing Shift Employee" is defined in clause 3.1 of Quantem's Proposed Workplace Determination - CB 855 and CB 864.

[7] Clause 8.3(b) of Quantem's Proposed Workplace Determination. The Terminal Roster is set out in Appendix 2 of Quantem's Proposed Workplace Determination - CB 858.

[9] Section 176(1)(a) of the Fair Work Act 2009 (the Act).

[10] Exhibit A1 -Annexure JD-3 - CB 950; FW Act, s 176(1)(d).

[11] Section 176(1)(b) of the Act and Exhibit A1 at [24] - CB 884.

[12] Exhibit A1 at [24] - CB 884 and at [29] - CB 885.

[13] Transcript 16 December 2024 PN559-560.

[14] Exhibit A1 at [25] and [38] - CB 884 and CB 887.

[15] Exhibit A1 -Annexure JD-35 - CB 1851.

[16] Exhibit A1 -Annexure JD-36 - CB 1883.

[17] Exhibit A1 -Annexure JD-37 - CB 1887.

[21] Transcript 16 December 2024 PN1066-1069.

[23] Transcript 16 December 2024 PN737-738.

[24] Transcript 16 December 2024 PN 319.

[25] Exhibit A1 at [84] - CB 895 and Transcript 16 December 2024 PN 325 and Exhibit A4 at [12] - CB 879.

[26] Transcript 17 December 2024 PN1502-1505 and PN1789-1790.

[27] Transcript 16 December 2024 PN 717 and PN 720.

[30] Exhibit A1 - Annexure JD-39 - CB 1897.

[31] Exhibit A1 -CB 897 at [89]-[90].

[32] Exhibit A1 -Annexure JD 40 - CB 1960.

[33] Transcript 16 December 2024 PN767-768.

[34] Exhibit A1 -Annexure JD 42 - CB 2069.

[37] Exhibit A1 -Annexure JD 43 - CB 2195-2197.

[40] Exhibit A1 -Annexure JD 40 - CB 1960.

[41] Exhibit A1 -Annexure JD 39 - CB 1897.

[42] Exhibit A1 -Annexure JD 42 - CB 2071.

[44] Quantem's Submissions dated 28 November 2024 at [82] - CB 826.

[45] Exhibit R1 -Annexure QC 10 - CB 2806.

[46] Transcript 17 December 2024 PN1990.

[47] By Section 2 of that Act, this provision commenced operation when Royal Assent was received on 27 February 2024.

[48] Network Aviation Pty Ltd as Trustee for The Network Trust T/A Network Aviation Australia v Australian Federation of Air Pilots, Australian, International Pilots Association, Transport Workers' Union of Australia [2024] FWCFB 308 at [55], [56] and [140]. See also Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 at [600].

[49] The UWU made application to the Federal Court seeking certiorari and mandamus in relation to the Full Bench Decision. The application was dismissed - see United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FCAFC 12.

[50] See paragraph [47] and footnote 47 above.

[51] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [13], and the authorities cited therein. For a recent application of this principle in the Commission, relating to the making of an intractable bargaining workplace declaration, see Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd (re delegates' rights clause) [2024] FWCFB 342 at [68].

[52] UFU v FRV at [108]; cited with approval by TWU v Cleanaway at [8] and Network Aviation at [153]. Note that the fourth point is now to be read in light of the three different points in time under each of s 274(a), (b) and (c) respectively.

[53] Network Aviation at [156]; footnotes omitted, but citing UFU v FRV at [140], [142] and [145] and Australian Competition & Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475 at [101] - [108].

[58] [2021] FCA 873 at [16] and [17].

[59] Outline of Submissions of the UWU dated 28 November 2024 at [10] - CB 2618.

[62] Transcript 16 December 2024 PN1066-1069.

[63] Exhibit A1 at [82] and [84] - CB 894-895.

[65] Exhibit A1 -Annexure JD 39 - CB 1897.

[66] Exhibit A1 -Annexure JD 40 - CB 1960.

[67] UFU v FRV at [147]; see also [148]-[149].

[69] Transcript 16 December 2024 PN 767-768.

[70] Transcript 16 December 2024 PN 1077.

[71] Transcript 16 December 2024 PN806 and PN812.

[72] Transcript 16 December 2024 PN 729.

[73] [2007] NSWCA 65

[75] Transcript 17 December 2024 PN1999.

[76] [2007] NSWCA 65 at [266].

[77] Transcript 17 December 2024 PN2043.

[79] UWU's Outline of Reply Submissions dated 11 December 2024 at [17] - CB 2819.

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