1 Fair Work Act 2009 s.604—Appeal of decision Ausgrid Management Pty Ltd t/a Ausgrid v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2025/6828) VICE PRESIDENT ASBURY DEPUTY PRESIDENT EASTON DEPUTY PRESIDENT ROBERTS BRISBANE, 10 APRIL 2026 Appeal against decision [2025] FWC 1896 of Deputy President Wright at Sydney on 2 July 2025 in matters C2025/3378 – Dispute regarding implementation of classification level progression – correctness standard - ordinary meaning of the terms of the agreement – imputed purpose of the contested provision – Permission to appeal granted – Appeal allowed to the extent set out in the decision – Revised answers given. [1] Ausgrid Management Pty Ltd trading as Ausgrid (Ausgrid/Appellant) has made an application pursuant to s 604 of the Fair Work Act 2009 (Cth) (FW Act) for permission to appeal and to appeal the Decision of Deputy President Wright (the Decision)1 issued on 2 July 2025. The Deputy President determined a dispute in relation to the implementation of classification level progressions in the Ausgrid Enterprise Agreement 2024 (2024 Agreement). The Respondent in the appeal is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU). [2] Ausgrid sought a stay of the decision at first instance. The stay application was resolved by the ETU agreeing not take any steps to enforce the Decision pending the outcome of the appeal. [3] In bargaining for the 2024 Agreement, the bargaining representatives reached an in- principle agreement on 4 December 2024.2 There were two significant elements to the agreement that led to the present dispute: (a) the initial wage increases were to be back paid to an agreed date, 1 September 2024; and (b) wages increases were delivered over the life of the Agreement by a mixture of percentage wage increases and either guaranteed progressions through the pay levels under the Agreement or Top of Band payments as applicable. [4] The in-principle agreement provided the following remuneration increases: [2026] FWCFB 76 DECISION [2026] FWCFB 76 2 (a) 1 September 2024: 7% wage increase, .5% super increase and guaranteed single level progression (or Top of Band payment); (b) 1 July 2025: guaranteed single level progression (or Top of Band payment); (c) 1 September 2025: CPI or 3% wage increase, .5% super increase, no progression or Top of Band payment; (d) 1 September 2026: CPI or 3% wage increase; and (e) 1 July 2027: progression in accordance with the remuneration and progression framework (subject to performance). [5] Appendix 4 of the 2024 Agreement provides a Remuneration and Progression (R&P) Framework. Clause 11 of Appendix 4 regulates progression to higher levels and bands. Progression under clauses 11.1 and 11.2 is closely linked to the Annual Review and Feedback Cycle contained in clause 10. To implement the progressions referred to above, and to provide “guaranteed” progressions that are not subject to the Annual Review and Feedback Cycle, a new clause 20 was inserted into Appendix 4 that excluded the operation of clause 11.2 for the FY25 Annual Review and Feedback Cycle and the FY26 Annual Review and Feedback Cycle. [6] The dispute before the Deputy President was in relation to the first line of the table in clause 20.1 of Appendix 4. The whole table is as follows: 20.1 The following implementation rules apply and exclude Clause 11.2 (Progression) and Clause 19 (Top of Band) of this Appendix: Date Progression & Top of Band 1 SEPTEMBER 2024 Commencement of Agreement Progression: 1 Level (single and multi band roles); or Top of Band: $2,500* 1 July 2025 FY25 Annual Review and Feedback Cycle Progression: 1 Level (single and multi band roles); or Top of Band: $2,500 1 July 2026 FY26 Annual Review and Feedback Cycle Progression: No Level progression Top of Band: No Top of Band payment 1 July 2026 to 30 June 2027 FY27 Annual Review and Feedback Cycle Clause 20 of this Appendix does not apply to the FY27 annual review & feedback cycle. * Paid from the first full pay cycle that occurs 7 business days following notification of approval of the Ausgrid Enterprise Agreement 2024 by the FWC [7] The dispute focused on the treatment of employees who commenced employment or progressed to a higher level between 1 September 2024 and the commencement of the 2024 Agreement on 14 February 2025. In short, the ETU argued that these employees must receive a single level progression on top of the level that they held at the commencement of the Agreement in February 2025 (the event referred to in the column on the right). Ausgrid argued [2026] FWCFB 76 3 that employees must receive an additional progression on top of the level they held on 1 September 2024 (the date referred to in column on the left). [8] The question before the Commission at first instance was: Does the first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provide employees with one level of progression based on the level that the employee held on 1 September 2024 or the level they held on the commencement of the Agreement (14 February 2025)?3 [9] In the Decision the Deputy President outlined the factual background,4 summarised the competing submissions,5 recited the orthodox principles for interpreting enterprise agreements,6 and identified the relevant provisions of the 2024 Agreement.7 The Deputy President’s very helpful summary of Appendix 4 was as follows: “[64] Appendix 4 is headed ‘Remuneration and Progression (RP) Framework’ and attaches different pay rates tables for the Power Worker Stream, the Engineering Stream and the Functional Services Stream. Each of the tables have rates of pay from 1 September 2024, from 1 September 2025 and 1 September 2026. [65] Clauses 1.1 – 1.3 of Appendix 4 explain that the R & P Framework is a broad-banded pay and classification structure to provide opportunity for career progression which comes into effect on commencement of the 2024 Agreement, in accordance with Clause 20 of Appendix 4, and replaces the previous CCR framework. Clause 1.6 explains that progression to Levels (pay levels) within a Band (single or multi banded) will occur each year unless the employee has underperformed pursuant to Clause 10.1 of Appendix 4. [66] Clause 10 of Appendix 4 deals with the annual review and feedback cycle. Clause 10.2 provides that the review and feedback process is an annual cycle, based on the Financial Year from July 1 to 30 June. If it were not for clause 20 of Appendix 4, the feedback cycles during the nominal term of the 2024 Agreement would be from 1 July 2024-30 June 2025, 1 July 2025-30 June 2026, and 1 July 2026-30 June 2027. Clause 10.3 provides that following the conclusion of the annual review and feedback cycle, employees will receive notification of their outcome which will include eligibility for progression. [67] Under clause 11.1 of Appendix 4, progression to a higher Level in a Band is based on the employee’s annual overall outcome. As noted above, clauses 11.2.1 and 11.2.2 provide that an employee will move one level in their band if they have completed at least 6 months of the annual review and feedback cycle at their existing level of that Band and they have not underperformed in their current Role. Clause 11.2.3 provides that subject to Clause 12 of Appendix 4, (which deals with Merit and Streamlined Promotion to a higher Band) an employee can only move one level in any one annual review cycle. [68] Clause 19 provides that employees are eligible for a ‘Top of Band’ Recognition Incentive Payment of $2,500, if they have satisfied requirements of the annual review and feedback cycle, been at the highest Level within their respective Band, for the 12 month period prior to 30 June and are not eligible to progress to another Band or eligible for progression due to salary maintenance or grandparenting arrangements. [69] Clauses 11.1 and 19 are modified by clause 20 of Appendix 4. If clause 20 did not apply, employees would complete an annual review and feedback cycle for the financial years ending 30 June 2025 and 30 June 2026 and employees would be eligible to progress one level on 1 July 2025 and again on 1 July 2026. The effect of clause 20 is that employees progress one level on the date that the 2024 Agreement commences (although the date that this takes effect is in dispute) and on 1 July 2025 but do not progress on 1 July 2026. The initial level increase at commencement of the 2024 Agreement is not referable to an annual review and feedback cycle as the cycle for the financial years ending 30 June 2024 is covered by the 2021 Agreement. [2026] FWCFB 76 4 [70] Clause 20 does not apply to the annual review and feedback cycle for the financial year ending 30 June 2027, so employees are required to satisfy the requirements of 11.1 and 19 to be eligible for progression or a ‘Top of Band’ Recognition Incentive Payment of $2,500 on 1 July 2027.” [10] The Deputy President considered the circumstances of an ETU member, Mr Ryan Pike.8 Mr Pike was promoted to a new position on 21 October 2024. The Deputy President compared Mr Pike’s salary progression over the life of the Agreement under three different scenarios: (a) if clause 20 did not apply at all and Annual Review and Feedback Cycles in clauses 10 and 11 applied (and there were no performance issues for Mr Pike); and (b) if clause 20 applied according to the ETU’s interpretation; and (c) if clause 20 applied according to Ausgrid’s interpretation. [11] According to the Deputy President’s analysis, Mr Pike’s annual salary at the end of the 2024 Agreement in the first and second scenarios would be $175,028. If Ausgrid’s interpretation of clause 20 is applied, Mr Pike’s annual salary at the end of the 2024 Agreement would be $167, 974.9 [12] From [80] onwards the Deputy President directly considered the meaning of clause 20 in Appendix 4 of the 2024 Agreement and its interrelationship with clause 11. [13] At [83] the Deputy President suggested that it was significant that clause 20 does not expressly exclude new employees from the first guaranteed progression level increase: “If ‘1 September 2024’ refers to the date that the first one level progression takes effect, this results in only employees covered by the 2024 Agreement who were employed on 1 September 2024 receiving the first one level progression. However, there is nothing in the text of the document which provides that such employees are excluded from this entitlement…. Once clause 11.2.1 no longer applied to clause 20, there is no specific provision which excludes certain employees from the first level increase, therefore the reference to ‘1 September 2024’ needs to be read in that context.” [14] At [84]-[85] the Deputy President found that the purposes of clause 20 are to “provide employees with a benefit” and “to be more beneficial to employees than clause 11 in relation to level progression”: “… Under clause 11.2 of the 2024 Agreement an employee can progress beyond level 2 of their Band if they simply ‘Meet Expectations’, whereas this was not available under the 2021 Agreement which required an employee to ‘Exceed Expectations’ to progress beyond this level. Clause 20 appears to provide an additional benefit. Under clause 11, an employee would be entitled to progress one level each year during the term of the 2024 Agreement on 1 July 2025, 1 July 2026 and 1 July 2027 if there are no performance issues. Clause 20 does not provide for level progression on 1 July 2026 but provides for it to occur on commencement of the 2024 Agreement… … one of the purposes of clause 20 in ‘giving people a progression point at the beginning’ was to provide employees with a benefit, namely two consecutive level increases at an earlier stage than provided by clause 11. In many ways this is self-evident from the timing of the level progressions in clause 20 compared to clause 11. However, on Ausgrid’s construction of clause 20, employees who were not employed or were promoted during the period from 1 September 2024 to 14 February 2025 are worse off than if clause 11 applied. In my view, clause 20 should be construed in a way that gives effect to its purpose to be more beneficial to employees than clause 11 in relation to level progression, which favours the ETU’s construction of the clause.” [Emphasis added]. [2026] FWCFB 76 5 [15] In other words, the Deputy President preferred the ETU’s construction of clause 20 because some employees are “worse off” under Ausgrid’s construction compared to clause 11. The Deputy President found that the ETU’s construction was more consistent with the purpose of clause 20, being to provide employees with a benefit, and to be more beneficial than clause 11. [16] The Deputy President found at [86] that the reference to ‘1 September 2024’ in clause 20 is a reference to the date which an employee should be paid the level they are appointed to at commencement of the 2024 Agreement: “In addition to clause 20 of Appendix 4, ‘1 September 2024’ is also referred to in numerous provisions of the 2024 Agreement, including the pay rates tables and clause 14.1. In these provisions, 1 September 2024 is generally the date that new pay rates, superannuation and allowances take effect from. However, 1 September 2024 is also referred to in Clause 14.1 in the context of a back payment adjustment. Clause 14.1 states that ‘Employees covered by this Agreement as classified in ... Appendix 4 … are to be paid the appropriate wages or salary according to their appointed position as per….Appendix 4.’ In clause 20 of Appendix 4, employees are to progress by one level upon ‘Commencement of Agreement’ which is the employee’s ‘appointed position’ as provided by clause 14.1. The employee then ‘receive[s] a backpay adjustment to 1 September 2024 [which] will be paid within the first full pay cycle that occurs 7 business days following notification of approval of the Ausgrid Enterprise Agreement 2024 by the FWC.’ In my view, when clause 14.1 and clause 20 of Appendix 4 are read together, this favours the construction advanced by the ETU that ‘1 September 2024’ refers to the date which an employee should be paid the level they are appointed to at commencement of the 2024 Agreement. However, I do not accept that an employee who commenced employment or was promoted after 1 September 2024 is entitled to receive backpay to 1 September 2024.” [17] The Deputy President recorded her conclusions at [89]-[90]: “Having regard to the ordinary meaning of the words in clause 20 of Appendix 4 read as a whole and in context I have determined that employees are entitled to one level of progression based on the level that the employee held on the commencement of the 2024 Agreement. In reaching this conclusion, I have had regard to the following: a. There is nothing in the text of the document which provides that employees who were employed after 1 September 2024 are excluded from this entitlement; b. This construction gives effect to the purpose of clause 20 to be more beneficial to employees than clause 11 in relation to level progression; and c. When clause 14.1 and clause 20 of Appendix 4 are read together, this favours a construction of clause 20 that ‘1 September 2024’ refers to the date which an employee should be paid the level they are appointed to at commencement of the 2024 Agreement. In relation to the parties’ agreed question for determination, I have determined that the first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provides employees with one level of progression based on the level that the employee held on the commencement of the Agreement (14 February 2025). However, for the reasons stated, I believe that employees who commenced employment or were promoted after 1 September 2024 are entitled to a backpay adjustment in respect of the level progression from the date or commencement of employment or promotion.” Grounds of Appeal [18] The following grounds of appeal were raised by Ausgrid: 1. The Deputy President misconstrued the Disputed Clause and therefore erred in determining that: [2026] FWCFB 76 6 a. “employees are entitled to one level of progression based on the level that the employee held on the commencement of the 2024 Agreement” (at [86] of the Decision); and b. “In relation to the parties’ agreed question for determination, I have determined that the first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provides employees with one level of progression based on the level that the employee held on the commencement of the Agreement (14 February 2025)” (at [90] of the Decision). 2. The Deputy President erred in imputing a purpose to the Disputed Clause (at [85] of the Decision) that is not available on either a plain reading of the clause or the evidence before the Deputy President. 3. The Deputy President erred in taking into account the circumstances of Mr Ryan Pike (at [71]-[79] of the Decision) when construing the Disputed Clause. 4. The Deputy President misunderstood the evidence of Mr Peter Kramel and therefore erred in relying on that evidence when construing the Disputed Clause (at [83]-[84] of the Decision) Ausgrid’s Submissions [19] Ground one of the appeal is that the Deputy President misconstrued the disputed clause and therefore erred in her determination of the dispute. Ausgrid submitted that the ordinary meaning of the first row of the table in clause 20.1 of Appendix 4 of the 2024 Agreement is: “(a) the column on the left-hand side of the table, labelled “Date”, sets out the effective date for each of the events in that row of the table, that is, the date on which each event is to be assessed and back paid to, if required; and (b) the column on the right-hand side, labelled “Progression & Top of Band”, sets out what events, being level progressions and top of band payments, will occur on the dates specified. The heading in bold and italics in each row of the table in the column on the right-hand side provides details as to when those progressions and payments will be implemented.” [20] Ausgrid submitted that the purpose of clause 20 is to put employees in the place they would have been if the Agreement had commenced on 1 September 2024. Ausgrid said that the phrase “Effective 1 September 2024” is only consistent with the purpose advanced by Ausgrid. [21] Ausgrid contended the ETU’s construction was incorrect on four bases: (a) It would put employees in a different, and most likely better, position than they would have been in if the agreement took effect on 1 September 2024. (b) The language used in the disputed clause does not suggest that the dates in the left-hand column of the table only apply to back pay and not for progression or top of band payments and in fact, these considerations go ‘hand in glove’. (c) The date that the Agreement commenced was unknown, but the ETU’s interpretation suggests that employees who were employed on or before 14 February 2025 would have benefits not provided to those employed from 15 February 2025. (d) Existing employees promoted between 1 September 2024 and 14 February 2025 would receive back pay at the rate one level above the level that they were appointed to from 1 September 2024, which would be inconsistent with clause 14.1 of the 2024 Agreement. [22] On this basis Ausgrid submitted that the Deputy President misconstrued the 2024 Agreement and erred in determining the question for arbitration. Further, the additional back [2026] FWCFB 76 7 pay scenarios considered by the Deputy President were not advanced by either party and were divorced from the wording of the clause.10 Ausgrid contended that the absurdity of the ETU’s construction of the clause is demonstrated by the Deputy President’s attempt to find a middle ground in a result not intended by parties. Ausgrid said that the need to create these exceptions to the construction arise because of the seeming illogicality in the outcomes that arise from the ETU’s construction and as an attempt to remedy that by importing these caveats or exceptions which do not arise on the text. [23] Ground two of the appeal is that the Deputy President erred in imputing a purpose to clause 20 that is not available on either a plain reading of the clause or the admissible evidence. The Deputy President found at [84]-[85] that the purposes of clause 20 are to “provide employees with a benefit” and “to be more beneficial to employees than clause 11 in relation to level progression”. [24] Ausgrid submitted that the Deputy President identified a purpose that is not evident from the words of the disputed clause; relied on inadmissible extrinsic evidence (as there was no common understanding and the reasons why particular guaranteed level progressions were included were disputed); and that clause 11.2 of Appendix 4 is not relevant to the interpretation and construction of the disputed clause because the FY24 Annual Review and Feedback Cycle was governed by the 2021 Agreement. On either party’s construction of the 2024 Agreement, clause 20 achieves a more beneficial outcome than clause 11.2. [25] Ground three of the appeal is that the Deputy President erred in taking into account the circumstances of Mr Pike in [71]-[79] when construing the disputed clause. It was submitted that using the evidence of Mr Pike as assistance to understanding the ETU’s submissions and providing context to the disputed clause was an impermissible use of extrinsic evidence to construe the provision. [26] Ausgrid submitted that Mr Pike’s evidence was not admissible on the basis that a reading of the disputed clause cannot be informed by unique circumstances of a singular employee and the circumstances of Mr Pike were not objective background facts known to both parties. In addition, there was no evidence that Mr Pike’s circumstances were considered at the time that the in-principle agreement was reached. The tables in [77] and [79] were not provided by the parties but were wholly constructed by the Deputy President. More so, neither party sought to compare Mr Pike’s circumstances to a scenario where only clause 11.2 applied. [27] Ausgrid contended that the admissible evidence was set out in the correspondence between the parties at the time the in-principle agreement was reached on 3 December 2024 and in the joint statement issued to employees on 4 December 2024. It was submitted that these documents indicate that the first guaranteed level of progression would be ‘effective as of 1 September 2024’ not that progression would be assessed on or effective from the date the agreement commenced. It was submitted that the Deputy President did not consider these documents outside of providing the factual background and that they are the only admissible extrinsic evidence. [28] It is further submitted that the Deputy President should not have considered the fairness, justice or merits of the competing interpretations because such matters are irrelevant. [2026] FWCFB 76 8 [29] Ground four of the appeal is that the Deputy President misunderstood the evidence of Mr Kramel and erred in relying on it when construing the disputed clause. It was submitted that the evidence before the Deputy President was that the reason clause 11.2 was excluded from clause 20 of Appendix 4 was for the purpose of ensuring employees who were newly employed or promoted within six months before 1 September 2024 and 1 July 2025 were not excluded from the guaranteed level progression in the disputed clause. It was submitted that this was not in dispute and went only so far as to show that employees were eligible for progression on the relevant dates. It was submitted that the Deputy President incorrectly proceeded on the basis that this exclusion had a bearing on new employees or employees promoted after 1 September 2024, which is a different issue to what was discussed in the evidence of Mr Kramel. It was submitted that the reliance on this misunderstanding was used in the interpretation of the dispute clause and the Deputy President therefore erred in her construction of the clause. [30] On this basis, Ausgrid asked the Full Bench grant permission to appeal, uphold the appeal grounds and in result, set aside the decision at first instance, redetermine the question for arbitration in Ausgrid’s favour and make an order that answers the question for determination by the Commission to the effect of ‘1 September 2024’. The ETU’s Submissions [31] In response to ground one, the ETU submitted that Ausgrid had not provided an adequate explanation for why the words “Commencement of Agreement” appear in the table and that there is no evidence to support Ausgrid’s suggestion that the words provide details as to when the progressions and payments will be implemented. It was submitted that this interpretation also cannot be reconciled with other sections of the clause. [32] The ETU also submitted that the Deputy President’s construction is more consistent with Appendix 4 read as a whole, particularly clauses 1.1 to 1.3 of Appendix 4: “1.1 The R&P Framework is a broad-banded pay and classification structure to provide opportunity for career progression… 1.3 The R&P Framework will come into effect on commencement of this Agreement in accordance with Clause 20 of this Appendix.” (emphasis added by Respondent) [33] The ETU submitted that because the R&P framework could not to come into effect until the commencement of the 2024 Agreement, progression under clause 20 could not take place at an earlier date and the first single level progression occurred on the commencement of the 2024 Agreement. [34] The ETU also points to other similar entitlements in the 2024 Agreement, including in Appendix 1E and 1D which provide a payment of $2,500 on commencement of the agreement to trainees and cadets respectively. It was submitted that the top band payment applies similarly, and it follows that parties likely intended that the automatic band progression, being proximate to the $2,500 payment, would occur at the same time. [35] In response to ground 2 the ETU submitted firstly, that the Deputy President at paragraphs [84] and [85] identified the purpose of the disputed clause from the words of the 2024 Agreement, and by contrasting it to clause 11. It was submitted that the Deputy President reached a conclusion on the meaning of the clause without reference to extrinsic evidence, [2026] FWCFB 76 9 which is further supported by the Deputy Presidents reasoning at paragraph [89]. Secondly, it was submitted that to the extent that the Deputy President relied on the evidence of Mr Sweeting to determine the purpose of clause 20, the imputation was open on the evidence such as in joint communications which referred to the ‘guaranteed single level progression’ which aligns with the view that clause 20 was intended to be more beneficial to employees than clause 11. It was submitted that Ausgrid also conceded in their submissions that clause 20 was more beneficial than clause 11.2 for employees. Thirdly, it was submitted that clause 11.2 was relevant to the construction of clause 20 as it sets out the progression of an employee had clause 20 not been included in the 2024 Agreement and that the Deputy President had favoured ETU’s construction of clause 20 because it was more favourable to the employee than if the provision did not apply, whereas taking Ausgrid’s construction, clause 20 would be less favourable than clause 11 to employees who were not employed or were promoted during the period of 1 September 2024 to 14 February 2025. The ETU also submitted that the Full Bench should exercise appellate restraint in considering this ground of appeal. [36] Regarding ground 3, the ETU submitted that the Deputy President used Mr Pike’s circumstances to illustrate each parties’ construction of the 2024 Agreement and to make the competing constructions more understandable. [37] The ETU relied on the Deputy President’s words in [71] that “it is helpful to consider the practical implications of the parties’ respective positions by reference to circumstances of Mr Ryan Pike”. [38] With respect to ground 4, the ETU submitted that the Deputy President did not misunderstand the evidence of Mr Kramel and did not use that evidence to construe clause 20. The ETU submitted that paragraph [83] of the decision is the conclusion that the 2024 Agreement does not exclude certain employees from clause 20 and that this context is relevant to determining the ordinary meaning of the clause. [39] The ETU further submitted that it was also open for the Deputy President to find that clause 11.2 was excluded from clause 20 to ensure employees were not excluded from the two- level increases and that this is evident from the uncontested evidence of Mr Kramel. [40] The ETU concluded that permission to appeal should be refused and the appeal dismissed. In the event that the appeal is upheld, the ETU submitted that the Commission should adopt and maintain the construction of the Deputy President. Permission to Appeal [41] The ordinary position under s 604 of the Act is that a person aggrieved by a decision of the Commission may only appeal with permission. However, when dealing with a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission is dealing with the matter by private arbitration. The nature and extent of the function to be undertaken by the Commission is determined by the agreement of the parties, including the availability and nature of any appeal. The parties may agree that there will be a right of appeal or remove or modify the requirements ordinarily applicable to an appeal under s 604 of the Act, including the need for permission to appeal.11 [2026] FWCFB 76 10 [42] The dispute resolution procedure in the 2024 Agreement contains the following in clause 41.2: “If the issues remain unresolved after Tier 2 the matter may be referred to the FWC for conciliation in the first place then arbitration with the rights of the parties to appeal being reserved.” [Emphasis added] [43] This provision does not appear to confer any new or separate right to appeal, but merely “reserve” whatever appeal rights a disputant might otherwise have. The parties did not provide submissions on this point and we are content to assume that the 2024 Agreement does not alter the appeal rights under the FW Act. [44] Ausgrid submitted that it is in the public interest to grant the appeal on the basis that it raises a question of general application about the correct approach to constructing an enterprise agreement and that it is particularly important in this matter where the financial consequences of the decision will be significant. It was submitted that the resolution of the decision will have consequences beyond the parties in the dispute. Ausgrid also submitted that there is an arguable case of appealable error in respect of each ground of appeal in this matter. [45] The ETU submitted that this appeal does not raise questions of general application or invoke public interest as it is regarding one-off level increases as a part of the 2024 Agreement which will no longer be applicable once implemented. Further, nothing in clause 20 is bespoke or would assist in the construction of other enterprise agreements. It is also suggested that there is no evidence that an additional spend of $2.93 million across the lifespan of the 2024 Agreement would have an impact of significance on Ausgrid or how this would enliven public interest and there is no evidence provided to the Full Bench of the financial consequences of the Decision. Additionally, there is no legal novelty as Ausgrid does not critique the established legal principles set out by the Deputy President in her Decision. The ETU also submitted that the Deputy President correctly applied legal principles, and no case of appealable error has been set out. It is noted that an error at first instance is also not a sufficient basis to grant permission to appeal, particularly in a circumstance where the ETU requested an expedited decision. [46] The Decision concerns the proper construction of the 2024 Agreement. The Decision did not involve the exercise of discretion. The answer given by the Deputy President to the proper construction of the 2024 Agreement is either correct or incorrect. In this regard the appeal is to be determined by the ‘correctness standard’.12 [47] We have decided to grant permission to appeal because the matter raises issues of general importance, being the interaction between the intention of a provision in an enterprise agreement and the ordinary meaning of the text of the provision. We are also satisfied that that there is an arguable case of appealable error in this matter. Consideration - Appeal Ground 1 – Construction of the disputed clause [48] In applying the correctness standard, we are respectfully obliged to uphold the appeal and quash the Deputy President’s decision. In our view the Deputy President erred in construing clause 20 of Appendix 4 of the 2024 Agreement (Appeal Ground 1). [2026] FWCFB 76 11 [49] Like many enterprise agreements in this sector, the terms of the 2024 Agreement generally, and Appendix 4 specifically, are complex and convoluted. For example, Appendix 4 – Remuneration and Progression Framework – has 20 clauses with more than 100 separate sub- clauses, as well as two Attachments. The Deputy President’s task was not assisted by careful drafting. [50] We are nonetheless satisfied that the ordinary meaning of the words in the table in clause 20 of Appendix 4 of the 2024 Agreement are clear enough to carry an enforceable meaning: The dates in the left column are the operative dates for the changes in salaries arising from the events described in the right column. In the first row the progression or Top of Band payment referred to in the right column is applied to the operative date in the left column. [51] The first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provides employees with one level of progression based on the level that the employee held on 1 September 2024. The words “Commencement of Agreement” in the right column are not a reference to an operative date – indeed none of the other rows contain references to dates in the right column. The bolded text of the heading in each row of the right-hand column supports the view that the words all describe a particular event, rather than an operative date. We agree with Ausgrid that the purpose of clause 20 is to put employees in the place they would have been, with a one-step progression, if the Agreement had commenced on 1 September 2024. [52] The rows in the table are described in the chapeau as “implementation rules.” In the first row of the table, being the first implementation rule, the wage increases and one-step progression to be implemented upon commencement of the Agreement have an operative date of 1 September 2024. This understanding of the table in clause 20.1 of Annexure 4 is consistent with clause 14.1 of the 2024 Agreement: “Employees covered by this Agreement as classified in Appendix 1A, 1B, 1C 1D,1E and Appendix 4 are to be paid the appropriate wages or salary according to their appointed position as per Appendix 1 or Appendix 4. Wages and salaries under this agreement are shown in Appendix 1 and Appendix 4. They reflect the increases and dates of effect set out in the table below. … Employees will receive a back payment adjustment to 1 September 2024 and this will be paid within the first full pay cycle that occurs 7 business days following notification of approval of the Ausgrid Enterprise Agreement 2024 by the FWC.” [Emphasis added [53] In the same way, the one-step progression for the “FY25 Annual Review and Feedback Cycle” has an operative date of 1 July 2025 in accordance with the second row of the table in clause 20.1. This implementation rule for the FY25 Annual Review and Feedback Cycle applies to the exclusion of clause 11.2. [54] The meaning of the first row in clause 20.1 is straightforward for employees whose circumstances did not change between 1 September 2024 and 14 February 2025. After the 2024 Agreement commenced those employees had a guaranteed single level progression back paid to 1 September 2024 as if they had progressed one level on 1 September 2024. The result of the competing constructions for these employees is identical – upon commencement of the Agreement employees receive a back payment to put them in the same position as if a single level progression had applied from 1 September 2024. [2026] FWCFB 76 12 [55] The construction, accepted by the Deputy President, is not borne out by the text of clause 20. There is no discernible basis within the text of clause 20 to find that employees who commenced employment or who were promoted between 1 September 2024 and 14 February 2025 receive a one-level progression on the level they held at the date of commencement of the Agreement (14 February 2025), backdated to 1 September 2024 but adjusted to the date of commencement of employment or adjusted to the date of the promotion as found by the Deputy President. Consideration - Appeal Ground 4 – Use of evidence – Kramel [56] It seems unlikely that those who drafted clause 20 turned their minds to the question the Deputy President was called upon to answer. There was no evidence of any bargaining representatives addressing the treatment of new employees or promoted employees prior to the making of the 2024 Agreement – at least in relation to whether employees who commenced employment or who were promoted between 1 September 2024 and 14 February 2025 receive a one-level progression on the level they held on 14 February 2025. [57] The email exchange between Mr Kramel, Mr Sweeting and Mr York,13 goes no further than showing that all employees were eligible for the “guaranteed” progression on the relevant dates, and that clause 20 is intended to override the requirement in clause 11.2 that employees must have been at their level for at least 6 months to be eligible to progress to the next level. Any intentions that Mr York and Mr Kramel expressed in the email exchange are subjective and do not constitute objective background facts. We do not read the Deputy President’s Decision at [83] as indicating reliance on the evidence of Mr Kramel when construing the disputed clause. On a fair reading of that paragraph, and preceding paragraphs, the Deputy President was simply indicating that the email exchange of 10 December 2024 provided context for the construction of the 2024 Agreement and that regardless of Mr Kramel’s intention with respect to the amendment to clause 20, the effect was to exclude clause 11.2. The observation about this matter indicates that at best, the Deputy President viewed the email exchange as being consistent with her construction of the disputed term. The correctness of that construction has been dealt with in other grounds of appeal, and nothing turns on the observation which is the subject of appeal ground 4. We therefore dismiss Appeal Ground 4. Consideration - Appeal Ground 2 – Imputed purpose of the disputed clause [58] Quite obviously the ETU’s construction of clause 20 delivers a better outcome for some employees. Employees who were promoted to a higher pay level between 1 September 2024 and 14 February 2025 would, under the ETU’s construction, progress a further step on 14 February 2025. The evidence of Mr Pike and the Deputy President’s analysis of that evidence at [71] to [79] quantifies that better outcome for Mr Pike. [59] The Deputy President also found at [85], based on her analysis of Mr Pike’s circumstances, that “on Ausgrid’s construction of clause 20, employees who were not employed or were promoted during the period from 1 September 2024 to 14 February 2025 are worse off than if clause 11 applied.” [2026] FWCFB 76 13 [60] The Deputy President found at [84] that clause 20 was intended to provide an “additional benefit” over clause 11 and found at [85] that clause 20 was intended to be “more beneficial than clause 11”. [61] These two findings were central to the Deputy President’s reasoning: Ausgrid’s construction was rejected because it was not consistent with these purposes and/or the ETU’s construction was preferred because it was more consistent with these two objectives. [62] In most disputes about the proper construction of enterprise agreements there is a contest about what benefits must be provided to employees. It is well-recognised that the task of interpreting an agreement does not involve rewriting an agreement to achieve what might be regarded as a fair or just outcome.14 To reject a particular construction on the basis that it is more disadvantageous to an employer or employee (or group of employees) than another available construction is therefore problematic. It is apparent from the Deputy President’s reasons however that the Deputy President did not simply prefer the ETU’s construction of clause 20 on the basis that employees would be better off if that approach were adopted. Rather, the Deputy President sought to ascertain the purpose of the disputed clause by having regard to its interaction with clause 11. [63] However, we do not agree that the purpose of clause 20 can be stated simply as being “more beneficial than clause 11” such as to favour the ETU’s construction of clause 20. There is no doubt that clause 20 modifies clause 11. Clause 20 expressly excludes the operation of clause 11.2 and provides that the first two progressions are guaranteed or automatic – which is more beneficial than clause 11. However, for the FY26 Annual Review and Feedback Cycle there is no level progression or top of band payment - which is obviously less beneficial. [64] At paragraph [84] of the Decision the Deputy President observed that under clause 11, an employee would be entitled to progress one level on 1 July for each of the years 2025 to 2027 if there were no performance issues and that ‘Clause 20 does not provide for level progression on 1 July 2026 but provides for it to occur on commencement of the 2024 Agreement.’ In this respect, the Deputy President described clause 20 as providing for an ‘additional benefit.’ At [85] the Deputy President said that ‘…on Ausgrid’s construction of clause 20, employees who were not employed or were promoted during the period from 1 September 2024 to 14 February 2025 are worse off than if clause 11 applied.’ This prompted the Deputy President to conclude that ‘clause 20 should be construed in a way that gives effect to its purpose to be more beneficial to employees than clause 11 in relation to level progression’ and that this favoured the ETU’s construction of clause 20. In our view, such a conclusion does not follow. Ausgrid submitted that clause 20 achieved a more beneficial outcome for employees than clause 11.2 on either parties’ construction of the clause but that even if a beneficial purpose could be ascertained, this did not necessarily favour the ETU’s construction of the clause. We accept that submission. [65] This approach to ascertaining the purpose of clause 20 assumes that the effect of the clause is that it is to apply in the same way to new/promoted employees as it does to those employed as at 1 September 2024 when there was no textual or evidentiary basis for such an assumption. The finding that new/promoted employees were “worse off” under Ausgrid’s construction of clause 20 compared to the operation of clause 11.2 was material to the Deputy President’s reasoning and ultimate conclusion in relation to the proper construction of clause [2026] FWCFB 76 14 20 but this approach led the Deputy President into error with the result that the effect of clauses 11 and 20 was misconstrued. Accordingly, we uphold Appeal ground 2. Consideration - Appeal Ground 3 – Use of evidence - Pike [66] We do not think that the Deputy President incorrectly relied on the evidence of Mr Pike’s circumstances to interpret the 2024 Agreement (Appeal Ground 3). [67] It is unsurprising and uncontroversial that the ETU’s interpretation delivered a more beneficial outcome for employees than Ausgrid’s interpretation. Mr Pike’s evidence did not prove that employees in his situation were better off under the ETU’s interpretation. His evidence merely illustrated how the ETU’s interpretation led to a better outcome for employees. [68] It is clear from the Deputy President’s decision that the Deputy President referred to Mr Pike’s circumstances to make each party’s construction more understandable in the circumstances. [69] We accept that the Deputy President’s analysis of Mr Pike’s circumstances contributed to the conclusion that the ETU’s construction was preferred because it was more beneficial to employees in Mr Pike’s circumstances who were promoted prior to the commencement of the 2024 Agreement. However, Mr Pike’s circumstances did not change or determine the Deputy President’s conclusion because it was clear that some employees would be better off under the ETU’s construction of clause 20. Although Mr Pike’s evidence was part of the reasoning process, the Deputy President did not err in the manner contended by Ausgrid. We reject appeal ground 3. Disposition [70] For the above reasons we have decided to set aside the Deputy President’s decision, redetermine the question for arbitration and answer that question as follows: Q: Does the first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provide employees with one level of progression based on the level that the employee held on 1 September 2024 or the level they held on the commencement of the Agreement (14 February 2025)? A: The first row of the first table in clause 20.1 in Appendix 4 of the 2024 Agreement provides employees with one level of progression based on the level that the employee held on 1 September 2024. VICE PRESIDENT Appearances: [2026] FWCFB 76 15 V. Bulut of counsel for the Appellant. S. Hamilton of counsel for the Respondent. Hearing details: 2025. Sydney. 10 September. Printed by authority of the Commonwealth Government Printer <PR798302> 1 [2025] FWC 1896. 2 Decision at [21]. 3 Decision at [6]. 4 Decision at [8]-[35]. 5 Decision at [36]-[55]. 6 Decision at [56-[61]. 7 Decision at [62]-[70]. 8 Decision at [71]-[79]. 9 Decision at [77]. 10 Decision at [88]. 11 Health Services Union v Northern Health [2025] FWCFB 5 at [18]. 12 per Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [48]-[49] and [150]-[154], (2018) 264 CLR 541 at 563, 591-593. 13 Decision at [28]-[32] and [83]; Appeal Ground 4. 14 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Berri Pty Ltd [2017] FWCFB 3005 at [114]. See also Kucks v. CSR Limited (1996) 66 IR 182 at 184.