"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Australian Workers' Union, The - South Australian Branch, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unio [2024] FWC 912

[2024] FWC 912 The attached document replaces the document previously issued with the above code on 9 April 2024. The reference to “AWU” after Mr Rocconi’s name in the appearances on the final page of the published decision should read “AMWU” Liam Butterworth Associate to Deputy President Anderson Dated 12 April 2024. -- 1 of 33 -- -- 2 of 33 -- 1 Fair Work Act 2009 s.739 - Application to deal with a dispute "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Australian Workers' Union, The - South Australian Branch, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch v Gupta Family Group Alliance (GFG Alliance) T/A Onesteel Manufacturing Pty Ltd (C2023/7203) DEPUTY PRESIDENT ANDERSON ADELAIDE, 9 APRIL 2024 Dispute about matters arising under the enterprise agreement and the NES;[s186(6)] – mining operations associated with steel manufacturing – Trades Models – jurisdiction – whether dispute concerns matter “arising under” agreement – whether extra claim – jurisdictional objections dismissed – merit – whether instrument requires agreement to Trades Models by consultative committee – meaning of “governance” – principles of interpretation – distinction between consultation and approval – surrounding circumstances – consultation required but not approval – dispute determined [1] On 23 November 2023 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively, the Unions or the applicants) applied to the Commission under s 739 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute. [2] The respondent is One Steel Manufacturing Pty Limited (One Steel or the employer). One Steel operates steel manufacturing facilities at Whyalla and mining operations in the nearby Middleback Ranges in regional South Australia. It is part of the Gupta Group of global companies. [3] The subject matter of the dispute are Trades Models used for training tradespersons working in the mining operations and employed under the GFG South Australia MBR Enterprise Agreement 2022 (the 2022 Agreement). The dispute concerns whether One Steel is required to obtain the approval of the Unions (via a Work Group Consultative Committee or Implementation Team) before making or implementing changes to Trades Models (the Union [2024] FWC 912 DECISION -- 3 of 33 -- [2024] FWC 912 2 case) or whether One Steel’s obligations do not extend beyond consulting the WGCC or Implementation Team on proposed changes (the employer’s case). [4] The dispute came before the Commission under the dispute settlement procedure of the 2022 Agreement. The dispute was not resolved at the workplace level. It was referred to the Commission under cl 9 of the Agreement. [5] Conciliation was conducted on 11 December 2023 and 10 January 2024. The dispute did not resolve. The Unions sought arbitration. [6] On 12 January 2024 I issued directions for hearing the matter.1 Materials were filed by the Unions and One Steel. [7] I granted permission for One Steel to be represented.2 [8] I heard the matter in person on 13, 14 and 15 March 2024 (with certain persons granted leave to appear by video). Evidence [9] I received evidence from eight persons: Union witnesses • Steven McMillan (AMWU Northern Regional Organiser);3 • Shane Kargar (AWU Organiser);4 • Andrew Mayne (fitter and AMWU delegate);5 and • James Smith (former electrician and WGCC member).6 One Steel witnesses • Bianca Standing (Head of Organisational Development);7 • Sarah Curran (former Head of Employee Relations and Reward);8 • Jarrod Mutton (Manager, South Middleback Ranges Fixed Plant);9 and • Jared Fechner10 (Head of Operational Transformation).11 [10] All witnesses gave evidence conscientiously and were creditworthy. I take into account that some evidence included opinion and hearsay. I treat opinions as akin to submissions and give little weight to contested hearsay unless corroborated by more direct evidence. [11] The relevance of certain evidence, particularly evidence of historical conduct concerning Trades Models advanced largely by Union witnesses, is in dispute. This concerns a -- 4 of 33 -- [2024] FWC 912 3 broader issue of the extent to which extrinsic material is relevant in determining this matter. I deal with this below. Facts Agreed facts [12] The following are agreed between the Unions and One Steel. A. INTRODUCTION 1. The Respondent operates a mine site (the MBR) in the Middleback Ranges comprised of the South Middleback Ranges, Iron Baron and Iron Knob mining areas. OneSteel also operates steelworks in Whyalla (the Steelworks). 2. Ownership of the Steelworks and MBR transferred to OneSteel from BHP in 2000. 3. Work Group Consultative Committees (WGCCs) are consultative committees established for a defined area of the Respondent’s operations, comprised of employee representatives of the relevant workgroup and representatives of the Respondent’s management. 4. The Implementation Team (IT) is a further body comprised of representatives of the Respondent management and union representatives, including representatives of the AMWU, AWU and CEPU. 5. A Trades Model system has set the training that employees can complete to progress through the employment classification system of each industrial instrument that has applied to the Steelworks and MBR since OneSteel took ownership in 2000. A.2 GFG SOUTH AUSTRALIA MBR ENTERPRISE AGREEMENT 2022 6. The GFG South Australia MBR Enterprise Agreement 2022 (2022 MBR Agreement) covers and applies to the Respondent, and employees of the Respondent employed to perform work at the MBR who are engaged in classifications specified in the 2022 MBR Agreement (the Employees). 7. The 2022 MBR Agreement covers the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); the Australian Workers Union (AWU); and the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU). 8. The GFG South Australia MBR Enterprise Agreement 2022 commenced operation on 27 April 2022 and applied to the Employees from that date. A.3 GFG SOUTH AUSTRALIA MPS ENTERPRISE AGREEMENT 2022 -- 5 of 33 -- [2024] FWC 912 4 9. The GFG South Australia MPS Enterprise Agreement 2022 (2022 MPS Agreement) covers and applies to the Respondent and employees of the Respondent employed to perform work at the Steelworks who are engaged in classifications specified in the 2022 MPS Agreement. 10. The 2022 MPS Agreement covers the AMWU, AWU and CEPU. 11. Clause 3.5 and 16.2 of the 2022 MPS Agreement are in terms identical to clauses 3.5 and 16.2 of the 2022 MBR Agreement. B. PRIOR INSTRUMENTS B.1 ARRIUM MIDDLEBACK RANGES EMPLOYEES ENTERPRISE AGREEMENT 2016 12. The Arrium Middleback Ranges Employees Enterprise Agreement 2016 (the 2016 Mines Agreement) covered and applied to the Respondent and the Employees from 14 September 2016 to 27 April 2022. 13. The classifications covered by the 2016 Mines Agreement were substantially the same as those covered by the 2022 MBR Agreement. B.2 ONESTEEL WHYALLA EMPLPOYEES ENTERPRISE AGREEMENT 2016 14. The OneSteel Whyalla Employees Enterprise Agreement 2016 (the 2016 Steelworks Agreement) covered and applied to OneSteel Pty Ltd and Employees in the Whyalla Steelworks and Ardrossan Dolomite Mine from 13 October 2016 to 27 April 2022. 15. The 2016 Steelworks Agreement contained at Schedules 1, 6 and 7 provisions for a Production Model, Trades Model and Utilities Model; for transition to skills-based models; and for development of skills based models; on identical terms to Schedules 1, 6 and 7 of the Arrium Middleback Ranges Employees Enterprise Agreement 2016. C. BARGAINING FOR THE 2022 MBR AGREEMENT 16. Bargaining for the 2022 MBR Agreement and the 2022 MPS Agreement commenced on 5 August 2020 and included meetings on the following dates: a. 5 August 2020 b. 19 August 2020 c. 26 August 2020 d. 9 September 2020 e. 16 September 2020 -- 6 of 33 -- [2024] FWC 912 5 f. 30 September 2020 g. 28 October 2020 h. 4 November 2020 i. 9 December 2020 j. 3 February 2021 k. 4 February 2021 l. 24 February 2021 m. 3 March 2021 n. 29 April 2021 o. 20 May 2021 p. 17 June 2021 q. 7 September 2021 r. 8 December 2021 s. 9 December 2021 t. 10 February 2022. 17. During negotiations, the Respondent published minutes of negotiation meetings, logs of claims for GFG and the SBU, question and answer documents, and other explanatory documents on an ‘EA Hub’ on SharePoint, which was accessible by employees of the Respondent. 18. On 22 February 2022, GFG sent to the SBU representatives a proposed enterprise agreement (the First Draft Agreement). The First Draft Agreement is reproduced at annexure SM-4 to the Statement of Steven John McMillan. 19. Later on 22 February 2022 the SBU resolved that it would withdraw its in-principle agreement given on 10 December 2021 if the enterprise agreement did not provide for the schedules to be preserved in policy under the ownership of the WGCC and Implementation Team. 20. Steve McMillan of the AMWU provided by email to Ms Curran of the Respondent, a request to include the following clause in the proposed agreement: -- 7 of 33 -- [2024] FWC 912 6 Any schedules listed or removed from the 2016 enterprise agreement/s, to simplify the current proposed agreement/s, will be moved to the full ownership of the WGCC’s and overseen by the IT Committee, this includes but not limited to the following. Schedules 1, 3, 5, 6, 7, 8, 10, 12, 13. 21. This clause was rejected by the Respondent. 22. On 22 February 2022, the SBU proposed an amended clause as follows: Any schedules which were in the Arrium Middleback Ranges Employees Enterprise Agreement 2016 and are not part of this Agreement (i.e. Schedules 1, 3, 5, 6, 7, 8, 10, 12 and 13) are transitioned to the Governance of the WGCC and overseen by the IT Committee. 23. At 12:29am on 23 February 2022 Ms Curran provided the Respondent’s proposed wording for clause 3.5 to representatives of the AMWU, AWU and CEPU, as follows: Hi All Thank you for your time and discussion last night, as per Mark's email we have reviewed and will look to incorporate the following wording in section 3.5 of both Agreements (referring the relevant 2016 in each) as follows: "Any schedules which were in the OneSteel Whyalla Employees Enterprise Agreement 2016 and are not part of this EA (i.e. Schedules 1, 3, 5, 6, 7, 8, 10, 12 and 13) are transitioned to the Governance of the WGCC and overseen by the IT Committee [any changes to the processes concerning these matters will be the subject of consultation]." As discussed we are finalising the EAs and supporting materials this morning with the view to commence the access period today which will by 3pm. Thank you C.2 EXPLANATION OF TERMS 24. On 23 February 2022, the Respondent emailed employees who would be covered by the 2022 MBR Agreement a SharePoint link to the following documents: a. GFG South Australia MBR Enterprise Agreement 2022 Explanatory Table. b. Help Cards for calculation of backpay and hourly rate under the proposed agreement. c. GFG – MBR & MPS Agreements FAQ: February 2022. d. GFG South Australia MBR Enterprise Agreement 2022. -- 8 of 33 -- [2024] FWC 912 7 25. The documents listed in paragraph [15] are as provided in annexure SC-9 to the Statement of Ms Sarah Curran, and annexures JS-1, JS-2, and JS3 to the Statement of James Smith. 26. Voting on the GFG South Australia MBR Enterprise Agreement 2022 commenced on 3 March 2022. The vote closed on 7 March 2022 with a majority of those who voted on the proposed agreement having voted to approve it. D. 2023 REVIEW OF TRADES MODELS D.1 DEVELOPMENT OF NEW TRADES MODELS 27. The Respondent undertook a review of Trades Models across its business commencing in early 2023, led by the company’s Workforce Development (WFD) team. D.2 CONSULTATION ON NEW TRADES MODEL 28. On 17 August 2023, the Respondent presented its proposed new SMR Trades Model to the South Middle Back Ranges (SMR) Work Group Consultative Committee (WGCC). The content of that presentation is given in annexure JM-12 to the Statement of Jarrod Mutton. The Respondent initially proposed to implement the new Trades Model after a 4-week consultation period ending Friday 15 September 2023. 29. On 8 September 2023, the Respondent extended the consultation period by a further two (2) weeks to 29 September 2023. Also on 8 September 2023, the Respondent emailed to the SMR WGCC a “Consultation Feedback” document, reproduced at annexure JM- 14 to the Statement of Jarrod Mutton. The Consultation Feedback document reflects questions raised by members of the SMR WGCC and employees about the proposed new Trades Model, and the Respondent’s responses to those questions. 30. Between 17 August 2023 and 8 September 2023, members from each of the four shift crew at the SMR requested that Jarrod Mutton, Maintenance Manager for the SMR Fixed Plant, meet with the crews directly to answer their questions about the proposed new Trades Model. 31. On 22 September 2023, the Respondent provided a further Consultation Feedback document to the SMR WGCC, reproduced at annexure JM-16 to the Statement of Jarrod Mutton. That Consultation Feedback document includes additional questions raised by members of the SMR WGCC and employees about the proposed new Trades Model between 8 September 2023 and 22 September 2023, and the Respondent’s responses to those questions. 32. On 10 November 2023, the Respondent presented its proposal for the Trades Model to the WGCC. That presentation is reproduced at annexure JM-18 to the Statement of Jarrod Mutton. The Trades Model presented on 10 November 2023 included: a. no changes to the SMR-Electrician Trades Model originally proposed on 8 September 2023; -- 9 of 33 -- [2024] FWC 912 8 b. addition of one unit to the SMR-Fabricator Trades Model originally proposed on 8 September 2023; c. addition of three units to the SMR-Fitter Trades Model originally proposed on 8 September 2023. 33. The proposed new Trades Model has not been ratified or ‘signed off’ by the WGCC or the Implementation Team (IT). E. DISPUTE 34. On 30 October 2023 Shane Karger for the AWU requested that the Respondent provide evidence that the proposed new Trades Model had been ratified by the WGCC. The Respondent responded that ratification by the WGCC was not required for changes to the Trades Model. 35. Mr Karger responded on 30 October 2023 with notice that the creation and implementation of a new Trades Model without ratification by the WGCC was disputed under clause 9 of the 2022 MBR Agreement. 36. On 7 November 2023, Ms Stojanovski responded by email to Mr Karger with an outline of the Respondent’s position. Ms Stojanovski confirmed that the Respondent would proceed with implementation of the proposed new Trades Model. 37. On 13 November 2023, Mr Karger requested by email that the Respondent nominate a mediator/conciliator. The Respondent confirmed by reply email on the same day that the matter was best referred to the Fair Work Commission. 38. The AMWU, AWU, CEPU and the Respondent (together, the Parties) agreed to conciliation of the dispute in this application by the Fair Work Commission. 39. The Fair Work Commission conciliated the dispute in this application on 10 January 2024. The dispute in this application was not settled in conciliation before the Fair Work Commission. 40. The steps taken by the parties as outlined in paragraphs [34] through [39] above satisfy the requirements of Clause 9 of the 2022 MBR Agreement for referral of the dispute in this application to the Fair Work Commission for arbitration. Dispute [13] On 23 November 2023 the Unions notified the Commission of this dispute. [14] Clause 9.4 of the 2022 Agreement provides a status quo provision concerning work whilst the dispute resolution procedure is applied. -- 10 of 33 -- [2024] FWC 912 9 [15] Implementation of ten of the twelve proposed new Trades Models arising from the 2023 Review have been put on hold pending determination of the dispute.12 Question to be determined [16] The Unions and One Steel have agreed that the following (merit) question be determined: “Is there a requirement under the GFG South Australia MBR Enterprise Agreement 2022 that a Work Group Consultative Committee and the Implementation Team ratify a proposed Trades Model (or proposed Trades Model amendment) before the proposed Trades Model may be implemented by the Respondent?” [17] In addition, One Steel submit that the following jurisdictional question should be determined and, if determined in the negative, the merit question does not fall for determination: “Whether the dispute is a matter within the jurisdiction of the Fair Work Commission, given that the dispute, as framed by the Applicant, arises out of the construction of provisions in Schedule 7 of a former Agreement (which does not form part of the current Agreement)?” [18] I deal further with the jurisdictional question and issues arising in the body of this decision. Relevant clauses of Agreement 2022 Agreement [19] Clause 3 ‘Application and Scope’ provides: “3. Application and scope 3.1 This Agreement is binding on: (a) the Company; and (b) the Employees. 3.2 Subject to application to and approval by the Commission, the Agreement will cover the Unions. 3.3 This Agreement replaces in their entirety all other awards, agreements, letters or memorandums of understanding, whether written or unwritten, which applied prior to the making of this Agreement and which regulated the terms and conditions of Employees covered by this Agreement. -- 11 of 33 -- [2024] FWC 912 10 3.4 This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, the provision that is more favourable to the Employee will apply. 3.5 Any schedules which were in the Arrium Middleback Ranges Employees Enterprise Agreement 2016 and are not part of this Agreement (i.e. Schedules 1, 3, 5, 6, 7, 8, 10, 12 and 13) are transitioned to the Governance of the WGCC and overseen by the IT Committee, any changes to the processes concerning these matters will be the subject of consultation.” [20] Clause 3.5 in particular is relevant to the determination of the dispute. [21] Clause 16 ‘Tradespersons’ provides: “16. Tradespersons 16.1 General competency Tradespersons will undertake training to achieve and maintain safety and general competencies to enable them to understand their working environment and how to work safely and efficiently. These competencies may change to suit the needs of the business, and achievement of competency can be either via formal or informal training and a competency assessment. Compensation for achievement of general competency has been included in the Minimum Base Annual Wage. 16.2 Technical competency Each Site or business unit will develop a 'Trades Model' relevant to that Site or business unit, which may include a set of common competency requirements or requirements which are specific to it (Trades Model). The Trades Models will: (a) Establish a hierarchy of classifications from Level 1 to a maximum of Level 16 (Trades Model Levels) in respect of the Tradesperson Classifications identified in Appendix 1 (as relevant to each Site or business unit); (b) Identify the training necessary to progress through the Trades Model Levels, which may include National Units of Competency or vendor/ plant-specific training; and (c) Be developed and regularly reviewed through consultation between the Company’s management, Employees and their chosen representatives (if any).” [22] Clause 16.2 in particular is relevant to the determination of the dispute. -- 12 of 33 -- [2024] FWC 912 11 [23] Appendix 1 ‘Classification Structure’ sets out competencies and duties for classifications including eight tradespersons classifications. [24] Consultation provisions in the 2022 Agreement are also relevant. Clause 6 ‘Consultation approach’ provides in part: “6.1 The Company is committed to a working environment where an Employee's contribution is sought and valued. The Company recognises the importance of consultation to facilitate improved business performance and improved workplace relations and the continued introduction of efficient and effective work practices. This is achieved by recognised forums of communication, discussion and consultation with Employees.” [25] The term ‘consultative committee’ is defined in cl 2: “2.4 Consultative Committee includes, but is not limited to, the Implementation Team (IT)/Work Group Consultative Committee (WGCC).” [26] In the 2022 Agreement and in this decision, the phrase “Implementation Team” and “Implementation Committee” is used interchangeably, as is the abbreviation “IT”. 2016 Agreement [27] The relevance of Schedule 7 of the 2016 Agreement (and its eight parts, and in particular part 8) is in issue. I deal with that question in the body of this decision. Suffice for current purposes, I set out the chapeau and part 8 of Schedule 7: “Schedule 7 - Job Restructuring, Training and Development This Schedule describes the Principles, which are agreed by Management, Unions, and Employees as the way in which the Structural Efficiency Principle is being translated into practice in the Steel Industry at The Company. 1. General Principles [text omitted] 2. Definitions [text omitted] 3. Model – Framework and Content [text omitted] 4. Training – Design and Content [text omitted] 5. Transfers [text omitted] 6. Transition [text omitted] 7. Future Process [text omitted] 8. Trades Model Job Restructuring, Training and Development -- 13 of 33 -- [2024] FWC 912 12 “Operating Principles (a) The competency base for the Trades Model is defined by the relevant current applicable Company Apprenticeship Technical Competencies. These will not be included as post trade competencies in the trade model. If the model changes, due to changes to the apprenticeship, these changes will be applied to those persons entering the trade model from the date of the change, but will not apply to those classified in the trade model prior to the date of the change. The Company will not add additional competencies to the model simply to ‘make up the gap’ for those employees entering the model after a change due to apprenticeship changes. (b) The Trades Model will be reviewed at least annually and modified to reflect any relevant changes to trade competency requirements of the business and to changes to the apprenticeship competencies. The Company commits to consulting with the relevant Work Group Consultative Committee and the unions with respect to any proposed modifications to the Trades Model. In the event that consensus is not reached, the Agreement Dispute Resolution process will be followed. (c) Tradespersons will be required to keep their trade competencies up to date to reflect any model changes. If the model changes (for changes other than those resulting in changes to the appropriate apprenticeship) the tradesperson will be required to pick up the additional competencies to reflect that change before being able to progress further through the model. (d) The mix of trade competencies required in each department will be that necessary to meet the business needs. The numbers trained and the competencies each will be required to possess will be in accord with that necessary to meet the business requirements. (e) Employees will be required to undertake training necessary for the effective operation in the department. Training may therefore be compulsory in some instances. Where the employees are not prepared to undertake that training necessary to meet the needs of the department, transfer to another department may be necessary. For example, if there are eight people in the department and the department requires four to have the H2 (18021) competency, but only three are prepared to acquire the competency, at least one person will be required to transfer from that department to allow a new person to come in on the basis that they acquire H2 (18021) competency. (f) The trade model contains Technical and Trade (general) competencies. All trades will be required, with reasonable opportunity, to demonstrate and maintain all competencies. -- 14 of 33 -- [2024] FWC 912 13 (g) Employees will be required to maintain competency in all units for which they are recognised. Employees will be required with reasonable opportunity to maintain their competency and retrain where necessary. Employees will not continue to be paid for those competencies that they are unable to demonstrate. (h) Existing Trades employees will be assigned to the new competency structure on the basis of their competency assessment signed off by their supervisor. (i) An employee assigned to the new structure will be required to provide evidence of (or demonstrate) all elements of every competency unit to the defined standards, as required by their department. For example, evidence could be the provision of a current forklift certificate to demonstrate competency in unit 11010. (j) In the event that a Trades Employee and Company management cannot agree on a trades classification for the purposes of an employee moving into the Trades Model, an agreed independent assessor, such as TAFE will be relied upon. (k) Any dispute relative to the implementation process for individual trades employees will be addressed through the Agreement Clause 38. (l) To progress through the trade model, an employee will be required to demonstrate all elements of a competency unit to the defined standards to gain recognition for that competency unit. (m) The general competencies will comprise those required to operate safely and effectively as an employee of the Company. It will include such things as safety, communication, computer operation, customer service, teamwork and training competencies. Some members of each workgroup will be required to possess the competencies to be able to conduct assessments. (n) All employees will be required to work within the ‘Safe System of Work’ process, which can include preparation of relevant documents, including JSA’s, etc. Tradespersons are required to exercise all competencies using good trade practices and preventative maintenance regimes. (o) Annual training plans will be developed for all tradespersons. (p) Tradespersons transferring into another department will be required to demonstrate the competencies relevant to that new department. The employee will be made aware of the competencies that they will be required to acquire through their training plan. (q) Where a business need exists, dual trade arrangement will be applied but these will not be included in the model structure. (r) With regard to Iron Baron only, the parties recognise that the Iron Baron Trades models incorporate operator skills. While the arrangement does not currently -- 15 of 33 -- [2024] FWC 912 14 impose a restriction on career progression, by limiting the inclusion of further post trade skills required to suit business needs, it may do so in the future. In that event the parties commit to review the arrangement to determine how such skills may best be accommodated.” [28] Item 8(b) of Schedule 7 is said by the Unions to be of particular relevance to the determination of the dispute. Submissions The Unions (AMWU, AWU and CEPU) [29] The Unions submit that the application is within jurisdiction because it is a dispute “arising under” the 2022 Agreement. [30] The Unions submit that this is so because the 2022 Agreement provides for trades classifications based on skills acquired through Trades Models, provides a role for WGCCs, specifies in cl 3.5 of the 2022 Agreement that certain former regulatory matters concerning Trades Models “are transitioned to the Governance of the WGCC”, and provides that changes to processes concerning the transitioned matters must be the subject of consultation. [31] The Unions submit that they are not seeking an interpretation of the 2016 Agreement but rather the proper application of the 2022 Agreement and in particular cl 3.5. [32] The Unions also submit that, properly characterised, this is not an extra claim because it concerns a matter arising under the operation of existing (not additional) provisions of the 2022 Agreement. [33] On merit, the Unions submit that Schedule 7 of the 2016 Agreement, which dealt with Trades Models, had been transitioned to the governance of the WGCC by virtue of cl 3.5 of the 2022 Agreement, and that the obligations of One Steel fall to be determined by reference to the role and responsibilities conferred on the WGCC, including the transition of Schedule 7. [34] The Unions submit that new Trades Models or changes to existing Trades Models must occur only in accordance with cl 3.5 of the 2022 Agreement and the transitioned Schedule 7 of the 2016 Agreement. [35] The Unions submit that on a textual construction, these provisions require consultation with the WGCC and, if the changes are not approved or ratified by the WGCC, a dispute over proposed changes must be dealt with via the dispute resolution process. [36] Accordingly, the Unions submit that One Steel cannot unilaterally implement the proposed changes notified in October 2023 because, even following consultation, those changes were not agreed or ratified by a WGCC. [37] Further, the Unions submit that this textual construction of cl 3.5 of the 2022 Agreement is supported by the overwhelming weight of evidence of past conduct concerning changes to -- 16 of 33 -- [2024] FWC 912 15 Trades Models. The Unions submit that past changes have not been implemented without the approval or ratification of a WGCC or the Unions following consultation. [38] It follows that the Unions submit that: • the Commission has jurisdiction to determine the dispute; • One Steel had an obligation to consult a WGCC before deciding on or implementing the October 2023 changes to Trades Models; • unless the proposed changes are ratified or approved by a WGCC, the changes cannot be unilaterally implemented by One Steel; and • if the changes are not ratified or approved by a WGCC, a dispute exists which must be dealt via the dispute settlement procedure in the 2022 Agreement before the changes can be implemented. One Steel [39] One Steel submit that the application should be dismissed on jurisdictional grounds. [40] One Steel submit that the application is beyond jurisdiction because it is a dispute over the interpretation of an instrument that has ceased to exist (the 2016 Agreement) and, not being a dispute “arising under” the 2022 Agreement, the application under s 739 of the FW Act is beyond jurisdiction. [41] One Steel submit that the application is also beyond jurisdiction because it is an extra claim and thereby inconsistent with cl 5 of the 2022 Agreement. It submits that the Commission has no jurisdiction to determine disputes that are inconsistent with that instrument. [42] On merit, One Steel submit that, properly construed, neither the 2016 Agreement (nor schedules to that Agreement) form part of the 2022 Agreement. Accordingly, One Steel submit that the 2022 Agreement, properly construed, only requires the employer to consult on changes to Trades Models and that no further barrier exists to deciding on changes nor their implementation provided consultation has occurred. It submits that with respect to the currently proposed changes, it has fully consulted and met its obligations under the 2022 Agreement. [43] In the event that the Commission considers it necessary to interpret the 2016 Agreement in order to determine the dispute, One Steel submit that Schedule 7 of the 2016 Agreement, when properly construed, requires consultation only with a WGCC on proposed changes and does not preclude the employer from implementing changes absent WGCC approval or ratification provided consultation has occurred. [44] One Steel submit that the proper construction of the 2022 Agreement and (if required) the 2016 Agreement can be established by consideration of the text read in context. In the event that recourse is made to surrounding circumstances or historical practice, One Steel submit that surrounding circumstances and recent historical practice supports the construction it advances. -- 17 of 33 -- [2024] FWC 912 16 [45] It follows that One Steel submit that: • the Commission has no jurisdiction to determine the dispute; and • if the Commission has jurisdiction to determine the dispute, having consulted on proposed changes to Trades Models there is no impediment to One Steel implementing those changes. Consideration Jurisdiction [46] The role of the Commission in this matter is one of private arbitration, defined by the terms of the 2022 Agreement. [47] Section 739(4) of the FW Act provides that “if, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so”. However, the Commission “must not exercise any powers limited by the term” (s 793(3)), and “must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties” (which includes an enterprise agreement) (s 739(5)). [48] I now deal with the jurisdictional objections raised by One Steel. Whether dispute “arising under” 2022 Agreement [49] Is the dispute a matter “arising under” the 2022 Agreement? If so, the application is within jurisdiction. If not, the application does not concern a dispute which the parties have agreed that the Commission may arbitrate (s 739(4)) and is beyond jurisdiction. [50] It is appropriate to make an observation about the jurisdictional question posed by the respondent. The question posed includes a proposition about characterisation in the guise of a question. What follows after the words “whether the dispute is a matter within the jurisdiction of the Fair Work Commission” is the respondent’s view on characterisation. In this respect the question the respondent poses is inadequate. Jurisdictional questions are best framed in neutral terms. [51] I prefer the simpler formulation above; is the dispute as notified a matter “arising under” the 2022 Agreement? [52] One Steel correctly submit that the answer to this question requires the dispute to be properly characterised. However, I do not agree with the respondent’s characterisation. [53] The dispute does not “arise out of” the construction of provisions in Schedule 7 of the 2016 Agreement as the respondent suggests. It arises under the 2022 Agreement. [54] The Unions, in the dispute as notified to the Commission, claim that the dispute relates to the ‘Application and Scope’ clause of the 2022 Agreement and in particular cl 3.5.13 The grounds set out by the applicants reference cl 3.5.14 Whilst the terms of a dispute as notified by -- 18 of 33 -- [2024] FWC 912 17 an applicant party does not necessarily compel an objective finding that the description used by an applicant is the proper characterisation, I find that the Union description in this matter correctly characterises the dispute. [55] This is because Trades Models are provided for by the 2022 Agreement, their development and review is regulated by the 2022 Agreement (cl 16.2(c)), the 2022 Agreement was in operation at the time the respondent made a decision in October 2023 to change Trades Models, the proposed changes concern Trades Models applying to classifications under the 2022 Agreement, and the Union is claiming that implementation by One Steel is impermissible without the agreement of a WGCC or Implementation Team because of the terms of cl 3.5 of the 2022 Agreement. [56] The Unions may not be correct in this proposition, but that is a question of merit not jurisdiction. It is the dispute that has to “arise under” the Agreement, not the answer to the question in dispute. [57] Nor do I agree with One Steel that the dispute concerns the 2016 Agreement and not the 2022 Agreement. Given the terms of cl 3.5 and the dispute as notified by the Unions, it is a merit not jurisdictional question whether Schedule 7 of the 2016 Agreement affects rights and obligations under the 2022 Agreement. [58] In arriving at this conclusion I have regard to the authorities put before me by the respondent. Although those decided matters came before the courts in a different context, I agree that that the phrase “arising under” in some deeds considered by courts has not been interpreted according to the broad “fresh start” suggested by Lord Hoffmann in Fiona Trust;15 being a construction that was suggested might equate to the expression “arising out of”. It suffices for present purposes to note that the High Court has since observed that:16 “A dispute is “under” a deed if its outcome is governed or controlled by the deed or invokes some right created by it.” [59] I am well satisfied that the dispute as notified, when properly characterised, is governed or controlled by the 2022 Agreement or seeks to invoke some rights said to be created by it. Whether the dispute is an extra claim [60] Clause 5 of the 2022 Agreement provides: “5. No extra claims 5.1 This Agreement is a comprehensive settlement of all claims concerning the parties engaged under this Agreement.” [61] Is the dispute an extra “claim” within the meaning of cl 5? If so, the dispute would be inconsistent with cl 5 which provides that the Agreement “is a comprehensive settlement of all claims” and thus beyond jurisdiction by virtue of inconsistency (s 739(5)). If not, the dispute concerns the application of existing rights and obligations which the parties have agreed the Commission may arbitrate. -- 19 of 33 -- [2024] FWC 912 18 [62] As noted, the 2022 Agreement contemplates review, including during its life, of Trades Models. By October 2023 one such review and its proposed implementation generated a dispute at the workplace level which led to the filing of this application. [63] The dispute concerning proposed changes and whether they can be implemented by One Steel absent agreement or ratification by a WGCC, without more, does not constitute a “claim” within the meaning of cl 5. The fact that review, change and consultation obligations are provided for by the 2022 Agreement points in the other direction. [64] The Full Court of the Federal Court has observed that for a “claim” to exist it must in some sense be a “presumptively advantageous alteration to the existing state of affairs”.17 The Court in Marmara approved the observation at first instance, that the notion of “further claims” is:18 “encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employees set out in the Agreement other than in a manner already provided for in the Agreement”. [65] In this matter, the Unions are seeking to do no more than assert that the proposed changes, under the terms of the existing instrument, cannot be implemented because they have not been approved or ratified by a WGCC or Implementation Team. The dispute does not have the necessary character of a “claim” for the purposes of cl 5. The Unions may or may not be correct in their contention. The contention itself however, relying as it does on what the Unions advance are existing rights and obligations under the 2022 Agreement, is not an extra claim nor beyond the industrial settlement reached in 2022. As observed, the dispute is a matter “arising under” the 2022 Agreement. [66] For these reasons the Commission has jurisdiction to determine the dispute. One Steel’s jurisdictional objections are dismissed. [67] I note one caveat. The Commission has no jurisdiction to finally determine legal rights but can, in the settlement of disputes, express opinions on legal questions.19 The correct meaning of the 2022 Agreement is a legal question, as is whether the 2022 Agreement has been breached. Whether the Agreement permits or does not permit implementation by the respondent of proposed changes to Trades Models is the central question on which I am called to express an opinion in determining the dispute. Merit Interpretation principles [68] In determining this dispute, I am called on to interpret the terms of the 2022 Agreement. Principles governing the interpretation of industrial instruments are well settled.20 I apply those principles. [69] The correct approach was succinctly stated by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene:21 -- 20 of 33 -- [2024] FWC 912 19 “[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” (citations omitted) [70] These principles were repeated in James Cook University v Ridd:22 “The starting point is the ordinary meaning of the words, read as a whole and in context. 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”. 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”. Context may include “... ideas that gave rise to an expression in a document from which it has been taken”. 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... 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”. 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.” (paragraph numbering and citations omitted) [71] Subsequent decisions of full benches of the Commission have applied the principles as set out by these superior courts.23 In large measure those principles reflect earlier approaches of the Commission, particularly those in Berri.24 -- 21 of 33 -- [2024] FWC 912 20 Textual considerations [72] Although the Unions’ case centrally concerns the text of cl 3.5, it is well established that the instrument in question (in this case the 2022 Agreement) must be read as a whole and in context. [73] Does the 2022 Agreement, when read as a whole and in context, have a plain meaning on whether Trades Models can be developed or changed (or changes implemented) absent (in the words of the question to be determined) “ratification” by the WGCC or the Implementation Team? [74] It is not in dispute, and I find, that the 2022 Agreement clearly requires One Steel to consult on Trades Models, on changes to Trades Models and on implementation of proposed changes to Trades Models. This much is evident from the express language of cl 16.2(c) which provides that such models: “be developed and regularly reviewed through consultation between the company’s management, Employees and their chosen representatives (if any).” [75] Nothing in the 2022 Agreement considered more broadly suggests otherwise. Indeed, the consultation provision (cl 6) and the definition of Consultative Committee (cl 2.4) support such a finding. [76] Given this, it is not necessary to consider surrounding circumstances (including historical practice) to determine whether consultation is required. Had I needed to do so, such extraneous considerations would support the textual finding that consultation is mandated. [77] Nor is it in dispute that One Steel consulted employees and the Unions, including via a WGCC, on issues arising from the 2023 Trades Model review and in the lead up to the changes decided on by the employer in October 2023. The evidence of Mr Mutton makes this abundantly clear, as do agreed facts 28 to 32. [78] These findings however do not determine the dispute. The Unions contend that ratification by a WGCC and Implementation Team is still required by the 2022 Agreement before implementation is permitted. By ratification, the Unions mean that a WGCC or Implementation Team must approve or ‘sign-off’ on the specific change proposals. [79] It is a well-established principle, drawn from decisions of the Commission such as the Consultation Clause in Modern Awards Case,25 that consultation, so long as it is meaningful and not perfunctory, does not mean that the entity undertaking consultation is transferring decision-making authority to those with whom they are or must consult. As stated by the Full Bench:26 “It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.” -- 22 of 33 -- [2024] FWC 912 21 [80] Given this, for the question to be answered in the affirmative (as the Unions propose) it needs to be found that the 2022 Agreement requires a WGCC or Implementation Team to ratify or approve the proposed changes, not simply to have been consulted or provided input on them. [81] Aside from cl 3.5, there is nothing in the 2022 Agreement that suggests a WGCC or Implementation Team are vested with the authority to ratify or approve (or must do so) before the employer can make or implement proposed changes to Trades Models. [82] What then is the meaning and import of cl 3.5? [83] Clause 3.5 reads: “3.5 Any schedules which were in the Arrium Middleback Ranges Employees Enterprise Agreement 2016 and are not part of this Agreement (i.e. Schedules 1, 3, 5, 6, 7, 8, 10, 12 and 13) are transitioned to the Governance of the WGCC and overseen by the IT Committee, any changes to the processes concerning these matters will be the subject of consultation.” [84] Contextually, cl 3.5 falls within that part of the 2022 Agreement which deals with ‘Application and Scope’. It immediately follows subclauses 3.3 and 3.4 which provide that the 2022 Agreement is to “replace in their entirety” all other instruments (including prior agreements and the relevant modern award) other than the statutory NES. [85] Although the clause must be read as a whole and not disjunctively, it is convenient to observe that there are three elements to cl 3.5 itself. [86] Firstly, its subject matter concerns nine nominated schedules of the 2016 Agreement that, it states, “are not part of” the 2022 Agreement. A number (three) of those schedules concern Trades Models or matters associated with Trades Models. In particular Schedule 7 does so. [87] Secondly, cl 3.5 states that those nine schedules are “transitioned to the Governance of the WGCC and overseen by the IT Committee”. [88] Thirdly, it provides that “any changes to the processes concerning these matters will be the subject of consultation”. [89] It is readily apparent that cl 3.5 does not use the words “ratify’ or “approve” in relation to the WGCC or the Implementation Team, nor does it expressly mention Trades Models. [90] However, the Unions submit that the “transition” of Schedule 7 (in particular) to the “Governance” of the WCC and Implementation Team has that effect with respect to Trades Models. This is because it is said that Schedule 7 of the 2016 Agreement requires (item 8(b)) the WGCC and Implementation Team to be consulted “on proposed modifications to Trades Models” and that “in the event that consensus is not reached, the Agreement Dispute Resolution process will be followed”. -- 23 of 33 -- [2024] FWC 912 22 [91] According to the Unions, Schedule 7 of the 2016 Agreement (and in particular item 8(b)) has, by virtue of being “transitioned” to the WGCC and the Implementation Team, continued to operate in a way that regulates rights and obligations under the 2022 Agreement, and in particular it constrains the right of One Steel to implement changes to Trades Models absent ratification or approval by a WGCC or Implementation Team. [92] In advancing this construction, emphasis is placed by the Unions on the word “Governance” in cl 3.5. The word is not defined in the 2022 Agreement. [93] One dictionary definition of the word “governance” is the “exercise of authority or control”.27 In isolation, that meaning, with its focus on control, tends to support the Union construction. However, the same dictionary definition offers alternate meanings, such as “a method or system of government or management”. That meaning, with its focus on a method or system, could support the construction of either party. [94] No party submitted that the capitalisation of the word “Governance” has a particular effect upon its natural meaning, and I do not so find, given that some other words used in the 2022 Agreement (such as “Employees”, “Trades Model Levels” and “Roster Allowance”) are also capitalised irrespective of whether they are defined terms and, it would appear, without altering their defined or natural meaning. [95] Relevantly, words in industrial instruments and in particular a singular word should not be read in isolation or out of context. When read in context and for the following reasons I do not find that cl 3.5 has the effect of removing authority or control over changes to Trades Models from the employer. [96] Firstly, the schedules being transitioned are expressly stated (in the words of cl 3.5 immediately preceding) to not be part of the 2022 Agreement. If not part of the 2022 Agreement, it is not reasonably open to conclude that they or any of them impose continuing rights and obligations in relation to matters regulated by the 2022 Agreement (such as Trades Models). I consider the fact that the schedules are not part of the 2022 Agreement to be both a textual and a contextual consideration of substance in interpreting cl 3.5 which points away from the construction urged by the Unions. [97] Secondly, the words immediately following in cl 3.5 expressly state that it is “consultation” which applies to changes to the processes concerning the transitioned schedules. As noted, consultation does not equate to joint decision making or expunge decision making authority. [98] Thirdly, cl 3.5 must be given a meaning that is consistent with the 2022 Agreement when read as a whole. Two other provisions of the 2022 Agreement tell materially against the construction advanced by the Unions. Clause 16.2, which deals specifically with Trades Models, requires their development and review by consultation. It does not directly or indirectly use language that suggests decision-making authority has been removed to other entities or away from the employer in the review process. Further, Appendix 1 of the 2022 Agreement contains detailed competency and classification provisions including those applying to tradespersons working under Trades Models. Again, no reference is made in Appendix 1 to the authority or control of another entity to regulate such matters. I consider the fact that both cl -- 24 of 33 -- [2024] FWC 912 23 16.2 and Appendix 1 regulate Trades Models (including in cl 16.2 by mandating consultation) but make no reference to approval or ratification by a WGCC or Implementation Team to be a further textual and contextual consideration of substance in interpreting cl 3.5 which points away from the construction urged by the Unions. [99] I take into account that cl 3.5 refers to the nominated schedules being “transitioned”. However, the notion of “transition” is itself open to different meanings. It is capable of meaning something moving progressively to take an alternate form or shape. That construction somewhat supports the employer contention. Alternatively it is capable of meaning an unaltered transfer of a pre-existing state of affairs. That construction somewhat supports the Unions contention. Given the above contextual considerations, the former of these possible meanings is preferred. [100] Given this, the word “Governance” in cl 3.5 is properly construed as meaning the oversight of and ability to influence by mandated consultation changes to Trades Models and the implementation of any such changes rather than a conferral of regulatory control or ownership in the form of an approval or ratification mandate vested in a WGCC or Implementation Team. [101] Accordingly, whilst the textual construction of cl 3.5 is not without difficulty, I find that read in context and as a whole, it does not have the effect of precluding One Steel from deciding on and implementing Trades Models or changes to Trades Models provided One Steel has complied with its mandatory consultation obligations under the 2022 Agreement. Surrounding circumstances [102] It is permissible under the principles of interpretation of industrial instruments to have recourse to the history of a particular clause.28 [103] Given that the 2022 Agreement is capable, on a textual construction, of answering the question posed, it is not necessary to resort to extrinsic materials or surrounding circumstances including historical practice. [104] However, were it necessary to do so in order to determine the dispute (for example if the Agreement was considered to be ambiguous), the evidence before me of surrounding circumstances is itself inconclusive. [105] The surrounding circumstances relied on by both parties concern: • historical custom and practice; • bargaining conduct for the 2022 Agreement; and • (according to the respondent) post-agreement conduct. [106] The Unions submit that past historical conduct concerning changes to Trades Models supports a finding that changes have not occurred absent the approval or ratification of either a WGCC, Implementation Team or the Unions. The Unions submit that this historical conduct is -- 25 of 33 -- [2024] FWC 912 24 so entrenched that it forms custom and practice that assists the proper construction of the 2022 Agreement and the resolution of any ambiguity in the meaning or application of the instrument. [107] Conversely, One Steel submit that a finding concerning past custom and practice supports only a requirement to consult but not to obtain pre-implementation approval or ratification by a WGCC or Implementation Team. Historical custom and practice [108] Having regard to the evidence before me, I find that until 2019 the general custom and practice was that Trades Models and changes to Trades Models were submitted to WGCCs (of which there were more than one), and in some cases to the Implementation Team, for approval and not just consultation. There were some exceptions but this was the general practice. The evidence of Mr McMillan and Mr Karger, and to a lesser extent Mr Smith, support such a finding. Their evidence was that not only were Trades Models and changes to Trades Models usually submitted to WGCCs and sometimes the Implementation Team for consultation, but that the then employer did not unilaterally introduce changes without approval from one or other of those bodies. [109] I accept that evidence. [110] However, and whether directly connected to the sale and purchase of the steelworks in 2017 or not, during the life of the 2016 Agreement the employer’s practice changed. The evidence clearly supports a finding that at least from early 2020 the current employer adopted the practice and held the view that it would consult on Trades Models but had the right to implement changes without securing the approval of WGCCs or the Implementation Team, and did so. This was made clear in an email from a then manager (Mr Childs) to the AMWU (Mr McMillan) and the CEPU on 16 April 2020 in which it was stated:29 “I’ll take this as an opportunity to bring you up to speed with the approach that we are taking…As such there will not be a ‘sign off’ (or ratification process) required as part of this Trades Model review. We will genuinely consult and we will genuinely address any questions or concerns raised by the team during the consultation period.” [111] This new approach was implemented but did not go unremarked. During at least two subsequent meetings of a WGCC (SMR Fixed Plant) the employer’s approach was minuted after being questioned by a union representative.30 [112] The evidence of Ms Standing was that of the twelve Trades Models in mining that were changed in 2020/21 following the Cutts Review, all were consulted on but ten were not submitted for ratification by the Unions (through a WGCC or Implementation Team, nor otherwise) but two were.31 [113] Whether this post-2019 conduct by management was consistent with the terms of the 2016 Agreement is not for me to determine; rather, the relevant finding is that, to the extent there was prior custom and practice to obtain the Unions’ approval (via a WGCC or Implementation Team), that practice was not generally applied during the final two years of operation of the 2016 Agreement (2020 to April 2022) including during its renegotiation. -- 26 of 33 -- [2024] FWC 912 25 [114] This being so, whilst past historical practice prior to 2020 supports the Union construction, the more recent past historical practice does not do so. [115] Also weighing against giving undue weight to historical practice is the fact that during bargaining for the 2022 Agreement the business was owned by a different and unrelated corporate entity to that which had bargained for preceding agreements. It is not in dispute that the business (steelworks and mining operations) were sold in August 2017 to the Gupta Group, the present employer. [116] The Unions also make reference to what is said to have been historical practice under the steelworks agreement (MPS). Whilst of some relevance because comparable language exists between the two instruments, I nonetheless apply a degree of caution in giving undue weight to conduct relied on by the Unions relating to Trades Model changes under the MPS Agreement (steelworks). There are two reasons for doing so. Firstly, whilst the employer and the Unions covered by the MPS Agreement are the same as the 2022 Agreement, the MPS Agreement was voted on by a different cohort of employees at a different point in time performing different work at a different geographic location. Secondly, to the extent reliance is placed on approval of Trades Model changes in the steelworks by a WGCC in August 2023, that conduct occurred after the 2022 Agreement (MBR) was made. [117] Accordingly, historical conduct and practice, whilst somewhat supporting the Union position, is not generally a safe basis on which to construe the 2022 Agreement or resolve textual ambiguity. Bargaining conduct [118] It is apparent from the above findings concerning historical practice that the parties went into the bargaining round in August 2020 for a new agreement to replace the 2016 Agreement with differences of view as to whether the then existing instrument required Trades Model approval by a WGCC or Implementation Team. [119] Bargaining for a new agreement was lengthy and difficult. It commenced in August 2020. It did not conclude until February 2022. [120] I do not need, for the purposes of this decision, to recite all of the evidence concerning bargaining issues that was before me. What is relevant are simply matters concerning Trades Models. The relevant findings, supported by the agreed facts, are as follows. [121] The parties held differences as to whether Trades Models should be based on competency (the employer position) or hours of training (the status quo and Union position). This question was the subject of bargaining. Relatively early in the bargaining process the employer agreed not to further press its claim for a new competency based model. In return, it was agreed that vendor competencies and national competencies in existing Trades Models would be recognised once Trades Models were reviewed.32 [122] There was little if any specific discussion in bargaining about whether approval or ratification of Trades Models was or would be required by a WGCC or Implementation Team, -- 27 of 33 -- [2024] FWC 912 26 though, as noted, the parties held different views on what was required by the 2016 Agreement and what was appropriate. There was however extensive discussion about the nature and timing of consultation and what it meant, not just in relation to Trades Models, but concerning the introduction of change more generally in business units. [123] The parties also held differences of view as to whether the then two agreements (steelworks and mining) should be rolled into one. The employer sought one agreement as part of a general view it held about the need for simplification. This included a view the employer advanced (evidenced by its first draft replacement agreement in November 202033) that the schedules to the 2016 Agreement were largely redundant and should be removed, with those aspects of the schedules which were still relevant being directly written into the new agreement. Conversely, the Unions considered that simplification risked leaving employees worse off including that removal of the schedules could have that potential effect. [124] In December 2021 bargaining came to a head. The owners sought that at least an in- principle agreement be reached. The bargaining representatives (Union and employer) were advised to spend two days in Adelaide (8 and 9 December) and not leave until an in-principle agreement was made. An in-principle agreement was reached. The employer conceded that two separate agreements would apply. Other disputed terms were agreed or agreed in-principle. In relation to consultation generally, the employer agreed (in the handwritten notes of Ms Curren) to:34 • “Include/prescribe WGCC & IT”; • “Consult before definite decision”; and • “Rosters not used as a punishment (individual)”. [125] On 22 February 2022 the parties met to finalise the agreement. Trades Model clauses had already been agreed. Other terms and conditions had also been agreed. Discussion turned to the schedules to the 2016 Agreement and what was to be done with them. An impasse ensued. One Steel sought that the schedules be policy documents held by the employer for future reference if needed. Union bargaining representatives disagreed. The Unions, taking a break from bargaining, passed a resolution that there would be no deal unless the nine schedules to the 2016 Agreement were retained in some form. The resolution read:35 “This meeting of delegates from the AWU, AMWU, CEPU and CFMEU unanimously endorsed the following. If the below clause isn't included as in-principally agreed at the University on the 8th and 9th of December 2021, we reserve our right to walk away from the in-principally agreed position established during those negotiations. Any schedules listed or removed from the 2016 enterprise agreement/s, to simplify the current proposed agreement/s, will be moved to the full ownership of the WGCC's and overseen by the IT Committee, this includes but not limited to the following. Schedules, 1, 3, 5, 6, 7, 8, 10, 12, 13, -- 28 of 33 -- [2024] FWC 912 27 Shane Karger (AWU) : Paul Scudds (CEPU) Steve McMillan (AMWU) Marcus Pare (CFMEU)” [126] The Unions proposed a clause that reflected this resolution.36 As stated in the agreed facts, the Unions sought “the schedules to be preserved in policy under the ownership of the WGCC and Implementation Team”.37 [127] One Steel did not agree with the Union proposal. The employer was however willing to negotiate a compromise. This was one of the final matters negotiated. The following day the employer proposed alternate wording as follows (agreed fact 23): “Any schedules which were in the Arrium Middleback Ranges Employees Enterprise Agreement 2016 and are not part of this agreement (i.e. Schedules 1,3,5,6,7,8,10,12 and 13) are transitioned to the governance of the WGCC and overseen by the IT Committee, any changes to the processes concerning these matters will be the subject of consultation”. [128] The Unions then agreed to the alternate wording. [129] What is now cl 3.5 was then included in the proposed agreement that went to a vote, and was voted up. [130] Based upon this bargaining conduct it is readily apparent that cl 3.5: • was a compromise set of words; • concerned in part but was not exclusively about the bargaining subject matter of Trades Model arrangements. It was part of a broader arrangement to not have the nine schedules simply transferred to the control of the employer as internal management policy or be removed entirely from the industrial settlement or the participation of Unions but to have them “preserved in policy under the ownership of the WGCC and Implementation Team”38; • emanated from a bargaining dispute about simplification and whether simplification left employees worse off; and • neither the employer nor the Unions reached let alone recorded a common understanding of what cl 3.5 meant or how it would be applied in practice. [131] A Questions and Answers document submitted to employees in advance of the vote did not specifically deal with cl 3.5 or its meaning or application.39 However, an explanatory table sent by the employer to employees on 23 February 2022 in advance of the vote did so. That document compared the then operating agreement with the proposed new agreement. The comparative table stated, in respect of the new cl 3.5:40 “The Current Agreement has schedules that do not appear in the Proposed Agreement. A clause has been inserted that provides that the company will consult with the WGCC, -- 29 of 33 -- [2024] FWC 912 28 overseen by the IT Committee, if making changes to the processes concerning the application of such matters.” [132] This explanatory table supports the aforementioned textual construction in that no mention is made to the new cl 3.5 providing rights and obligations beyond “consultation”. No mention was made to employees that a right of approval or ratification of changes was to be vested in a WGCC or Implementation Team. [133] To the extent that recourse to extrinsic material concerning bargaining is necessary or appropriate, this explanatory table is of some value because it was created once bargaining had concluded and was created for the purposes of explaining to those eligible to vote the effect of the agreed document whose terms had been settled by their bargaining representatives. However, its value is minimised by the fact that this comparative table was the employer’s document; that is, it is not readily apparent on its face that the Unions agreed with the precise explanatory text. [134] Given this, bargaining conduct leading up to the making of the 2022 Agreement, including in relation to the new cl 3.5, is not a safe basis on which to construe the 2022 Agreement or resolve textual ambiguity. This is particularly so in light of the textual changes that exist between the 2016 Agreement and the 2022 Agreement, and in particular that cl 3.5 was entirely new. There is no basis for concluding that a common intention existed as to the meaning of cl 3.5 or its practical application. This is particularly so in light of recent authorities which express caution in making a finding of common intention. As noted by the Federal Court:41 “The mere fact that something was done (or not done) in the past is not evidence of a settled interpretation, of which the parties had a common understanding.” Post-agreement conduct [135] In December 2022 and following commencement of the 2022 Agreement One Steel undertook a review of Trades Models (an earlier review had been conducted in 2019-20, the Cutts Review). The 2022-23 review led to the employer, following consultation, proposing changes to twelve Trades Models (in mining). [136] One Steel implemented two of those twelve changes in June 2023 after consultation but without submitting them to a WGCC or Implementation Team for approval or ratification. Upon filing this dispute, the remaining ten were put on hold. [137] I do not accept the employer submission that this post-agreement conduct assists the proper construction of the 2022 Agreement. Established authorities guard strongly against doing so. Whilst the decision of a full bench of the Commission in Berri contemplated circumstances in which post-agreement conduct may be admissible as an aide to interpretation, this approach was more cautiously assessed by a differently constituted full bench of the Commission in the latter decision in Orica.42 [138] Even if it were it permissible to do so, the evidence in this matter does not nearly come close to permitting a finding to be made about post-agreement conduct that would be a safe -- 30 of 33 -- [2024] FWC 912 29 basis on which to construe the 2022 Agreement or resolve textual ambiguity. That changes to ten of twelve Trades Models were put on hold pending resolution of this dispute points strongly against doing so. Conclusion [139] I have concluded that the text of the 2022 Agreement when read as a whole and in context, whilst not without difficulty, does not have the effect of precluding One Steel from making changes to Trades Models or implementing those changes provided One Steel has complied with mandatory consultation obligations under the 2022 Agreement. [140] I have concluded that were it necessary to have regard to historical custom and practice or to bargaining conduct associated with making the 2022 Agreement both considerations are inconclusive and not a safe basis on which to construe the 2022 Agreement or resolve textual ambiguity, though historical custom and practice weighs somewhat more favourably but not decisively to the Union construction. [141] I have concluded that it is not appropriate to have regard to post-agreement conduct and that it provides no guidance to construction or determination of the dispute. [142] Accordingly, I determine the dispute as follows. [143] On the jurisdictional question, I find that the dispute is a matter “arising under” the 2022 Agreement and that the Commission has jurisdiction to determine the dispute. [144] The merit question posed was: “Is there a requirement under the GFG South Australia MBR Enterprise Agreement 2022 that a Work Group Consultative Committee and the Implementation Team ratify a proposed Trades Model (or proposed Trades Model amendment) before the proposed Trades Model may be implemented by the Respondent?” [145] For the aforementioned reasons, the answer to the question is ‘no’. [146] I make two concluding observations. [147] Firstly, nothing in this decision should be seen as the Commission expressing a view on the merit of changes proposed by One Steel to Trades Models. The principles of interpretation require the Commission to take the 2022 Agreement as it is found. Those principles preclude the Commission from relitigating the industrial settlement. [148] Secondly, the employer and the Unions are mature industrial parties whose industrial relationship is critical to the effective operation of the Whyalla Steelworks and related mining activities in South Australia. Throughout these proceedings I have observed that, despite current differences over Trades Model changes under the 2022 Agreement, a maturity of approach remains an element of the industrial relationship. Acknowledging differences and subjecting them where necessary to a process of orderly dispute settlement, including arbitration, need not damage industrial relations if that maturity of approach remains intact. -- 31 of 33 -- [2024] FWC 912 30 [149] The dispute is determined accordingly. DEPUTY PRESIDENT Appearances: P. Rocconi on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AWU) with S. Russell of the Australian Workers' Union (AWU) and D. Austin of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) T. Duggan KC of counsel, with permission, on behalf of Gupta Family Group Alliance (GFG Alliance) T/A One Steel Manufacturing Pty Ltd with L. Viant of Minter Ellison Hearing details: 2024. Adelaide; 13, 14 and 15 March Printed by authority of the Commonwealth Government Printer <PR773314> 1 Extensions for the filing of materials were granted on 16 February 2024 2 The applicants objected. Decision at directions hearing 10 January 2024 3 A1 4 A3 5 A4 and A5 6 A6 7 R2 8 R1 9 R4 10 Not required for examination 11 R5 12 R2 BS5 13 F10 item 1.4 14 F10 item 2.1 -- 32 of 33 -- [2024] FWC 912 31 15 Fiona Trust & Holding Corporation v Privalov (2007) 4 All ER 951, [12] 16 Rinehardt v Hancock Prospecting Pty Ltd [2019] HCA 13, 23 (per Kiefel CJ, Gageler, Nettle and Gordon JJ) 17 Toyota Motor Corporation Australia limited v Marmara [2014] FCAFC 84, [61] 18 Ibid [37] 19 Qantas Airways Limited v Mazzitelli [2020] FWCFB 2628, [33]-[34] 20 AMWU v Berri Pty Ltd [2017] FWCFB 3005 (Berri), drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 (Golden Cockerel) 21 [2018] FCAFC 131, [197] 22 [2020] FCAFC 123, [65] 23 Australian Workers Union v Orica Australia Pty Ltd (Orica) [2022] FWCFB 90; Fresh Food Management Services Pty Ltd [2023] FWCFB 97; Sydney International Container Terminal Pty Limited t/a Hutchinson Ports v CFMMEU [2023] FWCFB 87; The Appellant v Commonwealth of Australia as represented by the Australian Federal Police [2024] FWCFB 196, [23] 24 Berri [2017] FWCFB 3005; Golden Cockrel [2014] FWCFB 7447 25 [2013] FWCFB 10165 26 Ibid [32] 27 Macquarie dictionary 3rd edition 28 Ridd [65] (v); Short v Hercus Pty Ltd [1993] FCA 51 29 R4 JM4 30 R4 JM5; JM9; see also JM8 31 R2 BS5 32 R2 paragraphs 12 and 13 33 R3 34 R1 SC4 page 1 35 A1 SM5 36 Agreed facts 20 and 22 37 Agreed fact 19 38 Agreed fact 19 39 A2 40 R1 SC8; A6 JS1; A3 SK3 41 Shop Distributive and Allied Employees’ Association v Woolworths Limited [2006] FCA 616, [31] 42 Australian Workers Union v Orica Australia Pty Ltd [2022] FWCFB 90, [17] -- 33 of 33 --