Federal Court of Australia

DP World Sydney Ltd v Construction, Forestry and Maritime Employees Union [2026] FCA 592

ORDERS

THE COURT DECLARES THAT:

1.    Clause 2 of Appendix 4 of the DP World Sydney Enterprise Agreement 2024, the DP World Melbourne Enterprise Agreement 2024, the DP World Brisbane Enterprise Agreement 2024, and the DP World Fremantle Enterprise Agreement 2024 provides for an independent panel consisting of three panel members, with:

(a)    one member nominated by respectively, the first, second, third or fourth applicant (as corresponding to each respective enterprise agreement);

(b)    one member nominated by the first respondent; and

(c)    one presiding panel head to be agreed between the relevant applicant and the first respondent.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    The applicants (DP World) operate container terminals at Port Botany in New South Wales, West Swanson in Victoria, Fisherman Islands in Queensland, and Fremantle in Western Australia.

2    There are enterprise agreements that have been made under the Fair Work Act 2009 (Cth) (the FW Act) that apply to and cover DP World and its relevant employees at each of those locations, being the DP World Sydney Enterprise Agreement 2024, the DP World Melbourne Enterprise Agreement 2024, the DP World Brisbane Enterprise Agreement 2024, and the DP World Fremantle Enterprise Agreement 2024 (the Enterprise Agreements). These Enterprise Agreements are also stated to cover the first respondent (the MUA or the Union).

3    The central issue raised in these proceedings is the proper construction of a clause that appears in the same form in each of the Enterprise Agreements. That clause relates to the constitution and empanelment of an “Independent Panel” for the purpose of conciliating and arbitrating disputes about the implementation of automation projects at the container terminals operated by DP World. In all material respects, these Enterprise Agreements contain the same terms. As a result, it is unnecessary to refer to each of the Enterprise Agreements individually.

4    It is common ground that during late-2024 and early-2025, DP World decided to proceed with certain projects which, once implemented, will see various forms of automated developments being implemented at its terminals in Port Botany, West Swanson, and Fisherman Islands. It has also commenced consultations about a project at the terminal in Fremantle and begun considering a further project at the terminal in Port Botany.

5    Appendix 4 of the Enterprise Agreements, which is entitled “Automation”, outlines the process to be followed when DP World “elects to introduce a significant change to the mode of operation at a terminal during the life of the Enterprise Agreement”: see cl 1 of Appendix 4. It is common ground that some of the projects that DP World wishes to implement fall within the ambit of Appendix 4.

6    Amongst other things, the process outlined in Appendix 4 compels the formation of an Independent Panel to consider any “outstanding points/issues”, and to conciliate or arbitrate those matters prior to the “go live date” of the proposed changes: see cll 1(g), (h) and (j) of Appendix 4. The parties are in dispute about the proper construction of cl 2 of Appendix 4, which states:

The independent panel will consist of three (3) panel members. Each party will nominate one member with one agreed presiding panel head.

7    DP World contends that cl 2 requires DP World to nominate one member to the Independent Panel, the MUA to nominate one member, and DP World and the MUA to jointly agree to a separate third member being the “presiding panel head”.

8    Until recently, the MUA had accepted DP World’s position to be the correct one and had taken steps to formalise the Independent Panel on that basis. However, certain individual employees, being the Second to Sixth Respondents (the Individual Employees) take a different view as to the proper construction of the clause, and the MUA has since changed its position so that it largely supports the construction advanced by these Employees.

9    The Individual Employees contend that cl 2 of Appendix 4 of the Enterprise Agreements provides that the employees at each port or terminal are, separately to the MUA, entitled to nominate one member to the Independent Panel on the basis that those employees (of which there are hundreds at each terminal) are a single “party” to the respective Enterprise Agreements, including for the purposes of cl 2 of Appendix 4. Under the construction advanced by the Individual Employees and supported by the MUA, each of DP World, the MUA, and, collectively, the employees at each terminal are entitled to nominate one member to the three-member Independent Panel and are to agree which of those three members is to be the “agreed presiding panel head”.

10    Thus, the dispute between the parties reduces to this:

(a)    is the Independent Panel to be constituted by one member nominated by DP World, one member nominated by the MUA, and one member to be agreed between DP World and the MUA as the agreed presiding panel head; or

(b)    is the Independent Panel to be constituted by one member nominated by DP World, one member nominated by the MUA, and one member to be nominated by the relevant employees at each port or terminal covered by the respective Enterprise Agreements, with DP World, the MUA and the employees coming to an agreement as to which of those three members is to act as the presiding panel head?

11    As explained below, the resolution of this dispute turns upon the proper meaning of the words “[e]ach party”, having regard to the text, context and purpose of cl 2 of Appendix 4 of the Enterprise Agreements.

12    For the reasons that follow, DP World’s contentions should be upheld.

2.    CONSIDERATION

13    There was no dispute between the parties to the proceedings that there is a justiciable controversy between them. It is trite that “federal jurisdiction” arising from the subject matter in ss 75 and 76 of the Constitution is limited to deciding a “matter”: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [30] (Kiefel CJ, Gordon and Steward JJ). Relevantly, a “matter” has two elements: (a) the “subject matter itself as defined by reference to the heads of jurisdiction” mentioned in ss 75 and 76 of the Constitution; and (b) “the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 276 CLR 519 at [26] (Kiefel CJ, Keane and Gordon JJ). In the present case, there is not only a matter arising under a Commonwealth law, there is also a dispute between the parties that is holding up the empanelment of the Independent Panel in advance of the changes that DP World proposes to implement at each terminal. Accordingly, I am satisfied that there is a justiciable controversy before the Court such that there is jurisdiction to grant the relief sought.

14    There was also no dispute between the parties as to the principles applicable to the construction of enterprise agreements. Those principles were recently distilled in Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12] (Raper, Dowling and Longbottom JJ), concurring with and summarising the principles outlined by the Full Court in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65] (Griffiths and SC Derrington JJ):

(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].

(Original emphasis.)

15     It is the application of these principles upon which the dispute between the parties turns.

2.1    The statutory context of the Enterprise Agreements

16    Before turning to the proper construction of cl 2 of Appendix 4 of the Enterprise Agreements, it is necessary to set out some foundational matters of statutory context.

17    It has long been the common parlance in industrial law circles to speak of “parties” to an enterprise agreement. Leaving to one side the different statutory regimes under which such enterprise agreements have come to be made, the usage of the word “parties” needs to be attended with care. That is most certainly the case when it comes to enterprise agreements “made” under the FW Act. An “enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act”: Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 at [87] ff (Jessup, Tracey and Perram JJ). As the Full Court explained in Marmara at [88]:

Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to “make” an enterprise agreement are the employer and “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be “made”. But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a “party” to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.

18    An enterprise agreement “made” under the FW Act sets out the rights, duties and obligations of those persons to whom it “applies”. Section 52(1) of the FW Act provides that an enterprise agreement “applies” to an employee, employer or employee organisation if:

(a)    the agreement is in operation;

(b)    the agreement covers the employee, employer or organisation; and

(c)    no other provision of the FW Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

19    Subject to certain exceptions, s 53(1) of the FW Act provides that an enterprise agreement “covers” an employee or employer if “the agreement is expressed to cover (however described) the employee or the employer”. The exceptions include the circumstance where an enterprise agreement has ceased to operate and therefore no longer covers the employee, employer or, in particular cases, the employee organisation (see s 53(5) of the FW Act).

20    Section 183 of the FW Act provides as follows:

183     Entitlement of an employee organisation to have an enterprise agreement cover it

(1)    After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.

(2)    The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.

Note:    The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).

21    The significance of an enterprise agreement applying to a person is set out in s 51 of the FW Act, which provides that:

The significance of an enterprise agreement applying to a person

(1)    An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2)    An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

22    Section 50 of the FW Act provides that a person must not contravene an enterprise agreement.

23    An enterprise agreement must be “approved” by the Fair Work Commission (Commission). In granting such approval, the Commission must be satisfied of certain matters, including certain “general requirements”. For present purposes, it is relevant that one of those “general requirements” requires the Commission to be satisfied that the enterprise agreement includes a term relating to dispute resolution, as provided for in s 186(6) of the FW Act, as follows:

(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.

24    The FW Act expressly contemplates that such dispute resolution procedures may provide for referral of unresolved disputes to the Commission or another person for determination: see ss 738 to 740 of the FW Act.

25    The above matters of statutory context do not determine, but do inform, the matters of construction that arise in the present case.

2.2    The proper construction of cl 2 of Appendix 4

26    It is convenient to commence by extracting the full text of Appendix 4:

Appendix 4 - Automation

1.    In the event that the Company elects to introduce a significant change to the mode of operation at a terminal during the life of the Enterprise Agreement, the process outlined below will apply.

(a)    When the Company has made a definite decision to make a change to the mode of operation (Board approval for mode change), the Company will communicate the decision to both the Employees and their representatives in accordance with the Enterprise Agreement.

(b)    The Company will provide the Union with appropriate information in relation to the ongoing operation of the Terminal to assist the Parties to attempt to reach agreement around prospective working arrangements and rostering. Appropriate information shall include, however is not limited to a prospective berth schedule, forecast idle shifts and data relating to working within/above or below grade and roster option data. The Company will not provide commercially sensitive or confidential information. The Company will provide to the Union the labour modelling inputs and outputs in a protected format (that is the Company will not provide the labour model).

(c)    The Parties will then immediately commence discussions regarding the Mode Change. The discussions will commence no later than nine (9) months in advance of the scheduled go live date.

(d)    The Parties, in the first instance will seek to reach agreement regarding roles, rosters, labour arrangements and requirements. The Parties agree that the hours of work shall be 32 hours per week, unless otherwise agreed by the Parties.

(e)    If automation results in the creation of a new role(s) covered by the scope of this Agreement then where practicable the Company will offer Employee(s) whose jobs are made redundant as a result of the automation, training to enable them to be employed in the new role(s) provided that the Employee possesses the necessary aptitude to attain the required skill set within a reasonable time.

(f)    The Parties will make themselves reasonably available for intensive discussions between nine (9) months and six (6) months in advance of the scheduled go live date.

(g)    An Independent Panel will be formed and finalised at the commencement of intense discussions or no later than nine (9) months from the scheduled go live date.

(h)    In the event that the Parties are unable to reach agreement the Parties will refer the outstanding points/issues to the Independent Panel for consideration.

(i)    The outstanding matters must be referred to the Independent Panel as early as six (6) months and as late as three (3) months in advance of the go live date of the new mode of operation.

(j)    The Independent Panel may conciliate if they determine it, is an appropriate approach. The Independent Panel will be empowered by the Parties to arbitrate the outstanding issues. The Parties agree to be bound by the decision of the Independent Panel.

2.    Constitution of the Independent Panel

The independent panel will consist of three (3) panel members. Each party will nominate one member with one agreed presiding panel head.

3.    Transition

It is the intention of the Parties, that three (3) months out from go live the Parties will have agreement or a binding decision from the independent panel and will be focused on implementation and transition in the lead up to the introduction of the new mode.

4.     Mode Change Payment

In addition to the Redundancy payment set out in the Enterprise Agreement at clause 43.5 in Part A, further "One off' Redundancy/Mode change payment will be made to any Employee made redundant as a result of the mode change.

The "One Off' Redundancy/Mode change payment consists of an additional fifteen (15) weeks at the rate determined for in the standard redundancy Clause 43.5 as per Part A of the Enterprise Agreement.

This payment applies regardless of the eligible employee's length of service and is triggered where redundancy is specifically related to the introduction of a new mode of operation as effected by DP World.

5.     Industrial Action

(a)     Any unprotected industrial action taken by an Employee once a definite decision has been made regarding the mode change will mean that the Employee may have their additional mode change payment reduced.

(b)     Any reduction of an Employee's additional fifteen (15) week mode payment will be determined by the Independent Panel.

27    Although their respective submissions were slightly different, both the Individual Employees and the MUA (collectively, the “Respondents”) relied upon cl 4 of the Enterprise Agreements in support of the contention that the words “[e]ach party” in cl 2 of Appendix 4 mean each of DP World, the MUA and the relevant employees covered by the Enterprise Agreements. Clause 4 of the Enterprise Agreements provides as follows:

4.    Parties Bound

4.1    This Agreement shall be binding on:

4.1.1     The Company - DP World Melbourne (ABN 52 000 049 301);

4.1.2    its relevant Employees engaged in stevedoring operations as stevedoring employees, in Award Classifications Grade 1 to Grade 6;

4.1.3    The Construction, Forestry and Maritime, Employees Union of Australia- MUA Division

28    The Respondents submitted that cl 4 is significant as it essentially identifies the “parties” for the purpose of the Enterprise Agreements and this applies to the meaning of the words “[e]ach party” in cl 2 of Appendix 4. It was submitted that this involved a textual and contextual reading of the respective clauses. It was further submitted that this construction was consistent with the purpose of Appendix 4 which the Individual Employees maintain is to “provide a structure for the determination of terms and conditions of employment in light of decisions to undertake ‘mode change’”. The Individual Employees submit that Appendix 4 must be read so as to ensure the involvement of all those affected by any definite decision made by DP World to the “mode of operation” at each terminal. It was submitted that, as the interests of the relevant employees covered by the Enterprise Agreements would be clearly affected by such decisions, cl 2 of Appendix 4 expressly contemplates that such interests would find voice in the deliberations of the Independent Panel.

29    Met with the submission from DP World that if the words “[e]ach party” referred to all of the relevant employees covered by the Enterprise Agreements, it would result in hundreds of employees being able to each nominate a member to the Independent Panel at the terminals, the Respondents contended that those employees would not each be nominating a representative but would, as a singular collective cohort, nominate one representative. It was submitted that this was consistent with other clauses of the Enterprise Agreements which make provision for the collective cohort of employees to elect a representative or representatives. One example of this was said to be the election of the Employee Representative Committee as provided for in cl 38 of the Enterprise Agreements and it was said that such a representative would be nominated by the collective cohort of employees to serve as their representative member on the Independent Panel.

30    I do not accept the Respondents’ contentions. There are several reasons for this.

31    As a starting point, it is important to recognise that cl 2 of Appendix 4 is to be read in its immediate context and by reference to the purpose of that Appendix, and is to be considered in the context of the Enterprise Agreements as a whole.

32    In its ordinary meaning, and applied contextually, the word “party” may mean the parties to an agreement or it may mean the parties to a dispute. The former usage of the word, though not legally correct for the reasons set out in Marmara at [88], is nevertheless a usage that is commonplace. The latter usage of the word is more contextual. An example of such a usage appears in the general dispute resolution clause contained in cl 47 of the Enterprise Agreements. Clause 47.5.1 provides that if a dispute remains unresolved, “either party” may refer the dispute to the Commission for conciliation. In context, this is an example where it is plain that the objective intention of the drafters was that the parties in question are those who are in dispute, as opposed to all the so-called “parties” to the Enterprise Agreements.

33    What this demonstrates is that the context is all important. That is even more so in circumstances where, both within Appendix 4 and throughout the Enterprise Agreements, the drafters have used the words “party”, “Party”, “parties” and “Parties” in a way that does not indicate an interchangeable or consistent use of those words. It would be wrong, in my view, to approach the use of these words as carrying a consistent meaning throughout the Enterprise Agreements without regard to context. For example, within Appendix 4, the word “Parties” appears in cll 1(b), 1(c), 1(d), 1(f), 1(h), 1(j), and in cl 3. The word “party” appears in cl 2 of Appendix 4. There are other similar and different uses of those words throughout the Enterprise Agreements and cl 47 is an example of that, as pointed out above. It is unnecessary to refer to each of them, as there are many.

34    As a result, it is necessary to pay close attention to the immediate and surrounding context of the words “[e]ach party” as they appear in cl 2 of Appendix 4. With these matters in mind, it is next necessary to return to the text, structure and operation of cl 1 of Appendix 4, including in order to objectively divine its purpose and situate it within the context of the whole of the Enterprise Agreements.

35    Appendix 4 has significant overlapping procedural, temporal and substantive features borne by its text and structure. It is unnecessary to delineate these features into one or other category, but the relevant aspects of them are as follows.

36    First, by cl 1(a), DP World is obliged to provide notification of a “definite decision to make a change to the mode of operation”. The notification is required to be provided to “Employees and their representatives in accordance with the Enterprise Agreement”. It is notable that the word “representatives” here is not defined. Clause 7 of the Enterprise Agreements do contain the following definitions:

Employee Representative means an employee appointed as such by the Union Branch Secretary and notified in writing to the Company.

Employee Representative Committee (ERC) or Site Committee means a group of employees elected by their peers to represent them.

37    Although there is no express textual mention of the “MUA” or the “Union” in cl 1(a) of Appendix 4, there is a clear mention of the MUA in the next clause as addressed below.

38    Putting to one side for the moment what is meant by the word “representatives” in cl 1(a), the clear purpose of the clause is to require DP World to provide notification of the relevant decision to the whole body of relevant employees covered by the Enterprise Agreements and their representatives.

39    Second, cl 1(b) is critical to the procedural and substantive operation of the whole of cl 1 of Appendix 4.

40    By cl 1(b), DP World is obliged to provide the “Union” with “appropriate” information to “assist the Parties to attempt to reach agreement around prospective working arrangements and rostering” and such information is to include that of a particular type (as to prospective berth schedule, forecast idle shifts, etc) and is not to include commercially sensitive or confidential information. The clause also requires DP World to provide the “Union” with “labour modelling inputs and outputs in a protected format”.

41    It is notable that cl 1(b) imposes a positive obligation on DP World to provide the relevant information only to the “Union” and not to the relevant employees or their “representatives”. As I explain, this is significant for the operation of the balance of cl 1.

42    Third, cl 1(c) requires the “Parties” to “then immediately commence discussions regarding the Mode Change” and these discussions are to occur no later than nine months in advance of the scheduled “go live date”. The use of the word “then” in this clause indicates that the obligation is temporally tied to cl 1(b) in that the discissions are to commence after the provision of information in cl 1(b). Given that cl 1(b) requires DP World to provide information to the “Union”, this provides strong textual and contextual indications that the discussions required by cl 1(c) are to occur between DP World and the Union. It is difficult to see how the whole group of relevant employees or their representatives could be involved in such discussions absent any obligation to have provided them with the relevant information to guide those discussions. That point is reinforced by the clauses that follow.

43    Fourth, cl 1(d) requires that the “Parties”, in the “first instance”, seek to reach agreement regarding “roles, rosters, labour arrangements and requirements”. Textually and contextually, this clause is also tied to cll 1(b) and (c). The subject matter of the agreement that is required to be reached (“roles, rosters, labour arrangements and requirements”) emphasises the prominence and necessity of the information that DP World is required to have provided to the Union under cl 1(b). It will be recalled that the information required to be provided is to “assist the Parties to reach agreement around prospective working arrangements and rostering” and is to include prospective berth schedules, forecast idle shifts, data relating to working within/above or below grade, roster option data, and the labour modelling inputs and outputs. Contextually, and also as a matter of common sense, the relationship between cll 1(b) and (d) indicates that the information is that which the drafters considered would be necessary to enable an agreement to be reached as to “roles, rosters, labour arrangements and requirements”. Again, the fact that such information is required to be provided only to the Union (and not to the relevant employees and their other representatives) provides further textual and contextual indications that the “Parties” referred to in each of cll 1(b), (c) and (d) are DP World and the MUA.

44    Fifth, cl 1(e) requires DP World to, where automation is to result in the creation of new roles, offer (where practicable) “Employee(s) whose jobs are made redundant” training to enable them to be employed in the new roles, provided that they possess the necessary aptitude to attain the required skill set within a reasonable time. The clause indicates that the process in Appendix 4 clearly has the potential to impact the interests of the relevant employees. However, when read in the context of the preceding clauses, including the reference to “roles” and “labour arrangements” in cl 1(d), it gives an indication that the requirement imposed on DP World under cl 1(e) is to be the subject of discussions with the MUA and agreement if possible. That is not to diminish the real prospect of the proposed “mode change” having an impact on relevant employees, but as I return to below, there are other clauses of the Enterprise Agreements that are directed to address their interests. What this demonstrates is that the purpose of Appendix 4 is to establish a process for agreement as between DP World and the MUA as to the proposed “mode change”, as opposed to it establishing a process for dealing with the impact of such changes on a group of employees or an individual employee.

45    Sixth, cl 1(f) requires the “Parties” to make themselves “reasonably available” for “intensive discussions” between nine and six months in advance of the scheduled “go live date”. As with the other preceding clauses, cl 1(f) emphasises that the drafters had in mind the need for a degree of expedition and an orderly process for agreement to be reached. Further, the reference to “intensive discussions” is indicative of the necessity of the availability of the parties to those discussions and ties into each of cll 1(b), (c) and (d) as to the subject matter of the discussions in light of the information that DP World is required to have provided to the MUA. That is more readily applicable to the availability of officers of DP World and the officials of the MUA, as opposed to individual employees or their more general representatives, especially in light of the fact that DP World is not obliged to provide the latter with information under cl 1(b). In my view, that provides both a textual and contextual indication that the word “Parties” in cl 1(f) refers to DP World and the MUA.

46    Seventh, cl 1(g) requires the Independent Panel to have been formed and finalised at the commencement of the intensive discussions and no longer than nine months from the scheduled “go live date”. This clause indicates that this is to occur immediately upon the commencement of the discussions contemplated in cll 1(c) and (f), which, in turn, are to immediately follow the provision of the information to the MUA required by cl 1(b). It provides textual and contextual support for the fact the words “[e]ach party” in cl 2 of Appendix 4 is a reference to the parties who are to be engaged in the discussions, which, when read in the context of cl 1(b), provides strong support for the conclusion that those parties are DP World and the MUA.

47    Eighth, cll 1(h) and (i) require the “Parties” to refer the “outstanding points/issues” to the Independent Panel for “consideration” where they are unable to reach agreement, and this must occur as early as six months and as late as three months in advance of the “go live date”. Aside from again emphasising the need for relative expedition, these clauses too are tied contextually to the preceding clauses. They are to be read in the context of the requirement imposed under cl 1(d) that, in the first instance, the “Parties” must seek to reach agreement on “roles, rosters, labour arrangements and requirements”. In turn, as noted above, the subject matter of the agreement to be reached and the timing of the discussions is tied to the requirement on DP World to have provided information to the MUA under cl 1(b). And, these earlier clauses inform the outstanding points and issues that are to be referred to the Independent Panel and guide the remit of that Panel. Again, read textually and contextually, this provides a strong indication that the “Parties” referred to in cl 1(h) are DP World and the MUA.

48    Ninth, following on from cll 1(h) and (i), cl 1(j) provides that the Independent Panel may conciliate if that is determined to be an appropriate approach, and is otherwise empowered to “arbitrate” the “outstanding issues”. Importantly, cl 1(j) provides that the “Parties” agree to be “bound by the decision of the Independent Panel”. This is important. For the reasons stated above, when read in the context of each of the preceding clauses, the “Parties” to be bound by the decision of the Independent Panel are DP World and the MUA. This is significant in that the relevant employees are not bound by any such decision. As I explain below, their rights in relation to the impact of any such changes or to dispute the impact on them are dealt with elsewhere, which is indicative of a coherent and cohesive reading of the Enterprise Agreements as a whole.

49    Stepping back from the individual subclauses and considering cl 1 of Appendix 4 as a whole, it is evident that the objective purpose of the clause is to establish a process for agreement to be reached between DP World and the MUA within a period of approximately nine months as to “roles, rosters, labour arrangements and requirements” following a definite decision made by DP World to implement a “mode change”, and where such agreement cannot be reached, for an Independent Panel to conciliate and arbitrate any outstanding issues that will be binding on those two parties to that dispute.

50    This construction does not ignore that relevant employees may be affected by such changes, but emphasises that the purpose of cl 1 of Appendix 4 is directed to the different but related matter of securing agreement between DP World and the MUA as to the implementation of the “mode change[s]”.

51    It will be recalled that cl 1(a) of Appendix 4 requires DP World to have notified employees and their representatives of a definite decision to implement a “mode change”. Clause 1(e) requires DP World to offer new roles to affected employees in certain circumstances. These clauses are to be read in the context of the other clauses of the Enterprise Agreements. Most significantly, cl 45, which is entitled “Introduction of Change”, imposes various obligations on DP World where it has made a definite decision to “introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees”. It is unnecessary to set out the entirety of the clause, but some aspects of it are worth mentioning. For example, cl 45.3 provides as follows:

45.3    Company duty to discuss change

45.3.1    The Company undertakes to discuss with the Employees affected and the Union, inter alia, the introduction of the changes referred to in clause 45.2, the effects the changes are likely to have on Employees, measures to avert or mitigate any adverse effects of such changes on Employees and give prompt consideration to matters raised by the Employees and/or the Union in relation to the changes.

45.3.2    The discussion shall commence as early as practicable after a decision has been made by the Company to make the changes referred to in clause 45.2. For the purposes of such discussion, the Company undertakes to provide in writing to the Employees concerned and the Union, all appropriate information about the changes including the nature of the proposed changes, the expected effects of the changes on Employees and any other matters likely to affect Employees.

52    No party in the proceedings before me submitted or suggested that the obligation imposed on DP World under cl 45.3 would be displaced by the operation of Appendix 4. Indeed, it would be inconceivable in light of the text and context of the Enterprise Agreements, and the industrial relations at each terminal, that DP World would be able to implement a “mode change” under Appendix 4 with the agreement of the MUA or the determination of the Independent Panel, without attending to its obligation to discuss those changes with affected employees in accordance with cl 45.3. What this reinforces is that, whilst some of the obligations imposed on DP World under cl 45 and Appendix 4 might be overlapping (such as the obligation to notify employees and provide relevant information to the MUA), there are nevertheless distinct obligations directed to different purposes. On the one hand, the process in Appendix 4 is directed to securing agreement between DP World and the MUA, and, on the other hand, cl 45 is directed to the obligations imposed on DP World to attend to the interests of its workforce. It may be that if the MUA is bound by a determination of the Independent Panel under cl 1(j) of Appendix 4, it may be limited in how it could advance the interests of its members, but that was not fully argued before me and is unnecessary to resolve at the present time.

53    Further, the Enterprise Agreements contain distinct procedures by which employees may raise grievances or disputes as set out in cll 46 and 47. As noted above, s 186(6) of the FW Act requires the Commission to have been satisfied that the Enterprise Agreements contained a clause providing for a procedure for the Commission or another person to settle disputes and allows for employee representation as part of that procedure. This provides context to why cll 46 and 47 are contained in the Enterprise Agreements. They are there to ensure that employees are able to raise disputes and seek their resolution. During the course of oral argument, Counsel for DP World, when questioned about the operation of these clauses, accepted that as any agreement reached between DP World and the MUA or any determination made by the Independent Panel under Appendix 4 would only bind DP World and the MUA, it would not bind the relevant employees as to its subject matter. This is unsurprising given DP World’s case had been that the relevant employees are not part of the Appendix 4 process and a proper concession to have made in the context of the terms, context and structure of the Enterprise Agreements as a whole. Clauses 46 and 47 provide as follows:

46     Personal Grievance Procedure

46.1    A personal grievance means any grievance that any Employee may have against the Company because of any claim:

46.1.1    that the Employee has been passed over for selection to fill a promotional position or for placement in a training course; or

46.1.2    that the Company has taken some other action which is unjustifiable; or

46.2    In the case of a grievance described in 46.1.1, at the time of informing applicants of the results of their application they also shall be advised that any appeal they wish to make should be lodged within 7 days of that advice being given and received.

46.2.1    The notice of appeal shall be accompanied by details of:

(a)    the grounds on which the appeal is lodged;

(b)    any evidence, such as training completed, experience gained, on which the applicant wishes to rely.

46.2.2    Management shall reconsider all aspects of the case and, if requested, give the applicant and any Union representative he/she chooses the opportunity to put his/her case personally.

46.2.3    Management shall determine the matter within seven (7) days of the appeal being lodged. Meanwhile any appointment made shall be provisional only and on a higher duties basis where appropriate. Training of selected personnel shall not commence until any appeal is determined.

46.3    In the case of a grievance described in 46.1.2, the Employee allegedly aggrieved or his/her Union representative may give notice to management of his/her concern within 30 days of the action being taken or advice being given to the individual, whichever is the latter. In the event that the concern cannot immediately be alleviated by management, depending on the nature of the alleged grievance, one or more of the following options shall be adopted as a means of its resolution:

46.3.1    Discussions between management and Union representative;

46.3.2    Reference to a mutually agreed conciliator/arbitrator.

46.3.3    Reference to the FWC for conciliation.

46.3.4    Where the personal grievance relates to a final written warning, the Employee may seek a recommendation from the FWC as part of the conciliation process. A cap of 12 matters per year across the Terminals may be referred for a recommendation.

46.3.5    In the case of a grievance described in 46.1.2, the parties agree that the matter will where possible be determined within one month of the grievance being notified.

47.    Dispute Resolution

47.1    In the event of a dispute arising in the workplace in regard to the application of this Agreement or the National Employment Standards (other than under s65(5) and 76(4) of the Act).

47.2    The procedure to be followed to resolve the dispute shall be as follows:

47.3    Step 1 Site based discussions

47.3.1 The Employee, the Employee’s delegate (if requested), and his or her supervisor or other responsible manager, meeting and conferring on the dispute.

47.3.2    If the dispute is not resolved, the parties will arrange further discussions including a meeting on site involving more senior levels of management, Employee Representatives and/or Union officials. In advance of this meeting the nature of the dispute must be particularised and must contain desired resolution provided in writing.

47.3.3    If the dispute, clearly identified, arises in accordance with this clause within a representative body such as an ERC meeting Step 1 in the process will be considered to have been fulfilled.

47.4    Step 2 National level discussions

47.4.1    If the dispute cannot be resolved at workplace level, the dispute may be referred by either party to National level for discussion between the parties.

47.4.2    If the dispute arises in accordance with this clause within a higher representative body such as a National EBA review, then Step 2 in the process will be considered to have been fulfilled.

47.5    Step 3 FWC Powers

47.5.1    If the dispute remains unresolved either party may refer the dispute to FWC for conciliation. If the dispute is referred for conciliation, both parties will participate in a conciliation in good faith. Any further conciliation conferences would be subject to agreement by both parties.

47.5.2    Where the dispute has not been resolved despite the foregoing procedures being followed and subject to there being no stoppage of work in relation to the issue at hand, either party may refer the dispute to FWC for arbitration, if necessary, in which case the decision will be accepted by the parties subject to any appeal rights.

47.6    During the time when the parties attempt to resolve the dispute, either at the workplace level, or through conciliation or arbitration, the parties shall continue to work in accordance with their contract of employment

47.7     The parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as is reasonably possible.

54    It is unnecessary to further analyse these two clauses or the circumstances in which a decision made by DP World to implement a “mode change” may give rise to either a personal grievance or dispute falling within the ambit of either cl 46 or cl 47. The point is that the Enterprise Agreements make provision for the relevant employees to raise such disputes.

55    These points also answer the contention advanced by the Respondents that the Court would avoid a construction of cl 2 of Appendix 4 that results in relevant employees not having a voice or being represented in the process outlined in that Appendix where their interests may be affected. I do not see any reason, as a matter of text, context or purpose, why the interests of affected employees are not guarded by cll 45, 46 and 47, which reinforces the distinct purpose that Appendix 4 serves in the context of the whole of the Enterprise Agreements. Once this is recognised, it is apparent that these clauses do operate cohesively when read together.

56    The MUA advanced a slightly more nuanced argument. It contended that the various references to “Parties” throughout cl 1 of Appendix 4 are references to DP World and the MUA. However, it maintained by way of contradistinction that the words “[e]ach party” in cl 2 of Appendix 4 includes employees on the basis that the word “party” has different work to do in cll 1 and 2. The MUA submitted that the word “party” in cl 2 identifies who has the right to nominate a panel member for the arbitral stage, while in cl 1 it merely identifies who is to conduct the preceding negotiations. The MUA submitted that this reading is supported by the nature of the function of the Independent Panel, which is to “make a binding determination that will govern the terms on which the Employees work following a mode change” and not “merely to resolve a bilateral dispute between DP World and the Union”. For the reasons stated above, this reading is acontextual as it bifurcates cll 1 and 2, which are inherently connected because cl 2 articulates how the Independent Panel, which is empowered to conciliate or arbitrate under the circumstances outlined in cl 1, is to be constituted. The MUA’s submission does not lead to a coherent reading of the clauses together in context.

57    Returning to cl 2 of Appendix 4, it is my view that the words “[e]ach party” in the second sentence are a reference to DP World and the MUA when the text of that clause is read together with both the immediate context of Appendix 4, and the text and context of the Enterprise Agreements as a whole.

58    The contrary contentions advanced by the Respondents involve both textual and contextual awkwardness.

59    As noted above, the Respondents contentions involve reliance upon cl 4 of the Enterprise Agreements as bearing upon the meaning of the words “[e]ach party” in cl 2 of Appendix 4. However, acceptance of that construction would necessarily mean that “[e]ach party” includes every employee covered by the Enterprise Agreements and that each of them would have a right to nominate a member of the Independent Panel which would run contrary to the first sentence of cl 2, being “[t]he independent panel will consist of three (3) panel members.” In order to meet this submission, the Respondents contended that the words “[e]ach party” did not include each individual employee, but the whole group of relevant employees as a single cohort. When met with the submission that Appendix 4 did not make provision for a mechanism for such a group to nominate or elect a member, the Respondents contended that the Enterprise Agreements made provision for that via the establishment of the Employee Representative Committee in cl 38. Clause 38 provides as follows:

38.    Committees

38.1    The Company will continue to support the Employee Representative Committee (ERC), EA bargaining Committees and Health, Safety and Environment Committee (HSEC).

38.2    The objectives of the ERC are to encourage Employee contributions in the decision making process and to focus attention on the requirements of customers and the needs of Employees and the Company to improve site productivity through communication, information-sharing and consultation.

38.3    There will be an advanced calendar of monthly ERC and HSEC meetings for the year.

38.4    Meetings may be deferred up to a week with advanced notice provided by either party of at least a week. There shall be a minimum of eleven (11) ERC and eleven (11) HSEC meetings per annum.

38.5    The ERC meetings are to be held on site or where requested at the relevant Branch Office of the MUA. A request to hold an ERC meeting at the Branch Office shall not be unreasonably refused.

38.6    The HSEC and ERC committees will comprise of an agreed composition at each site.

38.7    Attendance at committee meetings

38.7.1    Management will ensure FSE representatives are released from their normal roster arrangements to attend the meetings without loss of pay.

38.7.2    A VSE or Supplementary Employee who has been properly elected to serve on the ERC, HSEC and/or EA bargaining committees shall be paid at the Clause 11 Grade 2 Rate plus a 1.5x loading for attendance at the ERC, HSEC and/or EA bargaining committees

38.7.3    Where FSE’s are on a rostered off period or on a period of leave, but make themselves available to attend Committee meetings, they will have the option to accrue a DIL up to a maximum of ten (10) days or to be paid overtime. After the 10 DIL’s have been exceeded they will receive overtime for attendance at these meetings.

38.7.4    The Relevant Union Branch Official will be invited to attend all committee meetings. If the Relevant Union Branch Official is not available, nothing prevents a ERC or HSEC meeting continuing in the absence of the Relevant Union Branch Official.

60    There are a number of difficulties with the Respondents’ contentions. Clause 38 does not itself make any provision for the election or constitution of the Employee Representative Committee. It will be recalled that cl 7 of the Enterprise Agreements defines the term “Employee Representative Committee” or “Site Committee” as meaning a “group of employees elected by their peers to represent them”. This indicates that there is no singular representative and there is otherwise no mechanism in the Enterprise Agreements as to how a singular cohort of employees is to nominate a single person to represent them on the Independent Panel and whether such a person could represent all the varied interests that might exist across that singular cohort. Further, as cl 38 makes plain, the Employee Representative Committee is to meet once monthly which sits awkwardly with the obligations contained in cl 1 of Appendix 4 that “intensive discussions” occur.

61    Clause 37 of the Enterprise Agreements also makes provision for employee representation. However, cl 37.1.1 provides that DP World “recognises the right of the Union to appoint Employees of the Company and the right of such Employees to represent their fellow Employees subject to the provisions of clause 37.1.2”. Clause 37.1.2 sets out various rights in relation to such “Employee Representatives”. However, such an “Employee Representative”, consistently with the defined term in cl 7, is one who is “…appointed as such by the Union Branch Secretary and notified in writing to the Company”. That means that the “Employee Representative” is one determined by the MUA, which, if the Respondents’ contentions as to cl 2 of Appendix 4 are to be accepted, would lead to the MUA having a hand (directly or indirectly) in nominating two members to the Independent Panel. I do not consider that to be a construction that conforms with the objective purpose of an “independent” panel. This construction also cuts against the Respondents’ contentions that the words “[e]ach party” in cl 2 of Appendix 4 includes employees on the basis that not all employees will be union members or seek to be represented by the MUA.

62    More generally, the preceding point also supports the view that it is unlikely that reasonable persons in the position of the drafters would have objectively intended an “independent” panel of three members to be constituted by at least two members nominated in a way that might be seen to be partial to the interests of employees and only one member nominated in a way that might be seen to be partial to the interests of the employer. That unlikely outcome is not answered by the MUA’s contention that the “panel head” must be agreed by “consensus” between the parties identified in cl 4, including because, as the Individual Employees acknowledge, “[n]o unique powers or functions are provided to the ‘panel head’ and the role is purely procedural”. Accordingly, a more objective and industrially sound construction is one that recognises that each of DP World and the MUA nominate one member each, and agree upon a third member to act as the panel head. It is important to emphasise though that these points are not of particular significance, but merely support the textual and contextual construction I have otherwise reached.

63    The parties also tangentially raised matters of history from predecessor agreements and statutory regimes. DP World did so to demonstrate that cl 4 of the Enterprise Agreements was a relic of previous statutory schemes. The Respondents did so to counter this contention. These points were only faintly put and I do not consider them to be of any moment in the resolution of the present dispute.

64    It follows that I do not accept the construction advanced by the Respondents.

3.    DISPOSITION

65    For the foregoing reasons, DP World’s application should be upheld. I am satisfied that the following declaration should be made:

Clause 2 of Appendix 4 to the Enterprise Agreements provides for an Independent Panel consisting of three panel members:

(i)    one member nominated by DP World;

(ii)    one member nominated by the MUA; and

(iii)    one presiding panel head to be agreed between DP World and the MUA.

66    Consistent with s 570 of the FW Act, there should be no order as to costs and no party wished to be heard as to that question.

Associate:

Dated:    13 May 2026

SCHEDULE OF PARTIES