1 Fair Work Act 2009 s.739—Dispute resolution National Tertiary Education Industry Union v The University Of Newcastle (C2025/11078) DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 4 MARCH 2026 Application for the Commission to deal with disputes in accordance with dispute settlement procedures in two enterprise agreements – whether Commission should exercise its discretion to arbitrate the disputes. Introduction and background [1] On 10 November 2025, the National Tertiary Education Industry Union filed four applications pursuant to s 739 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with disputes in accordance with the dispute settlement procedure under the University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023 and the University of Newcastle Professional Staff Enterprise Agreement 2023 (together, the Agreements). [2] The applications filed by the NTEU concern major workplace changes proposed by the University in 2025. [3] On 10 December 2025, I conducted a conciliation conference in an attempt to resolve the disputes. No settlement was reached at conciliation. At the end of the conciliation conference, the University was asked whether there was any reason why the disputes should not be programmed for arbitration. No such reason was provided. I then discussed with the parties the making of directions to prepare the disputes for arbitration. In accordance with that discussion, the following directions were issued to the parties on 10 December 2025: “1. By consent of the parties, the arbitration of the disputes between the National Tertiary Education Industry Union and the University of Newcastle with matter numbers C2025/11078; C2025/11287; C2025/11288; C2025/11289 will be heard together, with evidence in one proceeding being evidence in the other proceeding. 2. These disputes have been listed for hearing by way of arbitration before Deputy President Saunders at 10:00am on 30 and 31 March 2026. 3. The Deputy President has determined to conduct the hearing in person at the Fair Work Commission in Newcastle (level 2/130 Parry Street, Newcastle). [2026] FWC 727 DECISION [2026] FWC 727 2 4. Pursuant to s 596(2)(a) of the Fair Work Act 2009 (Cth), the Deputy President grants permission to the University of Newcastle to be legally represented at the hearing of these disputes. 5. The Deputy President directs the NTEU to file in the Commission and serve on the University of Newcastle, by no later than 4:00pm on 21 January 2026: • An outline of their submissions; • A witness statement for each witness to be called to give evidence at the hearing; and • A copy of any document upon which they seek to rely. 6. The Deputy President directs the University of Newcastle to file in the Commission and serve on the NTEU, by no later than by 4:00pm on 4 March 2026: • An outline of their submissions; • A witness statement for each witness to be called to give evidence at the hearing; and • A copy of any document upon which they seek to rely. 7. The Deputy President directs the NTEU to file in the Commission and serve on the University of Newcastle any witness statements, submissions or documents in reply, by no later than 4:00pm on 25 March 2026.” [4] On 16 January 2026, the NTEU informed the Commission that it was no longer pursuing the disputes in proceedings C2025/11288 and C2025/11289. Those disputes related to the obligation under clause 11.2.3 of the Agreements for “work to continue as directed” until the procedures in the dispute resolution clause had been exhausted. [5] Accordingly, the arbitration is limited to the disputes in proceedings C2025/11078 and C2025/11287. Those disputes concern allegations by the NTEU that the University has failed to comply with its obligations under the Agreements to consult with affected staff (clause 9) and comply with “its obligations under … State work health and safety legislation” (clause 7.4.4) in relation to the workplace changes made following consultation. [6] On 28 and 29 January 2026, the NTEU filed and served its witness statements and submissions in chief. The NTEU’s submissions propose that the Commission determine the following questions in the arbitration: 1. Is this one University-wide major change process? 2. If it is, has the University met its obligation to consult by dividing one major change process into multiple change processes by work areas? 3. Have all ‘affected staff’ been consulted under Clauses 9.1 of the Agreements? 4. Has the University met Clauses 9.1.10 and 7.4.4 of the Agreements in relation to workplace health and safety? [2026] FWC 727 3 5. Has the University met its obligations to consult in relation to the major change? [7] The NTEU’s submissions contend for the Commission to award the following remedies: (a) Provide the following answers to questions listed: 1. Is this one University-wide major change process? Yes 2. If it is, has the University met its obligation to consult by dividing one major change process into multiple change processes by work areas? No 3. Have all ‘affected staff’ been consulted under Clauses 9.1 of the Agreements? No 4. Has the University met Clauses 9.1.10 and 7.4.4 of the Agreements in relation to workplace health and safety? No 5. Has the University met its obligations to consult in relation to the major change? No (b) Determine that the University failed to meet its obligations to consult under clauses 9.1.10 and clauses 7.4.4 of the Agreements, as well broadly. (c) Determine that in the future the University consult at a University-wide level for any major change that is a University-wide level change. (d) Determine that the University conduct an urgent and extensive workplace health and safety investigation to determine the workloads of its current staff as a result of the major change. Following the investigation, the University must take urgent steps to either reduce any work identified as excess or provide the union an alternative in resolving excess workloads. Steps taken to reduce workloads should be documented for any staff who advise they have excessive workload and shared with staff and NTEU. (e) Such other orders or recommendations as the Commission considers appropriate to settle the dispute. [8] On 19 February 2026, the University submitted, for the first time, that the Commission should exercise its discretion to decline to arbitrate the two remaining disputes. The University filed and served written submissions, together with a witness statement made by Mr Martin Sainsbury, Chief People and Culture Officer at the University, dated 19 February 2026, in support of its contention that the Commission should exercise its discretion not to arbitrate the disputes. [9] On 2 March 2026, the NTEU filed and served submissions in support of its contention that the Commission should arbitrate the disputes. [10] On 4 March 2026, the University filed and served reply submissions. [2026] FWC 727 4 Discretion to arbitrate? [11] Clause 11.2 in each of the Agreements sets out the dispute resolution procedure that must be followed “[w]here a dispute arises regarding the interpretation, application or operation of any provision of this Agreement (including any decision made but not yet implemented) or the NES”. [12] Clause 11.2.4 and clause 11.2.5 in each Agreement provides: “Procedure 11.2.4 A dispute resolution procedure may be initiated by: a) a staff member, who may appoint a Representative for the purposes of the procedure; b) the Union; or c) the University. 11.2.5 Each step in the dispute resolution procedure is mandatory and must be followed before proceeding to the next step. Step 1 – Informal discussions • Where a dispute is raised by a staff member, the staff member in the first instance must attempt to resolve the matter informally through discussion with their supervisor, unless it is not practicable to do so. Step 2 – Notification of dispute • Where the dispute is not resolved, or is impractical to settle locally, the staff member must formally notify a dispute in writing to the Chief People and Culture Officer or delegate. • Where the Union initiates a dispute, the Union will directly notify the Chief People and Culture Officer or delegate. • Where the University initiates a dispute, the University will notify the staff member and/or Union in writing. Step 3 – First dispute meeting • Within 5 working days of the notification in Step 2, unless a different timeline is agreed, a dispute meeting to discuss the dispute and attempt to reach an agreement, will be held between: a) the staff member; b) the Union if initiated directly at Step 2; and a) a representative of the University. Step 4 – Second dispute meeting • Where a dispute is not resolved following the procedures above, the matter will be referred to the Chief People and Culture Officer • The staff member, and/or the Union and representatives of the University will meet within 5 working days of the referral notification and will make a genuine attempt to promptly resolve the matter. • To assist resolution, the parties may agree to nominate other staff members to participate in this discussion. • If the dispute is resolved at, or as a result of the second dispute meeting, the staff member and/or Union will be notified in writing as soon as practicable of the details of the resolution by the Chief People and Culture Officer or delegate and the matter will be considered finalised. Step 5 – Referral to FWC [2026] FWC 727 5 • Should the dispute not be resolved by the procedures referred to above, either party may, within 10 days of the second dispute meeting in Step 4, refer the dispute to the Fair Work Commission (FWC). • Should the dispute be referred to the FWC: a) the FWC will seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the dispute, which may include making a recommendation to the parties to the dispute. b) if mediation and/or conciliation is unsuccessful, and the dispute remains unresolved, the FWC may arbitrate the dispute and make a determination. c) any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Act.” [13] The general principles that I must apply in properly construing the Agreements 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] [14] 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 [15] Subparagraph (b) of the final bullet point in step 5 of the dispute resolution procedure in clause 11.2.5 of the Agreements states that “the FWC may arbitrate the dispute and make a determination” if mediation and/or conciliation is unsuccessful and the dispute remains resolved. The use of the word “may” ordinarily indicates the existence of a discretion, but in [2026] FWC 727 6 some contexts it has been held that a decision maker was obliged to act, effectively converting “may” into “must”.4 [16] The dispute resolution procedure in clause 11.2 of the Agreements variously uses the modal verbs “must”, “will” and “may” to indicate the action to be taken by a party to the dispute at different stages of the procedure. It is clear from the context in which these words are used in clause 11.2 that the drafter of the procedure has used the word “must” or “will” when the step to be taken is compulsory, whereas the word “may” is used when there is a choice to be made. For example, “the FWC will seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation or conciliation of the dispute, which may include making a recommendation to the parties to the dispute” [emphasis added]. This suggests that the expression “may arbitrate” in step 5 of the procedure confers a discretion on the Commission to arbitrate a dispute where it remains unresolved after mediation and/or conciliation. [17] Further, this is not a case where it could reasonably be argued that no true discretion remained as to whether to arbitrate a dispute under clause 11.2, even if mediation and/or conciliation was unsuccessful and the dispute remained unresolved.5 For example, the Commission would exercise its discretion not to arbitrate a dispute in circumstances where neither party wanted the dispute arbitrated, notwithstanding the fact that the dispute had not been resolved by mediation or conciliation. [18] Accordingly, on the proper construction of clause 11.2 of the Agreements, the Commission has a discretion under the dispute resolution procedure to arbitrate a dispute which remains unresolved following an unsuccessful mediation and/or conciliation. Should the discretion to arbitrate be exercised? University’s submissions [19] By way of summary, the University submits that the NTEU is disputing events that occurred in the past, which are now spent, in a way that is inconsistent with the terms of the Agreements. In light of this, the University submits that the Commission should decline to arbitrate the dispute, because doing so lacks utility and would be inconsistent with the Agreements. It is contended that the Commission’s increasingly sparce resources are better directed to other matters that have utility and proper jurisdiction. [20] The University submits that it consulted with staff and the NTEU in connection with a major change introduced in 2025. Following consultation, the University's final proposals were endorsed by the relevant delegate under clause 9.1.17 of the Agreements. In addition, each of those proposals have been implemented. The University also relies on clause 9.1.18 of the Agreements, which provides for a “post implementation review” to occur within 6 to 12 months following the endorsement under clause 9.1.17. That review requires, among other things, further consultation with affected staff and a discussion with the Staff Consultative Committee. Clause 9.1.19 sets out what the review is to consider, including “a review of workloads and any impact on EDI groups”. [2026] FWC 727 7 [21] The University submits that the Commission will consider its mandate to act fairly, quickly, informally, and in a manner that engenders harmonious and cooperative workplace relations (s 577 of the Act). [22] The University submits that the product of any arbitration, and in turn, the resources of the Commission and parties involved in that arbitration, are also relevant. Arbitration is conventionally useful, so the University submits, when it produces a result that creates a future charter of rights and responsibilities. The University submits that determination about past conduct is not useful, and the claiming of remedies in respect of past conduct is an exercise of judicial power. It is submitted that the Act confers jurisdiction on federal courts for this purpose. [23] The University also submits that a “determination” to be made under subclause (b) of step 5 cannot be inconsistent with the terms of the two Agreements (s 739(5) of the Act). If the Agreements provide for a facility which caters for the resolution of the dispute, then the Commission need not, so the University contends, step into the shoes of the parties and arbitrate over the top of them. In that situation, the University submits that it is for the parties to apply the terms of the Agreement, and there is no utility in the Commission undertaking an arbitration to conclude that the parties should do so. [24] The University submits that it is apparent from the submissions and witness statements filed and served by the NTEU that it seeks to dispute more than 12 months of events it says are relevant to questions it has raised. The University submits that it is now required to respond by meeting contentious issues of fact that span that whole period, such that there will be significant time and resources invested by the Commission and both parties to clarify disputed facts. [25] The University submits that the questions and proposed determinations put forward by the NTEU concern past events about the extent to which the University complied with its consultation obligations in clause 9 of the Agreements. The University submits that they are all questions that are now moot for private arbitration, because the delegate has endorsed the final proposals and the University has implemented the change. There is therefore no utility, so the University contends, in having these questions answered or these determinations made; they serve no purpose because nothing can be done about them by the University (or by the NTEU), even assuming that the questions and determinations are favourable to the NTEU’s case. In those premises, the University submits that there cannot be utility in the Commission spending days eliciting evidence about this dispute, bearing in mind its own statutory obligations and its increasingly scarce resources. [26] Assuming that the case is able to be completed within its two-day estimate, and assuming that the Commission is able to finalise its reasons within a 12 week timeline, the University submits that the outcome of the arbitration will not be known at least until August 2026. This will be a time when the change processes engaged in by the Colleges and Divisions are wholly historical, and entirely inutile to all consultation that was engaged in by the University, the NTEU, the CPSU and affected staff in 2025. [27] The University submits that a second and powerful reason to decline the discretion to arbitrate arises from the terms of the two Agreements themselves. It is submitted that the NTEU’s wish to dispute past events via private arbitration is, essentially, seeking a review of past events. A review by a person independent of the major workplace change (such as the [2026] FWC 727 8 Commission) is already provided for under clause 9.1.18 of the Agreements. The University submits that the parties should be held accountable to that obligation that they have submitted to in clause 9.1.18, and the NTEU is seeking an outcome that is inconsistent with clause 9.1.18. This cannot occur (s 739(5) of the Act). [28] The University submits that it is for this independent person, not the Commission, to conduct the review of the past major change processes conducted by each College and Division. It is submitted that all of the questions that the NTEU have posed for arbitration can ably be considered and answered by this person, when one considers the scope of the review set out in clause 9.1.19. The University submits that the NTEU has the opportunity to discuss this review, bearing in mind that the Staff Consultative Committee consists of three NTEU representatives, and its members have an independent right to share input. [29] Not only does this review contemplate the capacity to answer all of these questions, but the University contends that it will also do so in a superior way when compared to the Commission. Unlike the Commission, the University submits that the independent person will have access to the input of individual affected staff (clause 9.1.20) as well as access to the input of the CPSU (who also are entitled to three representatives on the Staff Consultative Committee). Absent the Commission subpoenaing a large (and presently unidentifiable) number of individuals to give evidence, the University submits that the Commission’s review in private arbitration will be comparatively less informed. This is a separate reason, so the University submits, why private arbitration is inutile (in addition to being inconsistent with the two Agreements). [30] The University submits that it is no answer to conclude that the Commission’s exercise of private arbitration will inform the review to be conducted by the independent person under clause 9.1.18, for reasons of both utility and jurisdiction. As to utility, the University submits that the independent person is to conduct the review within 6-12 months of implementation, and accordingly, there will be unnecessary and concurrent processes being conducted by this person and the Commission. As to jurisdiction, the University submits that the arbitration outcome is specified as “binding” under subclause (c) of Step 5 in clause 11.2.5. Thus, the independent reviewer would be bound by any of the Commission’s findings, which the University submits is not an independent review at all. The arbitrated findings would fetter the review, which the University submits is inconsistent with the clause and is not able to occur under s 739(5) of the Act. [31] The University contends that the NTEU is able to dispute the manner in which the review is conducted at a later stage, but at this point in time, its dispute is premature. It is submitted that the NTEU is seeking outcomes that the Commission has no power to provide. [32] The University submits that there are other terms of both Agreements which must be brought into account. It is contended that these clauses additionally serve to make the proposed arbitration of no utility. First, there is the NTEU’s complaint that workloads were not properly accounted for during the consultation. This complaint is cast at the global level. The independent review person is to consider workloads as part of its process: clause 9.1.19(f) and global matters about this issue are to be dealt with there. In any event, the University submits that the truth of the matter is that there are detailed and specific clauses intended to manage the workloads of academic and professional staff (clause 5.2 of the Academic Agreement and [2026] FWC 727 9 clause 5.8 of the Professional Agreement). It is submitted that both clauses contain a superior method of determining workload in that they apply at the granular employee-by-employee level, rather than the global level. Taking the NTEU’s case at its highest, the University submits that the only remedy that is available (which is not inconsistent with both Agreements) is an application of these workload clauses to any evidence that is found to be not compliant with them. It is submitted that there is no utility in an arbitration that reaches that outcome as the parties will apply both Agreements to manage workloads in any event. [33] Secondly, the University submits that the NTEU’s complaint about health and safety is framed as “an abundance of workplace safety issues” that are said to breach clause 9.1.10, clause 7.4.4, and the Work Health and Safety Act 2011 (NSW). The University submits that this is a procedurally unfair and ultimately incompetent allegation to make. It is submitted that the NTEU is alleging criminal conduct, and accordingly, there must be a precise articulation of the departure from health and safety duty. As a matter of procedural fairness, it is submitted that an allegation of an “abundance of conduct” is not open. The University submits that it should be informed with precise particulars of breaches. By its “abundance” allegation, the University submits that the NTEU is reversing the onus of proof and is attempting to make the University prove that it has complied with the WHS Act in every respect. It is contended that this cannot occur. [34] In any event, the University submits that the independent reviewer is able to consider any safety-related issues the NTEU has as part of its process of inviting feedback to support improvements (clause 9.1.19(e)) and as part of ascertaining whether objectives were met (including health and safety objectives) (clause 9.1.19(d)). [35] Further, independent review aside, the University submits that the terms of the Agreements deal with this allegation. The University submits that the concerns raised by the NTEU in its submissions are to be resolved by reference to the relevant Health and Safety Committee and, where required, the University’s Health and Safety Committee (clause 7.6.2 of the Agreements). Taking the NTEU’s allegations and their highest, the University submits that the Commission is only able to refer the parties to comply with this clause, which (taken together with the consultation processes that are set out in the WHS Act) the University contends are a superior mechanism to deal with the NTEU’s safety concerns. It is submitted that the NTEU’s proposed “determination” that there be a safety investigation conducted is the province of the committees that are referred to in clause 7.6.2 of the Agreements, which cannot be usurped. The University submits that there is therefore no utility in an arbitration which reaches that outcome. NTEU’s submissions [36] The NTEU submits that the Commission should exercise its discretion to arbitrate the disputes. The NTEU submits that both parties agreed to an arbitration at the conciliation conference three months ago, an arbitration was timetabled, the NTEU filed extensive written submissions and evidence, and the University did not raise its concerns about the disputes proceeding to arbitration until 19 February 2026. [37] The NTEU submits that the disputes concern consultation. Consultation regarding major workplace change is, so the NTEU submits, a central and important right of employees and sits [2026] FWC 727 10 at the heart of industrial relations both historically and at the present time. It is submitted that these principles must be borne in mind when the Commission considers whether to exercise its discretion to arbitrate. [38] The NTEU submits that a breach of the consultation obligations in the Agreement would result in a breach of section 50 of the Act. This can also lead to proceedings in the Federal Court, which the NTEU says it may be minded to pursue should it be unable to resolve the disputes through arbitration in the Commission. [39] While the University submits that an arbitration would be a poor use of time and resources, the NTEU submits that failing to use the opportunity to arbitrate these disputes in the Commission is what could lead to far more time and resource intensive proceedings for both parties as well as the Federal Court. Therefore, the NTEU submits that arbitration of disputes about consultation by the Commission is useful, important and considerate of resourcing. [40] The NTEU submits that clarifying the clauses in dispute is, in and of itself, important and fundamental to the utility of an arbitration. It is submitted that understanding the practical interpretation and application of the consultation clauses in question holds tremendous value for the NTEU and the University, both in respect of resolving the current disputes and also as to how the University proceeds with change management in the future. [41] The NTEU submits it must not be forgotten that the parties are currently in dispute as to the proper application of the terms of the Agreements. The parties have not been able to resolve their dispute through negotiation or conciliation. Therefore, the assistance of the Commission, through the making of an arbitrated determination, is necessary. Without this, the parties are left in the industrially undesirable situation where their disputes are unresolved. [42] As to the University’s submission concerning the exercise of judicial power by the Commission, the NTEU relies on paragraph [10] of the judgment in Re Cram; ex parte Newcastle Wallsend Co:6 “…the arbitral function includes the determination of a dispute relating to past transactions, events and conduct. Commercial arbitration often involves the determination of such a dispute. And so does industrial arbitration.” [43] The NTEU also relies on a recent decision of a Full Bench of the Commission in SC Hydro Pty Ltd v Construction, Forestry and Maritime Employees Union and Another [2026] FWCFB 27 (9 February 2026), where the Full Bench stated at paragraph [43]: “The submission of SC Hydro that making any ‘order’ or ‘determination’ requiring it to reclassify any employee, pay any employee in accordance with a different classification or back pay an employee subject of the dispute would involve the exercise of judicial power is misconceived. The Commission, when dealing with a dispute referred to it under an enterprise agreement, is able to make decisions in relation to the legal rights and liabilities of the parties because it does so with consent of the parties, rather than through the exercise of the coercive powers of the state. It is not thereby exercising the judicial power of the Commonwealth.” [44] Therefore, to the extent that NTEU in its application seeks remedies for past conduct, it submits that this cannot be construed as the exercise of judicial power. [2026] FWC 727 11 [45] The NTEU submits that the University has been unable to point to any clear terms of the Agreements which state, or even suggest, that the existence of alternative review mechanisms mean that the NTEU is apprehended from pursuing the disputes through arbitration in the Commission. It is submitted that the mere presence of alternative review mechanisms does not give rise to an inconsistency. [46] The NTEU submits that a review under clause 9.1.19 of the Agreements considers: (a) whether affected staff were made aware of the proposed change; (b) whether affected staff were provided with necessary information to facilitate genuine consultation on the proposed change; (c) whether the University genuinely considered the outcomes of the consultation process; (d) whether the final change proposal achieved its objectives; (e) feedback on the process to support improvements in future major workplace change consultation; and (f) a review of workloads and any impact on EDI groups. [47] The NTEU submits that the current disputes before the Commission are concerned with fundamentally different questions. The NTEU contends that University has failed to provide the information mandated by clause 9.1.10 of the Agreements and has not met its obligations regarding workplace health and safety. Whilst the review mechanism may touch on some of these matters, the NTEU submits that it will not directly answer the question of whether the University complied with its consultation obligations. Consideration [48] When the Commission is arbitrating a dispute pursuant to a dispute settlement procedure in an enterprise agreement it is not exercising judicial power, but is instead exercising a power of private arbitration.7 As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.8 That involves deciding “all questions both of law and of fact”9 that arise in the dispute, subject to any limitation on power in the dispute settlement clause10 and a requirement not to make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.11 [49] In the present case, the Commission has been asked to arbitrate disputes concerning whether the University complied with its obligations under the Agreement to consult with affected staff and to comply with the WHS Act in relation to the introduction of major workplace change. If the Commission exercises its discretion to arbitrate the disputes, it will, in its capacity as private arbitrator, decide “all questions both of law and of fact” that arise in the disputes.12 In so doing, the Commission will exercise the powers of private arbitration the parties to the Agreements have agreed to confer on the Commission, not judicial power.13 [2026] FWC 727 12 [50] The Commission must perform its functions and exercise its powers, including a power to arbitrate a dispute in accordance with a dispute resolution procedure in an enterprise agreement, in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.14 These matters are relevant to my consideration as to whether to exercise the discretion to arbitrate the disputes between the NTEU and the University. [51] One of the primary issues in dispute between the parties is the meaning of the expression “affected staff” in clause 9 of the Agreements. Under that provision, the University is obliged to consult with “affected staff” about major workplace change. The NTEU contends that the expression “affected staff” should be given a very broad meaning. The University contends for a much narrower construction. If the current disputes proceed to arbitration, the Commission will need to form an opinion as to the proper construction of the expression “affected staff” in order to “make a determination” under the dispute resolution procedure in clause 11.2. Expressing an opinion on that question and making a consequential determination will be of utility to both parties. First, it will resolve the current dispute between the NTEU and the University about whether the University complied with its consultation obligations under clause 9 of the Agreements when it introduced major workplace change in 2025. Secondly, it will assist the parties to understand how the consultation obligation in clause 9 may be met in any future workplace changes that take place during the operation of the Agreements. Notwithstanding that the major workplace changes discussed with staff in consultation during 2025 have been implemented by the University, these benefits will remain. The Commission does not have the power to order the payment of a penalty in respect of any breach of clause 9, and it may not be appropriate, or within power, for the Commission to grant any relief other than a determination concerning the alleged breaches of the Agreements. [52] True it is that the resources of the Commission are limited and are increasingly being spread across more matters. However, it is an important function of the Commission to assist parties to resolve disputes in accordance with dispute resolution procedures in enterprise agreements and modern awards. In the present case, there is a genuine dispute between the NTEU and the University in relation to alleged breaches of the Agreements in connection with major workplace changes introduced in 2025. The NTEU did not delay raising such disputes with the University or seeking the assistance of the Commission to deal with the disputes. Indeed, it was the University that delayed in raising a concern about the disputes proceeding to arbitration. The University could, and should, have raised any concerns it had about the disputes proceeding to arbitration at, or shortly after, the conclusion of the conciliation conference. By delaying raising such concerns until 19 February 2026, the determination of the disputes will also be delayed because it is not possible to retain the hearing dates of 30 and 31 March 2026. It is not sufficient for the University to say that “the Commission now has the benefit of the NTEU’s submissions dated 28 January 2026 and evidence to precisely inform itself whether there is utility in resolving the dispute it has raised”.15 It has been apparent since the s 739 applications were filed by the NTEU in the Commission that the disputes concern whether the University complied with its obligations under the Agreements in connection with the major workplace change introduced in 2025. The University’s delay in raising its concerns about the disputes proceeding to arbitration weighs against the University’s contention that the Commission should not exercise its discretion to arbitrate the disputes. [2026] FWC 727 13 [53] The “post implementation review” to be conducted “by a person independent of the major workplace change” in accordance with clause 9.1.18 of the Agreements is different to a determination by the Commission under clause 11.2 of the Agreements as to whether the University has complied with its obligations under clauses 9 and 7.4.4 of the Agreements. In accordance with clause 9.1.19, the “post implementation review” will consider, among other things, whether affected staff were made aware of the proposed change, whether they were provided with necessary information to facilitate genuine consultation on the proposed change, and whether the University genuinely considered the outcomes of the consultation process. This is different from a determination by the Commission as to whether the University complied with its consultation obligations under clause 9 and its obligations under the WHS Act under clause 7.4.4. Further, the Commission’s opinion as to the proper construction of the expression “affected staff” in clause 9 is likely to assist the independent reviewer to assess which “staff members affected by the major workplace change” should be given an opportunity to provide input into the review in accordance with clause 9.1.20 of the Agreements. Finally, there is nothing in the text or context of the Agreements to suggest that disputes concerning consultation on major workplace change cannot, or should not be able to, be dealt with under the dispute resolution procedure in clause 11.2, including the determination of such disputes by way of arbitration before the Commission. [54] I do not accept the University’s contentions that the Commission’s findings in the arbitration will fetter the independence of the review to be undertaken by the independent reviewer under clause 9.1.18 of the Agreements, will result in inferior fact-finding processes or outcomes, or will result in any significant duplication of efforts between the independent reviewer and the Commission. As I have explained, the independent “post implementation review” under clause 9.1.18 of the Agreements is a separate process, involving different questions, to the Commission’s determination of disputes concerning alleged failures by the University to comply with its obligations under clauses 7.4.4 and 9 of the Agreements. For example, one of the functions of the independent reviewer is to consider a review of workloads arising from the implementation of workplace change (clause 9.1.19(f)). In contrast, the Commission may be required to consider, as part of its determination as to whether the University complied with its consultation obligations under clause 9, whether the University provided information to affected staff and their Representatives about the matters identified in clause 9.1.10, including “staff workload … implications of the proposed change” (clause 9.1.10(e)). These are different questions, involving different considerations at different points of time. [55] As to the work, health and safety aspect of the disputes, there is nothing in the text or context of the Agreements to suggest that disputes concerning whether the University has complied with its obligations under the WHS Act must, or should, be dealt with by a relevant health and safety committee at the University, rather than through the dispute resolution procedure. I accept that there is a real question about whether the Commission could, or should, determine that there be a safety investigation conducted, as proposed by the NTEU. However, the Commission can determine by way of arbitration whether the University has met its obligation under clause 7.4.4 of the Agreements to “comply with its obligations under … State work health and safety legislation”. In so doing, the Commission will not fetter the ability of any health and safety committee at the University to consider safety concerns under clause 7.6.2 of the Agreements or to assess the nature of any hazards, risks or the implementation of control measures. Nor will the binding determinations made by the Commission in arbitration result in inferior fact finding processes or inferior fact finding outcomes. The Commission will [2026] FWC 727 14 determine any properly particularised allegations of breaches of the WHS Act on the basis of the evidence presented to the Commission. Any health and safety committee at the University will obtain the information it requires to carry out is functions under the Agreements, including considering safety concerns and identifying and assessing hazards, risks and control measures. [56] For the reasons given, I do not accept the University’s contention that arbitrating the disputes lacks utility and would be inconsistent with the Agreements. Having regard to all the circumstances, I am satisfied that it is appropriate to exercise my discretion to arbitrate the disputes make appropriate determinations in relation to them. [57] I am, however, concerned about the lack of precision in the questions posed by the NTEU for determination and the absence of proper particulars in relation to the alleged breaches of the Agreements. I therefore direct the NTEU to provide the following particulars by 4pm on 11 March 2026: (a) As to consultation: (i) Particularise which obligations within clause 9.1 of the Agreements the NTEU contends have been breached by the University and how they have been breached. For example, does the NTEU contend that the University breached its obligation under clause 9.1.10(e) of the Agreements by failing to provide information to affected staff and their Representatives about staffing workload implications of the proposed change? (ii) Does the NTEU contend that the University failed to meet its obligation to consult under any provision other than clause 9 of the Agreements? If so, identify the particular clauses and particularise which obligations within those clauses the NTEU contends have been breached by the University and how they have been breached. (b) As to work, health and safety: (i) Identify each section of the WHS Act which the NTEU contends the University has breached in connection with the major workplace changed introduced in 2025. (ii) In respect of each section identified in accordance with (b)(i) above, particularise which obligation(s) within those sections of the WHS Act the NTEU contends have been breached by the University and how each of them has been breached. (c) Within the scope of the current proceedings (C2025/11078 and C2025/11287), does the NTEU contend that the University has breached any provision of the Agreements, other than those identified in answer to questions (a) and (b) above? If so, identify the particular clauses and particularise which obligations within those clauses the NTEU contends have been breached by the University and how they have been breached. [2026] FWC 727 15 (d) Does the NTEU seek any relief other than that identified in paragraph 55 of its submissions dated 28 January 2026? If so, identify the relief sought. Conclusion [58] I reject the University’s application for the proceedings to be dismissed. [59] Both matters are listed for directions, by telephone, at 10am on 20 March 2026.At that time, I will discuss with the parties the making of directions to prepare the disputes for arbitration, as well as the dates for the arbitration in the Commission. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR797353> 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 See, for example, Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134; Attorney General for NSW v Tillman [2007] NSWCA 119 at [30]–[37] 5 Cf Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348 at [48]-[49] 6 (1987) 163 CLR 140, 149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) 7 CFMEU v AIRC [2001] HCA 16; (2001) 203 CLR 645 at [30]-[31]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]; SC Hydro Pty Ltd v CFMEU [2026] FWCFC 26 at [17] 8 CFMEU v AIRC [2001] HCA 16; (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]- [24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36] 9 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36] 10 Section 739(3) of the Act 11 Section 739(5) of the Act 12 AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36] 13 SC Hydro Pty Ltd v CFMEU [2026] FWCFC 26 at [17] [2026] FWC 727 16 14 Section 577 of the Act 15 University’s written submissions dated 19 February 2026 at [11]