Federal Court of Australia

Offshore Employers Association Limited v Construction, Forestry and Maritime Employees Union [2026] FCA 134

ORDERS

THE COURT ORDERS THAT:

1.    The preliminary question stated by the Court on 9 September 2025 is answered as follows:

The arbitral award made by the Fair Work Commission on 9 June 2025 binds the second applicant only in so far as it concerns the entitlements of Mr Geoffrey Ammon under clause 39 of the MMA Offshore Vessel Operations Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023.

2.    Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), the first applicant the Offshore Employers Association Limited is removed as an applicant to the proceeding.

3.    The second applicant Cyan Vessel Operations Pty Ltd is henceforth styled as the first applicant in the proceeding.

4.    Pursuant to r 9.05(1)(b)(iii) of the Federal Court Rules, each of the following entities is joined as an applicant to the proceeding:

(a)    Bhagwan Marine Limited as the second applicant;

(b)    Fugro Australia Pty Ltd as the third applicant;

(c)    GO Offshore Pty Ltd as the fourth applicant;

(d)    Jetwave Marine Services Pty Ltd as the fifth applicant;

(e)    OSM Australia Pty Ltd as the sixth applicant;

(f)    Programmed Offshore Pty Ltd (formerly known as Atlas Programmed Marine Pty Ltd) as the seventh applicant; and

(g)    Solstad Australia Pty Ltd as the eighth applicant.

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

REASONS FOR JUDGMENT

JACKSON J:

1    In this proceeding an employer in the offshore oil and gas industry, Cyan Vessel Operations Pty Ltd (formerly known as MMA Offshore Vehicle Operations Pty Ltd), seeks declarations as to the proper construction of a term of an enterprise agreement concerning long service leave entitlements. There is another applicant, the Offshore Employers Association Limited, but it is applying to be removed as an applicant, and for the purposes of the preliminary question can be disregarded. The respondents are the Construction, Forestry, and Maritime Employees Union and the Fair Work Commission (FWC), although only the Union is taking an active part in the proceeding.

2    These reasons determine a preliminary question that the Court stated as follows:

Whether the arbitral award made by the Fair Work Commission on 9 June 2025 binds the second applicant:

(a)    in so far as it concerns the entitlements under clause 39 of the MMA Offshore Vessel Operations Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023, of all Employees as defined in the Enterprise Agreement; or

(b)    only in so far as it concerns the entitlements under that clause of Mr Geoffrey Ammon.

3    I will describe the arbitral award mentioned there shortly. The enterprise agreement is of course the one presently in issue, which I will call the Cyan EA. Mr Ammon's role in the matter will also be mentioned shortly.

4    These reasons also determine an interlocutory application by the applicants to remove the Association as a party, and to add further employers in the industry as applicants.

5    For the following reasons, the preliminary question will be answered in terms of alternative (b), and there will be orders as sought on the joinder application.

Background

6    The proceeding arises in the context of a dispute about the proper construction of a provision governing the accrual of long service leave that appears in the Cyan EA and in other enterprise agreements in the industry. The Cyan EA covers both Cyan and the Union.

7    The dispute was the subject of an arbitration in the FWC, the outcome of which is set out in Construction, Forestry and Maritime Employees Union v MMA Offshore Vessel Operations Pty Ltd t/as MMA Offshore [2025] FWC 1585 (Arbitral Decision). The outcome was adverse to Cyan. Cyan then appealed to the Full Bench of the FWC. But after lodging that appeal, it then commenced this proceeding. It did so along with the Association, which is an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 (Cth).

8    The Full Bench appeal was listed to be heard on 9 September 2025. Cyan applied to the FWC for that hearing to be vacated pending the outcome of this proceeding, but that was dismissed. Then Cyan obtained an injunction from this Court restraining the FWC from hearing or determining the appeal until this proceeding is determined.

9    The preliminary question arose in the course of the hearing of the application for the injunction, in the following way. The applicants take the position that the issue determined by the FWC in the Arbitral Decision concerned only the rights of a particular employee on whose behalf the issue was agitated, Mr Ammon. The Union, however, maintains that the issue went beyond Mr Ammon's particular rights, so as to bind Cyan in respect of all its employees covered by the Cyan EA.

10    The reason why the Court has decided to determine the preliminary question is because it bears upon the continuation of the injunction. If the Arbitral Decision binds only Cyan and Mr Ammon, and only in respect of Mr Ammon's rights, it may be better to permit the Full Bench to determine the appeal. But if the Arbitral Decision binds Cyan across the enterprise, the potential adverse impact of inconsistent decisions about the construction of the clause between the FWC and this Court will be much greater.

11    Resolution of the issue also potentially bears on the jurisdiction of the Court to make the declarations as, depending on the scope of operation of the arbitral award, there may be no unquelled dispute before the Court. The Union submits that the Arbitral Decision extinguishes the entire dispute between Cyan and the Union about the proper construction of cl 39.2 of the Cyan EA, so that the Court has no jurisdiction, or alternatively should dismiss the proceeding as an abuse of process. That said, the significance of this point diminishes with the joinder of the further applicants, who on any view are unaffected by the Arbitral Decision.

The relevant facts

12    In that context, the relevant facts on which I will determine the separate question, are as follows.

13    For reasons that will be explained below, it is important to appreciate the statutory context in which the matter came before the FWC. For now, however, it is pertinent to start with cl 10.1 of the Cyan EA, which is the provision of the Cyan EA that led to the referral of the dispute to the FWC. It is entitled 'Dispute Resolution Procedure' and provides:

If a dispute relates to:

(a)    A matter arising under this Agreement; or

(b)    The [National Employment Standards]; or

(c)    Any other matter pertaining to the employment relationship,

this clause sets out the procedure to resolve the dispute.

Step 1:

Where a matter arises when the Employee/s are on board a Vessel, the matter will in the first instance be discussed between the Employee/s and the Master.

Where a matter arises when the Employee/s are not on board a Vessel, the matter will in the first instance be discussed between the Employee/s and the Employer's nominated representative.

If the matter remains unresolved:

Step 2:

The matter will be referred for discussion between the Employee, the Employee's Union delegate, or other nominated representative and the Master and/or Employer's nominated representative.

If the matter remains unresolved:

Step 3:

The matter will be referred for discussion between the appropriate Union Branch Official of the Union or other nominated representative and the Employer's nominated representative.

Step 4:

In the event that the preceding steps have failed to resolve the matter and/or dispute, or if Steps 1-3 are not resolved within 10 calendar days of the initiation of Step 1, any person bound/covered by this Agreement including the Union or nominated other representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.

14    Clause 10.2 authorises the FWC to 'deal with the dispute in two stages' in circumstances '[w]here the matter remains unresolved' – first, 'as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation', and second, by arbitration. If the second step, arbitration, is engaged, the FWC may '[m]ake a determination that is binding on the parties to the dispute': cl 10.2(b)(ii). Subject to a right of appeal to the Full Bench, the parties to the dispute 'agree to be bound by a decision made by the FWC in accordance with this clause': cl 10.4.

15    There is in evidence an email chain dated 4 February 2025 which appears to record the genesis of the dispute, or at least to record its status on that day. It starts with an email from Sandra Thorp, Employee Relations Manager for Cyan, to Mr Ammon in which Ms Thorp set out the provision that is the subject of the dispute, cl 39 of the Cyan EA:

39.    Long Service Leave

39.1    Employees will not receive a lesser entitlement of Long Service Leave than that which is provided in the applicable State or Territory Long Service leave legislation.

39.2    An Employee who has completed at least 10 years' continuous service with the Employer shall be entitled to 13 weeks' long service leave paid at their Aggregate Salary rate of pay. For every five (5) years of continuous employment with the Employer thereafter, an Employee shall be entitled to a further 6.5 weeks long service leave paid at their current Aggregate Salary. This entitlement will operate prospectively from the approval date of this Agreement.

16    Essentially, the issue is (and was) that the rate of accrual of 13 weeks long service leave for each 10 years' service is a higher rate than that for which the Long Service Leave Act 1958 (WA) provides. It appears that Mr Ammon had contended that, because he had served as an employee for 10 years, he was then entitled to 13 weeks' long service leave in accordance with cl 39.2 of the Cyan EA. Ms Thorp explained that cl 39.2 'operates prospectively (not retrospectively)' so that long service leave would only accrue at the higher rate from the date of approval of the Cyan EA, which was 6 December 2023. For service prior to that date, she said, long service leave would accrue at a lower rate of 13 weeks after 15 years and 8.667 weeks after 10 years. Since Mr Ammon's 10 years of service was completed before the approval date, his long service leave entitlement for that 10 years was calculated at the lower rate.

17    Mr Ammon replied '[y]es understood Sandra … I honestly did think looking at the EA that I was entitled to a bit more in the LSL leave bank … cheers for clearing it up'. However later that day, George Gakis, an Assistant Secretary with the Union, emailed Ms Thorp saying '[j]ust a point of clarity on this subject. The MUA does not agree with the position outlined to Geoff. As [you're] aware this matter is part of the current dispute before the FWC and we hope to have this resolved through that process'. The terms and scope of the 'current dispute' referred to here are not in evidence; I infer it is likely to have been the 'Lucas' dispute mentioned below, but there was no evidence what that was about or how it may have been related to the dispute that is the subject of these reasons.

18    On 14 February 2025 the Union referred a matter to arbitration by the FWC by filing a 'Form 10 - Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure', based relevantly on s 739 of the Fair Work Act 2009 (Cth) (FWA). This was given the FWC file number C2025/1120. The Form 10 named the Union as the applicant and Cyan as the respondent. It specified the Cyan EA as the industrial instrument that covered the employment relationship. It referred to cl 10 of that instrument as having provided for the relevant dispute settlement procedure. The clause of that instrument to which the dispute related was cl 39, concerning long service leave. In a box provided for a description of what the dispute was about, the Union said (all bold in original):

Background

1.    The Respondent employs employees to perform work in the maritime industry who are members of the Applicant (the members).

2.    The Agreement covers the Applicant and applies to the Respondent and its employees. A copy of the Agreement is attached and marked 'Attachment 1'.

3.    The dispute arises with respect to the long service leave entitlements for Geoffrey Ammon (Mr Ammon).

The Agreement

4.    Clause 39 of the Agreement provides as follows:

39.2 An Employee who has completed at least 10 years' continuous service with the Employer shall be entitled to 13 weeks' long service leave paid at their Aggregate Salary rate of pay. For every five (5) years of continuous employment with the Employer thereafter, an Employee shall be entitled to a further 6.5 weeks long service leave paid at their current Aggregate Salary. This entitlement will operate prospectively from the approval date of this Agreement.

Dispute

5.    Mr Ammon has been an employee of the Respondent since on or around 2009. Mr Ammon continues to be employed by the Respondent.

6.    The Respondent's position is that Mr Ammon does not accrue long service leave in accordance with the long service leave provisions in the Agreement, and that his LSL balance is 31.2099 days.

7.    The Applicant does not agree with the Respondent's interpretation and the parties remain in dispute.

19    In another box, which provided for a description of the steps that had already been taken to resolve the dispute under the dispute resolution procedure, the Union said only '[t]he matters in dispute have been progressed through the relevant steps of the Dispute Resolution Procedure and are able to be referred to the Fair Work Commission for resolution'. In the Form 10 the Union asked the FWC to arbitrate the dispute if conciliation did not resolve it.

20    Cyan did not initially provide a full substantive response to the Union's Form 10, but rather it filed an application seeking a determination that the FWC did not have jurisdiction over the dispute, which asserted that the determination of the dispute required an exercise of judicial power. Cyan described the Union as appearing 'to raise a dispute to the effect that Mr Geoffrey Ammon (an employee of the Respondent) is owed a particular entitlement to long service leave' pursuant to the Cyan EA. In the same document, Cyan contended that 'the "dispute", which must exist for the purposes of the Commission exercising its power under section 739 and clause 10 of the [Cyan EA], is the correct quantum of Mr Ammon's present entitlement to long service leave'. At paragraph 8 the application said that Cyan's position was 'that the Commission is not the appropriate forum via a 739 dispute to declare individual employee long service leave accruals' (emphasis in original). And in briefly addressing the merits, Cyan said (at para 10):

Noting that the Application does not provide any justification as to how or why the Applicant assets that Mr A[m]mon's long service leave balance has been calculated incorrectly, the Respondent assumes that the Applicant is asserting that the terms of the Agreement apply retrospectively.

21    However on 6 March 2025 a solicitor for Cyan informed the associate to the Deputy President of the FWC to whom the matter had been allocated that Cyan did not press the jurisdictional objection. The correspondence referred to the apparently related matter as 'the Lucas matter' but contained no detail on it.

22    On around 7 March 2025 (the precise date is not clear from the evidence, but nothing turns on it), the solicitor emailed the associate with submissions concerning the relative timing of hearing the 'Lucas' matter and matter C2025/1120, which the email labelled as 'Ammon'. It said:

The key contested question in Ammon concerns the quantum of Mr Ammon's long service leave entitlement on clause 39.2's proper construction: in particular, whether clause 39.2's more generous long service leave entitlements apply prospectively upon future accruals (that is, accruals on and from date of the Agreement's commencement), or apply to employees' existing periods of continuous employment prior to the Agreement's commencement.

23    The manner in which the FWC resolved the question about the timing of the hearings is not relevant, save to note that the relevant email from the associate said that the Deputy President 'is still of the view that the longer-term interests of all parties are best served by dealing with the Ammon matter in the first instance, thereby resolving the issue of how the new long service leave provisions should be applied'.

24    On 14 March 2025, a solicitor for the Union proposed some programming orders for matter C2025/1120 and also proposed the following 'Questions for arbitration':

In clause 39.2, does 'this entitlement will operate prospectively from the approval date of the Agreement' mean:

a.    An employee commences the accrual of 13 weeks of long service leave from the approval date of the Agreement, or

b.    An employee who has completed 10 years of continuous service, at any point in time since the approval date of the Agreement, is entitled to 13 weeks of long service leave.

25    On 17 March 2025, a solicitor for Cyan replied saying that his client 'is comfortable with the questions for arbitration and programming proposed by the Applicant'. On 18 March 2025, the Deputy President made a direction that the question to be resolved was to be in the terms proposed by the Union and accepted by Cyan.

26    On 10 April 2025, the Union filed a statement of agreed facts which commenced with some general facts about Cyan, its employees and the Cyan EA. It recorded the parties' agreement that the relevant steps set out in the dispute resolution procedure of the Cyan EA have been satisfied, and that the FWC had jurisdiction to deal with 'the dispute', but it does not say what 'the dispute' was. It concluded with details specific to Mr Ammon's employment, including his period of service and some long service leave he took in 2020 to 2021.

27    The parties' written submissions before the FWC were also in evidence. The Union's outline of submissions made points about the proper construction of the Cyan EA and contended for an answer to the questions for arbitration in terms of option (b) above. It made no mention of Mr Ammon. Cyan's written submissions, while also making points about proper construction, did commence by describing facts specific to Mr Ammon's period of service, albeit they did not link those facts to the questions of construction. They closed by contending for an answer to the 'arbitration question' which was in general terms, that is, it did not avert to Mr Ammon.

28    As for the hearing before the FWC, the transcript is in evidence, and it does not mention Mr Ammon. As Cyan submits the transcript is incomplete; it commences at a point during what appears to be objections by counsel for Cyan to evidence on which the Union wished to rely. Cyan further submits that on comparing the transcript to its written submissions, it appears that the omitted part must have concerned Mr Ammon. I decline to make that inference, however. The transcript commences in the middle of what appears to be a preliminary evidentiary objection to evidence of Mr Gakis (which did not concern Mr Ammon), and after that, once the Union's solicitor embarked on her substantive oral submissions to the presiding Deputy President, neither she nor counsel for Cyan mention Mr Ammon.

29    Finally, the Arbitral Decision itself does not mention Mr Ammon. At [12] it states the question for determination as whether 'given the wording of the Agreement [i.e. the Cyan EA] and mindful of the final sentence of clause 39.2, is it the entitlement to leave which changes upon approval of the Agreement (the [Union] position) or the rate of accrual of the leave (the [Cyan] position). And the Deputy President's conclusion at [61] was that:

the proper interpretation of clause 39.2 of the Agreement is that an employee who reaches 10 years of continuous service with [Cyan] at a time after the approval date of the Agreement is entitled to thirteen weeks of long service leave, paid at their Aggregate Salary as defined.

The parties' cases on the preliminary question

30    In its submissions on the preliminary question, Cyan emphasises that the FWC can only have been exercising the arbitral power conferred on it under the FWA, and not judicial power. It makes the related point that to the extent that the Arbitral Decision extends beyond the dispute that was notified to it after fulfilment of the preliminary steps required by cl 10 of the Cyan EA, that decision would be beyond the FWC's arbitral power.

31    Cyan submits that the arbitral jurisdiction of the FWC could only be based on agreement, and that there was no agreement at any time to vary the dispute to empower the FWC to make a de facto declaration about the proper construction of cl 39 of the Cyan EA. The framing of the question for arbitration in the emails of 14 and 17 March 2025 did not result in any such agreement, Cyan submits, although it relies in that regard on the earlier email from its solicitor to the Chambers of the Deputy President of 7 March 2024. It also relies on the references to Mr Ammon in the statement of agreed facts and in its written submissions to the FWC.

32    Cyan further submits that the FWC did not have jurisdiction to exercise the classically judicial function of making a declaration as to the proper construction of cl 39 of the Cyan EA decoupled from the determination of any employee's future rights.

33    As a result, Cyan's position is summarised in its written submissions as follows (at para 24):

The dispute which the CFMEU notified to the FWC was expressly confined to Mr Ammon. It was that dispute - and no further - which satisfied the pre-arbitration steps under the 2023 EA necessary to found the FWC's jurisdiction. The CFMEU points to nothing to the contrary. Insofar as the parties submitted questions for arbitration concerning the proper construction of the Pattern LSL Clause, they did so within the rubric of that notified dispute. Nothing in that submission, nor in the manner of the hearing's conduct, rises to the level of an agreement to alter that dispute.

34    The Union's central contention is that, properly characterised, the 'matter arising under' the Cyan EA for the purposes of cl 10.1(a) of the Cyan EA concerned the proper construction of cl 39.2. That was the matter that went through the stepped procedure in cl 10.1. The Union submits that to the extent that the initiating application referred to Mr Ammon's circumstances, those circumstances were reflective of a 'general disagreement' between the Union and Cyan. That is reflected in the FWC's approach to the dispute as appears from the directions that it made and the interaction it perceived with the 'Lucas' matter. It appears from the 'Questions for arbitration' that were proposed by the Union, accepted by Cyan and specified in a direction of the FWC. It is also reflected in the Arbitral Decision and the reasons for that decision. The Union asserts that the 'true dispute' between the parties was as to the construction of cl 39.2.

35    According to the Union, the approach to cl 10 for which Cyan advocates would require each employee with a grievance about an issue to bring proceedings independently, which would be 'productive of industrial chaos'. The Union submits that preliminary Steps 1-3 in cl 10.1 do not limit the 'matter' to the particular circumstances of the employee who discusses the dispute.

36    The Union submits that the email of 7 March, 2025 from Cyan's solicitor is of little, if any, significance, because Cyan subsequently agreed to the questions for the arbitration that were proposed by the Union. The Union also relies on the discussion of the proper construction of cl 39.2 in general that is found in the parties' respective written submissions to the FWC. While the Union acknowledges that Cyan's written submissions 'canvassed the facts leading to the dispute', it submits that 'they did not indicate that the dispute or the question agreed was limited to the circumstances of Mr Ammon and would be of no wider significance'.

37    The Union further points out that in oral submissions to the FWC, counsel for the Union identified the dispute as hinging on the correct interpretation of cl 39, and there was no demur to that from Cyan. The Union submits that 'the factual matters concerning Mr Ammon set out the circumstances in which the more general question had been raised. They did not limit the nature and extent of the Commission's determination' as Cyan asserts.

38    The Union further submits that since Cyan's notice of appeal to the Full Bench takes issue with the Deputy President's construction of cl 39.2 in a manner not limited to the circumstances of Mr Ammon, that renders untenable Cyan's submissions that it did not agree to a dispute settlement mechanism that allowed the dispute to vary over its course.

39    The Union therefore submits that the Arbitral Decision binds Cyan in respect of the long service leave entitlements of all employees covered by the Cyan EA. The Union goes on to say that this means that the Court does not have jurisdiction to determine the matter (in so far as it concerns Cyan) and so should dismiss Cyan's claim. This is said to be because there is no longer any justiciable controversy or matter for the determination of the Court so as to attract jurisdiction under s 562 of the FWA. In the alternative, as has been said, the Union submits that Cyan's application is an abuse of process.

Legal principles

40    It is important to assess the facts set out above while keeping in clear view the nature and ambit of the particular statutory function which the FWC was performing when it made the Arbitral Decision.

41    The judicial power of the Commonwealth is not vested in the FWC: see Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231; (2021) 289 FCR 308 (Maersk FC) at [74] (White J), [152] (Banks-Smith and Jackson JJ). Thus, while the FWC may form a legal opinion about a legal matter, it may go beyond its constitutional limits if it does not form the opinion for the purpose of taking some further step within its own power: Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; (2012) 203 FCR 371 at [22]. The FWC cannot contribute a binding declaration on a legal issue: see Wagstaff Piling at [31].

42    One power that the FWC may exercise is the power to determine disputes by exercising arbitral functions that are conferred on it by s 595 and s 739 of the FWA. For that is not an exercise of judicial power, since in that situation the parties have consented to submit disputes as to their legal rights and liabilities for resolution by the FWC. Provisions such as s 595 and s 739 of the FWA and its predecessors authorise the FWC to exercise a power of private arbitration: see Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 (Gordonstone) at [30]-[32].

43    However, the arbitral award is not binding of its own force; its effect depends on the law which operates in respect to it: Gordonstone at [31]. While that includes the private law of contract, in the present context it also includes the FWA. Section 739 relevantly applies when an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in s 186(6): s 738(b), s 739(1). This is, relevantly, a term 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 … about any matters arising under the agreement'. Clause 10 of the Cyan EA is such a term. By it, the parties have agreed that the FWC may arbitrate certain disputes, meaning that s 739(4) of the FWA authorises the FWC to do so.

44    Express limitations on the authority of the FWC appear in s 595, however. Under s 595(1) of the FWA, the FWC may deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of the Act. Similarly, the FWC may only deal with a dispute by arbitration only if it is expressly authorised to do so under or in accordance with another provision of the FWA and to avoid doubt, the FWC must not exercise that arbitral power in relation to a matter before it except as authorised by s 595: s 595(3), s 595(5). Section 595(4) authorises the FWC, in dealing with a dispute, to exercise any powers it has under Part 5-1 Division 3 Subdivision B, which permits the FWC to exercise statutory powers in the course of a private arbitration: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [85].

45    The FWC's arbitral authority is thus expressly circumscribed by the Act. In Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595, Colvin J summarised the limits on the FWC's arbitral jurisdiction in the following way (citations removed):

[5]    If an enterprise agreement, as approved, requires or allows the FWC to settle disputes and an application is made to the FWC in respect of a dispute then it acts as a private arbitrator under the authority conferred by the terms of the enterprise agreement. Absent any statutory provision conferring further private arbitration power, the FWC has no larger authority than the authority to act as a private arbitrator conferred by the enterprise agreement.

[6]    Further, the nature and extent of the arbitral appointments that the FWC may undertake are also confined by the extent of the statutory authority to act as arbitrator conferred on the FWC by the Act. Whereas a natural person can accept an appointment to resolve any dispute, the FWC can only do so for the purpose of performance of its statutory functions. In that regard, s 595(1) provides expressly that the FWC may deal with a dispute only if it is expressly authorised to do so under the Act. In particular, it may deal with a dispute by arbitration only if expressly authorised to do so under or in accordance with the Act: s 595(3).

46    Subsequently, in Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 (Maersk (No 2)), Colvin J expanded on these points as follows:

[140]    The nature and extent of the arbitral jurisdiction of the FWC was recently considered by Flick J in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2). It is a jurisdiction that cannot extend beyond the ambit of the dispute that has been the subject of the cl 10 procedure: at [103] …

…

[142]    Therefore, the power is a private arbitral power, but the manner in which it may be conferred is regulated by the statute.

[143]    As a result, the authority of the FWC to accept private arbitral appointments is limited by the scope of the statutory provisions that confer authority on the FWC to accept private arbitral appointments. The FWC cannot accept arbitral appointments outside the ambit of the statute. By the terms of s 186(6) of the Fair Work Act, the FWC can accept arbitral appointments to settle disputes 'about any matters arising under' the relevant enterprise agreement and by the terms of s 595(3) the FWC may only deal with a dispute by arbitration if expressly authorised to do so under or in accordance with the Act. A purported appointment that conferred broader authority than that conferred by an enterprise agreement (as approved by the FWC) could not be accepted by the FWC and a decision made in the purported performance of such an appointment would exceed the statutorily conferred private arbitral jurisdiction of the FWC.

47    Elsewhere (at [91]), his Honour described what happened when a dispute reached stage four of the dispute resolution clause there, which was relevantly similar to cl 10 of the Cyan EA, as the dispute having 'crystalized'. These observations were not questioned by the Full Court in Maersk FC, when it upheld the decision in Maersk (No 2).

48    It follows that the scope of the dispute that was capable of reference to the FWC for arbitration under the Cyan EA, and the scope of the dispute that was capable of being determined by it pursuant to its statutory powers and functions, was the dispute that had been left unresolved by the steps taken under the dispute resolution clause prior to the reference: see Maersk FC at [147]. Importantly to the outcome of the present issue, in my view this means that whatever the position might be in a private arbitration conducted by a person who is not vested with statutory powers and functions (see Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [138]), the parties here were not able to expand the scope of the dispute by consent subsequent to the reference. For to do so would be to purport to give the FWC the power to determine the wider dispute in a manner that is binding under the Cyan EA and the FWA, being a power it did not have.

49    The Union submits, contrary to this, that a dispute before the FWC is neither stagnant nor confined to the matters detailed in the initiating application, and that a dispute may be diminished, enlarged or altered in the course of FWC proceedings, including by the evidence filed or submissions made. The Union relies on R v Portus; Ex parte Transport Workers' Union of Australia (1977) 141 CLR 1 a case where, at 23-25, Jacobs J seemed to accept that a dispute could become 'crystallized' in certain terms by the end of a proceeding in the then Australian Conciliation and Arbitration Commission, implying that its scope could change in the course of evidence and submissions. It also relies on a passage in R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168 where Murphy J held that an industrial dispute could be 'diminished or ended or enlarged or altered during the course of the proceedings in the Commission', and a passage in Re Printing & Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd (1993) 113 ALR 421 at 433 in which Gaudron J applied R v Bain. But the Union did not establish for any of those cases that the legislative provisions under consideration confined the powers of the FWC so as to preclude any consensual expansion of the dispute by the parties, and it does not appear that this point was taken in any of them. And the last two cases, at least, concerned the scope of industry awards made by predecessors to the FWC, which engaged different considerations to those that pertain to a dispute resolution provision of a modern enterprise agreement.

50    The same may be said of Cyan's reliance on Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, which concerned the distinction between the purported exercise of judicial power, such as determining whether a pre-existing legal obligation has been breached, and the arbitral power of the then Conciliation and Arbitration Commission to create new rights and obligations. I do note, however, that in that case (at 664) the High Court acknowledged that 'a claim that a right or obligation should exist may be formulated in a manner which requires the Commission to assume powers which it does not possess'.

Identification of 'the matter and/or dispute' that the FWC resolved

51    In any given case, identifying the dispute that is the effective subject of the reference is a question of fact. In this case, on a straightforward reading of cl 10, what must be identified is the 'the matter and/or dispute' which, by Step 4 of the procedure in cl 10, ‘the preceding steps have failed to resolve' (or which has not been resolved within 10 days of the initiation of Step 1).

52    That is a reference to a dispute in fact, understood in the broad pragmatic way fitting for a dispute resolution procedure in this context, and does not import technical notions such as the concept of a 'matter' in Australian constitutional law: see Maersk FC at [74], [152]. It is necessary to permit a degree of flexibility and informality in the manner in which a dispute is referred to arbitration under a dispute resolution clause such as cl 10.1 of the Cyan EA: see Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 at [60]-[61] (Flick J). Analogously to the approach endorsed by the Full Court in The Transport Workers' Union v Mayne Nickless Ltd [1998] FCA 1022, it is necessary to 'review the entire factual background to properly characterize the claim and the power sought to be invoked'.

53    There is little evidence as to the three steps that preceded Step 4 under cl 10 of the Cyan EA in this case. The only piece of evidence prior to the reference itself is the email chain of 4 February 2025. This plainly concerned Mr Ammon's long service leave entitlement; he appears to have been the one who raised the question with Ms Thorp. Mr Gakis from the Union also expressed disagreement and referred to another dispute, perhaps the 'Lucas' one, but nothing in his reply changed the fact that the dispute at this stage was about Mr Ammon's particular entitlement.

54    No submissions were made to identify which step in cl 10 pertained to this email chain; it is most likely to be Step 2 since the email correspondence seemed to involve 'the Employee, the Employee's Union delegate, or other nominated representative and the Master and/or Employer's nominated delegate, or other nominated representative'. But nothing turns on this as it was common ground that all four steps in the clause had been fulfilled.

55    The clearest evidence as to the scope of the 'matter and/or dispute' that was referred to arbitration by the FWC are the Form 10 filed by the Union and the responsive application filed by Cyan. The Form 10 clearly frames the dispute as, in its words, one that 'arises with respect to the long service leave entitlements for Geoffrey Ammon'. It also sets out matters pertaining to Mr Ammon's length of service and the long service leave entitlement that he as accrued.

56    While Cyan contended in its responsive application that the Union was seeking an exercise of judicial power, that was not because it characterised the dispute as being about the interpretation of cl 39 at large. The responsive application proceeded on the basis that it was still a dispute about Mr Ammon's entitlements, and the specific complaint Cyan made was that the Union was seeking a declaration about those entitlements. The Union's submission that the references to Mr Ammon were merely reflective of a broader disagreement between the Union and Cyan may be correct, but it does not alter the position that a disagreement about Mr Ammon's particular long service leave entitlement was the dispute that was referred to the FWC.

57    The email from Cyan's solicitor to the FWC on about 7 March 2024 is consistent with this.

58    The Union, of course, relies on subsequent developments as indicating that the dispute that was the subject of the arbitration had expanded to encompass the construction of the cl 39 in general. There is a hint of this in the FWC's response to the email of 7 March 2024. But it emerges with the greatest clarity in the questions for the arbitration proposed by the Union on 14 March 2025, accepted by Cyan's solicitor on 17 March 2025, and confirmed by a direction of the FWC on 18 March 2025. That question was, in terms, a question as to the proper construction of cl 39.2 of the Cyan EA, and made no mention of Mr Ammon.

59    Nevertheless, it does not necessarily follow that the parties and the FWC are to be taken as having agreed on an enlarged dispute about the proper construction of the clause, without reference to Mr Ammon's circumstances. For the question of construction can equally be understood to be a statement of the one difference of view between the parties that required determination in order to resolve the issue as to Mr Ammon's entitlements. There was after all no dispute as to the facts, such as how long Mr Ammon had served or how much long service leave he had taken in the past, and there was no apparent difference of opinion about the effect of any provision of the Cyan EA other than cl 39, or about any other matter of law or fact (Cyan's jurisdictional objection having been earlier withdrawn).

60    That understanding of the place of the stated question in the dispute is consistent with the statement of agreed facts that the parties filed on 10 April 2025 (after the FWC stated the question for determination), which included agreed details as to Mr Ammon's employment. It is also consistent with Cyan's written submissions to the FWC, which refer to those details while at the same time being devoted mostly to the question of construction.

61    It is true that Mr Ammon is not mentioned at the hearing before the FWC or in the FWC's reasons for decision expressed in the Arbitral Decision itself. These simply answer the question of construction. Nevertheless, it is possible to understand this, once again, as resolving the only issue that needed resolution, on the basis that the outcome for Mr Ammon's particular entitlements would follow as a matter of course and would not be in issue between the parties. And the Union's submission that the references to Mr Ammon in Cyan's written submissions do not indicate that the dispute was limited to him reverses the practical onus in this situation. Since the dispute referred to the FWC plainly was confined to Mr Ammon's circumstances, it was for the Union to displace that by establishing that the dispute subsequently broadened. The Union's reliance on the subsequent notice of appeal to the Full Bench lodged by Cyan is misplaced; whatever Cyan's understanding of the dispute was at that stage, it could not retrospectively alter the dispute that had been before the FWC at first instance and which remains the only dispute that the FWC has resolved.

62    The Arbitral Decision and the hearing before the FWC may evince a wider dispute, when considered in the context of the question for arbitration that was agreed between the parties and answered by the FWC. But when placed in the broader context I have outlined, it is reasonably open to understand the question as still directed to resolving the dispute about Mr Ammon's entitlements. While, as the Union submits, the asserted broader dispute hinged on the correct interpretation of cl 39, so did the dispute concerning Mr Ammon.

63    And, crucially, that is the understanding which confines the scope of the arbitration to its proper bounds as set by the statutory limits of the FWC's power that are addressed above. If the arbitration had expanded in scope to purport to resolve a general question about the construction of the Cyan EA divorced from Mr Ammon's circumstances it would have been beyond the FWC's powers in a manner likely to rob it of any legal effect.

64    That is not necessarily because the FWC was purporting to exercise judicial power, by forming an opinion about a legal matter other than for the purpose of taking some further step within its own power: or purporting to make a binding declaration on a legal issue: cf Wagstaff Piling. That point was not argued with any clarity before me. It is simply because the dispute the FWC would have purported to resolve was not the dispute that was referred to it, meaning that the FWC would have strayed beyond the limits to its statutory authority to resolve the dispute found, in particular, in s 595 of the FWA. The Court should be slow to characterise the dispute in a way that robs the FWC's role of any legal effect when a different characterisation is reasonably open. See by analogy the approach to construing legislation in a manner that renders it valid, which is explained in Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at [28]. That is not to equate the present approach, in an arbitral dispute, to a principle of constitutional law, but they do partake of the same common sense: the Court should be slow to impute an intention which renders ineffective or invalid something which, on another reasonable interpretation, could be effective or valid.

65    Since the latter interpretation is reasonably open here, it is the one that should be adopted. The Arbitral Decision resolved the dispute between Cyan on the one hand and Mr Ammon and the Union on the other as to Mr Ammon's entitlements, albeit that it did so by expressing an opinion about the construction of cl 39.2. The preliminary question stated in this proceeding will be resolved in terms of answer (b).

66    I do not accept the Union's submission that characterising the dispute this way will require each employee to bring their own separate claim in a way that will be productive of industrial chaos. The very role of the Union itself as an entity that organises and represents employees whose efforts might otherwise be disparate helps guard against that. But in any event this decision says nothing about the extent to which a claim about the application of an enterprise agreement to covered employees generally might be brought before the FWC. It is a decision to the effect that in this instance, the claim brought was a claim about the application of the enterprise agreement to Mr Ammon's circumstances.

The Union's abuse of process submission

67    The Union's submission as to abuse of process was based on the assumption that the question the FWC resolved was indeed the generally applicable question of construction. In any event, the submission goes beyond the scope of the preliminary question. The implications for the proceeding of the answer just given should be resolved after hearing from the parties further.

Joinder application

68    The joinder application was not opposed. It seeks the removal of the Association as the first applicant and the addition of seven named companies as applicants. Each of those companies (who are members of the Association) appear to be employers in the offshore oil and gas industry. Each of them is the employer under an enterprise agreement where the clause concerning long service leave entitlements is in substantially identical terms to that in the Cyan EA. The affidavit in support of the application says that upon the joinder of those companies as applicants, the Association would not need to be a party. I accept that; there are doubts in any event about the Association's ability to represent its members in this litigation.

69    Each of those companies has instructed the solicitor for Cyan to seek orders that they be joined as an applicant. This demonstrates the consent that is necessary under r 9.05(2) of the Federal Court Rules 2011 (Cth) for them to be joined as applicants. It is obviously desirable for more participants in the industry who have an interest in the proper construction of the provision to join in the proceeding and to be bound by its outcome. While there is no direct evidence that any of those companies is engaged in a dispute about that issue with the Union, counsel for the Union accepted at the hearing that there was a dispute with each and it can be inferred from the circumstances that this is so. There will be orders on the joinder application as sought, with the new applicants to be joined under r 9.05(1)(b)(iii) of the Federal Court Rules in order to enable determination of related disputes and so avoid a multiplicity of proceedings.

Associate:

Dated:    20 February 2026