3D Earthmoving 2017 Pty Ltd
[2018] FWC 623
•31 JANUARY 2018
| [2018] FWC 623 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
3D Earthmoving 2017 Pty Ltd
(AG2017/2971)
DEPUTY PRESIDENT BEAUMONT | PERTH, 31 JANUARY 2018 |
Application for approval of the 3D Earth Moving 2017 Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017.
[1] An application has been made for approval of an enterprise agreement known as the 3D Earth Moving (2017) Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017 (the Mechanics’ Agreement). The application was made by Workplace Negotiations WA on behalf of the employer pursuant to s.185 of the Fair Work Act 2009 (the Act) (the Application). The Agreement is a single-enterprise agreement.
[2] The Mechanics Agreement is said to cover Level 1 Apprentice Fitter/Mechanic, Level 2 Trades Assistant/Store person, Level 3 Fitter/Serviceman: Skilled/Works under supervision, Level 4 Fitter/Mechanic /Serviceman and Level 5-7 Fitter/Mechanic/Auto Elec/Serviceman. It is submitted that the Mining Industry Award 2010 is the relevant modern award for this matter.
[3] The application to approve the Mechanics’ Agreement is dismissed as the requirements set out in ss.186(2)(a) of the Act have not been met. It is further observed that the requirements of ss.180(5) and ss.182(1) are not satisfied. The reasons for the decision are subsequently set out.
BACKGROUND
[4] By way of background, at the same time that the Representative for the Applicant, Mr Irvine of Workplace Negotiations (Mr Irvine), had lodged the Mechanics’ Agreement he had, in addition, submitted for approval the 3D Earth Moving 2017 Mobile Plant Operators Enterprise Agreement (the Plant Operators’ Agreement).
[5] The Plant Operators’ Agreement covered classifications including Dump Truck, Water Cart, Roller, Low Loader, Excavator, Dozer, Grader, Loader, Screening, Scraping, Site Clerk and Administration Staff.
[6] The Applicant requested to be heard concerning the issues that arose concerning both the Mechanics’ Agreement and Plant Operators’ Agreement (collectively the Agreements).
[7] The terms of the Plant Operators’ Agreement and the Mechanics’ Agreement, were, with the exception of pay rates, almost identical in their terms. The Mechanics’ Agreement did not include clauses 11.2.3 to 11.3.6 regarding travel allowance, or clause 13.2 regarding the payment of additional amounts. Due to the marked similarities between the Agreements a hearing was set down on 14 December 2017 to deal with both applications. The Applicant made submissions and gave evidence regarding the Agreements.
[8] There were numerous issues concerning the Agreements that the Commission had endeavoured to address with the Applicant over a period. Delays in this process had been inevitable due in part to the unavailability of Mr Irvine through no fault of his own. Further, there were subsequent issues arising from the Applicant’s submission of proposed draft undertakings. These were proffered to remedy some of the issues but in turn created more.
Issues
Contract of employment
[9] At the forefront of those issues was that the body of the Agreements included the following:
2. CONTRACT OF EMPLOYMENT
This Agreement has been negotiated in good faith and constitutes the contract of employment between the parties and shall operate to encompass all terms and conditions of employment and shall operate to the exclusion of all protected award conditions that would otherwise be applicable if not for the making of this Agreement.
[10] Perhaps it was a consequence of the Applicant considering the Agreements to be the contract of employment that the Mechanics’ Agreement provided a termination clause in the following terms:
24. TERMINATION & RESIGNATION & NOTICE PERIODS
24.1 Either party may terminate this Agreement at any time by giving the other party the required period of notice.
[11] Clause 1 of the Agreement relevantly defined the term ‘Agreement’ as follows:
This Enterprise Agreement shall be known at [sic] the 3D Earth Moving (217) Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017 (herein as the Agreement). This Agreement is made between the following parties who agree to be bound by the terms and conditions this agreement for the duration of the Agreement. The parties are:
3D Earth Moving (2017) Pty Ltd
18 Craig Street
KALGOORLIE WA 6430 (ACN) 614 457 500 herein as the employer, and the employees who are employed as per the classifications detailed herein.
[12] Likewise included in the Mechanics’ Agreement was a restrictive covenant at 2.11 that stated:
2.11 Employees are restricted from working for the employer’s principle contractor for a period of 6 months after leaving employment
Rates of pay
[13] The Mechanics’ Agreement at clause 13.1 provided for minimum hourly rates of pay that took into consideration all factors associated with the work, location, rosters, standby, leave loading, public holiday loading and will be for all purposes (i.e. annual leave, long service leave, public holidays etc.). These rates of pay were referred to as ‘flat rates’.
[14] Clause 13.3 set out an undertaking that the amounts paid in accordance with the Mechanics’ Agreement would be at least equal to or greater than stipulated in the relevant Modern Award.
[15] The Applicant provided to the Commission the modelling of the rates, levels, and hours worked. It was identified that the modelling showed that a Level 1 and Level 2 employee working 11.5 hours per day, as indicated in the Applicant’s, modelling would become worse off if required to work overtime and weekends. The Applicant provided a proposed undertaking to remedy the BOOT issues regarding the rate of pay.
Other terms
[16] By email dated 11 August 2017, Mr Irvine, the bargaining representative appointed by the Employer, was informed of other issues. These issues arose from the following content in the Mechanics’ Agreement:
● cashing out of annual leave;
● the amount of annual leave for a full-time employee;
● compassionate leave for part-time and casual employees;
● public holiday provision;
● a clause that permitted the termination of the enterprise agreement by either party;
● employment being offered on a project by project basis and the effect this may have on redundancy and termination entitlements;
● the employer being able to deduct and retain an amount from the employee’s first salary to cover the cost of uniforms; and
● rate of pay for junior employees.
[17] In the same correspondence, the Commission informed Mr Irvine that if proposed undertakings were to be provided, then he was instructed to seek the views of all bargaining representatives regarding any proposed undertakings.
[18] On 25 October 2017, Mr Irvine provided to the Commission information concerning the process for making the Mechanics’ Agreement and proposed undertakings addressing the following clauses in the Mechanics’ Agreement:
● Clause 2.9 Contract of Employment – deduction for uniforms
● Clause 2.13 Contract of Employment – employment on project by project basis
● Clause 3.2 Period of Operation
● Clause 13 Rates of Pay
● Clause 14 Junior Rates
● Clause 18.1.1 Annual Leave
● Clause 18.1.3 Annual Leave
● Clause 18.4.1 Compassionate Leave
● Clause 19.1 Public Holidays
● Clause 24.1 Notice of Termination
[19] On 27 October 2017, a conference was held with Mr Irvine in which further issues concerning the Mechanics’ Agreement were brought to Mr Irvine’s attention in addition to the issues arising from the draft proposed undertakings that had been provided to the Commission.
[20] On 2 November 2017, an email was sent from Chambers outlining for Mr Irvine the outstanding issues regarding the Mechanics’ Agreement and ‘other terms’. At the request of Mr Irvine a further conference was conducted on 12 December 2017 to again clarify existing issues regarding the content of the Mechanics’ Agreement and the proposed undertakings. The Applicant was directed to make submissions regarding ss.190(3)(b) of the Act with particular regard to whether the draft proposed undertakings would result, or would not result, in substantial changes to the Agreement.
[21] At the hearing on 14 December 2017 the Applicant was directed that if the proposed Mechanics’ Agreement did not pass the better off overall test (BOOT) under ss.186(2)(d) of the Act, the Applicant would be given the opportunity to file further submissions and proposed undertakings regarding the BOOT issues.
Requirements for approval
[22] A review of the Form 17, Employer’s Statutory Declaration, and subsequent correspondence from Mr Irvine gave rise to further concerns regarding:
● the steps taken by the employer and the date those steps were taken to ensure that the relevant employees were either given the written text of the agreement and any other material incorporated or had access to it;
● the date of notification and steps taken to notify relevant employees of the date and place at which the vote was to occur;
● the date the last notice of representational rights was given to a relevant employee; and
● the date voting for the agreement commenced.
[23] On 11 August 2017, the Commission particularised those concerns for Mr Irvine as follows:
● it was not stated how the Notice of Employee Representational Rights (NERR) was distributed to employees;
● it was stated that the NERR was provided to employees ‘on or about’ 1 June 2017;
● it was stated that employees were given an opportunity to ‘sign’ hence making it unclear whether a vote occurred; and
● it was not stated on what date or how the vote occurred.
[24] On 31 August 2017, the Commission wrote to Mr Irvine regarding the issue that an NERR had been issued to an employee on 9 June 2017 and the vote had taken place on 29 June 2017. It was highlighted that this particular employee did not have access to a copy of the Mechanics’ Agreement throughout the complete 7 day access period as required under ss.180(2) of the Act.
[25] In response Mr Irvine replied by email dated Thursday, 31 August 2017 time stamped 10:12am:
…
On review of the voting information, the F17 data is incorrect as there were at that time 7 employees eligible to vote, but only 5 did so (my error, I added up the wrong list).
I have spoken to the HR person who confirmed that the person who was given notice on the 9th June was one of the two who abstained from the vote….
[26] On 14 September 2017, the Commission sought additional information from Mr Irvine concerning the emails that were sent to employees attaching the NERR. In addition, it was identified that Mr Irvine had filed submissions concerning the Mechanics’ Agreement and the Plant Operators’ Agreement that were the same indicating that not all employees covered by the Agreements were provided with the NERR 21 days before the vote. Mr Irvine was asked to inform the Commission if he had made a mistake.
[27] Two conferences were held with Mr Irvine to provide feedback on the requirements for approval issues arising from the Mechanics’ Agreement, on 27 October 2017 and 12 December 2017. Correspondence was subsequently sent from Chambers on 2 November 2017 after the conference on 27 October 2017. The correspondence set out for the Applicant the remaining concerns regarding the Agreement and the draft undertakings provided.
[28] At the hearing on 14 December 2017, both Mr Irvine and Ms Julie Kershaw, Administrator for the Applicant, gave evidence.
APPROVAL OF ENTERPRISE AGREEMENTS
Explanation of the effect of the terms of the agreement
[29] Subsection 180(1) of the Act requires that before an employer requests employees to approve an enterprise agreement by voting for it, the employer must comply with requirements including the requirement at ss.180(5) that:
The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
[30] Before approving an agreement, the Commission must be satisfied that the agreement has been genuinely agreed to by the employees covered. This requirement will be considered further shortly. Section 188 of the Act provides that an agreement has been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that the employer has complied with requirements set out in that section, including those in ss.180(5).
[31] In McDonalds Australia Pty Ltd1 a Full Bench held, in relation to ss.180(5) that the test is not an absolute requirement to ensure that particular outcomes are achieved, and that the section requires only that the employer take reasonable steps to ensure the terms and conditions are explained to employees.
[32] There is no requirement in ss.180(5) for there to be a full explanation of the terms of an agreement prior to the employer requesting employees to vote on an agreement. 2 The section does not preclude employers providing explanations during the access period and subsequent explanations can be provided.
[33] The term ‘reasonable’ is usually considered within the context of ‘reasonable in all of the circumstances of the case’, and the real question is to determine what circumstances are relevant. 3
[34] In the decision of Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailer Park 4 it was said that the reasonableness of the steps taken should be considered in the context of the size of the enterprise, the demographics of the employees to whom the explanation is provided, the type of work performed by employees and whether the proposed terms of the Agreement are new or unusual in the context of the enterprise concerned and the particular employment relationship5.
Consideration
[35] At hearing Mr Irvine gave evidence that he met with the relevant employees to provide explanation of the Mechanics’ Agreement by way of providing information or responding to questions the employees asked. Mr Irvine stated:
So if I just continue on with this here, so the third part of the F17 section that we’re referring to, so firstly let me just go back now, the first email was given on 1 June, the information and explanation and opportunities for questions and answers all happened between 22nd and 25th, notwithstanding they could ring me at any time, this was face-to-face, this was explanations, one on one, and some people required a total going through of the documentation, that’s quite happy to do that. Some people say, “No, I don’t need that, I’m just glad to have you explain a few questions.” And some people are just happy to move right along. So that’s what happened between 22 and 25 June. 6
[36] In the circumstances there is nothing unreasonable about the employer providing employees with a copy of the Mechanics’ Agreement and then inviting them to ask questions about its terms at a series of meetings at each site. It is not the case that an employer is to provide an explanation that specifically addresses each and every term of an agreement in forensic detail 7. What is required is that the employer takes all reasonable steps to provide an explanation8.
[37] However, for reasons that will become clear once the content of the Mechanics’ Agreement is discussed, I am not satisfied that the requirements of ss.180(5) were met. The Mechanics’ Agreement sets out that it ‘constitutes the contract of employment’ 9. Further, it provides a clause that permitted either party to terminate ‘this agreement at any time by giving the other party the required period of notice’.
[38] It was reasonable for an explanation to be provided about major terms of the Agreement including those that said that the Mechanics’ Agreement ‘constitutes the contract of employment’. It would have been reasonable to invite employees to discuss these terms and to raise any questions they might have in relation to how an enterprise agreement that is to be voted on can be the employment contract of each employee. There is no evidence before the Commission that this took place. Further, Mr Irvine seemed not to grasp the difficulty that lay from an enterprise agreement purporting to constitute the contract of employment and how this may impact on the consent of the relevant employees being informed. This is discussed again later in the decision.
Genuinely agreed to
[39] Section 186 of the Act sets out the circumstances in which the Commission must approve an enterprise agreement. It is a long section but for the purpose of this part suffice to say the agreement must be genuinely agreed to by employees covered by the agreement, must not contravene s.55 of the Act regarding the National Employment Standards and must pass the BOOT.
[40] ‘Genuinely agreed’ takes its meaning from s.188 of the Act. This section sets out the following:
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[41] The term is expressed in a way that requires the Commission to satisfy itself of the employer’s compliance with particular bargaining provisions within the Act (ss.188(a) and (b)), and satisfaction of a more general criterion in ss.188(c) of the Act 10. It is not simply a general consideration whether in all of the circumstances of a particular agreement the member is satisfied that the agreement has been genuinely agreed to11.
[42] In the decision of Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (Ostwald), the Full Bench stated the specific requirements in ss.188(a) of the Act were:
• Section 180(2) of the Act: The employer must take all reasonable steps to ensure that during the access period for the agreement, “the employees employed at the time who will be covered by the agreement are given a copy” of the agreement and “any other material incorporated by reference in the agreement” or “have access, throughout the access period for the agreement, to a copy of those materials.”
• Section 180(3) of the Act: “The employer must take all reasonable steps to notify the relevant employees” of the “time and place at which the vote will occur” and the voting method by the start of the access period for the agreement.
• Section 180(5) of the Act: The employer must take all reasonable steps to ensure that the terms of the agreement, and their effect are explained to the relevant employees, “in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”
• Section 181(2) of the Act: the request by the employer of the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it “must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given 12.
[43] Subsection 188(b) refers to the requirement that the member must be satisfied that the agreement must be made in accordance with, in the circumstances of this case, subsection 182(1) of the Act. This subsection provides if the employees of the employer who will be covered by a proposed agreement have been asked to approve the agreement under ss.181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
[44] Subsection 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which the Commission needs to be satisfied and relates to grounds other than those arising in relation to the ss.188(a) and (b) matters as indicated by the expression ‘other reasonable grounds’ 13.
[45] In KCL Industries Pty Ltd 14 (KCL) the Full Bench examined the requirement of ‘genuinely agreed’ in the context of ss.188(c) of the Act. It traced its origin, referred to the Explanatory Memorandum in the Fair Work Bill 2008 and traversed the analysis of s.188 of the Act in decision of the Full Bench in Ostwald and the analysis of ss.188(c) of the Act by Asbury DP in Central Queensland Services Pty Ltd15(Central Queensland). In short, the Full Bench in KCL agreed with, and adopted, the majority analysis in Ostwald, and the analysis of Asbury DP in Central Queensland. I similarly intend to do the same.
[46] Of particular relevance to this matter are the decisions of the Federal Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (Gordonstone) 16and Grocon Pty Ltd Enterprise Agreement (Victoria) (Grocon)17, both of which are referred to in KCL.
[47] In Gordonstone the Full Court considered the operation of ss.170LT(6) of the Workplace Relations Act 1996 (Cth) (WR Act). This section provided that ‘a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement’. The Full Court considered the subsection against the backdrop of the principal object of the Act. That object was to provide a framework for cooperative workplace relations by, amongst other things, supporting fair and effective agreement making.
[48] The Full Court found that the subsection was plainly a sign or indication of the concern with the authenticity and, as it were, the moral authority of the certified agreement. While Gordonstone considered the term ‘must have genuinely made’ subsequent decisions of the Commission have continued to adopt its analysis when considering ss.188(c) of the Act. The objects of Part 2-4 still speak of a fair framework albeit ‘simple’ and ‘flexible’ have been added to the mix as has the end product of an enterprise agreement that delivers productivity benefits.
[49] Ross VP, as he was then, considered Gordonstone in Grocon and went on in Grocon to quote the observations he had made in Re Toys “R” Us (Aust) Pty Ltd Enterprise Flexibility Agreement 1994 18regarding an application to approve an enterprise flexibility agreement under a different statutory regime19. Those observations were:
In my view the requirement that a majority of employees “genuinely agreed” to be bound by the agreement implies that the consent of the employees was informed and there was an absence of coercion.
Given the conclusion I have reached in relation to s 170NC(1)(h) it follows that I do not believe that the majority consent in this case was informed. The material supplied by the company to the employees did not fully disclose the impact of the agreement…
[50] In Grocon, Ross VP drew upon the decision in Coles Supermarkets Australia Pty Ltd v Shop, Distributive and Allied Employees Association where the Full Bench of the Australian Industrial Relations Commission said:
…The need to explain the terms of the agreement is both an explicit requirement of ss. 170LJ(3) and is implied in the concept of “genuine approval”. “Genuine” approval implies that the consent of the employees was informed, that they were advised of the consequences of giving their approval to the agreement 20.
[51] When determining whether there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to, consideration of the authenticity of the enterprise agreement, its soundness 21, and whether the employees who will be covered by the enterprise agreement are informed of its terms so it can be said that their ‘consent’ is informed, are relevant circumstances to be considered.
Consideration s.188(c) of the Act
[52] It is perhaps an odd circumstance when the content of a proposed enterprise agreement that is to be put to a vote informs the relevant employees that it ‘constitutes the contract of employment’. It does not. It is unsound to say otherwise.
[53] An enterprise agreement is defined in the Act as being either a single enterprise agreement or a multi-enterprise agreement 22. A single-enterprise agreement is made between a single employer and a group of employees23, and is a statutory instrument that sets out terms and conditions of employment for that group.
[54] There is a requirement that each substantive term of an enterprise agreement must be about a permitted matter. Further, the Act prescribes steps to take in the bargaining process, the pre-approval process and when making the application for the enterprise agreement to be approved. The relevant employees are asked to approve the enterprise agreement by voting for it.
[55] An employment contract is made under the common law. It is made between two parties and two parties only. Namely, the employer and the employee. An offer is made. It may or may not be accepted either in writing, verbally or perhaps by conduct. Further, there is a requirement that there must be consideration.
[56] The employment contract caters for the individual, not the collective. It is not something that the collective may vote on or otherwise agree to. It is for the individual employee to negotiate her or his bargain with the employer and reduce that to words whether verbal or written. The elementary general rule is that the only persons entitled to the benefits or bound by the obligations of a contract are the parties to it 24 and in the employment relationship that is the employer and the employee.
[57] In clause 2.1 of the Mechanics’ Agreement the relevant employees were informed that the Agreement ‘constitutes the contract of employment between the parties’. The parties were defined in the Mechanics’ Agreement as 3D Earth Moving (2017) Pty Ltd and the ‘employees who are employed as per the classifications detailed herein’. An employment contract does not exist between an employer and a collective of employees.
[58] It follows that the Mechanics’ Agreement purports to be something it is not or alternatively purports to establish something, namely an employment contract, which it does not. Plainly, it is open to find that at the time when the relevant employees were requested to approve the Mechanics’ Agreement there were reasonable grounds for believing that the Mechanics’ Agreement had not been genuinely agreed to due to the absence of authenticity and soundness of the agreement, and the consent of the employees was not informed.
[59] Perhaps it was because the Mechanics’ Agreement had been framed as the employment contract it thereafter contained a clause that permitted either party to terminate ‘this agreement at any time by giving the other party the required period of notice’. ‘Agreement’ is defined in the Mechanics’ Agreement as the 3D Earth Moving (2017) Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017.
[60] Throughout the Mechanics’ Agreement there is reference to ‘Agreement’ with a capital ‘A’ and without. With regard to without, at clause 23.4.1:
Any discovery or invention or process or improvement in procedure made or discovered by the employee during the currency of this agreement in connection with…
[61] At clause 23.4.2:
The employee shall, if and when required so to do, (whether during or after the termination of this agreement) at the employer’s expense apply or join in applying for letter of patent or other similar protection in Australia…
[62] Reference is made in the document to ‘termination of this contract’ at clause 22.3.3, and at clause 24.6 the ‘contract of employment shall be deemed to have been terminated for neglect of duty…’.
[63] Mr Irvine was informed of the concern that when the employees voted on the Mechanics’ Agreement they may have thought the proposed Mechanics’ Agreement, and therefore what they were voting for, constituted their employment contract. This interpretation was open to them given clause 2 of the Mechanics’ Agreement. Mr Irvine was asked to address the Commission on how it could satisfy itself that the Mechanics’ Agreement had been genuinely agreed under ss.186(2)(a) of the Act.
[64] In response Mr Irvine made submissions that clause 2.1 of the Mechanics’ Agreement was not outside a matter permitted and directed the Commission to s.253 of the Act. Mr Irvine further submitted that the clause was a permitted matter, but should it not be, it would not prevent the Mechanics’ Agreement from being an enterprise agreement. The submissions did not assist the Applicant. The issue that was raised with Mr Irvine concerned whether the Commission could satisfy itself whether the Mechanics’ Agreement was genuinely agreed to, not whether the clause precluded the Mechanics’ Agreement from being an enterprise agreement.
[65] Mr Irvine was in addition informed of the concern that when voting on the proposed Mechanics’ Agreement the employees may have understood that they could terminate the Mechanics’ Agreement at any time by giving the other party the required notice period. It was identified for Mr Irvine that such a provision was at odds with the requirements to terminate an enterprise agreement under the Act.
[66] It would be accurate to say that Mr Irvine was unable to understand initially that clause 24.1 could be interpreted in such a way. Mr Irvine was asked several times what it was ‘this agreement’ referred to. His evidence on this point was not compelling and he struggled to differentiate between ‘this agreement’ absent a capital and ‘this Agreement’ with a capital.
[67] Mr Irvine said he was the only person responsible for explaining the terms of the Mechanics’ Agreement to the relevant employees. Based on the evidence he provided I am not satisfied that the consent of the employees who were to be bound by the Mechanics’ Agreement was informed.
[68] It was submitted that the Mechanics’ Agreement should be approved because two previous enterprise agreements namely 3D Earthmoving Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2009 and 3D Earthmoving Clerical Enterprise Agreement 2011 had been approved in the past by this Commission or its predecessor. It was said that in light of these two examples, where the agreements referred to were like in content and the process adopted was the same, the Commission should, as a matter of precedent, similarly approve the Mechanics’ Agreement.
[69] I am unpersuaded that precedent arises in these circumstances and have no compulsion to approve an enterprise agreement where I am not satisfied that it has been genuinely agreed to.
[70] I cannot be satisfied that it has been ‘genuinely agreed’ as required by ss.186(2)(a) of the Act having regard to ss.188(c) of the Act.
The vote
[71] The importance of the vote by employees arises as a result of s.182 of the Act which confirms that it makes the agreement for present purposes. It does so for a single-enterprise (non-greenfields) agreement as follows:
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
...
[72] Section 186 of the Act sets out the general approval requirements and these include those concerning the nature of the agreement as follows:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
...”
[73] The meaning of genuinely agreed has been traversed but of particular relevance is the following term:
“188 When employees have genuinely agreed to an enterprise agreement
…
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[74] The Commission must approve an enterprise agreement if, and must not approve if it is not, satisfied that, amongst other matters, it has been genuinely agreed to by the employees covered by the agreement. This includes a consideration of the processes adopted by the employer when seeking the employees’ approval and the results of the ballot (or other method of endorsement) 25.
[75] In the decision of Balfour Bakery Pty Ltd Agreement 2011 26Hampton C considered there was genuine agreement if relevant employees who wanted to vote had an adequate opportunity to obtain a ballot paper and participate in the ballot. Hampton C continued:
[22] If all ballot results had to be accepted on face value, provided only that the procedural requirements leading to that point had been met, this could lead to perverse outcomes. The requirements of s 180 and s 181 require that reasonable steps be taken to advise the employees of certain matters and to provide access to the proposed agreement and other material. There is no express obligation that the ballot or other method of employee approval be conducted in a manner that provides the employees with a genuine opportunity to actually participate and express a view. An extreme example might include where the notice is issued fully in accordance with s 180(3) but advises of a ballot process and timing where only a limited number of the relevant employees could in reality participate. In that light, unless s 188(c) of the Act is applied as I speculate above, the evident purpose of the employee approval obligations of the legislation may be undermined.
[23] This approach would not however mean that there is an absolute obligation to demonstrate that each employee did actually have the same opportunity to vote. Rather, where the integrity and results of the ballot are seriously in doubt, Fair Work Australia may, pursuant to s 188 of the Act, examine those circumstances and consider whether there are other reasonable grounds for believing that the agreement has not been genuinely agreed by the employees… 27
Consideration
[76] The Applicant says that its procedural steps followed by it complied with the requirements in the legislation.
[77] A concern was raised with Mr Irvine that the F17 referred to employees being given an opportunity to ‘sign’ hence making it unclear whether a vote occurred. Mr Irvine submitted that reference to ‘sign’ the Mechanics’ Agreement meant an opportunity to ‘vote’ upon the agreement.
[78] However, as Ms Julie Kershaw of the Applicant had made the statutory declaration in Form 17 she was called to provide evidence concerning the vote.
[79] Ms Kershaw was asked to explain the process that occurred with regard to the vote. In response Ms Kershaw said ‘I believe it was done via ballot box’ 28. Ms Kershaw continued:
..Okay, when the vote happened on the mine site, at Mt Morgan, I believe it was the site clerk or site administrator that oversaw the voting process. In the workshop I am not a hundred per cent sure, but I am thinking that it was probably Trish Fostinelli, the HR lady, was present for that one 29.
…
THE DEPUTY PRESIDENT: And with regard to providing the workers or employees at Murrin Murrin, how was the vote conducted for them?
MS KERSHAW: I can’t answer that one, I wasn’t present. 30
[80] I am satisfied that Ms Kershaw endeavoured to provide as much information as she could about the vote. I do not think that Ms Kershaw was deliberately being evasive but rather was only able to speak to what she knew. However, having made a statutory declaration about something as important as the vote, which is the very process that makes the enterprise agreement, it sat with Ms Kershaw to provide the evidence the Commission required to satisfy itself that the Mechanics’ Agreement had been genuinely agreed.
[81] Based on the materials and evidence before the Commission, I am not satisfied that there was compliance with the appointed voting procedure a requirement that is implicit in the notion of casting a valid vote 31. Further, I am satisfied that there are reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees.
Consideration of s.188(a) of the Act
BOOT and permitted matters
The Act - BOOT
[82] Under ss.186(2)(d) of the Act the Commission must be satisfied that an agreement passes the better off overall test before it can approve the agreement.
[83] Subsection 193(1) of the Act sets out that:
[A]n enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
[84] Reference is made in ss. 193(1) to a ‘test time’. Subsection 193(6) of the Act specifies that the ‘test time’ is the time the application for approval of the agreement by the Commission was made under ss.182(4) or s.185.
[85] An assessment by the Commission as to whether an enterprise agreement satisfies the BOOT is not a line-by-line comparison or a comparison to one discrete term in an Award to its corresponding term (or its absence) in the agreement 32. Rather it requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement33. However, this consideration does not require an assessment of the circumstances of each individual employee. The Full Bench in National Tertiary Education Industry Union v University of New South Wales34 stated:
This consideration does not require an assessment of the circumstances of each individual employee but, as s.193(7) allows, “... if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”.
As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did [footnotes omitted].
The Act - permitted matters
[86] Terms of an enterprise agreement which, even if the agreement has been approved by the Commission, are of no effect are the concern of ss.56, 253 and 326 of the Act 35. Relevant to this matter is s. 253 of the Act which provides:
A term of an enterprise agreement has no effect to the extent that:
(a) it is not a term about a permitted matter;
(b) it is an unlawful term; or
(c) it is a designated outworker term.
[87] Subsection 172(1) of the Act provides that an enterprise agreement is limited to matters pertaining to the relationship between employer(s) and employees, employer(s) and employee organisation(s), deductions from wages authorised by an employee and how the agreement will operate. Each substantive term in an enterprise agreement must therefore be about a permitted matter.
[88] A term has no effect to the extent that it is not about a permitted matter. The inclusion of such however does not prevent the enterprise agreement from being an enterprise agreement 36.
[89] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (the EM) at paragraphs 661 to 681 provides context on why the Act provides that a term of enterprise agreement would have no effect if not about a permitted matter. It states:
661. In Electrolux Home Products Pty Limited v The Australian Workers’ Union and others (2004) 221 CLR 309 the High Court found, when considering a provision similar to clause 172(1), that industrial action could not be taken in support of claims that could not be validly included in an agreement under the WR Actas in force at the time.
662. After the High Court’s decision, the AIRC carefully checked whether each term of an agreement pertained to the employment relationship in order to determine whether the application before it for certification of the agreement was valid.
663. To resolve any uncertainty following the High Court’s decision, the Parliament enacted the Workplace Relations Amendment (Agreement Validation) Act 2004 to ensure that agreements that contained non-pertaining terms were valid to the extent that they contained pertaining terms.
664. Clause 253 will have the effect that an agreement will still be valid even where it includes terms that are not about permitted matters. It is not intended that FWA will have to scrutinise each enterprise agreement to ensure that all its terms are about permitted matters as this would unduly delay the agreement approval process.
665. However, to the extent that a term of an enterprise agreement is not about permitted matters, the term will be of no effect.
666. It is intended that each substantive term of an enterprise agreement must be about one or more of the permitted matters in order for the agreement to be characterised as about permitted matters. This would not prevent an enterprise agreement from containing other, valid, terms where the term is ancillary or incidental to, or a machinery provision, relating to a permitted matter (Electrolux ibid. at [96]-[97], per McHugh J).
[90] At paragraph 664 of the EM it provides that the intent was not for the Commission (or as it was then Fair Work Australia) to have to scrutinise each enterprise agreement to ensure that all its terms are about permitted matter as this would unduly delay the agreement approval process.
[91] Bromberg J in Marmara v Toyota Motor Corporation Australia Limited 37 aptly observed that the Act confers upon the parties (not the Commission) the power to make enterprise agreements (ss.172 and 182). It confers a supervisory role upon the Commission which is charged with approving, and thus giving operative effect to, an enterprise agreement if satisfied the range of requirements specified by the FW Act have been compiled with38.
[92] Consideration of whether a matter is a permitted matter has inevitably found its way into the approval process for enterprise agreements. In the decision of Radploy Pty Ltd T/A Lake Imaging 39 (Radploy) it was observed that the inclusion of a non permitted term in an agreement did not preclude the agreement from being an enterprise agreement. However, it was unclear whether the Commission should disregard the inclusion of a non permitted term when approving an agreement40.
Post-employment restraints – BOOT and permitted matters
[93] Several decisions of the Commission have dealt with s.185 applications and the issue of whether post-employment restraints are relevant matters to assess when determining if an enterprise agreement has passed the BOOT 41. In turn these decisions have traversed whether such restraints are permitted matters.
[94] In the decision of Glen Eden Thoroughbreds Pty Ltd T/A White Shailer Park 42 (Glen Eden) Asbury DP agreed with the analysis of Gooley C, as she then was, in Smith & Nephew Pty Ltd43(Smith)stating at paragraphs [56]-[58] the following:
In my view, consideration of whether an enterprise agreement passes the better off overall test, can be directed to circumstances where an enterprise agreement contains terms such as those dealing with restraint of trade, confidential information and intellectual property, that are not found in a relevant award. In such cases, FWA can give consideration to the question of whether by including such terms in an enterprise agreement, employees are disadvantaged on the basis that the terms of the agreement impose an obligation or restriction on them which is not imposed under a relevant award, and is not able to be imposed under any relevant common law principles which operate in conjunction with the award.
This is consistent with the observations of Commissioner Gooley in considering an agreement containing obligations in relation to confidentiality, intellectual property and non-solicitation. Commissioner Gooley concluded that:
“[40] The Agreement ... contains a number of additional obligations not normally found in collective agreements and which are not contained in any of the reference instruments. Many of these obligations may be included in an employment contract and may be the subject of negotiations between a prospective employee and the prospective employer. Some may be implied by operation of law.
[41] S&N submit that because the reference instruments do not prevent an employer and employee reaching contractual arrangements with respect to confidentiality, intellectual property and non solicitation and given that such arrangements often operate concurrently with a reference instrument, the inclusion of such clauses in the Agreement does not result in a reduction in the overall terms and conditions of employment of employees under the reference instruments.
[42] This however misses the point. An enterprise agreement is not subject to individual negotiations between an employer and employee, it is imposed by operation of law on employees, both existing and new employees, whether they agree with the terms or not. While breach of such contractual obligations may give rise to a claim for damages and injunctive relief, their inclusion in an enterprise agreement would expose employees who breach the obligation to civil penalties.
[43] In my view the inclusion of such obligations in enterprise agreements are inappropriate as the codified obligations go beyond the obligations imposed on employees at common law, impose obligations not imposed on employees by the reference instruments and expose employees to penalties in the event of breach.” 44
I agree with these comments and share the view that the exposure of employees to civil penalties for breach of the Agreement in respect of such provisions is a matter which is relevant to considering whether the Agreement passes the better off overall test.
[95] In Glen Eden after considering several decisions 45 it was found that clauses with respect to confidentiality, intellectual property and carrying on a business in competition with the former employer were not permitted matters.
[96] The view was formed that to the extent the obligations were to continue post-employment they were not triggered by the termination of employment, but by some conduct on the part of the former employee 46. Therefore, the connection with the employment relationship was consequential and not direct. Further, it was said that the obligations protected the employer in the capacity of a real estate agent and not employer. It followed they did not pertain to the relationship of employer and employees who will be covered by the Agreement.
[97] In Jellifish! Pty Ltd 47 it was reaffirmed that the effect of s. 253 of the Act was that the inclusion of a non permitted matter would not prevent the enterprise agreement from being such, but the non permitted terms were unenforceable. Concerning whether one could consider the non permitted terms when conducting the BOOT, it was found that while the terms may be unenforceable this did not prevent them from being considered as part of the determining of whether the agreement passed the BOOT. It was said that employees covered by an enterprise agreement which included non permitted terms may not know such terms were non permitted and unenforceable and whether terms are or are not enforceable may not arise until the point at which the employer seeks to rely on them.
Consideration
[98] The clause in question in the Mechanics’ Agreement provides:
2.11 Employees are restricted from working for the employer’s principle contractor for a period of 6 months after leaving employment.
[99] In Surf City Coaches Pty Ltd t/as Bus IT Queensland 48 the Deputy President formed the view that it was not the point that a confidentiality provision is a common law obligation of an employee and therefore inappropriate for inclusion in an enterprise agreement49. That observation is sound. The Act clearly provides that an enterprise agreement may be made about permitted matters and permitted matters are those that pertain to the employment relationship between those who will be covered by the enterprise agreement.
[100] The assessment of the character of such a term must take place in a context where there are few hard and fast rules about what does, and what does not, pertain to an employment relationship 50. Ultimately, the question is one of appropriate characterisation based on all the relevant circumstances51.
[101] Having considered Glen Eden 52and the relevant authorities cited within it53, I am satisfied that clause 2.11 is a term that is not about a permitted matter. Its subject matter is not connected with the relationship between an employer in her or his capacity as an employer and an employee in her or his capacity as an employee in a way which is direct and not merely consequential. The clause in question quite clearly imposes an obligation upon a former employee of the Applicant, rather than a current employee. Further, the obligation is not in the real sense the fruit of employment and requires an act to be undertaken by a former employee.
[102] I am mindful that it was not intended that the Commission would be required to scrutinise each and every enterprise agreement to ensure all its terms were about permitted matters. Evidently, this would unduly delay the agreement approval process in circumstances where the objects of Part 2-4 provide that the Part is to provide a simple, flexible and fair framework… and to ensure ‘that applications to the FWC for approval of enterprise agreements are dealt with without delay’ 54.
[103] If it is decided that a clause is not a term about a permitted matter in the process of agreement approval, it is open to be identified as such therefore alerting both employer and employee that it is of no effect.
[104] However, I am unpersuaded, as was the Deputy President in Surf City Coaches Pty Ltd t/as Bus IT Queensland, that a term that is of no effect should then be considered when determining whether the enterprise agreement passes or does not pass the BOOT. The BOOT requires an overall assessment of whether an employee would be better off under the enterprise agreement. This in turn involves the identification of terms that are more beneficial and those terms that are less beneficial. To the extent that a term has been identified as not being a permitted matter and therefore is of no effect, it is difficult to perceive how it could be more or less beneficial.
[105] In Armacell Australia Pty Ltd 55 the Full Bench considered the interaction of enterprise agreements with State long service leave laws in the context of the approval of agreements inclusive of a clause permitting the cashing out of long service leave. It was found that in the event of an inconsistency between a term of an enterprise agreement dealing with long service leave and State long service legislation, the latter would prevail56. In the case in question the State long service leave legislation did not permit the cashing. The Full Bench said:
Accordingly, to the extent that a term in an enterprise agreement purports to permit cashing out of long service leave in circumstances where it would not be permitted under the relevant State legislation, the term is of no legal effect. In the cases in point, if the term in either the Armacell agreement or the DPS agreement purports to permit an employee to cash out long service leave in circumstances where the relevant State law does not permit it, the State law prevails and the term of the agreement is of no effect.
[106] In Armacell Australia Pty Ltd, the Full Bench commented on the Commissioner taking the cashing out provisions into account in applying the BOOT and seeking an undertaking. The Full Bench found that the issue was not one that could be addressed through the provision of an undertaking under s.190 of the Act, and continued:
[P]erhaps more fundamentally, no issue arises concerning the application of the BOOT. A term of an enterprise award which purports to reduce an entitlement under State long service leave legislation has no legal effect in any event. 57
[107] Given that clause 2.11 is a not about a permitted matter it follows it is consequently of no effect and that is where it rests. I am of the view it does not necessitate consideration when determining whether the enterprise agreement passes, or does not pass, the BOOT.
BOOT - general
Consideration
[108] There were a number of clauses identified in the Mechanics’ Agreement that when considered in an overall assessment would have resulted in the employee not being better off overall. Mr Irvine submitted on at least two occasions draft undertakings to remedy the deficiencies in the clauses, including undertakings that addressed the rates of pay for the classifications covered.
[109] However, the Mechanics’ Agreement is unable to be approved because the requirements set out in ss 186(2)(a) of the Act have not been met in addition to the requirements of ss180(5) and ss 182(1). I therefore consider that a detailed examination of further BOOT issues is undesirable.
Conclusion
[110] There were other issues arising concerning the agreement approval process with regard to the NERR, however in light of the findings it has not been necessary to provide detail regarding those issues albeit I am satisfied that the requirement under s.173, 174 and ss.181(2) have been met.
DEPUTY PRESIDENT
Appearances:
Mr N Irvine for the Applicant
Mrs J Kershaw
Hearing details:
14 December 2017
Final written submissions:
20 December 2017
<PR599943>
1 [2010] FWAFB 4602.
2 Ibid.
3 Opera House Investment Proprietary Limited v Devon Buildings Pty Ltd (1936) 55 CLR 111 at 116.
4 [2010] FWA 7217.
5 Ibid.
6 PN 157.
7 [2010] FWA 7217 [77].
8 Ibid.
9 Mechanics’ Agreement cl 2.1.
10 Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 9512 [52].
11 Ibid [78].
12 Ibid[54].
13 Subection 188(c).
14 [2016] FWCFB.
15 [2015] FWC 1554.
16 [1999] FCA 847.
17 (2003) 127 IR 13.
18 Print L9066.
19 (2003) 127 IR 13.
20 Print T2319 [20].
21 See Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554 [65]; Ostwald Bros Pty Ltd v CFMEU [2012] FWAFB 9512 [154] Watson VP (dissenting); KCL Industries Pty Ltd; KCL Industries Pty Ltd [2016] FWCFB 3048 [29].
22 Section 12 of the Act.
23 Subsection 172(2) of the Act.
24 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; (1988) 80 ALR 574 589 referring to Wilson v Darling Island Stevedoring and Lighterage Co Ltd (1956) 95 CLR 43 Kitto J [80].
25 Balfour Bakery Pty Ltd Agreement 2011 [2011] FWA 7397 [20].
26 [2011] FWA 7397.
27 Balfour Bakery Pty Ltd Agreement 2011 [2011] FWA 7397 [22] – [23].
28 Transcript PN 359.
29 Transcript PN 361.
30 Transcript PN 374.
31 Teys Australia Southern Pty Ltd [2015] FWC 4865 [10]; Endeavour Petroleum Pty ltd Certified Agreement 2004 PR957131, 8 April 2005 [50].
32 National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5163.
33 Armacell Australia Pty Ltd and Ors [2010] FWAFB 9985 [41]; Solar Systems Pty Ltd [2012] FWAFB 6397.
34 [2011] FWAFB 5163.
35 Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 [80].
36 Subsection 253(2) of the Act.
37 [2013] FCA 1351.
38 Subdivision B of Division 4 of Pt 2-4.
39 Radploy Pty Ltd T/A Lake Imaging [2011] FWA 39.
40 Radploy Pty Ltd T/A Lake Imaging [2011] FWA 39 [46].
41 Smith & Nephew Pty Ltd [2010] FWA 2465; Glen Eden Thoroughbreds Pty Ltd T/A White Shailer Park [2010] FWA 7217; Radploy Pty Ltd T/A Lake Imaging [2011] FWA 39; Jellifish! Pty Ltd [2012] FWA 9640; Surf City Coaches Pty Ltd t/as Bus IT Queensland [2014] FWC 3028.
42 [2010] FWA 7217.
43 [2010] FWA 2465.
44 Ibid [40] - [43].
45 R v Hamilton Knight; Ex parte Commonwealth Steamship Owners Association (1952) 86 CLR 283; Re Manufacturing Grocers’ op. cit.; Re Finance Sector Union of Australia; Ex Parte Financial Clinic (Vic) Pty Ltd and Others (1992-93) 178 CLR 352; Australian Maritime Officers Union v Sydney Ferries Corporation [2009] FCAFC 145; (2009) 190 IR 193; The Queen v Portus and Others; Ex parte City of Perth and Others (1973) 129 CLR 3123; The Queen v Stanton and Others; Ex parte Associated Airlines Pty Ltd (1977-1978) 141 CLR 281; Re Boyne Smelters Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1992-1993) 177 CLR 446.
46 Glen Eden Thoroughbreds Pty Ltd T/A White Shailer Park [2010] FWA 7217.
47 [2012] FWA 9640 [72].
48 [2014] FWC 3028.
49 Ibid [25].
50 Australian Maritime Officers Union v Sydney Ferries Corporation [2009] FACFC 145; (2009) 190 IR 193.
51 Ibid.
52 [2010] FWA 7217 [41].
53 R v Hamilton Knight; Ex parte Commonwealth Steamship Owners Association (1952) 86 CLR 283; Re Manufacturing Grocers’ op. cit.; Re Finance Sector Union of Australia; Ex Parte Financial Clinic (Vic) Pty Ltd and Others (1992-93) 178 CLR 352; Australian Maritime Officers Union v Sydney Ferries Corporation [2009] FCAFC 145; (2009) 190 IR 193; The Queen v Portus and Others; Ex parte City of Perth and Others (1973) 129 CLR 3123; The Queen v Stanton and Others; Ex parte Associated Airlines Pty Ltd (1977-1978) 141 CLR 281; Re Boyne Smelters Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees of Australia (1992-1993) 177 CLR 446.
54 Section 171 of the Act.
55 [2010] FWAFB 9985 [30] – [31].
56 Ibid [30].
57 Ibid [30] – [31].
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