Australian Institute of Marine and Power Engineers, The v Teekay Shipping (Australia) Pty Ltd

[2018] FWC 1605

[2018] FWC 1605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Institute of Marine and Power Engineers, The
v
Teekay Shipping (Australia) Pty Ltd
(C2017/5608)

DEPUTY PRESIDENT BOOTH SYDNEY, 21 MARCH 2018

Application for the Commission to deal with alleged dispute about any grievance or dispute – jurisdiction of the Commission – jurisdictional objection not upheld - Commission considers conciliation exhausted – Commission declines to issue recommendation or opinion.

[1] The Australian Institute of Marine and Power Engineers (AIMPE) has applied under s.739 of the Fair Work Act (the Act) for the Fair Work Commission (the Commission) to deal with a dispute with Teekay Shipping (Australia) Pty Ltd (Teekay) in accordance with a dispute settlement procedure.

[2] The dispute settlement procedure is found in the Teekay Shipping (Australia) Pty Ltd/AIMPE (Engineer Officers) Government Service & Security Fleet Enterprise GSS Agreement 2011 (the GSS Agreement). 1

[3] AIMPE’s application was lodged on 11 October 2017 and the matter was before me in conference on 23 October 2017, 25 October 2017 and 30 November 2017.

[4] At the time of the application the dispute concerned whether engineers, members of AIMPE, that were amongst the crew of the vessels known as the Coral Knight and the MV Sycamore (Sycamore) were entitled to be paid in accordance with the GSS Agreement.

[5] By the time of the first conference an enterprise agreement had been made between Teekay and the engineers on board the Coral Knight and an application made to the Commission for its approval. Although the enterprise agreement was not approved at the time of the first conference, and is still yet to be approved at the time of this decision, in practical terms the scope of the dispute has been narrowed to the Sycamore only.

[6] Teekay issued a Notice of Employee Representational Rights to engineers on Sycamore on 3 August 2017. At the time of the first conference negotiations were about to commence, and are now underway, for an enterprise agreement to cover the engineers on the Sycamore.

[7] The conferences did not resolve the dispute and AIMPE asked the Commission to arbitrate to resolve the dispute. Teekay objected to this course contending that the Commission did not have the power to arbitrate the dispute. I issued directions on 27 October 2017, and listed the matter for hearing on 30 November 2017 in relation to the objection.

[8] Teekay advanced two grounds in support of its objection in submissions on 10 November 2017. Firstly, the Commission does not have jurisdiction, under the disputes procedure in the GSS Agreement, to determine whether in fact the GSS Agreement applies to employees who are purportedly the subject matter of the dispute because this would require the exercise of a judicial function. Secondly, the Commission’s jurisdiction is limited to the terms of the dispute settlement procedure which does not authorise arbitration.

[9] Shortly before the hearing AIMPE conceded that the relevant dispute settlement procedure did not give the Commission the power of arbitration. The hearing did not proceed on 30 November and instead the parties met in conference for further discussion. The conference did not resolve the dispute and AIMPE asked the Commission to make a recommendation or express an opinion to resolve the dispute.

[10] Teekay objected to this course maintaining its objection for the first reason, that to deal with the dispute would require the exercise of judicial rather than arbitral power.

[11] I issued further directions on 30 November 2017 to allow any additional material to be provided. Teekay supplied Supplementary Submissions on 15 December 2017 and AIMPE indicated that it had no further submissions.

[12] My Chambers emailed the parties on 5 March 2018 to enquire about progress between the parties in enterprise bargaining negotiations concerning the Sycamore. I sought submissions on the utility of the Commission dealing with the dispute in the light of progress towards the reaching of an enterprise agreement to cover the engineers on the Sycamore. I was advised by both parties that negotiations were, in effect, proceeding slowly.

[13] In correspondence dated 9 March 2018 Teekay says:

“At this stage, we do not see an agreement being reached in the short term…”

and

“Ultimately, however, we recognise that the application is brought by the AIMPE. On this basis, it is a matter for AIMPE as to whether it seeks to press the issue.”

[14] In an email dated 12 March 2018 AIMPE says:

“On behalf of AIMPE I can confirm the advice provided by Teekay by letter dated 9 March 2018 that there have been enterprise bargaining meetings in relation to the MATV Sycamore however there are a number of issues that remain as unresolved matters between the parties. Indeed three of the [sic] these are issues that caused AIMPE to seek the assistance of the Commission in this matter. AIMPE has already conceded in written submissions that the FWC does not have power to arbitrate the matter but AIMPE does still adhere to the view that the FWC may issue a recommendation or an opinion to the parties. While such a recommendation or opinion would necessarily be non-binding it may be of assistance to the parties in seeking to resolve the differences between us and make some progress towards achieving an Enterprise Agreement that would have a reasonable prospect of success. AIMPE therefore presses for the Commission to decide on whether it has power to make a recommendation or issue an opinion in this matter.”

[15] This decision concerns the jurisdictional objection made by Teekay about whether the Commission has the power to deal with the dispute and the request by AIMPE to make a recommendation or express an opinion to resolve the dispute.

[16] I have decided that the Commission has the power to deal with the dispute by conciliation however I have decided against making a recommendation or giving an opinion in relation to the dispute.

Legal Framework

[17] An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure must be dealt with in accordance with the Act.

[18] Section 186(6) of the Act provides that to approve an enterprise agreement the Commission must be satisfied that the enterprise agreement contains a procedure to settle disputes. That section reads as follows:

186 When the FWC must approve an enterprise agreement – general requirements

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

[19] Section 595 of the Act provides, relevantly, that Division 6-2 applies if an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6) referred to above.

[20] Section 739 of the Act, contained Division 6-2 of the Act, in provides, relevantly, that the powers of the Commission to deal with a dispute are limited by the term that provides a procedure for dealing with disputes and that the Commission may only deal with a dispute on application by a party to the dispute. Section 739 reads as follows:

739 Dispute dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(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.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

Relevant provisions of the GSS Agreement

[21] The GSS Agreement defines the parties to the GSS Agreement and the application of the GSS Agreement as follows:

5. PARTIES TO SECURITY AGREEMENT

The parties to this Security agreement are Teekay Shipping (Australia) Pty Ltd and the Australian Institute of Marine and Power Engineers.

6. APPLICATION

6.1 This Security agreement applies to Teekay Shipping (Australia) Pty Ltd, the Australian Institute of Marine and Power Engineers and Employees in relation to Teekay vessels (or normally engaged) in Government Services and Security operations.

[22] Government Services and Security operations are defined in the GSS Agreement as follows:

3. DEFINITIONS

3.1 Definitions

…

“Government Services and Security” means that the vessel is tasked and utilized by the Australian Government as a ‘duly authorised’, or Commonwealth ship, in accordance with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) and the Australian Navigation Act to perform/support operations that include patrol, monitoring and as required pursuit/enforcement in any of the following:-

•  Maritime border patrol and potential irregular immigrations (“PII’s”)

•  Fishery patrol or monitoring

•  Environmental monitoring

•  Humanitarian aid

•  Disaster relief

•  Any other matter of national interest (e.g. hydro-carbons and other assets)

•  Any other government-required task that may be agreed between the parties in a formal exchange of correspondence expressly expanding the scope of this Security Agreement

….but does NOT include vessels/operations/work that would normally be covered by Awards or enterprise agreements particular to Dredging, Tugboats/Towage, oil and gas operations or Tanker operations.

[23] The procedure to settle disputes that is contained in the GSS Agreement is as follows:

15. DISPUTE SETTLEMENT PROCEDURE

15.1 Principles

Teekay agree to strictly adhere to a dispute settlement procedure, so that any dispute shall be promptly resolved by conciliation in good faith without resort to, or threat of, industrial bans or stoppages so as work shall always continue without interruption. This is in recognition that it is for the overall benefit of Teekay and is employees. The procedure that will be followed to ensure the highest standard of industrial relations reliability is details as follows. In following this procedure all parties recognise and respect the valid roles of the other parties.

All necessary steps will be taken to ensure that the following procedures apply in the event of any grievance or dispute. The intention of this clause is to ensure that any dispute shall be promptly resolved by conciliation in good faith without resort to industrial bans or stoppages. It is also agreed that this Security agreement is reached on the understanding that the settlement of dispute procedure will be strictly adhered to at all times.

15.2 Matters likely to become industrial issues.

Teekay and the Employees and any representative nominated by the employees shall respectfully notify each other as soon as possible of any industrial matter which in the opinion of the party might give rise to an industrial dispute. If the issue is vessel based all efforts will be made to resolve the matter on board, including through the shipboard management committee, in the first instance.

15.3 Dispute at Shipboard Level.

In the event of a dispute at a shipboard level, the matter is to be first discussed on board between the Employee(s) and any representative at the request of the Employee(s) to deal with the dispute, and the company’s onboard representative with the aim of resolving the issue as soon as possible.

15.4 Lack of Agreement at Shipboard Level

If no agreement is reached at a shipboard level, Employees and any representative nominated by the Employees will then discuss the matter without delay with an appropriate representative from Teekay.

15.5 Dispute Settlements.

The above steps shall not preclude the right of either party to refer a dispute under this Security Agreement to Fair Work Australia.

15.6 Continuity of Work.

Pending the completion of the procedure set out in this clause work shall continue without interruption. No party shall engage in provocative action and pending the resolution of the dispute the status quo shall apply. The rights of individuals or parties shall not be prejudiced by the fact that work has continued under this procedure normally and without interruption.

It is the intention of the AIMPE that for the term of this Security Agreement the AIMPE will regard itself and its members as bound to not take industrial action (whether ‘Protected’ or not) of any kind in relation to Government Services and Security operations as defined.

Can the Commission deal with the dispute?

[24] The Commission may only deal with a dispute pursuant to s.739 of the Act on application by a party to the dispute. 2 In order for the Commission to do so, the dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement requires or allows the Commission to deal with and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement.3

Is s.739(6) of the Act satisfied?

[25] Clauses 5 and 6 of the GSS Agreement make it clear that AIMPE is a party to the GSS Agreement. I consider that the requirement in s.739(6) of the Act that the Commission may only deal with a dispute on application by a party is satisfied.

How should the dispute be characterised?

[26] The starting point for the characterisation of the dispute that AIMPE asked the Commission to deal with is the Form F10 submitted by Mr Martin Byrne on behalf of AIMPE.

[27] In answer to question 2.1 What is the dispute about? he replied:

The dispute relates to two vessels which Teekay manages and for which Teekay provides marine crew.

The vessels are Coral Knight and Sycamore.

Teekay has secured the contracts for these two vessels during 2017.

Coral Knight is an Emergency Towage Vessel which generally operates in the Great Barrier Reef region providing response services under a contract ultimately with the Australian Maritime Safety Authority.

Sycamore is a Multipurpose Aviation Training Vessel which is a platform for the Royal Australian Navy to conduct aviation training for all possible helicopter-related operations, navigation training, dive support target towing and unmanned aerial vehicle support.

[28] In answer to question 3.1 What relief are you seeking by making this application to the Commission? he replied:

AIMPE seeks the assistance of the Commission to see if this matter can be resolved by conciliation;

In the alternative AIMPE seeks an order that the Engineers employed on the Coral Knight and the Sycamore are covered by the Teekay Shipping (Australia) Pty Ltd/AIMPE (Engineer Officers) Government Service & Security Fleet Enterprise GSS Agreement 2011 and are entitled to be paid in accordance with that Agreement.

[29] In its Submissions of 10 November 2017 Teekay characterised the dispute as follows:

4.5 In essence, the AIMPE is seeking that the FWC determine, as a matter of law, whether the GSS Agreement applies to the Relevant Employees. It is not pursuing a dispute about the application or operation of a clause or provision in the Agreement, it is seeking the Commission to determine whether the Enterprise Agreement has legal effect at all with respect to the Relevant Employees.

[30] AIMPE submits that Teekay have mischaracterised the dispute. In Submissions in Reply of 24 November 2017 they say:

9. In it submissions dated 10 November 2017 at point 4.5, Teekay has relied on a mischaracterisation of the dispute to found its jurisdictional objection to the matter being referred to the FWC.

10. As has previously been stated, the dispute concerns the application of the GSS to the vessels Sycamore and Coral Knight. It follows then that any referral to the FWC via the dispute resolution procedure must be founded on a term of the GSS that deals with the scope or application of the Agreement to certain vessels.

11. It is open to the Fair Work Commission to consider the terms of an Enterprise Agreement in order to establish whether the Agreement applies in any particular circumstances.

[31] I agree with AIMPE that the dispute is about the application of the GSS Agreement. I conclude that the engineers on the Sycamore want to be paid in accordance with the GSS Agreement. I apprehend that there are specific provisions that the engineers value in the GSS Agreement. These are the three matters referred to in AIMPE’s email of 12 March 2018 and mentioned in Teekay’s correspondence of 9 March 2018 viz. loss of certificate of competency, superannuation and redundancy.

Does the dispute fall within the scope of disputes that the applicable enterprise agreement requires or allows the Commission to deal with?

[32] The question of what kinds of disputes may be referred to the Commission appears to be answered by the use of the terms “any dispute” (two instances) and “any grievance or dispute” in clause 15.1. In clause 15.2 the procedure uses the phrase “any industrial matter which in the opinion of that party might give rise to an industrial dispute”. It seems to me that the parties did not intend to constrain the use of the dispute settlement procedure to any particular kind of industrial dispute.

[33] Teekay submits that the exercise of power in the manner sought by the AIMPE is inconsistent with the intention of s.186(6) of the Act that requires an enterprise agreement to contain a clause that allows the Commission, or another person, to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards. This submission ignores the case law on this point that makes clear that a dispute settlement procedure may include a broader range of disputes than those described in s.186(6). 4 I reject that submission.

Have mandatory pre-filing steps been satisfied?

[34] There is no submission before me that the stages of the dispute settlement procedure have not been complied with such that the Commission cannot deal with the dispute. It is not in dispute that the parties exchanged correspondence in relation to the dispute.

What does the dispute settlement procedure allow the Commission to do?

[35] When the Commission deals with a dispute pursuant to a dispute settlement procedure in an enterprise agreement it does so constrained by the terms of the dispute settlement procedure. That is, the Commission has the power given to it by the parties as part of their agreement. 5 In order to establish the powers of the Commission it is necessary to carefully examine the terms of the dispute settlement procedure.6

[36] Clause 15.5 of the dispute settlement procedure in the GSS Agreement provides:

“The above steps shall not preclude the right of either party to refer a dispute under this Security Agreement to Fair Work Australia.”

[37] Stewart’s Guide to Employment Law Fifth Edition contains the following commentary in relation to these types of provisions. 7 It says:

“A vague reference to a dispute being ‘referred’ to a body such as the FWC may also raise some question as to whether it is intended to have a power to arbitrate the dispute, or merely assist the parties to negotiate a settlement.”

[38] Reference in clause 15.1 of the GSS Agreement to “promptly resolved by conciliation” and “conciliation in good faith without resort to industrial bans or stoppages” suggests to me that it is conciliation that is authorised by the parties when the dispute is referred to the Commission and not arbitration.

[39] I consider that I am only able to deal with the dispute by conciliation. AIMPE has withdrawn its request for the Commission to deal with the dispute by arbitration. Therefore it is unnecessary for me to address the second ground of Teekay’s jurisdictional objection.

Does the Commission have the power to conciliate?

[40] Teekay maintains the first ground of its jurisdictional objection.

[41] In its supplementary submissions regarding jurisdiction of 15 December 2017 Teekay says: 8

“(a) The mere fact that the AIMPE has abandoned its request for arbitration and instead seeks that the FWC issue a recommendation or opinion does not cure the jurisdictional difficulty outlined in the Original Submissions, that is, that the FWC cannot derive jurisdiction from the terms of a dispute resolution provision in an enterprise agreement to determine whether in fact that enterprise agreement operates with respect to employees who are purportedly the subject matter of the dispute (the Relevant Employees).

(b) The limitations on the powers of the Commission extend to non-binding powers (that is, function other than arbitral power), including the powers provided to the Commission pursuant to section 595 of the Fair Work Act 2009 (Cth).

(c) The FWC does not have jurisdiction to deal with the matters raised in the AIMPE’s dispute notification, either through the dispute resolution provision of the GSS Agreement, or any other source.

(d) Accordingly, the Commission should find that it does not have power to issue a recommendation or opinion as sought by the AIMPE and that the application should be dismissed.”

[42] In its submissions of 10 November 2018 Teekay says: 9

“…..the use of the disputes procedure to form a basis for jurisdiction to determine whether in fact the enterprise GSS Agreement exists at all in respect of the Relevant Employees is not available to the FWC…”

[43] In its supplementary submissions of 15 December 2018 Teekay says: 10

“The question that AIMPE seeks to have resolved in the lodgement of the dispute is ultimately a judicial question, that is, whether the GSS Agreement applies, as a matter of law, to the Relevant Employees.”

[44] In Re Cram; Ex parte Newcastle Wallsend Coal Co. (1987), 11 the High Court said:

“The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power: Cessnock Collieries, at p.22; The Queen v. The Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597. Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties: Aberdare Collieries, at p.44. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.”

[45] The characterisation of the dispute lies at the heart of this jurisdictional objection. 12

[46] At paragraph [31] above I concluded that the dispute concerned the application of the GSS Agreement. The coverage of the GSS Agreement is not an end in itself. It is a prerequisite to the engineers being entitled to the terms and conditions of the GSS Agreement.

[47] In its submissions of 10 November 2017 regarding jurisdiction, Teekay says: 13

“2.10 The exercise of the FWC’s power was further explored by a Full Bench of the FWC in Kentz Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. In that decision, the Bench, referring to the Full Court’s decision in CFMEU and Wagstaff Piling Pty Ltd and Others, noted that:

…

(a) a Member of the Commission can, by not observing the fundamental distinction between private arbitration and the exercise of judicial powers, stray into the exercise of judicial power by expressing an opinion about a legal matter, but not for the purpose of taking some further step within the Commission’s own power.”

[footnotes omitted]

[48] In this case, the concern raised by Teekay, that the Commission might “by not observing the fundamental distinction between private arbitration and the exercise of judicial powers, stray into the exercise of judicial power by expressing an opinion about a legal matter, but not for the purpose of taking some further step within the Commission’s own power” 14 does not arise.

[49] I conclude that the Commission has power to deal with the dispute by conciliation. Teekay’s jurisdictional objection is not upheld.

[50] In any event the Commission has already dealt with the dispute by conciliation with the consent of Teekay, although the jurisdictional objection was flagged at the very first conference. I consider that facilitative conciliation is exhausted and there is no reasonable prospect of the parties resolving the dispute in further conferences. Teekay makes the submission it now makes to seek to prevent me going further by making a recommendation or expressing an opinion.

Can the Commission make a recommendation or express an opinion?

[51] The Commission’s powers to make a recommendation or express an opinion are found in s.592(4)(b) of the Act. They are features of the Commission’s powers at a conference. The power to make a recommendation or express an opinion is to be exercised on discretion of the Commission. This is clear from the use of the word “may” in s.592 (4).

[52] These two features sit alongside the power to mediate or conciliate found in s.592(4)(a). Noting that the dispute settlement procedure in question provides only the power to conciliate, the question arises as to whether it gives the Commission the power to make a recommendation or express an opinion. Is reference in the dispute settlement procedure in the GSS Agreement to conciliation to be read narrowly or to be read more broadly to include the power to make a recommendation or express an opinion? I have been provided with no submissions on this point and I don’t intend to answer it because I don’t intend to make a recommendation or express an opinion.

Conclusion

[53] I consider that an application has been made by a party to an enterprise agreement about provisions of the enterprise agreement that are within the scope of the dispute settlement procedure. I consider that the dispute settlement procedure confines the way the Commission may deal with the dispute to conciliation.

[54] I have decided not to exercise my discretion to make a recommendation or express an opinion for the following two reasons.

[55] I do not consider that a recommendation or opinion would resolve the dispute as any recommendation or opinion I give would be non-binding, and the parties have not agreed to abide by any recommendation or opinion. Indeed I anticipate that the parties would maintain their respective positions in relation to the dispute in spite of any recommendation or opinion I give and the dispute would remain unresolved.

[56] I am aware that the parties are conducting negotiations for an enterprise agreement to cover the engineers on the Sycamore. I consider that this is the process that will ultimately resolve the dispute. I consider a recommendation or opinion one way or the other would provide a tactical advantage for one side or the other in the negotiations and it would be unwise for the Commission to risk being perceived as a cat’s paw in these negotiations.

[57] The Application (C2018/634) is dismissed.

DEPUTY PRESIDENT

<PR601275>

 1   AE899699.

 2   Fair Work Act 2009 (Cth), s 739(6).

 3   Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National[2017] FWCFB 1702 at [15].

 4   United Firefighters’ Union of Australia v Country Fire Authority [2015] FCAFC at [286].

 5   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission & Anor (2001) 203 CLR 645 at [658].

 6   Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619.

 7   Andrew Stewart, Stewart’s Guide to Employment Law Fifth Edition (Federation Press, 5th ed, 2013).

 8   Supplementary Submissions on Behalf of Respondent Regarding Jurisdiction, 15 December 2017, paragraph 2.

 9   Submissions on Behalf of Respondent Regarding Jurisdiction, 10 November 2017, paragraph 4.6.

 10   Supplementary Submissions on Behalf of Respondent Regarding Jurisdiction, 15 December 2017, paragraph 4.2.

 11 [1987] HCA 29.

 12   Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FWCFB 217; Appeal by Susan McCallum of CPSU, the Community and Public Sector Union v Tenix Solutions Pty Ltd (formerly LMT Australia Pty Ltd),PR940630.

 13   Ibid.

 14   Submissions on behalf of respondent regarding jurisdiction, 10 November 2017, paragraph 2.10(c).

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