1 Fair Work Act 2009 s.739—Dispute resolution Mining and Energy Union v Thiess Pty Ltd Trading AS Thiess (C2025/7909) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 27 JANUARY 2026 Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – correct classification – Excavator Operator. Introduction [1] The Mining and Energy Union is in dispute with Thiess Pty Ltd in relation to the meaning of the expression ‘Excavator Operator’ in clause 30(e) of the Thiess Mount Pleasant Operation Enterprise Agreement 2023. The Agreement covers employees of Thiess who are engaged to work on the Mount Pleasant Mine in the classifications prescribed by the Agreement. [2] On 13 August 2025, the MEU filed an application in the Commission for it to deal with the dispute pursuant to the dispute resolution procedure in the Agreement. There is no dispute between the parties that the Commission has jurisdiction to deal with the dispute pursuant to s 739 of the Fair Work Act 2009 (Cth) and the disputes procedure at clause 26 of the Agreement. [3] Following an unsuccessful conciliation of the dispute, I set the matter down for arbitration. [4] The parties agreed on the following question for determination by arbitration: “Are employees who are deemed competent to operate any excavators, ‘Excavator Operators’ for the purpose of clause 30(e), Level 4 of the Agreement?” [5] The arbitration took place on 4 November 2025. The MEU adduced evidence from Mr Aden Worroll, Production Worker. Thiess adduced evidence from Mr Ryan Fox, Project Manager, Ms Leanne Johnson, Human Resources Manager, and Mr Dane Cronin, Excavator Operator, and Trainer and Assessor. Relevant provisions of the Agreement [6] The following provisions of the Agreement are relevant to the dispute: [2026] FWC 238 DECISION [2026] FWC 238 2 Clause 7 “7. Performance of Work Employees are required to perform work which they are competent to perform and to the best of their ability in a safe, efficient and productive manner. Work must be performed as reasonably required by the Company within the bounds of safety, competence, authorisation, training and the law including all relevant legislation and regulations. It is accepted that during the term of this Agreement, new technologies, systems and legislation may be introduced. The Company will provide Employees with the necessary training to acquire new skills and competencies that may reasonably be provided, subject to business activities and operational requirements.” Clause 9 “9. Employee Duties (a) Employees are required to undertake all duties, within their level of competence and authorisation, necessary to effectively carry out their role in addition to any other-directed duties which the Employee is capable of performing safely and within legal requirements. (b) There will be no demarcation of work between Employees as long as those duties are within the Employee’s skills, competence training and authorisation. (c) The Employee agrees to provide all required documentary evidence of existing licences, qualifications, certificates, driver licences and all other relevant documents before commencing employment. (d) An Employee must immediately advise the Company where there is any change in the status of licences, qualifications, certificates, driver licence and any other relevant documents required to be maintained for their employment. For example, where through some civil indiscretion an Employee loses his/her driver licence, they must immediately advise their Supervisor/Manager. (e) With the exception of renewal of a state or territory driver licences, the Company will pay the renewal costs, where it is a condition of employment to maintain these licences, qualifications or certifications” Clause 30 “30. Classification Structure and Rates (a) The Company will pay Employees either an Aggregated Annualised Wage or an Aggregate Hourly Rate as defined. [2026] FWC 238 3 (b) The Aggregated Annualised Wages or Aggregate Hourly Rates includes the Base Hourly Rate of pay for Ordinary Hours, rostered overtime, penalty rates (including weekend and shift penalties), worked and non-worked public holidays, all allowances, penalties and payments provided for in this Agreement that are described as part of the Aggregate Annualised Wage. The Aggregate Annualised Wage is governed by the actual roster worked. Accordingly, these rates will change if and when the roster changes. (c) The applicable Aggregate Hourly Rate is paid for each rostered hour worked. (d) Non-Rostered Overtime is paid in accordance with clause 53. (e) Production Employees: The classification structure and the associated Base Hourly Rates for production Employees is as follows (provided that the Base Hourly Rate will not be below the relevant base rate for the equivalent classification in the Black Coal Award): (f) [2026] FWC 238 4 (g) Notwithstanding the above provisions, if an Employee has not obtained a minimum of 3 core mining equipment skills and: (i) the Employee has 12 months continuous service in the coal mining industry operating the equipment listed in the Production Level Classification 2 (above); and (ii) the Employee has 12 months continuous employment at the Mount Pleasant Operation operating the mining equipment listed in the Production Level Classification 2 (above), the Employee will move from Production Level Classification 2 to Production Level Classification Level 3. For clarity subject to the requirements under the Production Level Classification 1 (above) an inexperienced operator will have to complete 2 years continuous service at the Mount Pleasant Operation before moving to Production Level Classification Level 3. (h) Maintenance Employees: The classification structure and the associated Base Hourly Rates for maintenance Employees will be in accordance with the table below:” Clauses 40 to 43 “40. Tool Allowance Level 3 and Level 4 Maintenance Employees nominated by the Maintenance Manager will receive an annual tool allowance of $1,900 paid in addition to base salary. For eligible Employees, the tool allowance has been included in the Aggregated Annualised Wage calculations. All Tools purchased with this allowance are to be primarily for use at work. 41. Trainer and Assessor Allowance Where an Employee is appointed by the Company to the role of trainer assessor, the Employee will receive a trainer and assessor allowance of $1.50 per hour in addition to their Base Hourly Rate (but this allowance does not form part of the Aggregate Annualised Wage). [2026] FWC 238 5 This allowance will only be paid while the Employee continues to be appointed to the role of trainer and assessor. If an Employee resigns or the Company removes and Employee’s appointment as a trainer and assessor, they will cease to receive the allowance with immediate effect. 42. Emergency Response Team Allowance Where an Employee is appointed by the Company to the Emergency Response Team (ERT), the Employee will receive an ERT allowance of $1.50 per hour in addition to their Base Hourly Rate (but this allowance does not form part of the Aggregate Annualised Wage). This allowance will only be paid while the Employee continues be an active and current member of the ERT. If an Employee resigns or for any other reason is no longer a member of the ERT, they will cease to receive the allowance with immediate effect. 43. Coordinator / Leading hand / Step-Up Supervisor Allowance (a) Where an Employee is appointed with the approval of the Project Manager Coordinator /Leading Hand or Step-Up Supervisor, the Employee will receive the relevant allowance below in addition to their Base Hourly Rate for all hours worked (but this allowance is not part of the Aggregate Annualised Wage): (b) Appointment as a Leading Hand or Step-Up Supervisor is contingent on the Employee demonstrating excellence in performance, commitment and leadership. Also, the appointment is subject to the Company's operational needs. Appointments may be revoked by the Project Manager where it is deemed the person is no longer demonstrating excellence in performance, commitment and leadership and or where operational needs dictate the role is no longer required. (c) Where an Employee’s appointment is revoked, the Employee will be given 2 weeks’ notice of such revocation. (d) Employees are entitled to receive only one (1) of the above allowances referred to in clause (a) at any given time.” [2026] FWC 238 6 Principles of construction [7] There is no dispute between the parties as to the general principles that I must apply in properly construing the Agreement. Those general principles were summarised by the Full Court of the Federal Court of Australia in James Cook University v Ridd:1 “(i) The starting point is the ordinary meaning of the words, read as a whole and in context. (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’. The interpretation ‘turns upon the language of the particular agreement, understood in the light of its industrial context and purpose’. (iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part, or to other documents with which there is an association’. (iv) Context may include ‘... ideas that gave rise to an expression in a document from which it has been taken’. (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...’ (vi) A generous construction is preferred over a strictly literal approach, but ‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’ (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.” [references omitted] [8] In addition, the construction to be given to a clause of an industrial instrument should not be a strict one but rather should be one that contributes to a sensible industrial outcome.2 Reference may also be made to whether a particular construction would make industrial or commercial sense and an interpretation which accords with business common sense will be preferred to one which does not.3 Consideration [9] Clause 30 of the Agreement clearly contemplates that an Excavator Operator is a person who is trained and qualified to operate an excavator. The MEU contends that a person who is trained and passed out as competent to operate an Ancillary Excavator or a Production Excavator is an Excavator Operator. Thiess contends that a person who is trained and passed out as competent to operate a Production Excavator is an Excavator Operator, but a person who is trained and passed out as competent to operate an Ancillary Excavator only is not an Excavator Operator. [10] I accept that there is ambiguity as to the proper interpretation of the expression Excavator Operator in clause 30 of the Agreement. The ambiguity stems from: [2026] FWC 238 7 (a) the inclusion of the term “Excavator / Loader” in the designation “Ancillary Excavator / Loader” in clause 30(f), which raises uncertainty as to whether such equipment (and its Operator) falls within the scope of the position of Excavator Operator; and (b) the competing constructions advanced by the MEU and Thiess over the meaning of the expression Excavator Operator in clause 30. [11] As to the first source of ambiguity, it can be resolved quickly and easily. Evidence before the Commission from both sides established, as a fact known by all employees who work at the Mine, that there is no equipment at the Mine which is referred to as an Ancillary Excavator / Loader. There are excavators and there are loaders used at the Mine. They are separate pieces of equipment. I accept the evidence from Thiess’s witnesses that at the Mine excavators of 100 tonnes or less in weight are referred to as Ancillary Excavators and larger excavators of 300 tonnes or more in weight are referred to as Production Excavators. The evidence also establishes that loaders are different from excavators. The loaders used at the Mine have rubber wheels; the excavators do not. [12] Accordingly, the inclusion of Ancillary Excavator / Loader in the list of core mining equipment in clause 30(f) of the Agreement is a reference to Ancillary Excavators and Loaders, which are separate pieces of equipment. It is therefore not arguable that an Operator of an Ancillary Excavator / Loader is not an Excavator Operator because they are operating a loader or a hybrid excavator/loader. This argument was not advanced by Thiess, but it needs to be addressed in light of the reference to Ancillary Excavator / Loader in clause 30(f) of the Agreement. [13] The central issue in this dispute is how a reasonable person would interpret the words Excavator Operator in clause 30(e) of the Agreement, in light of the text, context and purpose of the relevant provisions of the Agreement. [14] Unlike other terms used in the Agreement which are defined in clause 6, the term Excavator Operator is undefined. In WorkPac Pty Ltd v Skene,4 the Full Court of the Federal Court observed that: “Where a term is undefined, unless there is a contrary intention, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. Despite the broad purposive approach to be taken to the interpretation of industrial agreements, that canon of construction remains applicable as a starting point.” [15] The ordinary meaning of Excavator Operator is a person who operates an excavator, whether it be a Production Excavator or an Ancillary Excavator. [16] Turning now to context, the classification structure in clause 30(e) of the Agreement commences with Level 1 and rises through to Level 4. Level 1 is the lowest production classification level. It covers inexperienced operators. A Level 1 employee can move to Level 2 if, and only if, they work for at least six months, their training is successfully completed, and they have been passed as competent to operate. That is, experience, training and competency determines whether an employee should be classified as Level 2 rather than Level 1. [2026] FWC 238 8 [17] Level 2 covers a range of positions, including employees with fewer than three core mining equipment skills. To move from Level 2 to Level 3, the number of mining equipment skills or the employee’s experience in the coal mining industry and at the Mine is the determinant. Level 3 covers multi-skilled operators with a minimum of three core mining equipment skills. In addition, it is apparent from clause 30(g) that even if an employee has not obtained three core mining equipment skills, they will move to Level 3 if they have at least 12 months experience in the coal mining industry operating the equipment listed in Level 2 and they have 12 months continuous employment at the Mine operating the equipment listed in Level 2. [18] Level 4 is the highest production classification level. It covers Excavator Operators, Drillers and Shot Firers. There is no requirement in clause 30(e) for a Driller or Shot Firer to have any particular number of core mining equipment skills or to have been employed in the coal mining industry or at the Mine for any particular period of time. An employee who is only trained and passed out as competent to operate as a Driller or Shot Firer will be a Level 4 production employee. The same applies to Excavator Operators. An employee who is only trained and passed out as competent to work as an Excavator Operator will be a Level 4 production employee under the classification structure in the Agreement. Accordingly, it is the nature of the position of an employee, as determined by their competencies and training, that determines whether they will be classified at Level 4. Only employees who are trained in and passed out as competent to work as an Excavator Operator, Driller or Shot Firer can be classified as Level 4 within the production stream of workers at the Mine. [19] There may be various reasons why an enterprise agreement classifies certain roles at higher levels than others. For example: (a) classification levels may reflect the work value attributed to particular roles; (b) they may be based on the degree of skill required; (c) they may depend on the extent of specialised training necessary; (d) they may be influenced by market factors such as demand and supply for particular roles; (e) they may take into account experience with the employer and/or within the industry; or (f) they may be determined by a combination of these factors. [20] The Agreement does not expressly identify which of these, or any other relevant factors, led to the classification of the positions of Excavator Operator, Driller, and Shot Firer at Level 4. Nonetheless, it is clear that each of these roles involves specialised skill and training, contributes in a meaningful way to production at the Mine, and entails operational risk. [21] The evidence has established that specialised skill and training are required for an employee to be deemed competent to operate either an Ancillary Excavator or a Production Excavator. Ancillary Excavators are typically used at the Mine for support tasks such as windrow work, pump operations, coal test pits, cleaning truck trays, and constructing crib hut areas. These machines are not monitored for production metrics and, although occasionally used to load trucks with dirt, coal, or waste, they are not ordinarily employed for production [2026] FWC 238 9 loading due to their lower efficiency. In contrast, Production Excavators, which are significantly larger in scale, are integral to Thiess’s Mine plan for efficient material movement. These machines are monitored for production rates, payload, bucket counts, and overall efficiency. [22] Mr Cronin gave evidence, which I accept, that an employee with no prior excavator experience would require substantial training before being deemed competent to operate an Ancillary Excavator. Before an employee is considered for training in a Production Excavator they will usually work for some time on an Ancillary Excavator. The training required to operate a Production Excavator is more extensive, particularly in its practical components, than the training to operate an Ancillary Excavator. Although Mr Worroll contended that the training for Production Excavators is essentially the same, he has not undertaken that training. I prefer the evidence of Thiess’s witnesses, who demonstrated that the training and skill required to operate a Production Excavator exceed those required for an Ancillary Excavator. The larger size and greater production impact of Production Excavators also mean that their operation involves higher operational risk. Operators of Production Excavators also usually have an existing Dozer Operator skill because Production Excavators and Dozers work closely together and employees may be required to swap between the machines during a shift to avoid fatigue and maintain efficient rates of production. Despite these differences between the role of operating an Ancillary Excavator and the role of operating a Production Excavator, both roles require specialised skill and training, contribute in a meaningful way to production, and involve operational risk. A reasonable person would not regard the differences as sufficient to support an objective intention under the Agreement to classify a Production Excavator Operator at Level 4 and an Ancillary Excavator Operator at Level 2 or 3, particularly in the absence of any indication in the Agreement that the term Excavator Operator is limited to operators of Production Excavators or excavators of a particular size or capacity. [23] Clause 30(e) of the Agreement classifies the position of Truck Operator at Level 2. Clause 30(f) identifies core mining equipment including Rear Dump Trucks and Water Trucks, both of which may be operated by a Truck Operator. There is no proper basis to assert that the term Truck Operator should be confined to operators of Rear Dump Trucks on the basis that those vehicles are larger, more complex, or contribute more to production than Water Trucks. Yet that is, in substance, the argument Thiess advances in relation to Excavator Operators. [24] Unlike its right to appoint employees to particular roles under the Agreement, such as trainer and assessor,5 Thiess does not have a right under clause 30 of the Agreement to unilaterally determine which level a production employee should be classified into, regardless of the work the employee does and the mining equipment which they are passed out as competent to operate. [25] Thiess contends that the broader industrial context supports its construction of clause 30 of the Agreement. In this regard, Thiess points to the subjective intention of its employees who were involved in the negotiation and preparation of the Thiess Mt Pleasant Operation Enterprise Agreement 2018 (2018 Agreement), which contains the same classification structure (in relevant respects) as the Agreement. Thiess says that such employees intended that the position Excavator Operator would only apply to persons trained in and competent to operate Production Excavators. Thiess also relies on the fact that neither the MEU nor any employee covered by the Agreement has, prior to the commencement of the present dispute, raised any claim or contention that Operators who are trained in and passed out as competent [2026] FWC 238 10 to operate Ancillary Excavators, but not Production Excavators, should be paid or classified at Level 4, rather than Level 2 or Level 3. [26] The subjective intentions or expectations of parties are irrelevant to the proper construction of an enterprise agreement.6 There is no evidence before the Commission that the subjective intentions or expectations of Thiess’s employees in relation to the meaning of the position of Excavator Operator were communicated to employees or raised during bargaining for either the 2018 Agreement or the Agreement.7 [27] Evidence of an absence of a complaint about the non-payment of a particular rate of pay, such as for a Level 4 employee, is insufficient to establish a common understanding.8 This is because, “i[n] order to have an understanding, it is necessary for there to be a meeting of the minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue”.9 [28] In the present case, it was not until Mr Worroll was using an Ancillary Excavator to load a truck, along with Level 4 employees using a Production Excavator, that he considered that he should be paid the same as the Level 4 employees for doing the same job. Mr Worroll raised this issue with his supervisors in about 2023. On about 11 March 2025, the MEU Lodge Secretary at the Mount Pleasant Lodge raised a pay dispute with Thiess about the proper classification for an employee operating an Ancillary Excavator. Having regard to these matters, I am satisfied that the absence of a complaint about the non-payment of a Level 4 rate of pay to employees operating Ancillary Excavators was not sufficient to establish a common understanding. [29] During negotiations for the Agreement the MEU sought a single rate of pay for all Operators and a Level 4 classification for employees operating a Loader. These claims were not accepted by Thiess and no such terms were included in the Agreement. These matters do not assist in determining the proper construction of the words Excavator Operator in clause 30 of the Agreement. [30] Thiess also relies on the Form F17 declaration made in support of its application for approval of the Agreement by the Commission. That declaration matches the classification of a production Level 3 employee with the Mineworker classification in the Black Coal Mining Industry Award 2020. It also matches the classification of production Level 4 employee with the Mineworker – Advanced classification in the Award. The MEU did not take any issue with the information contained in Thiess’s Form F17 declaration when the MEU submitted its Form F18 declaration in relation to the application for approval of the Agreement. [31] The following provisions of the Award are relevant to Thiess’s contentions about the Award: “A.2.3 Mineworker A Mineworker is an employee who is assessed by the employer as competent to perform the required tasks in a variety of operating circumstances and under limited supervision. An employee continues in this classification until assessed for advancement to Mineworker – Advanced. [2026] FWC 238 11 A.2.4 Mineworker – Advanced A Mineworker – Advanced is an employee who is assessed by the employer against the employer's available criteria as competent to perform the required tasks in all relevant operating circumstances at a level above that of a Mineworker. A Mineworker – Advanced may be required to supervise the work of other employees. … A.3.2 Progression to the classification of Mineworker – Advanced may occur where an employee is assessed as competent against the available criteria or is appointed to a statutory position. Although advancement to this classification is not governed by the acquisition of skills alone, for a trade certificated employee this may be achieved by exercising skills which require 6 post-trade modules of training or an equivalent level of skills in non-trade or cross-trade work. … A.5 Indicative Competencies A.5.1 Open cut mines The following lists are not exhaustive, but rather are indicative of the types of competencies utilised in open cut mines. … ADVANCEMENT COMPETENCIES Dragline operation; Auger operation; Truck operation; Shovel operation; Cable handling; Drilling; Blasting; Shotfiring; Scraper operation; Excavator operation; Loader operation; Grader operation; Dozer operation…” [emphasis added] [32] There are a number of problems with Thiess’s submissions about the Award. First, there is no evidence that Thiess’s classification matching of production Level 4 employee with the Mineworker – Advanced classification in the Award was shared with the employees covered by the Agreement during negotiations or at any other time. Secondly, there is nothing in the Award to suggest that an operator of a Production Excavator would necessarily be at the Mineworker – Advanced classification under the Award, nor does the Award suggest that an operator of an Ancillary Excavator would necessarily be at the Mineworker classification under the Award. Indeed, the advancement competencies in the Award only refer to “excavator operation”. They do not distinguish between Production Excavators and Ancillary Excavators. Nor do the advancement competencies in the Award distinguish between the complexity associated with operating different machines and equipment on a mine site. Thirdly, the Agreement has a pay and classification structure that is not sufficiently aligned with the Award to be of any material assistance to Thiess’s case. [33] Thiess submits that if it was required to pay employees operating Ancillary Excavators at the Level 4 rate of pay, this would disrupt industrial harmony at the Mine, disincentivise upskilling and create inequality. These matters are not relevant to the task of properly construing the Agreement. But even if they were relevant, I do not accept the contentions advanced by Thiess. Mr Cronin, a Level 4 production employee at the Mine, was called to give evidence by Thiess. He was the only Level 4 production employee to give evidence in the [2026] FWC 238 12 arbitration. Mr Cronin gave evidence that he would not be concerned if operators of Ancillary Excavators were paid at Level 4 under the Agreement. I prefer this direct evidence from Mr Cronin over the hearsay evidence adduced from Thiess’s other witnesses in relation to what other employees at the Mine think about the idea of paying operators of Ancillary Excavators at the Level 4 rate. It is quite common in the black coal mining industry, particularly in the Hunter Valley, for operators to be paid the same rate of pay, regardless of the complexity of the machines and equipment on which they work. I am not satisfied on the evidence before the Commission that paying employees the same rate of pay disincentivises upskilling or creates inequality. I prefer the direct evidence given by Mr Worroll10 about these matters over the opinions contained in the witness statements of Thiess’s managerial employees.11 [34] I do not accept Thiess’s contention that interpreting the term Excavator Operator in clause 30 of the Agreement to mean an operator of any excavator, whether a Production Excavator or an Ancillary Excavator, lacks industrial or commercial sense. The requirement to pay an employee who is trained in and passed out as competent to operate an Ancillary Excavator at the Level 4 rate, which at the time the Agreement was made was $1.82 per hour higher than the Level 3 rate, reflects an objective intention to remunerate Excavator Operators at a slightly higher rate than operators of other core mining equipment. It is also relevant that an employee who has been trained in and deemed competent to operate an Ancillary Excavator is on a pathway to operating Production Excavators, should Thiess elect to provide the necessary further training. [35] While it may be arguable that other core mining equipment used at the Mine is similarly complex, requires significant training and skill, contributes materially to production, and involves operational risk, such that their operators might also warrant classification at Level 4, that is a matter for Thiess and the employees covered by the Agreement to address in bargaining for a replacement agreement. [36] Having considered all relevant circumstances and the submissions of the parties, I am satisfied that there is no indication, either in the terms of the Agreement or in the broader industrial context, that the undefined term Excavator Operator in clause 30(e) should be construed as having anything other than its ordinary meaning.12 Thiess’s contention that the term should be limited to employees trained in and passed out as competent to operate Production Excavators effectively involves rewriting the Agreement to reflect the subjective intentions of certain Thiess employees involved in the negotiations for the 2018 Agreement and the Agreement, and to achieve what Thiess considers a fair and just outcome, given the high level of skill and training required to operate Production Excavators and their significant contribution to productivity at the Mine. However, such an approach to interpretation is impermissible.13 Conclusion [37] For the reasons given, the answer to the agreed question for determination by arbitration is as follows: Question: Are employees who are deemed competent to operate any excavators, ‘Excavator Operators’ for the purpose of clause 30(e), Level 4 of the Agreement? [2026] FWC 238 13 Answer: Yes DEPUTY PRESIDENT Appearances: Mr S Mueller, Legal Officer, for the MEU Ms K de Lange Savage, Group Manager Industrial Relations, for Thiess Hearing details: 2025. Newcastle 4 November. Printed by authority of the Commonwealth Government Printer <PR796114> 1 [2020] FCAFC 123 at [65] 2 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [8]-[9], citing Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96] (Kirby J); Polan v Goulburn Valley Health [2016] FCA 440 at [34] (Mortimer J) 3 Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149 at [21] (Jessup, Rangiah and White JJ); Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [34] (Tracey J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2016) 262 IR 176; [2016] FCA 1009 at [32]-[33] (Logan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 at [66] (Flick J) 4 [2018] FCAFC 131 at [202] 5 See clauses 40 to 43 of the Agreement 6 AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [62]-[64] & [114(3)] 7 RTBU v Keolis Downer Northern Beaches Pty Ltd [2025] FWCFB 240 at [44] 8 AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [108] 9 ALHMWU v Prestige Property Services Pty Ltd [2006] FCA 11 at [44]; RTBU v Keolis Downer Northern Beaches Pty Ltd [2025] FWCFB 240 at [37]-[38] 10 See, for example, Hearing Book at p 140[10] [2026] FWC 238 14 11 See, for example, Hearing Book at pp 95 – 96[33]-[35] 12 WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [202] & [212] 13 AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [114(2)&(3)]