Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]; Whether jurisdiction to determine a new classification structure; whether inconsistency between clauses and specific overrides the general; whether utility in arbitrating; whether Commission may deal with a matter over which management prerogative is claimed.

[1] For some time, Aspen Pharma Pty Ltd (Aspen Pharma) and those of its employees represented by the United Workers' Union (UWU) have been endeavouring to negotiate a replacement classification structure for employees working at the company's Dandenong site. The negotiations have been unsuccessful to date which has led to the dispute which is the subject of this decision.

[2] On 2 March 2021 the UWU lodged an application for the Fair Work Commission (the Commission) to deal with a dispute arising under the Aspen Pharma/NUW (Dandenong, Victoria) Enterprise Agreement 2019[1] (the 2019 Agreement). The dispute as alleged by the UWU was the subject of a conciliation conference before me on 29 March 2021 which did not resolve the matter. There had been earlier dealings by the Commission in 2020 with the same subject matter as this dispute, however those proceedings were similarly unsuccessful in resolving the issues between the parties.

[3] The dispute as notified seeks the assistance of the Commission in relation to a dispute about the parties' rights under Clause 5.7 of the 2019 Agreement. That clause includes a commitment to negotiate a new classification structure within six months of the date on which the 2019 Agreement commenced, which was on 5 July 2019. The Agreement's nominal expiry date is 31 January 2023.

[4] A jurisdictional objection made by the Respondent was initially set down for hearing before me at which time the parties would have the opportunity to provide their oral submissions and provide evidence. However, after the parties filed their written submissions, the Respondent approached the Commission and suggested the jurisdictional question be determined on the papers, to which the UWU consented. As a result, the hearing was cancelled, and this decision has been prepared on the basis of the material which each party has provided to the Commission.

[5] Neither party provided witness statements or documents in support of their original submissions. After receipt of the respective submissions, I advised the parties that in deciding the jurisdictional question it may be appropriate to give consideration to the text of earlier enterprise agreements applying to the same parties and invited their views. As a result, each party provided further submissions and a witness statement from each dealing with the formation of the 2019 Agreement and other matters.

[6] This decision concerns the jurisdiction of the Commission to hear and determine the UWU's application. Amongst other things the union seeks the Commission determine the form and substance of the new classification structure contemplated by Clause 5.7 of the 2019 Agreement.[2] The matter of an appropriate question for determination was the subject of minor disagreement between the parties, with the Commission proposing and then confirming the question to be the following:

"In the absence of agreement by the United Workers' Union and Aspen Pharma to a new classification structure under Clause 5.7 of the Aspen Pharma/NUW (Dandenong, Victoria) Enterprise Agreement 2019 (AE504203) is the matter of a new classification structure, including its form, content and underpinning skills list, a subject that may be arbitrated by the Fair Work Commission pursuant to Clause 3.1.4 of the Agreement?"

[7] Aspen Pharma disagrees that the Question for Determination should extend to consideration of whether the Commission has power to determine the "underpinning skills list", submitting that:

"The reason for this is that the Skills List is (and has always been) a business controlled and living document that is not part of the Respondent's classification structure and not referenced in Clause 5.7 of the Agreement. As new machinery / equipment is brought into the factory or outdated equipment obsoleted, the skills list needs to be revised. It could change a number of times within any given year and the Respondent has agreed to consult in respect of those changes. Historically, it has never been a matter for negotiation between the parties and is subject to the Respondent's prerogative."[3]

[8] Although that may be so there is little doubt that the UWU contests the situation and seeks relief from the Commission on the subject. As a result, I determined that the Question for Determination should be as set out above and extend to the matter of jurisdiction over the skills list as much as the form of a classification structure.

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[9] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties' agreement to submit their differences for decision by a third party. The resultant arbitrator's award is not binding of its own force but instead its effect depends on the law which operates with respect to it.[4] It is accepted that while not exercising judicial power, the Commission "may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers".[5]

[10] In doing so, the Commission must examine whether an enterprise agreement's dispute settlement procedure "requires or allows" the Commission to deal with the dispute. That task necessitates examination of the text of the dispute settlement procedure, understood in light of its industrial context and purpose, in order to determine whether the dispute, properly characterised, falls within it.[6] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed since "to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."[7]

[11] The Commission may only deal with a dispute if it is expressly authorised to do so.[8] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)[9] and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.[10]

[12] The Full Court summarised the principles for the interpretation of enterprise agreements in Workpac v Skene as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation "... turns on 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; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); 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 (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). 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: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J)."[11]

[13] The principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[12] usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise agreement, however do not require repeating in this decision.

[14] Several clauses of the 2019 Agreement are relevant to this application. Clause 5.7 sets out the classification review objective and procedures; Clause 5.1 and Appendix A provide the current rates of pay; and Clause 3.1 sets out the Disputes Settlement Procedures. The text of each is extracted in an ATTACHMENT to this decision.

[15] What will be observed from Clause 3.1 and Appendix A in particular is that the 2019 Agreement specifies the minimum wage rates for the operative classifications but does not specify the criteria for appointment to each classification level.

[16] The way the classification structure operates in the workplace is that movement between classifications requires acquisition of nominated skills. A list of the skills required for each classification is published by Aspen Pharma and periodically updated to reflect new or changed operational needs. As mentioned, the 2020 dispute did not resolve the impasse as between the parties about a new classification structure and so, on 1 December 2020, Aspen Pharma is alleged by the UWU to have "communicated its intention to unilaterally implement a new classification structure, effective as of 1 January 2021".[13]

[17] Aspen Pharma argue there is no jurisdiction for the Commission to arbitrate the substantive dispute, or if there is, the Commission should not exercise its jurisdiction. Although the Commission may have power to assist the parties with the dispute it may not be arbitrated.[14]

[18] In contrast to Aspen Pharma, the UWU argues the Commission has power to arbitrate the dispute with the Question for Determination to be answered in the affirmative.

[19] Save for one matter which is not relevant to the determination of this application the 2019 Agreement is a comprehensive document not operating in tandem with an award. The exception is that Schedule E of the Miscellaneous Award as it stood on 1 July 2018 is incorporated (Clause 1.6.1). The Schedule sets out provisions relevant to people employed under formal traineeships, as part of the National Training Wage.

[20] The form of the Disputes Settlement Procedures and its broad operation has been a feature of previous iterations of the enterprise agreement. However, the form of the wage rates clause has changed over time. Earlier versions of the enterprise agreement did not include any wage rates at all, merely providing that specified "increases to site rates will apply". That situation changed when the 2015 Agreement was approved with an undertaking to the Commission from Aspen Pharma which incorporated a rates of pay table into the agreement.[15] The current agreement included the rates table in the actual agreement made by the employer and employees.

[21] A consistent feature of the Rates of Pay Clause in this and earlier agreements is a provision dealing with how a rate of pay will be determined for any given employee. In the currently operating agreement, the provision is within Clause 5.1.3 which is in the following terms:

"5.1.3 The determination of the correct rate of pay for any employee covered by this agreement will be based on the level of skills which have been acquired assessed and applied resulting in classification to the appropriate grade (subject to the protection in Clause 5.7.2(a))."

[22] The disputed provision in this matter is within Clause 5.1.7 which commits the parties, somewhat aspirationally, to endeavour to negotiate a new classification structure within 6 months of the commencement of the 2019 Agreement. The same aspiration is within the 2015 Agreement (Clause 5.7.1). Unlike its predecessor the 2019 Agreement grapples with the possibility that agreement on a new classification structure may not be achieved and provides for assistance to be obtained from the Commission. The term though merely states that assistance will be sought without dealing with the nature of the assistance or the powers conferred on the Commission as it assists:

"(b) Assistance from the Fair Work Commission will be sought, if 6 months after the Agreement is approved, no agreement between the employees / business has been reached on the Classification Structure." (5.7.1 (b))

[23] After the parties' initial submissions were received, I advised them that I considered the provisions of antecedent agreements may be of relevance in this matter and additional material was filed by each. The earlier agreements and the parties' submissions about them highlight two changes of possible significance; the Disputes Resolution Procedures in the 2019 Agreement was changed to include a "status quo" definition (Clause 3.1.5); and the disputed provision in Clause 5.7.1(b) was included.

[24] Those matters, along with the other provisions requiring consideration in this decision, are not on their face ambiguous and the available material about the provisions does not lead to a conclusion of ambiguity. The change made to Clause 3.1.5 in the 2019 Agreement elaborates that when it provides "work should continue in accordance with this agreement while the matters in dispute are being dealt with and the status quo will prevail" the reference "to the status quo means the status quo existing immediately prior to the subject matter of the dispute arising unless an employee has a reasonable concern about imminent risk to health and safety". Such additional words are not controversial, but then neither is the first sentence of the clause. Parties such as these who may be used to dealing with industrial disputes from time to time would be well aware of what the first sentence means, and so the second is probably redundant in the sense of being an unnecessary elaboration of what all concerned probably knew in the first place.

[25] The new provision of Clause 5.7.1(b) is also not ambiguous, dealing with what in substance is analogous to a "reserved matters" item. No attempt has been made within the clause to restrict what may be done by the Commission once assistance on its subject is sought. It does not attempt to say something like "Assistance from the Fair Work Commission will be sought ... however that assistance will be restricted to conciliation only". Grammatical ambiguity from the words which are within the clause simply does not arise. If the parties intended the reference to the Commission's assistance to have limited effect, they made no efforts at all to convey that intention through the clause that was inserted, or for that matter in any other part of the text of the 2019 Agreement. Aspen Pharma may have hoped the Agreement not permit arbitration of an impasse over the classification structure,[16] but its drafts-people did nothing to move that hope to be a binding principle within the text it put to employees and later signed when the agreement was made.

[26] Aspen Pharma contend that the "assistance" referred to in the Clause is limited:

"16. However, the Commission can only provide "assistance" in relation to clause 5.7.1 of the Agreement where agreement on the classification structure cannot be reached. This is a qualifying or limiting provision that determines the Commission's jurisdiction to deal with disputes about clause 5.7.1.

17. There is no ambiguity in the words used in the dispute settlement procedure of the agreement, contained in clauses 3.1 and 5.7.1.

18. The online Macquarie Dictionary definition of "assist" relevantly includes "to give aid or help".

19. The online Macquarie Dictionary definition of "arbitrate" relevantly includes "to decide as arbiter or arbitrator; determine".

20. There is a fundamental juxtaposition between the meanings of "assist" and "arbitrate". Assistance is a far more limited method of dispute resolution than the power to make a final determination.

21. Finally, and to reinforce the submissions above, while the Acts Interpretation Act 1901 (Cth) does not apply to the construction of the Agreement, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to its interpretation."[17] (footnotes omitted)

[27] The UWU does not see such problems with the language of the term:

"63. The Applicant therefore submits that absent any explicit words of limitation which restrict the scope of the term 'assistance' in clause 5.7.1 of the Enterprise Agreement, to mean only that the Commission can mediate or conciliate to 'assist' the parties to reach agreement on the form and content of the new classification structure, the plain and ordinary meaning of the term when read in the context of clause 3.1 and the purpose of clause 5.7.1 of the Enterprise Agreement, is to provide a mechanism for the parties to reach agreement, including by arbitration by the Commission, the jurisdiction of which is explicitly consented to by the parties under clause 3.1.4.

64. The Applicant further submits that in line with the decision of the Commission in Skurnik v ABC, the remedy sought by the Applicant does not fall foul of the restriction of the Commission's exercise of arbitral power in s739(5) of the FW Act, as it possesses a 'logical tendency to redress' the inconsistency between the inability of the parties to reach agreement on the form and content of the new classification structure, which gave rise to the factual basis of the dispute, and the obligation under clause 5.7 to reach such agreement.

65. The Applicant also submits that in relation to the remedy sought, on a plain and ordinary reading of clauses 3.1 and 5.7 of the Enterprise Agreement, construed in light of the context and purpose of the provisions, no words of limitation can be read into the 'consensual foundation' for arbitration, which restrict the jurisdiction of the Commission to arbitrate the form and substance of the classification structure, but not the skills list, for want of consistency with the provisions of the Enterprise Agreement."[18]

[28] Skurnik v ABC,[19] referred to in the extract above, applied the reasoning of the High Court in CFMEU v Australian Industrial Relations Commission (Gordonstone) that an arbitrator's powers in matters such as this will depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force.[20] Skurnik also dealt with the abundantly evident problem that the ABC, contending a lack of jurisdiction, was simply too far ahead of the situation and was confusing the determination of jurisdiction with the exercise of power. Commissioner Lewin's findings on this subject in Skurnik are apposite in this matter, with Aspen Pharma's heightened concerns also appearing to be more connected with the spectre of things that may occur if jurisdiction to proceed is confirmed. Commissioner Lewin made the following pertinent findings in Skurnik:

"[36] In their submission concerning the jurisdiction of the Tribunal to deal with a dispute arising under the Agreement the ABC addressed various questions concerning remedies which might or might not be determined by arbitration. I gather that these submissions were designed to be persuasive that the "redundancy dispute" was beyond the jurisdiction of the Tribunal to deal with and to delimit what remedies might be determined by arbitration in relation to what the ABC categorised as the "consultation dispute" and the "skills dispute".

[37] I am not persuaded that the remedial powers of the Tribunal in relation to a dispute over the application of the terms of an enterprise agreement bear the definitive function of determining the Tribunal's jurisdiction as contended for by the ABC. There may well be limits on the power of the Tribunal to deal with a matter within its jurisdiction as arbitrator provided for by the terms of a dispute settlement procedure. However, as has been observed elsewhere in the authorities above, the confusion of jurisdiction and power is to be avoided and the characterisation of a dispute and remedies which might be sought or available are different considerations. To proceed from a restrictive catalogue of hypothetical remedies to the characterisation of the dispute and then to make jurisdictional findings, in my view, is a methodological error. The direction of that procedure is the reverse of what is required. What remedies would or would not be within the power of the Tribunal in a particular case will always depend upon a requisite finding that there exists a factual nexus with a term of an agreement and the particular nature of that nexus. Such findings are invariably specific and particular to the terms of an Agreement and a given set of circumstances. No evidence has been brought which would enable such a procedure.

[38] In this respect what may be observed is that the discursive sequence of a determination of an alleged dispute said to "arise under" an agreement would require findings of fact concerning actions or inactions by a party to an agreement and findings that those actions are or are not governed by a term of the Agreement, for jurisdictional purposes. Consequently, a judgement of whether or not the relevant actions or inactions accord with the terms of the Agreement would be necessary. Where such actions or inactions were judged not to accord with those terms, identification of the inconsistency between the action or inaction and the terms of the Agreement may give rise to an appropriate exercise of power to provide a remedy. For the exercise of power to remain with the scope of the necessary finding of jurisdictional fact the remedy would have to have a clear connection with and logical tendency to redress the inconsistency between the requirements of the terms of the Agreement determined and the facts relevantly identified."[21]

[29] Aspen Pharma's submission that the Commission's function of assistance under Clause 5.7.1 is limited, operating separately to the Disputes Resolution Procedures in Clause 3.1, rests significantly if not entirely on the proposition that assistance is not arbitration, reinforced with the proposition that the specific overrides the general.

[30] Aspen Pharma develop in their submissions several alternative submissions in the event the Commission finds the question for determination may be answered in the affirmative. It argues that even if there is jurisdiction the Commission should not arbitrate the dispute with there being both no obligation to do so and no utility; that to do so would infringe the limits of s.739(5); and that arbitration would be an encroachment on managerial prerogative.

[31] The Respondent's arguments on the matter of a discretion to arbitrate include it noting the Disputes Resolution Procedures in Clause 3.1 do not mandate arbitration, with the term merely identifying that "the issue may be resolved by conciliation and, if necessary by arbitration".[22] Its submissions on the lack of utility surround the view that the UWU's case on arbitration "requires the Commission to arbitrate its own provision of assistance to the parties in reaching an agreement". Arbitration would be incompatible with a provision that merely established the parties' aspiration to "endeavour" to jointly agree a new classification structure:

"28. Additionally, the Commission would be exercising the power to arbitrate in relation to an aspirational aim, which is "endeavour" to negotiate a new classification structure.

29. The online Macquarie Dictionary relevantly defines "endeavour" as "make an effort, strive" and "to attempt, try", "a strenuous effort". It does not require a definite outcome or conclusion be reached.

30. Specifically, with reference to clause 5.7.1 of the Agreement, there is no requirement or obligation imposed that an agreement be reached on a classification structure.

31. There is no utility in the Commission arbitrating this dispute. There is no concrete outcome that can be achieved through the exercise of the arbitration power."[23]

[32] Aspen Pharma also submits that arbitration of the dispute would infringe the limitation within s.739(5) which requires the Commission not make a decision pursuant to s.739 that is inconsistent either with the Act or in this case the 2019 Agreement, arguing the following:

"34. Essentially, to functionally resolve the issue in dispute, the Commission would be required to create something to apply in the absence of agreement between the parties. That is, the Commission would have to draft a classification structure and an underpinning skills list in order to resolve the dispute. This would be inconsistent with the terms of the Agreement and would offend section 739(5) of the FW Act.

35. The Respondent asks the Commission to consider the line of authority regarding disputes over the application of disciplinary measures in industrial instruments. It is clear that in situations where the terms of an agreement do not provide an absolute right or obligation on an employer to provide a particular disciplinary outcome, it is not inconsistent with the agreement for the Commission to determine that another option should be applied.

36. Here, there is no other option for the Commission to apply. There is no range of classification structures from which the Commission can chose to apply to resolve the dispute.

37. The inclusion of the skills list in the dispute, essentially would require the Commission, in the absence of agreement between the parties, to arbitrate on any revision to the skills list, which occurs each time a piece of machinery/equipment is brought in or obsoleted from the factory.

38. It cannot be said that clause 5.7.1 of the Agreement provides for the Commission to arbitrate the form and content of the classification structure."[24] (footnotes omitted)

[33] There may be discerned within these submissions a concern on the part of Aspen Pharma that arbitration by the Commission may well go too far, with the Commission potentially encroaching on decisions the company itself should make for the organising and running of its business. That concern was developed further in what the company had to say on the matter of managerial prerogative. In particular it submits that it is not the place of the Commission to substitute its views for that of the Respondent as to the most efficient way of running the business.[25] To do so would offend principles of public policy:

"44. In fact, it would be an offence to public policy for the Commission to step into this realm. It would require the Commission to interfere with the freely and voluntarily entered into Agreement formed between the Respondent, its employees and the Applicant.

45. The form and content of the classification structure was not included in the Agreement when it was made nor when it commenced operation. It was not part of the bargain concluded by the parties. What was agreed was the wording of clause 5.7.1, which is clear.

46. The underpinning skills list is a living document, managed by the Respondent, which is not part of the Respondent's classification structure. It is periodically revised when new machinery / equipment is brought into the factory or outdated equipment is obsoleted. The revision follows a consultation process through the Employee Consultative Committee."[26]

[34] Aspen Pharma's construction of the Disputes Settlement Procedures is not sustainable, with there being no limitation on the operation of that clause within the text of the classification review clause. The Disputes Settlement Procedures in Clause 3.1 are very broad, and certainly broader than merely dealing with disputes arising in relation to the 2019 Agreement or NES. The procedures apply to "issues in dispute or grievances" (cl.3.1.1) and "also to any disputes in relation to the 2019 Agreement or the National Employment Standards" with the exception of certain flexible working arrangements or additional unpaid parental leave disputes (cl.3.1.6).

[35] The combined text of Clauses 3.1.1 and 3.1.6 make it clear the classification review matter is both an issue in dispute, as well as a dispute in relation to the 2019 Agreement. It follows that unless there is a specific and ambiguous restraint within Clause 5.7 on the progression of the dispute under Clause 3.1, such would be permissible.

[36] The language of Clause 5.7 does not allow a finding that the breadth of operation of Clause 3.1 or the rights within the latter term are somehow confined by the aforementioned term. This is not a case in which the language of Clause 5.7 is ambiguous, and the construction of the term could lean one way or another way. There simply is no language within the term that would confirm Aspen Pharma's hopes.

[37] The Respondent's contentions rest on the proposition that the "assistance" to be sought from the Commission under Clause 5.7.1(b) is somehow different from the things which may be done under Clause 3.1. It follows from Aspen Pharma's submissions that if the "assistance" to be sought from the Commission is not the same as the things contemplated within Clause 3.1, then no issue, grievance or dispute could arise in relation to the parties' endeavours to agree a new classification structure. However, that proposition strains firmly against the plain and unambiguous language of Clause 5.7. Other than the use of the noun "assistance" and the contention that its use in Clause 5.7.1 sets up different rights to those contemplated in the Disputes Resolution Procedures there are no words within the clause that would suggest a dispute may not be brought under Clause 3.1 about the commitments given in Clause 5.7.

[38] Aspen Pharma's submissions also overlook the second step in the dispute procedure set out in Clause 3.1.2 which encourages a communication between the job delegate and a company representative to "assist". As the Commission may give "assistance" under Clause 5.7, so too is assistance contemplated within the Disputes Settlement Procedures. There is nothing within Clause 3.1 or elsewhere in the 2019 Agreement that would suggest assistance in the early stages of the Disputes Settlement Procedure is an event, process or device different to the things that may be done later in the procedure. In essence, different words appear to have been used to describe the same or related things. There is nothing within Clauses 3.1 or 5.7 that would suggest this is a case in which the different words must be taken to mean different things. Instead, this is plainly a situation in which people with a practical bent of mind drafted the provisions at different times attempting to address the concerns then arising, but without too much effort to forensically lock down the text's terminology.

[39] Taking the elements of the procedure together the Disputes Settlement Procedures clause provides a logical and coherent process of assistance:

• It first invites matters to be resolved at Aspen Pharma's premises;

• Then, when required, the job delegate and the company representative "will assist in the resolution of the dispute";

• If the matter remains unresolved after such assistance the matter is escalated further to the appropriate union official and company representative who "will then become involved";

• Once that stage has passed with the dispute still unresolved the matter may be referred to the Fair Work Commission; however the use of the word "may" suggests a dispute does not have to be referred to the Commission. What then occurs at the Commission will be a matter of degree and discretion. The issue may be resolved by conciliation and "if necessary" by arbitration. Of course, the possibility of arbitration "if necessary", may and often will encourage a party to reach agreement in conciliation.

[40] The language of the Disputes Settlement Procedures clause, and the whole 2019 Agreement for that matter, is not precise. The first stage of the procedure says disputes or grievances "will be resolved" at the local level, however the use of the phrase "will be resolved" is probably a poor choice for what is intended, which in the context of the overall procedure is more likely a requirement only that there be local discussions which should have the objective of endeavouring to resolve the dispute or grievance. Similarly, the high point of the second stage and its use of the phrase that the job delegate and company representative "will assist" is likely an intention that individuals higher than the most local setting become involved and discuss the issues involved, again with the obligation to endeavour to resolve the dispute or grievance. The use of the word "assist" in the second stage does not appear to bear a meaning much different from the term "become involved" in the third stage. It is also not inconsistent with the possible referral of the matter to the Commission "where the issue may be resolved". If a referral to the Commission is not to "assist in the resolution of the dispute" then what is it for?

[41] While trite to say, I could not contemplate a conciliation or arbitration in any matter in which I did not endeavour to "assist" in the resolution of the dispute.

[42] The lack of precision with the words and phrases in Clause 3.1 does not speak to the procedures dealing with different functions or concepts. The Respondent puts forward that "assist" when used in Clause 5.7.1 means to give aid or help and it plainly means that as well in Clause 3.1. There is no incompatibility in the ordinary meaning of the word "assist" in Clause 5.7 with the processes established for the resolution of disputes and grievances under Clause 3.1. Rather than there being an incompatibility there is more likely an affinity between assistance and those processes.

[43] In summary the following construction emerges of the 2019 Agreement's Disputes Settlement Procedures:

• The procedures are broad, applying to "issues in dispute or grievances" (Clause 3.1.1). For the avoidance of doubt the procedure provides it "will also apply to any disputes in relation to the Agreement or the National Employment Standards" (3.1.6). The Clause requires the job delegate and in company representative "to assist in the resolution of the dispute". If unresolved "the appropriate union official and company representative will then become involved". If the dispute is still not resolved "the matter may be referred to the Fair Work Commission by either party where the issue may be resolved by conciliation and, if necessary, by arbitration" (Clause 3.1.4).

• Because of the expansive language of Clause 3.1.1 and 3.1.6 the proper construction of the Disputes Settlement Procedures is that subject to any limitations on its operations elsewhere in the text of the 2019 Agreement it plainly has application to disputes broader than merely the text of the 2019 Agreement and the NES. Clause 3.1.1 provides that the procedure applies "to issues in dispute or grievances" and Clause 3.1.6 provides the procedure also applies to disputes in relation to the agreement or the NES.

[44] Aspen Pharma's submissions contend with reference to Clause 5.7 that the specific should prevail over the general.[27] While the submission is noted, as is the construction rule to which it refers, it does not assist the Respondent.

[45] The Commission's application of the principle is within the particular context of the matters with which it deals. It has been accepted in the legal commentary on maxims like the proposition that a specific provision predominates over a general provision (often expressed as generalia specialibus non derogant), "that the rules or principles to which these maxims refer are properly described as aids to construction and should not be applied in some rigid, mechanical or automatic fashion".[28] In this regard there is acceptance the approach within the maxim "should only be called in aid 'where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation' and where 'contrariety is manifest'"[29] (case references omitted)

[46] Aspen Pharma's submission that Clause 5.7.1 includes specific language at odds with that within Clause 3.1 is not made out. There is no inconsistency between the ordinary interpretation of the two clauses. It is not the case that Clause 5.7.1 establishes a different set of rights and obligations to those in the generally applicable Disputes Resolution Procedures.

[47] One can imagine all sorts of wording that may indeed establish a specific and separate obligation to the general disputes procedure, however none is used in Clause 5.7.1. It is simply not the case that Clause 5.7.1 says anything like the formula referred to above to the effect that "Assistance from the Fair Work Commission will be sought ... however that assistance will be restricted to conciliation only" or "if after the Commission's assistance is given the dispute remains unresolved it may not be dealt with under Clause 3.1, the Disputes Resolution Procedure".

[48] Although it is put forward to the Commission that Aspen Pharma never agreed in bargaining to the prospect of arbitration of the classification structure,[30] there is no evidence that the subject of a limitation on the operation of the general disputes procedure was agreed in the bargaining that led to the 2019 Agreement in the event the matter could not be agreed even after the Commission's assistance was sought. Aspen Pharma's position was never translated into the agreement that was made and it signed. No whiff or hint of such a restriction may be discerned in what Aspen Pharma hopes might be a specific clause. Merely wishing for a limitation does not establish one. Accordingly, no finding is available to be made that Clause 5.7.1 is a specific clause that limits the operation of the Disputes Resolution Procedures within Clause 3.1.

[49] The Respondent also contends that an arbitration on the subject of the classification review would infringe its managerial prerogative.

[50] The Commission has long accepted that it is an employer's prerogative "to run and organise a business in the way in which it considers the most efficient manner" with the general proposition being "that the employer has the right to manage the business subject to that prerogative not being exercised unjustly or unreasonably"[31] In acknowledging the prerogative, Deputy President Smith noted the Commission and like tribunals have long recognised it is subject to limits and decisions made invoking the prerogative may be subject to review:

"[25] Commissioner Bull drew attention to a decision of a Commission in Court Session of the Western Australian Industrial Relations Commission:

Managerial prerogative is not a sword which can be wielded in wanton disregard of the industrial consequences nor is it a shield to hide behind. An employer has a responsibility to manage fairly. Almost every initiative that an employer may take can be clothed in the ubiquity of managerial prerogative. To espouse this principle does not relieve the employer of the obligation to justify the effect where a change is instituted to some long standing custom or practice. Managerial prerogative is not a short cut to arbitration without consultation on the assumption that the union will carry the onus of proving that the long standing arrangement should continue."[32] (underlining in original)

[51] Further, the prerogative may be tempered by the provisions of an industrial instrument such as an award or enterprise agreement. In Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd[33] (HWE Mining) Vice President Lawler considered a dispute over a proposal to introduce random on-site urine drug testing through the means of a change to a company policy that was not incorporated in an enterprise agreement. In that decision extensive consideration was given to the subject and the constraints that may arise, with the Vice President drawing a distinction of approach by the tribunal between circumstances in which a matter was the subject a provision in an industrial instrument and when it was not:

[7] The law recognises that there is an area of managerial prerogative in which an employer has the right to make decisions on how to manage their business. In Re Cram, ex parte N.S.W. Colliery Proprietors Association Limited[34] the High Court observed that "many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee".[35] That case was concerned with whether the jurisdiction of the federal tribunal (under the then legislation based on s.51(xxxv) of the Constitution) to make an award in settlement of a dispute was constitutionally limited so as to prevent any interference with managerial decisions. The High Court rejected any such limitation, observing:[36]

"... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction: see Federated Clerks Union. Indeed, the difficulty of making such an implication is accentuated by the fact that the extended definition of 'industrial matters' proceeds on the footing that many management decisions are capable of generating an industrial dispute.

These considerations indicate that the objection voiced by O'Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted."

[8] Subject to express terms, there is an implied term in the contract of employment that the employee will comply with the lawful and reasonable directions of the employer.[37] This is one of the principal ways in which the employer's managerial prerogative arises from a legal perspective and forms the basis on which an employer may be said to have a right to make and vary policies that employees are required to observe.

[9] As was observed by the Full Bench in Woolworths v Brown[38]:

"[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer's compliance with its obligations and duties."

[10] However, managerial prerogative in relation to employees (including the employer's right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees.

"[11] If an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales[39] (XPT case):

"It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable."

[12] I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question."

[52] In this matter, dealing with the subject of the negotiation of a new classification structure, the 2019 Agreement casts the following relevant entitlements and obligations:

• The parties will endeavour to replace the current classification structure, the defined levels and pay rates for which are within Appendix A (Clause 5.7.1(a));

• If there is no agreement on the new structure, assistance from the Fair Work Commission will be sought (5.7.1(b));

• Once agreement has been reached certain classification and wage rate preservation provisions commence and apply (5.7.2);

• Under both the current and new classification structure, employees are entitled to be reclassified as soon as they meet the requirements of a new classification (5.7.3);

• A dispute or grievance over any of these matters may be raised and progressed through the Disputes Resolution Procedures, up to and including through the Commission dealing with the matter by conciliation and if necessary arbitration (3.1).

[53] Aspen Pharma's submissions on the matter of managerial prerogative are elementary and do not sufficiently distinguish between matters which are the subject of a provision in the 2019 Agreement and those which are not.

[54] What is clear though is there is at some level at least the capacity for the Commission to hear and determine a dispute about negotiation of "a new classification structure" and that to do so would be entirely consistent with the reasoning set out above from HWE Mining. That is because what may once have been a matter of managerial prerogative is now "constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make". To the extent there are matters connected with a new classification structure that are not within the terms of the 2019 Agreement those matters may still give rise to a dispute or grievance capable of being dealt with under the Disputes Settlement Procedures. In such cases the capacity of the Commission to deal with the matters would involve the Commission treading with the care noted in XPT.[40]

[55] To give an example, it would seem clear that a dispute about a new classification structure that connected with claims for minimum staffing levels may not fit conformably with the text of the current enterprise agreement. At its highest the 2019 Agreement requires there be endeavours to negotiate a new classification structure and for the Commission to assist with a consequential lack of agreement which, if necessary, may include arbitration but does not have to. Somewhat obviously those things are not about minimum staffing levels and so a dispute on staffing levels disguised as a new classification structure dispute would likely not progress very far as a dispute about the matters within Clause 5.7.1.

[56] However, that is not to say that such a dispute over the subject could not be progressed under the Disputes Settlement Procedures since it would most likely be a "dispute or grievance" pertaining to the employment relationship. Even so, since the subject matter is not provided for in the terms of the agreement, its resolution instead would need to be through the lens of XPT, as affirmed in HWE Mining. There would be a need for the Commission "to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable".[41]

[57] Aspen Pharma is particularly sensitive at the prospect of decisions being out of its hands over the content of the skills list which underpins the rates of pay shown in the 2019 Agreement and the classifications to which the rates refer. It argues that settlement of the dispute as brought to the Commission by the UWU would require an expansive exercise of power:

"34. Essentially, to functionally resolve the issue in dispute, the Commission would be required to create something to apply in the absence of agreement between the parties. That is, the Commission would have to draft a classification structure and an underpinning skills list in order to resolve the dispute. This would be inconsistent with the terms of the Agreement and would offend section 739(5) of the FW Act."[42]

[58] While I note this submission, I do not determine it other than to agree that at some point, depending on what is asked of the Commission, it may be that a proposal goes well beyond the power within s.739(5). At this time there is no actual proposal before the Commission, so the matter is entirely speculative. As with the ABC in Skurnik, Aspen Pharma confuses in this matter the determination of jurisdiction with the exercise of power.

[59] The concerns expressed by Aspen Pharma about possible adventurism by the Commission will more appropriately be the subject of consideration in a merits hearing. There may well be a point at which the claims made by the UWU go beyond the commitments each made to the other in bargaining for the 2019 Agreement and thereby begin to infringe on Aspen Pharma's capacity to arrange and manage its business.

[60] Of course, none of that need arise if Aspen Pharma agrees with the UWU the nature of a new classification structure and its underpins.

[61] There can be no arbitration unless there is no agreement between the parties and arbitration is necessary.

[62] The proposition that the underpinning skills list is entirely off-limits for resolution through the Disputes Settlement Procedures - if that is what is submitted - is likely without foundation if the Respondent maintains that a new classification structure may only be constructed around the acquisition and performance of skills on the skills list.

[63] That such is the case may be demonstrated with reference to the 2019 Agreement's Site Rates, set out in the ATTACHMENT to this decision. Aspen Pharma's bargain with its employees includes that it will pay the site rates in Appendix A. The Appendix is organised of a table of wage rates, shown as hourly, weekly, fortnight and annually, for each of 10 levels:

1. New Starter, shown with 2 pay levels;

2. Interim Pay, shown with 2 pay levels, the first of which is lower than the New Starter second pay level;

3. Grade 1, shown with 2 pay levels;

4. Grade 2, shown with 2 pay levels;

5. A "Training Incentive Payment", shown with 2 pay levels the first of which is lower than the Grade 2 second pay level and the second of which is higher than the Grade 3 first pay level;

6. Grade 3, shown with 2 pay levels;

7. A further "Training Incentive Payment", shown with 2 pay levels, each of which is above the pay rates for Grade 3 and below the pay rates for Grade 4;

8. Grade 4, shown with a single pay rate;

9. Acting Team Leader, shown with a single pay rate;

10. Team Leader, shown with 3 different pay levels.

[64] As mentioned previously there is nothing within the 2019 Agreement that provides classification criteria or descriptors. There can be no meaningful navigation around these specified rates or enforcement of them without reference to the underpinning skills list. Who gets what is simply unknown without examination of the list.

[65] Such will continue to be the case should it be Aspen Pharma's continued preference for classifications determined by reference to a periodically updated skills list.

[66] While that likelihood is amply evident, the classification structure does not have to be grounded in the skills list. For example, it is open to the parties to separate agreed pay levels according to other criteria, such as those in the Pharmaceutical Industry Award, which separate the levels according to skills and duties, indicative tasks, promotional criteria and availability of a promotional position.

[67] If Aspen Pharma sees no alternative other than to frame the new classification structure around its skills list the proposition that the list may not be the subject of arbitration is true only to a certain point with the locus of that point being dependent largely on the parties' respective claims in arbitration. To illustrate, the 2019 Agreement does not deal with the question of the skills in which Aspen Pharma seeks to train employees and have routinely performed in its factory. That subject though may be distinguished from the question of what should be paid when the skills Aspen Pharma seeks are performed by employees. Whether a dispute may arise about either of these things and be dealt with under Clause 3.1 will depend on the claims each makes to the other in the course of their negotiations and how, if at all, the matter is agreed.

[68] The subject of the skills in which Aspen Pharma seeks to train employees and have performed likely falls in the absence of any explicit reference to the subject in the 2019 Agreement into the second of the HWE Mining categories; namely matters about which "an employer's exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment". While the subject is not dealt in the 2019 Agreement that does not mean there is nothing to be done under the agreement about the skills in which Aspen Pharma seeks to train employees and have performed. Plainly a dispute about the skills to be acquired or to be credited toward advancement or how and when training may be offered are all conceivably matters which may be the subject of a dispute or grievance. There is nothing in the 2019 Agreement that would suggest the Disputes Resolution Procedures may not be used in respect of such a matter all the way up to and including arbitration on the subject by the Commission if such was necessary. For the reasoning set out in HWE Mining an arbitration on the subject would not be excluded but would be subject to what was described in XPT as the "test of injustice or unreasonableness".

[69] The extent of what is unknown about each party's position for negotiation of a new classification structure and the consequential possibility that disagreement will persist is sufficient to dispose of the Respondent's argument that there is no utility in contemplating arbitration of the dispute. Whether there is utility in progressing may only be determined once the scope of the actual dispute requested for determination by the Commission in arbitration is known.

[70] In the alternative, if there is agreement between the parties on a new classification structure and its underpins, it should be acknowledged, that implementation may require a variation to the 2019 Agreement through the provisions of the Act's Part 2 - 4, Division 7, depending on what is agreed.

[71] Aspen Pharma's submissions also overlook the obligations of the 2019 Agreement's consultation clause which undoubtedly require consultation about changes to the skills in which it seeks to train employees and have performed to the extent in the event they are major changes likely to have a significant effect on employees (Clause 3.3). The consultation clause is obviously also a matter to which the Disputes Resolution Procedures would apply. Consultation, of course, is for the purpose of discussing proposals, objections and alternatives and cannot be conducted perfunctorily, since "[o]ne of the purposes of consultation is to receive suggestions not only about how to implement a proposal but also whether, on reflection, it should be implemented at all".[43] Arbitrary or unilateral changes to the classification structure or listed skills may well be a matter over which a dispute may be raised if they are major changes likely to have significant effects.

[72] In overall construct when the parties to the 2019 Agreement made their bargain they agreed to pay the wages for the levels in Appendix A. They agreed that they would endeavour to negotiate a new classification structure and if unsuccessful in doing so they would seek the assistance of the Commission. The assistance the Commission can bring to the matter is not limited, other than through the procedures and functions set out in the Disputes Resolution Procedures. The parties did not agree to include the underpinning skills list in the 2019 Agreement, however in the event Aspen Pharma seeks to differentiate classification levels according to acquisition and performance of the skills on its skills list it will likely not be possible to negotiate a new classification structure without consideration in some way of the list, its contents and how it is used. A different situation arises in the event the parties seek for the new classification structure to be framed around criteria other than the skills list.

[73] Finally, it must be observed about the Respondent's claim that "it would be an offence to public policy for the Commission to step into" the realm of managerial prerogative, that such simply does not have to occur, and to a significant extent Aspen Pharma controls whether the Commission would ever be called upon to trawl the murky and no doubt crowded waters of offences to public policy.

[74] There is no question that the Commission's role is to assist the parties on their impasse about a new classification structure, with the first stage of assistance being conciliation with the aim of mutual agreement between the parties. The Commission is not able to proceed to arbitration if agreement is reached. Arbitration may only take place "if necessary".

[75] If the Respondent seeks to avoid an arbitration on the subject of the new classification structure, the best means of doing so is to negotiate firmly about the structure and how gradations of skill are recognised within the structure. Aspen Pharma as much as its employees is in a position to control the form and content of what is agreed. That is, if Aspen Pharma is worried about what the Commission may do in arbitration, the easiest and best way to avoid that prospect is to ensure a locally agreed result. That could never produce "an offence to public policy".

[76] The Commission both has jurisdiction to hear and determine this dispute, as well as it being the case that the arguments of lack of utility and encroachment on managerial prerogative are not made out and do not weigh against the exercise of its jurisdiction, conferred by the parties in their 2019 Agreement, subject to particularisation of the claims in arbitration.

[77] For the reasons set out above, the Question for Determination is answered as follows:

Q: In the absence of agreement by the United Workers' Union and Aspen Pharma to a new classification structure under Clause 5.7 of the Aspen Pharma/NUW (Dandenong, Victoria) Enterprise Agreement 2019 (AE504203) is the matter of a new classification structure, including its form, content and underpinning skills list, a subject that may be arbitrated by the Fair Work Commission pursuant to Clause 3.1.4 of the Agreement?

[78] The jurisdictional objection is determined accordingly.

[79] The following directions are given to the parties to endeavour to finalise the application before the Commission:

• The UWU and Aspen Pharma are to meet within 14 days of this decision to discuss whether the issuing of this decision assists progression of the matters in dispute;

• In the event it does, and the parties consider further conciliation before the Commission may assist in the conclusion of the dispute they may approach my Chambers for a listing for that purpose;

• If however the parties consider further conciliation will not assist in resolution of the dispute and the UWU seeks determination by the Commission of this dispute, it is to notify my Chambers of that position as soon as possible and in any event within one month of the issuing of this decision;

• If nothing is heard by my Chambers from the parties within one month of the issuing of this decision the file will be closed.

3.1.1 Where possible, issues in dispute or grievances will be resolved between the employees and management at the premises of the company.

3.1.2 When required, the job delegate and appropriate company representative will assist in the resolution of the dispute.

3.1.3 Should issues remain unresolved, the appropriate union official and company representative will then become involved.

3.1.4 If the matter still cannot be resolved the matter may be referred to the Fair Work Commission by either party where the issue may be resolved by conciliation and, if necessary, arbitration.

3.1.5 Without prejudice to either party, work should continue in accordance with this agreement while the matters in dispute are being dealt with and the status quo will prevail. For the purpose of this clause, reference to the status quo means the status quo existing immediately prior to the subject matter of the dispute arising unless an employee has a reasonable concern about imminent risk to health and safety.

3.1.6 This dispute procedure will also apply to any disputes in relation to the Agreement or the National Employment Standards (except for disputes related to reasonable grounds for refusal of requests for flexible working arrangements or additional unpaid parental leave).

5.1.1 The following increases to site rates will apply:

FROM THE FIRST FULL PAY PERIOD ON OR AFTER THIS DATE

5.1.2 Site Rates (including increases specified in 5.1.1) are set out in Appendix "A" to this Agreement.

5.1.3 The determination of the correct rate of pay for any employee covered by this agreement will be based on the level of skills which have been acquired assessed and applied resulting in classification to the appropriate grade (subject to the protection in Clause 5.7.2(a)).

(a) Aspen Pharma, the employees and the Union will endeavour to negotiate a new classification structure within 6 months of the commencement of this Agreement.

(b) Assistance from the Fair Work Commission will be sought, if 6 months after the Agreement is approved, no agreement between the employees/business has been reached on the Classification Structure.

(c) Clause 5.7.1 to be void after agreement on a new classification structure is reached.

5.7.2 Once agreement on the new classification structure has been reached, all employees:

(a) will remain on at least their current classification (and receive the relevant wage increases for their current classification);

(b) will be reclassified if they meet the requirements of a higher classification; and

(c) subject to business needs, will be offered the opportunity to undertake training to progress through the classification structure.

5.7.3 Employees must be reclassified as soon as they meet the requirements of a higher classification. To ensure this occurs, at least every 6 months or sooner on employee request, Aspen Pharma will review whether employees are correctly classified and whether there are opportunities for employees to undertake training.

APPENDIX "A" TO THE ASPEN PHARMA NUW (DANDENONG VICTORIA) ENTERPRISE AGREEMENT 2019

5.1.2 Site Rates (including increases specified in Clause 5.1.1)

[2] Applicant's Outline of Submissions, 17 May 2021, [10].

[3] Email from Australian Industry Group, 3 May 2021.

[4] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] - [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, [25].

[5] Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019, [52].

[6] CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

[7] SDA v Big W Discount Department Stores PR924554, [23].

[8] Fair Work Act 2009, s.595.

[9] The section requires the Commission not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.

[10] MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97, [31] - [32].

[11] [2018] FCAFC 131, [197][2018] FCAFC 131; , (2018) 280 IR 191, [197].

[12] [2017] FWCFB 3005, [114]; see also United Firefighters Union of Australia v Emergency Services Telecommunications Authority [2017] FWCFB 4537, [35].

[13] Applicant's Outline of Submissions, 17 May 2021, [8].

[14] Respondent's Outline of Submissions, 28 May 2021, [8]-[10].

[16] Witness Statement of Roslyn van Greunen, 19 July 2021, [10]-[13]; [19]-[20].

[17] Respondent's Outline of Submissions, 28 May 2021, [16]-[21].

[18] Applicant's Outline of Submissions, 17 May 2021, [63]-[65].

[19] [2011] FWA 8069, (2011) 217 IR 13.

[20] Ibid, [8], with reference to CFMEU v Australian Industrial Relations Commission (Gordonstone) [2001] HCA 16; (2001) 203 CLR 645; 103 IR 473.

[22] Respondent's Outline of Submissions, 28 May 2021, [23].

[28] CEPU v Australian Postal Corporation [2007] AIRC 879, (2007) 167 IR 14, [8].

[29] Pearce and Geddes, Statutory Interpretation in Australia 9ed 2019, 4.51.

[30] Witness Statement of Roslyn van Greunen, 19 July 2021, [10]-[13]; [19]-[20].

[31] Police Federation of Australia v Victoria Police/Chief Commissioner of Police [2015] FWC 924, [21]-[24].

[32] Ibid, with reference to The Federated Engine Drivers' and Firemen's Union of Workers of Western Australia v Robe River Iron Associates [CR 676 of 1986].

[33] [2011] FWA 8288, (2011) 214 IR 194.

[34] [1987] HCA 28; (1987) 163 CLR 117.

[37] Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at p. 151; R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan [1938] HCA 44; (1938) 60 CLR 601 at p. 621; Lister v Romford Ice & Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555 at p. 594; Macken's Law of Employment (7th ed), para [5.790].

[38] (2005) 145 IR 285.

[39] [1984] CthArbRp 432; (1984) 295 CAR 188.

[40] Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales [1984] CthArbRp 432; (1984) 295 CAR 188, p.191.

[42] Respondent's Outline of Submissions, 28 May 2021, [34].

[43] CEPU v QR Ltd [2010] FCA 591, (2010) 198 IR 328, [71].

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