Fair Work Act 2009

s.739 - Dispute resolution

Westside Bus Company Pty Ltd Atf Westside Unit Trust, Bus Queensland (Lockyer Valley) Pty Ltd, Toowoomba Admin Pty Ltd Atf Toowoomba Admin Unit Trust, Park Ridge Admin Pty Ltd Atf Park Ridge Unit Trust

Dispute about matters arising under the Bus Queensland, Transport Workers Union and Bus Queensland Employees' Enterprise Agreement 2022.

• [1] On 25 June 2025, the Transport Workers' Union of Australia (TWU / the Applicant) made an application to the Fair Work Commission (the Commission) on behalf of their membership under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. Westside Bus Company Pty Ltd as trustee for Westside Unit Trust, Bus Queensland (Lockyer Valley) Pty Ltd, Toowoomba Admin Pty Ltd as trustee for Toowoomba Admin Unit Trust and Park Ridge Admin Pty Ltd as trustee for Park Ridge Unit Trust are the Respondents in this matter (collectively Bus Queensland / the Respondent). The dispute was raised under the Bus Queensland, Transport Workers Union and Bus Queensland Employees' Enterprise Agreement 2022 (the Agreement).

• [2] The matter was listed for a private conference on 22 July 2025 and a subsequent conference on 1 August 2025. The matter did not resolve at conference and the parties agreed for the Commission to move to the arbitration stage of the Dispute Resolution Procedure.

• [3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing before me on 19 September 2025 by Microsoft Teams Video.

• [4] At the Hearing, permission was granted for the Applicant to be represented by Mr Philip Boncardo of Counsel and for the Respondent to be represented by Ms Megan Brooks of Counsel, instructed by Piper Alderman.

• [5] The TWU relied on its Outline of Submissions filed on 22 August 2025 and closing oral submissions.

• [6] The Respondent relied on its Outline of Submissions filed on 5 September 2025 and its closing oral submissions. Certain documents produced by the Respondent to the Applicant's representatives were subject to a production order and a subsequent confidentiality order. Representatives from the TWU also provided an undertaking regarding the treatment of those documents.

• [7] The Applicant's two witnesses, Mr Geoffrey Green[1] and Mr James Wilkinson,[2] were not required for cross examination and their statements were admitted into evidence. Mr Paul Davies provided a witness statement[3] for the Respondent and was subject to cross-examination.

• [8] The dispute relates to the effects of a partial wage subsidy legislated by the Queensland Government which would provide additional funding to Bus Queensland through Translink. Translink is a division of the Department of Transport and Main Roads, which has statewide responsibility for buses across South East Qld, including Bowen, Bundaberg, Cairns, Fraser Coast, Gladstone, Gympie, Innisfail, Kilcoy, Mackay, Rockhampton and Yeppoon, Sunshine Coast Hinterland, Toowoomba, Townsville, Warwick and the Whitsundays.

• [9] The Respondent approached the TWU to request termination of the Agreement to commence bargaining for a new agreement to give effect to the wage increase on offer through Translink. The Agreement has a nominal expiry date of 31 December 2026. Clause 6(b) of the Agreement states that in the event of extraordinary funding for wages and other improvements, parties agree to support an application to vary the Agreement to incorporate wage increases for employees.

• [10] On 26 September 2023, the Queensland Government announced the relevant partial wage subsidy. Bus Queensland has not yet accepted it and has remained in negotiations with Translink regarding the terms of the subsidy. On 6 June 2024, the TWU wrote to Bus Queensland enquiring as to the Respondent's intentions regarding the funding.

• [11] On 24 April 2025, the parties met to discuss the terms of the additional funding. During this meeting, Bus Queensland enquired as to whether the TWU was open to terminating the Agreement. The TWU confirmed they were open to terminating the Agreement and commence bargaining for a new Agreement but would firstly need to seek the instructions of their members. Bus Queensland indicated it was considering issuing a Notice of Employee Representative Rights (NERR) to the relevant employees.

• [12] Shortly after the meeting, the Respondent issued a NERR to all employees. The Applicant replied later that day stating that the TWU had not yet agreed to begin bargaining and was in the consultation stage with its members.

• [13] On 28 April 2025, the Respondent wrote to the TWU regarding the issuing of the NERR and the plan to negotiate a new Agreement and terminate the current Agreement. The TWU responded on 29 April 2025, noting it still needed to consult with its members before it could bargain on any new Agreement.

• [14] On 2 May 2025, the parties met. Bus Queensland confirmed that they had not yet accepted an offer for the subsidies through Translink but anticipated it would receive an acceptable offer shortly. The TWU put forward that clause 6(b) of the Agreement gave parties' the ability to provide wage increases without bargaining for a new agreement. Following this meeting, Bus Queensland sent an email to all employees claiming that they were seeking to negotiate a new agreement and is seeking to terminate the Agreement to offer anticipated wage increases.[4]

• [15] On 8 May 2025, the TWU wrote to the Respondents raising concerns about good faith bargaining and the effect of clause 6(b). The Respondents replied that they do not believe that they have received 'extraordinary funding' nor an 'increase in funding' under clause 6(b).[5]

• [16] On 11 June 2025, Bus Queensland sent a further email to all its employees, restating that it was seeking to terminate the Agreement and negotiate a new Agreement as wage increases could not apply unless the old Agreement was terminated.[6]

• [17] The approach to the construction of enterprise agreements is well-settled. The following precepts are germane to the analysis required in the present case.[7]

• [18] First, the TWU submitted enterprise agreements are sui generis instruments.[8] They are instruments made by the employer and the employer's employees who were employed at the time the Agreement was made and are covered by it.[9]

• [19] It is not necessary for all employees employed at the time of the making of the Agreement to agree to the Agreement's terms. What is required is that out of the employees who voted to approve the Agreement, a majority of employees voted in favour of approval.

• [20] Once a majority of employees assented to the Agreement, under s.185 of the Act, a bargaining representative must apply to the Commission to approve the agreement. Once the Agreement is approved under s.186 of the Act, the Agreement covers all employees, including employees who did not vote in favour of approval and subsequent employees employed after the Agreement took effect.

• [21] Enterprise agreements are 'agreements in name only' as they bind employees who did not participate in the vote; employees who participated in the vote but voted against approval; and subsequent employees employed after the Agreement was approved.

• [22] The TWU submitted that this interpretation of an enterprise agreement has a number of implications:

(a) enterprise agreements are statutory artefacts and not bargains reached between unions or other representatives of employees as party principals with employers;[10]

(b) contractual doctrines are of limited relevance to their interpretation;[11] and

(c) whilst such agreements have a legislative character, they are not instruments of the kind captured by s.46 of the Acts Interpretation Act 1901 (Cth) with the Acts Interpretation Act not applying to their construction.[12]

• [23] Additionally, the TWU said the starting point for construction is the text of the Agreement, with that text considered in context and in light of the industrial purpose of its provision.[13]

• [24] Thirdly, the TWU stated, words within an industrial instrument are not to be interpreted in a vacuum divorced from industrial realities. This has two related implications: (1) it entails that a purposive approach is appropriate, and a narrow or pedantic approach should be eschewed;[14] and (2) it means that the Court should not be attuned to infelicities in drafting.

• [25] Fourth, the TWU submitted that notwithstanding the precept that an agreement is to be construed purposively and in a non-pedantic fashion, the Court is not free to give effect to an anteriorly derived notion of what is fair and just.[15] The imperative to ground the interpretative task in the text of a provision was underscored to by French J in City of Wanneroo v Holmes,[16] where his Honour explained in the context of discussing industrial awards made by the Commission's predecessor, that such instruments should make sense according to the basic conventions of the English language as they bind parties on pain of pecuniary penalties.

• [26] Fifth, the TWU said, relatedly to the first and fourth propositions, extraneous evidence which parties seek to rely upon to provide "context" to a particular term is either inadmissible or should be treated with significant circumspection.[17]

• [27] Sixth, the TWU said enterprise agreements are not to be construed by reference to the conduct of parties subsequent to their approval given that they take their meaning at the time they are made and approved, which meaning is not capable of revision or alteration by subsequent conduct.[18]

• [28] Within the Respondents' submissions, it referred to the case of James Cook University v Ridd (Ridd),[19] where the Full Court of the Federal Court of Australia held at [65]:

"The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

i. The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

ii. A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Limited [1996] 66 IR 182, 184_; Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd_ [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

iii. Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to "... the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).

iv. Context may include "... ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

v. Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..." (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

vi. A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).

vii. Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197])."

• [29] The TWU initially submitted the following four questions for arbitration:

1. In the event that extraordinary funding is provided, in accordance with clause 6(b), is the Respondent required to meet and agree on the amount of wage increases and to vary the agreement to incorporate any agreed wage increase and/or improvements in wages and conditions.

2. Does clause 6(b) require the Respondent to accept an offer of additional funding from the Queensland Government, regardless of the conditions on such funding?

3. Is the Respondent prohibited from seeking to terminate the Agreement prior to the requirements in clause 6(b) being complied with.

4. If clause 6(b) of the Agreement does not require a funding offer to be accepted by the Respondent, is it permissible for the Respondent to propose to relevant employees the termination of the Agreement and the entering into of a new Enterprise Agreement as a prerequisite for it accepting the Government's funding offer?

• [30] The Respondent contended the questions posed by the TWU will not resolve the dispute, because:

(a) the focus of the first posed question is not whether clause 6(b) requires the Respondent accept a Partial Wages Subsidy Offer, i.e. how the phrases "is increased", or "is provided" are to be interpreted in context, but rather, whether the clause requires the parties to do various things when funding is indeed provided, which is not in dispute; and

(b) the second posed question appears to raise a different question, unrelated to whether the Partial Wages Subsidy Offer has triggered the operation of clause 6(b), and which assumes it has indeed been triggered.

• [31] The Respondents' understanding - prior to the questions being posed - was that the TWU contended that the Respondents are required, by virtue of clause 6(b) of the Agreement, to accept all monies offered by the State Government via Translink to increase wages. The Respondent does not agree that the current Agreement requires this; specifically, the Respondent's submitted that the Partial Wages Subsidy Offer does not trigger clause 6(b) as an offer of funding is different to whether funding "is increased" or "is provided".

• [32] Within its' submissions, the Respondents maintained that the relevant questions are:

(a) does clause 6(b) require the Respondent to accept an offer of additional funding from the Queensland Government, regardless of the conditions on such funding?

(b) if clause 6(b) of the Agreement does not require a funding offer to be accepted by the Respondent, is it permissible for the Respondent to propose to relevant employees the termination of the Agreement and the entering into of a new Enterprise Agreement as a prerequisite for it accepting the Government's funding offer?

• [33] At the hearing, the TWU submitted the real question for determination is what effect does clause 6(b) have in regard to the recently developed circumstances. The TWU submitted that clause 6(b) operates in these circumstances and triggers an obligation for the Respondents and the TWU, given the availability of the funding, to meet and agree on wage increases, and if required, deal with the dispute through applying for arbitration by the Commission.

• [34] The TWU submitted as the parties have been unable to agree it falls to the Commission to characterise the dispute and resolve it.

• [35] The TWU advised, in oral submissions, it no longer pressed the third and fourth questions it had initially posed. In relation to the first question, the TWU submitted that the words within the Agreement have a degree of ambiguity in its framing, suggesting the framing is "whether in the circumstances before the Commission, the obligation under clause 6(b) has crystallised such that in the events that have happened, the Respondents are required to meet and agree on wage increases."

• [36] The TWU did not dispute that an offer had not, as at the time of the hearing, been accepted by the Respondents.

• [37] The TWU submitted the Respondents' second question does not assist in resolving the dispute as the TWU submitted it did not say clause 6(b) required the Respondents to, in fact, accept funding_,_ but that clause 6(b) operates in circumstances where 'extraordinary funding' or 'additional funding' resulted in wage increases. The TWU noted that clause 6(b) does not operate to require the Respondents to have accepted the offer and received the funding.

• [38] Ultimately, the TWU submitted that where the Respondent has not identified a reason to reject the offer of funding outside its own industrial imperatives, that the Commission would be satisfied that the funding meets the description of the either, or both, of the two circumstances dealt with in clause 6(b), being either 'extraordinary funding for wages has increased,' or that it is 'additional funding for the purpose of increasing wages.'

• [39] The TWU submitted that the offer of funding made by Translink to the Respondents was made subject to the Respondents' condition precedent, being that the current Agreement be terminated and a new Enterprise Agreement be made in order to receive the offered funding.

• [40] The TWU further submitted that a bucket of money is also available to the Respondents but the Respondents refused to accept the money unless it achieves its industrial aim of terminating the Agreement which does not expire until 31 December 2026 and replacing it with a new enterprise agreement to operate until the end of this decade.

• [41] The TWU submitted the Respondent is attempting to leverage the offered and available pay rise by pressuring its employees into accepting an outcome that is industrially favourable to the Respondent, and this approach is industrially unconscionable.

• [42] Clause 6 of the Agreement reads as follows:

"a) Subject to sub paragraph b) the parties agree that no extra claims shall be made in regard to any wages, allowances or conditions of employment during the nominal term of this Agreement.

b) It is acknowledged that the company provides public transport bus services on a contractual basis with the Queensland Government through Translink. In the event that extraordinary funding for wages or other improvements in terms and conditions of employment is increased during the life of this Agreement and/or additional funding is provided by Translink for the purpose of increasing wages or improving terms and conditions of employment, the parties agree that any increase will apply from the date such funding becomes available.

The parties will meet and agree on the amount of wage increase or improvement in terms and conditions which will apply. Any dispute relating to the application of any increase in wages and/or improvements to terms and conditions of employment shall be dealt with pursuant to clause 21 Dispute Resolution Procedure.

The parties agree to support an application to vary the agreement to incorporate any agreed wage increase and/or improvements in wages and conditions.

c) Clause b) shall not apply to contract variations reflecting to ordinary business activity (E.G. route/network changes)."

• [43] The TWU submitted clause 6(a) of the Agreement is styled as a 'No Extra Claims' clause. Specifically, that during the nominal term of the Agreement, no extra claims can be made by parties in regards to wages, allowances or conditions of employment. Further, clause 6(b) of the Agreement prescribes an exception to this general rule, where extraordinary funding and/or additional funding for wages or improvements on the terms and conditions of employment have been provided by Translink to Bus Qld within the life of the Agreement.

• [44] In such a situation, clause 6(b) of the Agreement mandates that wage increases will apply from the date such funding becomes available. Notably, clause 6(b) of the Agreement explicitly names the funding source as "Translink". The TWU submitted it is contemplated that this subject of clause 6(b) can be described as an extra claim.

• [45] The TWU noted that clause 6, as currently drafted, first appeared in the Bus Queensland, Transport Workers Union and Bus Queensland Employees' Enterprise Agreement 2017 (the 2017 Agreement). This clause remained unchanged in a subsequent enterprise agreement, being the Bus Queensland Transport Workers Union and Bus Queensland Employees Enterprise Agreement 2019 (the 2019 Agreement). Specifically, the 'No Extra Claim' clause was not subject to discussion for bargaining for this Agreement, which involved the rolling over of the term from the 2019 Agreement.

• [46] Mr Davies agreed that paragraph 21 of his witness statement contained an incorrect date reference of 2025, which should have read as 2019. Mr Davies further agreed that the offer of Translink included an uplift in wages from 1 July 2025 and backpay to 1 July 2024. Mr Davies agreed that in 2024, the Respondents had been concerned about the sufficiency of funding for leave liability, superannuation and payroll tax increases. The Respondents were also concerned about driver forums and safety audits and the disparity that the wage uplift would create for staff performing non-Translink work.

• [47] It was put to Mr Davies these issues were ironed out in early 2025, and he agreed there was movement from Translink in relation to driver forums, safety audits and funding for leave liability.

• [48] In Mr Davies' evidence, he rejected the notion that Translink agreed to fund the additional liability for superannuation and payroll tax and said the issue remained unresolved. The Respondent, however, agreed it had not made submissions in response to that that issue referred to in correspondence from Mr Davies.

• [49] Mr Davies said there is a discrepancy between the contract rate and the actual cost to the Respondent. It was put to Mr Davies that the Respondents had decided as at 24 April 2025 that the current Agreement had to be terminated as a condition precedent to accepting the funding, and a new enterprise agreement with a four-year term had to be agreed. Mr Davies accepted that statement and indicated this was the position from September the previous year.

• [50] Though parties were cross examined around issuing the NERR, it is unnecessary to deal with this evidence in detail in order to determine this dispute.

• [51] It was put to Mr Davies that by 24 April 2025, the Respondents decided it was going to use the prospect of funding being available as a means to convince the TWU and its members to bargain for a new enterprise agreement. Mr Davies replied by stating the Respondents had concluded that, in order to pass the funding and to bear the costs from passing on the funding, it would be seeking a new enterprise agreement to provide the Respondents with certainty on its industrial relations and its anticipated costs of future contracts.

• [52] Mr Davies agreed with the proposition that the Respondent wanted a situation where employees would not be able to take industrial action for another four years. Mr Davies also explained on a separate issue that Translink had not calculated the correct contractual rate for the last 7 years, and in order to ensure any wage increase is accurately quantified, the baseline payment must be accurate.

• [53] Mr Davies further agreed that he rejected a proposal by the TWU at the 2 May meeting to use clause 6 of the Agreement to vary the rates of pay. Mr Davies gave evidence towards a potential cost to the business if a driver was engaged to do Translink work, but, they did not do Translink work for part of their shift, as they would be receiving the higher rate despite doing non-Translink work.

• [54] The TWU submitted that textually, clause 6(b) deals with a circumstance where one of two things occur:

(a) extraordinary funding for wages or improvements is provided by Translink; or

(b) other additional funding is provided by Translink for the purpose of increasing wages or improving conditions.

• [55] Those circumstances are contemplated to occur "during the life of the Agreement". This temporal requirement can be read as relating to the nominal term of the Agreement or the time that the Agreement is in operation. The latter meaning is more congruent with the language used. This conundrum need not be resolved given that the TWU's case is that the circumstance has arisen well within the nominal term of the Agreement.

• [56] The TWU said the clause goes on to indicate what the parties have agreed will occur if the circumstance arises: increases are to apply from the date such funding becomes available. What is entailed by the concept of "increases" is given content by the second paragraph of clause 6(b), which speaks of increases or improvements in wages or terms and conditions. Thus, the provision determines that increases in wages, terms and conditions are to apply on and from the date funding from Translink becomes available.

• [57] The TWU continued their submissions stating that the parties are required to meet and agree on the amounts of wage increases or term and condition improvements. However, agreement is not necessitated, given that it is envisaged that there may be disputation about these matters. Disputes about increases or improvements are required to be dealt with under the dispute resolution procedure under clause 21 of the Agreement. Hence, if the parties cannot agree on the quantum or timing of increases or improvements, they are to utilise the dispute resolution procedure to resolve their differences. That may, ultimately, lead to the Commission arbitrating the outcome.

• [58] The TWU was of the view that stepped through, clause 6(b) of the Agreement provides that:

(a) where extraordinary funding for wages or other improvements in employment terms and conditions is increased during the life of the Agreement; and/or where Translink provides additional funding to increase wages or improve terms/conditions of employment;

(b) increases to wages and terms and conditions will apply from the date funding becomes available;

(c) parties will meet and agree on the amount of wage increase;

(d) if the parties cannot agree, they must avail themselves of the dispute resolution process;

(e) where a dispute arises about the increase of wages, it shall be dealt with pursuant to the dispute resolution procedure in the Agreement.

• [59] Based on the ordinary meaning of the words within clause 6(b), the Respondent submitted the following meanings applied:

(a) First, the parties will agree to take various steps if various events occur;

(b) Secondly, those steps are agreeing to an amount and a date by which an increase to wages or improving terms and conditions will apply;

(c) Thirdly, the events are related to funding of wage increases or other improvements in terms and conditions;

(d) Fourthly, the steps are contingent on funding being provided;

(e) Lastly, the events are:

(i) extraordinary funding is increased during the life of the agreement; and

(ii) additional funding is provided by Translink.

• [60] The Respondent submitted it is not in dispute clause 6(b) was included in the current Agreement by virtue of its being simply rolled over from the 2019 Agreement. The relevance of the TWU's submission that its inclusion was not the subject of discussion for the current Agreement is not clear. In any event, the clause was rolled over into the 2019 Agreement from the 2017 Agreement.

• [61] The Respondent said, as set out in the agreed statement of facts, "the 2017 Agreement was made at a time when the Queensland Government was contemplating offering partial wage funding to Queensland bus operators. In those circumstances, the TWU raised concerns during the negotiation of the 2017 Agreement about clause 6 as it then was (the current clause 6(a) of the current Agreement) and that Bus Queensland could accept the foreshadowed offered partial wage funding but not pass it on to the employees." (Respondents' emphasis)

• [62] The Respondents said that is important context to aid the Commission's interpretation of clause 6(b). The clause was included to ensure that if the Respondents accepted an offer of partial wage funding, it would be passed on to employees and not used for some other purpose, or that the wage increases for which it was destined be delayed unreasonably. The clause provides that "the parties agree that any increase will apply from the date such funding becomes available." It is also important to note that its inclusion was prompted by foreshadowed increases to funding, and not as a result of what the Respondents may or may not have done in respect of an offer of funding it had already accepted.

• [63] The Respondents submitted the wording of the clause reflects a practical solution to one party's particular industrial concern that, if not addressed, may lead to adverse consequences for employees.

• [64] The clause does not, and was not intended to, oblige the Respondent to accept offers of funding if they are made by the State. It might be assumed that if that was the intention, then firstly, the Respondent would have not agreed to its inclusion and secondly, the clause would be worded appropriately to achieve that outcome in the most unambiguous terms. Given the need for industrial instruments to "make sense according to the basic conventions of the English language", it is hard to accept a contention the clause was intended to oblige the Respondents to accept funding. The only obligation on the Respondents is to take the steps set out once funding is "ready, or able to be used".

• [65] The Respondents noted a review of the historical background and context to the introduction of the clause is supplemented by the "industrial realities" of the industry. Wage subsidy offers are occasionally made by the State government. They are intended to ensure eligible bus drivers have the opportunity to receive higher wages via a wages fund administered by the Department of Transport and Main Roads and which provides an opportunity for certain privately owned providers to obtain funding to boost the wages of bus drivers, and participation is voluntary. The eligibility criteria for funding and what is (and importantly, what is not) is set out in the relevant Guideline.

• [66] The TWU submitted that whilst 'parties' is not a defined term of the Agreement, it is clear that 'parties' pertains to Bus Qld, the TWU and persons covered within the scope of the Agreement. This position is informed by clause 2 of the Agreement, which names 'Parties Bound by the EA'. This understanding is consistent with any other reference of 'parties' throughout the remainder of the Agreement.

• [67] Further, the TWU defined the following terms:
  • Extraordinary is defined as unusual, special, unexpected or strange. As a matter of ordinary English, 'extraordinary' funding therefore means unusual, special or unexpected funding.
  • 'Provide' is a verb, meaning to supply. Synonyms for 'provide' include to give, offer, supply or donate. Importantly, 'provide' does not connote a requirement for acceptance by Bus Qld. All that is required is that Translink give, offer, supply or donate.
  • 'Available' is an adjective meaning ready to use.

• [68] The TWU continued that thus, where either extraordinary funding or alternatively additional funding is offered or available from Translink to increase wages, wages and/or terms and conditions must be increased and apply from the date funding is ready to use. There is no requirement for Translink's funding to be usual, special, unexpected or strange. Rather, Translink is only required to make additional funding available to Bus Qld. The TWU submitted that has occurred. The TWU submitted the expression "and/or" is not to be read conjunctively and in this case either of the two conditions is sufficient for it to be operate.

• [69] The TWU said in the alternative, where the Commission is not satisfied that Translink has provided additional funding to Bus Qld, the TWU submits that extraordinary funding for wages has been increased during the life of the Agreement. This unusual and special variation is evident from the fact that the 2024 Partial Wages Subsidy Offer is to be implemented by way of deed variation to the current contract between Translink and Bus Qld.

• [70] The TWU noted that importantly, increases are applicable to employees when funding is ready to use, not when Bus Qld exercises its discretion to pass along increases. It is not required that the funding has been received by Bus Qld. The TWU submitted the concerns raised by Mr Davies in his evidence were minor and clearly capable of being sorted out. It would be an incongruous and perverse reading of clause 6(b) that Bus Qld would be able to forestall wage increases or improvements in terms and conditions of employment by determining not to accept readily available funding. It would also be anomalous and industrially unsound if Bus Qld could leverage the availability of funding as a means to force an industrial strategy involving termination of an enterprise agreement on the employees.

• [71] The Respondent said the breakdown of the definitions is important because, while a strictly literal approach is to be avoided, it makes clear from the unhelpfully drafted clause that the phrases "is provided" and "is increased" are the terms that require inspection to assist interpretation. Further, the term "is provided" is the past tense of provide and means "to put into the possession of someone for use or consumption". The term "is increased" is the past tense of increase and means "to have made greater, or to have become greater or more in number".

• [72] In the Respondent's submission, the meaning of the above phrases is indicative of the parties' intention that various steps will happen when funding has been "made greater", and that funding is "in possession of someone to be used or consumed". In the Respondent's submission, the funding is not presently able to be used or consumed because the Respondent has not accepted the funding offer. The Respondent submitted the approach taken to negotiate a new enterprise agreement and then accept an offer of increased funding was the same approach taken in 2019. The Respondent submitted the TWU did not regard that approach in 2018 as being industrially unconscionable. Bus Qld submitted it has been upfront about its motivation for wanting a new agreement including that it wanted certainty about labour costs for the next four years, and the services it is contracted to provide to the State.

• [73] The Respondent referred to a press release from the Transport and Main Roads Minister in 2018 about new enterprise agreements securing service continuity. The Respondent submitted it is clear the TWU does not want to bargain for a new agreement and instead has filed this dispute.

• [74] The Respondent submitted the TWU interpretation is unworkable, even at arbitration because nothing can compel Bus Qld to accept Translink funding that is optional.

• [75] The Respondent submitted the commercial contract being the Deed is fixed in the current offer, so in this case there would be no role for the Commission to play to craft some other application of wages at arbitration.

• [76] The TWU submitted on the Respondent's submission, clause 6(b) has little work to do and the principles of construction require that the words in the clause be given work to do.

• [77] I am satisfied from the documents in the evidence that were subject to a confidentiality order that the acceptance of the additional funding on offer to Bus Qld is discretionary, and Bus Qld can opt in or opt out of receiving the additional funding. Bus Qld is also free to agree or not agree to the conditions on which it accepts the funding on offer.

• [78] The TWU submitted the Respondent is being capricious and unreasonable by not finalising its position with Translink with adverse consequences for TWU members. The TWU maintained that Bus Qld has determined to make it a condition precedent to it accepting the funding that its current Agreement is terminated and a new agreement negotiated.

• [79] I agree with the Respondents' submissions that clause 6(b) was unhelpfully drafted, however, the phrases "is provided" and "is increased" are "is provided" use the past tense. I have considered the TWU's submissions that these phrases do not require the funding to have been received by Bus Qld, however, I disagree.

• [80] The above phrases support a conclusion that the intention of clause 6(b) is that various steps will happen when funding is in the possession of Bus Qld. The funding has not yet been received by Bus Qld and is in the form of an offer yet to be accepted as was made clear in the evidence of Mr Davies.

• [81] I am persuaded that clause 6(b) on its own language and in context is directed to preventing funding that is made available by the Queensland Government through Translink from being diverted by Bus Queensland to a purpose other than to increase wages and conditions.

• [82] It carves out the circumstances where additional funding is received by Bus Qld from the no extra claims clause. Whilst I have noted the Respondents' submissions that, in the case of the current offer, the wage increases are fixed, it was not contended that the Commission could not resolve any matters in dispute that could arise under section 6(b) when the clause is enlivened.

• [83] The TWU's position in closing submissions is that now the dispute had crystallised, the Commission is required to arbitrate only one question to resolve the dispute which it put as follows:

"In the circumstances does clause 6(b) require that the parties meet and agree on the amount of wage increases or improvement in terms and conditions which will apply by reference to the offer that Translink has made to increase wages?"

• [84] The Respondent referred to the four proposed questions and submitted its position was now that the second question would resolve the dispute. The second question reads as follows:

"Does clause 6(b) require the Respondent to accept an offer of additional funding from the Queensland Government, regardless of the conditions on such funding?"

• [85] The Respondents further submitted the answer to the fourth question is plainly yes, but the answer to the second question would resolve the dispute.

The answer to both questions set out above, as posed by the TWU and the Respondents, respectively, to resolve the dispute, is no. As the answer is in the negative, regardless of the slightly different framing of the issue in both questions, that is sufficient to resolve the dispute.

[7] See generally Corporate Air Charter Pty Ltd v AFAP [2025] FCAFC 45 at [8]- [12] and Avard v ACT [2025] FCAFC 72 at [44]- [45].

[8] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50; (2020) 275 FCR 385 at [60].

[9] See Fair Work Act 2009 (Cth), ss.172(2), 181, 182.

[10] See generally: TWU v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [40].

[11] Marmara at [88]-[89]; ALAEA v Qantas Airways Limited [2022] FCAFC 50 at [28] (Besanko J).

[12] SDA v Target Australia Pty Ltd [2021] FCA 1038 at [19] (Banks-Smith J).

[13] Amcor Limited v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J); A_RTBIU v KDR Victoria Pty Ltd_ [2021] FCA 1377 at [39] (Wheelahan J).

[14] WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197].

[15] Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J).

[16] [1989] FCA 369; (1989) 30 IR 362 at 380.

[17] Sheehan v Thiess Pty Ltd [2020] FCA 1762 at [23]. See also his Honour's remarks at [18]. His Honour's judgment was upheld on appeal in Thiess Pty Ltd v Sheehan [2020] FCAFC 198.

[18] At [23], citing Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [35].

[19] [2020] FCAFC 123.

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