Federal Court of Australia

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Opal Packaging Australia Pty Ltd [2026] FCAFC 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER AND LONGBOTTOM JJ:

Introduction

1    The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) represents employees of Opal Packaging Australia Pty Ltd, a recycling, paper and packaging business. On 7 March 2024, the AMWU commenced proceedings in this Court against Opal alleging that by reason of Opal conducting random alcohol and drug testing on 13, 14 and 15 February 2024, Opal had contravened s 50 of the Fair Work Act 2009 (Cth) by not complying with cl 16.3 of the Opal Fibre Packaging National Enterprise Agreement 2022. Clause 16.3 forms part of the dispute resolution clause and cl 16.3(a) includes the phrase “work shall continue normally and the status quo remain”. The issue in the primary proceeding was whether cl 16.3 precluded Opal from conducting random alcohol and drug testing of its employees when certain aspects of its testing methodology were the subject of a dispute initiated by the AMWU. The primary judge dismissed the AMWU’s application on the basis that, properly construed, cl 16.3 did not inhibit Opal’s impugned conduct: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Opal Packaging Australia Pty Ltd [2025] FCA 875 (primary judgment or J).

2    The AMWU appeals against the primary judgment on the ground that the primary judge misconstrued cl 16.3 and, accordingly, erred by dismissing its application. The AMWU seeks an order quashing the order made by the primary judge, declarations that Opal contravened s 50 of the FW Act on 13, 14 and 15 February 2024 by failing to comply with cl 16.3 of the Opal Agreement, and the imposition of pecuniary penalties upon Opal.

3    Opal has filed a notice of contention that the primary judgment should be affirmed on grounds other than those relied upon by the primary judge, namely that it did not disturb the pre-dispute status quo by conducting random alcohol and drug tests of employees on 13, 14 and 15 February 2024 in accordance with its policy and therefore did not contravene cl 16.3(a) of the Opal Agreement.

4    Therefore, two issues require resolution on appeal:

(1)    what is the correct construction of cl 16.3 of the Opal Agreement; and

(2)    if the construction propounded by the AMWU is correct, did Opal contravene cl 16.3 on 13, 14 and 15 February 2024.

5    For the reasons which follow, we are of the view that, whilst there was a misconstruction of the clause below, Opal’s notice of contention should be upheld, and the appeal should accordingly be dismissed.

The disputed clause

6    Given that the dispute centres upon a construction of cl 16.3, it is worthwhile extracting the whole of the relevant clause of the Opal Agreement:

16. Dispute resolution procedures

16.1 Scope

The dispute resolution clause will be used if there is a dispute in relation to all matters which pertain to the relationship between the parties and the Union/s covered by this Agreement. For the sake of clarity this may include any dispute arising in relation to the following:

(a) a dispute in relation to a matter under this Agreement;

(b) a dispute in relation to any workplace industrial policy, practice or procedure

(c) a dispute in relation to any amendment or termination, or proposed amendment or termination of this Agreement or workplace policy or procedure, or any bargaining or negotiating for, or making of, a new agreement or workplace policy or procedure;

(d) the Awards referred to at sub-clause 3(b) and any other incorporated instrument;

(e) the NES.

16.2 Procedures to be used

The following procedure for the avoidance or resolution of a dispute shall apply:

(a) At any stage during this dispute’s process an employee is entitled to appoint a Union representative, including a Union delegate, or any other representative as requested by the employee, to act on their behalf.

(b) In the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor/manager.

(c) If such discussions do not resolve the dispute, discussions between the employee or employees concerned with the State Official or State Secretary or their nominated representative and more senior levels of management will take place.

(d) If the dispute cannot be resolved at a workplace level, the National Official or Assistant National Secretary or their nominated representative will have discussions with a more senior representative of the Company.

(e) If a dispute is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation.

(f) If FWC is unable to resolve the dispute by way of mediation and/or conciliation and where the matter in dispute remains unresolved, the parties will have the matter heard by the FWC by way of arbitration.

(g) The Company, the employee(s) and the Union agree to abide by any decisions or orders made by FWC, subject to exercising any right of appeal to a Full Bench.

16.3 Work to continue as normal

(a) It is a term of this agreement that while the dispute resolution procedure is being followed work shall continue normally and the status quo remain unless an employee has a reasonable concern about an imminent risk to his or her health or safety or the company has a concern about an imminent risk to the health or safety of any employee.

(b) While the dispute resolution procedure is being followed, work in the area affected will remain as it was at the initiation of the dispute.

(c) For the avoidance of doubt, no employee’s duties, shift, occupation or income will be changed during this process.

16.4 Timing

The parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible. Additionally, the parties agree that should the matter be notified in FWC, the parties will jointly seek to expedite the matter, by requesting FWC to give it priority.

Relevant background to the dispute

7    Opal operates a box manufacturing business at 10 sites in Australia, including at Scoresby and Brooklyn in Victoria and Launceston in Tasmania. Opal purchased the business from the Orora Group by way of an asset Sale arrangement completed on 1 May 2020. The same business had previously been operated by Amcor Fibre Packaging until 2013.

8    Prior to the sale of the business, Orora applied a policy of testing its employees for alcohol and other drugs (AOD Policy). The AOD Policy contained a provision concerning random testing as follows:

Random testing

Team Members are required to submit for testing as part of random testing programs.

The process to select the random sample of Team Members and/or sites/shifts for

testing will be determined by the Testing Provider.

9    In applying the AOD Policy, Orora’s approach had been to randomly select a particular worksite for testing and then test all employees to whom the AOD Policy applied at that site (blanket testing). In early April 2020, prior to completion of the sale of the business to Opal, Orora paused random testing under the AOD Policy by reason of operational constraints associated with public health orders made during the COVID-19 pandemic.

10    Upon taking over the business, Opal adopted the AOD Policy as its own for the 10 worksites it acquired from Orora. It also continued the suspension of any testing under the AOD Policy for a considerable time.

11    On 23 January 2023, the Fair Work Commission approved the Opal Agreement, and it took effect from 30 January 2023. Clause 16, Dispute Resolution Procedures, of the Opal Agreement is in identical terms to the dispute resolution procedure clauses of the two predecessor agreements.

12    On 23 October 2023, Opal sent an email to “All Opal Users - Australia”, which apparently included employees to whom the Opal Agreement applied. The email, omitting formal parts, stated:

Alcohol and Other Drugs Policy (AOD) – Australia (excluding OAP sites Maryvale, Preston, Bassendean and Carole Park).

Update on random testing and consultation on proposed policy changes.

At Opal, Safe is our core value and we care about the health, safety and wellbeing of our people. We commit to providing a safe and healthy work environment and promoting and encouraging appropriate behaviours, without compromise, in everything we do.

This commitment extends to Opal’s Alcohol and Other Drugs Policy – Australia.

The primary reason for the AOD Policy is to contribute to a safe workplace for all team members, in accordance with applicable workplace safety legislation.

Alcohol and other drugs in a team member’s system present a risk of impairment. If there is a risk that a team member is impaired at work, they are potentially placing themselves and their workmates in an unsafe situation.

While random testing has been paused under the Policy since the Covid-19 pandemic, it will recommence within the next month.

Testing will be randomly selected from team members on site at the testing time.

Reasonable suspicion, post-incident and return to work testing under the Policy have continued throughout the Covid-19 pandemic and will remain in place alongside random testing moving forward.

Opal is considering 3 key changes to the Policy, which can be found in the attached presentation, and is seeking feedback from you.

You are invited to provide feedback on the proposed changes by:

•    Speaking with your People Leader, HR Business Partner or Safety Business Partner for your site; or

•    E-mailing written feedback to communications@opalanz.com

You can also request for an appointed Health and Safety Representative for your site or other representative to provide feedback on your behalf.

The consultation period is open until Friday 10 November and Opal looks forward to your feedback on the proposed changes.

(Emphasis in original)

13    A consultation pack was sent with this email which included a presentation that identified “3 key changes” to the AOD Policy that were proposed as follows:

(1)    Removing the reference to self-testing facilities for alcohol in the workplace and the ability to exclude from duties after a self-test.

(2)    Removing the exception to being stood down after a non-negative screen test where a substance corresponding to a Pharmaceutical Fitness for Work Assessment (PFWA) is detected.

(3)    Removal of the ability to request a Medical Review Officer to review a confirmatory test against an employee’s PFWA, as such a review would automatically occur in every relevant case due to the second change.

14    After 23 October 2023 and until 1 February 2024, the proposed changes to the AOD Policy were the subject of disputes initiated at various worksites covered by the Opal Agreement, including at the Scoresby Box Plant, Brooklyn and Launceston. Consultation occurred thereafter.

15    On 23 January 2024, Opal advised employees that after consideration of the feedback it had received, it had decided to proceed with the three proposed changes to the AOD Policy, effective immediately. By email dated 25 January 2024, the AMWU protested against the changes on the basis that the dispute resolution procedure in the Opal Agreement was still engaged and that cl 16.3(b) operated to prevent the implementation of changes to the AOD Policy, including the introduction of “10% random sampling”. The AMWU claimed:

As we are still in dispute, Clause 16.3(b) of the Enterprise Agreement still applies. This means that the changes to the policy should not be implemented as “work in the area affected will remain as it was at the initiation of the dispute”. The introduction of random testing is a change to the work in the area affected.

16    Opal responded by email on the same day, communicating that it did not accept the AMWU’s assertion that cl 16.3 required Opal to conduct random testing using the same method as Orora had previously, nor that it prevented Opal from implementing the proposed changes to the AOD Policy. In particular, Opal noted the following:

There [was] no change in the Policy in terms of the method of selection for random testing. The Policy is silent on this point. The Policy has always provided random testing. That Opal is undertaking the sampling in a manner different to Orora did under the same policy is not a change in the Policy itself.

17    Opal conducted random testing of a sample of the workforce on 13 February 2024 at the Scoresby Box Plant, on 14 February 2024 at the Launceston site and on 15 February 2024 at the Brooklyn site.

18    On 14 February 2024, the AMWU made an application under s 739 of the FW Act for the FWC to deal with the dispute concerning the AOD Policy in accordance with the dispute resolution procedure in the Opal Agreement.

19    As stated earlier, the AMWU initiated its proceedings in this Court on 7 March 2024.

20    The dispute before the FWC was not resolved by conciliation and was the subject of an arbitration hearing on 29 May 2024. On 31 July 2024, the FWC (Masson DP) issued its decision: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Opal Packaging Australia Ltd T/A Ioak Fibre Packaging [2024] FWC 2012. In this decision, the FWC found that Opal was prevented from implementing the three specific changes to the AOD Policy proposed on 23 October 2023, and the use of a sample selection methodology for random testing rather than blanket testing, because of various deficiencies in the consultation process.

21    The AMWU filed its Statement of Claim (SOC) in the proceedings in this Court on 30 September 2024. In its SOC, the AMWU pleaded that the testing conducted on 13, 14 and 15 February contravened cl 16.3 of the AOD Policy on the following bases:

24.    The pre-dispute status quo was that random AOD testing would not be carried out.

25.    By conducting the above-pleaded AOD tests at all the Respondent on each occasion:

a.    failed to maintain the pre-dispute status quo;

b.     thus did not comply with cl.16.3 of the Enterprise Agreement, and

c.     as such contravened s.50 of the FW Act,

. . .

26.    Each of the above-pleaded AOD tests was conducted in accordance with the Respondent’s amended process under the revised AOD policy.

27.    The pre-dispute status quo was that, if random AOD testing was to be carried out, it would be done in accordance with the procedures set out in the prior AOD policy.

28.    By conducting the above-pleaded AOD tests in this manner, the Respondent on each occasion:

a.    failed to maintain the pre-dispute status quo;

b.     thus did not comply with cl.16.3 of the Enterprise Agreement, and

c.     as such contravened s.50 of the FW Act.

The primary judgment

22    For the reasons set out below, it is our view that the primary judge was led into error by the parties’ combined erroneous constructions of cl 16.3. It is therefore useful to consider the parties’ competing submissions before the primary judge. The primary judge noted the AMWU’s position that the “status quo” was a reference to “the existing state of affairs relevant to the dispute” or the “preservation of any part of the existing state of affairs subject to such a dispute” (J[21], [22]). According to the AMWU, the status quo was that “when random testing was conducted, it was conducted in a particular way – that is by blanket testing – and a deliberate decision had been made to suspend that testing entirely” (J[21]). The status quo that existed before the dispute was an “existing practice of Opal of applying the right to conduct random testing under the AOD Policy by blanket-testing shifts and not exercising that right” (J[25]). As a consequence, it was submitted by the AMWU that Opal’s proposal to change to sample testing and to resume testing was not permitted until the dispute was resolved (J[25]).

23    Similarly, Opal submitted that the term “status quo” was a reference to the status quo ante, “being the state of affairs as they existed immediately prior to the event which gave rise to the dispute” (J[32]). However, Opal submitted that the use of the expression “status quo remain” reinforced the immediately preceding words “work shall continue normally” such that the only restraint was on “work” not on policies or practices (J[33]).

24    Ultimately, the primary judge preferred Opal’s construction. The primary judge found that the authorities cited by Opal, which contained different dispute settlement clauses, were of limited assistance (J[35]-[42]). Further, the primary judge agreed with Opal that the industrial history (namely the evolution of predecessor enterprise agreements) did not assist the construction (in a more expansive way) as urged by the AMWU (J[42]). The primary judge’s preferred construction was confirmed by the phrasing and effect of the balance of cl 16.3(a), including by reference to other aspects of the legislative scheme and the construction of “status quo” in cl 16.3(a) as being directed to work being performed (J[43]). The primary judge accepted that the heading “work to continue as normal” aided the same construction given it was consistent with the ordinary approach that effect should be given to industrial agreements as a whole (J[46]).

Consideration

25    There was no dispute as to the applicable principles of construction which apply to enterprise agreements, as recently enunciated by the Full Court, in Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12], concurring with and summarising the principles as contained in the Full Court in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566, at [65], as follows:

(1) The starting point is the ordinary meaning of the words, read as a whole and in context (including the industrial context), citing City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197].

(2) 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, citing Kucks v CSR Ltd [1996] 66 IR 182 at 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac at [197].

(3) The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, citing Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2].

(4) 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 also include ideas that gave rise to an expression in a document from which it has been taken, citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53]; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer (Cth) (1998) 82 FCR 175 at 178.

(5) Recourse may be had to the history of a particular clause, citing Short at 518.

(6) A generous construction is preferred over a strictly literal approach, but the instrument should make sense according to the basic conventions of the English language, citing Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [57], City of Wanneroo v Holmes at 380.

(7) 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, citing City of Wanneroo v Holmes at 378-9; WorkPac at [197].

(Emphasis in original)

26    Care must be taken when constructing particular industrial instruments. Attention should be given to the relevant statutory scheme under which the instruments are made. In this case, relevantly, the parties were required, by operation of s 186(6) of the FW Act, when applying to the FWC for the enterprise agreement to be approved, to include a term about settling disputes:

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

27    Furthermore, by operation of s 737(2) of the FW Act, the FWC must determine a model term consistent with the requirements of s 186(6) and take into account a number of matters identified in s 737(2). The model term, as found in Sch 6.1A of the Fair Work Regulations 2009 (Cth) (at the time of the approval of the relevant agreement) included:

(6) While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

(7) The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.

28    However, whilst the FWC must determine the content of a model term, parties to an enterprise agreement are not compelled by the FW Act to adopt its terms. To the extent that there is such a compulsion, the dispute resolution term should include the matters set out in s 186(6). By operation of s 739, the dispute resolution clause limits the powers of the FWC in dealing with a dispute, including by way of arbitration (subject to certain limits).

Competing contentions

29    The AMWU contends that the words, in cl 16.3, “the status quo remain” equate to the state of affairs as they existed immediately prior to the event which gave rise to the dispute (namely the state of affairs, including practices and policies, relevant to the dispute). By this, the AMWU submitted that the clause constitutes a fetter on managerial discretion and requires the employer to “hold fast” (and not effect the change that is the subject of the dispute) until the orderly resolution of the dispute. The AMWU’s textual construction of cl 16.3 differed, primarily, from that of Opal on the basis that the phrase “the status quo remain”, expanded the scope of the clause (and what it would prevent Opal from doing during the life of the dispute), to not only “work” but to “practices and policies”. This construction was said to be aided by the content of cll 16.3(b) and 16.3(c). As a consequence it was submitted that, by this construction, cl 16.3 prevented Opal from taking steps to implement the contested change in the random alcohol and drug testing until the completion of the dispute resolution process. This construction was said to be aided by the text of the Opal Agreement, the industrial context and extrinsic materials.

30    By contrast, Opal contends that the phrase gives emphasis to the continuation of “work” and accordingly cl 16.3(a) is only directed to requiring that the performance of “work” continuing normally (as opposed to fettering the right of an employer to change its policies and practices) while the dispute resolution procedure was being followed. Opal submitted, that the phrase “the status quo remain” means the state of affairs as they existed immediately prior to the event that gave rise to the dispute but takes its meaning from the preceding phrase “work shall continue normally”. As a consequence, Opal submitted that the phrase means the relevant state of affairs that is intended to remain in place is the performance of work by employees, not all existing arrangements the subject of the dispute. Opal submitted that the AMWU was incorrect to draw on industrial context or history to purportedly buttress the purported uncertainty as to its meaning.

Resolution

31    For the reasons which follow, we are of the view that the primary judge erred in his construction of the effect of cl 16.3. However, it is our view that the error arose because both parties misconstrued the clause and by their combined submissions led the primary judge into error.

32    The alleged error, claimed by the AMWU, is that the primary judge misconstrued cl 16.3 in concluding that the clause did not preclude Opal from implementing a disputed change in policy and practice until the resolution of the dispute. This error was said to arise from a failure of the primary judge to embrace an interpretation of what the phrase means in both a temporal sense (the point at which there is a freezing of time) and substantive sense (what Opal was precluded from doing as at that point in time). The AMWU submitted that in a substantive sense, the “status quo” comprised the state of affairs that existed immediately prior to the event which gave rise to the dispute (namely the state of affairs, including practices and policies, relevant to the dispute). This construction cannot be accepted. By contrast, but also erroneously, Opal submitted that the phrase means the state of affairs as they existed immediately prior to the event that gave rise to the dispute but takes its meaning from the preceding phrase “work shall continue normally” and therefore does not include practices and policies relevant to the dispute. This interpretation is also incorrect.

33    Neither party gave sufficient consideration to what each of the subclauses of cl 16.3 were directed to achieving and what the clause, when each of those subclauses were read individually and then as a whole, is directed to.

34    One is not able to prescribe the universe of circumstances in which Opal may or may not be precluded from acting in particular ways once a dispute has been “initiated”. However, both sub cll 16.3(b) and (c) have work to do. They reveal that the clause is concerned with preserving the circumstances in which work was undertaken “at the initiation of the dispute” and to ensure that there be no change in working conditions (“the employee’s duties, shift, occupation or income”) “during this process”; therefore, after the initiation of the dispute.

35    On this basis, central to the resolution of the question of what Opal can do (or is constrained from doing) is dependent on what it had done before the “initiation of the dispute”.

36    We do not accept the artificiality of Opal’s submission that “the work” (in cl 16.3(a)) is directed purely to contractual terms and is differentiated from “policy or practice”. A policy or practice may expressly or by implication be incorporated into a contract. As to the phrase “work continues as normal”, this may include regulation of work by a custom or practice.

37    As a consequence, the question is then what “status quo” means: Is it a temporal limit or a limitation on a state of affairs related to the subject matter of the dispute? If it is a temporal limit, at what point in time is the temporal limit assessed? For example, is it immediately before the initiation of the dispute or at an earlier point in time when the genesis for the subject matter of the dispute arose?

38    It is our view that it is to be read as a temporal limit, as to the state of affairs that existed at the point in time when the dispute was initiated (not at any earlier time when the matter giving rise to the dispute occurred). Clause 16.3(b) expressly commands this. A reading of the entirety of clause 16, together with each of the subclauses of cl 16.3 reveals the intention of the clause is two-fold: To ensure that an employee does not engage in industrial action (for example work differently from the manner in which he or she ordinarily works) and also to ensure the employer does not engage in some form of action which affects the manner in which the employee works (hence the identified constraints on Opal’s managerial prerogative and protections for employees in cl 16.3(c)).

39    However, it is our view that “status quo” does not extend to any policy or practice implemented by Opal before the initiation of the dispute. This is clearly the intention of cll 16.3(b) and (c). To read cl 16.3(a) otherwise would mean that the clause is internally inconsistent. The following illustrates why this interpretation is to be preferred. If Opal had implemented a new policy of random drug testing a year before the initiation of the dispute, the clause cannot be read to the effect that Opal could be stopped from continuing conduct it had undertaken in the preceding year, consistently with that policy, a year later when a dispute was initiated. The status quo is a temporal one not expanded by the subject matter which is giving rise to the dispute. If it were to read in that way, the parties would not have used “status quo” simpliciter, but rather a formulation like that in Construction, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020; 212 IR 327 at [32], where the relevant clause was framed in the following way “the status quo shall remain (as it was prior to the matter in dispute)”. Further, if one were to read the phrase in cl 16.3(a) as having this effect, this reading would result in a conflict of the obligations and protections under cl 16.3(c). For example, if the subject matter of the dispute concerned a shift change which had been implemented at a time before the initiation of the dispute, according to the AMWU, Opal would then have to change the employee’s shift back to what it was before the change was implemented. However, cl 16.3(c) states that no employee’s shift “will be changed during this process”. This is because the clause is intended to ensure that an employee cannot be penalised during the process (regardless of whether Opal was able to make this change under contract or otherwise under the Opal Agreement).

40    If Opal had already implemented a policy or practice before the initiation of the dispute, then there is no preclusion or restraint from it continuing to do so. Rather what Opal is precluded from doing is, after the initiation of the dispute, changing work practices or conditions, including those identified in cl 16.3(c).

41    We accept the AMWU’s submission that by the phrase, “and the status quo remain”, something more associated with “work” is captured. However, whether something more is caught will depend on the circumstances. On the facts of this case (as reasoned below regarding the notice of contention) we do not accept that Opal was restrained in taking the action it did. That is, at the point of the initiation of the dispute, there was no policy or practice in place which impeded Opal’s capacity to carry out random testing.

42    However, we are also of the view that Opal would not be precluded from continuing a (now disputed) change which was implemented before the initiation of a dispute (the effect of cl 16.3(b)). Clause 16.3(b) necessarily informs what “the status quo” means. Its terms are clear and emphatic. They effect, in combination with the other subclauses, the dual purpose of the provision described above. To read cl 16.3(a) as being directed not only to expand out the point in time when the status quo is to be assessed to the point of the genesis of the subject matter of the dispute directly conflicts not only with the clear words and intent of cl 16.3(b) but also cl 16.3(c).

43    The clause is directed to ensuring, once a dispute is initiated, that employees do not take industrial action but also that employees are not penalised by Opal for initiating a dispute in any material way (hence the protections under cl 16.3(c)). The text does not lend support for an interpretation that cl 16.3(c) is seeking to fetter managerial prerogative for the purposes of aiding resolution, but rather to ensuring that employees are not penalised in a material way during the dispute process. The combined effect of the subclauses, notably including cl 16.3(b), is that if Opal had implemented a change before the initiation of the dispute (even one involving a change in employee’s duties, shift, occupation) then cl 16.3(c) would not preclude it. This is so given the deliberate deployment of the present tense in cl 16.3(c) “will be changed during this process”.

44    The clause is directed to ensuring that there is no industrial action nor penalisation of employees after the initiation of the dispute, and not injuncting a party from continuing with a policy or practice already implemented, which is the subject matter of the dispute.

45    It was submitted by the AMWU that the Court ought to take into account the historical evolution of the clause. The Court’s attention was drawn to nine predecessor enterprise agreements (with various past entities) that have been created under numerous different industrial statutes, namely the Industrial Relations Act 1988 (Cth) and then the Workplace Relations Act 1996 (Cth). Those predecessor dispute resolution clauses were much less prescriptive. They required that, while the dispute procedures were being followed, “work [should] continue normally” and that no party would be prejudiced as to final settlement by the continuance of work. It was submitted that, by this history combined with similar provisions in the underlying industrial awards (neither of which contained the phrase “the status quo remain”), this context points to a “deliberate departure” by the industrial parties from a consideration of the preservation of the undertaking of “work” simpliciter. Similarly, it was submitted that the combined operation of each of the subclauses in cl 16.3 comprised a greater constraint on Opal’s managerial prerogative than would have been the case if the model clause (created by the FWC after the inception of the FW Act) had been adopted. Lastly, it was submitted that account ought be taken of the words in the phrase having an “industrially significant meaning themselves” by reference to industrial decisions, in very different industrial and statutory contexts, from the 1980s and 1990s. It was submitted that these decisions reveal that the term “status quo” is directed to disputes about the interference with managerial prerogative.

46    We are not persuaded that much clarity may be gained from the industrial history nor broader industrial context. In this case it is the text itself which reveals purpose and meaning. However, we do accept, consistent with the AMWU’s submission, that the parties chose to depart from a less-prescriptive clause. We are of the view that, in divining the meaning of the clause, the whole of the clause and the combined effect of each of its contingent parts must be taken into account. It is our view that the interpretations proposed by both Opal and the AMWU have failed in this respect.

47    Attention was given by both parties, before the primary judge, to three previous decisions of this Court which required it to grapple with the effect of other dispute resolution clauses: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods [2006] FCA 1039; 155 IR 211; Thiess; and Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1313.

48    Each case concerned differently crafted dispute resolution clauses. In Ardmona, the relevant portion of the dispute resolution clause comprised: “In order to allow for the peaceful resolution of grievances the parties will continue with normal operations while this process is being followed and the – status quo as existed immediately before the dispute will remain while the dispute is being resolved” (at [44]). In Thiess, the relevant aspect of the dispute clause was in the following terms: “It is an express condition of this Agreement, that while the steps below are being followed normal work shall continue and the status quo shall remain (as it was prior to the matter in dispute), unless an employee has a reasonable concern about an imminent risk to his or her health and safety…” (at [32]). In Airservices the clause provided: “While a concern or dispute is being dealt with, work shall continue as normal being the status quo save for any bona fide safety concerns” (at [150]). Ultimately, the primary judge determined correctly that each decision was “of limited assistance” (at J[41]) given the obvious linguistic differences between each clause and adopted the observation of O’Callaghan SDP in United Voice v Transfield Services (Australia) Pty Ltd [2015] FWC 4177 at [18] namely that the interpretation of these provisions is dependent on the way in which they are drafted, the provisions or issues that are in dispute and the particular circumstances of the dispute. We concur with this observation. We can discern no error in the primary judge’s apparent acceptance (at J[42]) that there existed an alternate hypothesis postulated by Opal as to what the extrinsic material may reveal about the parties’ intention and this undercut the persuasiveness of the AMWU’s submissions regarding the clause’s history. Regardless, the history of the clause is of limited assistance.

49    However, it is clear that the parties intended, from the evolution of the clause, for the dispute resolution procedure to be more prescriptive than its predecessor instruments. Further, it is clear that each sub-clause in combination did intend to ensure obligations and protections of some width. The text reveals that Opal intended to give employees additional protections (by way of cl 16.3(c)). The fact that they did more than was in the previous iterations of the Opal Agreement is significant, including by entering the fray on the issue of “status quo” and what is contained in cl 16.3(c).

50    We do not accept that this reading, according to Opal, would be practically absurd. The AMWU accepts, as it is required to, that the relevant state of affairs is limited to that in dispute. Further, as we have found, the status quo does not reach back further than upon the initiation of the dispute. We do not accept that absurdity exists by reason of a potential to impede Opal’s ability to negotiate, primarily at the site level. The text is clear. It appears that the parties chose deliberately to have a clause of this kind, in terms which were more expansive regarding rights than the model clause and previous iterations.

51    Lastly, as to the potential of the clause being construed in this way to impede Opal from implementing a policy or change to comply with the law, we are of the view that it can be implied, as in a contractual sense, that the parties did not intend there to be any restriction by operation of the clause on either party complying with the law.

Opal’s notice of contention must succeed

52    By their notice of contention, Opal submits that the primary judgment should be affirmed on grounds other than those relied on by the Court, namely that Opal did not disturb the pre-dispute status quo by conducting random alcohol and other drug tests of employees in February 2024, as it offended no extant practice or policy.

53    The AMWU resisted the Notice of Contention on the basis that by the impugned conduct on 13, 14 and 15 February 2024, Opal (a) resumed (or re-introduced) random testing following a deliberate decision to halt it; and (b) changed the manner in which the testing would be conducted, by selecting individual employees as opposed to groups of employees working the same shift.

54    We do not accept the AMWU’s characterisation of the facts. As adverted to above, the relevant background facts reveal that Opal adopted the AOD Policy at the time of the Sale. Prior to then, random testing under the AOD Policy had been paused by Orora by reason of operational constraints arising from the COVID-19 pandemic public health orders. The AOD Policy allowed for random testing without specifying any mode for selecting those to be tested.

55    It was not contentious that the AOD Policy made no reference as to the manner of testing and expressly permitted random testing. The alleged “practice” as pleaded was that “random AOD testing would not be carried out”: SOC[24]. To the extent that there was a past practice by the previous entity, that practice had been “paused” because of the pandemic. It cannot be said that an habitual practice, namely something that was usual, customary, or comprised constant action or performance or conduct, was established. By analogy with contractual principles, for conduct to qualify as a custom or practice it is required that the conduct be notorious, uniform, reasonable and certain: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 at 236. Conduct will not constitute a “custom or practice” where the past conduct is exceptional, infrequent or otherwise equivocal: Ryan (Receiver & Manager of Homfray Carpets Australia Pty Ltd) v Textile Clothing & Footwear Union of Australia (1996) 130 FLR 313 at 340. We accept the force of Opal’s submission that a mere decision to commence random testing under the AOD Policy from a certain date did not thereby convert the state of affairs before that date into uniform or notorious conduct of not undertaking random testing.

56    In combination, these agreed facts reveal that there was an existing policy which allowed for random testing (which was not in any way prescriptive) and it was applied in different ways at different times according to different circumstances.

57    For these reasons, we do not accept that there had been a change (by policy or practice) in the “status quo” as it existed at the time of the initiation of the dispute and accordingly, whilst the primary judge erred in accepting Opal’s erroneous construction, Opal did not breach the clause and the appeal must be dismissed.

Associate:

Dated:    1 May 2026

REASONS FOR JUDGMENT

HATCHER J:

58    I have had the benefit of reading the judgment of Raper and Longbottom JJ in draft. I gratefully adopt their exposition of the subject matter of the appeal, the background facts, the reasoning and conclusions in the primary judgment, the established principles applicable to the construction of enterprise agreements, and the submissions advanced in respect of these by the parties. I agree with their Honours’ conclusions as to the disposition of the appeal and the notice of contention. However, I would uphold the AMWU’s appeal ground on the basis of a different construction of cl 16.3 of the Opal Agreement. In setting out my reasons, I adopt the abbreviations and defined terms used in their Honours’ judgment.

59    The primary judge adopted a construction of cl 16.3 whereby the words “work shall continue normally” are to be read as referring to a requirement that the performance of work by employees is to continue normally in accordance with the Opal Agreement, with the following words “and the status quo remain” having the purpose to reinforce the meaning of the earlier words: J at [31], [33]-[34]. I do not consider, with respect, that this is the way in which cl 16.3 should properly be construed.

60    I begin with some contextual matters. The use of the expression “work shall continue normally” in dispute settlement procedures in awards and agreements has a long history, dating back to at least the 1950s. A common formulation in dispute settlement provisions of awards and agreements of the 1950s and 1960s (for example, Amalgamated Engineering Union (Australian Section) & Ors v Ampol Petroleum Ltd & Ors (1959) 91 CAR 212 at 231; Memorandum of Agreement between The Electrical Contractors Federation, Victoria and The Electrical Trades Union of Australia (1960) 94 CAR 897 at 905; Carpenters and Joiners Awards 1962, 1963 and 1964 (1964) 105 CAR 741; Federated Storemen and Packers Union of Australia v Ampol (Alba) Petroleum Pty Ltd & Ors (1961) 97 CAR 162 at 178) was:

[62] While the above procedure is being followed, work shall continue normally where it is agreed that there is an existing custom, but in other cases the work shall continue at the instruction of the employer.

61    The above formulation was usually accompanied by a provision to the effect that neither party was to be prejudiced in the resolution of the dispute by the continuance of normal work. The reference in such provisions to work continuing “at the instruction of the employer” makes it apparent that provisions of this type were concerned with the normal continuation of work by employees and thus may be understood as directed at the avoidance of industrial action whilst the dispute settlement procedure was being followed. There was later, in the 1960s, 1970s and 1980s, a tendency to contract this formulation to simply a requirement that “work shall continue normally” while the dispute settlement procedure was being followed, whilst still accompanied by the “no prejudice” proviso: see, for example, Transport Workers (General) Award 1959; Re Electricity Trust of South Australia (1962) 100 CAR 154 at 155; Australian Workers’ Union Construction and Maintenance Award 1975 (1982) 271 CAR 11 at 26; Clerks’ (Queensland Alumina Limited) Agreement 1980 (1982) 280 CAR 732 at 734. However, it is not apparent in any case that this was intended to change the subject matter of the provision from one concerned with the continuation of normal work by employees.

62    The industrial history of the enterprise agreements which preceded the Opal Agreement the subject of these proceedings fits squarely within this wider context. Opal’s box manufacturing business was operated by Amcor until 2013. When operated by Amcor, the business was subject to a number of enterprise agreements commencing in 1992. There were, prior to the making of the Amcor Fibre Packaging National Enterprise Agreement 2010 (2010 agreement), six enterprise agreements which operated successively. These were made under the Industrial Relations Act 1988 (Cth), which in 1996 metamorphosed into the Workplace Relations Act 1996 (Cth). Each of these agreements contained a procedure for the settlement of disputes which included provisions to the following effect (reproduced as appearing in the last of these agreements, the Amcor Packaging National Agreement 2007 (2007 agreement)):

(b) While the above procedures are being followed, work shall continue normally in accordance with this Agreement.

(c) No party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause.

63    Having regard to the wider context referred to, the provisions in these six agreements can be understood as imposing an obligation upon employees to continue to perform their work in the normal way. This accords with the ordinary meaning of the words used, in that it is the employees who perform work under the agreements in question and are capable of continuing it, or otherwise, in accordance with the terms of the agreement.

64    The 2007 agreement was replaced by the 2010 agreement, which was the first made and approved under the provisions of the FW Act. It contained a dispute resolution procedure (cl 15) which was substantially different from that in the 2007 agreement and was, for all relevant purposes, the same as the provision in the Opal Agreement. In respect of what is now cl 16.3, the only difference is that the equivalent of paragraph (a) in the 2010 agreement was not given a paragraph designation. That the text of the dispute settlement procedure was so radically changed in the 2010 agreement, including in relation to the previous “work as normal” provision, is in my view contextually indicative of an intention to substantially alter its meaning.

65    An analysis of the text of the current cl 16.3 confirms this position. The first critical change, in cl 16.3(a), is that the requirement that the “status quo remain” has been added to the pre-2010 agreement requirement that “work shall continue normally”. On its ordinary meaning, the “status quo” is a wider concept and, having regard to the subject matter of cl 16, means the state of affairs as they existed immediately prior to the event which gave rise to the dispute (as Opal accepted at first instance: J at [32]). Taken alone, the “status quo” is not anchored to the performance of work by employees and may be understood as casting a wider net. As an example of this, a Full Bench of the former Australian Industrial Relations Commission considered in 2008 whether the standard dispute resolution clause for the modern awards it was in the process of establishing should contain a requirement that work should continue normally or, alternatively, a requirement for the maintenance of the status quo: Re Request from the Minister for Employment and Industrial Relations – 28 March 2008 (2008) 177 IR 364; AIRCFB 1000. The Full Bench said at [42]-[44]:

[42] With one exception we do not see the need to make any alterations of substance to the dispute resolution provision contained in the exposure drafts. The matter which needs comment concerns the requirement in the provision that while the dispute resolution procedure is being conducted work should continue “normally”. The use of the word “normally” led a number of parties to make alternative suggestions. There are two issues. The first is whether the provision should contain a requirement that the status quo be maintained while the procedure is being conducted. The second issue is whether the word “normally” is in any event too imprecise.

[43] We have concluded that it is not appropriate that the dispute resolution provision should contain a requirement that the status quo be maintained. While experience indicates that in many cases it is difficult to ascertain the status quo and that difficulty may itself be a cause of dispute, that is not a sufficient reason for not including such a requirement. A more compelling reason, in our view, is that the nature of the powers which the Commission can exercise in the dispute resolution process is inconsistent with a status quo requirement. Where compulsory arbitration is not in contemplation it would not be appropriate to require one side or the other in the dispute to revert to the pre-dispute situation pending the outcome of the process.

[44] We agree, however, with those who suggested that the term “normally” is too general. We have replaced “normally” with the expression “in accordance with the award and the Act.” We have retained the provision which makes it clear that the employer can direct what work an employee can perform.

66    It is apparent that the Full Bench considered a requirement to continue to work normally as being a distinct concept from a requirement to maintain the status quo, with the latter requiring either side in a dispute – that is, not just the employees – to “revert to the pre-dispute situation pending the outcome of the process”.

67    The primary judge, as earlier stated, nonetheless took the view that the requirement that the “status quo remain” was, read in context, applicable only to the continuation of normal work and was not to be read as constituting any additional or wider requirement. I respectfully disagree with that conclusion for the following three reasons.

68    First, that approach does not give effect to the principle that a court should strive to give all words in a legal instrument meaning and effect and that particular words should not be treated as superfluous or redundant. In the context of statutory construction, this principle is as stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ; a similar principle applies to the construction of contracts: XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 at [72]-[73] per Gleeson JA, Bell P and Emmett AJA agreeing. The principles of statutory construction have generally been applied to the interpretation of awards and other industrial instruments: George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J); Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 520 per Burchett J; King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [125] per Wheelahan J. There is no reason why a principle analogous to that stated in Project Blue Sky should not be applied to the construction of provisions in enterprise agreements.

69    The application of that principle requires an endeavour to give meaning and effect to the requirement that the “status quo remain” that is separate to and distinct from the immediately-preceding requirement that “work shall continue normally”. That is all the more so because, as earlier recounted, the status quo requirement was added to the pre-existing “work shall continue normally” requirement in the 2010 agreement: see Australian Postal Corporation v Melbourne City Council [2005] VSCA 295; 14 VR 678 at [20] per Charles and Nettle JJA; D C Pearce, Statutory Interpretation in Australia (10th ed, LexisNexis Butterworths, 2024) at [2.44]. The natural inference is that those who made the 2010 agreement intended to effect an alteration to the meaning of the provision which had appeared in the earlier Amcor agreements, and this supports the conclusion that the words “status quo remain” requirement should bear the meaning earlier indicated.

70    The primary judge accepted Opal’s submission (J at [33]-[34]) that reliance might be placed on Teele v Federal Commissioner of Taxation [1940] HCA 3; 63 CLR 201 to support the proposition that the words “status quo remain” are merely confirmatory of the “work shall continue normally” requirement. In Teele, Dixon J (Latham CJ and Rich J agreeing) concluded, in respect of the expression “charitable and religious causes” in a bequest in a will, that “religious” was not to be read as denying the broader legal meaning of “charitable”. Dixon J said (at 206-207):

[72] The word “charitable” in the gift should, I think, receive its prima-facie legal meaning, and the gift therefore covers any object which might be the subject of a valid charitable trust. “Charitable” is a word of known legal import, and unless some sufficient reason is found in context, subject matter or otherwise it should, in a will, be given that meaning. It was said that the mention of “religious” causes showed that the testator did not mean “charitable” to bear its prima-facie meaning, because religious causes were covered by that meaning and the express reference to them would be redundant. The statement that all religious causes are charitable is not perhaps strictly accurate, but passing that consideration by, I do not think that the logical redundancy of the reference to “religious causes” is a sufficient ground for denying its legal meaning to the word “charitable.” A desire on the part of the testator to make clear or to emphasize his intention that religious causes should be considered by his trustees is enough to account for the presence of the words. In any case arguments of construction founded on tautology or redundancy are never strong.

71    That reasoning in Teele is not applicable in this case because, for the reasons stated, a requirement to maintain the status quo is a distinct and broader concept than one simply to continue working normally. No tautology is involved and thus the former cannot be read as confirmatory of the latter. The approach preferred by the primary judge actually involves the broader concept being read down by reference to the narrower concept, resulting in an outcome opposite to that in Teele. This is, in my view, unwarranted: the separate, albeit perhaps overlapping, requirements for work to continue normally and for the status quo to remain can both be given meaning and effect.

72    Second, the text of cl 16.3 considered as a whole puts it beyond doubt that the requirements of the clause extend well beyond a mere obligation upon employees to continue the normal performance of work. Clause 16.3(a) itself establishes an exception to the requirement it imposes related to a concern about an imminent risk to health or safety. This exception applies to Opal as well as to the employees (“the company has a concern about an imminent risk to the health or safety of any employee”), which necessarily implies that cl 16.3(a) imposes obligations on Opal as well as its employees.

73    This is confirmed by cl 16.3(c), which is prefaced by the words “[f]or the avoidance of doubt”. Where this or similar expressions are used in a provision of a legal instrument, they are usually taken to indicate that the provision is intended to clarify, rather than altering or adding to, the meaning of a preceding provision: Allen v Feather Products Pty [2008] NSWSC 259; 72 NSWLR 597 at [25]-[27], Aurumstone Pty Ltd v Yarra Bank Developments Pty Ltd [2017] VSC 503 at [29(e)]; Panochini v Jude [1999] QCA 444; 2 Qd R 322 at [15]. Clause 16.3 therefore serves as a contextual indicator of the intended breadth of the requirement that “work shall continue normally and the status quo remain” in cl 16.3(a) rather than adding additional requirements. It clarifies that these words encompass a requirement that “no employee’s duties, shift, occupation or income will be changed” while the dispute resolution process in cl 16 is being followed. This clearly goes well beyond the normal performance by employees of their duties and confirms that compliance with the status quo requirement may involve a significant restriction on the capacity of the employer to make operational changes while the dispute resolution procedure is being followed. This is inconsistent with the effect of cl 16.3(a) being confined to the normal performance of work by employees.

74    In saying this, it needs to be emphasised that the status quo obligation in cl 16.3(a), as informed by cl 16.3(c), does not operate at large. These provisions must be read in the context of cl 16 as a whole, which is concerned only with the resolution of disputes. This necessarily confines the status quo obligation, including the restrictions on normal managerial powers adverted to in cl 16.3(c), to the subject matter of the dispute. Clause 16.3 does not operate to freeze Opal’s capacity to run its business in respect of matters that are independent of the subject matter of the dispute. So much was accepted by the AMWU.

75    Third, the approach taken by the primary judge leads to the counter-intuitive result that the significant textual changes to the dispute resolution procedure made in the 2010 agreement and continued in all the subsequent agreements did not effect any alteration to the meaning of the relevant part of the procedure. The primary judge accepted as “plausible” Opal’s argument that the relevant changes were intended to give effect to the construction given by this Court (Ryan J) in Ardmona to the grievance and dispute resolution procedure there under consideration: (J at [42]). In my view, Opal’s argument is not tenable. In Ardmona, one of the issues which arose for determination was whether the implementation by the employer of a disputed shift change contravened the grievance and dispute resolution procedure in the applicable agreement, which relevantly provided:

(vi) Without prejudice to each party, work shall continue in accordance with the agreement while the matter in dispute is dealt with.

(vii) In order to allow for the peaceful resolution of grievances the parties will continue with normal operations while this process is being followed and the - status quo as existed immediately before the dispute will remain while the dispute is being resolved.

76    The conclusion reached by Ryan J (at [52]) was that there had been no contravention. However, this conclusion was founded on the use of the expression “normal operations” in subcl (vii) of the procedure:

[78] … it signifies that work will continue without any exceptional or unusual action on either side; see eg Peak Trailer & Chassis v Jackson [1967] 1 WLR 155…the susceptibility of employees to work different shifts at the direction of Ardmona was, I consider, a normal incident of employment as recognised by cl 26.6 of the Food Preservers’ Award. It did not cease to be “normal”, in the meaning I have accorded to the word, upon a particular employee’s protesting about a specific direction.

77    His Honour did not give consideration to the “status quo” requirement in subcl (vii) of the procedure, and thus there was no construction of this expression in Ardmona to which the parties could have given effect in the 2010 agreement. The expression which Ryan J did construe, namely “normal operations”, was not included in the relevant provision of the 2010 agreement. Further, the inclusion of the provision that is now cl 16.3(c) in the 2010 agreement, which makes it clear that the maintenance of the status quo may require that an employee’s shift not be changed, achieves precisely the opposite outcome to that determined in Ardmona. It is probably unnecessary to add that the Ardmona decision predated the 2007 agreement, in which there was no change to the dispute resolution procedure, with the 2010 agreement following Ardmona by over four years.

78    The primary judge also appears to have assigned some weight to Opal’s submission that there was no extrinsic evidence indicating that the parties who made the 2010 agreement intended to depart from the existing operation of the equivalent provision in the previous agreements by inserting “and the status quo remain”, as opposed to reinforcing that meaning: J at [42]. However, there was no extrinsic evidence concerning the intended meaning of the provision in the 2010 agreement at all and, hence, this was an entirely neutral consideration. Nor did this fact vitiate the obvious inference that, by significantly changing and expanding the text of the “work as normal” provision in the 2010 agreement, the parties who made that agreement intended that it should have an altered meaning.

79    The dispute settlement procedure considered by this Court in Thiess provides a close analogue to cl 16.3. In the enterprise agreement considered in that matter, the procedure relevantly provided:

[82] It is an express condition of this Agreement, that while the steps below are being followed normal work shall continue and the status quo shall remain (as it was prior to the matter in dispute), unless an employee has a reasonable concern about an imminent risk to his or her health and safety. If such concern exists, the employees must not unreasonably fail to comply with a direction given by the employer to perform other available work which is within their skills and classification and that is safe for the employee to perform.

80    This provision was characterised by Tracey J at [73] in the following way:

The second consequence of the invocation of the disputes resolution procedures … is that a stand fast arrangement will apply: the workers will continue work as usual and the status quo which applied on the project immediately prior to the dispute arising will be maintained until the dispute is resolved at one of the steps provided for in Clause 15.1(b). In the present circumstances this requires the respondent to retain the 4 on 4 off roster for those electricians presently working that roster until the disputes resolution procedure had led to a resolution of the dispute either by agreement or arbitration.

81    In this way, Tracey J gave the expressions “normal work shall continue” and “the status quo shall remain” separate work to do, with the latter imposing distinct obligations on the employer. This is consistent with the construction of cl 16.3 advanced by the AMWU.

82    Unlike the provision considered in Thiess, cl 16.3 of the Opal Agreement does not contain the words in parentheses “as it was prior to the matter in dispute” immediately following the requirement for the status quo to be maintained. Notwithstanding this, a sensible and practicable interpretation of the “status quo shall remain” requirement would give it this effect. Clause 16.1 provides that the matters that may be the subject of the dispute resolution procedure include disputes in relation to any workplace industrial policy, practice or procedure. The application of the status quo requirement to disputes of this nature would only have efficacy if it was understood as requiring that once any such policy, practice or procedure became the subject of a dispute, the status quo provision would operate to preserve the position which applied immediately before the dispute was initiated. If, for example, the dispute arose because of an employer’s intention to change a workplace policy in a particular way perceived as operating to the detriment of the employees, the status quo requirement would be inefficacious and redundant if it did not operate to prevent the change from proceeding while the dispute resolution procedure was being followed.

83    This is confirmed by cl 16.3(c), which indicates the scope of the matters that might be subject to a dispute under cl 16 in relation to which the status quo requirement would apply. It is also confirmed by cl 16.3(b). Although the language of cl 16.2 is infelicitous in that it uses language different to cl 16.1 to describe the applicable “stand fast” requirement, it is reasonably clear that it has the temporal purpose of describing from when that requirement takes effect, namely “at the initiation of the dispute”. That expression can be read as encompassing the particular event which caused the dispute to occur and thus initiated it, so that if the dispute is about a particular proposal or decision by the employer to change something that falls within the scope of the matters delineated in cl 16.1, cl 16.3 would operate so as to prohibit the implementation of the change whilst the steps in the procedure are being followed. To the extent that this inhibits management’s operational control over the business (as cl 16.3 plainly indicates it was intended to do), this is ameliorated by cl 16.4, which requires the parties to “co-operate to ensure” expedition in proceeding through the dispute resolution steps required by cl 16.

84    For these reasons, I would uphold the AMWU’s ground of appeal on the basis of the construction of cl 16.3 advanced by the AMWU.

85    In considering whether cl 16.3 has been complied with in a particular case, it is necessary, consistent with the construction of the provision which I prefer, to identify what the status quo was at the time of the event which initiated the dispute. In this case, the initiating event may be identified as the email (and accompanying documents) concerning the AOD Policy sent to employees by Opal on 23 October 2023, which was at varying dates shortly afterwards placed in dispute by employees at particular worksites. This email, for relevant purposes, firstly announced that Opal intended to resume random testing and explained how this would be done and, secondly, advised of three specific proposed changes to the AOD Policy. It was these aspects of the email which were the subject of the dispute. It was the first matter in respect of which the AMWU alleged a breach of the status quo requirement in cl 16.3.

86    The AMWU’s pleaded case (SOC at [24]) was that the pre-dispute status quo was that random testing would not be carried out, with the consequence (it alleged) that the testing conducted by Opal on 13, 14 and 15 February 2024 did not conform to the status quo. However, at the trial, the AMWU altered its position so that it alternatively contended that the status quo was that, if any testing was conducted at a particular worksite, all employees at that site would be tested. The AMWU’s apparent difficulty in identifying the status quo indicates the lack of any clearly-identifiable existing practice with respect to the way in which random testing was to be conducted pursuant to the AOD Policy. I agree with the conclusion of Raper and Longbottom JJ that the AOD Policy allowed for random testing to occur (which the AMWU did not contest) and that the policy was applied in different ways at different times according to the circumstances then applicable. The conduct of random testing in accordance with the AOD Policy as it was at the time of the initiation of the dispute did not constitute a departure from the status quo and consequently did not involve a contravention of cl 16.3 of the Opal Agreement. Opal’s notice of contention should therefore be upheld and the appeal dismissed.

Associate:

Dated:    1 May 2026