Australian Manufacturing Workers' Union v Visy Packaging Pty Ltd
[2019] FWCFB 32
•17 JANUARY 2019
| [2019] FWCFB 32 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Australian Manufacturing Workers’ Union
v
Visy Packaging Pty Ltd
(C2018/6086)
VICE PRESIDENT HATCHER | SYDNEY, 17 JANUARY 2019 |
Appeal against decision [2018] FWC 6268 of Commissioner McKinnon at Melbourne on 9 October 2018 in matter number C2017/6449.
Introduction and background
[1] The Australian Manufacturing Workers’ Union (AMWU) has lodged an appeal against a decision of Commissioner McKinnon issued on 9 October 2018 1 (Decision) concerning an application made under s 739 of the Fair Work Act 2009 (FW Act) for the Commissioner to deal with a dispute pursuant to the disputes settlement procedure of the Visy Packaging Pty Ltd (Cartons - Broadmeadows) AFMEPKIU/ETU Enterprise Agreement 2017 (Agreement). The dispute concerned the cessation of a canteen service previously provided by the employer, Visy Packaging Pty Ltd (Visy), to day shift employees at its manufacturing site at Broadmeadows in Melbourne. The AMWU contended that the closure of the canteen service by Visy constituted a contravention of clause 13.2 of the Agreement. Visy contended in response that clause 13.2, to the extent that it applied to the closure of the canteen service, was not about “permitted matters” within the meaning of s 172 of the FW Act and therefore had no effect by reason of s 253(1)(a). In the Decision, the Commissioner upheld Visy’s contention. The AMWU in its appeal contends that the Commissioner erred in so deciding.
[2] The background against which the Decision was made was as follows. As earlier stated, Visy provided a canteen facility to day shift employees at the Broadmeadows site, which provides food and beverages at subsidised prices. The canteen facility was also made available to employees of Visy who were not covered by the Agreement as well as visitors to the site such as union officials. At the time the dispute commenced, Visy provided this facility by contracting with Spotless, a catering business, to operate the canteen. Visy paid a pre-determined amount to Spotless for the provision of this service which was structured in a way which permitted Spotless to charge reduced prices to employees and still make a profit from the operation. The means by which the canteen service was provided by Visy had changed over the years, with different service providers, opening and closing times, items available for purchase and means by which prices were subsidised. 2
[3] In February 2017, in the context of enterprise bargaining, Visy sought the agreement of employees to close the canteen, without success. The Agreement took effect on 31 July 2017. Visy subsequently again sought agreement to the closure of the canteen, but this was rejected in a vote of employees in September 2017. On 24 October 2017 Visy advised that it had decided to close the canteen and that its catering contract with Spotless would be terminated from 15 December 2017. The canteen subsequently closed, and Visy made alternative arrangements for the provision of food and beverages. It is not necessary for present purposes to detail these except to say that employees consider that the food is now generally more expensive, there are less food choices and access to food is less convenient.
[4] The AMWU’s s 739 application, which was lodged on 22 November 2017, stated that the dispute was about the following matters:
“1. The Respondent operates a factory at Broadmeadows. The Applicant is a union representing employees at that site. The [Agreement] governs the employment of those employees.
2. The Respondent maintains a canteen at the Broadmeadows site, and has done so for several years. The canteen sells food and beverages at subsidised prices to employees.
3. The Respondent has stated that it will close the canteen.
4. Clause 13.2 of the Agreement states:
The Company shall not modify, remove or reduce any service or facility that has been provided without the agreement of the majority of Employees and their representatives, provided that the facilities are not being deliberately misused, abused, damaged or defaced by Employees.
5. The canteen is a “service or facility” provided by the Respondent. The agreement of a majority of employees and their representatives to remove the canteen has not been obtained. The canteen is not being deliberately misused, abused, damaged or defaced.
6. The Respondent’s actions to close the canteen contravenes clause 13.2 of the Agreement.”
[5] It should be noted that the AMWU’s application quoted clause 13.2 of the Agreement only in part. In its entirety, clause 13.2 provides:
“13.2 Facilities
The Company shall continue to provide facilities necessary to ensure adequate Occupational Health and Safety and Welfare of its Employees, including the provision of lockers, drinking and boiling water, appropriate protective clothing, heating, cooling and ventilation and rest room facilities. Any disagreements about the adequacy of these facilities shall be dealt with through the Dispute Resolution procedure.
The Company shall make adequate provisions for nominated qualified persons to be available to render First-Aid and be paid the relevant allowance.
The Company shall not modify, remove or reduce any service or facility that has been provided without the agreement of the majority of Employees and their representatives, provided that the facilities are not being deliberately misused, abused, damaged or defaced by Employees.
The Company shall ensure that all facilities provided are maintained in good working and useable order at all times.”
[6] In an outline of submissions lodged in relation to the proceedings on 6 February 2018, the AMWU contended that the canteen, which included the food and beverages actually provided, the physical facilities within which they were provided, the subsidised pricing arrangement pursuant to which food and beverages were offered to employees, and the time span in which the services were offered, constituted a “facility” to which clause 13.2 of the Agreement applied, and that the closure of the canteen without employee consent constituted a contravention of clause 13.2. It was not contended by the AMWU that the “facility” consisted of or included the provision of the canteen service by Spotless or the continuation of the contractual arrangement between Visy and Spotless.
[7] In a preliminary decision issued on 23 August 2018, 3 the Commissioner dealt with the question as to whether the canteen constituted a facility to which clause 13.2 of the Agreement applied. The Commissioner’s conclusion was as follows:
“[44] Clause 13.2 of the Agreement covers “the canteen” including the physical facilities and equipment in the canteen area as well as the supply of food through the canteen to employees on the day shift, but only to the extent that it is about permitted matters within the meaning of section 172 of the Act.”
[8] The question about whether clause 13.2 was about permitted matters appears to have been raised by the Commissioner herself in this decision rather than by any contention advanced by the parties. After stating this conclusion the Commissioner directed the parties to file further submissions in the following terms:
“[45] The parties are directed to file any further submissions on whether, and the extent to which, the prohibition in clause 13.2 on any modification, reduction or removal of the food service provided by Spotless, or the subsidy provided by Visy, is about permitted matters by no later than 6 September 2018. Any reply submissions must be filed by no later than 13 September 2018.”
[9] It may be noted that the “permitted matters” issue identified by the Commissioner was directed at the food service provided by Spotless and, inferentially, the subsidy provided to Spotless.
[10] In submissions filed pursuant to this direction, the AMWU relevantly submitted (italics added):
“6. Nothing in clause 13.2 requires the Respondent to enter into any contract with a third party. All that is required is that the Respondent obtain agreement prior to modifying, reducing or removing a service or facility. The Respondent is free to make whatever arrangements it wishes in terms of the procurement of the service or facility. Whether the Respondent contracts with a third party, and what terms of that contract are agreed, are matters outside the scope of clause 13.2. What clause 13.2 requires is the maintenance of the service or facility for the benefit of the workers.”
[11] Section 172 of the FW Act provides:
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer's employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.
[12] Section 253(1) relevantly provides:
(1) A term of an enterprise agreement has no effect to the extent that:
(a) it is not a term about a permitted matter;...
. . .
The Decision
[13] In the Decision the Commissioner commenced her analysis of the permitted matters question by referring to a number of the relevant authorities, including Electrolux Home Products Pty Limited v Australian Workers’ Union, 4 Wesfarmers Premier Coal Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2),5 Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited6 (Cram) and United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board7 (UFU v MFB). The Commissioner quoted a passage from the last-named decision as follows:
“A matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.” 8
[14] The Commissioner then considered the catered food service previously provided by Visy, and said (footnotes omitted):
“[19] The catered food service contributed to the environment in which day shift employees worked, but it was not a necessary requisite, attribute, qualification, environment or other circumstance affecting the employment. It was not, for example, necessary in the way that provision of water or meal preparation or eating facilities would ordinarily be necessary to ensure employee occupational health and safety at the workplace. It was not the sole, or even primary, means by which employees on day shift could avail themselves of a meal.
[20] I also do not consider that the catered food service was a reward for employees’ work. Employees were not rewarded any more or less for their work as a consequence of their access to, and/or use or non-use, of the canteen. Employees on day shift had the option of access to cheap food through the canteen, a result that could equally be achieved by bringing meals from home.
[21] A term of the Agreement requiring Visy to maintain the catered food service without modification would amount to a requirement that Visy ensure Spotless’s continued provision of three workers to staff the canteen(s). In my view, mandating the provision of a third party workforce to provide onsite catering does not sit comfortably within the sphere of the employment relationship.
[22] For these reasons, I am not satisfied that an obligation to maintain the catered food service under clause 13.2 directly affected the conditions of employees in their capacity as employees of Visy covered by the Agreement. It did not affect any necessary requisite, attribute, qualification, environment or other circumstance affecting their employment directly. It affected day shift employees indirectly when, and if, they chose to be customers of the canteen(s). It did not affect or relate to work done, or to be done by those employees. It was not a matter pertaining to the employment relationship between them.”
[15] In relation to the subsidy arrangement, the Commissioner concluded:
“[23] For the same reasons, the obligation to maintain a subsidy arrangement between Visy and Spotless was similarly remote from the sphere of the employment relationship between Visy and its employees. Visy was clearly directly affected by the arrangement as the entity responsible for payment and because, on account of the payment, it received a promise from Spotless to operate the canteen(s). Spotless was also directly affected by the payment arrangement as the beneficiary of the payment and provider of services to Visy in return.
[24] Employees on day shift could choose to be affected by Visy’s obligation to maintain the subsidy arrangement, because that arrangement allowed the canteen(s) to continue to operate despite low levels of use at the site. It gave them the option of access to food and drink at lower than retail prices. However, that effect was indirect, consequential and remote to their relationship of employment. It did not affect or relate to work done, or to be done, by employees covered by the Agreement. To the extent that it did affect employees, it was in their capacity as customers of the canteen.
[25] I find that the obligation to maintain the subsidy arrangement was not a matter pertaining to the employment relationship between Visy and employees covered by the Agreement.”
[16] The Commissioner then stated the following overall conclusions:
“[26] Visy’s obligations under clause 13.2 of the Agreement to maintain, without modification, the catered food service and the subsidy arrangement, are not about matters pertaining to the employment relationship between Visy and employees covered by the Agreement.
[27] No party contended that either the catered food service or the subsidy arrangement were instead about matters pertaining to the relationship between the employer and either of the unions covered by the Agreement, or about deductions from wages or how the agreement will operate. I find that they were not.
[28] To the extent that clause 13.2 of the Agreement prohibited any modification, reduction or removal of the catered food service provided by Spotless, or the subsidy provided to Spotless by Visy, it was not about permitted matters.
[29] The result is that Visy was not required to maintain either the catered food service provided by Spotless or the subsidy arrangement it had negotiated with Spotless to provide that service.
[30] The dispute is determined accordingly.”
Appeal submissions
[17] The AMWU submitted that:
• the Commissioner erred in concluding that clause 13.2 was not about a permitted matter on the basis that it would require Visy to ensure that Spotless continue to staff the canteen, because nothing in the clause required the maintenance of the particular contractual relationship between Visy and a third party;
• Visy could have engaged a different hospitality provider or directly staffed the canteen without falling short of its obligations;
• the Commissioner also erred by mischaracterising the benefit to employees of reduced prices for food and beverages as an arrangement between an employer and a third party;
• the canteen directly affected the conditions of employment of employees, and formed part of the environment affecting employment;
• the Commissioner failed to consider that if contracting out the canteen was sufficient to place it outside the realm of permitted matters, then any employee benefit could be negated as a permitted matter by contracting out the provision of the benefit to a third party;
• alternatively, it was not uncommon for enterprise agreements to include terms that, at least in their implementation, imposed obligations on employers to contract with a third party in relation to, for example, uniforms, training, vehicles, tools or employee assistance programs, and thus was not sufficient by itself to make these non-permitted matters;
• employees were not rewarded more or less for their work because of use of the canteen, and could access meals by bringing food from home, were irrelevant considerations;
• the availability of cheap and convenient food was plainly a benefit to employees, and it was incorrect to say that employees accessed the subsidised prices in their capacity as customers rather than employees;
• the canteen directly affected employees in the same way as other workplace amenities such as crib rooms;
• the subsidised prices could have been delivered in a number of ways other than the direct subsidy payment to Spotless, and viewing the benefit in the way the Commissioner did obscured the connection of the subsidy to the employment relationship.
[18] Visy submitted that:
• the appeal did not raise any matters of importance or general application justifying the grant of permission to appeal;
• it was the AMWU itself which characterised the provision of the canteen as including the service provided by Spotless and subsidised by Visy, and it needed to do so otherwise the procedural requirements in clause 13.2 would not apply;
• the Commissioner was correct to conclude that employees accessing the canteen was not a benefit derived in the capacity of employee; it was rather derived from the fact that the person was at the site during the opening hours of the canteen and therefore only had an indirect, consequential and remote relationship to the employment;
• the Commissioner correctly applied the requirements of s 172 to clause 13.2, and in doing so determined whether the obligation under the clause was indirect, consequential and remote rather than whether it had the effect of imposing requirements for payments to a third party;
• the Commissioner did not take into account irrelevant considerations;
• the catered food service was available during the hours of 7.00am to 2.00pm to “the public and by virtue of a person being present” on the Broadmeadows site, including guests and visitors, union delegates and employees, and could not therefore be said to be a reward for employees’ work;
• access to the canteen was not given as a reward or as a result of meeting a certain standard of work, but operated independently of any such relationship between Visy and the employee;
• the only parties directly affected by the food service provided by Spotless and the subsidy paid by Visy to Spotless were Visy and Spotless, and there was no privity of contract between the employees (or the AMWU) and Spotless; and
• the Commissioner was correct to conclude that the payment of the subsidy by Visy to Spotless was not a matter pertaining to the employment relationship as required by s 172 of the FW Act.
Consideration
[19] It is convenient to identify at the outset three matters which were not the subject of contest between the parties in the appeal. First, there was no challenge to the Commissioner’s conclusion in her earlier decision that the canteen service, in the way characterised in the AMWU’s submissions of 6 February 2018, was a “facility” to which the third paragraph of clause 13.2 of the Agreement applied. Second, there was no disagreement between the parties that the disputes settlement procedure in the Agreement authorised the Commissioner to determine whether clause 13.2 was about a “permitted matter” within the meaning of s 172. Third, the AMWU did not submit that clause 13.2 was authorised by s 172(1)(b), (c) or (d). Accordingly the only question to be determined in the appeal is whether the third paragraph of clause 13.2, in its application to Visy’s former canteen service at the Broadmeadows site, was about a “permitted matter” within the meaning of s 172(1)(a) - that is, whether it was about any matter pertaining to the relationship between Visy and its employees covered by the Agreement.
[20] As was explained by the Full Bench in the decision in UFU v MFB, by reference to the Explanatory Memorandum for the Fair Work Bill 2009, the “matters pertaining” formulation in s 172(1)(a) was intended by the legislature to be read in line with the jurisprudence concerning the same or similar expressions used in federal industrial relations legislation from 1904 to 2006 to define “industrial dispute” and also used in such legislation from 1988 to 2006 to prescribe the permissible content of collective agreements. 9 The relevant principles which may be derived from that jurisprudence (particularly that of the High Court) are as follows:
(1) It is only matters which affect employers and employees in their capacity as such which pertain to the relations of employers and employees. 10
(2) For a matter to pertain to the employment relationship, it must have a sufficient direct effect on the employment relationship, and an indirect, consequential and remote effect on the relationship will not be sufficient. 11
(3) Matters pertaining to the employment relationship extend beyond the contract of employment and its incidents and the work done under it. This encompasses not only the terms but also the conditions of the employment, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment. 12
(4) Matters of an academic, political, social or managerial nature will not pertain to the employment relationship. 13 However management decisions do not stand wholly outside the area of industrial matters, and many management decisions may directly affect the relationship of employer and employee.14
[21] In applying these principles, it is necessary to start by characterising what is the subject matter of the third paragraph of clause 13.2. It must be read in the context of the clause as a whole, which is concerned generally with the provision by “The Company” (i.e. Visy) of facilities which are of necessary benefit to the occupational health and safety and the welfare of the employees covered by the Agreement. Having regard to this context, and endeavouring to assign it a practical industrial meaning, we consider that it is evident that the purpose of the third paragraph of clause 13.2 is to require Visy to maintain beneficial services and facilities to employees covered by the Agreement unless otherwise agreed to by a majority of employees and their representatives or unless those services or facilities are misused by employees in the ways described.
[22] As is apparent from the passages of the Decision which we have earlier quoted, the Commissioner approached the characterisation of the provision on the basis that, insofar as the canteen service was currently provided by Spotless under a particular commercial arrangement with Visy (which included the subsidy payment), its effect was to require Visy to continue to engage Spotless to provide the canteen service under that commercial arrangement. If that was what clause 13.2, properly construed, actually required, then it would be correct to conclude, as the Commissioner did, that it does not pertain to the employment relationship in that respect.
[23] However, with respect, we consider that the Commissioner erred in her construction of clause 13.2 and thus mischaracterised the relevant subject matter of the provision. While the provision is concerned with the maintenance of services and facilities of benefit to employees, it contains no requirement as to the means by which those services and facilities are to be provided. As the AMWU submitted at first instance, the relevant service or facility previously provided to the employees by Visy consisted of the physical environs and facilities of the canteen area, the food and beverages supplied, the service by which the food and beverages were sold to employees, the subsidised prices that were charged, and the time span in which the canteen operated. Visy’s obligation under clause 13.2 was to maintain the facility in these respects, but it was not obliged to continue to engage Spotless under the same commercial arrangement in order to do this. It could have met its obligation under the provision by engaging other contractors on different commercial arrangements, by providing the canteen service in-house, or by some other means or combination of means, provided that the level of benefit to employees was maintained.
[24] It was not the case, as Visy submitted in the appeal, that the Commissioner proceeded upon the basis of the case advanced by the AMWU. To the contrary, the submissions of the AMWU as earlier set out expressly disavowed any contention that its claim that Visy had contravened clause 13.2 involved any requirement to retain Spotless as the service provider under the current commercial arrangement.
[25] This error in the characterisation of the relevant subject matter of the third paragraph of clause 13.2 caused the Commissioner’s analysis of whether the matter pertained to the relations of Visy and its employees covered by the Agreement to miscarry. On one view, that would be sufficient to conclude that permission to appeal should be granted and the Decision quashed. However, the Commissioner expressed a number of conclusions concerning whether the provision was about a “matter pertaining” which were arguably independent of this characterisation, so for completeness we will deal with those.
[26] First, in paragraph [19] of the Decision, which we have earlier set out, the Commissioner appears to have applied a test of necessity in determining that the relevant part of clause 13.2 was not about a “matter pertaining”. This test was derived from the passage from UFU v MFB which was quoted in the Decision (see paragraph [13] above), which was derived from the High Court decision in Cram 15 and had its ultimate origin in the earlier High Court decision in Australian Tramway Employes Association v Prahran & Malvern Tramway Trust.16 We have incorporated it in the third of the four principles derived from the High Court authorities in paragraph [20] above. Whatever the word “necessary” means in that passage, none of the High Court authorities supports the proposition that the “matters pertaining” formulation requires an assessment of whether the matter is “necessary” for some purpose in order to conclude that it pertains to the relations of employer and employees. Certainly there is nothing in the language of s 172(1)(a) of the FW Act which supports such an approach.
[27] Second, in paragraph [20], the Commissioner considered whether the catered food service was a “reward for employees’ work”, and concluded that it was not because employees had the option of bringing their own meals from home rather than buying cheap food from the canteen. This was, with respect, a non sequitur. The capacity to access a catered service at work providing food and beverages at subsidised prices did not cease being a benefit to employees arising from their employment because they had the option not to use it.
[28] Third, in paragraph [24] of the Decision, the Commissioner determined that a requirement to maintain the price subsidy only affected employees in their capacity as customers of the canteen. We respectfully disagree. The evidence demonstrated that the primary purpose of the subsidised prices at the canteen facility was to provide a benefit to Visy’s employees (including but not limited to those employees covered by the Agreement). To the extent that employees utilised the canteen service and availed themselves of the subsidised prices, they could only do so in their capacity as employees of Visy and not in any other capacity. The canteen service was not open to the public at large. The fact that Visy, as an incident of its operation, also allowed the canteen to be accessed by authorised visitors to the Broadmeadows site did not alter the capacity in which employees were entitled to use the facility.
[29] In our view, to the extent that clause 13.2 required Visy to maintain the benefit of the canteen service, including its subsidised prices, that was a matter which plainly pertained to the relationship between Visy and the employees covered by the Agreement. It constituted a benefit which Visy was required to provide to those employees as part of the package of remuneration and other beneficial conditions of employment which employees received for the performance of their duties. There is nothing at all unusual about provisions in awards and agreements requiring employers to provide employees with meal facilities and meals, including free meals, in prescribed circumstances. The fact that Visy chose to use a third-party contractor to enable it to provide that benefit does not alter its characterisation as a “matter pertaining”. Employers commonly use contractors for the provision of fundamental employment entitlements such as the calculation and payment of remuneration, the provision of training, the supply of work uniforms and safety equipment and the establishment and/or maintenance of work-site facilities such as meal rooms and toilets, and none of the authorities support the proposition that any of these cease to be “matters pertaining” for that reason.
[30] The nature of the appealable errors we have identified, which resulted in the AMWU’s s 739 application being dismissed without being dealt with to finality, are such as to justify the grant of permission to appeal. The appeal will be upheld and the Decision quashed. The matter will be remitted to the Commissioner to be dealt with to finality. That will require the Commissioner to determine whether the current arrangements, in terms of the physical environs and facilities of the canteen area, the food and beverages supplied and their prices, and the means by which and the times at which those food and beverages are supplied, are less beneficial to employees compared to the catered food service which operated until 15 December 2017 to the extent that there has been a contravention of clause 13.2 of the Agreement.
Conclusion
[31] The appeal is determined as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWC 6268) is quashed.
(4) Matter C2017/6449 is remitted to Commissioner McKinnon to deal with to finality in accordance with these reasons for decision.
VICE PRESIDENT
Appearances:
N. Grealy for AMWU
A. Farr for Visy Packaging Pty Ltd
Hearing details:
2018.
17 December:
Melbourne.
Printed by authority of the Commonwealth Government Printer
<PR703586>
1 [2018] FWC 6268
2 Decision at [16]-[17]
3 [2018] FWC 4953
4 [2004] HCA 40, 221 CLR 309
5 [2004] FCA 1737, 138 IR 362
6 [1987] HCA 28, 163 CLR 117
7 [2016] FWCFB 2894, 258 IR 22
8 Ibid at [26]
9 [2016] FWCFB 2894, 258 IR 22 at [21]
10 Electrolux Home Products Pty Limited v Australian Workers’ Union [2004] HCA 40, 221 CLR 309 at [9] per Gleeson CJ, at [60] per McHugh J; at [161] per Gummow, Hayne and Heydon JJ; Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34, 181 CLR 96; R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57, 127 CLR 353; R v Kelly; Ex parte State of Victoria [1950] HCA 7, 81 CLR 64 at 84
11 Electrolux Home Products Pty Limited v Australian Workers’ Union [2004] HCA 40, 221 CLR 309at [10] per Gleeson CJ and at [89] per McHugh J; R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57, 127 CLR 353 at 362 per Menzies J; R v Kelly; Ex parte Victoria [1950] HCA 7, 81 CLR 64 at 84
12 R v Findlay; Ex parte The Commonwealth Steamship Owners’ Association [1953] HCA 81, 90 CLR 621 at 630; Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited [1987] HCA 28; 163 CLR 117 at 134
13 Electrolux Home Products Pty Limited v Australian Workers’ Union [2004] HCA 40, 221 CLR 309at [60] per McHugh J and at [245] per Callinan J
14 Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited [1987] HCA 28; (1987) 163 CLR 117 at 134
15 [1987] HCA 28, 163 CLR 117 at 134
16 [1913] HCA 53, 17 CLR 680 at 693
0
10
0