s.739 - Dispute resolution

SSX Services Pty Ltd T/A Infrabuild Steel Laverton Steel Mill

Alleged dispute about any matters arising under the enterprise agreement.

• [1] An application was made by the Australian Workers' Union (AWU) regarding a dispute about the operation of Clause 38 of the InfraBuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025 (the Agreement). The Respondent to the dispute is SSX Services Pty Ltd T/A Infrabuild Steel Laverton Steel Mill (Infrabuild).

• [2] I conducted a Conference on 20 December 2024, but the parties were unable to resolve the dispute. The matter was subsequently programmed for arbitration, and I conducted a Hearing on 30 June 2025.

• [3] Section 739 of the Fair Work Act 2009 (the Act) empowers the Fair Work Commission (Commission) to deal with certain disputes under enterprise agreement dispute settlement terms. The parties agree, and I am satisfied, that the Commission has jurisdiction to arbitrate this dispute in accordance with Clause 20. Dispute Settling Procedure of the Agreement.

• [4] This dispute begins around November 2023 when the AWU advised Infrabuild of certain matters relating to the income protection insurance policy that was due to expire in October 2024. The AWU and the employees wanted a policy which included mental health coverage and for the policy to be taken out through a different provider.[1] At this time, the AWU requested a copy of the current policy and details of any claims made under it. The documents were not provided, and a dispute was subsequently filed in the Commission. Infrabuild provided the documents and the AWU withdrew its application.

• [5] On 9 October 2024, the AWU advised Infrabuild that their members had endorsed a change of income protection providers and policy. Infrabuild did not respond to this correspondence.

• [6] On 30 October 2024, the AWU became aware that Infrabuild had changed the income protection provider and policy.

• [7] On or around 5 December 2024 an income protection policy was taken out by Infrabuild (2024 policy).

• [8] This dispute is about whether the 2024 policy is 'agreed' for the purposes of Clause 38 of the Agreement.

• [9] The AWU says the 2024 policy is not an agreed policy. The AWU says that Clause 38 requires the parties to agree on the income protection policy. Infrabuild says that the 'agreement' referred to in Clause 38 is a reference to an agreement reached by the parties in 2015, and agreement is not required each time a new income protection policy is taken out.

• [10] I issued Directions, providing the parties with the opportunity to make submissions and file any evidence on the following question for determination:

Was the income protection policy taken out by the Respondent on or around 5 December 2024 an 'agreed income protection policy' for the purposes of clause 38 of the Infrabuild Steel Laverton Mill Enterprise Agreement 2021-2025?

• [11] The following provisions of the Agreement are relevant to the dispute:

(g) "the parties' shall mean the parties covered by the Agreement.

(ii) the Employees of the Company employed in roles in the classifications contained at Schedule A - Wage Schedules.

(b) The Agreement will cover The Australian Workers' Union, if the Union elects to be covered in accordance with section 183 of the Fair Work Act 2009 (Cth) and this is noted in the decision of the Fair Work Commission to approve this Agreement.

Consistent with clause 4, Period of Operation, the parties agree that no extra claims for increases in wages or conditions will occur before nominal expiry date. Increases provided for in Clause 33 - Wages Increases, are not extra claims.

The parties covered by the Agreement agree to have an agreed income protection insurance scheme; and

The parties are open to providing a suitable agreed alternative remedy to income protection.

• [12] As per the Decision approving the Agreement, the AWU is covered by the Agreement in accordance with s.201(2) of the Act.[2]

• [13] A summary of the AWU submissions is as follows:

• The language of Clause 38 is not ambiguous.
• Clause 38 records the parties' agreement to have an 'agreed income protection scheme.' The words 'agree to have' should be construed as establishing a binding obligation, which is to have an agreed income protection scheme that is agreed between the parties.

• • Clause 38 'does not provide that the parties have an agreed income protection scheme, it provides that the parties agree to have an agreed income protection scheme, and that the use of the infinitive in Clause 38 clearly evinces an intent that the agreed income protection scheme is not fixed at the time the agreement is made and requires the continued agreement the parties.'[3]

• If Clause 38 is to be considered ambiguous, then evidence of surrounding circumstances relied upon by Infrabuild is either evidence of subjective intention, evidence about matters that were superseded by later events, or otherwise irrelevant.

• • To the extent that an agreed income protection insurance scheme existed, it was a policy taken out through the AWU's preferred provider, Chifley Services[4] , which was agreed to by the AWU and Mr Renehan on 16 July 2025, and by the Employees on 28 August 2024.[5]

• There was no information or consultation with the AWU and employees about the 2024 policy.
• The AWU and the employees did not agree to the 2024 policy.

• [14] A summary of Infrabuild's submissions is as follows:

• That the words [of clause 38] are entirely uncertain.
• 'Scheme' does not have the same meaning as a 'policy'.
• 'Consensus' being required for each successive policy is not compatible with the Clause 10 of the Agreement, No Extra Claims, and that mental health illness/ injury coverage is an extra claim because it has not been part of the arrangements before.
• The parties agreed on an income protection scheme in 2015 (2015 agreement). The 'scheme' which is 'agreed' for the purpose of Clause 38, is the 2015 agreement.
• Income protection policies taken out in 2021, 2022-2023, and 2024 reflected the level of the scheme in place in 2015 'plus the additional matters.'

• • Clause 38 does not oblige there to be consensus with the employees and the AWU each time an insurance policy is taken out. The parties were agreeing to a scheme, not obliging every future insurance policy to be subject to unanimity.[6]

• If the Agreement did require the parties to agree on each insurance policy, the clause must be construed such that the parties cannot unreasonably withhold agreement, and that the AWU's refusal to agree in relation to the 2024 policy is unreasonable.
• The tender process led to changes in the policy which benefitted employees, including increases in the quantum of the lump sum benefit, funeral benefits, maximum payment and the weekly cap amounts.

• [15] The principles regarding the interpretation of enterprise agreements are well settled. Both parties referred to the principles set out by the Full Court of the Federal Court of Australia in James Cook University v Ridd, which are summarised as follows:[7]

The starting point is the ordinary meaning of the words read as a whole and in context.

• A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be 'of a practical bent of mind.' The interpretation 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.'
• Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part, or to other documents with which there is an association.'
• Context may include 'ideas that gave rise to an expression in a document from which it has been taken.'
• Records may be had to the history of a particular cause 'where the circumstances allow the court to conclude that a clause in an award is the product of a history out of which it grew to be adopted in its present form...'

• [16] A generous construction is preferred over a strictly literal approach, but 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.'

• [17] Words are not to be interpreted in a vacuum, divorced from industrial realities, but in the light of the customs and working conditions of the particular industry.

• [18] I turn first to the ordinary meaning of the relevant words and the context of the agreement as a whole. Clause 38 of the Agreement states the following;

The parties covered by the Agreement agree to have an agreed income protection insurance scheme; and

The parties are open to providing a suitable agreed alternative remedy to income protection.

• [19] The AWU says the meaning of the words in Clause 38 is not ambiguous.

• [20] Infrabuild says 'the words [of Clause 38] are entirely uncertain'[8].

• [21] It says that 'the interpretation contended for by the Applicant [AWU] fails to pay due regard to the ordinary meaning of the words read in context.'[9] I do not regard this as a submission about the ordinary meaning of the words being ambiguous or uncertain, but rather a submission about the correctness, or otherwise, of the AWU's interpretation of the meaning of Clause 38. In other words, Infrabuild's submission is that it does not agree with the meaning given by the AWU. However, simply making a statement that it does not agree with another's interpretation is not evidence of the existence of an ambiguity.

• [22] Infrabuild says there is ambiguity because the word 'scheme' referred to in Clause 38, has a different meaning to that of a 'policy'. It says that the 'scheme' taken out in December 2024 is not the same as a policy and that:

'An accepted meaning of scheme is a symptomatic plan or arrangement for attaining a particular object or putting a particular idea into effect. The scheme sets the arrangement, the actual implementation is realised by the creation of an insurance policy or a set of practices and procedures for claims making and so forth adopted by the employer who self-insures. It is important to recall that the consensus of 2015 recognised that the Respondent may self-insure for income protection which would mean that no insurance policy would ever need to be created.[10]

• [23] I am not persuaded by this submission for the following reasons. Firstly, when considering the ordinary meaning of the word 'scheme', the Macquarie Dictionary defines it as 'a policy, or plan.'[11] I consider this is particularly so in the context and language of insurance where it is commonplace to refer to scheme, policy or plan interchangeably.

• [24] Secondly, in the recent Decision of the Full Bench in United Firefighters' Union of Australia (259V) v Fire Rescue Victoria T/A FRV, the Full Bench dealt with a dispute about an income protection policy and considered 'that the words 'policy' and 'scheme' are of broad scope'.[12] I agree and adopt the reasoning of the Full Bench.

• [25] Thirdly, it was the witness evidence of Mr David McDonald (Insurance Manager, Infrabuild) that he considers and understands the word 'policy' and 'scheme' in the context of the income protection insurance, to mean the same thing, and that he uses the two terms interchangeably. Mr McDonald said that 'more often than not I'd probably use the term policy'.[13]

• [26] At the Hearing, I had an exchange with Mr Hercules Van De Merwe (Victorian Head of Rod and Bar Manufacturing, Infrabuild) about the meaning of Clause 38 of the Agreement.[14]

Commissioner Fox: (referring to Clause 38) And it says, 'the parties agree to have an agreed income protection insurance scheme'. What do you say that clause means?

Mr Van De Merwe: It's been my belief that that clause means that there should be a policy, agreed policy, as to what it covers and the terms of the policy, agreed with the AWU and the workforce.

Commissioner Fox: When you [say] 'terms of the policy' what does that mean?

Mr Van de Merwe: Not just what illnesses it covers, but what length of coverage it is, the age of the people, the maximum age that it covers and things like that.

Commissioner Fox: Okay. So what's in the policy in terms of what and who it covers?

• [27] I consider that the word 'scheme', in the context of income protection insurance, has the same meaning as 'policy' and is used interchangeably to describe the content and features such as coverage, attributes and cost. In this case, the use of the word 'scheme', instead of 'policy', does not create any ambiguity or uncertainty in Clause 38.

• [28] Infrabuild says that while it is unclear on what exactly needs to be agreed upon in Clause 38, ambiguity is not necessary to find in order to take into account the history and the 2015 agreement.[15] I deal with the history and the 2015 agreement later in this decision.

• [29] In considering the context of the Agreement as a whole, I first turn to the entirety of Clause 38 and note that the second sentence is new to the current Agreement and refers to the parties being open to agreeing to alternative options regarding income protection insurance. I do not consider this second sentence detracts or creates confusion about the ordinary meaning of the words which are the subject of this dispute. The first part of Clause 38 deals with agreement on an income protection scheme, and the second sentence contemplates the parties agreeing to an alternative income protection option. There is nothing contradictory about the two sentences, with both requiring 'agreement'. I consider that the use of the word 'agreement' is consistent with the first sentence and provides additional context which indicates that income protection insurance is not a fixed or final position of the parties.

• [30] Infrabuild says that Clause 10 of the Agreement impacts upon the interpretation of Clause 38. Clause 10 provides that the parties agree there will be no extra claims for increases in wages or conditions before the nominal expiry of the Agreement. Infrabuild says that the inclusion of mental health coverage is an extra claim (although mental health coverage was not part of the 2024 policy).

• [31] The AWU says that agreements frequently provide for parties to reach agreement on different matters, which is what Clause 38 does. It says that to the extent that Clause 10 may have application, it is a general term, and the term 'dealing with income protection' is a specific term, and the specific term should prevail over the general term to the extent of any inconsistency.

• [32] I do not accept that the request to include mental health coverage is an extra claim. If Clause 10 were to apply as Infrabuild suggests, then presumably there can be no changes made to the policy in any way, including to the cost, coverage or provider, during the life of the Agreement. If a request to include mental health coverage in the income protection policy is to be considered as an extra claim, then so too would a change of provider and a reduction in the cost of the insurance - both of which Infrabuild secured in the 2024 policy.

• [33] It is uncontested by the parties that the income protection policy is renewed annually. I do not consider Clause 10 provides additional context to the ordinary meaning of the words in Clause 38, to render them uncertain, particularly as the policy has been the subject of change during the life of the Agreement - which is a feature of income protection insurance. The fact that there is a dispute about the terms of the Agreement does not necessarily mean that what the AWU is seeking is an extra claim.

• [34] Infrabuild says the words 'agreed income protection scheme' in Clause 38, means the 2015 agreement. It says that in 2015 the parties' reached agreement on the key features of an income protection scheme and Clause 38 reflects this agreement. Evidence was submitted of communications between AWU officials and Infrabuild in 2015 about income protection and the drafting of the enterprise agreement clause relating to income protection.

• [35] Infrabuild submits that the practical industrial reality of disputation which occurred during the 2015 agreement period is relevant context. When the agreement failed to be voted up by employees there was a concerted effort by the parties to finalise a new Agreement. Infrabuild says the emails in evidence show that a resolution was reached on income protection insurance at this time - being the 2015 agreement. However, I am not persuaded this is so. It was the uncontested evidence of Mr Liam O'Brien (then Organiser at the AWU) that the clause originally contained prescriptive detail of the income protection policy features. However, the wording of the clause which was ultimately agreed upon, was changed to reflect the industrial reality at the time. I accept the uncontested evidence of Mr O'Brien in which he outlines the history of the income protection clause and the positions of the parties during the 2015 negotiations.

• [36] Mr O'Brien says that he 'suggested that the parties take a pragmatic approach and keep all aspects of the Policy and self-insurance open for ongoing negotiation and agreement after the 2015 Agreement was made to ensure that we [Infrabuild] had flexibility to respond to market conditions as they changed. I [Mr O'Brien] proposed that this arrangement be reflected in a clause stating that "The parties agree to have an agreed income protection scheme"'.[16]

• [37] It was Mr O'Brien's evidence that 'Shane [Shane Murphy, Executive General Manager, Infrabuild] did not object to my proposal and around late February 2015, version 9 of the draft agreement (Version 9) that included my proposed income protection insurance clause was prepared.[17]

• [38] I am not persuaded that the word 'agreement' referred to in Clause 38 is to be read as a reference to the 2015 agreement for the following reasons.

• [39] Firstly, Clause 38 makes no reference to a 2015 agreement. If this was the intention of the parties, then they could have said something such as 'the employer will maintain an income insurance policy in the same terms as those agreed in 2015'. They did not.

• [40] Secondly, the 'parties' agreeing to the scheme in 2015 are not the same parties to this Agreement. There are three parties to the Agreement, however, Infrabuild's argument would suggest that there are only two - Infrabuild and AWU. At the Hearing, the Agreement explanation document, provided to employee's during the access period for the approval of the Agreement, was tendered. This document explains the terms of the proposed enterprise agreement. It does not refer to the 2015 agreement or provide any details about the agreed income protection scheme. Instead, it merely restates the words in Clause 38. There is no evidence that the employees who approved the Agreement, and who are a party to this Agreement, had any knowledge of the existence of a 2015 agreement or that it was the agreed income protection policy for the purposes of Clause 38.

• [41] Thirdly, it was Mr Van Der Merwe's evidence that a full remarketing of the income protection insurance policy was undertaken for the 2024 policy. Emails from Mr Van Der Merwe describe the review parameters, however, make no reference to the 2015 agreement. I also note the consideration of mental health coverage in the policy review process. This demonstrates that the policy was not a 'set and forget' from 2015 because new features were considered.

• [42] The nature of income protection insurance tends to require regular consideration of things such as providers, insurance products, market conditions, changes in workforce demographics and composition, claims management practices, and cost. All factors which can, from an industrial perspective, cause friction, particularly because of the significant impact income protection insurance can have. Employees want to know they have certainty of coverage and that the policy benefits them, and employers want to have an affordable scheme which can appropriately provide for employees. The need for income protection insurance to have some degree of adaptability, plus the significance it has to the parties, is of assistance in considering the industrial context and purpose of Clause 38.

• [43] The evidence shows that an agreement was reached by the AWU, the employees and Infrabuild on features of an income protection policy in 2015, and the wording of the income protection clause in 2015 (which has remained essentially unchanged). It is apparent that there were various iterations of the income protection clause exchanged between the parties at this time. These iterations include wording on insurance providers, insurance features, and self-insurance options. However, the outcome of those discussions is the words agreed and reflected in what has now become Clause 38.

• [44] There is no evidence to suggest that the 2015 agreement was intended to be an agreement on the income protection policy in perpetuity. It is evident from the exchanges between Mr O'Brien and Mr Murphy that there was some acceptance of the fluid nature of income protection matters and consideration of future options, such as self-insurance. Both the employer and union had issues of concern and importance to them on the topic of income protection of which Clause 38 was the result.

• [45] Infrabuild says that the 2015 agreement is the 'agreement' reached by the parties and that the key features were effectively fixed at that point in time. However, it is also accepted that the income protection policy has changed since the 2015 agreement, but there is a difference of opinion as to the degree or materiality of the changes. The parties agree that changes have been made regarding pre-injury timeframes and funeral cover which was $5000 under the 2015 agreement but is $10,000 under the 2024 policy. I consider these changes material and demonstrate that the policy has changed since the 2015 agreement.

• [46] I also consider the evidence of Mr Van Der Merwe instructive as to the fixed status of the 2015 agreement. At the Hearing I asked Mr Van Der Merwe the following question:

'So would you say that there's been an agreement reached between the employees, the AWU and yourself about having an agreed income protection scheme?[18]

'It has been my view that after the work group that was formed in 2019 and we worked through the policy, that that constituted agreement until such time that there was a more robust challenge to it (indistinct), and in the current enterprise bargaining agreement we are doing that.[19] (emphasis added)

• [48] I consider this is further evidence that the 2015 agreement was not a fixed or indefinite agreement because a subsequent agreement on the income protection insurance policy was reached in 2019.

• [49] Fourthly, in taking a purposive approach to Clause 38, I am challenged by what, if any purpose is served if Clause 38 is simply a reference to the 2015 agreement, particularly as Clause 38 makes no mention of the 2015 agreement. What work does Clause 38 have to do? In the Berri decision, the Full Bench said that there was "considerable force in the Appellant's contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect."[20] The inclusion of Clause 38 should not then, using the language in Berri, be regarded as "superfluous or insignificant"[21]. At the Hearing, Infrabuild conceded this but says 'these are not unknown occurrences in enterprise bargaining, where the parties have reached an understanding and then there's some formulation that's left on the page that the people are more or less happy with and don't wish to interrogate any further, for fear of casting everything into great uncertainty.'[22] I am not persuaded this is the case. Firstly, this does not accord with the parties' views about the significance of income protection insurance. Secondly, the 'formulation left on the page' has been 'interrogated further' as evidenced by the addition of the new sentence in Clause 38 which says that 'the parties are open to providing a suitable agreed alternative remedy to income protection.'

• [50] It is clear from the evidence that income protection insurance is not a set and forget issue, and has been the subject of ongoing discussion, disputation, and change since the 2015 agreement.

• [51] Infrabuild submits that requiring consensus on an important matter like insurance has the potential to cause industrial mischief and difficulty, and that interpretations which yield an industrially rational and common-sense outcome are preferred.[23] It may very well be the case that the parties find themselves unable to reach agreement. However, there is a dispute settling procedure in the Agreement which allows the Commission to arbitrate such a dispute if the parties were to reach such an impasse.

• [52] Indeed, the income protection dispute between the parties in 2019 (2019 dispute) is evidence of that. In the 2019 dispute, the parties were unable to reach an agreement; the AWU filed a dispute with the Commission, and a resolution was subsequently reached between the parties.

• [53] I do not accept that the need for consensus, however difficult, somehow renders Clause 38 incapable of providing a common-sense outcome, or that the need to reach a consensus is somehow a recipe for industrial mischief which could not have been in the contemplation of the parties. Indeed Mr. Van Der Merwe's evidence as noted above shows that parties accept that there is agreement until such time as there is a challenge to that agreement. In other words, the parties agree, until they don't. I consider the 2019 dispute illustrative of the industrial reality of consensus building which could hardly be described as anything other than industrial rationality of the 'vanilla' kind - the parties had a disagreement about a term of the enterprise agreement, filed a dispute, discussed it, and resolved it.

• [54] The need for agreement or consensus also reflects the industrial reality that income protection insurance is significant to all parties and is highly likely to change during the life of the enterprise agreement. As such the parties have chosen a mechanism which is reflected in the words agreed in Clause 38.

• [55] I find there is no ambiguity or uncertainty in Clause 38, read in the context of the Agreement as a whole, and considering the history of this clause and the 2015 agreement. I accept that income protection insurance is important to all the parties, and that it is reviewed annually and is subject to change. I find that the income protection policy has changed, not only in terms of coverage and attributes, but also in terms of cost and providers. This context assists in the interpretation of Clause 38 as it is evident that income protection is a fluid proposition, rather than one which is characterised as 'set and forget'. I consider that the use of the words 'agree to have an agreed income protection scheme' means that the agreed income protection scheme is not fixed at the time the Agreement is made but rather it requires the continued agreement of the parties, which reflects the nature of income protection insurance.

• [56] I now turn to two additional matters raised by the parties.

• [57] The AWU contend that Clause 38 requires a particular provider of the income protection insurance. I do not accept this contention. The words in Clause 38 make no reference to who the provider of the insurance is or should be. I observe that the task of interpretation of an enterprise agreement is not to arrive at an outcome that seems 'fair'. Insofar as the AWU may prefer a particular policy provider, the words in Clause 38 do not afford a preference of the policy provider. If a provider was preferred over another, then it was open to the parties to have included words to that effect into Clause 38. They did not.

• [58] Infrabuild contend that if agreement between the parties is required under Clause 38, then agreement cannot be unreasonably refused by the AWU. Insofar as Infrabuild suggests that one party should not unreasonably withhold their agreement, I consider this to be an appeal to the perceptions of fairness. Again, I observe that the task of interpretation of an enterprise agreement is not to arrive at an outcome that seems 'fair'. The consequence of Infrabuild's interpretation is the imposition of an obligation on only one of the parties, being the AWU, to not unreasonably withhold agreement. I do not accept this contention. The words in Clause 38 do not impose any such obligation on the AWU. Clause 38 does not impose any conditions on 'agreement' although it was open to the parties to do so. They did not.

Was the income protection policy taken out by the respondent on or around 5 December 2024 an 'agreed income protection policy' for the purposes of clause 38 of the Agreement?

• [59] It was uncontested that Infrabuild tendered for a new income protection policy and that Infrabuild did not seek the agreement of the AWU and the employees on this 2024 policy. Infrabuild says no agreement was needed because of the 2015 agreement. However, for the reasons outlined above I do not accept this is so.

• [60] The Macquarie Dictionary defines the word 'agree' as meaning 'consent', 'be of the same/ one mind', 'come to an arrangement or understanding', 'accept, accord, concur, see eye to eye.' [24] The ordinary meaning of the word 'agree' is to make some declaration of consent or approval.

• [61] In a recent case regarding a dispute as to whether the parties had 'agreed' to an income protection policy, the Full Bench in United Firefighters' Union of Australia (259V) v Fire Rescue Victoria T/A FRV found that:

We have also concluded that it was not 'agreed' with FRV. In our view, for the UFU and FRV to consult and implement an agreed policy or scheme, they must both know at least its essential features. The UFU contended that FRV did know the essential features, because Mr Marshall and Ms Campanaro told Ms Schroder and Mr Braid that the new arrangements would use a trust, that the premium was the same, and that it covered other benefits. But these are not the essential features of the arrangement. These are little more than the bare bones.[25]

• [62] Clause 38 provides that the parties, being Infrabuild, the employees and the AWU, agree that they will have an agreed income protection scheme. There is no evidence that the AWU and the employees covered by the agreement had any knowledge of the essential features of the income protection policy. Indeed, Infrabuild initially refused to provide the AWU with a copy of the new policy, which demonstrates that not even the bare bones were known, let alone, agreed to with the AWU and employees. As a simple matter of logic, there can be no 'agreement' on the agreed income protection scheme when two of the three parties (being the AWU and the employees), did not know of, nor were given any opportunity to agree to the 2024 policy. If the AWU and employees have not agreed to the 2024 policy, then it cannot be said that the parties currently have, as required by the Clause 38, an agreed income protection scheme.

• [63] The income protection policy taken out by Infrabuild on or around 5 December 2024 is not agreed and is therefore inconsistent with Clause 38 of the Agreement.

• [64] The answer to the question for determination is no.

[2] The Agreement was varied following approval: 2021 FWCA 6102.

[3] DHB page 322, paragraph 4 (emphasis in original).

[7] [2020] FCAFC 123; (2020) 278 FCR 566 [65] and the authorities cited therein.

[11] Macquarie Dictionary (online at 30 December 2025) 'scheme'.

[12] [2025] FWCFB 54 at [44].

[16] Witness Statement of Liam Benjamin O'Brien at [16].

[20] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing

Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 at [44].

[24] Macquarie Dictionary (online at 30 December 2025) 'agree'.

[25] [2025] FWCFB 54 at [50].

Printed by authority of the Commonwealth Government Printer