Federal Court of Australia

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Opal Packaging Australia Pty Ltd [2025] FCA 875

ORDERS

THE COURT ORDERS THAT:

1. The originating application dated 6 March 2024 be dismissed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1 The applicant, the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union (AMWU), represents workers in the print and paper industry, including employees of the respondent, Opal Packaging Pty Ltd.  Those employees are covered by the Opal Fibre Packaging National Enterprise Agreement 2022 (Opal EA). By an originating application, the AMWU:

(a) applies for declarations that Opal:

(i) on three days in 2024, contravened cl 16.3 of the Opal EA, being part of the dispute resolution provisions in that agreement; and

(ii) thereby contravened s 50 of the Fair Work Act 2009 (Cth) (FWA); and

(b) seeks the imposition of pecuniary penalties.

2 The alleged contraventions arise out of Opal, in February 2024, conducting drug and alcohol testing of its workers at three worksites.  After an extended pause due to the COVID-19 pandemic, Opal reintroduced drug and alcohol testing and used a different selection methodology to that deployed by a previous owner of the business.  The AMWU contends that this recommencement and change in testing methodology was precluded by cl 16.3 of the Opal EA.

3 In 2020, Opal had purchased the box manufacturing business in which the testing took place from the Orora Group.  Opal reissued the “Orora Alcohol and Other Drugs Policy – Australia” in its own name (AOD Policy).  Orora had halted testing under this policy in 2020 before the sale was completed, for reasons related to the COVID-19 pandemic.  Opal maintained that stance during the pandemic upon the completion of the purchase, until January 2024, when it announced that it would resume testing, but in a different manner.  This announcement gave rise to a dispute which then caused the dispute resolution clauses in the Opal EA to be engaged.  These provisions are said by the AMWU to have prohibited Opal from implementing its proposal to resume testing using a different approach.

4 The issue before the Court concerns the construction of cl 16.3(a) of the Opal EA.  That provision specified that while the dispute resolution procedure was being followed, “work shall continue normally and the status quo remain”, unless exceptions not presently relevant applied.  The substance of the dispute is that AMWU contends that “status quo” meant that Opal’s change in random testing methodology was precluded by the cl 16.3(a).  Opal denies that the correct meaning precluded that change.

5 For the reasons that follow, Opal’s change in testing methodology was not precluded by cl 16.3(a).  It follows that no contravention of s 50 of the FWA arose and the originating application must be dismissed.

Key events

6 The sale of the box manufacturing business to Opal was concluded on 1 May 2020.  It included Orora’s national fibre packaging business at 10 sites in Queensland, New South Wales, Victoria, Tasmania, South Australia and Western Australia.  Opal maintained the testing pause instituted by Orora and did not conduct testing during the pandemic.  

7 The AOD Policy that Opal inherited from Orora relevantly addressed random testing as follows, without specifying any mode for selecting those to be tested:

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.

8 On 23 January 2023, the Fair Work Commission (FWC) approved the Opal EA.

9 On 23 October 2023, Opal:

(a) proposed three substantive changes to the AOD Policy:

(i) removing provision for self-testing facilities for alcohol and the ability of employees to be excluded from duties, using their personal leave, after self-testing prior to a shift;

(ii) removing an exception to an employee being stood down after a non-negative screen test during random testing where a substance detected corresponds to an assessment prepared by a worker’s general practitioner that certifies them as safe to work in relation to prescribed or over-the-counter medications, known as a PPFWA (Pharmaceutical Fitness for Work Assessment);

(iii) removing the ability of an employee to request a review of a confirmatory test against their PPFWA, because this would occur in every case as part of (b) above;

(b) announced that the pause to random testing would end, but that random testing would thereafter be conducted differently to the way this had been done by Orora; and

(c) commenced consultation with its workforce, regarding the proposed changes to the AOD Policy and the resumption of random testing using an alternative selection method.

10 Orora’s approach to testing had been to randomly select a site for testing, and then test all team members at that site, an approach described by Opal as blanket testing.  Opal proposed instead to randomly select only a sample of employees at randomly selected sites which were undergoing testing on any given day, an approach described by Opal as sample testing.  Neither mode of selecting the random sample of employees for testing was either required or forbidden by the terms of the relevant part of the AOD Policy reproduced at [7] above.

11 On 23 January 2024, three months after the changes, including to testing, had been proposed, Opal’s consultation with its workforce concluded, and it then commenced implementation of the change from blanket testing to sample testing. It is unclear on the agreed facts whether that consultation included the AMWU, but I infer that it would at least have been involved in some way, not least because it invoked the dispute resolution procedure in cl 16 of the Opal EA, as noted below.

12 Opal announced that decision on the same date by sending an email to its workforce advising of the amendments to the AOD Policy and the re-commencement of random testing using sample testing (together, the AOD Changes).  The random testing of workers that followed the next month took place as follows:

(a) on 13 February 2024 at a site in Scoresby, Victoria, including six workers covered by the Opal EA;

(b) on 14 February 2024 at a site in Launceston, Tasmania, including five workers covered by the Opal EA; and

(c) on 15 February 2024 at a site in Brooklyn, Victoria, including six workers covered by the Opal EA.

13 By the time this random testing occurred, the AMWU had invoked the dispute resolution procedure under cl 16 of the Opal EA in relation to each of those worksites.

14 On 14 February 2024, the AMWU applied to the FWC to deal with the dispute about the AOD Changes pursuant to s 739 of the FWA and cl 16 of the Opal EA, claiming that Opal had failed to comply with its consultation obligations prior to implementing changes to the AOD Policy and re-commencing random testing using an alternative sampling method.

15 On 7 March 2024, the AMWU filed the present application, in which it also sought an interlocutory order restraining Opal from implementing the AOD Changes until further order of the Court.  On 8 March 2024, in apparent response to the AMWU’s application, Opal suspended random testing at all 10 sites covered by the Opal EA.  That suspension obviated the need for any interlocutory relief.

16 On 31 July 2024, the FWC resolved the AMWU’s application, determining that Opal was precluded from implementing the changes to the AOD Policy summarised at [9(a)] above and from adopting sample testing, but could reintroduce blanket testing in accordance with the existing AOD Policy.  That FWC decision is “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging [2024] FWC 2012.

Principles applicable to the interpretation of enterprise agreements

17 It is convenient to start with a concise summary of applicable interpretation principles in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 (Griffiths and SC Derrington JJ, Rangiah J dissenting, but not as to the relevant principles) at [65]:

The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

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

(ii)    A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (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 Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).

(iii)    Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).

(iv)    Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(v)    Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …” (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(vi)    A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), 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” (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).

(vii)    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).

Clause 16.3 of the Opal EA

18 It follows from the principles set out above that cl 16.3 of the Opal EA is to be interpreted in the context of all of cl 16, and to the extent it may be necessary, in the context of the rest of the agreement or relevant parts thereof, and their history.

19 Clause 16 (Dispute resolution procedures) is as follows (emphasis added to cl 16.3(a)):

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.

20 A number of key propositions from the summary in Ridd at [65] (reproduced above) emerge, as advanced by Opal.  The Court must determine the ordinary meaning of the words used in the Opal EA, and especially the key phrase “work shall continue normally and the status quo remain” in cl 16.3(a).  That phrase is to be read as part of the whole enterprise agreement and in its particular context, including its industrial context and purpose.  The interpretation must take into account the practical bent of mind of the drafters and the history of like provisions. It must also have regard to industrial realities, which I take to include workplace safety issues and concerns expressly addressed in cl 16.3(a).

The competing contentions

The AMWU argument

21 The AMWU does not contest the above principles as being applicable but contends that cl 16.3 should be interpreted as containing two different obligations, namely that work must continue normally, and that the status quo must otherwise remain.  The former obligation is said to be directed to the performance of work by employees; while the latter obligation is said to be directed to restraining the implementation of any change to the existing arrangements the subject of a dispute until that dispute is resolved.  That is, “status quo” refers, without ambiguity, to the existing state of affairs relevant to the dispute.  In the present case, 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.

22 The AMWU accepts that Opal was entitled to make the change in the testing methodology it proposed, with consultation, but this did not change the above meaning of “status quo” as it applied to cl 16.3.  It contends that disputes of any size, from a single employee to the entire workforce, were captured, including “all matters which pertain to the relationship between the parties and the Union/s” covered by the Opal EA, being a phrase drawn from the chapeau to cl 16.1.  The AMWU also relies upon cl 16.1(1)(b), which extends the dispute coverage to “a dispute in relation to any workplace industrial policy, practice or procedure”, highlighting the word “practice”.  That is, cl 16.1 defines the coverage of “dispute” broadly, and preservation of the “status quo” in cl 16.3 refers to the preservation of any part of the existing state of affairs subject to such a dispute.

23 In aid of the interpretation of cl 16.3 that the AMWU contends for, it relies upon several decisions of this Court.  In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020; 212 IR 327, Tracey J considered a dispute resolution clause of an enterprise agreement containing similar language to that presently in issue, but with a further phrase emphasised below:

normal work shall continue and the status quo shall remain (as it was prior to the matter in dispute).

24 At [70], Tracey J held that, though the respondent employer did in fact have a right to engage in conduct with respect to which the union had invoked the dispute resolution clause:

… These considerations do not, however, compel the conclusions that Clause 15.1 is not intended to and does not operate in circumstances such as the present or that the processes mandated by Clause 15.1(b) lack practical utility. At each stage prior to a determination being made by the PDP [the appointed arbitrator] there is scope for the respondents, should they be so minded, to reconsider the decision which has given rise to the disputes. If they do so they might choose to rescind it or to modify the process by which the decision is to be implemented.

25 In applying the above authority, the AMWU submits that 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.  In that context, the AMWU contends that the proposal was to change to sample testing and to resume testing, but that Opal was not permitted to implement this change until the dispute had been resolved.  On this argument, the testing that took place on 13, 14 and 15 February 2024 was a failure to comply with cl 16.3, and thereby the testing that took place on each of those days was a contravention of s 50 of the FWA.

26 The AMWU notes that a different approach was taken in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods [2006] FCA 1039; 155 IR 122.  Ryan J was considering the meaning to be given to cl 7.3(vii), which provided that:

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” as meaning that work will continue without any exceptional or unusual action on either side ...

27 Ryan J considered that “normal operations” meant “normal incident[s] of employment” ([52]) and that the provision did not “compel the employer to preserve in minute detail the entire pre-direction working environment until … the whole dispute resolution process … had been exhausted upon the making of a decision or recommendation by the Commission” ([53]).  The AMWU notes that his Honour did not appear to consider the significance of the latter part of the same clause, which provided that the “status quo as existed immediately before the dispute will remain”, which is closer to the language it relies upon here.  The AMWU further contends that his Honour’s other reasoning for that conclusion, that a contrary construction would unduly fetter the employer’s discretionary rights, is incorrect.  The union instead contends that the provision’s purpose is to provide a limit to those discretions where the dispute resolution process has been invoked.  I will return to that argument later in this judgment.

28 The AMWU further relies on the history to the Opal EA in support of its construction.  The union notes that “status quo” did not originally appear in predecessors to cl 16.3.  Clause 13(f) of the Amcor Fibre Packaging Enterprise Agreement 1992, the earliest identifiable predecessor to the Opal EA, provided that, while dispute resolution procedures were being followed, “work shall continue normally in accordance with this Agreement”.  The clause remained identical in terms until the Amcor Fibre Packaging National Enterprise Agreement 2010 came into effect, when it became “work shall continue normally and the status quo remain …” (emphasis added).  The same form of words remained in the Opal EA.

29 The AMWU contends that the additional reference to “status quo” points to an intention to include an additional and distinct benefit for workers covered by the enterprise agreement.  The AMWU argues that that conclusion is fortified by the fact that no such reference was included in the two then-applicable modern awards: Manufacturing and Associated Industries and Occupations Award 2010; Graphic Arts, Printing and Publishing Award 2010.

30 Taken on its own, the AMWU argument might have been enough to succeed.  However, it faces a significant challenge in overcoming the contrary arguments advanced by Opal.

The Opal argument

31 Opal contends that the phrase “the status quo remain” in cl 16.3(a) did not require it to refrain from conducting the random tests at all on the three dates in February 2024, nor to conduct those tests by the blanket testing methodology previously deployed by Orora.  This is said to be so because, properly construed, that phrase is a reference to a requirement that the performance of work by employees continue to occur normally in accordance with the Opal EA.  The eight reasons advanced to support that conclusion are summarised as follows.

32 First, Opal notes that the phrase “the status quo remain” is not defined and is expressed in the passive voice.  With this in mind, Opal argues that, on its ordinary meaning, the term “status quo” is 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, citing, accurately, as authority for that proposition Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1313 (Bromberg J) at [151] and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Tasmanian Water Sewerage Corporation Pty Ltd [2015] FCCA 2382 (Judge Burchardt) at [53].  However, as Opal points out, it is necessary to have regard to the context of cl 16.3 to ascertain just what the state of affairs that must remain is referring to in para (a).

33 Thus, secondly, Opal argues that the context in cl 16.3(a) indicates that the state of affairs that must remain is the normal performance of work by employees, rather than, as AMWU submits, any and all existing arrangements which are subject to a dispute.  This is due to the words immediately prior: “work shall continue normally”.  “Status quo remain” reinforces the meaning of those prior words, pointing to an interpretation that it is the work being performed before the dispute arose about random testing that must continue in the usual manner.  Opal relies on Teele v Federal Commissioner of Taxation [1940] HCA 3; 63 CLR 201 at 207 (Dixon J, Latham CJ and Rich J agreeing), where it was observed that additional words may simply suggest an intention to emphasise certain subject matter, and thus arguments that constructions be adopted in which they are given different meaning because they would otherwise be tautological or redundant can be weak.  Opal further submits that, contrary to the AMWU submission summarised above at [21], there is no proper basis for cl 16.3 to be interpreted as requiring the status quo to “otherwise” remain, which would entail inserting a word that is not present.

34 I find Opal’s submissions on the logic of its preferred interpretation compelling, in the context of the particular drafting of cl 16.3(a).

35 For completeness, I should also address Opal’s further argument that this construction accords with authorities holding that preservation of the status quo is directed to employees continuing to work as normal while the dispute is sought to be resolved.  Two examples of cases to that effect decided by judges of this Court are relied upon, with it being submitted by Opal that I should be slow to depart from them.

36 In Airservices Australia, Bromberg J considered a dispute settlement clause, cl 10.1, which included:

(g)    While a concern or dispute is being dealt with, work will continue as normal being the status quo save for any bona fide safety concerns;

(h)    The employer and employees will continue as usual in respect of work arrangements and work performed.

37 Bromberg J held at [151]-[153] that cl 10.1(h), when read with cl 10.1(g) in the context of the whole of cl 10.1, provides:

that whilst a concern or dispute is being dealt with under the dispute resolution process provided for by cl 10.1, Airservices and its employees “will continue as usual in respect of work arrangements and work performed”.

38 Although Bromberg J ultimately found that the employer had contravened s 50 of the FWA by contravening various clauses of the applicable enterprise agreement, the employee association’s case failed in respect of cl 10.1(h) because there was no roster that existed in the relevant prior period, such that there was no “work arrangement” capable of being continued as usual: see [155]. The employee association in that case did not press its reliance on cl 10.1(g), which referred to the status quo, although, as noted above, his Honour considered that it formed part of the context in which cl 10.1(h) was read.  The case is thus of limited assistance in interpreting the phrase in issue here of “the status quo remain”.

39 The second case Opal relies upon to support its second interpretation reason is Ardmona Foods.  As noted above, Ryan J did not appear to consider the meaning of the words “status quo” in reaching his Honour’s conclusion, meaning it is of limited assistance in construing those words here. Opal points out that Ardmona Foods has been followed by a judge of this Court and the FWC in Australian Federation of Air Pilots v Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia Special Mission [2021] FWC 5162 at [136]-[139]; Australian Nursing and Midwifery Federation v Kitaya Holdings Pty Ltd [2022] FCA 1394 at [44]-[45]; and United Voice v Transfield Services (Australia) Pty Ltd [2015] FWC 4177.  Kitaya Holdings, however, was not concerned with a clause that used the words “status quo”, but “work [continuing] in accordance with usual practice.” Transfield Services does not directly cite Ardmona Foods, and in any case was considering an enterprise agreement clause that referred to “normal work” continuing, not a “status quo”: see [10], discussed at [18]-[19].

40 Opal’s submissions on Thiess are more helpful, submitting that AMWU’s reliance on this case is misplaced because the clause considered there defined the status quo as it was prior to the matter in dispute, meaning in context the dispute subject matter itself, which is not the present clause or circumstance.  That is, it took a specific definition in Thiess to produce a result akin to that which the AMWU seeks to achieve, without the necessary assistance of such a definition in this case.  Thus, Thiess does little to assist the AMWU here.  The Court’s attention in Thiess does not appear to have been directed to Ardmona Foods, despite the latter being decided earlier.

41 Ultimately, Thiess, Ardmona Foods, Airservices Australia and the other decisions mentioned above are of limited assistance.  The language considered in each differed from each another, and from cl 16.3 here (though, it might be observed, the closest analogue is that in Ardmona Foods).  Each case is better understood as illustrations of the effect that different drafting has, rather than standing for some general rule as to how “status quo” provisions are intended to operate in industrial instruments.  I agree with the observation on this topic by O’Callaghan SDP of the FWC in Transfield Services at [18]:

Whilst it might be argued that employment tribunals have adopted divergent conclusions about the operation and effect of so-called “status quo provisions”, I think it is more appropriate to observe that the interpretation of these provisions, and their effect, is dependent upon the way in which they are drafted, the provisions or issues that are in dispute and the particular circumstances of a dispute.

42 Third, Opal submits that the industrial history of the Opal EA does not support the suggestion that the inclusion of the reference to status quo in prior industrial instruments was designed to expand the operation of the dispute resolution clause.  That is said to be because it is at least equally plausible that the parties sought, in the original Amcor Fibre Packaging National Enterprise Agreement 2010 (the 2010 EA), when the words presently in dispute were first inserted, to give effect to the construction adopted in Ardmona Foods in 2006.  The argument is made more plausible by the fact that Ardmona Foods had concerned the change of employees’ shifts, and the 2010 EA also inserted for the first time an additional paragraph in the same clause providing: “for the avoidance of doubt, no employee’s … shift …will be changed during this process.”  Opal points out that there is no extrinsic evidence indicating that the parties had intended to depart from the existing operation of the clause by inserting “and the status quo remain”, as opposed to reinforcing that meaning.  I consider that submission to undercut the persuasiveness of the AMWU’s submissions on the clause’s history.

43 Fourth, Opal argues that the meaning of the “status quo remain” is burdened by the exception contained in the balance of the paragraph following it: “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”.  The exception would not make sense, the argument goes, unless “status quo” referred to the conditions of employees’ work.

44 The phrase “imminent risk to health and safety” is used in the exception to the definition of “industrial action” in s 19(2)(c) of the FWA.  The meaning of “industrial action” in s 19(1)(a) of the FWA includes “the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work”.  This means that the provisions of the FWA, such as ss 417-419, which are directed to the prevention or prohibition of non-protected industrial action, do not apply (including where employees are performing work in a manner other than as normal) where there is an imminent risk to their health or safety.  This reinforces the construction of “status quo” in cl 16.3(a) as being a reference to work being performed in, as Opal puts it, the “customary manner”.  This reasoning is sound and provides compelling support for the interpretation that Opal advances, even though it is not necessarily inconsistent with the AMWU’s argument.  The point is more about coherence and internal logic and consistency.

45 Fifth, Opal points to the heading to cl 16.3: “Work to continue as normal”, arguing it should be used as an aid in construction.  Opal cites the following cases in support of that proposition in the context of statutory construction:

(a) X v Australian Prudential Regulation Authority [2007] HCA 4; 226 CLR 630 at [114];

(b) the entirety of Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594, which is all about this approach to statutory construction;

(c) Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 654, 657-658 (Kirby P).

46 Opal also cites in support s 13(2)(d) of the Acts Interpretation Act 1901 (Cth), though that Act does not apply to the construction of enterprise agreements: see Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447; 245 IR 394 at [31]-[40].  Nonetheless, the principle that regard should be had to the headings of an enterprise agreement as an aid in construction is consistent with the ordinary approach that effect should be given to industrial agreements as a whole: see generally, Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [30].  Although not of great weight in itself, the heading supports the interpretation advanced by Opal, because it supports the focus otherwise evident on work being the thing that is to continue as normal, rather than more general circumstances.

47 Sixth, Opal submits that the structure of cl 16.3 suggests that while paragraph (a) is directed solely to requiring that employees continue working normally, paragraph (b) is directed to requiring Opal as the employer to ensure that “work in the area affected … remain as it was at the initiation of the dispute”; supported by paragraph (c), which provides for more abundant caution that, for “the avoidance of doubt”, “no employee’s duties, shift, occupation or income will be changed during this process”.  Together, paragraphs (b) and (c) of cl 16.3 impose an obligation on Opal not to change an employee’s work including duties, shift, occupation or income, during the dispute resolution process.    The bifurcation of cl 16.3 into two separate obligations, one on Opal’s employees and the other on Opal, is said by Opal to reinforce the interpretation that “status quo” in paragraph (a) is directed only to employees continuing to perform work as normal, and not to any broader preservation of what Opal describes aptly as the “pre-dispute environment”.  In other words, the obligation in paragraph (a) is thus limited to employees maintaining normal work, as opposed to preventing changes to the broader status quo.

48 I am not convinced that cl 16.3 is in fact bifurcated in this way, even if that may more commonly be the way that it operates in practice.  For example, even if one reads “status quo remain” as only emphasising “work shall continue normally”, it may in some circumstances impose obligations on the employer not to prevent the employees from performing their work, rather than imposing obligations only on employees. However, Opal’s preceding five reasons, relating primarily to the text and context of cl 16.3(a), are sufficient to satisfy me that the clause requires the performance of work by employees to continue normally.  The words “status quo remain” do not create a distinct obligation for the employer to maintain the pre-dispute environment more generally in relation to the subject matter of the dispute. I did not need to accept Opal’s last argument for it to succeed in this case.

49 Opal argued additionally that the evident purpose of cl 16.3, like similar provisions in other industrial instruments, was to prevent industrial action interrupting normal work while a dispute resolution process was being undertaken.  My conclusions on the proper construction of the clause accord with that purpose.  Nonetheless, the argument that the “evident purpose” weighed in favour of this construction was less than compelling, as the purpose of the provision was not so obvious that it could be identified before the terms of the clause were read and understood correctly. The same can be observed of the AMWU’s argument as to the clause’s contrary purpose.  This was a case in which purpose was not obvious before close attention to the text of the clause was had.

50 Opal also made a related argument that the obligation that work continue as normal while a dispute resolution process is being followed has been a “standard feature of dispute resolution provisions in Federal and State industrial instruments”, citing by way of example, Kitaya Holdings at [44]-[46]; Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2021] FCA 458 at [14]-[15]; United Voice v Foster’s Australia Limited t/a Carlton and United Breweries Limited [2014] FWCFB 4104 at [27]-[28]; RMIT University v National Tertiary Education Industry Union [2012] FWA 2412 at [16]; and Ward v Saipem Australia Pty Ltd [1999] FCA 527 at [19]-[21].  This was a less compelling argument, in particular because the clauses in each of those cases differed from that here.  At most, they provide some moderate assurance that the construction I have arrived at is not absurd or unusual for instruments of this kind.

Conclusion

51 As I accept and prefer the arguments advanced by Opal on construction, I do not find it necessary to decide its alternative argument that it did not in any event breach the status quo obligation as characterised unsuccessfully by the AMWU.

52 The originating application dated 6 March 2024 must be dismissed.

Associate:

Dated:    1 August 2025