Fair Work Commission|2025-12-12

Transport Workers' Union of Australia v CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust Trading As Centurion Transport [2025] FWC 3808 (12 December 2025)

s.739 - Dispute resolution

CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust Trading As Centurion Transport

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

[1] On 24 June 2025 the Transport Workers Union of Australia (TWU) made an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) to the Fair Work Commission (FWC). The Application sought that the FWC deal with a dispute between the TWU and CFC Consolidated Pty Ltd as trustee for the CFC Employment Trust trading as Centurion Transport (Centurion) in accordance with the dispute resolution procedure contained in clause 51 of the CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust - Pilbara Drivers and Freight Officers Enterprise Agreement 2023 (Current Agreement).

[2] The Current Agreement covers Centurion, the TWU and employees of Centurion based in the Pilbara region of Western Australia and employed by Centurion in the classifications of Freight Officer, Van Driver, HR Driver, HC Driver or MC Driver (Employees).

[3] The Employees are, or are eligible to be, members of TWU. [1]

[4] The dispute concerns whether Employees are entitled to be paid the meal allowances prescribed by clauses 15.1 and/or 15.2 of the Current Agreement in circumstances where the Employee is entitled to be paid an overnight accommodation allowance pursuant to clause 16.1 of the Agreement (Dispute).

[5] Initially the parties were also in dispute as to whether Employees could be simultaneously entitled to meal allowances pursuant to clause 15.1 of the Current Agreement which provides for an entitlement to a meal allowance when an employee works a shift that exceeds 9.6 hour and clause 15.2 of the Current Agreement provides for an entitlement to an 'additional meal allowance' when an Employee works a shift that exceeds 12 hours.

[6] However after the parties filed their materials and before the hearing of the Application Centurion conceded that Employees are entitled to the payment of meal allowances pursuant to clause 15.1 and 15.2 in relation to the same shift.

[7] In its Closing Submissions Centurion were critical of the TWU's reference in its submissions to Centurion asserting that the meal allowances in clause 15.1 and 15.2 were not simultaneously payable claiming these allowances had been simultaneously paid since the commencement of the Current Agreement.[2] I note that in its written submissions filed on 11 August 2025 and included in the Digital Court Book filed jointly by the parties on 14 August 2025 Centurion stated:

"Respondent submits that it is unclear whether an Employee who works a shift that exceeds 12 hours has an entitlement to an additional meal allowance under clause 15.2"

[8] It was not until the day before the Hearing that Centurion conceded that it was obliged and has in fact paid both allowances since the commencement of the Current Agreement.

[9] On 9 July 2025 the parties participated in a conciliation, but the issues in dispute could not be resolved.

[10] Directions for the filing of materials in advance of a hearing were issued to the parties on 11 July 2025 (Directions). This Direction is amended on 1 August 2025.The Application was listed for hearing in person in Perth on 15 October 2025 (Hearing).

[11] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[3]

[12] Centurion sought permission to be represented at the Hearing.

[13] Having considered the submissions of the parties, leave was granted to Centurion to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[14] At the Hearing, Mr Lyle Slaney a solicitor employed by the TWU appeared on behalf of the TWU and Mr Nicholas Ellery of Counsel (Mr Ellery) appeared on behalf of Centurion.

[15] In accordance with the Directions the TWU filed witness statements setting out the evidence in chief of the following witnesses:

a. Mr Alister Ernest Gan-Son Outen (Mr Outen): Mr Outen is a TWU organiser responsible for representing members of the TWU covered by the Current Agreement. He was not involved in the negotiation of the Current Agreement.[4]
b. Mr Malcolm David Hill (Mr Hill): Mr Hill has been Employee for nine years and is a member of the TWU.[5]
c. Mr Jeffrery Seymour (Mr Seymour): Mr Seymour has been an Employee for 4 and half years and is a member of the TWU.[6]

[16] Centurion elected not to cross examine Mr Outen. Mr Hill and Mr Seymour were not available for cross examination and this has consequently affected the weight I can attach to their evidence.

[17] In accordance with the Directions Centurion filed witness statements setting out the evidence in chief of the following witnesses:

a. Mr Giles Lenz (Mr Lenz) - Mr Lenz is the Executive General Manager - People and Capability at Centurion. He commenced employment with Centurion on 1 July 2024. He was not employed by Centurion at the time the Agreement was negotiated and approved.[7]
b. Mr Dharmesh Rajde (Mr Rajde) - Mr Rajde is the Payroll Team Leader. He has been employed by Centurion since December 2021.[8]
c. Ms Sabrina Soffian (Ms Soffian) - Ms Soffian is the National People and Capability Manager. She has been employed by Centurion since September 2022. Ms Soffian was involved in preparing documents following the conclusion of the negotiations of the Current Agreement.[9]

[18] Mr Lenz and Mr Rajde were cross examined at the Hearing by Mr Slaney. Ms Soffian was not available for cross examination and this has consequently affected the weight I can attach to her evidence. Ms Soffian was offered accommodations to give her evidence in person or offered the opportunity to give her evidence remotely but was unwilling to give her evidence in person and unable to provide any firm commitment to be available to give her evidence remotely.

[19] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as an exhibit (DCB).[10]

[20] Written closing submissions were filed by the TWU on 29 October 2025 and by Centurion on 11 November 2025.

[21] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for my decision.

[22] Centurion is privately owned logistics and transport company.

[23] The Current Agreement commenced operation on 3 June 2024.

[24] In relation to meal allowances, clause 15 of the Current Agreement provides as follows (Meal Allowances):

"15.1 An Employee who works a shift that exceeds 9.5 hours shall be paid a meal allowance as specified in Schedule A.

15.2 An employee who works a shift that exceeds 12 hours shall be paid an additional meal allowance as specified in Schedule A."

[25] The Current Agreement also provides for the following allowance (Overnight Allowance):

"16.1 An Employee who is unable to return to their home at night shall be supplied with a sleeper cab or motel style accommodation. If the Employee is not provided with motel style accommodation an allowance as specified in Schedule A shall be paid."

[26] Schedule A of the Current Agreement provides in relation to the Meal Allowances and the Overnight Allowances:

[27] The Employees who are employed as long distance truck drivers at Centurion's Dangerous Goods West Depot (DG Drivers), work a 15-hour day and are typically rostered to work for 11 days and then have three days off (11 Day Roster). When the DG Drivers are on their 11 Day Roster, they do not return home at night and are not provided with accommodation. Consequently, such Employees stay in their truck overnight during the 11 Day Roster.[11]

[28] The evidence is that since at least the 2014 Agreement Centurion have adopted the practise of not paying meal allowances to Employees who would otherwise be entitled to be paid a meal allowance if the Employee sleeps in their truck and is paid an overnight allowance. Until the commencement of the Current Agreement Centurion had also observed the practise of paying only one meal allowance when Employees worked more than 12 hours.[12]

[29] The Current Agreement replaced the CFC Consolidated Pty Ltd & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2021 (2021 Agreement). The 2021 Agreement contained the following meal allowance and overnight allowance clause in similar terms to the Current Agreement:

a) An employee shall be paid a meal allowance specified in Schedule A if they work .6 hours in a day.

b) An additional meal allowance specified in Schedule A shall be paid if an employee works 12 hours in a day.

Where an employee is unable to return home at night they are entitled to an allowance as specified in Schedule A except where the employee is provided with accommodation."

[30] Schedule A of the 2021 Agreement provided inter alia a clarification in relation to the interaction of the meal and overnight allowances (Schedule A Proviso):

$23.90 meal allowance is payable if 9.6 or more hours are worked in a day.

$65 overnight allowance per overnight trip when applicable. Note: meal allowance not applicable when receiving this allowance.

[31] The Schedule A Proviso does not appear in the Current Agreement.

[32] The two predecessor agreements to the 2021 Agreement the CFC Consolidated Pty Ltd & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2014 (2014 Agreement) and the CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust - Pilbara Drivers and Freight Officers Enterprise Agreement 2018 (2018 Agreement) while containing similarly worded meal allowance and overnight allowance clauses, did not contain the Schedule A Proviso either.

[33] Given the practise of paying only one allowance had existed for some time it seems that the parties had turned their minds to whether both the meal and overnight allowances might be claimable simultaneously and therefore the Schedule A Proviso was added for clarification.

[34] The TWU official who negotiated the Current Agreement is no longer employed by the TWU. The TWU did however produce its log of claims for the negotiation of the Current Agreement (Log of Claims). The Log of Claims includes under the heading "Site specific issues and claims" the following item:[13]

"i Drivers working away to receive meal allowance payment in addition to overnight allowance."

[35] The TWU also produced the minutes of the negotiations for the Agreement dated 13 November 2023 (Negotiation Minutes) which state:[14]

"- Meal allowance - PS confirmed meal allowance to be paid in conjunction with overnight allowance (at this stage)."

[36] 'PS' is a reference to Mr Phil Scott the then Executive General Manager - People and Safety for Centurion Transport (Mr Scott).[15]

[37] That Centurion agreed to the allowances being paid in conjunction with one another in the course of the negotiations for the Current Agreement is consistent with the evidence of Mr Seymour who says that during the negotiation of the Current Agreement the TWU representatives informed Employees that as an outcome of bargaining Employees would no longer be precluded from claiming both the Meal Allowances and the Overnight Allowance.[16]

[38] It is conceded by Centurion that:[17]

the deletion of the Schedule A Proviso would be consistent with a concession by Mr Scott, recorded in the Negotiation Minutes;
the Schedule A Proviso was deleted from the draft Current Agreement; and
the deletion was made by Centurion.

[39] Mr Lenz conceded in cross examination that if Centurion changed its mind about the concession they would have let the TWU know in writing and it would be most likely be reflected in the bargaining minutes. Mr Lenz also conceded that Centurion have not identified any bargaining minutes which record Mr Scott's concession being withdrawn or any other written notification that Mr Scott's concession had been withdrawn.[18]

[40] Notwithstanding that the Schedule A Proviso was deleted by Centurion from the Current Agreement, Centurion submit that the negotiating parties did not agree that Employees could simultaneously be entitled to both the Meal Allowances and Overnight Allowances. In support of this assertion Centurion produced the following documents created at, or around, the time of the approval of the Current Agreement which identify changes to or benefits of the Current Agreement but which do not mention an entitlement to simultaneously receive both allowances:

a. Memorandum to Employees dated 15 April 2024 (Memorandum)[19]
b. Summary of Proposed Changes - Centurion Transport & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2024 (Explanatory Document)[20]
c. Form F17A Employer Declaration in support of an application for approval of an enterprise agreement (Employer Declaration).[21]

[41] The Memorandum was prepared by Ms Soffian and was circulated on 15 April 2024. The first paragraph of the Memorandum states that the purpose of the Memorandum is to provide an update as to "the progress of enterprise negotiations". The Memorandum goes on to state as follows:[22]

"The Pilbara Drivers and Freight Officers Enterprise Agreement 2023 outlines key provisions regarding wages, working conditions, entitlements, and other relevant matters. The main Agreement conditions are listed, but not limited to the below:

Nominal expiry
Increase of base rates
Access to salary packaging including remote benefits
Provisions to promote job security
Updated clauses to reflect changes in legislation since the approval date of the expired
Enterprise Agreement."

[42] Centurion says the absence of a reference to the Meal or Overnight Allowance indicates that the parties did not agree to an amendment to the 2023 Agreement to allow Employees to simultaneously claim both allowances. The TWU points out that the Memorandum clearly states that the list of key provisions is not an exhaustive list of the differences between the 2021 Agreement and the Current Agreement. For example, it did not make mention of an ammonium nitrate allowance introduced in the 2021 Agreement, did not provide details of the base rate increase and did not note the removal of clauses. That the Memorandum did not contain an exhaustive list of changes was conceded by Mr Lenz in cross examination.[23]

[43] The Explanatory Document was circulated at the time the Agreement went to the ballot. The Explanatory Document was prepared by Ms Soffian. The Explanatory Document provides a summary of the differences between the 2021 Agreement and the Current Agreement.

[44] Centurion point to the following statement in the Explanatory Document:[24]

"This Agreement will have changes to the layout, format and order. Any changes to the content will be outlined within this document. The changes have been made with the intention to make the Agreement easier to navigate and interpret. Where changes are made to the wording of clauses, the intention is for clearer interpretation and not intended to change the provision unless otherwise stated."

and note that no reference is made to the deletion of the Schedule A proviso or for an entitlement for an Employee to simultaneously receive both the Meal Allowance and the Overnight Allowance.

[45] The TWU point to the following statement in the Explanatory Document:[25]

"vi. Overnight allowance (Clause 16) - updated wording for clearly articulating application of the allowance"

[46] Centurion say that this statement is a reference to the change in the wording of the Overnight Allowance between the 2021 Agreement.

[47] Clause 16 of the Current Agreement is drafted as follows:

"An Employee who is unable to return to their home at night shall be supplied with a sleeper cab or motel style accommodation. If the Employee is not provided with motel style accommodation an allowance as specified in Schedule A shall be paid."

[48] The 2021 Agreement overnight allowance clause is drafted as follows:

"Where an employee is unable to return home at night they are entitled to an allowance as specified in Schedule A except where the employee is provided with accommodation."

[49] The ballot for the Current Agreement took place on 29 April 2024 and the draft Current Agreement received a majority support from Employees.[26] The Employer Declaration in support of the application to register the Current Agreement was prepared by Mr Scott.[27]. The Declaration makes no reference to the removal of the Schedule A Proviso or an entitlement to receiving a Meal Allowance and Overnight Allowance simultaneously.[28]

[50] The TWU points out that the Employer Declaration fails to include other relevant information. For example, it does not refer to all relevant modern awards.[29]

[51] Ms Soffian concedes Centurion was responsible for creating and making changes to the document eventually submitted to ballot and registration as the Current Agreement. Her evidence is that Ms Oliva Wallis the then Senior HR Advisor (Ms Wallis) and Mr Scott were the lead bargaining representatives on behalf of Centurion.[30]

[52] Ms Soffian admits that Schedule A Proviso was deleted by her colleague Ms Wallis and that she was not involved in the bargaining process at the time that Ms Wallis did so. Ms Soffian's evidence is that she was only involved at the final stages of the negotiation process and in preparing the final draft of the Agreement, the Explanatory Document which was circulated with it and the Employer Declaration. Her evidence was in doing so she was unaware of any commitment by Centurion to pay both allowances simultaneously.[31]

[53] This explains why these documents make no reference to the removal of the Schedule A Proviso. It does not explain why the Schedule A Proviso was removed from the Current Agreement. The only contemporaneous explanation for the removal of the Schedule A Proviso is that contained in the Negotiation Minutes, namely that Mr Scott agreed to the removal of the Schedule A Proviso in settlement of the TWU claim that both allowances should be payable simultaneously. [32]

[54] Both Ms Wallis and Mr Scott have now left the business. Centurion chose to call neither as witnesses. In the absence of any other explanation for why they were not called, the decision not to call them might suggest that their evidence would have been unhelpful to Centurion.[33]

[55] Centurion says that if the Employees genuinely believed that the Current Agreement entitled them to the payment of both allowances they would have agitated the matter immediately after the commencement of the Current Agreement. Mr Lenz's evidence is that:[34]

"Since I commenced in July 2024 there has been no mention of issues with meal allowance in the Pilbara.

In my opinion the origin of this whole claim has originated from what we view as a disruptive and disgruntled employee.

At no point was the matter raised by any of the thirty (30) plus drivers or the members of the bargaining committee that there was an allowance missing."

[56] These statements are not consistent with other concessions made in Mr Lenz's witness statement that:[35]

A representative of an Employee asserted an entitlement to both allowances in November/December 2024.
The matter was raised five months after commencement of the Agreement.

[57] Mr Outen, Mr Seymour and Mr Hall's evidence is that since at least August 2024 Employees have been asserting to Centurion either personally or via their representatives that the Agreement does not deny them an entitlement to be paid Meal Allowances if they are paid the Overnight Allowance.[36] Mr Outen's evidence is unchallenged on this point because Centurion elected not to cross examine him. Mr Outen's evidence is also that he raised the issue with Centurion in November 2024. [37] The evidence of all the TWU witnesses is that the Dispute is being agitated by a number of Employees.[38]

[58] I therefore favour the evidence of the TWU witnesses that the Dispute has been agitated since August 2024 by, or on behalf of, multiple Employees over the evidence of Mr Lenz that: "... since the Agreement commenced in July 2024 there has been no mention of issues with meal allowance in the Pilbara". [39]

[59] Both Mr Lenz and Ms Soffian assert that the deletion of the Schedule A Proviso was a drafting error. I note that Mr Lenz was not employed by Centurion at the time the Schedule A Proviso was deleted and that neither he or Ms Soffian were involved in the negotiations at the time the Schedule A Proviso was deleted by Centurion from the draft Current Agreement.

[60] I note that Mr Rajde's evidence is that he alerted the business to the absence of the Schedule A Proviso shortly after the commencement of the Current Agreement. I note that despite Centurion being alerted to the deletion of the Schedule A Proviso in July 2024 and the issue being agitated by Employees from at least August 2024 Centurion has not made an application to amend the Current Agreement to correct what Mr Lenz says all but one 'disgruntled employee' accepts was excluded from the Current Agreement by accident.

[61] The parties agree that the relevant steps in the dispute resolution procedure set out in the Current Agreement have been satisfied and that the FWC has jurisdiction to deal with the dispute.[40]

[62] The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.

[63] The Application was made pursuant to section 739 of the FW Act.

[64] Section 739 of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure.

[65] The Agreement was approved on 27 May 2024. The nominal expiry date of the Agreement is 30 June 2026.[41]

[66] The Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 51. Clause 51 provides as follows:[42]

[67] The FWC may deal with a dispute only on application by a party to the dispute.[43]

[68] The Employees are, or are eligible to be, members of TWU. [44]

[69] The TWU is covered by the Agreement.[45]

[70] There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 51 of the Agreement. [46]

[71] There is no dispute, and I am satisfied that the TWU has complied with the procedural steps contained in clause 51 of the Agreement. [47]

[72] I am satisfied that the TWU has standing to make the Application and that I have the jurisdiction to determine the dispute.

[73] In dealing with the dispute the FWC cannot exercise powers limited by the term.[48] If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.[49]

[74] When arbitrating a dispute under the dispute settlement procedure, the FWC is not exercising judicial power, but a power of private arbitration.[50] As a private arbitrator the FWC is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[51]

[75] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd,[52] the Full Federal Court said at [70] to [71] that the powers and functions of the FWC identified in sections 577, 578, 590, 593, 595, 677 and 678 of the FW Act are available to the FWC when conducting a private arbitration.

[76] Relevantly sections 577 and 578 of the FW Act provide as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations."

"s.578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; ..."

[77] The Full Bench, in Princess Linen Services Pty Ltd v United Workers' Union[53] at [15] and [16] of its decision, confirmed the principles of interpretation of enterprise agreements as follows:

"The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):

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

The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)."

[78] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[54] (Berri) at [114] stated as follows in respect to the task of construction:

"... The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

the text of the agreement viewed as a whole;
the disputed provision's place and arrangement in the agreement;
the legislative context under which the agreement was made and in which it operates.

The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

[79] As made clear by the Full Bench in Berri if an agreement has a plain meaning, evidence of the surrounding circumstances should not be admitted to contradict the plain language of the agreement.

[80] On their plain reading the Meal Allowance and the Overnight Allowance provide compensation for two different work disabilities. The Meal Allowance provides compensation for meals missed or purchased by a DG Driver because of the length of their shift. The Overnight Allowance provides for compensation for the discomfort of sleeping in their vehicle when the employer has not been provided with motel accommodation. If the Overnight Allowance was intended to provide compensation for the disability of meals missed/purchased then it ought to be payable whether or not a motel room is provided. It makes little sense that an Employee who is provided with the comfort of a hotel bed ought to be entitled to meal allowances when an Employee who is required to sleep in a truck should not be entitled to meal allowances.

[81] There is no term in the Current Agreement which suggests that the allowances are not payable simultaneously. There is no obvious ambiguity in the two allowances being simultaneously payable. In fact it appears the parties agreed that it was necessary to insert the Schedule A Proviso into the 2021 Agreement to make clear that the allowances were not simultaneously payable.

[82] In its written Closing Submissions Centurion sought to introduce for the first time a new argument that the words 'when applicable' contained in Schedule A of the Agreement create ambiguity as to when payment is applicable and whether these words were intended to be accompanied by a Schedule A Proviso. [55]

[83] As a matter of procedural fairness Closing Submissions are not an appropriate forum to introduce new arguments in any event I am not satisfied that on their plain reading these words create any ambiguity. The words simply indicate that the entitlement to the allowance is dependent on particular conditions for example working a shift of a particular duration.

[84] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

[85] In any event the extrinsic material variously relied on by the parties on the balance supports the TWU interpretation of the Agreement.

[86] The Log of Claims makes clear that payment of both allowances was a matter considered by the parties in the course of the negotiation of the Current Agreement.

[87] The Negotiation Minutes record the parties reaching agreement to resolve this claim by removing the Schedule A Proviso.

[88] There is no evidence of any bargaining minutes recording the withdrawal of the concession.

[89] Centurion removed the Schedule A Proviso from the draft of the Current Agreement.

[90] These things are consistent with the evidence of the TWU witness employed at the time the negotiations occurred that the TWU had been successful in resolving the claim to an entitlement to being paid both allowances simultaneously.

[91] The cohort of Employees who voted in favour the Current Agreement being registered voted on a document which had the Schedule A Proviso removed consistent with the log of claims pursued by their union.

[92] None of the Centurion witnesses were participating in the negotiations at the time the concession recorded in the Minutes was made and the draft Current Agreement was updated to remove the Schedule A Proviso.

[93] It is unsurprising that the Memorandum, Explanatory Document or Employer Declaration make no reference to the removal of the Schedule A Proviso, given Ms Soffian, who was not informed of the concession by Centurion, prepared or assisted in the preparation of these documents.

[94] The custom and practise of not paying both allowances is consistent with the inclusion of the Schedule A Proviso in the 2021 Agreement, not with its removal from the Current Agreement. The fact that the custom and practise of not paying both allowances existed under the 2014 Agreement and the 2017 Agreement does not necessarily imply that an ambiguity existed in an agreement without the Schedule A Proviso. Rather it might be simply indicative of a decision by Centurion to impose its own interpretation on the plain language of a clause as it has until recently in relation to its refusal to pay both meal allowances when an Employee completes a shift longer than 12 hours.

[95] Based on the evidence before me I am satisfied that the Meal Allowances payable under clauses 15.1 and 15.2 of the Current Agreement are simultaneously payable with the Overnight Allowance payable under clause 16 of the Current Agreement when an Employee has worked more than hours prescribed in clause 15.2 and/or clause 15.1 and the Employee is unable to return to their home at night and is not provided with motel style accommodation.

[2] Centurion Closing Submissions (Centurion Closing Submissions) filed on 11 November 2025 at p 2.

[3] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[7] FWC Transcript of Proceedings (Transcript), 15 October 2025, [PN171] (Binet DP).

[11] Ibid 66, Amended Agreed Statement of Facts at page 1.

[43] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).

[45] See Agreement at clause 3 - Coverage,.AE524778 PR775378, [2024] FWCA 197 at [3].

[50] Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [75] to [79]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]- [36].

[51] TWU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU (n 23) at [19]-[24]; AMWU v ALS Industrial Australia (n 38).

[55] Centurian Closing Submissions (n2) at p 30.

Printed by authority of the Commonwealth Government Printer

Interpretation Act 1901

Transport Workers' Union of Australia v CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust Trading As Centurion Transport [2025] FWC 3808

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Judgment (167 paragraphs)

Transport Workers' Union of Australia v CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust Trading As Centurion Transport [2025] FWC 3808 (12 December 2025)

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Legislation Cited (2)

Cases Cited (3)