Application by National Union of Workers

[2019] FWC 2071

[2019] FWC 2071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Application by National Union of Workers
(B2019/234)

COMMISSIONER MCKINNON MELBOURNE, 28 MARCH 2019

Application for bargaining orders in relation to negotiations with Krispy Kreme Australia Pty Ltd for an enterprise agreement to replace the Krispy Kreme Collective Workplace Agreement 2008.

Introduction

[1] The National Union of Workers (NUW) has applied pursuant to s.229 of the Fair Work Act 2009 (the Act) for bargaining orders in relation to bargaining for a proposed enterprise agreement with Krispy Kreme Australia Pty Limited t/a Krispy Kreme (Krispy Kreme) (the proposed agreement).

[2] Krispy Kreme initiated bargaining for the proposed agreement on 18 February 2019. The NUW is the default bargaining representative for its members at Krispy Kreme’s Logan site in Queensland. Its members are predominantly engaged in production work.

[3] The Krispy Kreme Collective Workplace Agreement 2008 1 (the Collective Agreement) currently applies to Krispy Kreme’s Team Members and Store Managers throughout Australia. The proposed Agreement will apply to all employees who work at Krispy Kreme’s Stores and “Stand Alone Facilities” across Australia. The NUW asserts that its members are currently covered by the Food, Beverage and Tobacco Manufacturing Award 2010 (Food Award). Krispy Kreme disputes this position and says there is no “effective or material change in the scope” of the Collective Agreement and the proposed Agreement.2

History of bargaining

[4] On 20 February 2019, Krispy Kreme notified employees by email that it had formally commenced bargaining for the proposed Agreement and attached a notice of employee representational rights. The notice advised its intention to “complete the consultation process within the next month”. 3

[5] On 25 February 2019, the NUW contacted Krispy Kreme by email to advise that it was a bargaining representative for the proposed Agreement and seek information about the proposed schedule of bargaining meetings and whether delegates would be released to participate in those meetings. The NUW advised that it would “require a period of time to survey our members and put together a log of claims before the first meeting”. 4

[6] On 26 February 2019, Krispy Kreme responded by formally recognising the NUW as a bargaining representative and advising that the initial bargaining meeting for Queensland employees would be by telephone dial in the following day, on 27 February 2019. It also advised that any log of claims should be sent through as soon as possible, and confirmed that it was “not the practice of Krispy Kreme to release delegates to participate in meetings”. It indicated that it was not aware of any NUW delegates at any site. 5

[7] On 27 February 2019, Paul Brown of the law firm Baker & McKenzie was appointed as the employer bargaining representative for the proposed Agreement. 6

[8] The same day, two telephone bargaining meetings were held. The first was between the NUW and Krispy Kreme. The other was between an employee bargaining representative from Western Australia, Jenny Snell, and Krispy Kreme. No other employee bargaining representatives sought to participate in bargaining.

[9] According to Imogen Beynon of the NUW, the first meeting lasted approximately 40 minutes. 7 There is no evidence to contradict this evidence and I accept the contents of Ms Beynon’s affidavit as an accurate record of the meeting from her perspective. In the meeting, the NUW raised the issue of delegates attending to participate in negotiations. Mr Brown responded by advising that Krispy Kreme was not obliged to allow delegates to attend, and that if individual employees wished to participate they would need to nominate as bargaining representatives. There was disagreement about the effect of the good faith bargaining requirements in relation to delegate participation.

[10] The scope of the proposed Agreement was also discussed, with the NUW raising a concern that production employees were not covered by the Collective Agreement and sought a different scope or separate Agreement. Mr Brown advised that Krispy Kreme was committed to a national agreement.

[11] The NUW queried why meetings were being arranged on a ‘state by state basis’ given that the proposed Agreement was national in scope. It sought future meetings to be conducted in person with all bargaining representatives, and on a national basis. Mr Brown advised that meetings would not be conducted in person and would continue to be run on a state by state basis.

[12] The NUW sought a schedule of future meetings and Mr Brown advised that he would get back to the NUW after the other state meetings had been conducted.

[13] The NUW expressed concern about the circulation of a draft enterprise agreement before there had been any engagement with the NUW, and that it had been given approximately 24 hours to prepare for the initial meeting. The NUW advised that it had not yet undertaken processes to prepare a log of claims and that its members were unaware of the bargaining process. It sought “a few weeks” to survey members and seek endorsement of their claims. Mr Brown responded by stating that the NUW was well resourced, that it should have had time to review the proposed Agreement and that if the NUW did not want to respond to the proposed Agreement that was its choice. The NUW then raised concerns about whether the proposed Agreement would pass the better off overall test having regard to the Food Award.

[14] Following the meeting, on 27 February 2019 Mr Brown sent an email to Ms Beynon which confirms that the NUW “reserved its position” on a log of claims. 8 The email also advised as follows:

“We will now have regard to your comments and seek instructions from our client as to whether any of the matters raised by you today should or would result in any further amendments to the enterprise agreement.

If our client chooses to make any further edits to the draft enterprise agreement, all bargaining representatives and all employees will be provided with a copy of any amended document.”

[15] The email went on to deal with “further bargaining meetings”, rejecting the proposition that it was required to have face to face meetings on a national basis, confirming its “initial approach” to provide opportunities for discussion on a state by state basis, and advising that it remained “open to the possibility of a further meeting in the future involving bargaining representatives on a national basis”. It also advised that “you, along with all other bargaining representatives, will be advised of further meetings.”

[16] The email also dealt with the issue of delegates, repeating earlier “comments” that “if there are individual employees who are, presumably, members of your Union who wish to be recognised as employee bargaining representatives and participate in the formal employee bargaining meetings, these individuals should consider nominating themselves as bargaining representatives” so that they could be formally recognised as part of the bargaining process.

[17] On 1 March 2019, Mr Brown sent an email to Ms Beynon listing the “issues” that had been flagged by employee bargaining representatives and that were “currently being considered” by Krispy Kreme. 9 Except in relation to the issue of agreed hours for part time employees, the 22 listed “issues” were identified by subject matter only, with no detail as to the nature of the concern. The email also advised that Krispy Kreme expected “to issue an amended version of the draft enterprise agreement in the week commencing 4 March 2013” (presumably the reference to 2013 was intended to be a reference to 2019). It also advised that it would consider the possibility of a national telephone call of bargaining representatives once it had obtained comments on its anticipated amended version of the proposed Agreement.

[18] On 4 March 2019 10, Ms Beynon responded to Mr Brown and Krispy Kreme raising the following issues:

1. A different scope for the proposed Agreement to deal with the particular circumstances of production workers in Queensland;

2. That good faith bargaining obligations were not being met due to:

a. no genuine bargaining, as employees had not had input into the proposed Agreement draft and only their “feedback” on that document was being sought employees;

b. lack of agreement to adequate time before the next bargaining meeting for employees to create and present a log of claims;

c. the requirement that delegates must be bargaining representatives to participate in bargaining meetings;

d. conduct of bargaining meetings on a state basis, despite the national scope of the Agreement, restricting the ability of bargaining representatives to participate in meetings, give genuine consideration to others’ proposals and reasons for responses, and preventing bargaining from occurring efficiently or fairly;

e. the NUW’s inability to recognise and bargain with other bargaining representatives due to the state by state approach.

[19] On 7 March 2019, Mr Brown responded to Ms Beynon. 11 He advised Krispy Kreme’s position in relation to the scope of the Collective Agreement compared with the scope of the proposed Agreement, and confirmed that it did not agree to alter the scope of the proposed Agreement. He rejected any suggestion that the good faith bargaining requirements were not being met by Krispy Kreme or that the NUW had not had sufficient time to respond to the proposed Agreement draft. For the first time, Krispy Kreme advised the NUW that if its delegates wished to attend bargaining meetings other than in the capacity of employee bargaining representatives, they could apply for leave of absence to attend the meetings, but that they would not be paid for their attendance.

[20] The email stated that “our client may see the need for a national telephone discussion of bargaining representatives in due course, however this option is yet to be implemented at this early stage in the bargaining.” It invited the NUW to submit any further issues or concerns about the proposed Agreement by close of business, 11 March 2019. It is common ground that there was no further correspondence from the NUW to Krispy Kreme or Mr Brown until 20 March 2019.

[21] At 12.17pm on 11 March 2019, Mr Brown sent the NUW a copy of a notice to employees forwarded the previous Friday, scheduling information sessions “to discuss the terms of” the proposed Agreement and “next steps”. 12 Information sessions at the site with NUW members were scheduled for 11 March 2019 at 2.00pm and 3.00pm and 12 March 2019 at 9.00am and 10.00am.

[22] On 18 March 2019, a second version of the proposed Agreement was emailed to employees. A copy was provided to the NUW. 13

[23] On 19 March 2019, Krispy Kreme sent its employees a second copy of the revised proposed Agreement as well as a “Notification of a Ballot” for the proposed Agreement. 14 The Notice provided details of further briefing sessions on the proposed Agreement over the period from 20 to 29 March 2019 as well as details about the time, place and method of the vote. One effect of the Notice was to trigger the access period for the Agreement for the purposes of section 180 of the Act. Briefing sessions for the Logan site are scheduled for 29 March 2019, one business day before voting is due to open on the proposed Agreement on 1 April 2019. In addition, teleconferences were scheduled for 25, 26 and 29 March 2019.

[24] On 20 March 2019, Mr Brown provided a copy of the ballot notification and second copy of the revised proposed Agreement to the NUW and the other employee bargaining representative. 15

[25] On 20 March 2019, the NUW responded to Krispy Kreme, asserting again that it was not bargaining in good faith. 16 Mr Brown was copied into the email. The scope issue relating to production employees was raised again. The NUW requested the vote be delayed for genuine collective bargaining to occur “across a series of meetings after the employees have presented a log of claims.” It advised that if there was no agreement on a delay of the ballot, a bargaining dispute would be filed.

[26] On 21 March 2019, Mr Brown responded by letter, taking issue with being ‘copied in’ to the email from Ms Beynon given his status as the employer bargaining representative. 17 He wrote that “choosing to not respond to our correspondence is not to be confused with raising genuine concerns as to the adequacy or otherwise of the information provided”. He expressed the view that it was open to Krispy Kreme to now proceed to ballot for the proposed Agreement, noted that it had had regard to matters raised by “bargaining representatives” which he suggested should be apparent from the changes made to the proposed Agreement. Those changes were not drawn to my attention in the hearing, but on my analysis the only apparent change is to the scope of the disputes resolution procedure. That matter does not appear to have been raised by either of the bargaining representatives at any time.

[27] Mr Brown asserted that there had been ‘bargaining’ with the NUW as well as with the other employee bargaining representative, in addition to direct communication and consultation with the workforce. He referred to meetings at the Logan site on 11 and 12 March 2019, attended by NUW delegates. He advised that “the concerns and views” of the NUW had been “in each case considered and the subject of a formal response” on behalf of Krispy Kreme. He noted that the question of the better off overall test was relevant to whether the proposed Agreement could be approved. Finally, he advised that the ballot would not be delayed and invited the NUW to “raise any further matters or ask any questions” with respect to the proposed Agreement content and/or the ballot during the next 10 days. He offered to include any future “agreed additional benefits” in an undertaking (presumably in connection with the enterprise agreement approval process) if an issue arising out of further discussions could or would result in such a benefit.

[28] The NUW did not respond to Mr Brown’s letter. It filed this application instead.

Consideration

[29] I am satisfied on the evidence that an application for a bargaining order under section 229 of the Act has been made by the NUW (s.230(1)(a) of the Act) and that the application was made by the NUW not more than 90 days before the nominal expiry date of the Collective Agreement, which was made in 2008 and expired on 1 January 2011 (s.229(3)).

[30] I am satisfied that the NUW has concerns that Krispy Kreme has not met the good faith bargaining requirements (s.229(4)(i)). In this regard, I accept the evidence of Ms Beynon at the hearing that the NUW has concerns about:

1. The short period of notice between receiving the first version of the proposed Agreement and the initial meeting on 27 February 2019;

2. The decision to conduct a ballot on the proposed Agreement, in circumstances where the NUW considers there has been no bargaining at all;

3. The short period of notice between provision of the revised version of the proposed Agreement and the commencement of the access period, which it considers denied it the opportunity to read or obtain feedback on the revised Agreement;

4. There being no second meeting scheduled after the revised Agreement was issued and before the access period commenced.

[31] I am satisfied that the NUW has given written notice of its concerns to Krispy Kreme in sufficient detail that Krispy Kreme is apprised of those concerns (s.229(4)(b)). The written notices were provided to Krispy Kreme on 4 March 2019 18 and 20 March 2019.19 There is no doubt that Krispy Kreme has had a reasonable time within which to respond to the concerns raised on 4 March 2019, and that it has done so. As to the concerns raised on 20 March 2019, Mr Brown responded in a comprehensive way by his letter of 21 March 2019. The timeframes were short but necessarily so, given the impending conduct of the ballot. In the circumstances, I am satisfied that the time given to Krispy Kreme to respond was reasonable.

[32] I am also satisfied that the NUW considers that Krispy Kreme has not responded appropriately to its concerns identified on 4 and 20 March 2019 (s.229(4)(d)). So much is made clear by its correspondence of 20 March 2019 20 and the fact of this application.

[33] There is no dispute that Krispy Kreme initiated bargaining for the proposed Agreement (s.230(2)(a)). While the NUW asserts that this occurred on 20 February 2019, I accept the evidence of Sally Parks that bargaining was initiated on 18 February 2019.

Has Krispy Kreme met, or is it meeting, the good faith bargaining requirements?

[34] Section 228 of the Act sets out the good faith bargaining requirements. They include attending and participating in meetings at reasonable times; disclosing relevant information in a timely manner; responding to proposals made by other bargaining representatives in a timely manner; giving genuine consideration to proposals made by other bargaining representatives, and giving reasons for responses to those proposals; refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; and recognising and bargaining with the other bargaining representatives.

[35] There is no requirement that an employer, once notified of the existence of employee bargaining representatives for a proposed enterprise agreement, must thereafter adopt a holding position in the agreement making process unless and until the position of employee bargaining representatives has been laid out in full. The good faith bargaining requirements apply equally to all bargaining representatives. An employee bargaining representative who fails to provide their response to a proposed enterprise agreement in a timely way risks being caught in precisely the position the NUW now finds itself, where matters have progressed to the stage of the ballot before it has had any meaningful discussion on the proposed Agreement.

[36] That is not to say that employers can simply steam ahead, passing each milestone in the agreement making process with little regard for the interests of employees and their representatives. There is some evidence of that approach in the present case.

Attending and participating in meetings at reasonable times – s.228(1)(a)

[37] I do not accept that Krispy Kreme has failed to attend and participate in meetings at reasonable times. It has attended each of the meetings scheduled with employees in the period since 18 February 2019 and it is apparent that, for the most part, those meetings have been scheduled at times that coincide with shift changeover the support employee participation.

Disclosing relevant information in a timely manner – s.228(1)(b)

[38] I am satisfied that Krispy Kreme has disclosed relevant information to the NUW about the proposed Agreement and the agreement making process. However, I do not consider that it has always done so in a timely way. I do not agree with the NUW that the short notice between the initiation of bargaining and the first meeting was in breach of the good faith bargaining requirements. There was a period of 9 days between those two events. Any delay in the NUW’s members seeking its involvement in bargaining was not the responsibility of Krispy Kreme, particularly in circumstances where there is no evidence that it had any knowledge of the NUW’s role as default bargaining representative prior to 25 February 2019.

[39] However, the delay in providing the NUW with a schedule of information sessions due to commence on 11 March 2019 until the afternoon of that same day meant that the NUW had less than two hours’ notice of the sessions. This is likely to have reduced the capacity of the NUW to prepare for its participation in those sessions, either directly or through its members. In a similar vein, there is no explanation for the delay in providing notice of the ballot to the NUW on 20 March 2019, one day after it was provided to employees, particularly in circumstances where it was distributed by email in each case. On balance, I am not satisfied in the circumstances that the requirements of section 228(1)(b) have been met in this respect.

Responding to proposals made by other bargaining representatives – s.228(1)(c)

[40] On 1 March 2019, Mr Brown’s email to employee bargaining representatives listed the issues “flagged” by employee representatives, advised that the matters would be considered, and indicated that an amended draft of the proposed Agreement was likely to be issued the following week. There is no evidence that any such changes were made to the proposed Agreement, and there is no dispute that the second version of the proposed Agreement was not circulated until 18 March 2019, two weeks after it had been foreshadowed and one day ahead of the notice of ballot.

[41] Having said that, I am satisfied that Krispy Kreme has responded to each of the proposals made by the NUW. It has responded to the request for inclusion of delegates in future meetings and to the request for agreement on national, face to face, meetings of bargaining representatives, albeit unfavourably. In relation to the content of the proposed Agreement, I am not satisfied that the NUW has actually made any proposals that require a response. The NUW has verbally and briefly listed clauses in the proposed Agreement which may not pass the better off overall test, and it has sought a separate enterprise agreement for its members who are, by and large, production employees. Krispy Kreme has responded to the scope issue by refusing to agree to a separate agreement for production employees. While a log of claims 21 has now been provided to Krispy Kreme, it provides only limited detail as to the nature of those claims.

[42] In my view, if there is a breach of section 228(1)(c), it arises from the conduct of the NUW. The NUW has not responded to the proposed Agreement in a timely manner. I do not accept Ms Beynon’s evidence that the NUW was not in a position to put anything forward for consideration until the day of the hearing because it needed to survey employees and seek their endorsement of claims. The evidence of Ms Mele-Otufale Tulimaiau is that at least one of the NUW delegates at the Logan site spent most of the day on 25 February 2019 writing up a response to the proposed Agreement.

[43] That response is headed “What do we want?” 22 It sets out in some detail particular matters sought for inclusion in the proposed Agreement. It also identifies a number of questions about the content of the proposed Agreement, taking issue with the use of certain phrasing and proposing alternatives.

[44] The written response was posted on the delegates Facebook page 23 on 26 February 2019. Conversations then took place with other employees “almost immediately” and on an ongoing basis after that time until the second draft of the proposed Agreement was issued on 18 March 2019. It is not clear why steps could not have been taken by the NUW after 26 February 2019 to confirm that the written response reflected the views of its members, so that those matters could be put in a timely way to Krispy Kreme for its consideration and response. It follows that I am not satisfied there has been any relevant contravention of section 228(1)(c) by Krispy Kreme.

Giving genuine consideration to proposals and reasons for responses – s. 228(1)(d)

[45] I am also not satisfied that there has been any failure to meet the requirements of section 228(1)(d). As discussed above, the NUW has not made any substantive proposals in relation to the proposed Agreement, except in relation to the question of scope. On that issue, I am satisfied that Krispy Kreme has genuinely considered the matter and has given its reasons for declining to alter the scope of the proposed Agreement. The dispute in this respect arises from a difference of view about the scope of the Collective Agreement. Krispy Kreme’s position in that regard is not without merit.

[46] Without deciding the matter finally, I consider it at least arguable that while the proposed Agreement is clearer on the matter, production employees are also covered by the Collective Agreement as “Team Members”, whose role is defined in very general terms. There is no express limitation on scope that I can find in the Collective Agreement to employees working in retail outlets, and clause 7.4 refers to employees working either at retail sites or a facility. It is a matter that would benefit both from discussion between the parties and explanation to production employees, in terms of the likely effect of the proposed Agreement on them.

Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining – s.228(1)(e)

[47] The current proposal for an information session to be held at the Logan site tomorrow. That is the final business day prior to the ballot, and the scheduling of this session, being as it is the only site where Krispy Kreme is aware that the NUW has members, gives the impression of having been designed to limit the NUW’s effective participation in the process. In light of Ms Beynon’s view that bargaining could not continue during the access period, however, it is unlikely to have any practical consequence.

[48] I am also concerned at the decision to proceed directly to a vote of employees rather than hold another meeting with employee bargaining representatives. In my view, Krispy Kreme’s correspondence with the NUW to date, including on 1 and 7 March 2019, gives the impression that there is likely to be a further opportunity to meet and discuss the proposed Agreement (perhaps by telephone) once employee feedback has been received. In proceeding to ballot in this way, I consider that Krispy Kreme is not meeting the requirements of section 228(1)(e), notwithstanding the regrettable conduct of the NUW in effectively staying silent after 7 March 2019 until notice of the ballot was issued.

[49] As to the inclusion of delegates in the bargaining process, it was not reasonable for Krispy Kreme to assert that it had an established practice not to release delegates for bargaining when the request was made by the NUW. Ms Park gave evidence that there was no such practice. 24 I also do not accept that the only basis on which delegates might seek to participate in bargaining is by nominating themselves as employee bargaining representatives. To the extent that this impression was conveyed to the delegates by Krispy Kreme, it was unfair and inconsistent with its obligations under section 228(1)(e). As Ms Beynon rightly noted in her evidence, the effect would be to revoke the NUW’s default status as a bargaining representative. Whether that would operate to exclude the NUW entirely is not clear, because there is no information before me about whether it has any members other than those who have been identified as its delegates. Alternative scenarios include either that Krispy Kreme accommodate the participation of delegates, notwithstanding that it may have no legal obligation to do so, or as identified by Mr Brown, that it permit delegates to apply for leave to participate in meetings. Whether that renders their participation in meetings paid or unpaid depends entirely on the type of leave sought and granted. In my view, if any such application is made, it ought to be granted by Krispy Kreme.

Recognising and bargaining with other bargaining representatives – s.228(1)(f)

[50] There is no doubt that Krispy Kreme has recognised the NUW as a bargaining representative for employees at the Logan site. It did so expressly by email on 26 February 2019. As to whether Krispy Kreme has bargained with the NUW, I find there has been no meaningful engagement on the content of the proposed Agreement between them. For the reasons set out above I am not satisfied that responsibility for this should sit with Krispy Kreme alone. Its proposed Agreement has been available to the NUW for more than one month and in that time the NUW has not made any proposals in relation to the proposed Agreement except to suggest that it may not pass the better off overall test and to seek a separate agreement for its members. I am not satisfied that there has been a relevant contravention of section 228(1)(f) in the circumstances.

Is it reasonable in all the circumstances to make the order?

[51] The power to make bargaining orders is confined to directing things to be done to ensure compliance by one or more of the bargaining representatives with the good faith bargaining requirements. 25

[52] I am satisfied that it is reasonable in all the circumstances to make bargaining orders to remedy the concerns identified above by:

1. Requiring the NUW to particularise its log of claims by no later than Monday 1 April 2019;

2. Requiring future correspondence with employees in relation to the proposed Agreement to be copied to the NUW on the day that it is sent to employees;

3. Requiring at least two further meetings of bargaining representatives in person at the Logan site, to discuss the proposed Agreement and the NUW’s log of claims;

4. Requiring at least 48 hours’ notice of any future bargaining meetings;

5. Requiring Krispy Kreme to grant leave of absence for delegates to participate in bargaining meetings on the basis that any entitlement to payment for such time would derive from existing accrued entitlements; and

6. Restraining the conduct of the ballot for a period of 20 days to allow the additional two bargaining meetings to occur.

[53] In my view, orders to this effect will direct things to be done to ensure compliance by the bargaining representatives with the good faith bargaining requirements.

[54] Orders giving effect to this decision will issue separately.

COMMISSIONER

Appearances:

I Beynon for the applicant

P Brown of Baker & McKenzie for the respondent

Hearing details:

2019

Melbourne, Sydney and Brisbane (by video):

March 27.

Final written submissions:

Applicant, 28 March 2019

Respondent, 28 March 2019

Printed by authority of the Commonwealth Government Printer

<PR706329>

 1   Applicant’s Outline of Submissions, Attachment A

 2   Exhibit 3, Attachment SP8

 3   Exhibit 3, Attachment SP2

 4   Exhibit 3, Attachment SP3

 5   Exhibit 3, Attachment SP3

 6   Exhibit 3, Attachment SP4

 7   Exhibit 1

 8   Exhibit 3, Attachment SP5

 9   Exhibit 3, Attachment SP6

 10   Exhibit 3, SP7

 11   Exhibit 3, SP8

 12   Exhibit 1, Attachment J

 13   Exhibit 1

 14   Exhibit 3, Attachment SP10

 15   Exhibit 3, Attachment SP11

 16   Exhibit 3, Attachment SP12

 17   Exhibit 3, Attachment SP13

 18   Exhibit 3, SP7

 19   Exhibit 3, Attachment SP12

 20   Exhibit 3, Attachment SP12

 21   Exhibit 2

 22   Exhibit 5

 23   Exhibit 4

 24   Audio file of hearing, 27 March 2019

 25   Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [62]