Australian Nursing Federation
[2012] FWA 9905
•20 DECEMBER 2012
Note: An appeal pursuant to s.604 (C2013/2652) was lodged against this decision - refer to Full Bench decision dated 26 March 2013 [[2013] FWCFB 1846] for result of appeal.
[2012] FWA 9905 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Nursing Federation
(AG2012/8449)
Australian Nursing Federation
(AG2012/8450)
Australian Nursing Federation
(AG2012/8453)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 20 DECEMBER 2012 |
Application for Approval of Agreements - Apparent Authority
[1] On 18 October 2012 the Australian Nursing Federation (ANF) made applications for approval of the Essendon Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012, the Malvern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 and the Melbourne Eastern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012.
[2] Earlier applications for approval of the same agreements were rejected. They were rejected because the applications were not made by a bargaining representative 1. Section 185(1) of the Fair Work Act 2009 (‘the Act’) requires the application for approval to be made by a bargaining representative.
[3] The Full Bench described the case as ‘somewhat bizarre’. It concerns three agreements which were negotiated between corporate/local managers or representatives, the ANF and 158 nurses 2 between 21 March and August 2012. In each of the three hospitals procedural steps for the making of agreements took place. Managers sent nurses notices of representation rights, negotiations took place, agreements were drafted and agreed, and sent to nurses. The hospital operational managers meetings were kept informed. Nurses were notified of a time and place of a ballot. Management explained the agreement to them. Ballots were organised, and the ballots approved the agreements. Finally, a senior manager signed the agreements. The Chief Executive could have stopped any one of these procedural steps. He did not because he did not become aware of even one of these steps on even one occasion. He only became aware that the agreements had been approved when an old personal friend sent him an email3. The employers now oppose approval of the agreements on various grounds. They claim that they are not agreements.
[4] Ms.A.Duffy of counsel appeared for the applicant ANF. Mr.K.Bennett of counsel appeared for Kaizen.
[5] The employers in this case are Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (referred to in this decision as ‘Kaizen’), which are, respectively, the operating companies and employers of nurses for Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital. The three companies are part of the Macquarie Health Corporation Group, which is ultimately owned by Dr.Wenkart and his family. Dr.Wenkart is the Chief Executive of the three companies 4.
[6] I endeavoured to encourage Kaizen and the ANF to compromise and settle their differences. They refused to do so.
The Appeal Decision
[7] On 18 October 2012 a Full Bench decided in Kaizen Hospitals (Essendon) Pty Ltd; Kaizen Hospitals (Malvern) Pty Ltd; Kaizen Hospitals (Mount District) Pty Ltd v Australian Nursing Federation 5that:
‘[5] The background to the appeals can be briefly stated as follows. On 8 August 2012, applications for the approval of the Agreements were lodged with Fair Work Australia (FWA). In relation to each application, the application:
- was made in the name of the employing company at the relevant hospital;
- identified SIAG Pty Ltd (SIAG) as the applicant’s representative and Sascha Cook as the contact person for SIAG;
- stated that the applicant company appointed SIAG as its bargaining representative and that Sascha Cook was the contact person for SIAG; and
- was signed by Sascha Cook in the capacity/position as “Employer Bargaining Representative”.
[6] Each application was accompanied by an “Employer’s Declaration in Support of Application for Approval of Enterprise Agreement” (Form F17) signed by Mr Sankar Subramanian, who was identified as the “Hospital Director” on the declaration relating to Kaizen Hospitals (Essendon) Pty Ltd and as “Corporate Manager, Victoria” on the other two declarations. The applications were also accompanied by declarations (Form F18) signed on behalf of the Australian Nursing Federation (ANF) by Ms Lisa Fitzpatrick, the Secretary of the ANF (Victorian Branch), indicating that the ANF had been a bargaining representative for employees covered by the Agreements, that it agreed with the information given by the employers in the F17 declarations, that it supported the approval of the Agreements, and that it wished to be covered by them.
[7] The Deputy President held “Hearings on the Papers in Chambers” in relation to the three matters on 16 August 2012. A Notice of Listing was sent to the contacts named in the applications and the F17 and F18 declarations, and a notification was posted on the FWA hearings list. On 17 August 2012 the Deputy President issued decisions approving the Agreements.
[8] In the Notices of Appeal filed by the Companies, it is alleged that the Deputy President erred in approving the Agreements. This was because the Companies did not agree to the terms of the relevant Agreements, did not appoint the employer bargaining representative (SIAG) which made the applications for the approval of the Agreements, and did not authorise the company representative who made the statutory declarations in support of approval to do so. As a consequence, it was said that the Deputy President reached an erroneous finding that valid applications had been made pursuant to s.185 of the Act.
[9] An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so. Where permission to appeal is granted, the appeal proceeds by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 6.
[10] In the appeal proceedings we were taken to the applications before the Deputy President and the supporting material. It is clear that the negotiations for the Agreements and the applications for the approval by FWA proceeded on the basis that SIAG was the employer bargaining representative. It is now clear that SIAG was not appointed by the Companies as the employer bargaining representative in accordance with the relevant provisions of the Act.
[11] Section 176 of the Act provides for bargaining representatives for a proposed enterprise agreement and their manner of appointment. Section 176(1)(a) relevantly provides that an employer that will be covered by an agreement is a bargaining representative for the agreement. Section 176(1)(d) enables an employer to appoint a bargaining representative and provides:
“A person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.”
[12] Section 178 provides for the commencement of the appointment of a bargaining representative as being the date that is specified in the instrument of appointment. Section 178(2)(b) requires that the instrument of appointment of a bargaining representative made by an employer be given on request to a bargaining representative of an employee. Section 178A provides for the revocation of the appointment of a bargaining representative by “written instrument” - s.178A(1).
[13] Having regard to the abovementioned provisions, it is clear that the Act adopts prescriptive and formal requirements for the appointment of bargaining representatives and that the power of a bargaining representative to represent the employer in negotiations for an enterprise agreement arises from the instrument of appointment. It is fundamental to the exercise of power by a bargaining representative that the appointment has been validly made.
[14] In the present appeals, it is evident that SIAG was not appointed as a bargaining representative for the Companies in accordance with the Act. There was no instrument of appointment or other written document or any other evidence produced in the appeal proceedings to show that SIAG had been appointed as the employer bargaining representative for the Agreements. It must therefore be concluded that SIAG was not a duly appointed bargaining representative of the Companies.
[15] Section 185 of the Act provides that a bargaining representative must apply to FWA for approval of an enterprise agreement where an enterprise agreement is made. Section 185(1) provides:
“Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.”
[16] In relation to the applications for approval, it would be open to conclude on the material before us either that the applications were made by the Companies concerned or that they were made by a person purporting to act as the employer bargaining representative. Whichever view is taken, we do not consider that valid applications were before the Deputy President.
[17] If the applications were made by an employer bargaining representative, then they were made by a bargaining representative who was not validly appointed as such. This is the case whether the application was signed by Ms Cook in the capacity as the employer bargaining representative or on behalf of SIAG. Neither Ms Cook nor SIAG had been so appointed as the employer bargaining representative in accordance with the Act. In the alternative, if the view is taken that the applications for approval were made by the employing companies, the applications were filed with FWA and signed by a bargaining representative who was not duly appointed. In such circumstances, it cannot be concluded that the applications were made by the employing companies as required by s.185(1) of the Act. The mere lodgement of an application in the name of an employing entity but without authorisation to do so is not sufficient to meet the requirements of s.185.
[18] In neither of the scenarios posited above do we consider that valid applications for the approval of the Agreements were made.
[19] In these circumstances, we consider that there were no valid applications for the approval of the Agreements before the Deputy President. The approval procedure and the decisions made to approve the Agreements were tainted by this defect.
[20] For all the above reasons, we decided that it was appropriate in these matters to grant permission to appeal, to allow the appeals and to set aside the approval of the Agreements.
[21] In so deciding, we note that the circumstances of the present appeals are somewhat bizarre. There has been a whole course of negotiations over many months between the ANF and SIAG in relation to the making of enterprise agreements for the three Victorian hospitals. As well as the ANF and SIAG, the negotiations have at times involved at least one person with managerial responsibilities for the operations of the hospitals. However it is noted that this person, after the approval of the Agreements, advised the ANF that he had acted without the approval or authority of the Companies in signing the Agreements. The Companies submitted in the appeal proceedings that they had no knowledge that the enterprise agreements were being negotiated and were unaware that applications had been made to FWA for the approval of the Agreements.
[22] Although we have decided that, because of deficiencies in relation to the applications for the approval of the Agreements, the appeals should be allowed, this should not be taken as any criticism of the Deputy President or the other parties involved. The Deputy President considered and determined applications which on their face were made in accordance with the Act. There was no material or submissions before him to suggest that there were any irregularities or deficiencies in relation to the applications. Further, there is no reason to conclude that the ANF or SIAG acted other than in a bona fide way in the negotiations for the enterprise agreements and in the making of the Agreements. However, in the light of our decision, it would be wise for parties to enterprise negotiations in the future to ensure that the requirements of the Act in relation to the appointment of bargaining representatives are observed and to request a copy of relevant instruments of appointment (see s.178(2)(b)). Consideration might also need to be given to whether the Fair Work Rules 2010 should be amended so as to require documentation in relation to appointments to be provided when an application for the approval of an enterprise agreement is made by a bargaining representative.’
Submissions of the parties
[8] The ANF submitted that all the tests in the Act were met and the agreements should be approved. In particular, it submitted that the employer was a bargaining representative for the agreement pursuant to s.176(1)(a), and that the employer acted as a bargaining representative during the bargaining that occurred through its employees and agents, namely Mr.Subramanian. Section 793 provides that Kaizen can act through the actual and apparent authority of its employees and agents, and under this authority Kaizen acted and the agreements were made. It submitted that Mr Subramanian had acted as an employee within the scope of his actual or apparent authority.
26. An agent has implied actual authority to do whatever is necessary for, or ordinarily incidental to the effective performance of the agent’s express actual authority. Further, an agent authorised to perform particular duties has implied actual authority to do whatever is necessary for the effective performance of those duties. Implied actual authority can also arise from a course of conduct. (emphasis added)
27. Apparent or ostensible authority is based on estoppel and arises in
circumstances where an appearance of authority is given and a third party relies on the apparent authority. A principal may make an express representation that an agent has authority to do certain acts or a representation may be implied from a course of conduct or by the engagement of an agent in a position that usually carries certain authority.
[9] The ANF also referred to the High Court decision in Pacific Carriers Ltd v BNP Paribus 7to submit that Mr Subramanian’s appointment as Corporate Manager denoted an authority to perform all the acts which someone in such a position would usually perform. The ANF also submitted that senior employees at the hospital were aware of the negotiations conducted by Mr Subramanian over the course of several months and that Mr Subramanian was consequently held out to third parties as being authorised to engage in that conduct. In addition to the appearance of authority inherent in Mr Subramanian’s position as well as his course of conduct, the ANF also submitted that Mr Subramanian held himself out as having the authority to negotiate the agreements.
[10] Kaizen submitted that:
‘20. The failure to appoint a bargaining representative in accordance with the Act renders the acts of those purporting to be a bargaining representative void, including any purported agreement arising from the acts/conduct of purported bargaining representative, as the bargaining representative has no power to negotiate on behalf of the employer.’
[11] It submitted that the agreements were made in circumstances where the employer was unaware of any purported agreement being negotiated, nor was Mr Subramanian authorised to negotiate or execute an enterprise agreement on its behalf. It submitted that the requirements of s.185(1) were not met as there was no agreement between the parties. It further submitted that clause 3 of the Agreements provided that the employer will take necessary steps to seek approval of the agreement, and this had not been done. The ANF was the applicant. It submitted that there was no valid application as the form F17 submitted with the application for approval was provided for use in a previous approval application which was subsequently quashed by the Full Bench. Kaizen submitted that the forms accompanying the application were invalid because of the use of an incorrect name, and that the correct name to be used is Kaizen Hospitals Pty Ltd. It submitted that the requirements of regulation 2.06A were not met, and that time in which to lodge the applications should not be extended. The submissions put by Kaizen on the issue of apparent authority were limited. Their submissions focused more on actual authority, and technical objections.
Decision
Introduction
[12] Mr.Subramanian was appointed by Kaizen on 19 April 2011 in the following terms:
‘I am pleased to confirm the appointment of yourself as the nominated representative of our company Flagtail Pty Ltd, as the Corporate Manager responsible for the hospitals and related business activities owned by IPHOA in Victoria. Currently there are three hospitals, namely Essendon Private Hospital, The Melbourne Eastern Private Hospital and Malvern Private Hospital.’
[13] His position title was said to be ‘Corporate Management Victoria and Hospital Director of Essendon Private Hospital’ 8. He apparently moved ‘around the three hospitals (Essendon, Malvern & Boronia)’ in his work9.
[14] Dr.Wenkart, the Chief Executive of Kaizen, described Mr.Subramanian as ‘the Corporate Manager - Victoria for the Kaizen operating companies.’ 10 Dr.Wenkart further said that Mr.Subramanian was employed to ‘co-ordinate management functions for IPHOA hospitals in Victoria’, and was to ‘perform Flagtail Pty Ltd’s obligations under the contract to IPHOA.’ The ‘Contract Agreement’ refers to a broad range of functions.
[15] Mr.Subramanian signed the three agreements on behalf of Kaizen as ‘Hospital Director and Corporate Manager’ 11 for the Essendon agreement, and ‘Corporate Manager’12 for the Malvern and Eastern agreements. In each case he signed a form which claimed that he signed on the following basis:
‘I am authorised to sign this Agreement on behalf of ... [the hospital]’.
[16] He then signed the agreement, giving his work title, address and date. The address appears to be the address of the hospital in each case. Mr.Subramanian also signed the employer’s declaration in support of the application for approval in each case.
[17] Dr.Wenkart gave evidence that:
‘As observed in paragraph 20 above, I have become aware since the enterprise agreements were approved by FWA that Mr.Subramanian engaged SIAG to assist him with industrial relations matters from about February 2012. Mr.Subramanian has advised me that he did not appoint SIAG, or Mr.Barry Cook or Ms.Sascha Cook of SIAG as bargaining representatives for the negotiation of the enterprise agreements, in writing or otherwise. Mr.Subramanian has also confirmed that he did not appoint any person or organisation as bargaining representative for the Kaizen operating companies.’ 13
[18] Mr.Subramanian, Mr.Cook, and Ms.Cook of SIAG acted to negotiate an agreement with the ANF in the period December 2011-July 2012.
[19] The process began when Mr.Megennis, Industrial Officer of the ANF, served a log of claims on Independent Private Hospitals of Australia P/L on 2 November 2011 14. A Ms.Val Davie, Manager Clinical Services, sent a memorandum to nursing staff on 21 March 2012 indicating that negotiations for a Nursing Staff Enterprise Agreement would take place on 29 March 2012, and attached a notice of representation rights and other material about Essendon Private Hospital’s intentions to negotiate a new enterprise agreement for nursing employees15.
[20] Mr.Megennis asked to meet with Mr.Subramanian about negotiations on the ANF’s log of claims. Mr.Subramanian agreed on 26 March 2012 and asked for a suitable date and time to meet 16. A series of meetings and negotiations between the ANF and SIAG representatives then occurred. Mr.Subramanian was occasionally directly involved in these negotiations. On 25 May 2012, SIAG advised Mr.Megennis that they would meet the ANF on 4 June 2012, and that:
‘Sankar Subramanian, Corporate Manager - Victoria, will be in attendance with me at the meeting.’ 17
[21] This was a significant meeting. Draft agreements for the Malvern and Essendon hospitals were attached to the emails. On 19 June 2012 Mr.Subramanian sent an email to the ANF and SIAG commenting about the meeting held, specifically in relation to change of shift allowances, cancellations/lost hours, and overtime 18. Another Kaizen employee was also involved. A ‘Ms.Betsy Taylor, Hospital Director’ was to attend a meeting19.
[22] Mr.Subramanian had been involved in agreement making with the ANF before. He signed Essendon Hospital, Malvern and Eastern enterprise agreements in 2011, signing on 24 May 2011 as ‘Corporate Manager Victoria’ 20 in relation to the Essendon agreement. He also signed the employer declaration’s of support. Dr.Wenkart gave evidence that Mr.Subramanian negotiated these agreements, signed them, and arranged for them to be submitted for approval21.
[23] Dr.Wenkart gave evidence that Mr.Subramanian was not authorised by himself or anyone else to take the steps that he did 22. He outlined the formal structure of reporting and management bodies under which such authorisation may be given.
Actual and Apparent Authority
[24] There are two predominant classes of authority for persons acting on behalf of another, or on behalf of a body corporate, actual authority or apparent authority. The principles of actual authority were discussed by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd 23:
“An ‘actual’ authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of trade, or the course of business between the parties.”
[25] Implied actual authority arises where acts are performed in the ordinary course of, or are incidental to, the exercise of an express authority. Clive Turner explains the principle of implied actual authority in Australian Commercial Law 24:
“In addition to the express authority contained in the agency agreement, the agent may have a further implied authority to do whatever is necessarily incidental to carrying out the principal’s express instructions. For example, where an agent is expressly authorised to buy certain shares, the agent will also have implied authority to do everything in the usual course of business to complete the transaction. Furthermore, where a person employs a particular type of agent to carry out some act on behalf of the principal, the agent will have such implied authority as agents of that class normally have, that is, the agent will have the usual authority which agents of that particular profession or calling normally have to carry out their functions. For example, when the board of directors of a company appoints one of their number to be managing director: Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583.”
[26] In Pacific Carriers Ltd v BNP Paribus 25 the High Court said in relation to apparent or ostensible authority:
‘In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company’s constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have. In the ordinary case, however, it is necessary, in order to decide whether there has been a holding out by a principal, to consider the principal’s conduct as a whole.
In the present case, BNP insisted that the necessary representation had to be one made to Pacific by BNP about Ms.Dhiri, not merely one made by Ms.Dhiri about herself. Again, this is true, but it is also an over-simplification. Sheller JA considered that ‘the only evidence of any representation by BNP to [Pacific] has to be found in Ms.Dhiri’s signature on the NEAT LOIs. In other words the argument has to be that Ms.Dhiri by herself signing the document represented that she had authority to and did bind BNP to a contract to indemnify’. There is more to the case than that.
A kind of representation that often arises in business dealings is one which flows from equipping an officer of a company with a certain title, status and facilities. In Crabtree -Vickers Pty Ltd v. Australian Direct Mail Advertising & Addressing Co Pty Ltd, for example, the Court spoke of a representation that might flow from supplying a particular person with ‘a blank order form, thus arming him with a document which, when he signed it, would bear the hallmark of authenticity. The reference to corporate administrative procedures under which an officer is armed with a document to which he or she can, by signature, impart an appearance of authenticity is a reminder of the wider principle of estoppels which may be relevant to a question of ostensible authority. The holding out might result from permitting a person to act in a certain manner without taking proper safeguards against misrepresentation.’ (emphasis added, footnotes omitted)
[27] Turner discusses apparent (or ostensible) authority 26 in the following terms:
“Apparent (also known as ostensible) authority is “the authority of an agent as it appears to others”: Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583 per Lord Denning MR. Thus, where a principal represents either by words or conduct that an agent has authority to contract on the principal’s behalf, the principal will be bound by those acts of the agent which fall within that represented authority. This principle applies whether or not the agent has any actual authority, or such actual authority has been limited.
...
An employer may hold out that an employee has authority if the employer/principal permits the employee to act in a particular way, for example in signing documents without taking appropriate precautions: Pacific Carriers Ltd v. BNP Paribas ... In the latter case the High Court said that: ‘A kind of representation that often arises in business dealings is one which flows from equipping an officer of a company with a certain title, status and facilities ... the holding out might result from permitting a person to act in a certain manner without taking proper safeguards against misrepresentation’: at [38]. In those circumstances it may be unjust to permit the employer to depart from a reasonable assumption based upon that misrepresentation: at [44].”
Conclusion on Authority
The involvement of Mr.Subramanian in Negotiations and Signing the Agreement
[28] Mr.Subramanian was directly involved in negotiations leading to the agreement. He agreed to meet with the ANF to discuss the agreements on 26 March 2012. He was said to be attending a negotiation meeting with the ANF on 4 June 2012. He commented on the content of negotiations at a negotiation meeting by email sent on 19 June 2012. He was copied in to the email from SIAG to the ANF commenting on a shift allowance issue in the draft agreements 27. He signed the three agreements on behalf of Kaizen on 1 August 201228, claimed that he had authority to sign, and cited his formal title and corporate position with Kaizen. The ANF wrote to him on 28 August 2012 stating that the agreements were negotiated ‘in good faith and in accordance with Fair Work legislation’29, and no contradiction was made by Kaizen other than to say that authority to act was not present.
[29] Dr.Wenkart gave evidence that Mr.Subramanian ‘engaged SIAG to assist him with industrial relations matters from about February 2012’, although not as bargaining representatives 30. SIAG undertook most of the direct negotiations with the ANF, but did so by way of assisting Mr.Subramanian, and with his involvement and direction. This is the only plausible explanation of the sequence of events.
[30] Mr.Subramanian was not on his own in taking the actions that he did. He acted together with local management in each of the three hospitals to make and sign the three agreements. The ‘management operations meetings’ in each of the three hospitals were advised about the ‘progress of the agreement negotiations’ 31. According to Mr.Subramanian, local managers took the various procedural steps required in each hospital to negotiate the agreement. They advised the nurses in each hospital of their representation rights, there were explanations of the agreements, and employee ballots were organised to approve the agreements32. Ms.Val Davie, Manager Clinical Services, sent out the notice of representation rights to nurses at Essendon Private Hospital on 21 March 2012, and Ms.Betsy Taylor, Hospital Director was to attend a negotiation meeting with the ANF as advised on 28 May 201233. She commenced as Hospital Director on 5 March 201234. Both also attended meetings of the senior managers groups together with Mr.Subramanian and the Chief Executive.
[31] On the evidence before me, Mr.Subramanian acted with the assistance of SIAG to negotiate and sign the three Kaizen agreements, and he must have been ultimately responsible for all the actions taken in developing and approving the agreements. Section 793 of the Act enables a body corporate to engage in conduct by an officer, employee or agent within the scope of his ‘apparent authority’.
[32] I note that Mr.Subramanian has subsequently made a statement that he did not have the authority to take the actions that he did 35. This does not however alter the fact that during the negotiation and signing of the agreements he acted as though he did have authority.
Kaizen’s Actions with Respect to Mr.Subramanian and Others
[33] Did Kaizen take appropriate safeguards to prevent this occurring? Did Kaizen hold out Mr.Subramanian as a person with authority to negotiate and sign the three agreements?
[34] On the evidence before me Kaizen equipped Mr.Subramanian with a job title as ‘Corporate Director’ and ‘Corporate Manager’ and commensurate role and status. He was referred to by senior management as ‘the Victorian Corporate Director’ 36, a Corporate Director not just of one of the three hospitals. He apparently moved ‘around the three hospitals (Essendon, Malvern & Boronia)’ in his work37. These are titles or descriptions denoting a position of some seniority, and suggest functions and powers consistent with that seniority. Mr.Subramanian then acted in that capacity in participating in the negotiations and in himself signing or approving the agreements on behalf of the three hospitals.
[35] What was the nature of Mr.Subramanian’s actual job authority? Kaizen had authorised Mr.Subramanian to act to negotiate and sign enterprise agreements before. That function was not confined to the Chief Executive. Mr.Subramanian signed other enterprise agreements at Essendon, Malvern and Eastern Hospitals in 2011 as the authorised representative of Kaizen. Dr.Wenkart gave evidence that Mr.Subramanian negotiated these agreements, signed them, and arranged for them to be submitted for approval 38. He gave evidence that Mr.Subramanian was authorised to take these actions. In giving him that authority it held him out as a management person with the role and authority to act in that capacity. It was part of his work function to take such actions on at least some occasions.
[36] For example, on 22 December 2010 Mr.Subramananian wrote with actual authority, apparently to employees, advising them that IPHoA was seeking to commence negotiating for a new enterprise bargaining agreement with ‘our Health Professionals and Support Services employees’, and seeking the establishment of a negotiation committee. He said that ‘We look forward to working with you to establish a new EBA in 2011.’ On 25 April 2011 Mr.Subramanian, again acting with actual authority, sent employees a draft agreement, and advised them that they had an opportunity to vote for or against the draft agreement, and details of the voting process. He told them about a question and answer session to be held, and other matters. He thanked them for their patience while ‘we have been negotiating and drafting an appropriate agreement’ 39.
[37] The negotiation and signing of agreements was not outside the scope and nature of his job, as it would be for other Kaizen employees. His job was of a different nature. On the evidence before me the actions taken by Mr.Subramanian were consistent with his authorised job title and role. No reasonable person would be surprised or put on notice by his actions.
[38] What was the management structure of Kaizen, and did Kaizen provide appropriate safeguards through this structure against the actions taken by Mr.Subramanian and others?
[39] The management operations meetings in each of the three hospitals were advised about the ‘progress of the agreement negotiations’ 40. Local managers took the various procedural steps required in each hospital to negotiate the agreement. They advised the nurses in each hospital of their representation rights, there were explanations of the agreements, and employee ballots were organised to approve the agreements. Each of these steps is by its very nature known to many employees in the hospitals concerned, and no doubt outside it. It is not secret, private or concealed. 82 nurses at Essendon, 52 at Eastern, and 24 at Malvern were aware of these steps, and in each case ‘Management representatives’ were nominated as persons to whom questions could be asked about the agreement41.
[40] The Chief Executive was not aware of even one of the steps being taken in even one of the hospitals, and was not aware that the management operations meetings had been advised about the agreements 42. He only became aware of the agreements when he was sent an email by ‘an old friend and industrial relations specialist’. She told him that ‘the three enterprise agreements had been approved by FWA the previous week’. He was not otherwise aware of any of the steps taken to develop the agreements43. Dr.Wenkart then approached Mr.Subramanian who confirmed this information by email44.
[41] Dr.Wenkart gave evidence that the agreements would have needed to be approved by the trustee board after going through the Senior Managers Meetings, and the Corporate Management Meeting. The trustee board meets formally every three months. None of these meetings discussed the agreements 45.
[42] Mr.Subramanian attended the Corporate Management Meetings, and did not provide those meetings with a report on the agreements. The only report he gave was in a quick conversation with Dr.Wenkart when he said words to the effect of:
‘I’m going to look at the nurses EBAs due to possible wage needs.’
[43] Dr.Wenkart replied that he preferred the use of Individual Flexibility Agreements 46.
[44] Mr.Subramanian, and two other Victorian managers, attended meetings of the Senior Managers Meetings, and none provided the meetings with a report on progress in agreement negotiations. The Senior Managers Meetings were described by Dr.Wenkart as ‘where Mr.Subramanian and the senior managers report’. They are an important part of the formal procedures for authorising ‘major expenditures’ or ‘commitments to signed contracts or agreements’ 47. The two other managers were firstly Ms.Val Davie, Manager Clinical Services, who sent out the notice of representation rights to nurses at Essendon Private Hospital on 21 March 2012. She also attended the Essendon Private Hospital Senior Management Meetings on 7 March, 10 May, 14 June, 19 July 2012. Ms.Betsy Taylor, Hospital Director was to attend a negotiation meeting with the ANF as advised on 28 May 201248. She commenced as Hospital Director on 5 March 201249. She attended meetings of the Melbourne Eastern Private Hospital Senior Management Meeting on 7 March, 13 April, 9 May, 13 June, and 16 July 201250.
[45] On the evidence, in summary, Kaizen senior managers relied on Mr.Subramanian to keep them informed of developments in the three Victorian hospitals, and did not have direct contact with local managers in the three hospitals sufficient to rectify the deficiencies in Mr.Subramanian’s advice. The risk taken in such an approach to management is illustrated by this present case. Where the one key senior manager does not keep management informed, then management is simply unaware of key developments in its business. Senior management of Kaizen lost contact with what its managers were doing at the local level, because in part of the manner in which they conducted the business.
[46] There was either some form of systematic breakdown of reporting structures, or a lack of understanding of those reporting structures, or some combination of these things. The organisation put these reporting procedures into place, they did not operate effectively, and the business’s senior management must take some responsibility for that failure, although by no means exclusive responsibility. Kaizen did not take appropriate safeguards against the conduct engaged in by Mr.Subramanian and others.
[47] This is not only my assessment. Kaizen has now changed its ‘management of the hospitals’ 51. The changes were described as ‘a number of significant changes to the management of the Victorian hospitals and their link to IPHoA Corporate’. These significant changes included the promotion of two new Hospital Directors, a statement that Mr.Subramanian is no longer with IPHoA and he is no longer to have any role there, the institution of ‘Daily, weekly & monthly links to IPHoA Corporate’ by ‘direct communication to the relevant corporate staff members’, and current meeting structures52. The institution of ‘direct communication’ suggests that in future there may be less reliance on the information provided by one person at his or her discretion or judgement. The management changes also suggest that new and more appropriate safeguards have been introduced by Kaizen to prevent any similar problems occurring again.
The Actions of the ANF
[48] The ANF was aware of the actions taken by Mr.Subramanian on 26 March, 4 June, 19 June, and when the agreement was signed on 1 August 2012 53. It was therefore aware that he was involved in the negotiation of the agreements with the ANF, and in fact supported the negotiations and the final form of the agreements with all the authority he possessed as Corporate Director, and Corporate Manager. It was aware of Mr.Subramanian’s job title and role, and his past role in negotiating and signing enterprise agreements. It was also aware of the involvement of other senior personnel in the hospitals including Ms.Val Davie, Manager Clinical Services, in distributing a notice of representation rights on 21 March 2012, and Ms.Betsy Taylor, Hospital Director, in attending a negotiating meeting, or it was told that she would. The notice of representation rights issued by Ms.Davie informed nurses that:
‘Nursing employees employed by Essendon Private Hospital currently covered by the Essendon Hospital Nursing Staff Collective Agreement 2009 are advised of Essendon Private Hospital’s intention to negotiate a new enterprise agreement and their rights in respect to representation.’
[49] The notice states that Ms.Val Davie or Mr.Sankar Subramanian are to be advised in writing of any appointment of a bargaining representation. These are clear statements by senior managers of Essendon Hospital that Kaizen had decided to negotiate an enterprise agreement.
[50] The ANF was also aware that ‘Management’ had been identified as persons to whom queries could be directed by nurses about the draft agreements during the making of the agreements 54.
[51] There is nothing that should have put the ANF on notice that there was any irregularity in its dealings with Kaizen’s representatives and senior employees, Mr.Subramanian, or SIAG, or Ms.Taylor, or Ms.Davie, or others. The actions taken by the management staff it had contact with were consistent with their job positions. They appeared to act with authority and in support of the agreements or negotiation process. The ANF acted reasonably and with good faith in negotiating agreements which were apparently proceeding under the authority of a range of managers of the hospitals, namely Mr.Subramanian, Ms.Davie, and Ms.Taylor, and others. As Mason CJ said in Northside Developments Pty Ltd v. Registrar-General 55:
‘According to the rule in Turquand’s Case, persons dealing with a company in good faith may assume that acts within its constitution and powers have been duly performed and are not bound to inquire whether acts of internal management have been regular: Morris v. Kansen.’
Conclusion
[52] Dr.Wenkart described the three hospitals in the following terms:
‘I am Chief Executive of Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (the Kaizen operating companies), which are, respectively, the operating companies and employers of nurses for Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital.’ 56
[53] On the evidence before me, pursuant to s.793(1)(a) of the Act, Mr.Subramanian and others acted with apparent or ostensible authority on behalf of the operating companies and employers. The operating companies and employers negotiated and signed the three agreements.
The Bargaining Representatives
[54] Dr.Wenkart gave evidence that Mr.Subramanian did not appoint SIAG or Barry Cook or Sascha Cook as bargaining representatives for the negotiation of the enterprise agreements, in writing or otherwise 57. The Full Bench decision in Kaizen found that the applications for approval of agreements were invalid because they were not made by a bargaining representative for the agreement as required by s.185(1)58. It is common ground that the employer was not represented by a bargaining representative appointed pursuant to s.176(1)(d).
[55] Kaizen appeared to submit that purported action pursuant to s.176(1)(d) prevented the operation of s.176(1)(a) 59. I respectfully disagree. The ordinary meaning of the language should be given effect. There are no specific stated and restrictive criteria for s.176(1)(a) to operate, as there are for s.176(1)(d) in the form of s.178. It is a general provision which allows an employer itself to bargain in general terms, without unduly limiting how that employer does this. Nor could it sensibly so limit employer bargaining, given the range of approaches taken by different employers in practice. The section accordingly generally describes the course of bargaining if a bargaining representative is not otherwise validly appointed, and if the employer acts itself to bargain.
[56] If the ordinary meaning of the language is not accepted, then regard should also be had to s.171, which provides the objects of the enterprise agreement part of the Act. It is well established that a provision should be construed to give effect to its purpose or object in preference to other constructions that are open on the ordinary meaning of the language. Section 15AA(1) of the Acts Interpretation Act (Cth.) provides:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
[57] In Project Blue Sky Inc v. Australian Broadcasting Authority 60 McHugh, Gummow, Kirby and Hayne JJ (Brennan CJ dissenting) said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v. Agalanios, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
If s.122(1) and (2) were given their grammatical meaning, without regard to the provisions of s.160, they would authorise the making of standards which were inconsistent with Australia’s obligations under international conventions or under its agreements with foreign countries. However, the express words of s.122(4) and the mandatory direction in s.160 show that the grammatical meaning of s.122(1) and (2) is not the legal meaning of those sub-sections. When s.122 is read with s.160, the legal meaning of s.122 is that the ABA must determine standards relating to the Australian content of programs but only to the extent that those standards are consistent with the directions in s.160. If, by reason of an obligation under a convention or agreement with a foreign country, it is impossible to make an Australian content standard that is consistent with that obligation, the ABA is precluded by s.160 from making the standard, notwithstanding the literal command of s.12291) and (2).’ [Footnotes omitted]”
[58] Section 171 refers to a number of matters including providing a simple, flexible and fair framework that enables collective bargaining in good faith, and facilitating such bargaining and the making of enterprise agreements. This requires us to have due regard to the interests and conduct of the nurses, ANF, and Kaizen. In this matter the ANF and nurses participated in good faith in procedural steps to make three agreements, and ballots, supported as they were by a Kaizen senior manager acting with apparent authority, where Kaizen held that manager out as having authority, and did nothing to put its nursing employees and the ANF on notice that there was an irregularity, or to establish reasonable safeguards, and where a range of other managers acted consistently, including a hospital director, a manager of clinical services, other managers, and operational managers meetings in each hospital. The process actually began with an invitation to nurses issued in each hospital by management to bargain constituted by the notice of representation rights, an invitation that nurses and the ANF were entitled to take up in good faith. It would be a strange and unusual result, having regard to this object, if purported actions with respect to s.176(1)(d) rendered the overall actions of the ANF, Nurses and Kaizen in developing three agreements of no effect. Such an approach is unnecessary and technical. It would have implications for a number of other matters heard by the tribunal. The interpretation offered by Kaizen is with respect a somewhat narrow one.
[59] The present case is an extremely unusual one. These circumstances have never occurred before, and are most unlikely to occur again given the difficulties of concealing such public events as the making of three enterprise agreements in three hospitals. Kaizen in particular has now taken steps to ensure that it does not occur again.
[60] On the evidence before me, pursuant to the authority of Mr.Subramanian, the employer acted as a bargaining representative for the agreement on its own account consistent with ss.176(1)(a) and 793(1)(a). There was no appointment of a bargaining representative under s.176(1)(d). The ANF was the bargaining representative for employees pursuant to s.176. Pursuant to s.185 applications for approval of the agreements have been made by a bargaining representative, namely the ANF.
Technical Objections
[61] A number of other objections were taken to approval of the agreement, mostly briefly put and without much supporting material or argument. The first objection relates to the name used to describe the employer in each agreement. The employer parties to the agreements are said in clause 3(a) of each of the agreements to be ‘Malvern Private Hospital’, ‘Melbourne East Private Hospital (ACN 1108420850)’, and ‘Essendon Private Hospital’. Dr.Wenkart described the three hospitals in the following terms:
‘I am Chief Executive of Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (the Kaizen operating companies), which are, respectively, the operating companies and employers of nurses for Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital.’ 61
[62] On Dr.Wenkart’s own description of the Kaizen hospitals there is little doubt about the identity in each case of the employer having regard to the name of the employer used in the agreements. No claim is made that there would be difficulty in identifying the employer for the purposes of compliance and enforcement, the purpose of provisions such as s.285A. It was for example accepted that award respondency orders naming employers by trading names and even partnership names were enforceable, provided that the name described those conducting the business for the purpose of the business: Devane v. Gati, per Dixon CJ, Fullagar and Taylor JJ 62. This view is also consistent with the objects of Part 2-4 of the Act in s.171, which provide:
‘(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits’
[63] The alternative approach would require the tribunal to refuse to approve many agreements reached, and to do so on technical grounds rather than grounds related to the operational need of the provisions.
[64] Another objection related to regulation 2.06A. Mr.Subramanian was a senior manager of Kaizen with apparent authority to negotiate and sign the agreement. He signed the agreement using this authority, expressly claimed to have authority to sign, and gave his formal title with Kaizen. He had apparent authority to sign the agreements. No party would be under any doubt about the nature of his authority, and in the circumstances that achieves the necessary explanation of authority required by the regulation. I do not agree with the contrary submission put by Kaizen, in particular with their submission that a particular form of words is required not mentioned in the Act or regulations, and which specifically refers to the actual legal structure of the employer, and the chain of authorisation 63. The structure of employers varies considerably, and can be extremely complex. If a specific and accurate reference to the legal structure of the employer is required this would have broad implications for other matters. I also note that the particular chain of authorisation referred to by Kaizen in submissions64 is inconsistent with the evidence given by the Chief Executive of the required chain of approval65. I am at a loss to see how such complexities could be navigated by parties to the agreements. Again, reference should be made to s.171 and the object of the provisions. Sections 793-794 of the Act enable the corporation to act through an officer, employee or agent, and this has occurred in the matter before me.
[65] The submissions of Kaizen would for example appear to prevent the approval of the earlier Essendon, Malvern and Eastern hospitals agreements. The employer accepted that this might be the case 66.
[66] The employer has not complied with its agreement to apply for approval of the agreement (clause 3). That does not prevent an application being made by the ANF. In the circumstances I will to the extent necessary waive compliance with the rules that require the employer to lodge a form F17 67.
[67] I have also decided, in the circumstances, to extend time in which application for approval may be made in each case. The ANF has a good explanation for the delay, namely the appeal proceedings. The merit of the applications is strong. They are not weak or vexatious on any measure. The ANF is not at fault in the delay, and has not delayed an unreasonable period. There is no prejudice to the employer. I will pursuant to the Act extend time.
[68] On the submissions and evidence before me I consider that the requirements of ss.186 and 187 are met and that I must approve the agreements.
[69] Decisions approving the agreements are contained in [2012] FWAA 10420, [2012] FWAA 10505, and [2012] FWAA 10511.
DEPUTY PRESIDENT
Appearances:
Ms A Duffy of counsel for the applicant.
Mr K Bennett of counsel for the respondent.
Hearing details:
2012
Melbourne
23 November
Appendix A
Relevant Provisions of the Act
‘171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.
...
176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
...
178 Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and
(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.
...
Division 4—Approval of enterprise agreements
...
185 Bargaining representative must apply for FWA approval of an enterprise agreement
Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.
(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:
(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.
(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.
Signature requirements
(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.
...
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; [emphasis added] or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
...
794 Signature on behalf of body corporate
For the purposes of this Act, a document may be signed on behalf of a body corporate by an authorised officer of the body and need not be made under the body’s seal.
[70] Division 4 of the Fair Work Regulations 2009 further provides as follows:
2.06A Bargaining representative must apply for FWA approval of an enterprise agreement — requirements for signing agreement
(1) For subsection 185 (5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.
(2) For paragraph 185 (2) (a) of the Act, a copy of an enterprise agreement is a signed copy only if:
(a) it is signed by:
(i) the employer covered by the agreement; and
(ii) at least 1 representative of the employees covered by the agreement; and
(b) it includes:
(i) the full name and address of each person who signs the agreement; and
(ii) an explanation of the person’s authority to sign the agreement.
Note Paragraph 185 (2) (a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.
(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative’s signature is not taken to indicate that the representative intends to be bound by the agreement.
1 Kaizen Hospitals (Essendon) Pty Ltd; Kaizen Hospitals (Malvern) Pty Ltd; Kaizen Hospitals (Mount District) Pty Ltd
v Australian Nursing Federation; [2012] FWAFB 8866; Boulton J, Kaufman SDP, Cribb C; 18 October 2012; at paragraphs 15-19
2 Form F17, question 2.9 in each case
3 Exhibit K2, paragraphs 9, 21, 22
4 Exhibit K3, paragraph 1
5 Ibid
6 (2000) 203 CLR 194 at 205
7 (2004) 218 CLR 451 at (36) to (38) per Gleeson CJ , Gummow, Hayne, Callinan and Heydon JJ .
8 Exhibit K3, Attachment A, Attachment TWI
9 Exhibit ANF 1, attachment 4, email of 26 March 2012 from Mr.Subramanian
10 Exhibit K3, paragraph 5
11 AG2012/8449
12 AG2012/8450; AG2012/8453
13 Exhibit K3, Attachment A, paragraph 26
14 Exhibit ANF1, Attachment BM2
15 Exhibit ANF1, Attachment BM3
16 Exhibit ANF1, Attachment BM3-4
17 Exhibit ANF1, Attachment BM7
18 Exhibit ANF1, Attachment BM12
19 Exhibit ANF1, Attachment BM8
20 Exhibit ANF1, Attachment BM27
21 Exhibit K3, Attachment A, paragraph 24
22 Exhibit K3, paragraph 6
23 [1964] 2 QB 480
24 Clive Turner, Australian Commercial Law, Lawbook Co 2009 at page 176-177.
25 (2004) 218 CLR 451 at (36) to (38) per Gleeson CJ , Gummow, Hayne, Callinan and Heydon JJ .
26 Clive Turner, Australian Commercial Law, Lawbook Co 2009 at page 176-177.
27 Exhibit ANF1, Attachment 14
28 3 August 2012 in the case of the Eastern agreement
29 Exhibit ANF1, Attachment 25
30 Exhibit K3, Attachment A, paragraph 26
31 Exhibit K3, Attachment A, paragraph 23
32 See Form F17, signed by Mr.Subramanian, answers to questions 2.4-2.8
33 Exhibit ANF1, Attachment BM8
34 Exhibit K3, Attachment A, TW4, p.62, minutes of IPHoA Corporate Management meeting 14 March 2012
35 Exhibit K3, Attachment A, TW5
36 Exhibit K3, Attachment H
37 Exhibit ANF 1, attachment 4, email of 26 March 2012 from Mr.Subramanian
38 Exhibit K3, Attachment A, paragraph 24
39 Exhibit ANF1, Attachment BM28
40 Exhibit K3, Attachment A, paragraph 23
41 Form F17, question 2.5
42 Exhibit K3, Attachment A, paragraph 23
43 Exhibit K2, paragraphs 9, 21, 22
44 Exhibit K3, Attachment A, paragraph 21
45 Exhibit K3, Attachment A, paragraphs 16-17
46 Exhibit K3, Attachment A, paragraph 19
47 Exhibit K3, Attachment A, paragraphs 5-18
48 Exhibit ANF1, Attachment BM8
49 Exhibit K3, Attachment A, TW4, p.62, minutes of IPHoA Corporate Management meeting 14 March 2012
50 Exhibit K3, Attachment A, TW4
51 Exhibit K3, paragraph 10
52 Exhibit K3, Attachment H
53 3 August 2012 in the case of the Eastern agreement
54 Form F17, question 2.5
55 (1990) 170 CLR 146 at 154-155 per Mason CJ
56 Exhibit K3, paragraph 1
57 Exhibit K3, Attachment A, paragraph 26
58 Ibid at paragraphs 15-19
59 PN372-373
60 (1998) 194 CLR 355 at 381 and 385
61 Exhibit K3, paragraph 1
62 (1956) 195 CLR 174, High Court, per Dixon CJ, Fullagar and Taylor JJ
63 PN517-531
64 PN517
65 Exhibit K3, Attachment A, paragraphs 16-17
66 PN521-2 ‘Are they invalid as well? They may well be, your Honour, but we don’t raise that.’
67 Rule 4 of the Fair Work Australia Rules 2010.
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