Association of Professional Engineers, Scientists and Managers, Australia, The-Local Government Engineers Association of NSW Division (215V-NSWL) v NSW Electricity Networks Operations Pty Limited T/A TransGrid - [2018] FWC 6335

1

Fair Work Act 2009 
s 739 - Application to deal with a dispute

Association of Professional Engineers, Scientists and Managers, Australia

v

NSW Electricity Networks Operations Pty Limited t/a TransGrid
(C2018/2210)

DEPUTY PRESIDENT SAMS SYDNEY, 20 NOVEMEBER 2018

Dispute arising under an expired and replaced enterprise agreement – direction to employee 
to relocate work location – whether relocation direction results in unreasonable hardship –
whether direction reasonable and lawful – additional travel time – means of travel –
increased costs – fatigue issues – adverse impacts on employee and his family – mitigating 
factors – Field Allowance – Fatigue Management Procedure – flexible start and finish times –
challenge to jurisdiction – whether dispute continues after replacement of agreement –
whether principles in Stephenson v Abetz apply – whether Stephenson v Abetz wrongly 
decided – other jurisdictional objections – whether dispute about workplace safety and 
disciplinary action – differences in statutory schemes sufficient to find that Stephenson v 
Abetz does not apply – other jurisdictional objections dismissed – dispute able to be 
determined by the Commission – meaning of unreasonable hardship – principles considered –
accepted that additional travel time, extra costs and loss of family time adversely impacts on 
employee – hardship not as excessive as contended for – alternatives available – relocation 
direction does not impose unreasonable hardship – application dismissed – dispute 
concluded. 

INTRODUCTION

[1] On 26 April 2018, the Association of Professional Engineers, Scientists and Managers, 

Australia (‘APESMA’ or the ‘Association’) filed an application, pursuant to s 739 of the Fair 

Work Act 2009 (the ‘FW Act’) in which it seeks to have the Fair Work Commission deal with 

a dispute in accordance with a dispute settlement procedure (‘DSP’) in an agreement. The 

dispute is with the NSW Electricity Networks Operations Pty Limited t/a TransGrid (the 

‘respondent’ or ‘TransGrid’) and is said to arise under the DSP in the TransGrid Employees 

Agreement 2013 (the ‘2013 Agreement’); notably, cl 35.5.3 Disciplinary Action and cl 35.5.4 

Workplace Safety. TranGrid operates and manages the main high voltage transmission 

[2018] FWC 6335

DECISION


E AUSTRALIA FairWork Commission




 



[2018] FWC 6335

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network in New South Wales and the Australian Capital Territory and employs around 106

employees in its Construction Team across various sites in New South Wales. 

[2] Shortly stated, the dispute concerns a direction by TransGrid to one of the 

Association’s members, Mr Wesley Tuszynski to relocate from Ultimo to Wallgrove. It is the 

Association’s view that this direction is unreasonable, given the health and safety risk to Mr 

Tuszynski due to fatigue arising from the distance between Mr Tuszynski’s home in Manly 

and Wallgrove, involving travelling time of two to two and a half hours each way and 

significant additional costs with the excessive travel. It is further put that Mr Tuszynski faces 

disciplinary action if he fails to comply with the relocation direction; although I note that Mr 

Tuszynski has relocated to Wallgrove and has continued to commute there throughout the 

time this matter has been on foot. 

[3] The matter was listed for conference and directions on 8 May 2018. However, as no 

settlement could be reached, I listed the matter for hearing and issued directions (subsequently 

amended) in preparation for a hearing on 5 July 2018. On that day, Ms M Buchanan, Senior 

Industrial Officer appeared for the Association and Ms A Sarelas appeared for TransGrid. At 

the outset of proceedings, Ms Buchanan proposed that in light of the jurisdictional objections 

pressed by TransGrid, that those matters be adjourned to another day and that the matter 

proceed to hearing as to the merits of the relief sought by the Association on behalf of Mr 

Tuszynski; namely that the Commission determine that:

‘The relocation of the role to Wallgrove for our member is unreasonable and under the 
Agreement, cl 9 provides for Voluntary Redeployment or Voluntary Redundancy. If 
the respondent is unable to locate him to a suitable and acceptable alternative role, he 
has an entitlement to voluntary redundancy’. 

Ms Sarelas agreed to the course of action proposed and both parties advised they would be 

briefing legal counsel to argue the jurisdictional objections raised by TransGrid. The 

jurisdictional hearing was listed on 20 September 2018 with Ms L Saunders of Counsel 

appearing for the Association and Ms H Fairhall, Solicitor (Herbert Smith Freehills) 

appearing for TransGrid, with both parties given permission to be represented by a lawyer, 








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pursuant to s 596 of the Act. Further directions were issued after that hearing which were 

complied with on 27 September and 4 October 2018.

[4] It is logical to deal firstly in this decision with the jurisdictional objections of 

TransGrid because if these objections are upheld, the dispute will be concluded and 

consideration and determination of the merits of the dispute, will become unnecessary. The 

2013 Agreement’s DSP at cl 35 provides:

35 Dispute Procedure 

35.1 Objectives 

35.2 The objective of the dispute settlement procedure is to ensure: 

(a) disputes are resolved at their source and at the lowest possible level; 

(b) disputes are resolved in a timely manner; 

(b) [sic] employees address the issue with their team leader/manager first; 

(c) the dispute remains in the part of the organisation concerned without 
interference from employees not involved. 

35.3 This dispute resolution process applies to all disputed matters in relation to: 

35.3.1 This Agreement 

35.3.2 The National Employment Standards. 

35.3.3 Disciplinary Action 

35.3.4 Workplace Safety 

35.3.5 Consultation as per clause 5 of this Agreement 

35.4 Local Matters 

35.4.1 In the first instance the parties must try to resolve the dispute through 
discussions at the local level between 

• the employee/s and their immediate supervisor and/or local manager. 








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• Employees may request assistance from an employee representative 
during these discussions. 

35.4.2 If unresolved at the local level, resolution is sought at a corporate level 
with involvement of the following: 

• The employee/s affected and, where requested, their employee 
representatives 

• Relevant senior manager/s and Human Resources/Employee Relations 
representatives.

35.5 Corporate Matters 

35.5.1 Claims or issues may be raised by either: 

• Employee/s, and, where requested, on their behalf by their relevant 
employee representatives 

• TransGrid 

35.5.2 Resolution of the issues raised should include:

• Where relevant, utilisation of the Level 1 and Level 2 Committees 

• Involvement and discussions with relevant member/s of TransGrid's 
Senior Management, Human Resources/Employee Relations and any 
other necessary resources. 

35.6 If following the discussions set out above the dispute is still not resolved, either 
party may refer the dispute to Fair Work Australia 

35.7 Fair Work Australia may deal with the dispute in 2 stages: 

(a) Firstly, through mediation, conciliation, expressing an opinion or making a 
recommendation; and 

(b) As a last resort, through arbitration or other binding determination. 

35.8 The parties may agree that a person other than Fair Work Australia can deal with 
a dispute in accordance with the section 740 of the Act. In the absence of such 
agreement the dispute will be dealt with by Fair Work Australia. 

35.9 TransGrid and the employee/s may choose to appoint another person, 
organisation or association to represent or support them during this process. 








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35.10 While the dispute resolution process is taking place work must be performed in 
accordance with the reasonable direction of the employer. However in providing such 
direction TransGrid shall take into consideration the impact of any changes to ensure 
that they will not prejudice any final outcomes from the dispute process. 

35.11 All work must continue in accordance with this Agreement and the Act. Subject 
to applicable occupational health and safety legislation, an employee must not 
unreasonably fail to comply with a direction by the employer to perform work, 
whether at the same or another workplace that is safe and appropriate for the employee 
to perform work.

CHALLENGE TO JURISDICTION

For TransGrid 

[5] In its outline of submissions of 21 June 2018 as to the Commission’s jurisdiction to 

determine this dispute, TransGrid raised the following matters.

[6] Firstly, on 30 May 2018, the TransGrid Employees Agreement 2016 (the ‘2016 

Agreement’) came into operation. APESMA, on behalf of Mr Tuszynski had filed this s 739 

dispute application on 26 April 2018, and identified the dispute as having arisen under the 

2013 Agreement. Accordingly, the principles in Stephenson v Senator the Hon Eric Abetz 

(Special Minister of State) [PR945876] (‘Stephenson v Abetz’) apply, in that the 2013 

Agreement and the operation of the DSP contained therein, ceased to apply to Mr Tuszynski. 

Further, it is irrelevant that a replacement agreement might contain the same, or similar DSP,

as the Commission is not empowered to deal with the dispute. 

[7] Secondly, in the alternative, that the Commission’s power to deal with this dispute is

derived from s 739 of the FW Act and is limited to matters arising under the Agreement

and the National Employment Standards (‘NES’). To the extent that clause 35 of the

Agreement refers to matters which are not referable to a term or matter in the Agreement or

the NES, the Commission does not have jurisdiction to deal with disputes about these matters.

This includes matters relating to ‘disciplinary action’ and ‘workplace safety’ at large. Thus, if 

the dispute is said to be about ‘workplace safety’ and/or ‘disciplinary action’, it was nothing 








[2018] FWC 6335

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more than a device to attract the application of the DSP and incorrectly characterises the 

dispute. 

[8] Thirdly, correctly characterised, the dispute is about the lawfulness of the direction

issued by TransGrid to Mr Tuszynski to relocate his place of work from Ultimo to

Wallgrove, including whether such a direction constitutes ‘unreasonable hardship’ under Mr 

Tuszynski’s contract of employment. This is a matter of contractual interpretation and does not

fall within the scope of the matters which can be determined by the Commission under clause 

35 of the Agreement.

[9] As TransGrid’s primary jurisdictional objection relates to the Stephenson v Abetz 

principles and as that objection was extensively developed later in written and oral 

submissions, to which I will later refer, I will set out, at this point, TransGrid’s other 

jurisdictional objections. 

[10] TransGrid submitted that the direction to relocate, and Mr Tuszynski’s claim that it 

constitutes unreasonable hardship, are matters which are to be determined by reference to the 

terms of the employment contract. Therefore, they do not fall within the scope of matters 

comprehended in cl 35 of the Agreement. 

[11] As to the dispute being about ‘disciplinary action’, it was submitted that at no time, 

had Mr Tuszynski refused to attend work at Wallgrove and he had complied with the 

relocation direction. Given these circumstances, ‘disciplinary action’ has not and would not 

be threatened; it has not even been discussed. The mere fact that ‘disciplinary action’ might 

be a theoretical consequence of any failure to follow a direction, does not mean the dispute is 

about ‘disciplinary action’ where the agreed evidence is that the subject has never arisen. 

Moreover, it appears the parties agree that if the relocation direction is lawful, TransGrid 

would be legitimately entitled to take ‘disciplinary action’, if the circumstances arose. 

[12] As to the dispute being about ‘workplace safety’, TransGrid submitted that APESMA 

provided no detail in respect to any dispute being about cl 6 of the Agreement (dealing with 








[2018] FWC 6335

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Work, Health and Safety), or how it is alleged TransGrid is failing to comply in respect to that 

clause. There is just a bold assertion that the relocation direction causes Mr Tuszynski to 

exceed a ‘door to door’ threshold under the Fatigue Management Procedure (‘FMP’). 

[13] In addition, the FMP is not part of the Agreement, nor is it referred to in cl 6. As with 

the other jurisdictional objection, this purported characterisation of the dispute, being about 

‘workplace safety’, is a mere device to attract the application of the DSP under cl 35, and 

thereby ground the jurisdiction of the Commission. 

[14] Even if it might be found the Commission is empowered to arbitrate the dispute, 

TransGrid has at all times complied with the FMP, and Mr Tuszynski’s working arrangements 

have been discussed and agreed to by him, in compliance with the FMP requirements, as 

follows:

(1) that the requirements under the Procedure are as follows:

(A) maximum of 16 hours per shift (door to door) or 16 hours of 
wakefulness (being 16 hours from when you leave home and arrive home);

(B) maximum of 12 days’ work over a 14 day period; and

(C) mandatory self-assessment after 12 hours of work; and

(2) the following steps would be taken to manage any risks associated with Mr
Tuszynski’s fatigue levels so as to facilitate compliance with the Fatigue Management
Procedure:

(A) after 12 hours of work, Mr Tuszynski will use the Fatigue Self-
Assessment tool as required;

(B) Mr Tuszynski and his manager Mr Tran will have regular conversations
around fatigue to ensure the risk can continue to be appropriately managed;
and

(C) Mr Tran and Mr Tuszynski will work together to develop a Fatigue 
Management Plan – with such plan being updated if any risks change.

[15] In oral submissions, Ms Fairhall, for TransGrid put that the principles in Stephenson v 

Abetz apply directly to this case. She set out the background to the dispute and the relevant 








[2018] FWC 6335

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facts (which are not in dispute). She observed that s 35(e) of the 2016 Agreement, which 

replaced the 2013 Agreement, makes no reference to disputes under the former agreement, or 

is otherwise preserved by a savings provision. 

[16] Ms Fairhall referred to the provisions of the Act set out at ss 51, 52, 54(2) and 58(1)-

(2), which read:

51 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.

52 When an enterprise agreement applies to an employer, employee or employee 
organisation

(1) An enterprise agreement applies to an employee, employer or employee 
organisation if:

(a) the agreement is in operation; and

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

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

Enterprise agreements apply to employees in relation to particular employment

(2) A reference in this Act to an enterprise agreement applying to an employee is a 
reference to the agreement applying to the employee in relation to particular 
employment.

54 - When an enterprise agreement is in operation

…

(2) An enterprise agreement ceases to operate on the earlier of the following days:








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(a) the day on which a termination of the agreement comes into operation 
under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to 
whom the agreement applies.

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule--later agreement does not apply until earlier agreement passes its nominal 
expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement ) applies to an employee in 
relation to particular employment; and

(b) another enterprise agreement (the later agreement ) that covers the 
employee in relation to the same employment comes into operation; and

(c)  subsection (3) (which deals with a single-enterprise agreement replacing a 
multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that 
employment until the earlier agreement passes its nominal expiry date; 
and

(ii) the earlier agreement ceases to apply to the employee in relation to 
that employment when the earlier agreement passes its nominal expiry 
date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date--the earlier 
agreement ceases to apply to the employee when the later agreement comes 
into operation, and can never so apply again.

[17] Ms Fairhall argued that put that as the 2013 Agreement ceased to operate, the 

Commission no longer has the power to hear and determine disputes under that Agreement. 

She relied on two further decisions which have relied on Stephenson v Abetz; namely;








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Launders v Officeworks Pty Ltd [2015] FWC 5692 (‘Launders’) and Mugford v Qantas

Airways Ltd [2016] FWC 677. 

[18] Ms Fairhall acknowledged that there has been some doubt expressed by members of 

the Commission about the correctness of Stephenson v Abetz, but significantly the 

reservations of Lawler VP dealt with accrued contractual rights, not the statutory creation and 

limitation of rights under an enterprise agreement. These rights depend on an agreement’s

express, or implied terms. No such term exists to suggest the 2013 Agreement survives the 

cessation of its operation. Moreover, s 595 makes clear the Commission can deal with a

dispute only if it is expressly authorised to do so. In this case, the Commission’s jurisdiction 

is limited to a dispute about matters in relation to the NES and the 2013 Agreement.

[19] Ms Fairhall put that a corollary of APESMA’s submission would produce the 

nonsensical proposition that the Commission could hear and determine a dispute before an 

agreement is approved by the Commission and applies to the parties. 

[20] Ms Fairhall acknowledged that while certain accrued rights under an enterprise 

agreement continue, pursuant to s 544 of the Act in relation to civil penalties, Parliament did 

not do so in respect to the DSP in an enterprise agreement. In the absence of any express, or 

implied term giving the Commission the power to hear and determine a dispute under an 

enterprise agreement which ceases to operate, the Commission cannot do so; so much is clear 

from Stephenson v Abetz. 

[21] Ms Fairhall rejected APESMA’s submission that Stephenson v Abetz can be 

distinguished because here the DSPs under the 2013 and 2016 Agreements are identical; in 

Stephenson v Abetz they were not identical. This is an irrelevant consideration to the 

Commission’s jurisdiction. 

[22] Ms Fairhall conceded that the applicant could have filed a fresh application under the 

2016 Agreement’s DSP about the subject matter of this dispute, and it would be 

jurisdictionally sound. At this point, I asked if this was so, ‘why are we wasting our time 








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about it?’. I directed the parties to confer and upon resumption, Ms Fairhall said that the 

jurisdictional objections had been foreshadowed by TransGrid at the outset of the dispute and 

it was up to APESMA to remedy or correct the dispute. It elected not to do so. 

For APESMA 

[23] In written submissions, Ms Saunders Counsel for APESMA noted that the relevant 

DSP clause in the 2016 Agreement is the same as in the 2013 Agreement. The 2016 DSP does 

not expressly exclude any rights under the same clause in the 2013 Agreement. APESMA 

seeks a finding that the Commission’s jurisdiction continues as this:

a. is consistent with the doctrine of survivability of private arbitration clauses;

b. avoids an interpretation of the FW Act that requires the extinguishment of 
accrued rights, contrary to the usual presumption against this; and

c. accords with a correct interpretation of the sections of the FW Act giving rise 
to the Commission’s power to arbitrate disputes of this kind.

[24] Counsel put that Stephenson v Abetz is firstly, not binding on the Commission and its 

reasoning is not applicable under the scheme of the Act and secondly, in any event, was 

wrongly decided. The minority opinion in BlueScope Steel (AIS) Port Kembla v The

Australian Workers Union, the Australian Manufacturing Workers’ Union & the

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied

Services Union of Australia [2018] FWCFB 856 (‘Bluescope’) is similarly incorrect. 

[25] Counsel submitted that Stephenson v Abetz dealt with ‘certified agreements’ under s 

170LW of the Workplace Relations Act 1996 (‘WR Act’) and distinguished this type of 

agreement with an ‘agreement’ made in accordance with Div 2 Part VIB. Although an 

‘agreement’ made under Div 2 of Part VIB ‘existed’, it  was  not operative until it became a 

‘certified agreement’ in accordance with Div 4 Part VIB s 4 (s 170LX). Importantly, the 

source of the Commission’s power to deal with a dispute, expressly required a provision in a 

‘certified agreement’ (as distinct from an ‘agreement’), authorising it to do so. Accordingly, it 

was put that the Full Bench had concluded: 








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a. s 170LW makes the Commission’s jurisdiction ‘dependent on the agreement being
a certified agreement’ (at [45]-[46]);

b. s 170LX is a further limitation on s 170LW (at [42]); and

c. if a certified agreement ceases to operate per s 170LX, the ‘Commission no longer
has jurisdiction’.

[26] In effect, the Full Bench found ‘operation’ to be an essential feature of a certified 

agreement in that it must be read as an ‘operative certified agreement’. Once a certified 

agreement ceases operation, it therefore ceases to exist, contrary to the normal application of 

administrative law; see: State of NSW v Kable (2013) CLR 118 at [52]. Ms Saunders 

submitted that there was limited textual support for the Full Bench’s conclusions in this 

regard. While ‘operation’ is an effect of certification – it does not automatically follow that it 

is a necessary feature of a ‘certified agreement’, such that a cessation voids the fact of 

certification. 

[27] Ms Saunders submitted that the scheme of the FW Act is entirely different. Counsel 

then set out the relevant statutory provisions going to the source of the Commission’s 

jurisdiction to arbitrate disputes at s 738 which provides as follows:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing 
with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for 
dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term 
that provides a procedure for dealing with disputes between the employer and 
the employee, to the extent that the dispute is about any matters in relation to 
the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that 
provides a procedure for dealing with disputes arising under the determination 
or in relation to the National Employment Standards.








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[28] It was said that two conclusions are obvious. The Commission’s jurisdiction is not 

presumptively predicated on the existence of a document with statutory force (as shown by 

the reference to contracts and other written agreements at s 738(c) above); and there is no 

express requirement for the enterprise agreement to be operative.

[29] Counsel noted that s 12 of the Act defines an enterprise agreement as being ‘a single 

enterprise agreement or a multi-enterprise agreement’. An enterprise agreement is ‘made’, 

that is to say, comes into existence, when it is approved by a majority of employees who are 

to be covered by it (s 182). Thus, an enterprise agreement exists as a matter of fact, before it 

is approved by the Commission. Indeed, this ‘existence’ must occur in order to make an 

application under s 185 of the Act or the enterprise agreement coming into operation under s 

54. This is to be distinguished to an operative certified agreement under the WR Act, in so far 

as an agreement under the FW Act is not an operative enterprise agreement until it is 

approved. In other words, Counsel further submitted the phrase ‘enterprise agreement’ cannot

coherently be read as meaning ‘operative enterprise agreement’ in the way ‘certified

agreement’ could arguably be read as ‘operative certified agreement’ under the WR Act.

[30] Ms Saunders put that absent evidence of a clear intention otherwise, the legislature is 

presumed to have intended that terms within an Act are to be read consistently. It would be

impermissible to give the phrase ‘enterprise agreement’ in s 738, a different meaning to that

set out above, without a clear textual indicator in support of this contention. Section 738

contains no such suggestion. Indeed, as set out above, the contrary proposition is shown: the

section evidences no intention that the documents giving rise to the Commission’s jurisdiction

be limited to those which otherwise have force under the FW Act.

[31] Counsel added that support is found in s 739, which constrains the Commission’s 

arbitral powers. The section contains no reference to ‘persons covered’; instead, the applicant

need only be a ‘part[y] to the dispute’. Further, s 739(4) provides that the Commission cannot

make a decision inconsistent with ‘a fair work instrument which applies to the parties’. This 

demonstrates an express contemplation of the Commission exercising powers of arbitration 








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arising out of documents which do not so apply within the meaning of the FW Act, such as an

enterprise agreement which has ceased to operate.

[32] It was put that the minority decision in Bluescope rests on a rejection of this ‘separate

mode of legally relevant existence’(at [73]). This turns on a misreading of s 182 (i.e. that the

section “does not refer to enterprise agreements”) and must, for the reasons set out above, be

disregarded.

[33] Accordingly, this fundamental shift in the legislative scheme means:

a. Stephenson v Abetz is no longer binding;

b. its reasoning no longer follows; and

c. the Commission’s jurisdiction to arbitrate a dispute, validly enlivened
under an enterprise agreement, is not extinguished by that agreement
subsequently ceasing to operate.

[34] Counsel referred to the decision of VP Lawler in Grabovsky v United Protestant

Association of NSW Ltd t/as UPA [2015] FWC 2504 (‘Grabovsky’) where his Honour said:

With great respect to the Full Bench that decided Stephenson, its reasoning overlooks
fundamental principles established by binding decisions of the courts, including the 
High Court, in relation to the operation of arbitration provisions in contracts. On every
working day in this country there are commercial arbitrations being conducted 
pursuant to arbitration clauses in contracts that have been terminated for breach.
Although the contract comes to an end in the sense that it cannot give rise to new
obligations or liabilities, the operation of an arbitration clause survives the termination 
of the contract. The decision in Stephenson takes no account of that fundamental
feature of the general law of contract and the numerous binding authorities that 
establish it.

[35] Counsel submitted that two conclusions flow from Grabovsky:

(1) it is uncontroversial that rights of private arbitration provided by contract,
presumptively survive the termination or invalidity of that contract; see: Ferris and
anor v Plaister and anor (1994) NSWCA 474, per Kirby P, Mahoney JA and Clarke
JA. Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 at
[41]-[53]; and








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(2) Stephenson v Abetz offends normal principles of statutory interpretation in that it has 
‘the effect of extinguishing accrued rights’; see: Esber v Commonwealth (1992) 174
CLR 430.

[36] Further, Ms Saunders submitted it is worth noting that the Bench in Stephenson v 

Abetz were bolstered in their conclusion, contrary to these principles, by the fact that (at [51]-

[54]:

a. the new agreement contained clauses stating that its application was to
the complete exclusion and replacement of the earlier agreement;

b. The outcome sought by Mr Stephenson was inconsistent with the terms 
of the replacement agreement (which would prevent it being awarded under the
FW Act per s 739(4)).

These factors displaced ‘any prima facie preservation of such a right’. No corresponding

matters arise in this matter.

[37] In oral submissions, Ms Saunders submitted that unless TransGrid was prepared to 

abandon its other jurisdictional objections; see: para [7] above – which it was not prepared to 

do, a discontinuance of this application was risky for Mr Tuszynski, in the sense that

TransGrid was seeking to avoid the merits of the dispute being agitated and determined. Ms 

Fairhall responded by noting that TransGrid’s other jurisdictional objections had been 

pressed and not waived. In fact, it was APESMA which had requested a separate hearing on 

the Stephenson v Abetz objection only. 

Other jurisdictional objections

[38] Ms Fairhall relied on TransGrid’s submissions filed on 21 June 2018; see: above at 

para [11]-[15] and further put that in considering whether the DSP permits the Commission to 

deal with a dispute, the Commission must identify whether the proper characterisation of the 

dispute falls under the DSP’s terms. In this case, the dispute is in fact about:

(a) whether the relocation direction to Mr Tuszynski was lawful under the terms of the 

employment contract; and








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(b) whether the relocation direction constitutes unreasonable hardship on Mr Tuszynski. 

[39] These are matters of contractual interpretation, not properly the subject of a dispute 

under the Agreement at cl 35. As this is not a dispute about ‘workplace safety’ or ‘disciplinary 

action’, it cannot be said to be a dispute arising under cl 35 of the 2013 Agreement. 

Nevertheless, TransGrid had filed evidence in relation to the applicant’s claim going to 

fatigue management and other merit issues, merely as a response to APESMA’s case and in 

the event its jurisdictional objections are not accepted. 

[40] In reply, Ms Saunders dealt with TransGrid’s other two jurisdictional objections by 

submitting that:

(a) If fatigue management procedures are part of the substantive issues in the dispute, as 

properly conceded by TransGrid, then this must be a ‘workplace safety’ issue 

contemplated by cl 35 of the 2013 Agreement; and

(b) If TransGrid claims this is not a disciplinary matter, but they will not give a guarantee 

that Mr Tuszynski will not be disciplined if he fails to follow a lawful direction, then 

this must be a dispute, in part, about a disciplinary matter. 

[41] As to the Stephenson v Abetz objection, Ms Saunders put that the two decisions Ms 

Fairhall relied on (and two others; see: Johnson v Finance Sector Union [2018] FWC 1035 

and ‘Bluescope’) were wrongly decided. She then spent some time examining the relevant 

sections of the WR Act; namely, the definition of a certified agreement, being an agreement 

certified under Div 4 of Part VIB; s 170(1) promoting productive workplace relations with 

efficient dispute resolution and ‘for an application to be made there must be an agreement’. 

She said that at this point, it is an agreement, not a ‘certified’ agreement. One then goes to s 

170LX which reads:

170LX When a certified agreement is in operation 

(1) A certified agreement comes into operation when it is certified and, subject to this 
section, remains in operation at all times afterwards. 








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(2) The agreement ceases to be in operation if: 

(a) its nominal expiry date has passed; and 

(b) it is replaced by another certified agreement. 

(3) The agreement: 

(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 
170MG, 170MH or 170MHA; and 

(b) does not operate if subsection 170LY(2) applies. 

The agreement may also be set aside under subsection 113(2A). 

(4) If:

(a) the application for certification of an agreement states that the application is 
made under Division 2; and 

(b) at any time when the agreement is in operation, the employer who made the 
agreement, or any employer who is bound by the agreement under section 
170MB (which deals with successor employers), is a constitutional 
corporation; and 

(c) at any later time while bound by the agreement, any such employer ceases 
to be a constitutional corporation; 

the agreement ceases to apply to the single business or part carried on by that 
employer.

[42] Ms Saunders then reviewed the details of Stephenson v Abetz. At [42] there is the 

critical finding which reads:

[42] Further, we think s 170LX of the Act is another constraint or limitation on the 
Commission's jurisdiction to exercise the private arbitration power arising from the 
procedures in a certified agreement for preventing and settling disputes.

and at [46]:

[46] An agreement which authorises the Commission to exercise such a power of 
private arbitration cannot operate with that effect unless it is a certified agreement.








[2018] FWC 6335

18

[43] Ms Saunders put that the Full Bench’s reasoning appears to hinge on the inseparability

between certification and operation. However, there is nothing in the WR Act which indicates 

that a lack of operation means it ceases to be a certified agreement. Ms Saunders relied on the 

obiter comments in Grabovsky and the reference to the Acts Interpretation Act and private 

arbitration. 

[44] Ms Saunders described the right to have a dispute dealt with as a substantive right 

which is recognised by the Commission, as not being extinguished, simply because an 

employee may be terminated, and the relevant agreement no longer applies to the employee; 

see: ING Administration v Jajoo (PR974301) (‘ING v Jajoo’) and Deakin University v 

Rametta [2010] FWAFB 4387 (‘Deakin University’). This is a continuing line of authority, 

unlike Stephenson v Abetz. 

[45] Ms Saunders conceded that if the legislative scheme was the same, or a different Act 

was functionally identical, then Stephenson v Abetz would probably be binding. However, that 

is simply not the case here. The corresponding provisions were relevantly and markedly 

different. Here, under s 738 of the FW Act, the Commission’s powers are no longer 

predicated on the existence of a document which has been authorised by the Commission.

This was the case under the WR Act. Even if the submission was wrong about an enterprise 

agreement as understood by s 738, it is difficult to see how it would not be another written 

agreement, under s 738(c) of the Act. Ms Saunders said that s 739 makes the position even 

plainer, with limitation provisions to parties to the dispute and in particular, ss 5, which reads:

739 Disputes dealt with by the FWC

…

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent 
with this Act, or a fair work instrument that applies to the parties.

[46] Ms Saunders emphasised the meaning of the term ‘enterprise agreement’ in s 52,

according to the principles of statutory construction in particular, requires the term to be given 

a consistent meaning throughout the Act. By reference to ss 181, 182 and 185 a proposed 








[2018] FWC 6335

19

enterprise agreement comes into existence at the point of a successful vote of employees. This 

pre-dates the application being made for approval and the actual approval of the Commission. 

Positive obligations can be enforced through civil remedy provisions in s 544, where such an 

application is made within six years. For something to be enforced, requires operational 

coverage. This is a completely different scheme to that under which Stephenson v Abetz was 

decided. 

[47] Ms Saunders observed that all four of the decisions earlier referred to, which had

applied Stephenson v Abetz, involved unrepresented applicants. This fact obviously meant the 

Commission did not have the benefit of detailed submissions as to the alleged binding force 

of that case. 

[48] Accordingly, Counsel submitted that the conclusions reached in Stephenson v Abetz

fundamentally turn on the provisions of the WR Act, as they stood at the time. The FW Act is 

a fundamentally different legislative scheme. Further, not only is Stephenson v Abetz not 

directly binding, its reasoning does not follow under the current statutory regime. The 

decision requires an interpretation that is inconsistent with the orthodox principles of statutory 

construction and produces an outcome which is not in keeping with the usual approach to 

private arbitration powers. It is for these reasons Stephenson v Abetz was wrongly decided. It 

would be an error to follow it now.

[49] Ms Saunders added that jurisdiction is not a ‘moveable feast’. Absent clear words in 

the underpinning instrument to the contrary, once a court or Tribunal is seized of jurisdiction, 

it cannot subsequently lose it, without direct legislative intervention, or express provision in a 

replacement agreement entered into by the parties.

[50] In reply, Ms Fairhall refuted the submission that the respective schemes of the two 

Acts were fundamentally different – approval and certification are inseparably wedded and 

essentially operate in the same way. Adopting Ms Saunders’ approach meant that the 

Commission could entertain a dispute before an agreement is approved and may never be 

approved. That could not possibly be the intention of s 739 of the Act. Ultimately, s 52 








[2018] FWC 6335

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ensures that if an Agreement is not in operation, it does not apply to the parties. The 

Commission’s jurisdiction is only engaged for the period that the agreement is in operation. 

Further Submissions

[51] After the hearing, TransGrid requested an opportunity to put further submissions. This 

was consented to on the basis APESMA could respond. TransGrid’s supplementary 

submissions (27 September 2018) are summarised as follows:

(a) The FW Act remains relevantly unchanged from the WR Act and it is clear from

the FW Act scheme that the Commission’s powers with respect to dispute 

resolution, are only enlivened while an agreement is in operation;

(b) There is no ‘presumption’ as to the preservation of rights under an agreement

which has ceased to operate. Inoperative enterprise agreements are ‘statutory 

artefacts’ (not contracts). Similarly, any right of a party to dispute resolution under

an enterprise agreement is not a statutory right, nor is it a right that Parliament

‘enacted’ through ‘legislation’. Thus, the principles cited by APESMA in support

of an accrued right under the 2013 Agreement, are inapplicable in this case; and

(c) Given the above, Stephenson v Abetz remains applicable and binding to this

matter. The proceedings should be dismissed for want of jurisdiction.

[52] Developing these submissions, Solicitors for TransGrid argued that the making, 

approval and operation of enterprise agreements under the FW Act remains fundamentally 

and substantially the same as under the WR Act, as demonstrated in the table set out below.








[2018] FWC 6335

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Minor differences are ‘distinctions without a difference’. 

[53] It was submitted that Stephenson v Abetz did not turn on the use of the term ‘certified’

agreement, per se, but rather the term connotes an agreement that has been approved by the 

Commission and has commenced operation. These two concepts are inextricably linked, just 

as is the case under the FW Act. Unlike the WR Act, the FW Act makes no textual distinction 

between an agreement which has been made, but not approved, and one which has been 

approved. However, the reference to an enterprise agreement in s 738(b) can only be a 

reference to an enterprise agreement which has been approved by the Commission and is in 

operation given that:

(a) s 738(b) refers to an enterprise agreement that ‘provides for a procedure for 

dealing with disputes, including a term referred to in section 186(6)’. This 

signifies that the procedure is one in an enterprise agreement which the


Comparison of WR Act and FW Act provisions relating to Enterprise Agreements and Certified Agreements Requirement WR Act FW Act An employer makes an agreement with employees that is approved $ 170LK / $ 180,182 by a valid majority of the persons employed at the time whose $170LJ employment will be subject to the agreement, subject to specified pre-approval notification and access requirements The employer must apply to the Commission, within the required $ 170LM s 185 timeframe, for certification/approval of the agreement. The Commission must approve the agreement, providing that it is S 170LT (8) satisfied that the terms of the agreement, and the process by which s 186, 187 it was made, comply with specified requirements. These include, in particular, that the agreement contains a procedure for preventing and settling disputes between the employer and employees about matters arising under the agreement. An agreement comes into operation once it is approved / certified s 170LX s 54(1) by the Commission An agreement ceases to operate when it is terminated or replaced $ 170LX(2) $ 54(2), 58




 



[2018] FWC 6335

22

Commission has already determined has met the criteria in the approval process 

(rather than a term in a pre-approved enterprise agreement);

(b) s 739(5) provides that the Commission may only deal with a dispute on

application ‘by a party to the dispute’. A person cannot logically be a ‘party to a 

dispute’ under an enterprise agreement, unless the agreement applies to that person.

For this to occur, the agreement must be in operation.

(c) Similarly, an enterprise agreement does not impose obligations on a person or

give a person an entitlement, unless the agreement applies to the person (s 51).  As a 

matter of practical application then, there can be no dispute about matters ‘arising 

under the agreement’, (including a party’s rights and entitlements therein), and thus no

requirement for any dispute resolution by the Commission, unless and until the

agreement has commenced operation and applies to the party.

[54] TransGrid’s solicitors submitted that the principles of accrued rights do not apply to 

enterprise agreements and accordingly, cases such as Ferris v Plaister (1994) 34 NSWLR 474

and Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10, dealing 

with the interpretation of common law contracts are inapplicable to this case. As to VP 

Lawler’s obiter comments in Grabovsky, it was put that the DSP rights under the 2013 

Agreement are not acquired or accrued under statute; rather, they are discrete rights acquired 

or accrued under the enterprise agreement. This must be so because Parliament may alter 

statutory rights, but not DSP rights under an enterprise agreement. 

[55] Further, the authorities relied on by APESMA deal with statutory rights, pursuant to s 

8 of the Acts Interpretation Act 1901 (Cth) which provides that:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary 
intention appears the repeal shall not:

…

(c) affect any right privilege obligation or liability acquired accrued or incurred under 
any Act so repealed.”








[2018] FWC 6335

23

There is obviously no repeal of the FW Act comprehended here, to which the present case 

might apply. 

[56] TransGrid rejected any reliance by APESMA on the cases which it cited in the hearing 

going to the continuation of a dispute, beyond an employee’s termination of employment, so 

long as the dispute had arisen prior to termination. These cases do not apply here where the 

question of the certification of the s 739 process arises when the relevant enterprise 

agreement, under which it was lodged, no longer applies and has been replaced. 

APESMA’s further reply (4 October 2018) 

[57] Counsel criticised TransGrid’s submission regarding Stephenson v Abetz for not 

addressing the Full Bench’s reasoning, but merely stating the conclusion than an operative 

enterprise agreement was required. There was no basis for concluding any difference between 

the ‘inextricability of operation’ arising from the different statutory schemes. 

[58] As to TransGrid’s three reasons in support of its submission that the term of an 

enterprise agreement in s 738 of the Act means an ‘operative enterprise agreement’, Counsel 

said the submission is wrong because:

(a) As to the first, it cannot be inferred the fact that s 738(b) refers to an enterprise
agreement that ‘provides for a procedure for dealing with disputes, including a term
referred to in s 186(6)’ that the agreement has either met the criteria required by the
approval process, or in fact been approved. The use of the word ‘including’ shows that
the Commission is not limited to agreements containing clauses which satisfy s 186(6);
from this it follows that it is possible that a dispute could be arbitrated under an
agreement which contained no compliant dispute procedure as long as there was a 
procedure of some kind referring to the Commission. It can thus be inferred that s 738
does not require the enterprise agreement to be capable of approval, let alone 
approved or currently operative.

(b) The second and third propositions are linked: the proposition is that a person cannot 
be a party to a dispute, and thus cannot have standing under s 739(5) to bring an 
application, unless the agreement applies to them and imposes obligations. This 
submission rises no higher than a bald assertion – its truth would depend on the 
nature and breadth of the dispute clause. In any event, it is no support for the 
proposition that a person who had standing subsequently loses it on the non-operation 








[2018] FWC 6335

24

of the agreement. Once the application is validly made, it remains so and the 
Commission’s jurisdiction continued.

[59] It was submitted that the error in TransGrid’s reasoning is demonstrated by its 

acceptance that a dispute arising under an enterprise agreement continues, even when the 

employment relationship ends and the agreement ceases to apply, or ceases to impose 

obligations on the employer and the employee. This would require a contrary conclusion to all

the relevant authority on that proposition; namely, ING v Jajoo; Telstra Corporation Limited 

v Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services 

Union of Australia [2007] AIRCFB 374 and Deakin University. 

[60] Finally, it was put that TransGrid’s submissions miss the point. The relevant right in 

this dispute is to have a validly activated arbitration process concluded. This right accrues 

once the application is made, and absent clear statutory language to the contrary, should not 

be displaced. 

CONSIDERATION – JURISDICTIONAL OBJECTIONS

Workplace safety and disciplinary action

[61] I can dispose of TransGrid’s two less significant jurisdictional objections in short 

order, noting the lack of vigour which TransGrid pressed these matters, is a likely pointer to

the strength (or lack of it) of the prospects of these objections being upheld. 

[62] In respect to the dispute being about workplace safety, I do not see how it can possibly 

be said that excessive travel times and the impact on an employee’s health, is not a matter 

intrinsically about ‘workplace safety’. The fact that TransGrid actively engaged with Mr 

Tuszynski in respect to steps he was able to take to self assess and avail himself of 

ameliorating measures under a FM Plan, are demonstrable indicators that this dispute is, in 

part, about ‘workplace safety’, consistent with cl 35.3.4 in the Agreement and cl 6(f) of the 

Agreement, which reads as follows:








[2018] FWC 6335

25

f) agreeing to participate in the formulation of safety plans and initiatives and the 
implementation of these schemes.

[63] It is necessary to point out, as was the case here, that disputes are rarely static; they 

evolve over time, and related matters, not identified at the beginning of a dispute, may emerge

or mutate. In this respect I refer to the principles of dispute resolution set out by Saunders C

in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 

2959 at [8]:

[8] In characterising the nature of a dispute the Commission is not confined to the 
application filed to deal with the dispute. The entire factual background is relevant, 
and may be ascertained from the submissions advanced by the parties on the question 
of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. 
It may therefore be necessary in some cases when ascertaining the character of a 
dispute to have regard to both the nature of the dispute alleged in an originating 
application and the factual circumstances as they evolve.

[64] An evolving dispute does not mean that the essential elements of the dispute have 

been incorrectly characterised. I reject the objection that this dispute is not about ‘workplace 

safety’, as comprehended by cl 35.5.4 of the Agreement. 

[65] Similarly, I accept that as this dispute evolved, it could have, or had the potential to 

morph into a dispute about ‘disciplinary action’. The fact that TransGrid has never raised with 

Mr Tuszynski or implied the imposition of disciplinary action for a failure to follow a lawful 

reasonable direction, is more a consequence of Mr Tuszynski’s commendable cooperation in 

avoiding this possibility, while at all times, maintaining his dispute. Given the numerous

authorities on lawful and reasonable directions involving the dismissal of an employee for a 

failure to comply, it is entirely understandable why Mr Tuszynski would have this possibility 

in mind, if he failed to comply with the relocation direction. Moreover, the term ‘disciplinary 

action’ is not defined in the 2013 Agreement and appears only in cl 35. I can see no reason 

why the term should be given a narrow interpretation, such as to confine it to ‘disciplinary 

action taken’. I think an ordinary reading of the term means that it would include ‘possible 

disciplinary action’.  








[2018] FWC 6335

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[66] In addition, I consider it somewhat bizarre and unrealistic for TransGrid to insist this 

dispute is not about disciplinary action when it obviously had, and has rights to take 

disciplinary action, against Mr Tuszynski if he fails to follow a lawful and reasonable 

direction. In this case, TransGrid maintains the relocation direction is lawful and reasonable 

and if it is found to be so, and Mr Tuszynski refuses to remain located at Wallgrove, then it 

will no doubt invoke its rights in that regard. Given all the circumstances, I accept this dispute 

may involve an element of disciplinary action – at least in a prospective sense – and such a 

matter is intrinsically woven into the fabric of this dispute. I dismiss the objection that this 

dispute is not about ‘disciplinary action’, as comprehended by cl 35.5.3 of the Agreement. 

Stephenson v Abetz

[67] Underpinning APESMA’s primary jurisdictional argument is the proper construction 

of the terms ‘enterprise agreement’ in the FW Act and the term ‘certified agreement’ under 

the former WR Act. I do not understand there to be any disagreement as to the usual and well 

known principles of statutory construction applying to that exercise. In this respect, I set out 

the helpful summary of the principles found in J.J. Richards & Sons Pty Ltd v Fair Work 

Australia [2012] FCAFC 53 (‘JJ  Richards’) where his Honour, Flick J, said at [50]-[54]:

‘50. First, the so-called “golden rule” of the common law as to statutory construction 
is that “the grammatical and ordinary sense of the words is to be adhered to, unless 
that would lead to some absurdity, or some repugnance or inconsistency with the rest 
of the instrument, in which case the grammatical and ordinary sense of the words may 
be modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v 
Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See 
also: Australian Boot Trade Employees’ Federation v Whybrow & Co [1910] HCA 
53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined 
to circumstances where a “mistake” has been made in the wording of an Act; the rule 
is also applied to avoid construing legislation so as to produce patently unintended or 
absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 
498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).

51. Second, the common law also recognised that “[i]t is a strong thing to read into an 
Act of Parliament words which are not there, and in the absence of clear necessity it is 
a wrong thing to do”: Thompson v Goold & Co[1910] AC 409 at 420 per Lord 
Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 








[2018] FWC 6335

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FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v 
Hart [2009] FCAFC 112 at [6] per Spender J.

52. Third, a construction of a statutory provision is to be preferred “that would best 
achieve the purpose or object of the Act”: Acts Interpretation Act 1901 (Cth) s 
15AA. The requirement to look to the purpose or object of an Act is more than an 
instruction to adopt the traditional mischief or purpose rule in preference to the literal 
rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory 
provision before a court is not only permitted, but required to have regard to 
purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there 
went on to observe that the provision there in question, being a provision comparable 
to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its 
purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 
162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation 
nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. 
See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v 
Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 
85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 
512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end 
the task of the court is to ascertain and to enforce the actual commands of the 
legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per 
Bowen CJ.

53. In R v Young [1999] NSWCCA 166, 46 NSWLR 681 at 686, Spigelman CJ 
summarised these principles of statutory construction as follows:

[5] The proposition that a court can introduce words into an Act of Parliament 
offends a fundamental principle of our constitutional law. It is no part of the 
function of any judge to amend legislation. The task of the courts is to 
determine what Parliament meant by the words it used, not to determine what 
Parliament intended to say ...

[6] In order to construe the words actually used by parliament, it is sometimes 
necessary to give them an effect as if they contained additional words. This is 
not, however, to introduce words into the Act. This involves the construction of 
the words actually used. Judicial statements which appear to have been 
prepared to countenance something more than this, should be so understood.

[7] The most frequently cited formulations are:

“It is a strong thing to read into an Act of Parliament words which are not 
there, and in the absence of clear necessity it is a wrong thing to do.”
Thompson v Goold & Co [1910] AC 409 at 420, per Lord Mersey; and








[2018] FWC 6335

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“...we are not entitled to read words into an Act of Parliament unless 
clear reason for it is to be found within the four corners of the Act 
itself.”

Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445, per Lord 
Loreburn LC. To similar effect is the following formulation:

“Additional words ought not to be read into a statute unless they are 
required in order to make the provision intelligible.”
Wills v Bowley [1983] 1 AC 57 at 78B.

[8] The process by which words omitted by inadvertence on the part of the 
draftsperson may be supplied by the court, must remain capable of 
characterisation as a process of construction of the words actually used.

[68] I turn first to the relevant provisions of the WR Act. 

[69] Section 4 – Interpretation defines a ‘certified agreement’ as ‘an agreement certified 

under Division 4 of Part VIB’. Section 170LT(1) Certifying Agreements ss(1) states:

(1) If an application is made to the Commission in accordance with Division 2 or 3 to 
certify an agreement, the Commission must certify the agreement if, and must not 
certify the agreement unless, it is satisfied that the requirements of this section are met.

[70] Section 170LD deals with a certified agreement’s nominal expiry date and reads:

For the purposes of this Part, the nominal expiry date of a certified agreement is the 
date specified in the agreement as its nominal expiry date, or that date as extended or 
further extended under section 170MC.

[71] Section 170LI distinctively and separately contemplates a species of ‘agreement’ prior 

to certification as the preceding word ‘certified’ does not appear. 

(1) For an application to be made to the Commission under this Division, there must 
be an agreement, in writing, about matters pertaining to the relationship between:

(a) an employer who is a constitutional corporation or the Commonwealth; and






http://classic.austlii.edu.au/cgi-bin/LawCite?cit=%5b1910%5d%20AC%20444?stem=0&synonyms=0&query=title(%222012%20FCAFC%2053%22)


[2018] FWC 6335

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(b) all persons who, at any time when the agreement is in operation, are 
employed in a single business, or a part of a single business, of the employer 
and whose employment is subject to the agreement.

(2) The agreement must be made in accordance with section 170LJ, 170LK or 170LL.

[72] The final subsection in Division 2, s 170LM then logically sets out the first step in 

seeking certification, noting the agreement is still not described as ‘certified’. 

[73] Section 170LW provided the power for the former Commission to deal with disputes:

Procedures in a certified agreement for preventing and settling disputes between the 
employer and employees whose employment will be subject to the agreement may, if 
the Commission so approves, empower the Commission to do either or both of the 
following:

(a) to settle disputes over the application of the agreement;

(b)  to appoint a board of reference as described in section 131 for the purpose 
of settling such disputes. [my emphasis]

[74] Section 170LX relevantly deals with the operation and termination of a certified 

agreement and reads:

(1)  A certified agreement comes into operation when it is certified and, subject to this 
section, remains in operation at all times afterwards.

(2) The agreement ceases to be in operation if:

(a) its nominal expiry date has passed; and

(b) it is replaced by another certified agreement.

[75] It seems to me that particular care and a degree of caution must be exercised when 

comparing the purpose, creation and operation of an industrial instrument under one statutory 

scheme to a seemingly corresponding industrial instrument, under a different statutory 

scheme. Obviously, in Stephenson v Abetz the agreement there under consideration was a 

‘certified agreement’ created under the WR Act. The agreement under consideration here is 

an enterprise agreement created under the FW Act. 








[2018] FWC 6335

30

[76] While at first blush, as TransGrid submitted, it might be said, that any differences 

between a ‘certified agreement’ and an enterprise agreement, are ‘differences without a 

distinction’, I cannot agree. In my view, the differences between the two species of industrial 

instrument are of such significance that I find myself unable to agree that Stephenson v Abetz 

is, (or ever was) applicable to matters of this kind under the FW Act. I set out below some of 

the differences between the agreement streams under the two Acts. The list is not exhaustive.

[77] Firstly, is the obvious one of nomenclature. There is no such creature as a ‘certified 

agreement’ found anywhere in the FW Act. 

[78] Secondly, the fundamental requirement on the Commission to be satisfied that an 

enterprise agreement meets the Better Off Overall Test (‘BOOT’) under the FW Act (ss 186 

and 187), is a different, and arguably more onerous test than the requirement for the 

Commission to be satisfied that a ‘certified’ agreement under the WR Act meets the No 

Disadvantage Test (‘NDT’). 

[79] Thirdly, certified agreements have a maximum life of five years, whereas an enterprise 

agreement’s nominal term cannot exceed four years. 

[80] Fourthly, under Part 2-4 of the FW Act, specific process steps must be taken (e.g. 

issuance of the Notice of Employee Representational Rights (s 173) at least 21 days before the 

vote) and the terms of the Agreement and their impact on employees must be explained to 

them (s 186(2)), which if not followed will be fatal to the Agreement being approved by the 

Commission. Under s 170LT of the WR Act, an agreement will not be certified unless the 

Commission is satisfied that the agreement passes the No Disadvantage Test and is not 

contrary to the public interest. There is no general public interest test in Part 2-4 of the FW 

Act, noting that s 189 deals with the public interest in the context of the Agreement not 

satisfying the BOOT.








[2018] FWC 6335

31

[81] Fifthly, an enterprise agreement under the FW Act must contain certain compliant 

terms (DSP (186(6), consultation and flexibility terms (ss 201-205) and must not include any 

unlawful terms (ss 186(4)-(5), and 194). There are no corresponding mandatory requirements,

except for a reference in s 170LT(8) to dispute resolution procedures and a separate 

recognition of agreements being made about ‘industrial disputes and industrial situations’ in 

Part VIB – Division 3.

[82] Seventhly, under the FW Act, there are provisions for the appointment of Employee 

Bargaining Representatives. There are no similar provisions under the WR Act. 

[83] Eighthly, an application for an enterprise agreement under the FW Act must be made 

within 14 days of the Agreement being made (the vote for the agreement (s 185(3)(a)). Under 

s 170LM of the WR Act, an application to certify an agreement must be made within 21 days 

of its approval by employees. 

[84] Ninthly, certified agreements may be made for ‘part of a business’ (s 170L – Object), 

whereas the FW Act focuses on the ‘enterprise’ or ‘multi-enterprise’. 

[85] In my opinion, the Commission’s jurisdiction to arbitrate a dispute is not limited to a 

DSP in an enterprise agreement, as it was previously so limited by being only exercisable 

under a DSP in an operative certified agreement (as Stephenson v Abetz concluded). 

Relevantly, there is no express requirement that the jurisdiction arises from a DSP in an 

enterprise agreement which is operative, i.e. having been approved by the Commission. That 

this must be so, is evident from ss 180 and 182 of the FW Act which provides that an 

‘enterprise agreement’ is made when it is voted on by a majority of employees who cast a 

valid vote for approval. Prior to a successful vote, the agreement is referred to as a ‘proposed 

enterprise agreement’. I agree with Ms Saunders that when this occurs, and before an 

agreement is approved by the Commission, the agreement has a distinct factual and legal 

existence, which is necessary before a valid application for approval can be made under s 185

of the FW Act. 








[2018] FWC 6335

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[86] Turning then to the specific provisions in respect to disputes arising under ‘certified’

agreements and enterprise agreements under the respective Acts. Under s 170LW of the WR 

Act, the former Commission was empowered, through a procedure in a certified agreement, to 

settle disputes over the application of the agreement. ‘Certification’ was therefore an express 

requirement for the Commission to have jurisdiction to determine a dispute arising under the 

application of the certified agreement; see: Stephenson v Abetz at [45]-[46]. By comparison, 

Part 6-2 – Division 2 of the FW Act applies where ‘an enterprise agreement includes a term 

that provides a procedure for dealing with disputes, including a term referred to in section

186(6)’(s 738(b)). In Stephenson v Abetz at [49], the Full Bench found that the effect of ss 

170LW and 170LX, was that if a ‘certified’ agreement ceased to have operation, the

Commission no longer had jurisdiction to exercise private arbitration of the Agreement. 

Therefore, the question becomes whether the term ‘enterprise agreement’ in s 738(b) really 

means operative enterprise agreement. As the parties pointed out, under the FW Act, there is 

no textual distinction between an enterprise agreement which has been made, but not 

approved, and one that has been approved by the Commission (unlike in the WR Act). 

However, is it correct to say, as TransGrid submits, s 738(b) can only be a reference to an 

enterprise agreement which has been approved by the Commission and is in operation?

[87] Ms Fairhall submitted that s 738(b) is a reference to DSPs in enterprise agreement 

which the Commission has already approved. Part of the difficulty I have with this 

proposition is that s 186(6) is a reference to the strict requirement that a DSP be included as a 

term in an enterprise agreement before the Commission approves it. It is not a reference to a 

DSP which is in an enterprise agreement that has already been approved by the Commission. 

In other words, the reference to the DSP in s 738(b), is a reference to a term found in an 

enterprise agreement that has not yet been approved and is not yet operative. This seems to

me to lead to the opposite conclusion for which TransGrid contends. In any event, as Ms 

Saunders pointed out, the term ‘including’ is not to be read as meaning exclusive. 

[88] Pursuant to s 739(5) of the FW Act, the Commission can only deal with a dispute on 

application by a party to the dispute (s 739(6)). As Ms Fairhall submitted, a person cannot be 

a party to a dispute unless an enterprise agreement applies to that person. For that to occur, the 

enterprise agreement must be in operation (s 51). As the Full Court of the Federal Court of 








[2018] FWC 6335

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Australia (Bromberg, Katzmann and O’Callaghan JJ) said in One Key Workforce Pty Ltd v 

Construction, Forestry, Mining and Energy Union [2018] FCAFC 77:

“22. A single-enterprise agreement that is not a greenfields agreement is made when a 
majority of those employees who cast a valid vote approve the agreement: s 182(1). An 
agreement is only effective, however, if and when it is approved by the Commission. As 
the plurality explained in ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees 
Association [2017] HCA 53; (2017) 350 ALR 381; 92 ALJR 33; 270 IR 459 at [34]:

An enterprise agreement comes into operation in the sense of creating rights and 
obligations between an employer and employees in relation to the work performed 
under it only after it has been approved by the Commission. After that time the 
agreement applies to the employers and employees who are covered by it. But 
before that time, as will be seen, by virtue of s 182(1) of the Act, a non-
greenfields enterprise agreement is “made” when a majority of those employees 
who will be covered by the agreement cast a valid vote to approve the agreement. 
As will be seen, once the agreement is made in accordance with s 182(1), the 
agreement is treated by the Act as covering the employers and employees to 
whom it refers.”

[89] At the time APESMA made the application, it (and Mr Tuszynski for that matter), 

were both parties to the 2013 Agreement, which was operative. APESMA had standing to 

make the application and the Commission was then seized with jurisdiction to ‘deal with the 

dispute’ (s 739(6)). I agree with Ms Saunders that this section does not necessarily provide 

support for the proposition that a person who had standing when they made a s 739 

application, subsequently loses it once the agreement ceases to operate pursuant to s 54. For 

that to be so, it seems to me that the word ‘operative’ must be read into s 738(b). 

[90] Sections 51 and 54 of the FW Act give some limited assistance to determining whether 

‘operative’ ought to be properly read into s 738(5). That said, they do highlight some practical 

issues and provide context. Pursuant to s 51 of the FW Act, an enterprise agreement does not 

impose obligations, nor does it give a person any entitlements, unless the agreement applies to 

them. Pursuant to s 54(2)(b), an enterprise agreement ceases to operate once a ‘later 

agreement’ comes into operation which replaces the ‘earlier agreement’. There are obvious 

practical issues in respect to arbitrating a dispute in respect to a matter arising under an 

enterprise agreement, even where it has been properly made at the time of lodgement, if the 








[2018] FWC 6335

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enterprise agreement ceases to apply to the employee and the employer in the period between 

lodgement and determination. Here, if the Commission arbitrates the dispute under the 2013 

Agreement, I doubt whether that decision would impose any obligations on the parties, given 

the 2013 Agreement ceased to apply to them on 30 May 2018. That said, the relevant terms of 

the 2013 and 2016 Agreements are unchanged. It would be unusual, for a model employer 

such as TransGrid, to ignore a determination of the Commission on the basis that the 

determination may not be binding. While potentially impractical, I think that particular matter 

is a question of law which is unnecessary for the Commission to determine in the present 

context. 

[91] As his Honour Flick J cited in JJ Richards ‘it is a strong thing to read into an Act of 

Parliament words which are not there, and in the absence of a clear necessity it is a wrong 

thing to do’. In my view, the term ‘enterprise agreement’, as it appears consistently 

throughout the Act, in particular s 738(b), cannot be read as including the prefatory word,

‘operative’. The corollary of this proposition is that there is no limitation on the 

Commission’s powers to arbitrate a dispute under a DSP in an enterprise agreement, provided 

the application was properly made in the sense that it applied to the applicant at the time it 

was lodged, even where the enterprise agreement ceased to operate, in the context of it being 

replaced or terminated, as the case may be. I consider the ratio in Stephenson v Abetz is 

therefore not binding on me. 

[92] I agree with Ms Saunders that earlier single member decisions, (including my own in 

Launders), that Stephenson v Abetz was followed. However, in those cases the parties were 

unrepresented. Here, the submissions of experienced legal representatives on this complex 

issue have been detailed and comprehensive and in Ms Saunders’ case, persuasive. 

[93] Although I have found that the principles in Stephenson v Abetz do not apply to this 

dispute, I intend to make some further observations about Stephenson v Abetz as to whether it 

was correctly decided. 








[2018] FWC 6335

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[94] It seems to me that the beneficial purpose of the provisions under Part 6-2 `could not 

possibly be intended to extinguish rights commenced under a statutorily created instrument 

which no longer applies. I agree with what Lawler VP said in Grabovsky when his Honour 

said:

[51] The period of Mrs Grabovsky’s employment by the Respondent prior to 2011 was 
covered by predecessor enterprise agreements, including enterprise agreements made 
under the Workplace Relations Act 1996.

[52] The decision of the Full Bench of the AIRC in Stephenson v Abetz (28 October 
2014, PR952743) is authority for the proposition that when an workplace agreement 
made under Workplace Relations Act 1996 was replaced by a subsequent agreement 
made under that Act, the earlier agreement ceases to operate such that the Commission 
has no jurisdiction to deal with a dispute arising under the earlier agreement. As a 
single member of the Commission I consider myself bound to follow decisions of a 
Full Bench of the Commission or its predecessors that is properly applicable in the 
instant case unless that decision is per incuriam - a decision that overlooks obviously 
applicable statutory provisions or earlier applicable and of a Court binding the Full 
Bench.

[53] With great respect to the Full Bench that decided Stephenson, its reasoning 
overlooks fundamental principles established by binding decisions of the courts, 
including the High Court, in relation to the operation of arbitration provisions in 
contracts. On every working day in this country there are commercial arbitrations 
being conducted pursuant to arbitration clauses in contracts that have been terminated 
for breach. Although the contract comes to an end in the sense that it cannot give rise 
to new obligations or liabilities, the operation of an arbitration clause survives the 
termination of the contract. The decision in Stephenson takes no account of that 
fundamental feature of the general law of contract and the numerous binding 
authorities that establish it.

[54] Moreover, the interpretation adopted by the Full Bench in Stephenson has the 
effect of extinguishing accrued rights. Applied rigorously, the decision 
in Stephenson would oblige the Commission to refuse to continue dealing with a 
dispute properly notified pursuant to a dispute resolution procedure. It is a 
fundamental principle of statutory construction that the parliament is presumed, when 
enacting legislation, not to deprive people or citizens of their accrued rights other than 
by express words. In the case of Commonwealth legislation there is the further 
consideration of the operation of s.51(xxxi) of the Constitution. These matters were 
not considered by the Full Bench in Stephenson when it construed s.170LX of the 
then Workplace Relations Act 1996.

[55] I find that I do have jurisdiction to deal with the present dispute under each of the 
succession of enterprise agreements that applied to Mrs Grabovsky and the 








[2018] FWC 6335

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Respondent during the whole period of her employment. However, there is no 
suggestion that the classification description for Care Service Employee Grade 2 has 
changed over that succession of agreements and, accordingly, the reasoning set out 
above in relation to the current Agreement is equally applicable in relation to the 
dispute to the extent that it arises under any of the predecessor agreements.

See also: Esber v Commonwealth (1992) CLR 430.

[95] In addition, with respect to the Full Bench in Stephenson v Abetz, I find compelling, as 

I think did VP Lawler, the views of Deegan C in her decision which was successfully 

appealed in Stephenson v Abetz. At paras [55]-[57], the Commissioner said:

[55] In my view the words "ceases to be in operation" in s170LX do not operate so as 
to remove all rights parties to an agreement may have under an agreement which has 
been terminated or replaced by another agreement. The words in question do no more 
than provide that an agreement does not continue to determines [sic] the rights and 
obligations of those parties covered by it when a new Agreement commences to 
govern the employment conditions. The superseded agreement continues to provide 
the rights and obligations of the parties to the Agreement in respect of that period for 
which it was in operation.

[56] If the legislature had intended that the termination of an agreement would have 
the effect of completely extinguishing all rights employees or employers may have had 
as a consequence of the agreement, in my view, a more explicit statement to this effect 
would be required. I do not accept the argument that the parties would need to provide 
for such situations in the terms of the new agreement. In my view such provisions 
would be necessary only if the legislation explicitly removed all rights and liabilities 
under terminated agreements. In such circumstances the parties would be aware that 
such a consequence flowed from the making of a new agreement and would be alerted 
to the need for savings provisions.

[57] I accept the arguments put by the applicant and the CPSU that to find otherwise 
would lead to absurd results and would enable an employer to deny an employee rights 
merely by delaying a settlement of a dispute until a new agreement was certified.

[96] It is also of note that underpayment claims according to an industrial instrument,

including an enterprise agreement, do not evaporate simply because the industrial instrument 

is no longer in operation. In other words, an enterprise agreement replaced, or terminated, 

continues to have a statutory existence and practical utility beyond its operative period. To my 








[2018] FWC 6335

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mind, this is a clear pointer that Stephenson v Abetz, with respect, may have been wrongly 

decided. 

[97] In my view, there is no reason – let alone a cogent one – why an employee’s right to 

pursue a dispute under a DSP in an enterprise agreement which is no longer in operation, is 

extinguished. While I accept the present context is not entirely analogous, this seems entirely 

consistent with the preservation of DSP rights after an employee is no longer employed, 

provided the dispute was commenced prior to the termination of employment; see: ING v 

Jajoo and Deakin University. 

[98] In this case there is no doubt jurisdiction commenced when the dispute was lodged on 

26 April 2018. To my mind, once the Commission is seized of jurisdiction, unless there is a 

specific statutory bar or the replacement Agreement expressly provides for its extinguishment, 

the Commission’s jurisdiction remains on foot, and is exercisable.

[99] In another sense, there is a practical unreality of applying the Stephenson v Abetz 

approach to the current dispute. I raised with the parties during the hearing, that there would 

be nothing at all to prevent APESMA or Mr Tuszynski reactivating the same, or similar 

dispute, in accordance with the DSP under the prevailing 2016 Agreement. As Mr Tuszynski

remains in employment, there could be no issue as to the limitation set out in ING where a 

DSP must have been commenced before a termination of employment. Accordingly, I 

consider there is a pall of unreality and senseless utility in TransGrid’s jurisdictional approach 

to this dispute. 

[100] Finally, it is trite that had Parliament intended to extinguish a person’s properly 

initiated and pursued rights in a DSP of an enterprise agreement which is then replaced by a 

successor agreement, then it could have expressly said so. Having not done so, at the very 

least, it may be inferred that Parliament did not intend such an outcome. 

[101] For these reasons, I am satisfied the Commission has jurisdiction to resolve this 

dispute under cl 35 of the 2013 Agreement. TransGrid’s jurisdictional objections are 








[2018] FWC 6335

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dismissed. I turn now to the evidence in this case going to the substance and merits of the 

dispute. 

THE EVIDENCE

[102] Mr Tuszynski commenced employment with TransGrid as a Project Officer on 25 

June 2012 at the Surry Hills office. In February 2014, Mr Tuszynski was relocated to the 

Ultimo office. His current position is an AIPM Certified Project Manager. Mr Tuszynski was 

employed under the terms of a then prevailing enterprise agreement and a specific contract of 

employment, which relevantly provides for the following at cl 6:

‘When required for business needs, TransGrid may direct you to perform work at other 
TransGrid locations either on a temporary or permanent basis provided that such a 
direction does not impose unreasonable hardship.’

[103] Mr Tuszynski said his role involved some travel to deal with projects on site. He 

recently delivered two large projects simultaneously, valued at twenty to forty million dollars,

and one or two smaller projects, each of around one million dollars. His role involved 

managing procurement of major plant, project management of the concept, planning, 

managing the design process and involvement in option and feasibility studies. 

[104] Mr Tuszynski described his understanding of the restructure of the Field Services 

Division within the Project Services/Project Delivery Branch where he worked. TransGrid 

commenced implementation of the new operating model to effect the restructure on 12 

December 2016, through a Works Delivery Implementation Plan. Mr Tuszynski said that 

prior to the restructure he was involved in, and managed the development and delivery phases

of projects, but since the restructure he is only involved in managing delivery. He claimed that 

this change reflected a 50% reduction in the scope of his activities. TransGrid had not updated 

the position description for Project Managers as a result. On 17 July 2017, TransGrid 

published and distributed changes to the Operating Model which established ‘Virtual Project 

Teams’. This would result in Project Managers reporting to a different manager in different 

regions and working in ‘virtual project teams’, with others based in different regional centres. 








[2018] FWC 6335

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[105] Mr Tuszynski said that on 31 July 2017 in a phone call from his Manager, Mr Gittani,

he was directed to relocate to Wallgrove the next day. He rejected this direction and did not 

relocate. In early August 2017, he was again directed to relocate on 31 August 2017. This was 

extended by a further two months to 31 October 2017. Relocation did not occur at this date.

[106] Mr Tuszynski said that on 29 September 2017 TransGrid published a new Transfer 

and Relocation Policy which provided for six months’ notice of any decision to relocate. The 

Policy expressly excluded an employee relocated at the direction of TransGrid, within the 

greater Sydney area, that is, transfers between Sydney CBD and Sydney (Western Sydney, 

Wallgrove). There was to be no compensation for his relocation from Ultimo to Wallgrove.

Mr Tuszynski received a further extension to relocate on 19 February 2018. 

[107] Mr Tuszynski sought consultation throughout this process with the HR Business 

Partner ‘because of my unique individual circumstances’; namely, he and his family live in 

Manly, he does not own a motor vehicle and he became a father for the first time on 15 May 

2017. He set out the impact of the relocation as follows:

a. Excessive increased duration of travel to and from work each day;
b. Significant cost increases of travel by public transport;
c. Large financial impact of increased expenses if I was to travel to and from 
Wallgrove by car. Necessitating the need to purchase a motor vehicle, its depreciation,
multiple tolls each day, petrol, registration, insurance and ongoing running costs;
d. Impact on health and wellbeing due to the reduction of free time to participate in
sport (Football and OzTag) and fitness activities (yoga, running and swimming);
e. Problematic family impact due to travelling duration; and
f. Not being able to spend time with my son and support my partner.

[108] Mr Tuszynski claimed there was no consultation with him regarding the need for, or 

the reason/s for him to relocate to Wallgrove. Following the direction to relocate, he raised 

with various HR persons and his managers, the following matters:

a. Lack of any consultation regarding the proposed changes to my work location;
b. Lack of any compensation offered by TransGrid for relocation and the variation to 
my employment contract;








[2018] FWC 6335

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c. Lack of a program to assist personnel affected by the change to find alternative roles
at Ultimo, i.e. a priority (job swap) for affected employees or making roles available to
internal applicants only;
d. Elaborated on the distance and time to travel to the Wallgrove office from Manly
and return home;
e. As I do not own a motor vehicle and if I agreed to relocate I have unreasonably high
costs to outlay to purchase a motor vehicle, register, insure, and maintain;
f. The unreasonable daily costs of tolls and fuel to travel from Manly to Wallgrove
compared to the costs to travel to Ultimo;
g. Inability to assist my partner during the week with our child due to my time 
travelling door to door;
h. Rejection of the option to have an Individual Flexibility Agreement to work from
home two days a week to limit the impact of travelling and provide a work life 
balance;
i. Rejection of the option to work periodically at other TransGrid locations e.g.
Sydney East substation at Belrose;
j. I am aware a number of other officers who work periodically at other TransGrid 
substation locations across the state; and
k. As Virtual Project Teams were in place, why did that necessitate the need to relocate
to Wallgrove, and if I worked in Virtual Project Teams, I could be anywhere.

[109] When his issues were not resolved, he involved the Association and a dispute was 

formally raised with TranGrid (Ms Sarelas, Lisa Wakim and his Manager, Hai Van Tran) on 

two occasions in December 2017 and February 2018. At the time, Mr Tuszynski identified the 

extra costs he would incur by his relocation, which showed for a nine day fortnight it would 

cost him:

Tolls - $363.69

Fuel - $131.85

Extra - $495.54

[110] Mr Tuszynski also advised of the need for him to apply a personal Fatigue

Management Plan (‘FM Plan’) as he would exceed 12 hours per shift, ‘door to door’, under

TransGrid’s Fatigue Management Procedure (‘FTP’). The Procedure provides as follows:

4.3.4 Office Work 

 work must be planned to a maximum of 12 hours per shift (door to door); and








[2018] FWC 6335

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 maximum of 12 consecutive days over a 14 day period. 

While TransGrid offered a change to start and finishing times, this did not sufficiently address 

the excessive travel time. Mr Tuszynski proposed the option of secondment to roles in Ultimo 

or to prioritise options for job swaps for Ultimo roles. Both of these proposals were rejected

by TransGrid.

[111] Mr Tuszynski was directed to relocate on 19 February 2018. However, he was on 

unpaid parental leave for eight weeks and did not attend Wallgrove until 19 April 2018. Mr 

Tuszynski described the actual impacts of the relocation as:

a. From Manly each day I travel 5 hours and 20 minutes to and from Wallgrove 
compared with 2 hours to and from Ultimo;
b. I am an absent father Monday to Friday and don't provide care or play time with
my son on weekday mornings or evenings;
c. I am constantly tired and suffer from a constant lack of sleep;
d. Saturday mornings I spend long hours catching up on sleep;
e. My partner is responsible for all our son’s needs pre and post child care;
f. I am unable to attend other weekly activities with my son; and
g. My partner and I are more stressed due to the strain my being absent places on our 
relationship and my lack of involvement in raising our son.

[112] Mr Tuszynski said he had tried to minimise these impacts by taking ‘power naps’ 

during work and staying at his parents’ or friends’ homes to have a full, uninterrupted night’s 

sleep. Nevertheless, he believed the present circumstances cause him and his family 

‘unreasonable hardship’, in that he is away from home between 6.20am to 7.57pm Monday to 

Friday. 

[113] It was Mr Tuszynski’s assessment that he was required to make site visits generally,

on a four weekly basis, with other ad hoc visits, as the need arises. He had never been advised 

that he was required to travel to sites three times a week. Notwithstanding this, he was 

advised on 18 May 2018, that as his position was office based, the 12 hour ‘door to door’

policy did not apply. Mr Tuszynski relied on TransGrid’s Fatigue Management Procedure and 

said the Procedure provides for both planned (site) and office work not to exceed 12 hours per 








[2018] FWC 6335

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shift ‘door to door’, meaning the time from leaving home to commence a work shift, to 

arriving back home after a work shift. This constituted further ‘unreasonable hardship’. 

[114] Mr Tuszynski said that after commencing work at Wallgrove he advised his Manager 

that he was exceeding the 12 hour ‘door to door’ limit. It was agreed he would work to 

comply with the Procedure. In May 2018, Mr Tuszynski was advised of a new communique -

Office Work Fatigue Checklist. It did not provide ‘door to door’ limits, but was confined to 

time in the office. He was told not to apply the previous direction to apply the ‘door to door’ 

policy and he should not plan his work in accordance with the ‘door to door’ definition. Mr 

Tuszynski raised the following matters:

a. TransGrid personnel are scheduled by resource team leaders for 12 hours per shift
(door to door).

b. The following clauses of TransGrid’s Fatigue Management Procedure (Annexure P) 
outline the importance of the 12 hours per shift (door to door).  Clause 3 – Definitions, 
Clause 4.2, Clause 4.3.2 and Clause 4.3.4.

c. TransGrid’s FMP does not specify any different treatment between planned (site) or
office work. It states the same maximum of 12 hours per shift (door to door) for
personnel office based or site based.

d. I have experience in my role as a Project Manager and observe daily TransGrid’s 
application of the Procedure; by scheduling employees to adhere to the 12 hours per
shift (door to door) hours.

e. Have personnel undertake works in periods of high demand where they exceed the 
12 hours and apply the measures outlined in the FMP.

[115] Mr Tuszynski gave evidence that on 10 August 2017 he had applied for an Individual 

Flexibility Agreement (‘IFA’) and he commenced working from home on Wednesdays under 

direction from his then manager, who subsequently was assigned to another team. In October 

2017, the IFA was modified so he could work from home on a Friday and these terms were 

agreed. He worked from home one day in the following four of the next five weeks. Mr 

Tuszynski said that on 24 November 2017, Mr Tran told him the IFA had not been signed and 

he would be refused the option of working from home on a Friday. He claimed Ms Sarelas








[2018] FWC 6335

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had said on 20 December 2017, that TransGrid would reconsider reinstating the IFA, if he 

agreed to relocate, which he did. He again applied for an IFA on 20 April 2018 to work 

remotely one day per week. This was refused on 23 May 2018 on the grounds that ‘his role 

required regular stakeholder interaction and a presence on site’. 

Mr Mark Britton 

[116] Mr Britton has worked for TransGrid in various roles for over 34 years. As Manager 

Construction Programs, Mr Britton is accountable for the project management and 

construction of infrastructure and telecommunications projects for TransGrid. The 

Construction Team (the ‘Team’) comprises 106 employees of which there are 35 Project 

Managers located at various sites across NSW. None of them are based at Ultimo.

[117] Mr Britton described the role of a Project Manager as to:

(a) provide expertise in the design, specification and contract management of 
transmission projects to ensure a safe, reliable and secure supply to customers in a
cost effective manner;

(b) manage project teams and provide cost estimates and project schedules;

(c) undertake designs and prepare documentation for the construction of new high 
voltage transmission projects and augmentations; and

(d) ensure that works are compliant with TransGrid’s policies and procedures.

In a practical sense, Project Managers are required to spend time at each of their project sites 

to effectively manage the project, assess actual progress, identify issues, and manage the 

forecast of expenditure and contractor claims, including managing the contractual claims 

process.

[118] Mr Britton’s evidence dealt in detail with the review of the organisation’s operating 

model announced on 22 July 2016. One outcome of this review was the restructure of the 

Construction Team and the creation of the Work Delivery Team. The primary objective was 








[2018] FWC 6335

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to increase the utilisation and efficiency of the field work intake team and deliver projects and 

maintenance, successfully and safely to budget. There was no impact on the Project Manager 

headcount. Mr Britton related the details of the consultation with staff including road shows, 

presentations and documentation provided to each of them. 

[119] Mr Britton commented on the introduction of Virtual Project Teams, and said that they 

did not mean team members can work remotely, or from home. They still must visit and 

spend time at each of their project sites. Mr Britton denied that the new operating model 

structure and the creation of the Works Delivery Team resulted in a 50% change to Mr 

Tuszynski’s work. His role is still to manage projects, but not to develop them. This work is 

undertaken by a separate Project Development Team. Mr Britton pointed out that previously, 

members of the Works Delivery Team were geographically distributed in all offices, 

including Ultimo, although there are no construction projects at Ultimo. It is a field based 

activity. He noted the senior management team is located at Yass and Wallgrove. 

[120] The intention of the new structure was to bring the entire Team together in one 

location and centralise most of the field functions in Wallgrove. This would improve 

communication and collaboration between the field construction and the project management 

staff, which to that time, had been ‘very poor’. The feedback from affected staff was 

overwhelmingly positive. At the time, Project Managers were spending a number of days, 

each week at Wallgrove and other locations. Twenty Delivery Project Managers were all 

required to relocate from Ultimo to Wallgrove and did so on 31 October 2017, except Mr 

Tuszynski. These field functions did not directly impact on the Project Development Team, 

based at Ultimo, which is a separate business unit and does not provide a field function. Their 

key relationship is with the Design Team, also based at Ultimo. Proposals to transfer or 

second members of this team to Wallgrove were not options, because their role was at Ultimo. 

Now all delivery and executive work is performed in Western Sydney, Orange, Wagga 

Wagga, Yass, Tamworth and Newcastle. In addition, there is no management, supervision or 

support for the Work Delivery Team in Ultimo. 








[2018] FWC 6335

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[121] Mr Britton identified the three months’ notice given to each of the affected staff and 

the process of individual consultation with them. There was never any instruction, and as far 

as he was aware, no one had ever told Mr Tuszynski that he must relocate the day after the 

discussion on 31 July 2017. The notice he received and the contract variation was to apply 

after three months (31 October 2017), Mr Tuszynski did not accept his relocation and a 

number of discussions were held with him from August 2017 until 19 February 2018, six 

months since he was first notified. This was to provide for additional consultation and allow 

Mr Tuszynski time to prepare for the relocation. Mr Britton’s evidence was that as Mr 

Tuszynski had never refused to attend work at Wallgrove at the end of the notice period, no

disciplinary action was ever foreshadowed or discussed. Mr Tuszynski then took eight weeks 

parental leave and was required to attend Wallgrove upon his return from leave on 19 April 

2018. He relocated on that date and has continued to work from Wallgrove ever since. 

[122] Mr Britton described the mitigating measures applying to Mr Tuszynski’s relocation:

1. A field allowance of $49.30 per week or $2,095.60 per annum. 

2. Free parking at Wallgrove. 

3. Opportunity to enter to a novated vehicle lease through the employer. 

[123] Mr Britton said that in the two meetings with Mr Tuszynski and Ms Buchanan in 

December 2017 and February 2018, TransGrid offered flexible start and finish times. This 

was rejected. Mr Britton responded to Mr Tuszynski’s spreadsheet calculation of the 

additional costs he was required to incur in travelling to and from Wallgrove as follows:

(a) the calculations are based on a 9 day work week over a 52 week year;

(b) the number of working days does not take into account a deduction of days that Mr 
Tuszynski would not be required to, or would not otherwise attend work, such as 
public holidays, annual leave and personal leave; and

(c) the Field Allowance (which is a weekly allowance paid irrespective of the days Mr 
Tuszynski attends work) is not deducted from the travel cost totals.








[2018] FWC 6335

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If the calculations are made reflecting 216 working days, the public transport cost difference

is approximately $2,808 per annum, less the Field Allowance, resulting in a difference of 

$72.40 per week or $3.30 per day.

[124] If Mr Tuszynski used a private vehicle, toll costs would by entirely subsidised by the 

Field Allowance and he would have free parking on site. In addition, if a longer toll option is 

used, it would result in substantial savings and only add 20 minutes to the travel time 

compared to the more expensive toll route. Further, given Mr Tuszynski’s role requires him to 

travel to different sites, his travel time could be shorter if he did so from home to the other 

sites by using his own vehicle, without attending Wallgrove to collect a company vehicle. It 

was Mr Britton’s understanding that most, if not all, the other employees travel by car and he 

was unaware of any issues as to additional costs. Mr Britton said that flexible work 

arrangements had been discussed and for a period between August and November 2017, Mr 

Tuszynski worked from home every Wednesday (in addition to a nine day fortnight). This 

arrangement ended because:

(a) as a Project Manager, there is a requirement for frequent interaction with project
stakeholders which requires face-to-face communication;

(b) the nature of the role requires attendance on project sites; and

(c) the strong working team relationship could only be developed by working within the 
team structure and work environment,

[125] Mr Britton set out his understanding of the purpose and procedures of TransGrid’s

Fatigue Management Procedure. He referred to cl 4.3 which provides:

4.3       Rules for Hours of Works

The following section sets out the requirements for hours of work:

4.3.1      Maximum Limits

• Maximum of 16 hours* per shift (door to door) or 16 hours of wakefulness;

• Maximum of 12 days work over a 14 day period;








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• Minimum breaks in accordance with award conditions; and

• Mandatory self assessment (attachment 1) after 12 hours work.

*Note: the maximum limit of 16 hours must be considered by standby/on-call workers 
during rest periods. For example:

An on-call worker rises at 0700 hours and starts a standard 8 hour shift. Irrespective of 
the travel time to and from work, and the commencement of the on-call workers rest 
period post shift (door to door). The maximum limit allowable for consideration of 
using this on-call worker is 2300 hours, or 16 hours awake from a start time of 0700 
hours. The only way this on-call worker can be considered for duties beyond this time, 
is if the worker discloses that some recovery sleep was achieved within the rest period.

This example, among many, is where consultation between workers and TransGrid is 
critical in ensuring fatigue risks are managed.

4.3.2     Planned Work

• Work must be planned to a maximum of 12 hours per shift (door to door);

• Maximum of 12 consecutive days work over a 14 day period;

• Minimum of 10-hour rest period between shifts; and

• If the job will potentially exceed 12 hours, planner or resource leader should be 
notified.

4.3.3    Shift Work

• Maximum number of planned consecutive night shifts is 6 x 8-hour shifts, or 4
x 12-hour shifts;

• Rotating shifts of less than 12 hours duration, forward shift rotations used (i.e.
day to afternoon to night shift)

• A block of night shifts must be followed by a minimum 36-hour rest period;

• All work related activities (e.g. training) must be scheduled during the
employees’ roster hours of work, including night shift workers in order to protect sleep
and recovery opportunities. If not possible, then the start time of the next shift may
need to be delayed to allow for a minimum 10-hour rest period; and

• Shift workers have must be aware of the risks associated with fatigue and the
control measures detailed in fatigue management plans required to manage this risk.








[2018] FWC 6335

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4.3.4     Office Work

• Work must be planned to a maximum of 12 hours per shift (door to door); and

• Maximum of 12 consecutive days over a 14-day period.

4.3.5     Heavy Vehicle (over 12 tonnes) Driver

The hours of work for heavy vehicle drivers are in accordance with TransGrid’s Safe 
Driving procedure.

It was Mr Britton’s belief that Mr Tuszynski has never been required to work in excess of 16 

hours per shift (‘door to door’) or 16 hours of wakefulness. 

[126] The Procedure also requires work to be planned to a maximum of 12 hours per shift 

‘door to door’ (the time leaving home to commence a shift, to arriving back home after a 

shift). Mr Britton said Managers are required to ensure that appropriate fatigue management 

strategies are adopted when planning work for staff. Employees have a responsibility to 

consider fatigue management when deciding if it is critical for the work to be completed

immediately. 

[127] Mr Britton understood the issue of fatigue management, in the context of his 

relocation to Wallgrove, was raised by Mr Tuszynski in a meeting with Ms Sarelas, Ms 

Wakim and Mr Tran on 20 December 2017. At the time, TransGrid did not accept that there 

was an issue, given the amount of sedentary time he would spend on public transport and not 

involved in work, or high risk work. Nevertheless, TransGrid was confident a Fatigue 

Management Plan (‘FM Plan’) could be put in place to ensure Mr Tuszynski arrived at work 

and at home rested. 

[128] Mr Britton stated that since Mr Tuszynski commenced work at Wallgrove there were a 

number of discussions and actions taken in relation to the development of a FM Plan,

including Mr Tuszynski working 7.47 hours per shift which was within the 12 hour limit of 

shift time and within the 16 hours allowable from leaving home to returning home. It was 

explained to him that these hours did not exceed 12 consecutive days with a 14 day limit. 








[2018] FWC 6335

49

Nevertheless, Mr Tuszynski was told that if he experienced fatigue when doing critical active 

work, he must cease work and complete a fatigue self assessment. Mr Tuszynski was 

subsequently informed that in respect to office based staff, the requirements under the 

Procedure were:

 a maximum of 16 hours per shift (door to door) or 16 hours of wakefulness (being 
16 hours from when you leave home and arrive home);

 a maximum of 12 days’ work over a 14 day period; and

 a mandatory self-assessment after 12 hours of work.

[129] Mr Britton claimed that although Mr Tuszynski was not exceeding maximum shift 

limits, TransGrid agreed to the following:

 Mr Tuszynski would use the Fatigue Self-Assessment tool as required;

 Mr Tuszynski and Mr Tran would have regular conversations around fatigue to 
ensure the risk could continue to be appropriately managed;

 Mr Tran and Mr Tuszynski would work together to develop a Fatigue Management 
Plan – with such plan being updated if any risks change; and

 advice on the Fatigue Management Plan would be obtained from Mr Workman or 
Stephen Boyle (Safety Advisor) as required.

[130] It was said that Mr Tuszynski accepted these arrangements and had not raised further 

concerns in relation to fatigue management. 

In reply 

[131] In a reply statement, Mr Tuszynski put that the new position description did not 

include initiation and development tasks which he had previously undertaken. He also 

disputed that Project Managers spend two to three days per week onsite. Mr Tuszynski denied 

he had ever agreed to relocation. He had not attended the meeting Mr Britton described on 2 

April 2017. Mr Tuszynski said that although he disputed his role was field based, this was not 








[2018] FWC 6335

50

relevant to whether his relocation to Wallgrove was reasonable, as he was in a seconded role 

at the time. 

[132] Mr Tuszynski understood that the Virtual Project Teams were promoted as not 

requiring relocation of the Team. A Project Manager could be at one location and the Site 

Manager at another. Mr Tuszynski claimed that based on his past six years’ experience, he 

estimated that travel to locations outside Wallgrove occurred no more than one to two days 

every three weeks. The restructure actually increased the need to attend the Wallgrove offices. 

[133] It was Mr Tuszynski’s belief that a number of Project Managers were opposed to 

relocation. Mr Tuszynski said prior to the restructure, the Project Manager used to maintain 

key relationships in managing design, procurement, planning, environmental and stakeholder 

engagement. This function has now moved to the Project Developer role. 

[134] Mr Tuszynski said the Ultimo office utilises ‘hot desking’, meaning staff are willing to 

help each other by allowing those outside Ultimo to use an absent employee’s desk. 

[135] Mr Tuszynski stood by his statement that Mr Gittani advised him on 31 July 2017 to 

report to Wallgrove the next day. However, he was provided one month’s notice, later 

extended by two further months. Mr Tuszynski understood novated leases are only available 

to senior staff. 

[136] Mr Tuszynski said that TransGrid believed it was not required to individually assess 

each employee’s circumstances. Mr Tuszynski rejected a change in start and finish times, as it 

simply meant a slower commute and less public transport options, outside peak times. Mr 

Tuszynski had suggested working an eight day fortnight. This was rejected. 

[137] Mr Tuszynski noted the FMP covers both office sites and site personnel. He rejected 

the interpretation that the FMP’s 12 hour limit did not apply to office workers. He was not 

aware of any other employee being required to work longer than 12 hours, ‘door to door’. Mr 








[2018] FWC 6335

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Tuszynski said there had been no FM Plan developed and he had been only self assessing 

fatigue and taking mitigation controls. 

[138] In cross examination, Mr Tuszynski said TransGrid had been a great place to work 

and he had worked on some excellent projects. However, the current relocation was 

unreasonable and he was very keen to have the issue resolved. Mr Tuszynski reaffirmed that 

prior to the restructure he was involved in projects from inception to completion. The initial 

work and planning phases are now completed by Project Developers in the Project 

Development Team. He is now only involved in the execution and close out phases of the 

work. In respect to his position description, rate of pay, title, classification and reporting line, 

Mr Tuszynski agreed that these did not change. However, his job satisfaction and the kind of 

work he does, has changed. From doing four phases of a project and he now only does two –

execution and close out. 

[139] Mr Tuszynski said that he did not attend the group meeting on 2 April 2017, as he was 

in a seconded role as Customer Manager at the time. He did not meet with Ms Wakim on 31 

July 2017. It was not until after this date that he had any discussions, consultation or formal 

notice of his expected relocation. Despite having meetings with various TransGrid Managers 

and proposing alternative options, TransGrid said no to all of them. Mr Tuszynski claimed in 

a meeting with Ms Makim the question of disciplinary action was raised. He had asked ‘what 

if I don’t go?’ and Ms Makim mentioned there is a process in the Agreement for dealing with 

that. He accepted that no one had mentioned disciplinary repercussions or consequences, if he 

did not relocate. 

[140] Mr Tuszynski confirmed that he travels to Wallgrove by a combination of bike, ferry

and train, as he does not own a vehicle. He further explained that he cycles to Manly ferry 

wharf, ferries to Circular Quay, catches two trains to Rooty Hill and cycles from Rooty Hill to 

Wallgrove – in all about 40-45 minutes of cycling. While insisting there is no FM Plan, he 

self assesses and if necessary takes a ‘power nap’ in the prayer room as a result of

management’s instructions. He added that it takes two hours and forty minutes to get to work 

and he then works seven hours and forty seven minutes. Mr Tuszynski added that previously 








[2018] FWC 6335

52

he would cycle to Manly wharf, catch the ferry to Circular Quay and cycle to Ultimo; taking 

around one hour and fifty five minutes a day. Part of the mitigation involves taking a nap, 

drinking more fluids and eating well. These measures have helped reduce his fatigue. 

Nevertheless, he believed he was being treated differently to other TransGrid employees and 

was required to spend almost fourteen hours ‘door to door’ each day.

[141] In re-examination, Mr Tuszynski agreed he had not been threatened with disciplinary 

action, but he understood the consequences if he failed to follow TransGrid’s directions. Mr 

Tuszynski acknowledged that his dispute before the Commission does not involve any

changes to his role. It only concerns relocation.

[142] Mr Tuszynski referred to the FMP and the relevance to a maximum of 16 hours. He 

believed this applies to ‘stand by’ and ‘on call’ workers during rest periods. Mr Tuszynski 

emphasised that as he is an absent father, he is always tired and spends half a day catching up 

on sleep. Therefore, the current arrangements are unsustainable. If he loses this case he will 

have to go to the expense of buying, registering, insuring and maintaining a car. Mr Tuszynski 

put that there were other intangible costs to the current arrangements, not covered by the Field 

Allowance. He agreed his partner owns a car - but she uses it for her own work as an architect 

and to transport their child to child care. He also understood there was a bus from Rooty Hill 

to Wallgrove, but it was unreliable and took no longer time, than if he cycled. 

[143] In cross examination, Mr Britton said he understood the presentations of the 

restructure were made to all of the teams, but he was not aware if Mr Tuszynski was actually 

present or not. He was on secondment at the time. Mr Britton conceded the restructure detail 

did not show Mr Tuszynski in it. Nevertheless, Mr Tuszynski met personally with Ms Wakim 

and Mr Gittani after the decision had been made to relocate to Wallgrove. Mr Britton could 

not recall whether Mr Tuszynski was looking for alternative positions when he came off 

secondment. He understood Mr Tuszynski had been actively applying for other roles at 

Ultimo since the relocation decision was announced, but did not know how he was applying. 

If a suggestion of a job swap was raised, that was a matter for HR. 








[2018] FWC 6335

53

[144] Mr Britton agreed he was not aware if Mr Tuszynski owned a car, how he travelled to 

work or his outside activities. He only learnt of his alleged travel costs and excessive travel 

time when he received Mr Tuszynski’s costing spreadsheet. Nevertheless, it was Mr Britton’s 

opinion that most project management persons did not perform a 14 hour day, although he 

accepted there would be a different outcome if an employee experienced less than 14 hours. 

[145] Mr Britton could not say what impact a change in start and finish times might have on 

Mr Tuszynski. He said it was incorrect that a novated lease would not be available to Mr 

Tuszynski. Mr Britton said he was unaware of each individual’s personal travel arrangements 

or where they live. 

[146] In addressing the dispute over the need for frequent site visits, Mr Britton said firstly,

he had no direct knowledge of Mr Tuszynski’s experience over the last six years, and 

secondly, the role of a Project Manager requires the person to visit the sites, with sufficient 

frequency to be able to manage the project; and thirdly, given that Project Managers manage 

more than one project this would require one visit a week to each site. Mr Britton said that 

there is no link between the budget for a project and the Project Manager’s performance. Mr 

Britton noted that before his relocation, Mr Tuszynski had not actually fulfilled his role for 

more than nine months, as he had been on secondment and had taken leave. Further, it was a 

key purpose of the restructure to get better project delivery and ensure Project Managers are 

closer to, and supervising and understanding the work. (Mr Tuszynski currently has two 

projects in his portfolio). 

[147] Mr Britton added that in order to address fatigue, excess travel issues and efficiency, 

employees are often encouraged to stay in a hotel with appropriate sustenance arrangements. 

This may also involve visiting two sites over two days. Mr Britton agreed he was responsible 

for planning and managing work once they arrive onsite; however, what people did outside 

that (to get to work) was a personal choice. The time it takes to travel is entirely related to the 

mode of travel. He accepted that public transport was the longest option for Mr Tuszynski

from Manly to Wallgrove. 








[2018] FWC 6335

54

[148] In questioning from me about the FMP’s reference to 12 hours and 16 hours, Mr 

Britton agreed the policy was unclear and ‘a little bit contradictory’. While not being able to 

explain the distinction between 16 hours and 12 hours, he understood that the 12 hours 

concerned planning the work to ensure actual work does not exceed 12 hours. However, there 

will be occasions where that limit is exceeded due to work circumstances. However, where 

someone gets close to 16 hours from home in the morning until home at night, this might 

mean staying at a hotel because 16 hours cannot be exceeded. The Procedure encourages self 

assessment when one gets close to 12 hours and discussion with the Team Leader or Manager,

if the work cannot be completed within 16 hours. Sometimes this might involve having 

someone else complete the work. Mr Britton then detailed what might be required to take into 

account with an FM Plan, including the nature of the work and whether the employee is 

driving or using public transport. He could not comment on the effect of taking rest breaks. 

However, TransGrid has no intention of requiring anyone to do anything which is unsafe. Mr 

Britton could not say if there was an FM Plan in place for Mr Tuszynski. He understood 

management had directed this be done, but it is also the responsibility of the employee to be 

involved in the FM Plan. 

[149] As to the IFA approved by Ms Wakim, Mr Britton agreed he had not approved it

subsequently. When he found out about it, he cancelled it. 

[150] In re-examination, Mr Britton said he was aware of a number of people who 

frequently travel between Ultimo and Wallgrove and was not aware of any issues of concern

raised by them.

SUBMISSIONS (ON MERIT)

For APESMA

[151] Ms Buchanan submitted that TransGrid’s direction to relocate Mr Tuszynski from 

Ultimo to Wallgrove is unreasonable when his personal circumstances are taken into account. 

These include a daily travel time of 5 hours 20 minutes (an extra 3 hours), significant 

additional costs in connection with that travel (of $500 per fortnight) and less time spent with 








[2018] FWC 6335

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his young family. Unsuccessful attempts have been made to mitigate the adverse 

consequences of the relocation direction. Ms Buchanan accepted that Mr Tuszynski’s role 

requires some additional travel in visiting project sites, but Mr Tuszynski’s evidence was that 

this was infrequent as most of his work was office based. While Mr Tuszynski has continued 

to report to Wallgrove, he maintains his opposition to the relocation as ‘imposing 

unreasonable hardship’ on him and his family in terms of cl 6 of his contract of employment.

[152] Ms Buchanan relied on DL  Employment v “Automotive, Food, Metals, Engineering, 

Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ 

Union (AMWU) FWCFB 7946 (‘DL Employment’), to establish that an unreasonable 

relocation of work site, may constitute a repudiation of the contract of employment. The 

starting point of this objective assessment is not whether the relocation is accepted as 

reasonable by other employees, but whether it is unreasonable for Mr Tuszynski, given his 

personal circumstances. While it is acknowledged Mr Tuszynski had six months’ notice of the 

relocation (largely through his own agitation), all his options to reduce the adverse impact on 

him and his family, had been rejected by TransGrid. He had put forward an IFA which had 

been accepted, but then withdrawn. Ms Buchanan observed that while a Field Allowance of 

less than $50 a week is payable to all relevant employees, including Mr Tuszynski, this goes 

no way near compensating him for the adverse impact of the relocation. 

[153] Ms Buchanan submitted that because a 2016 business restructure has resulted in a 

significant reduction in the scope of Mr Tuszynski’s role, there would be grounds for 

considering him to be made redundant. 

For TransGrid 

[154] It was TransGrid’s position that the direction to relocate was both lawful and 

reasonable and did not impose ‘unreasonable hardship’ on Mr Tuszynski. Moreover, cl 6 of 

Mr Tuszynski’s contract of employment clearly contemplates him being required to work in a 

location, other than that to which he was first appointed. 








[2018] FWC 6335

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[155] It was noted that there is no definition of ‘unreasonable hardship’, either in the 

contract of employment or in a general industrial or employment context. Nevertheless, 

TransGrid relied on Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286

(‘Allaro Homes’) where the term was said to be:

‘both a subjective and an objective enquiry: subjective, in that evidence must be led to 
demonstrate hardship to the builder; and objective, in that the nature and extent of
the hardship must be unreasonable in the circumstances in which it occurs.’

[156] In this sense, it was argued that relevant factors require only a consideration of any 

additional detriment to Mr Tuszynski, arising from his relocation from Ultimo to Wallgrove. 

In addition, Mr Tuszynski had overstated the financial impact on him by not taking account 

the days he would not be working, such as annual leave, public holidays or RDOs, and he did 

not deduct the Field Allowance payable for additional travel costs. TransGrid identified the 

following matters as demonstrating that Mr Tuszynski has not experienced ‘unreasonable 

hardship:

(a) as he receives the additional financial benefit in the form of a Field Allowance as a
result of relocating to Wallgrove. The current Field Allowance equates to $2,095.60 
per year;

(b) when Mr Tuszynski’s calculations are corrected to deduct the Field Allowance 
from the Wallgrove public transport travel costs, the total additional financial cost to
him associated with complying with the relocation direction is approximately
$3.30 per day;

(c) TransGrid has offered, on two occasions, flexible start and finish times to Mr 
Tuszynski to enable travel outside of peak hours, thereby reducing travel time. Mr
Tuszynski has rejected these offers;

(d) TransGrid provides benefits to employees who have relocated to the Wallgrove 
office which are available to Mr Tuszynski to mitigate the impact of the relocation from
Ultimo. These include free on-site parking for those employees who drive to work, and
the ability to enter into a novated vehicle lease which provides assistance for
obtaining a vehicle; and

(e) in total, Mr Tuszynski had more than 8 months’ notice of the effective date of the 
relocation direction, and 5 months more than the other affected staff members in the 








[2018] FWC 6335

57

Works Delivery/Construction Programs team who had relocated to Wallgrove by 31
October 2017. This gave Mr Tuszynski additional time to prepare for, and arrange his
personal circumstances to adjust to the change of working location.

[157] TransGrid distinguished the authority in DL Employment to this case, in that there was 

no contractual right to direct employees to relocate from Kogarah to Ingleburn. Here, there is 

a clear contractual right to do so arising from Mr Tuszynski’s contract of employment. 

[158] TransGrid rejected APESMA’s submission that Mr Tuszynski’s role is redundant. The 

2016 Operating Model Restructure had minimal impact on Mr Tuszynski, as his substantive 

duties, position, pay and other conditions remain the same. It is a gross exaggeration to submit 

that there was a ‘significant reduction in the scope of Mr Tuszynski’s duties’. In any event, 

there was no repudiation of the contract of employment then, or since, as Mr Tuszynski

continues to work at Wallgrove after the restructure. In addition, a change in work location 

does not make Mr Tuszynski’s position redundant, particularly where the work he was 

required to perform, is still required to be performed. 

[159] TransGrid rejected APESMA’s claim that this dispute relates to a refusal of a request 

by an employee for flexible working arrangements. Mr Tuszynski did not make a request, 

pursuant to s 65 of the Act, but rather requested an IFA pursuant to s cl 10 of the Agreement. 

This is an entirely different matter. Even so, TransGrid had reasonable business grounds to 

refuse the IFA, being regular stakeholder interaction and a presence on site required for Mr 

Tuszynski to effectively undertake his role. Further, there is no capacity for such a matter to 

be dealt with under s 739 of the Act, in the absence of any agreement between the parties 

permitting the Commission to do so. 

CONSIDERATION ON MERITS

[160] Both parties rely on cl 6 of Mr Tuszynski’s contract of employment which relevantly 

provides:








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‘When required for business needs, TransGrid may direct you to perform work at other 
TransGrid locations either on a temporary or permanent basis provided that such a 
direction does not impose unreasonable hardship.’

[161] In my opinion, the clear intention of cl 6 above is entirely consistent with other of the 

terms of the 2013 Agreement. For example:

(a) The Consultation Mechanism clause (cl 15) describes one of a number of effects 

which trigger the consultation process as:

‘(e) the need to transfer/relocate employees to other work or worksites’

(b) Clause 11.7 deals with the Field Allowance, currently at $49.30 per week.

(c) The Hours of Work clause (cl 17) recognises a different span of hours for employees 

required to work in field locations. Sub clause (3) states:

17.3 Span of Hours: (a) Employees who work in the Sydney Office shall 
observe a span of ordinary working hours between 7.00am and 7.00pm 
Monday to Friday (b) Employees who work in field locations shall observe a 
span of ordinary working hours between 6.00am and 6.00pm, Monday to 
Friday.

[162] Given these provisions, I do not consider there is any doubt that the relocation 

direction to Mr Tuszynski was lawful. Moreover, I do not apprehend APESMA’s 

submissions seriously contest that conclusion. Before turning then to cl 6 and the 

‘unreasonable hardship’ arguments, it is opportune, at this juncture, for me to observe that 

APESMA’s reliance on DL Employment is misplaced. The factual context in that case is 

easily distinguishable to this case. In DL Employment, the employees were directed to relocate 

from a production plant in Kogarah to a new plant at Ingleburn. The telling difference in that 

case was that there was no express contractual right for the employer to direct the employees 

to relocate. The Full Bench found that the relevant enterprise agreement did not permit the 

employer to direct employees to a new location. 








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[163] I turn then to the term ‘unreasonable hardship’. TransGrid referred to Allaro Homes as 

one of the few authorities on the meaning of ‘unreasonable hardship’. However, I am not 

comfortable that this case is ‘on all fours’ with the more frequently used term of reasonable,

in an industrial relations context. As there is no definition of ‘unreasonable hardship’ in the 

2013 Agreement, it is necessary to look to the meaning of ‘unreasonable’, or its more 

frequently used and discussed antonym, ‘reasonable’. I have said on other occasions, that the 

meaning of ‘reasonable’ is probably the most argued term in the industrial relations lexicon. It 

is often associated with the other frequently invoked concept of fairness, and like that term, 

must always be considered objectively. 

[164] As to the meaning of the term ‘reasonable’, in the context of whether an employer’s 

direction to an employee is reasonable and lawful, I set out hereunder a number of oft quoted

authorities to explain the term in an industrial context. The test of whether in this case the 

relocation direction was reasonable, in the sense that it was not unreasonable, was explained 

in R v Darling Island Stevedoring & Lighterage Co Ltd (1938) 60 CLR 601 where Dixon J 

said at 621-622:

If a command relates to the subject matter of the employment and involves no 
illegality, the obligation of the servant to obey it depends at common law upon its 
being reasonable. In other words, the lawful commands of an employer which an 
employee must obey are those which fall within the scope of the contract of service 
and are reasonable. Accordingly, when the award was framed, the expression 
"reasonable instructions" was adopted in describing the employees' duty to obey. But 
what is reasonable is not to be determined, so to speak, in vacuo. The nature of the 
employment, the established usages affecting it, the common practices which exist and 
the general provisions of the instrument, in this case an award, governing the 
relationship, supply considerations by which the determination of what is reasonable 
must be controlled.

[165] Relevantly, the High Court in Minister for Immigration and Border Protection v 

SZVFW [2018] HCA 30 discussed the legal notion of ‘reasonableness’. Kieffel CJ at [10]-[11] 

said:

10. In the joint judgment in Minister for Immigration and Citizenship v Li it was 
explained that a decision made in the exercise of a statutory power is unreasonable in a 
legal sense when it lacks an evident and intelligible justification. That may be so 
where a decision is one which no reasonable person could have arrived at, although an 








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inference of unreasonableness is not to be drawn only where a decision appears to be 
irrational. None of these descriptions could be applied to the Tribunal's decision in the 
present case.

11. Statements such as that made in the Wednesbury case, that a decision may be 
regarded as unreasonable if no reasonable person could have made it, may not provide 
the means by which a conclusion of unreasonableness may be arrived at in every case. 
But it serves to highlight the fact that the test for unreasonableness is necessarily 
stringent. And that is because the courts will not lightly interfere with the exercise of a 
statutory power involving an area of discretion. The question is where that area lies.
[Endnotes removed]

Later, Nettle and Gordon JJ said at [88]-[89]:

88. The standard of reasonableness is derived from the applicable statute but also from 
the general law.

89. First, there is a legal presumption that a discretionary power, statutorily conferred, 
must be exercised reasonably in the legal sense of that word. That is, when something 
is to be done within the discretion of the decision-maker, it is to be done according to 
the rule of reason and justice; it is to be done according to law. [Endnotes removed]

Further, at [134]-[135], Edelman J added:

134. Like other legal instruments, statutes often confer powers upon a decision maker 
without any express condition as to the manner in which those powers must be 
exercised. To the question: "how should the power be exercised?" the implication will 
not usually be: "in any way that the decision maker desires". Rather, it will usually be 
implied that the power should be exercised reasonably. As for the content of the duty 
of reasonableness, following the classic exposition by Lord Greene MR, the content of 
the implication of reasonableness as an independent ground of judicial review has 
often been expressed in this Court in terms similar to those which ask whether a 
decision is "so unreasonable that no reasonable repository of the power could have 
taken the impugned decision or action". In Canada, in a distinction now abandoned, 
this high standard of unreasonableness was once described as "patent" 
unreasonableness in contrast with "unreasonableness simpliciter". Although Lord 
Cooke of Thorndon presciently observed nearly two decades ago, and a majority of 
this Court more recently said, that the legal standard of reasonableness is not 
necessarily limited to patent unreasonableness, it is not helpful to attempt to divide 
unreasonableness into predetermined species. Rather, the precise content of an 
implication of reasonableness, where it is implied, will be based upon the context, 
including the scope, purpose, and real object of the statute.








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135. An important matter of context in relation to the statutory implication is the legal 
tradition in which many statutes conferring administrative powers have been enacted. 
A strong part of that tradition has been the common description of unreasonableness in 
the terms of "patent" unreasonableness. One reason for this description may be that the 
consequence of a finding of unreasonableness is that the decision by the body 
entrusted by Parliament will be beyond power and unlawful. The strong terms of the 
common description of unreasonableness may be based upon an assumption that 
Parliament did not manifest an intention that such a conclusion be lightly reached. To 
reiterate, this is not to suggest that there are two, or more, tests of unreasonableness. 
There is only one, but its content is assessed in light of the terms, scope, purpose, and 
object of the statute, as Allsop CJ eloquently said in Minister for Immigration and 
Border Protection v Stretton. [Endnotes removed]

[166] Perhaps a useful layman’s summary definition is to be found in Anon v Federal 

Commissioner of Taxation [1949] 78 CLR at 360 in which Dixon J, although in a slightly 

different context, aptly described ‘unreasonableness’ as:

‘a conclusion which may be applied to a decision which lacks an evident and 
intelligible justification’. 

[167] To complete the picture, the definition of ‘hardship’ as defined in the Macquarie 

Dictionary (5th ed) is:

1. a condition that bears hard upon one; severe toil, trial, oppression, or need.

2. an instance of this; something hard to bear.

[168] On one view, a daily 5 hour and 20 minute commute from home to work seems 

extraordinarily excessive. One might legitimately ask, why would one bother, when the daily 

hours of work are 7.47 hours? That said, the actual extra travel time experienced by Mr 

Tuszynski is around 3 hours. The primary reason for this excessive travel time is due to Mr 

Tuszynski’s own preferred mode of transport, being bike/ferry/train/bike. I do not criticise Mr 

Tuszynski’s preferred means of commute. However, a similar commute by car is between 1 

hour 10 minutes and 1 hour 24 minutes one way (depending on which toll roads used). 

Moreover, TransGrid cannot be held responsible for Mr Tuszynski’s personal choices. In one 

sense, it might be said that Mr Tuszynski’s daily cycling regime, is an excellent means of him 








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keeping fit and healthy – hardly a bad thing. On the other hand, less time spent with family is 

significant and regrettable. 

[169] Whether additional travel arising from a direction to relocate is unreasonable will very 

much be a matter of timing, of degree, personal circumstances and preference, viewed 

objectively. At the outer limit, a direction to relocate overseas, (absent a specific agreed 

contractual term to allow for it), would likely be found to be unreasonable, whereas a 

direction to relocate, involving an extra half an hour travel, (barring any other grounds), 

would unlikely to be found to be unreasonable. 

[170] In Parkes v Fat Prophets [2017] FWC 6121, I considered a direction to an employee 

to relocate from Byron Bay to Sydney, at short notice, and where the employee refused to do 

so, resulting in his dismissal. At [93] I said: 

[93] On 30 March 2017, the applicant was told that if he did not relocate to Sydney, 
the respondent ‘would need to end the current arrangement and end his employment.’ 
This was Mr Lopez’s evidence. It is trite to observe that what is ‘reasonable’ depends 
very much on the particular facts and circumstances of a case. While I accept Mr 
Lopez may have said that the applicant could have time to think about it, talk to his 
wife and the Company would look to a timetable for his relocation, Mr Lopez 
regarded the applicant’s blanket refusal to leave Byron Bay as making it unnecessary 
for these steps to be taken. I consider Mr Lopez’s hasty jump to a conclusion that such 
steps would not alter the applicant’s resolve, was unreasonable. In my view, from any 
objective standpoint, giving an employee little or no notice of a work relocation, 
some 772 kilometres away from where the employee has lived and worked for six 
months, is manifestly unreasonable. It was an unreasonable ultimatum. A more 
prudent course, would have been to inform the applicant that he had a 
reasonable period of time, to give an indication he was prepared to do so - say 
two weeks - subject to an agreed timetable and suitable relocation expenses; such 
as penalties for breaking his existing rental lease and removalist costs. I note Mr 
Lopez’s evidence that he considered six weeks as a ‘suitable timeframe’ (PN506). By 
effectively dismissing the applicant, without any notice or warning, must on any 
objective analysis, render any reason for dismissal, without foundation and invalid. I 
find accordingly. [My emphasis]

[171] Mr Tuszynski also argued that there is a significant additional cost imposed on him by 

the relocation. While I accept that Mr Tuszynski’s estimation of extra costs was to craft his 

assessment to ensure the maximum possible imposition, I do not accept that Mr Tuszynski’s 








[2018] FWC 6335

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methodology for calculating the extra cost produced the degree of imposition contended for. 

This is so because he failed to take account of the Field Allowance payable to him. He based 

his assessment on working 52 weeks a year, on a 9 day fortnight, without consideration of 

annual leave, public holidays and visits to sites using a TansGrid vehicle. When all these 

factors are taken into account, I accept TransGrid’s estimate that Mr Tuszynski’s additional 

daily travel costs are around $3.30. Balanced against the obvious hardship on Mr Tuszynski

and his family by such excessive travel time, it must be accepted that his hours of work are 

within the time limits of 12 hours shift time within the maximum allowable time of 16 hours,

‘door to door’, under the Fatigue Management Procedure. 

[172] A second precondition which must be met before the FMP is compromised, is that 

even if his travel time exceeds 12 hours per day, ‘door to door’, it must not do so for 12 

consecutive days (FMP 4.3.4 – Office work). Given he works a 9 day fortnight, Monday to 

Friday, this second precondition is not met. 

[173] That said, while I consider the FMP is somewhat confusing (as Mr Britton properly 

conceded) and could be made clearer, a fair reading of the FMP does not lead to a conclusion 

that the demands on Mr Tuszynski result in breaches of the Procedure. Moreover, TransGrid 

positively encourages Mr Tuszynski to control and manage fatigue issues by self assessment 

and appropriate response actions. 

[174] While I acknowledge the test of ‘unreasonable hardship’ is not to be measured by a 

comparison to other employees who were directed to relocate and are satisfied, (or at least 

have reluctantly accepted the relocation), the fact is the other 19 employees affected, have not 

disputed their relocation. This is also relevant to Mr Tuszynski’s proposal that he would be 

the only employee in the Team, who would not be required to work primarily from 

Wallgrove, as he wishes to work remotely, either from home or at Ultimo. 

[175] It might be said that Mr Tuszynski has already been given preferential treatment as a 

result of the Division’s restructure. He has had effectively eight months’ notice of his 

relocation, whereas his colleagues had the requisite Agreement notice of 3 months. 








[2018] FWC 6335

64

[176] In balancing all the relevant considerations in this case, and while I have some 

sympathy for Mr Tuszynski’s expectation of continuing work from Ultimo and the deleterious

impact the relocation has had on him and his family, I am not satisfied he has made out a case 

for a finding by the Commission that the relocation direction has imposed ‘unreasonable 

hardship’ on him, as contemplated by cl 6 of his contract of employment. 

Was Mr Tuszynski entitled to invoke cl 9 of the Agreement? 

[177] In the alternative, APESMA submitted, (although I apprehend not with much 

enthusiasm), that Mr Tuszynski was entitled to be made redundant, pursuant to s 9 of the 

Agreement, because the job and the relocation was not acceptable alternative employment. 

This submission cannot be accepted for the following reasons:

(a) This proposition was seemingly not raised during the lengthy consultation process  

around the restructure and its impact on employees;

(b) In re-examination, Mr Tuszynski acknowledged that this dispute was not about a 

change in his role. It related to the relocation direction;

(c) The subject matter and purpose of cl 6 of Mr Tuszynski’s contract of employment 

and other of the Agreement’s terms dealing with relocation, are a ‘world away’ 

from the purpose and subject matter of cl 9 dealing with redundancy and 

reemployment into acceptable roles. Nor do the circumstances of this case fall 

within the meaning of genuine redundancy in s 386 of the Act. Apart from 

relocation, there was no change in his title, classification, reporting line and other 

conditions of employment; and

(d) For all of the Project Managers who relocated to Wallgrove, TransGrid still 

requires the duties and tasks contemplated by the role of Project Manager, to be 

performed by Mr Tuszynski and others, albeit with a slightly different emphasis. 








[2018] FWC 6335

65

[178] Mr Tuszynski asserted that his role at Wallgrove had changed, such as about 50% of 

his former duties are no longer required to be performed. A few observations can be made 

about this assertion. 

(a) The corollary of this proposition is that Mr Tuszynski is not required to be usefully 

employed for half of his time. If this is so, then TransGrid would be irresponsible in 

allowing a scenario where an employee was not usefully employed for half of his 

working time. I consider this to be an implausible outcome. Moreover, a 50% 

reduction in his work sits rather oddly with an employee claiming to be fatigued. 

(b) All the work Mr Tuszynski is required to perform is contemplated by his position 

description, his experience, knowledge and training. The fact that a different facet of 

the same work is no longer required, does not amount to the job or position being no 

longer required. In truth the Project Manager’s job is the same; it is simply being 

performed differently. 

(c) Further, the emphasis of the restructure was to provide a greater engagement with 

stakeholders on site. This is an entirely sensible business imperative which whatever

Mr Tuszynski said about the frequency of his past site visits, he will be required to be 

more active in this respect. Frequent site visits is an expectation of a Project 

Manager’s role. 

In short, Mr Tuszynski’s role is not redundant.

[179] For the aforementioned reasons, I dismiss APESMA’s dispute application and 

conclude the proceedings. 








[2018] FWC 6335

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DEPUTY PRESIDENT

Appearances:

L Saunders of Counsel with M Buchanan for the applicant. 
H Fairhall with A Sarelas for the respondent.

Hearing details:

2018: 
Sydney:
July 5 and September 20. 

Final written submissions:

For the applicant 4 October 2018. 
For the respondent 27 September 2018. 

Printed by authority of the Commonwealth Government Printer

PR701263


ORK WORK COMMISSION FAIR THE SEAL OF

Cases cited by this decision: