Australian Municipal, Administrative, Clerical and Services Union v Menzies Aviation (Australia) Pty Ltd

[2013] FWC 1833

[2013] FWC 1833

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Menzies Aviation (Australia) Pty Ltd
(C2012/5249)

COMMISSIONER GREGORY MELBOURNE, 8 JULY 2013

Alleged dispute concerning implementation and payout of buddy allowance.

Introduction

[1] This matter concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) to deal with a dispute in accordance with s.739 of the Fair Work Act 2009 (Cth) (the Act) and clause 11 of the Customer Service Employees (Menzies Aviation) Enterprise Agreement 2011 1(the Agreement). The Respondent is Menzies Aviation (Australia) Pty Ltd (the Respondent). The dispute concerns the provisions in clause 13.3 of the Agreement dealing with the entitlement to a so-called “Buddy Allowance.” The Applicant was represented by Mr Justin Cooney from the Australian Municipal, Administrative, Clerical and Services Union (the ASU). Ms P. Salewicz and Ms F. Rodriguez from the Australian Industry Group (AiG) appeared on behalf of the Respondent.

The Issue in Dispute

[2] Clause 13.3 of the Agreement states:

“13.3 Buddy Allowances:

a) An employee will be paid a buddy trainer allowance where the employee is participating in a formal buddy-training program, which requires the employee to provide on the job instruction to another employee to perform duties, classified at the same level as the employee providing the instruction.

b) The allowance will be paid for each day or shift or part thereof, on which the employee performs as a buddy trainer.

c) The buddy allowance payable will be as follows:

- From the first full pay period after approval of this agreement - $12.67 per day); $13.05 on the first anniversary and $13.44 on the second anniversary after approval of this agreement.” 2

[3] This is the first time this provision has been included in an Agreement between the parties. The Applicant submits the allowance is intended to be paid to any employee who is participating in the formal buddy training program and is required to provide buddy training to another employee, whenever that training is provided at the same substantive level as the employee providing the training. In other words it is to be paid when an employee is being trained to perform work at the same level as the employee providing the training.

[4] The Respondent has a different view. It submits the allowance is only to be paid when an employee providing buddy training is in receipt of the same or a lower rate of pay than the employee receiving the training. It is paid in those circumstances in recognition of the fact the employee is providing the training to another employee paid at the same or a higher rate of pay. In its submission, in all other circumstances, the employee’s classification level already recognises a responsibility to provide training to employees on lower pay rates. The buddy allowance is accordingly not payable in those circumstances.

[5] The issue to be determined, therefore, is whether the Agreement provides for the allowance to be paid at any time an employee is providing training at his/her substantive level equivalent, as claimed by the Applicant, or is it only to be paid when the employee is providing buddy training to another employee in receipt of the same or a higher pay rate, as the Respondent claims.

The Submissions and Evidence

[6] The Applicant submits the particular words in contention in clause 13 are those contained in 13.3(a) being:

“...which requires the employee to provide on the job instruction to another employee to perform duties, classified at the same level as the employee providing the instruction.” 3

[7] It submits the proper interpretation of the clause turns on the word “classified” and whether “classified” references back to “duties”. In its submission the normal reading of the clause qualifies the meaning of “duties” to the duties of the employee providing the instruction. It submits if the sub-clause were to be construed in the way claimed by the Respondent then it would state:

“....which requires the employee to provide on the job instruction to another employee, classified at the same level as the employee providing the instruction, to perform duties.” 4

[8] Ms Linda White, the Assistant National Secretary of the Australian Municipal, Administrative, Clerical and Services Union gave evidence in support of the application. She indicated she has had carriage of numerous enterprise agreement negotiations on behalf of members employed in the airline industry, including those employed by the Respondent. Bargaining about the current Agreement began early in 2011 and continued throughout the year, and the claim for the buddy training allowance was one of the claims pursued for that agreement.

[9] Ms White said the clause in the current agreement is similar to clause 32 in the Australian Services Union (Qantas Airways Limited) Agreement 9 5 and is paid under that Agreement when training is provided in regard to duties normally performed by the buddy trainer at his/her classification level. This occurs regardless of the level that the employee being trained is classified at. Payment is not dependent on the trainee being classified at the same level as the buddy trainer, although this can occur.

[10] She stated the claim for the allowance was made in response to concerns from members that training in the airline industry was changing from being predominantly classroom based to more on-the-job training. Members were accordingly concerned they were not being rewarded for training other employees in this way. In her view the Respondent’s bargaining representatives had adequate opportunity during the course of the negotiations to understand the nature of the claims being pursued and she recalled them indicating they understood the rationale for the claim for payment of the buddy allowance and were prepared to consider it as part of any final agreement.

[11] She believed the suggestion the allowance was only payable where the trainer receives the same or a lower rate of pay than the trainee was inconsistent both with a proper reading of the sub-clause and with how the provision was applied in the Qantas agreement. In her view it was payable where there is a formal training program that requires on-the-job instruction and the training involves duties classified at the same level as the instructor, being the employee in receipt of the allowance.

[12] Ms White also indicated in her examination in chief the draft clause provided by the ASU to the Respondent did not have a comma after the word “duties” in clause 13.3(a) and to the best of her knowledge it had not been inserted at the initiative of the ASU. She had, in fact, only realised recently that the Agreement had been approved with the comma included.

[13] In her responses in cross-examination Ms White said she could not recall the Respondent saying during the EBA negotiations that employees were already being compensated for providing training to other employees because it was encompassed in their pay rate. She also said she explained in the negotiations how the buddy allowance clause operated at Qantas. However, she also acknowledged when she provided the wording of the proposed clause in an email to the Respondent she did not include an explanation at that time about how the sub-clause applied. She also acknowledged she had received an email from Mr Moodley dated 13 December 2011 with an attached memo outlining his view about how the changes in the Agreement were to apply.

[14] The Applicant submits the proper approach to the interpretation of enterprise agreements is set out in the Full Bench decision of Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union 6. The Full Bench referred to the decision of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union7 (Wanneroo) in regard to the general approach to the construction of enterprise agreements when his Honour stated:

“[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘...ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).” 8

[15] It submits that whilst those observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements and the fact that the instrument being construed is an enterprise agreement is of itself an important consideration. In this context it again referred to the decision of French J in Wanneroo at paragraph [57]:

“[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities –City of Wanneroov Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said inCity of Wanneroov Holmes (at 380):

‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’” 9

[16] The Applicant also indicated in its closing submissions that regardless of how the comma came to be inserted after the word “duties,” the words “classified at the same level as the employee who provided the instruction” continue to refer back to “the duties,” and not to anything else within the sub-clause. 10 It submits that in interpreting the sub-clause the Commission is primarily required to give ordinary or well understood words their ordinary or general meaning, and not take a pedantic approach, and its interpretation was consistent with this intention.

[17] The Respondent submits the proper interpretation to be placed on sub-clause 13.3 is that a customer service officer is entitled to the allowance when they provide buddy training to an employee classified at the same level. In its submission “classified at the same level as the employee providing the instruction” in the sub-clause referred to the employee receiving the training and not to the “duties”. It noted that approximately 20 per cent of the buddy training that takes place involves employees classified at the same level as the trainee. This commonly occurs where employees are being moved between different airlines and the trainee needs on-the-job training in those new systems and procedures.

[18] It also submits the fact the clause is applied in a certain way in an agreement at Qantas is irrelevant as there is nothing that requires an expression in an industrial agreement to be interpreted the same way in another. It also notes that the sub-clause in the present matter has a comma after the word “duties”, unlike the clause contained in the Qantas agreement.

[19] It also submits that if the Commission is of the view that the interpretations relied on by the Applicant and the Respondent are both in line with the ordinary meaning of the clause then the Commission must find the meaning is ambiguous. The critical issue then must be which interpretation is appropriate given the context of the Agreement as a whole and the objective framework of facts concerning how it was negotiated. In its submission the context for the clause is found in the classification structure and the duties to be performed by employees which at Level 3 to Level 8 include a requirement to “conduct on the job training as the need arises”. 11 This means that customer service officers are already compensated for conducting buddy training as part of their wage rate. The allowance was therefore only intended to apply when the employee was being paid at the same rate. It submits this reason is discernible from the objective framework of facts surrounding the negotiations for the Agreement. In its submission given the totality of the evidence there is no reasonable conclusion that can be reached on the facts other than that the objective intention of the sub-clause was to compensate employees providing buddy training where they would otherwise be paid the same wage rate or less than the employee they were training.

[20] Mr Darren Masters is the Vice President of Finance for the Oceania region and a Director of Menzies Aviation (Australia) Pty Ltd and led the negotiations on behalf of the Respondent for the current Agreement. He had final responsibility for what it could agree to in those negotiations. His recollection of the explanation provided for the inclusion of the buddy allowance was that it was sought to compensate employees being asked to provide training to other employees classified at the same level. He indicated he agreed to the claim on this basis, and believed that in other circumstances employees were already being compensated for providing training to employees at lower classification levels.

[21] He stated that after agreeing to consider the inclusion of the allowance in the agreement Ms White provided details of the rates being sought, indicating they were based on rates contained in an agreement that applied at Qantas. He said he then asked the operations team to indicate how many shifts would attract the buddy allowance, based on his understanding of how it was to be applied, and calculated its overall impact would result in an 0.14 per cent increase in wage costs. He also indicated the Applicant’s interpretation of how it should be applied would increase that amount by at least 4 and a half times.

[22] He said Ms White did not indicate at any stage how the sub-clause was intended to be applied, nor did she indicate how it applied at Qantas. He also indicated in his examination in chief he was not aware of how the comma came to be included after the word “duties”, and confirmed in cross-examination he had no recollection of Ms White providing an explanation during the negotiations about how the sub-clause applied in the Qantas agreement.

[23] Mr Kogilan Moodley is the Respondent’s Human Resources Manager and has been in that role since 2006. He was directly involved in the negotiations for the current agreement and recorded notes of the discussions at the meetings. He also briefed relevant managers about progress in the negotiations. He could not recall when the claim for the buddy allowance was first raised by the Applicant, or what was said at the time, but understood the Respondent agreed to pay the allowance when a customer service officer provided on-the-job instruction to an employee classified at the same pay level. This was based on what he understood had been indicated in the negotiations about why employees wanted the allowance.

[24] He recalled Ms White suggesting the buddy allowance clause from the Qantas agreement be used but could not recall Ms White telling him, or anyone else, how it applied at Qantas. He indicated the Respondent subsequently agreed to the clause on the basis that it acknowledged it was appropriate to provide some additional compensation to employees involved in training other employees on the same pay level.

[25] He also stated that at the conclusion of the negotiations he prepared a memo which was subsequently distributed to customer service officers explaining the changes in the new agreement, including reference to the buddy allowance, in the following terms:

• “Payable where the employee is participating in a formal buddy–training program



• Employee provides on the job instruction to another employee classified at the same level.” 12

[26] He subsequently emailed a copy of that memo to Ms White on 13 December 2011, as well as to Sharon Sanchez, who had also been involved in the negotiations on behalf of the Applicant. Mr Moodley also indicated in his examination in chief he did not recall how the comma came to be inserted in the sub-clause after the word “duties”. He then went on in cross-examination to state that in the time he had been in the role of Human Resources Manager the mix of training provided to customer service officers between classroom or on-the-job training had remained constant. He was also not aware of how customer service officers are allocated to provide buddy training.

[27] Mr Daryl Sullivan was employed by the Australian Industry Group as a Senior Adviser – Workplace Relations until March 2012 and up to that point represented the Respondent in regard to its industrial relations issues, including involvement in enterprise negotiations. He indicated he was directly involved in the negotiations for the current agreement and attended the negotiation meetings, gave advice, drafted clauses and liaised with the union. He recalled the buddy allowance claim being raised during the negotiations, and later being agreed to, but given the passage of time could not recall what was said in those negotiations.

[28] In terms of the relevant principles for interpreting enterprise agreements the Respondent submits that the ordinary meaning of a provision in an agreement is only one of the matters the Commission must take into account. In its submission there are a number of other well established principles that are relevant. They are, in summary:

• ordinary or well understood words are, in general, to be accorded their ordinary or usual meaning;



• narrow or pedantic approaches to the interpretation of an agreement are misplaced;



• expressions which have been held to have a particular meaning in one instrument may sensibly and properly be held to mean something else in another;



• it is necessary to consider the context in which the clause appears, which requires considering the entire agreement and other associated documents;



• it is appropriate to take into account evidence of surrounding circumstances to assist in interpreting the agreement if the language is ambiguous or susceptible of more than one meaning;



• it is not appropriate to take into account facts existing when an agreement was made as an aid to construction, unless they were known to both parties.

[29] It referred, in particular, to the following decisions in support of these submissions. Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd 13; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales14; Kenneth Watson & Ors v ACT Department of Disability Housing and Community Services15; Kucks v CSR Limited16 and Short v Hercus17.

[30] It submits, in summary, that the Commission must discern what a reasonable person would believe was the intention of the sub-clause based on the facts about that process of negotiations that are known to both parties. Any facts known only to either the Applicant or Respondent are, in turn, irrelevant as is the parties subjective understanding of how the sub-clause should be interpreted.

Consideration

[31] The legal principles governing the construction of industrial agreements are well known and well established, and have been referred to by the parties in their submissions. In Kucks v CSR Limited 18 Madgwick J held:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 19

[32] Whilst that decision concerned the construction of an award the same approaches been followed in the construction of industrial agreements. In Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd 20 Northrop J held:

“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J, sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.” 21

[33] In United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board 22 a Full Court of the Federal Court in dealing with a dispute resolution clause in a certified agreement stated:

“[51] The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.

[52] A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in "legal niceties or jargon."; see Kucks at 184.

[53] Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made. .” 23

[34] In CPSU, the Community and Public Sector Union v Telstra Corporation Ltd 24 a Full Bench of the Australian Industrial Relations Commission, as it then was, summarised the principles dealing with ambiguity in agreements in stating:

“[33] The judgement of the High Court in Codelfa Constructions Pty Ltd v State Rail Authority (NSW) established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:

‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.’

[34] In BP Australia Pty Ltd v Nyran Pty Ltd Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;



• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;



• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;



• the concept of surrounding circumstances is to be understood to be a reference to the objective framework of facts. It will include:



• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;



• facts so notorious that knowledge of them is to be presumed;



• evidence of a matter in common contemplation and constituting a common assumption.

[35] After referring to the foregoing points of principle Nicholson J continued as follows:

‘From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.’” 25

[35] I am satisfied the principles set down in these decisions are those that must be applied to determine the present matter. They require that ordinary or well understood words are given their ordinary or usual meaning. Where that meaning can be evidently discerned the Commission’s role is not to give effect to some other notion about what might be perceived to be fair or just or reasonable. The language of the agreement should not be contradicted when it has a plain meaning. However, if the language is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances, or the “objective framework of facts,” can be admissible to assist in that process of interpretation.

[36] Clearly the parties have a different view about the intent of sub-clause 13.3(a). The evidence of Ms White for the Applicant is that the buddy allowance claim was pursued in the negotiations because employees were concerned about being required to provide a greater amount of on-the-job training to other employees. This was said to be a consequence of a shift in the approach to training from one based on classroom training to a greater reliance upon on-the-job training. Ms White subsequently proposed a clause based on wording from an agreement that applies to ground staff employed at Qantas. Her evidence is that the sub clause was intended to apply in the way it applies at Qantas and this understanding was clearly conveyed to and understood by the Respondent.

[37] The Respondent’s evidence is the claim for the buddy allowance was motivated by employee concerns about being asked to provide training to other employees classified and paid at the same level, without any additional compensation being provided. The evidence of Mr Masters was the claim, made on that basis, had some merit and was subsequently agreed to. In all other circumstances, however, the Respondent believed employees were already being compensated for providing training to other employees. The evidence of Mr Moodley also indicated he was not aware of any shift in the nature of training from classroom based to “on-the-job”. The Respondent’s evidence also indicated it was aware the wording from the buddy allowance clause came from an agreement at Qantas, however, it was not aware of how the allowance applied to those employees, and no explanation was provided by the Applicant in the negotiations about the application of the agreement at Qantas.

[38] The sub-clause dealing with the buddy allowance is contained within clause 13 “Employer and employee duties” in the Agreement. Sub-clause 13.1 deals with the duties an employee might be directed to carry out. Sub clause 13.2 deals with requirements to coach:

“...other staff on a one to one basis by the use of personal instruction and demonstration. Coaching may be used as a consolidation of more formalised classroom training. Without the consent of the employee coaching will not be required unless the employee has twelve months experience at the level of the position.” 26

[39] Sub-clause 13.3 then contains the buddy allowance provision which deals with participation in the formal buddy trainer program. This is clearly a more formal and structured program of training as opposed to the coaching of staff dealt with in sub-clause 13.2.

[40] I have considered the words contained in sub-clause 13.3(a) and the context in which they appear in the Agreement. I have also considered the respective interpretation the parties submit should attach to those words. I am satisfied, however, that the words as set out in the subparagraph have a plain and well understood meaning and can only be interpreted in one way. Given this finding, and the authorities I have referred to, I am satisfied the words should be accorded what I consider to be their ordinary or usual meaning, despite the respective submissions of the parties.

[41] The sub-clause indicates the allowance applies where an employee is required:

“...to provide on the job instruction to another employee to perform duties, classified at the same level as the employee providing the instruction.” 27

[42] I am satisfied “... classified at the same level as the employee providing the instruction” on a plain and ordinary meaning of those words clearly refers to the “duties” and not to “another employee.” In my view this is clear and well understood, regardless of the inclusion or otherwise of a comma after the word “duties”.

[43] I am also satisfied, as the Applicant contends, that if the sub-clause was to be given the meaning attributed to it by the Respondent it would clearly be expressed in a different way. It would, for example, provide for the allowance to be payable in circumstances where an employee is required “to provide on-the-job instruction to another employee classified at the same level as the employee providing the instruction.”

[44] However, it is not expressed in this way and accordingly I am satisfied its plain and ordinary meaning indicates it is intended to be applied in the way the Applicant contends. It follows, in conclusion, that the buddy allowance in clause 13.3(a) of the Agreement is to be paid when an employee is participating in a formal buddy training program which requires him/her to provide instruction to another employee concerning duties classified at the same level as the employee providing the instruction.

COMMISSIONER

Appearances:

Mr J. Cooney from the Australian Municipal, Administrative, Clerical and Services Union appeared on behalf of the Applicant.

Ms P. Salewicz and Ms F. Rodriguez from the Australian Industry Group appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

18 March.

 1   AE891356.

 2   Ibid at cl.13.3.

 3   Ibid at cl.13.3(a).

 4   Exhibit C4 at para 31.

 5   AE885997.

 6   [2012]FWAFB 3994.

 7 (2006) 153 IR 426.

 8 Ibid at [53].

 9 Ibid at [57].

 10   Transcript at PN266.

 11   Respondent Outline of Submissions at para 6.6.

 12   Exhibit S3 at para 33.

 13 (1998) 80 IR 208.

 14 (1982) 149 CLR 337.

 15   [2008] AIRC 291.

 16 (1996) 66 IR 182.

 17 (1993) 40 FCR 511.

 18 (1996) 66 IR 182.

 19   Ibid at page 184.

 20 (1998) 80 IR 208.

 21   Ibid at page 212.

 22 [2006] FCAFC 84.

 23   Ibid at [51]-[53].

 24 (2005) 139 IR 141.

 25   Ibid at page 150-151.

 26   AE891356 at cl.13.2.

 27   Ibid at cl.13.3

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