s.739 - Dispute resolution

FedEx Express Australia Pty Ltd Trading As FedEx

Application to deal with a dispute arising under the FedEx Express Australia - TWU Fair Work Agreement - 2021 - 2024 - Dispute resolution procedure - Parameters of exercise of arbitral powers by the Commission

• [1] The Transport Workers' Union (TWU) has applied under s. 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with a dispute with FedEx Express Australia (FedEx).

• [2] The TWU's application relied on the dispute resolution procedure provided for at clause 12 of the FedEx Express Australia - TWU Fair Work Agreement - 2021 - 2024 (the Agreement). The application concerned a stoppage of work by 85 employees of FedEx on 13 June 2023 for approximately four hours following a stop work direction issued by Health and Safety Representatives (HSRs) pursuant to s. 85 of the Work Health and Safety Act 2011 (Cth) (the WHS Act) and the subsequent withholding of the payment of wages to the 85 employees for the four hours during which they stopped work.

• [3] The TWU's application contended that FedEx had made deductions from the wages of employees pursuant to s. 474 of the Act premised on its view that the 85 employees who had stopped work on 13 June 2023 had engaged in 'unprotected industrial action'. The TWU said that s. 474 was not enlivened (thereby rendering the deductions unlawful) because:

(a) Employees are required to comply with stop work directions issued by HSRs pursuant to s. 85(1) of the WHS Act irrespective of any question as to the direction's validity; and,

(b) The stoppage was not industrial action because:

(i) It did not fall within the definition of industrial action at s. 19(1) of the Act, because the employees who engaged in the stoppage were under no legal obligation to continue to work once the stop work direction had been issued pursuant to s. 85 of the WHS Act; and,

(ii) The stoppage of work was captured by the exception at s. 19(2)(c) of the Act, extracted as follows:

(2) However, industrial action does not include the following:

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

• [4] The TWU's application claimed that it had complied with the dispute resolution procedure by way of correspondence between Mr Gavin Webb, Chief Legal Officer, and Mr Michael Brennan, Managing Director, Legal at FedEx, and that the dispute remained unresolved.

• [5] By way of relief, the TWU sought conciliation in the first instance and that the dispute be arbitrated if it was unable to be resolved. The TWU's application sought declarations in the following terms (extracted as follows):

1. that employees did not participate in industrial action by ceasing work in compliance with the direction issued by HSRs on 13 June 2023;
2. that these employees were required to comply with the direction; ...

• [6] The TWU also indicated that it sought any other orders that the Commission considered in all circumstances to be appropriate and necessary.

• [7] In its response to the application, FedEx contended that the stop work direction was issued by HSRs in the absence of a 'reasonable concern' that the continuation of work by employees would expose them to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard. In support of this, it appended a Comcare report in which the attending inspector was satisfied that FedEx had complied with its work health and safety obligations and advised that he did not hold a reasonable belief of the existence of an imminent or immediate risk to workers' health or safety at the site.

• [8] FedEx argued that the stop work order was not valid as it had been issued in response to a state of dissatisfaction shared by HSRs concerning matters at the site in the preceding weeks.[1] Accordingly, FedEx contended that the direction was not within the scope of s. 85 of the WHS Act and amounted to an exercise of power under the WHS Act for an improper purpose.

• [9] FedEx's response concluded that in these circumstances it was obliged pursuant to s. 474 of the Act to withhold payment for the four hours of the stoppage for all employees who participated in the stoppage on 13 June 2023. It also refuted the TWU's claims that:

(a) Employees were obliged to comply with the stop work directive, as it said that s. 85(1) of the WHS Act does not compel a worker to comply with these directions; and,

(b) FedEx representatives told the attending Comcare inspector that they believed employees engaged in industrial action.

• [10] The Commission conducted several conferences between the parties. These were attended by representatives of the TWU and Mr Rafael Faro (Contractor, TWU Delegate and Health and Safety Representative) and Mr Lupco Belevski (Courier, TWU Delegate and Health and Safety Representative). The dispute was unable to be resolved by agreement and directions were issued for the determination of the matter by arbitration. As part of those directions, the parties were first required to confer with one another and provide either agreed questions for arbitration or their respective positions with respect to those questions such that the Commission could settle the questions to be determined.

• [11] On 16 October 2024, the TWU provided its proposed questions to FedEx and to the Commission, noting in its correspondence that the questions were not provided on an agreed basis. Those questions were as follows:

The Commission in exercise of the power of private arbitration accorded by clause 12.6 of the FedEx Express Australia - TWU Fair Work Agreement 2021-2024, is to determine the answers to the following questions:

(1) Was the direction to cease unsafe work given by health and safety representatives to workers at the FedEx Botany yard on 13 June 2023 (Direction) a valid direction pursuant to section 85 of the Work Health and Safety Act 2011 (Cth)?

(2) Did each employee who complied with the Direction take industrial action within the meaning of section 19 of the Fair Work Act 2009 (Cth)?

(3) Is FedEx entitled to withhold payment of four (4) hours wages from employees who ceased work in accordance with the Direction?

• [12] Ultimately, the parties were unable to reach an agreed position on the questions to be arbitrated. FedEx subsequently advised the Commission that they did not consider that the Commission had jurisdiction to deal with the matter and sought that its objection be determined prior to the continuation of the arbitration. FedEx's position was that the Commission had neither jurisdiction nor power to deal with the dispute as it contended that:

(a) The subject matter of the dispute did not fall within the terms of the dispute resolution procedure relied upon by the TWU and accordingly could not validly be dealt with by the Commission under the arbitration power in s. 739, and;

(b) The TWU's proposed questions for arbitration and the relief sought in the application sought a determination as to the meaning and effect of, and compliance with, sections of the Act and the WHS Act, and accordingly would be impermissible exercises of judicial power by the Commission.

• [13] The TWU consented to the determination of the jurisdictional objections prior to the determination of the substantive dispute.

• [14] FedEx filed submissions in chief, accompanied by a witness statement of Mr Cameron Czech, Senior Manager Operations at FedEx, on 10 December 2024 (Czech Statement). The TWU filed submissions in chief on 14 January 2025.

• [15] A jurisdictional hearing was conducted in Sydney on 23 April 2025 where the parties provided further oral submissions. Taking into account the complexity of the matter, I formed the view that it would enable the matter to be dealt with more efficiently if I granted permission for both parties to be represented and exercised my discretion to do so pursuant to s. 596 of the Act. FedEx tendered the Czech Statement into evidence. The TWU tendered into evidence various communications between FedEx and its employees and FedEx and the TWU.

• [16] The statutory provisions concerning the jurisdiction of the Commission to deal with a dispute pursuant to a dispute resolution procedure in an enterprise agreement are found in s. 595 and s. 739 of the Act. Section 595 states:

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

• [17] Section 739 of the Act makes it plain that, in circumstances where an enterprise agreement provides a procedure for settling a dispute, the Commission's powers to deal with that dispute are limited by the relevant dispute resolution term. If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so. The Commission may only deal with a dispute on application by a party to the dispute and it cannot make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties.

• [18] The Agreement at clause 2.1 provides the following with respect to its coverage:

This Agreement will cover all Transport Workers employed by the Company employed in connection with the transport operations of the business who fall within the classification structures set out in the RTD Award or any Existing Arrangement.

• [19] The definitions clause of the Agreement specifies the following:

'TWU' means the Transport Workers' Union of Australia.

'Transport Worker' means any employee whose employment is subject to this Agreement.

• [20] Clause 4 of the Agreement is as follows:

The Parties agree that mutual respect is necessary to achieve an efficient and mutually beneficial relationship. To this end, the parties will continue to deal with each other honestly and genuinely, and in a manner which maintains the integrity of this Agreement. Where disputes arise, the parties are committed to following the disputes procedure in Clause 12 of this

• [21] The dispute resolution procedure in the Agreement that allows the Commission to deal with a dispute is as follows:

1. Any dispute or grievance that arises at the workplace between;

a) a Transport Worker/s and the Company, including but not limited to a dispute about any condition of employment or the NES; and/or > > b) between the TWU and the Company about the interpretation or application of this Agreement, including but not limited to a dispute about any Transport Worker's conditions of employment or the Company's compliance with the NES in relation to one or more Transport Workers.

with the exception of termination of employment, shall be dealt with in the following manner:

• 12.1 The matter must first be discussed by the aggrieved Transport Worker(s) directly with his or her or their immediate supervisor.
• 12.2 If the matter remains in dispute, it must next be discussed with the supervisor's immediate superior or another representative of the Company appointed for the purpose of this procedure. The TWU delegate for the worksite has the right to attend and participate in this discussion as a representative of a Transport Worker provided that the TWU delegate is the representative of the Transport Worker's choice;
• 12.3 If the matter remains in dispute, it must next be discussed with the relevant manager of the Company. The TWU State Secretary (or his/her nominee) has the right to attend at and participate in this discussion as the representative of a Transport Worker provided that the relevant TWU State Secretary is the representative of the Transport Worker's choice;
• 12.4 If the matter in dispute remains unresolved, the Company's Employee Relations Manager (or nominee) will meet the State Secretary of the TWU (or nominee) and discuss the matter.
• 12.5 If the matter remains in dispute, it must next be submitted to the Fair Work Commission (FWC) for conciliation. For this purpose, it is agreed that the action FWC may take includes arranging conferences of the Parties or their representatives at which FWC is present; and arranging for the Parties or their representatives to confer among themselves as conferences at which FWC is not present.
• 12.6 If the matter is not resolved in conciliation conducted by the FWC, the Parties agree that the FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the Parties to the dispute. In relation to such an arbitration, the Parties agree that:

a) The FWC may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009. > > b) Before making a determination the FWC will give the Parties an opportunity to be heard formally on the matter(s) in dispute. > > c) In making its determination the FWC will only have regard to the materials, including witness evidence and submissions, put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation. > > d) Either party may be represented, including by legal representatives, in FWC proceedings under clause 12.6 and 12.7.

• 12.7 The decision of the FWC will be binding on the Parties subject to the following agreed matters:

a) There shall be a right of appeal to a Full Bench of FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow. > > b) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense. > > c) The Full Bench (or a nominated member of the Full Bench) shall have the power to stay the decision pending the hearing and determination of the appeal. > > d) The decision of the Full Bench in the appeal will be binding upon the Parties.

• 12.8 Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.
• 12.9 The Parties to the dispute agree to be bound by any decision made by FWC in accordance with this term. The Parties undertake to resolve any disputes in a timely manner in accordance with the procedure set out in this clause and will co-operate to ensure that these procedures are carried out expeditiously.
• 12.10 A Transport Worker who is a party to a dispute may appoint a representative for the purposes of the procedures in this clause 12 including a representative or delegate of the TWU.

• [22] Clause 21 of the Agreement deals with safe systems of work obligations and provides as follows:

The Company agrees that all work will be performed lawfully and in accordance with safe systems of work which shall, inter alia, include:

• 21.1 ensuring that all work is performed in a manner consistent with all relevant occupational health and safety legislation;
• 21.2 meeting the cost of any medical or other examination connected with the fulfilment of work requirements;
• 21.3 assessing the risk of harm from fatigue (where applicable) and speeding and eliminating or controlling the risk to the extent reasonably practicable;
• 21.4 safe driving plans and procedures which are reviewed regularly, updated when there is any change to the circumstances applicable to the work and which are developed and monitored in consultation with Transport Workers;
• 21.5 the documentation, review and monitoring of trip schedules and rostering in order to minimise their contribution towards fatigue;
• 21.6 maintenance and improvement of the current Company drug and alcohol policy which is consistent with the parameters set out in the Transport Industry - Mutual Responsibility for Road Safety Award; and
• 21.7 the keeping (for a period of (5) years) of all records necessary to determine compliance with clauses dealing with job security, Safe Rates Committees and safe systems of work clauses.

• [23] FedEx submitted that s. 739(4) of the Act provides that the Commission's exercise of power in a private arbitration is subject to the jurisdiction conferred by the terms of an enterprise agreement's dispute resolution clause. As an administrative tribunal, as opposed to a court, the Commission is prevented from being conferred with judicial power[2] and may not exercise judicial powers in discharging arbitral functions.[3] FedEx submitted that the dispute resolution procedure in the Agreement did not provide the Commission with the jurisdiction to deal with the subject matter of the dispute and that a determination of the application would require the Commission to impermissibly exercise judicial power. In these circumstances, it was submitted that the Commission was not vested with jurisdiction to determine the application.

Standing and scope of dispute resolution procedure in the Agreement

• [24] FedEx submitted that the subject matter of the dispute did not fall within the terms of the dispute resolution procedure to the extent that it was brought under s. 739 of the Act and clause 12 of the Agreement as extracted above at [21].

• [25] FedEx contended that the TWU's application concerned a dispute between the TWU and FedEx and, accordingly, had been brought pursuant to clause 12(b). At hearing, this submission was elaborated on by reference to the exchanges between the TWU and FedEx that were annexed to the original dispute notification. FedEx submitted that the words of 12(b) were intended to limit the scope of the introductory words to clause 12, being 'any dispute or grievance that arises at the workplace'. In support of this interpretation of the dispute resolution clause, FedEx submitted that:

(a) Clause 12(b) deals exclusively with disputes between the TWU and FedEx;

(b) The dispute resolution process to which the subsequent procedure applies requires a dispute or grievance to be 'about the interpretation or application of this Agreement'; and,

(c) The subsequent words 'including but not limited to a dispute about any Transport Worker's conditions of employment or the Company's compliance with the NES in relation to one or more Transport Workers, with the exception of termination of employment' related to the antecedent words 'interpretation and application of this Agreement'.

• [26] FedEx submitted that when read as a whole, a clause 12(b) dispute between FedEx and the TWU may only be dealt with by the Commission if it concerns the interpretation and application of the Agreement.

• [27] FedEx contended that the dispute (as disclosed in the application) did not concern or refer to any clause which might relate to the interpretation and application of the Agreement - rather, the dispute concerned the lawfulness of wage deductions by reference to the Act and, tangentially, the WHS Act. In seeking that the Commission make a determination as to the lawfulness of deductions made by FedEx pursuant to s. 474(1)(b) of the Act, the TWU was seeking for the Commission to make a determination that did not fall within the scope of the private arbitration powers provided for by clause 12(b) of the Agreement, and accordingly could not be dealt with by the Commission pursuant to s. 739 of the Act.

• [28] FedEx also made submissions at hearing to the effect that the words 'parties' and 'Parties' (with the latter's definition in the Agreement reading 'includes the TWU') were used interchangeably and inconsistently throughout the Agreement. On this basis, FedEx said that the Commission could not be satisfied that the intended meaning of the use of the defined term 'Parties' in clause 12 was to provide the TWU with standing to bring the dispute.

• [29] FedEx submitted that the subject matter of the application effectively required the Commission to exercise judicial power and was accordingly impermissible. While it accepted that the Commission could determine legal rights in the process of dealing with a dispute pursuant to s. 739 of the Act, FedEx contended that this fell short of permitting a determination such as that which was sought by the TWU in the application.[4]

• [30] In support of this submission, FedEx said that the determination of the dispute required an analysis of the meaning and effect of provisions of the Act related to and including s. 474(1). FedEx said that the question of whether s. 474(1)(b) applied to the circumstances of the dispute required an antecedent determination as to whether the stoppage was 'industrial action that was not protected industrial action' as contemplated by s. 474 of the Act. FedEx said that this determination in turn required findings as to whether employees were authorised to stop work under s. 85 of the WHS Act and whether the stoppage fell within the definition of industrial action at s. 19 of the Act. The power to determine matters relating to payment for industrial action is vested with a court, not to the Commission - accordingly, FedEx contends, the dispute cannot be determined by the Commission as it would involve the exercise of judicial power.

• [31] FedEx further contends that the dispute is not 'arbitrable'- that is, the dispute is not capable of being referred to arbitration, as the TWU is seeking a determination of matters falling under the civil remedy regime in the Act. This submission is responsive to the relief identified in the TWU's application, being declarations regarding the lawfulness of withholding wages under s. 474 of the Act and given that section is a civil remedy provision.

• [32] The TWU submitted that the Commission was vested with jurisdiction to both hear and determine the entirety of the dispute.

Standing and scope of dispute resolution procedure in the Agreement

• [33] The TWU contended that it did have standing to bring the dispute under the dispute resolution procedure, submitting that FedEx's reading of clause 12 should not be accepted as limiting the TWU's standing to bring a dispute. Rather, it submitted that clauses 12(a) and 12(b), when read together with clauses 12.1 to 12.10, provide that the TWU (as a party to the Agreement) could bring disputes under either clause 12(a) or 12(b).

• [34] The TWU submitted that FedEx's reading that the words 'interpretation or application of this Agreement' limited the subsequent language of clause 12(b) was inconsistent with the remainder of the clause which captures disputes about 'any Transport Workers' conditions of employment' or FedEx's 'compliance with the NES in relation to one or more transport workers'. The TWU said that National Employment Standards (NES) compliance could not sensibly be limited to disputes regarding 'interpretation or application' of the Agreement and that accordingly clause 12(b) should not be read as preventing the TWU from raising a dispute regarding conditions of employment or the NES.

• [35] The TWU contended that the dispute resolution clause as a whole indicates the TWU's involvement in any dispute, not just those which concern the 'interpretation or application of the Agreement' because the dispute resolution procedure requires the 'matter in dispute' to be discussed by FedEx's Employee Relations Manager (or nominee) and the State Secretary of the TWU.

• [36] Further, the TWU identified that the word 'Parties' is defined in the Agreement as 'includes the TWU'. The TWU went on to identify that:

(a) Clause 12.5 refers to the Commission arranging conciliation conferences between the 'Parties' which may or may not involve the presence of the Commission;

(b) Clause 12.6 provides that should conciliation fail to resolve the dispute, the 'Parties' agree that the Commission shall proceed to arbitrate the dispute (including otherwise determining the rights and/or obligations of the Parties to the dispute); and,

• (c) Clause 12.7 provides that a decision of the Commission is binding on the Parties and subject to rights of appeal - which, in the event that FedEx's reading was accepted, would result in a decision being made by the Commission which bound the TWU despite their never having been a party to the application.[5]

• [37] Further, the TWU submitted that its broader interpretation of the dispute resolution procedure was supported by a previous decision of the Commission in Transport Workers Union of Australia v TNT Australia Pty Ltd[6] (TWU v TNT). The TWU submitted that the dispute resolution procedure considered by the Commission in TWU v TNT was identical to the relevant dispute resolution procedure in the Agreement. When asked to determine whether that clause permitted the TWU to raise a dispute regarding the issuing of a written warning to a delegate and related complaints regarding the investigation which preceded it, Deputy President Asbury (as she then was) found that the TWU had relevant standing to bring the dispute sought, as extracted below:

• [105] In relation to the second question for arbitration, I do not accept the submission of TNT that clause 12 of the Agreement applies only to a dispute between the TWU and the Company about the interpretation or application of the Agreement or that the use of the term 'including' after those words limits the operation of clause 12. By virtue of clause 12.1(a) of the Agreement the dispute settlement procedure in clause 12 applies to disputes between a transport worker and the Company about any condition of employment. That provision is not limited by clause 12(1)(b) of the Agreement. The fact that a transport worker is represented by the TWU from the outset does not mean that the clause should be limited to disputes about the interpretation or application of the Agreement. The clause should be construed so that an individual dispute about any condition of employment can be dealt with in relation to a transport worker. This is apparent from the only exception which relates to termination of employment.

• [106] Accordingly, a dispute about whether the process followed by TNT in determining to issue an allegations letter, the manner in which allegations are investigated or the basis upon which an allegations letter is issued are matters that are capable of being a dispute about a condition of employment of a transport worker. I also accept that the transport worker may raise the dispute directly or it may be raised by the TWU on behalf of the affected transport worker. However, I do not accept that the TWU or a transport worker can raise a dispute about whether a complaint made against the transport worker by another transport worker should be investigated by TNT or a decision by TNT to conduct such an investigation. A decision to investigate a complaint is a matter for TNT. The Company has a duty to a complainant to investigate a complaint.

• [38] While it accepted that this authority was not binding on the Commission as presently constituted, the TWU submitted that given the clause considered by the then Deputy President was identical to the relevant clause subject to these proceedings, the Commission ought not to depart from her construction and should find that the TWU had standing to bring this dispute.

Dispute does not involve exercise of judicial power

• [39] The TWU submitted that its application did not seek that the Commission exercise public administrative power but rather its private arbitral power, with the latter not involving the 'coercive power of the state exercised independently of the consent of the parties',[7] but rather a power exercised with the agreement of those parties.[8]

• [40] Relying on TCL Air Conditioner (Zhangshan) Co Ltd v The Judges of the Federal Court of Australia[9] (TCL) the TWU submitted that the primary consideration in matters concerning the power of private arbitration concerned what the parties have agreed - relying on the following extract, provided with references omitted:

• [75] The exercise of judicial power is an assertion of the sovereign, public authority of a polity. Whilst it is 'both right and important to observe that the determination of rights and liabilities lies at the heart of the judicial function', parties are free to agree to submit their differences or disputes as to their legal rights and liabilities for decision by an ascertained or ascertainable third party, whether a person or a body. As will be explained, where parties do so agree, 'the decision maker does not exercise judicial power, but a power of private arbitration'.

• [41] The TWU contended that s. 739(4) of the Act allows the Commission to arbitrate a dispute in whichever manner it is permitted to by the dispute resolution procedure - and that the limitation found at s. 739(3) does not constitute a 'legislative limitation of disputes' which may arise under an Agreement as urged by FedEx. Rather, the Act permits the arbitration of disputes limited only by the dispute resolution procedure and the terms of the enterprise agreement.[10] Ultimately, it submitted that the constraints on the Commission's exercise of private arbitral power are those prescribed by the jurisdiction founded on the authority of s. 739 of the Act, the terms of the relevant industrial instrument, and the nature of the dispute as notified.

• [42] The TWU submitted that the Commission is permitted to form and act on opinions concerning legal rights and obligations as a step in the discharge of its functions.[11] Accordingly, the question of whether the Commission has jurisdiction to deal with the dispute is determined by what the parties to the Agreement have agreed, which the TWU concedes turns first on whether the Commission is satisfied as to the matter of the TWU's standing. If satisfied that the TWU does have standing, the TWU submits that there can be no remaining jurisdictional contest because clause 12(a) defines a dispute widely and accordingly captures whether FedEx is entitled to withhold payment under s. 474 (being 'a dispute or grievance that arises in the workplace' and/or in the alternative 'a dispute about a condition of employment').

• [43] The TWU submits that, in the event the Commission is satisfied that it only has standing to bring a dispute under cl.12(b) of the Agreement, the dispute is still captured by clause 12(b) because:

(a) A narrow construction of the clause where it applies only to matters concerning 'interpretation or application' of the Agreement would not be consistent with its own language nor with previous Commission authority (as described at paragraphs [37] to [38] above); and,

(b) In any event, the dispute does concern the 'interpretation or application of the Agreement' because clause 21 of the Agreement provides that FedEx agrees to comply with safe systems of work and occupational health and safety legislation - in circumstances where the dispute concerns a stop work direction under the WHS Act and whether deducting wages was valid pursuant to s. 474 of the Act, the dispute concerns clause 21 of the Agreement.

• [44] At hearing the TWU also made submissions regarding the arbitrability of the dispute, arguing that the dispute was arbitrable and that FedEx had failed to identify the public policy basis for its submission that the subject matter of the dispute was not arbitrable, referring to the consideration of the Full Court of the Federal Court in Airservices Australia v Civil Air Operations Officers' Association of Australia[12] (Airservices). The TWU also responded to FedEx's submission concerning the interchangeable use of the capitalised and uncapitalised references to 'parties' in clause 12 and throughout the Agreement. The TWU conceded that the Agreement may have been written somewhat clumsily but submitted that FedEx had not brought any evidence to call into question the intention of the parties such as would warrant this level of detailed examination of the Agreement's construction.

Commission bound to find direction to stop work was valid.

• [45] The TWU also submitted that, notwithstanding its primary position as to the jurisdictional validity of the dispute, the Commission is not required to form legal opinions as to whether the stop work direction issued on 13 June 2023 was valid or as to the validity of the appointment of the HSR who issued it. Rather, as bound by Fair Work Ombudsman v CFMMEU (No 2),[13] a direction issued is valid irrespective of the presence of reasonable suspicion of the risk of harm in the mind of the issuing HSR at the time it was issued.

• [46] In reaching the conclusions that follow, I have considered the application and response filed by the TWU and FedEx respectively and all of the documents and evidence filed by the parties as well as all submissions made.

Standing and scope of dispute resolution procedure in the Agreement

• [47] The Commission can only deal with a dispute pursuant to s. 739 of the Act on application by a party to the dispute.[14] The dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement requires or allows the Commission to deal with and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement, in order for the Commission to have power to deal with the dispute.[15]

• [48] The first argument raised by FedEx that needs to be determined is whether the TWU has standing to bring the relevant dispute to the Commission and whether the relevant dispute falls within the ambit of the dispute resolution procedure in clause 12 of the Agreement.

• [49] The principles to be applied in interpreting enterprise agreements were most recently set out by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene[16] 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.

• [50] The Full Bench comprehensively considered the body of historical precedent governing the interpretation of enterprise agreements in AMWU v Berri Pty Limited[17] (Berri), from which 15 principles were distilled.[18] These principles are oft quoted and non-controversial:

• [114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. 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:

(ii) the disputed provision's place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
8. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
9. 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 aid the interpretation of the agreement.
10. 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.
11. 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.

1. 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.
2. 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.
3. 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.

• [51] In Airservices, Justice O'Callaghan made the following observations regarding the interpretation of dispute settlement procedures:[19]

• [99] The ascertainment of the scope of that clause is one of construction. Its meaning is to be determined by what a reasonable person would understand it to mean, having regard to its text, surrounding circumstances, purposes and objects. See, by way of example only, Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461‑462 [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 at 534 [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ). Further, '[c]ontext will almost always tell one more about the objectively intended reach of such phrases than textual comparison of words of a general relational character'. See Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442 at 496 [193] (Allsop CJ, Besanko and O'Callaghan JJ), cited with approval in Rinehart [2019] HCA 13; (2019) 267 CLR 514 at 529 [26].

• [100] It can readily be accepted, as the appellant submitted, that arbitration clauses, including those like the one here which permits arbitration of 'a dispute about a matter arising under' the EA, are to be construed liberally. See, by way of example only, Hancock Prospecting [2017] FCAFC 170; (2017) 257 FCR 442 at 499 [204]. In my view, however, and in particular because the FWC does not have the authority to deal with disputes about whether a party has contravened a civil penalty provision of the FW Act, or to impose penalties or grant declaratory relief in respect of any contravention of a civil penalty provision, a reasonable person, having regard to that surrounding circumstance or context, would not understand a clause permitting the FWC to arbitrate 'a dispute about a matter arising under [the EA]' as extending to civil penalty provisions contained in the FW Act.

• [52] In Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) (Maersk)[20] Justice Colvin observed that the principles involved when construing dispute resolution procedures in enterprise agreements, require consideration to be given to the practical character of an enterprise agreement and the circumstances of employment within the industry to which it applies (citations omitted):

The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites'.

• [53] Turning then to clause 12 of the Agreement, the opening words of the clause make it plain that the clause applies to 'any dispute or grievance that arises at the workplace'. That language prefaces both clause 12(a) and clause 12(b). I observe that the word 'any' is a word of broad application and meaning.

• [54] In clause 12(a) this phraseology is followed by the language 'Transport Worker/s and the Company, including but not limited to a dispute about any condition of employment or the NES'. In my view, this has the effect that a Transport Worker can invoke clause 12 and, pending compliance with the other steps in the clause, bring their dispute to the Commission for arbitration in relation to any concern that arises from their employment at FedEx, at least insofar as it arises at the workplace and does not arise from termination of employment. This is self-evidently a very broad ambit of potential disputation.

• [55] Similarly, clause 12, pursuant to clause 12(b), applies to 'any dispute or grievance that arises at the workplace... between the TWU and the Company about the interpretation or application of this Agreement, including but not limited to a dispute about any Transport Worker's conditions of employment or the Company's compliance with the NES in relation to one or more Transport Workers.'

• [56] Having considered the language and ordinary meaning of the words as well as the context and purpose of clause 12, I accept the submission of the TWU that the first paragraph in clause 12, including clauses 12(a) and 12(b), specifies the nature and parameters of the disputes that the Commission can deal with. To my mind, it does not specify which party to the Agreement has standing to bring that dispute. Further, given the lack of evidence and based on the high-level submissions made by the parties I am unable to accept FedEx's submission that the interchangeable use of the terms 'parties' and 'Parties' throughout clause 12 and the Agreement throws sufficient doubt on its intended meaning as to call into question its proper construction.

• [57] I will now turn to consider the nature of the dispute and whether it has been brought pursuant to clause 12(a) and/or (b) of the Agreement.

• [58] Ultimately, at hearing, FedEx accepted that the TWU could bring a dispute under clause 12(a) provided that it was doing so on behalf of Transport Worker/s, provided that the steps in clause 12 had been followed and provided that the subject matter of the dispute was within the constraints of the clause.[21]

• [59] FedEx made submissions that there was no evidence that the TWU was representing Transport Workers in this dispute. FedEx properly conceded, however, for the purposes of determining the jurisdictional objection, that the TWU had coverage and were entitled to represent Transport Workers covered by the Agreement. It also accepted that the TWU had standing to bring a dispute under clause 12(b) of the Agreement and that some TWU members had not been paid for four hours on 13 June 2023 as a result of FedEx determining that they had engaged in unprotected industrial action.

• [60] In relation to the question of whether the TWU was representing Transport Workers in relation to the dispute and whether it had coverage to do so the TWU drew my attention to the decision of Deputy President Asbury, as she then was. I respectfully adopt the same interpretation of the language in clause 12(a) and find that the dispute settlement procedure in clause 12 applies to any dispute arising at the workplace between a Transport Worker and FedEx about any condition of employment. The fact that a Transport Worker is represented by the TWU from the outset does not mean that the clause should be limited to disputes about the interpretation or application of the Agreement (setting aside for a moment the question of whether this is an accurate descriptor of clause 12(b) as will be considered further below).

• [61] I also accept the TWU's submission to the effect that it has filed the dispute on behalf of members. The subject matter of the dispute as filed is canvassed at paragraphs [3] to [4] above. The dispute notification makes it clear at clause 2.1 that it relates to the concerns of employees. Appended and referred to in the dispute notification are copies of correspondence from FedEx to employees, not to the TWU. It was not the TWU who participated in the stoppage and obviously it was not the TWU's wages which were withheld. This is also borne out by references peppered throughout the TWU's communications with FedEx about this matter. By way of example, in correspondence from Mr Gavin Webb of the TWU and Mr Brennan of FedEx sent on 13 June 2023 (13 June Letter) Mr Webb makes it clear, repeatedly, that he is corresponding on behalf of 'workers' and is raising 'their direct concerns'. Mr Webb makes clear that the TWU supports its members in relation to the matter the subject of the current dispute but that the issue was really a matter between the relevant HSRs, workers and FedEx and that the TWU would facilitate discussions between FedEx and the TWU's members. Similarly, in correspondence dated 14 June 2024 from Mr Webb to Mr Brennan (14 June Letter), Mr Webb makes it clear that the dispute is regarding 'whether FedEx would deduct 4 hours pay from the employees'. It is not abnormal that a dispute would be filed in the name of an industrial association and, in my view, relevant employees do not need to be named or individually identified in order for clause 12(a) to be enlivened.

• [62] I have found above at [54] that a Transport Worker can invoke clause 12 and, pending compliance with the other steps in the clause, bring their dispute to the Commission for arbitration in relation to any concern that arises from their employment at FedEx, at least insofar as it arises at the workplace and does not arise from the termination of employment. It is not controversial that the TWU can bring such a dispute on behalf of a Transport Worker or Transport Workers.

• [63] The subject matter of the dispute as filed is canvassed at paragraphs [3] to [4] above. As set out at [11] above, the TWU provided their proposed questions for determination to FedEx and the Commission on 26 October 2024.

• [64] In the matter of Davis, Cantrick-Brooks and Michael Turner v The University of Newcastle,[22] Deputy President Saunders made the following relevant observations concerning considering the subject matter of a dispute (with references omitted):

In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.

• [65] FedEx properly conceded[23] that a dispute can evolve over time and that, ultimately, it was the Commission's role to determine the subject matter of a dispute and how it should be determined.[24] In circumstances where the Commission's power to determine a dispute is broad, it follows that the Commission is not confined to answering only the questions posed by either party to a dispute.[25] Whilst the TWU has sought that the Commission consider whether there was a valid direction to cease unsafe work issued by HSRs and whether the relevant employees took unprotected industrial action I consider that these considerations are antecedent steps in considering the subject matter of the dispute. That subject matter is whether employees who stopped work at FedEx's Botany site on 13 June 2023 were entitled to be paid pursuant to clause 15 of the Agreement for the duration of the stoppage.

• [66] My view is reinforced by the 14 June Letter where it is made clear that there was an agreed way forward in relation to the supervisor involved in the circumstances that had led to the stoppage on 13 June 2023. The letter goes on to make clear that if the stoppage was deemed as industrial action and FedEx determine that they were 'required to deduct the pay from workers' pay, then the TWU will proceed to dispute this'. That is, in my view, the underlying WHS concern had been resolved, and a dispute would only be enlivened if payments were deducted from the pay of TWU members. After FedEx confirmed that it considered the stoppage to be unprotected industrial action and that it would be withholding the payment of wages, the TWU notified the dispute. This is the gravamen of the dispute and the questions posed by the TWU.

• [67] I find that the dispute before me is a dispute or grievance that arises at the workplace between a Transport Workers and FedEx and capable of being brought by the TWU to the Commission for resolution. To the extent that it is necessary, based on my findings above, I consider that it is in relation to 'any condition of employment'.

• [68] Even if I am wrong on my findings regarding the scope of a dispute pursuant to clause 12(a), I consider that the dispute as characterised above, could be brought to the Commission pursuant to clause 12(b).

• [69] In its written submissions FedEx contended that the dispute had been brought by the TWU solely in reliance on clause 12(b). At hearing FedEx conceded that a dispute about FedEx's compliance with the NES under clause 12(b) would not be a dispute about the interpretation or application of the Agreement and submitted that, effectively, I should read the clause as having an oxford comma after the words 'conditions of employment'. I do not accept this submission, having considered the language used, the context and purpose, I consider that the language of clause 12(b) does not prevent the TWU from raising a dispute regarding conditions of employment of Transport Workers that are not contained in the Agreement.

• [70] Self-evidently, an enterprise agreement contains conditions of employment. Enterprise agreements are creatures of statute, and as the Guide to Chapter 2, Terms and Conditions of Employment, Part 2-1 states, an enterprise agreement 'provides terms and conditions for those national system employees to whom the ... agreement applies'. This language is largely reproduced in s. 5 and s. 169. Similar language is used in s. 43(1) which provides that 'the main terms and conditions of employment of an employee ... are those set out in ... an enterprise agreement.'. As a result, the reference to 'including but not limited to a dispute about any Transport Worker's conditions of employment' would be completely redundant if its purpose was to confer the right on the TWU to agitate a dispute only concerning the interpretation or application of the Agreement. I have also reached this conclusion having regard to the use of the word 'any Transport Worker's conditions' which substantively reflects the language in clause 12(a), with the additional reference to Transport Workers.

• [71] The language of the prefatory words to clause 12, combined with the language used in clause 12(b) itself, including references to the NES, leads me to the conclusion that clause 12(b) should not operate in the way contended for by FedEx. This is supported by the language of the remainder of clause 12 which provides for the involvement of the TWU as nominated representative of an 'aggrieved Transport Worker' in clauses 12.2 to 12.3, and then for the discussion of an as-yet unresolved matter between the TWU State Secretary and the Company's Employee Relations Manager or nominee. The clause does not differentiate between the TWU's role in a dispute brought under either clause 12(a) or 12(b).

• [72] Given my findings above, I consider subject to my findings below that this is a dispute regarding 'any condition of employment' and can properly be brought by the TWU pursuant to clause 12(b) of the Agreement.

• [73] The TWU contends that the dispute was also about the interpretation and/or application of clause 21 of the Agreement. However, the TWU's submissions did not identify the particular language or element of clause 21 that it relied upon. Having made the finding that this dispute is one that can be brought under clause 12, it is not necessary for me to resolve this matter. However, I observe that it is arguable that the subject matter of this dispute, or at least some of it, may concern whether FedEx ensured that work was performed 'in accordance with safe systems of work... [including] ensuring that all work is performed in a manner consistent with all relevant occupational health and safety legislation'.

Does the dispute involve the exercise of judicial power?

• [74] As outlined above, I do not consider myself to be bound by the questions posed by the parties. I consider that the subject matter of the dispute is whether employees who stopped work at FedEx's Botany site on 13 June 2023 were entitled to be paid pursuant to clause 15 of the Agreement for the duration of the stoppage. At the time of filing the dispute in the Commission on 2 August 2024 (well over a year after the stoppage) the underlying health and safety concern that had given rise to the original direction from the HSRs had been resolved. There was no evidence before me that there continued to be any disputation regarding that issue. Indeed, the evidence of Mr Czech was to the contrary.

• [75] Ultimately, in my view, the issue that remains contested is that the relevant TWU members who stopped work on 13 June 2023 have not been paid for that stoppage. Ordinarily, employees covered by the Agreement are required to be paid the rates of pay stipulated by clause 15 of the Agreement. FedEx has made the decision to withhold the payment of wages as it has formed a view that employees engaged in unprotected industrial action as they did not hold a reasonable concern regarding their health and safety despite receiving a direction to cease work given by an HSR.

• [76] The TWU contended that s. 739(4) of the Act allows the Commission to arbitrate a dispute however a dispute resolution term describes it - and that the limitation found at s. 739(3) does not constitute a 'legislative limitation of disputes' which may arise under an Agreement as urged by FedEx. Rather, the Act permits the arbitration of disputes limited only by the dispute resolution procedure and the terms of the enterprise agreement.[26] Ultimately, it submitted that the constraints on the Commission's exercise of private arbitral power are those prescribed by the jurisdiction founded on the authority of s. 739 of the Act, the terms of the relevant industrial instrument, and the nature of the dispute as notified.

• [77] Both parties accepted that legal rights can be determined in the process of the Commission determining a dispute within its own powers. As outlined above, I consider this to be a dispute about a dispute or grievance that arises at the workplace, and a dispute about a condition of employment and one that is within the scope of clause 12 of the Agreement.

• [78] FedEx contends that the dispute as notified asks the Commission to exercise judicial power by determining the lawfulness of FedEx's actions under s. 474(1)(b) of the Act. It relies, in part, on the request for 'declarations regarding the lawfulness of the Respondent's decision to deduct ... wages from employees' in the original dispute notification and also the TWU's original characterisation of the dispute. This submission seems to be focussed on the nature of the remedy sought, being a declaration, and the subject matter of the impugned conduct of FedEx and the submission that the Commission is being requested, as a matter of law, to determine whether FedEx was entitled to withhold payment.

• [79] In response to the first question concerning purported declaratory relief, I note that the TWU made clear that it was not seeking declarations in the proceedings before the Commission and was instead pressing for answers to the questions posed by the TWU at [11] above.

• [80] In response to the second issue as to findings regarding the lawfulness of impugned conduct - Counsel for the TWU stated that, to the extent that there were references to unlawfulness in the application, these were not pressed and that the TWU was not seeking for the Commission to determine whether the conduct of FedEx was unlawful or not. The TWU made clear that it was not seeking a determination that FedEx had contravened s. 474 or s. 50 of the Act and was not seeking the imposition of penalties. It submitted that the role of the Commission was to determine whether the employees who stopped work on 13 June at Botany were required to be paid pursuant to the Agreement. It was submitted that, as part of resolving the actual controversy underlying the proceedings before the Commission, the Commission may be required to consider the directions of the HSRs, questions of what the stoppage of work was and whether it was authorised. However, the TWU argued that the Commission can form opinions about the law in resolving the actual controversy that is the subject of the dispute; whether employees of FedEx were entitled to be paid in accordance with the Agreement.

• [81] I have had regard to Justice O'Callaghan's commentary in Airservices to the effect that the making of findings of fact, even where those findings constitute criminal conduct, is 'entirely consistent with orthodox principle' as well as the scheme of the Act, where those findings do not and cannot involve the finding of a conviction.[27] O'Callaghan J went on to observe that an arbitrator is permitted to make binding findings of fact insofar as those findings fell short of an impermissible exercise of judicial power (such as declarations of contravention and the imposition of penalties):[28]

... in a case such as this, a party in the position of the appellant is estopped from denying the truth of such factual findings made by the arbitrator. The hearing before the primary judge proceeded on that basis. But the question of whether those facts thus established constituted a contravention of a civil penalty provision of the FW Act, whether declaratory relief should be granted, and whether penalties should be imposed and if so, in what amount, are all questions that are the exclusive preserve of the courts. In my view, the bifurcation of the process involves no difficulty at all and as I say, is consistent with orthodox principles.

• [82] A Full Bench of the Commission made the following comments in the matter of CPSU v Tenix Solutions Pty Ltd[29] in considering whether the determination of a dispute by way of issuing a declaration would impermissibly involve the undertaking of judicial functions:[30]

Whether an application invites the use of judicial power depends upon the circumstances. As was said in Re Geelong Grammar School:

• [24] There is no doubt that the Commission may, without exercising judicial power, decide questions which "are not necessarily foreign to judicial power." [For an analogous case concerning a local coal authority under the Coal Industry Act 1946-1957 (Cth) see R v Lydon; Ex parte Cumnock Collieries [1960] HCA 19; (1960) 103 CLR 15 at 22] Whether the Commission purports to exercise judicial power will depend upon the facts of the case and in particular upon whether the decision which is sought to be impugned is in truth an attempt to ascertain, declare or enforce existing rights [Waterside Workers Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 at 463] or only a step in the proper exercise of the powers conferred upon the Commission by the Parliament.

[But] there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries, at p 22; R v The Commonwealth Industrial court; Ex parte The Australian Coal and Shale Employees' Federation [1960] HCA 71; (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597. Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries, at p 44." [Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149]

• [25] While this passage analyses the issue by reference to statutory powers of arbitration, the principles apply equally to the exercise of statutory powers such as those conferred by dispute resolution provisions in certified agreements pursuant to s. 170LW. The Commission may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the conclusions on which it bases a decision resolving a dispute over the application of a certified agreement.

• [26] Whether a particular decision should be so described depends to a great extent, if not entirely, upon the circumstances of the particular case.

• [83] In my view, the first two questions posed by the TWU at [11] above are the antecedent questions to determining the final question. The first question does not engage with any civil remedy provision. If the first and second questions are answered in the affirmative, then s. 474 is not even a consideration in these proceedings. I will return to s. 474 below.

• [84] I accept that resolving this question may, in this matter, require the analysis of whether the employees took industrial action and, if so, whether it was protected. These are anterior issues that may fall to be considered as part of the determination of this dispute. However, as outlined above, based on my analysis of clause 12 of the Agreement, I consider that the parties have agreed that I can resolve such a dispute by exercising the power of private arbitration under the Agreement. As per the decision in TCL, I consider that the parties have agreed to submit their differences or disputes as to their legal rights and obligations regarding any dispute or grievance that arises at the workplace, on one hand, and, at a minimum, regarding any Transport Workers' conditions of employment, for decision by the Commission.

• [85] In Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd,[31] Justice Kitto stated that (with citations omitted):

The making of a binding declaration of right is an instance of the exercise of judicial power ... But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power ...

• [86] Such is the case here - the Commission is being asked to interpret laws and other legal instruments such as the Agreement as a part of resolving the ultimate dispute as to whether employees were required to be paid during the stoppage. The Commission, when exercising the power of private arbitration, may determine the legal rights of the parties in a binding manner. Such is the case in the matter before me.

• [87] FedEx drew my attention to the case of Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd[32] (Nickel West). The dispute before me can be contrasted to the Nickel West dispute which concerned the operation of Part 3-4 of the Act where the Construction, Forestry, Mining and Energy Union (CFMEU) was seeking an order that certain permit holders were entitled to enter the premises of the Respondent in that matter for the purposes of holding discussions with CFMEU members. This was not a case where the Commission was conducting a private arbitration.

• [88] Regarding the question of whether the dispute is arbitrable I find that it is. In support of its contention that the dispute is not arbitrable, FedEx relies in part on an argument that the TWU is seeking a declaration regarding unlawful conduct. I reject this submission noting the relevant observations in Airservices referred to in part at [81] above and find that the dispute is arbitrable.

• [89] Firstly, it is important to note that the decision in Airservices was not a decision on judicial review of the decision made by the Commission in the exercise of power under s. 739 of the Act. It was instead considering a decision of the primary judge who had determined that a previous s. 739 arbitral award regarding an enterprise agreement had not resolved a subsisting justiciable controversy. This finding was made on the basis that alleged contraventions of s. 50 of the Act, and the imposition of pecuniary penalties, were not a matter capable of being referred to arbitration and that, indeed, they had not been determined by the Commission. This is obviously correct and was upheld by the Full Court. However, that is not the situation in the dispute before me. The TWU has made clear that it is not seeking declaratory relief in these proceedings and that it does not press for any determination of the lawfulness of FedEx's conduct in withholding payment, nor does it seek the imposition of penalties.

• [90] In support of its submission on arbitrability FedEx has contended that the TWU is seeking a declaration as to whether FedEx was engaging in lawful activity in deducting wages under s. 474. However, s. 474, whilst a civil remedy provision, only gives rise to a potential penalty if an employer actually makes a payment to an employee who has engaged in industrial action. Section 474 does not give rise to a potential penalty where wages have been deducted by an employer, as is the case in this dispute. In my view, in circumstances where employees have not been paid, any consideration of s. 474 as a step to resolving the dispute between the parties in relation to this dispute, would not include a consideration of whether FedEx had engaged in conduct in contravention of s. 474 of the Act. Nor would the current position of the TWU as to resolution of the underlying dispute in these proceedings result in the making of any declaration that FedEx had contravened s. 474 of the Act, nor the imposition of penalties. Further, I do not consider that FedEx has identified any particular legitimate public policy reasons why the questions put by the TWU are not arbitrable.

• [91] Given my findings I conclude that dealing with the dispute the subject of these proceedings is within the Commission's jurisdiction and does not involve an impermissible exercise of judicial power.

• [92] For the reasons I have given, I dismiss the jurisdictional objections made by FedEx. The matter will be listed for mention and directions in due course.

L Hamilton of Counsel instructed by S Nasser for the Transport Workers' Union, Applicant

[1] The specific circumstances giving rise to this dissatisfaction are not relevant to the jurisdictional objections in these proceedings and I do not intend to canvass them in this decision in any great detail.

[2] Ranger Uranium Mines Pty Ltd; Ex parte FMWU [1987] HCA 63; (1987) 163 CLR 656, [17]; Australian Constitution, section 71.

[3] Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87, [21].

[4] Being as to the lawfulness of FedEx withholding the payment of wages under s. 474(1)(b) of the Act.

[5] The TWU submitted that this would offend the Commission's obligation to conduct hearings in a 'fair and just' manner pursuant to s. 577(1)(a) of the Act.

[6] [2018] FWC 6554.

[7] CFMEU v AIRC [2001] HCA 16; (2001) 203 CLR 645 (CFMEU) at [31] (applied in CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 5054 at [60]; One Tree Community Service Inc v United Workers' Union [2021] FCAFC 15 (One Tree) [66].

[10] Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia [2016] FWCFB 8120 [38].

[11] United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84 [87]; Re Grabovsky [2020] FWCFB 5995 [69].

[12] [2022] FCAFC 172 [85] - [89].

[13] [2023] FCA 1302 [374].

[14] Fair Work Act 2009 (Cth), s. 739(6).

[15] Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National [2017] FWCFB 1702 at [15].

[16] [2018] FCAFC 131, 264 FCR 536 [197].

[17] [2017] FWCFB 3005.

[19] Justice Snaden agreed with the decision of Justice O'Callaghan and Justice Bromberg departed from the reasoning of Justice O'Callaghan only regarding the determination of the appeal grounds relating to the penalty awarded at first instance.

[20] [2020] FCA 1694 [86].

[21] Transcript - 23 April 2025 - PN269_._

[22] [2019] FWC 2282 (Davis).

[23] Transcript - 23 April 2025 - PN56, PN265 - PN267.

[24] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited PR940366 [45] - [47]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board PR973884 [26]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 [19], [23] cited in National Tertiary Education Industry Union (283V) v University of Newcastle [2021] FWC 5150 at [25].

[25] Transcript - 23 April 2025 - PN265 - PN267.

[26] Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia [2016] FWCFB 8120 [38].

[29] PR940630 (Tenix) [46].

[31] [1987] HCA 29; (1987) 163 CLR 140 at 149.

[32] [2017] FWCFB 217.

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