"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" Known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch

[2013] FWCD 9220

[2013] FWCD 9220

DECISION

Fair Work Act 2009

s.512—Application for a right of entry permit

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union” known as the Australian Manufacturing Workers' Union

(RE2013/1117)

MR ENRIGHT	MELBOURNE, 17 DECEMBER 2013
Application for a right of entry permit.

[1] On 11 June 2013, an application under s. 512 of the Fair Work Act 2009 (the Act) dated 7 June 2013 was lodged in the Fair Work Commission (the Commission) by the New South Wales Branch of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Branch) for a permit to enter and inspect premises for the following official of the Branch:

Fergal Eiffe RE2013/1117

[2] I acknowledge receipt on 28 June 2013 of a permit returned to the Commission by the Australian Municipal, Administrative, Clerical and Services Union, New South Wales and ACT (Services) Branch (ASU) on behalf of Mr Eiffe in matter RE2010/3123. The ASU Branch Secretary advised that Mr Eiffe had left the ASU in February 2011 and that due to an administrative oversight the permit had not been returned when he left the ASU. I note that the oversight advised by the Branch Secretary resulted in the permit being returned more than two years later than it should have been returned.

[3] The application in this matter was supported by declarations from Mr Tim Ayres, the relevant Committee of Management member, and Mr Eiffe, the proposed permit holder, both dated 7 June 2013 (the initial declarations). Mr Ayres is the State Secretary of the Branch and Mr Eiffe is employed as an organiser by the Branch.

[4] During the course of considering the application, it came to the attention of the Commission that Mr Eiffe and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) had been ordered to pay a penalty under now repealed provisions of the Workplace

Relations Act 1996 (the WR Act) in Carr v Automotive, Food, Metals, Engineering, Printing

and Kindred Industries Unioni (Carr v AMWU). The penalties were imposed because of contraventions of section 170NC of the WR Act. The contraventions by the AMWU were in relation to the actions of several officials of the Victorian Branch of the AMWU, including an action by Mr Eiffe who was employed by the Victorian Branch at that time.

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[5] For the avoidance of doubt, any references to the WR Act in this decision is a

reference to provisions at the time the contravention of Mr Eiffe took place, specifically 14
June 2003.

[6] Neither the initial declaration by Mr Ayres nor the initial declaration by Mr Eiffe disclosed the penalty imposed on Mr Eiffe nor the penalty imposed on the AMWU.

[7] On 15 July 2013 the Commission wrote to My Ayres advising that Mr Eiffe was found to have contravened section 170NC of the WR Act and had a $600 penalty imposed upon him as a result of such contravention in Carr v AMWU. Both Mr Ayres and Mr Eiffe were requested to provide statutory declarations stating the reason for the apparent omission in their initial declarations.

[8] On 2 August 2013, the Branch lodged a second application under s.512 of the Act for a permit for Mr Eiffe. The second application was supported by declarations from Mr Ayres and Mr Eiffe (the second declarations), both of which stated that Mr Eiffe had a prior conviction for an offence against a law of the Commonwealth and had been ordered to pay a penalty in relation to that conviction in Carr v AMWU.

[9]        The second application was accompanied by statutory declarations made under the

Oaths Act 1990 (NSW) by Mr Ayres and Mr Eiffe. On 28 October 2013 identical statutory

declarations made under the Statutory Declarations Act 1959 by Mr Ayres and Mr Eiffe were
lodged with the Commission (the initial statutory declarations).

[10]      The initial statutory declarations disclosed the relevant penalty imposed on Mr Eiffe in

Carr v AMWU and provided an explanation for the initial omission. In particular Mr Eiffe

declared that he had stated his prior “conviction” in his previous applications for permits (RE2009/2012 and RE2010/3123) and had been issued with an entry permit on both occasions.

[11] An examination of the 2009 application for an entry permit revealed that Mr Eiffe did not declare the penalty imposed on him, nor any convictions.

[12] On 2 December 2013 the Commission wrote to Mr Ayres requesting a further declaration from Mr Eiffe explaining the apparent anomaly between his initial statutory declaration and the 2009 application for an entry permit. The Commission also sought a further declaration from Mr Eiffe explaining the circumstances of the late return of entry permit RE2010/3123.

[13] On 9 December 2013 Mr Eiffe lodged two further statutory declarations with the Commission (the second and third statutory declarations). The second statutory declaration addressed the anomaly between his initial statutory declaration and the 2009 application for an entry permit. The third statutory declaration addressed the late return of entry permit RE2013/3123.

Legislative framework

[14] Under s.512 of the Act, the Commission may, on application by an organisation, issue

an entry permit to an official of the organisation if it is satisfied that the official is a “fit and
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proper person” to hold an entry permit. In deciding this, the Commission must take into
account the “permit qualification matters” set out in s.513(1).

[15]      Section 513(1) of the Act is set out below:

513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into

account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and

responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an

industrial law;

(c) whether the official has ever been convicted of an offence against a law of

the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional
damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory
industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

[16] Sections 512–513 are within Part 3–4 of the Act, entitled “Right of Entry”. The objects

of Part 3–4 are set out at s.480:
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480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work,

information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business
without undue inconvenience.

[17] In Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiaii, Delegate Nassios made the following observations

regarding the objects of Part 3–4 of the Act with respect to an application for an entry permit:

[21] The objects of Part 3-4 are set out in section 480 of the Act. The object of right of

entry provisions is to establish a framework for officials of organisations to enter premises while balancing competing rights of organisations, employees and occupiers/employers. Organisations have the right to represent their members in the workplace, to hold discussions and to investigate suspected contraventions of relevant laws. Balanced against these rights are the rights of occupiers and employers ‘to go about their business without undue inconvenience’. The objects set out in section 480 of the Act emphasise the mutual rights and responsibilities of participants in the system in much the same way as the objects under the Workplace Relations Act 1996. Earlier decisions regarding the granting of right of entry permits under the Workplace Relations Act 1996 have made reference to the ‘important contextual issue’ of the nature of the power that is exercised by permit holders. In Vivienne Daniels v Joe Patti & Anor, Munro J observed that:

Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.

The observations of Munro J apply equally to the granting of right of entry permits

under the legislative regime set out in the Fair Work Act 2009.iii (endnotes omitted)

[18] Although I am not bound by the above views I find they are a useful context for considering an application for an entry permit.

Permit Qualification Matters

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[19]      I will consider each of the permit qualification matters separately.

Training about rights and responsibilities

[20] Section 513(1)(a) of the Act requires me to take into account whether Mr Eiffe has received appropriate training about the rights and responsibilities of a permit holder. The initial declarations and second declarations of both Mr Ayres and Mr Eiffe state that Mr Eiffe undertook such training. A copy of Mr Eiffe's Certificate of Achievement of approved training dated 6 June 2013 was provided with the first application. The content of the training material was approved by, then, Fair Work Australia on 6 October 2009.

Conviction/s against an industrial law

[21] Section 513(1)(b) of the Act requires me to take into account whether Mr Eiffe has ever been convicted of an offence against an industrial law. The initial declarations did not disclose convictions against Mr Eiffe, however, the second declarations of both Mr Ayres and Mr Eiffe disclosed a conviction in Carr v AMWU as a result of a contravention of 170NC of the WR Act. At the time of the contravention, section 170NC was a pecuniary penalty provision of not more than $2,000 for an individual. It was not an offence that could result in a conviction. There is no evidence before me to suggest that Mr Eiffe has been convicted of an offence against an industrial law.

Conviction/s involving fraud, dishonesty or intentional use of violence

[22] Section 513(1)(c) of the Act requires me to take into account whether Mr Eiffe has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving entry onto premises, fraud or dishonesty or intentional use of violence against another person or intentional damage or destruction of property. The declarations do not disclose any such convictions against Mr Eiffe. There is no other evidence before me that suggests otherwise.

Order/s to pay a penalty under an industrial law in relation to action taken by the official

[23] Section 513(1)(d) of the Act requires me take into account whether Mr Eiffe, or any other person, has ever been ordered to pay a penalty under the Act or any other industrial law, in relation to action taken by Mr Eiffe. As noted earlier in this decision Mr Eiffe was ordered to pay a penalty under the WR Act in Carr v AMWU and the AMWU was ordered to pay a penalty partly in relation to an action taken by Mr Eiffe. This matter is discussed further in this decision.

Permit/s revoked, suspended or made subject to conditions under Commonwealth law

[24] Section 513(1)(e) of the Act requires me to take into account whether a permit issued to Mr Eiffe under Part 3–4 of the Act, or under a similar law of the Commonwealth (no matter when in force), has been revoked, suspended or made subject to conditions. The declarations do not disclose that any such permits issued to Mr Eiffe having ever been revoked, suspended or made subject to conditions. There is no other evidence before me that suggests otherwise.

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Right of entry revoked, suspended or made subject to conditions or a disqualification imposed under State or Territory industrial law or State or Territory OHS law

[25] Section 513(1)(f) of the Act requires me to take into account whether a court, or other person or body, under a State or Territory industrial law or State or Territory occupational health and safety (OHS) law has cancelled, suspended or imposed conditions on a right of entry for industrial or OHS purposes that Mr Eiffe had under that law or disqualified Mr Eiffe from exercising, or applying for, a right of entry for industrial or OHS purposes under that law. The declarations do not disclose any cancellation, suspension or imposition of conditions on a right of entry Mr Eiffe has held for industrial or OHS purposes by any court, or other person or body, under a State or Territory industrial law or an OHS law. Further, the declarations do not disclose that Mr Eiffe has been disqualified by any court, or other person or body, under a State or Territory industrial law or an OHS law, from exercising, or applying for, a right of entry for industrial or OHS purposes. There is no other evidence before me that suggests otherwise.

Any other matter the Commission considers relevant

[26] Section 513(1)(g) of the Act permits the Fair Work Commission to have regard to

“any other matters that the FWC considers relevant” in determining whether the proposed
permit holder is a “fit and proper person”.

[27]      In this regard, I have taken into consideration the objects of Part 3–4 of the Act

[28] As noted in paragraph [6] of this decision, the initial declarations did not disclose the penalty imposed on Mr Eiffe in Carr v AMWU. Also, the initial declarations and the second declarations did not disclose the penalty that was imposed on the AMWU in Carr v AMWU. These matters are discussed further in this decision.

[29] In his original statutory declaration Mr Eiffe declared that in January 2009, while employed as an organiser with the Victorian Branch AMWU, he made an application for an entry permit and in this application he had declared his previous “conviction”. As noted in paragraph [11] of this decision, Mr Eiffe did not declare the penalty imposed on him, nor any convictions, in the 2009 application for an entry permit. This matter is discussed further in this decision.

[30] In 2010 Mr Eiffe was employed by the New South Wales and ACT (Services) Branch of the ASU. In this capacity he was issued with an entry permit on 13 May 2010 (RE2010/3123). In June 2013 the ASU returned Mr Eiffe’s entry permit to the Commission advising that Mr Eiffe had left his employment with the ASU in February 2011.

[31] Section 516 of the Act provides that an entry permit expires three years after it is issued or, relevantly, when the permit holder ceases to be an official of the organisation that applied for the permit. Mr Eiffe left the employment with the ASU in February 2011, consequently his permit expired at that time.

[32] Section 517 of the Act requires a permit holder to return to the Commission an entry

permit within seven days of expiry. Mr Eiffe did not return his permit within seven days of
leaving his employment with the ASU. This matter is discussed further in this decision.

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Penalties imposed under the WR Act

[33] As noted in paragraph [4] of this decision Mr Eiffe was ordered to pay a penalty under the WR Act in 2005. Also the AMWU was ordered to pay penalty under the WR Act as a result of an action by Mr Eiffe as well as actions by other AMWU officials. To be satisfied that these are penalties relevant to s.513(1)(d) of the Act, the relevant provisions of the WR Act must be industrial laws for the purpose of that provision.

[34] The WR Act was the predecessor legislation to the Act and I am satisfied that at the time of the contraventions it was an “industrial law”.

[35] The relevant provision of the WR Act that was contravened by Mr Eiffe and the AMWU was s.170NC. Section 170NC prohibited taking or threatening industrial action or other action with intent to coerce another person to make a certified agreement. On 14 June 2003 Mr Eiffe and another official of the Victorian Branch of the AMWU told an employer of AMWU members that union members would not be inducted to a work site until an enterprise bargaining agreement was “sorted out”.iv Mr Eiffe also parked his vehicle across the site entrance preventing trucks and cranes from entering the work sitev. The actions taken by Mr

Eiffe were found to be one contravention of s.170NC of the WR Act.vi

[36] In considering the appropriate penalty for Mr Eiffe, Finkelstein J noted that “the

contravening conduct was not in the general scheme of things very serious”vii, and that he was
“a first offender”viii and therefore imposed a “modest” penalty of $600.ix

[37] In considering the appropriate penalty for the AMWU, Finkelstein J noted that the union was found to have contravened the provisions of the WR Act on four separate occasions, some involving contraventions of s.170NC, including that of Mr Eiffe.x The penalty imposed on the AMWU was relatively high ($25,000) because this was not the AMWU's first contravention of s.170NC.xi

Any other matters the Commission considers relevant

[38] Section 513(1)(g) of the Act provides the Commission with a broad discretion to take into account any other matters it considers relevant. Such a discretion should not be taken to mean any matter, but only those that are relevant to determining if the proposed permit holder is “fit and proper person”.xii The proper construction should be determined by examining the

provision in the context of the Act as a whole. Relevant considerations in this regard include

the context, scope and purposes of the Act.xiii

Non-disclosure of penalties imposed in Carr v AMWU

[39] As noted above the initial declarations in support of the application made no mention of the penalty imposed on Mr Eiffe in Carr v AMWU. Both initial declarations stated that Mr Eiffe has “never been order to pay a penalty under this Act or any other industrial law in relation to ... action [by Mr Eiffe] nor has any other person been ordered to pay a penalty in respect of such action”.

[40] In “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) - Victorian Branch xiv

Delegate Nassios expressed the following view:
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[14] Thoroughness by an applicant in disclosing adverse issues is paramount in assisting a Delegate to make an informed judgment as to whether an applicant for an entry permit is a fit and proper person. Thoroughness however can only be gauged in relation to each individual applicant's circumstances.xv

[41]      In Construction, Forestry, Mining and Energy Unionxvi Delegate Furlong elaborated as

follows:

[58] The obligation to disclose facts relevant to the permit qualification matters has been defined as a “duty of full and frank disclosure”. Entry permits are issued to officials of organisations on the basis of the contents of the declarations made by proposed permit holders and members of the Committee of Management of the relevant registered organisation.

...

[60] In my opinion, a ‘fit and proper person’ would not deliberately fail to disclose matters relevant to the ‘permit qualification matters’ when making the declaration in Form F42. Where a failure to make full and frank disclosure in a declaration of the proposed permit holder was not deliberate, reasons may be advanced by the applicant and/or proposed permit holder. Further, where failure to make full and frank disclosure in a declaration of the relevant Committee of Management member was not deliberate, then reasons may be advanced by the [proposed permit holder] and/or relevant Committee of Management member that the failure to disclose should not affect the weight to be given to their declaration that the proposed permit holder is a ‘fit and proper person’.

[61] Given this, I regard [proposed permit holder's] failure to disclose...to be a

relevant matter for the purposes of s.513(1)(g) of the Act.xvii (endnotes omitted)

[42] For similar reasons, I find the failure to disclose the penalties ordered to be paid by Mr Eiffe and the AMWU in relation to action by Mr Eiffe in Carr v AMWU to be a relevant matter for the purpose of s.513(1)(g).

[43] The statutory declarations of Mr Ayres and Mr Eiffe provide reasons for the failure to disclose the penalties imposed on Mr Eiffe. Mr Eiffe stated that in previous applications for permits the penalty and “conviction” in Carr v AMWU were declared and that on both occasions he was issued an entry permit without difficulty. Mr Eiffe explained that he had mistakenly thought that, because he had been issued with entry permits, the penalty was not of particular significance to any future entry permit applications. He declared “I genuinely did not think to outline my conviction of 2003...I had made a genuine mistake...and had not intentionally misled the [C]ommission.”

[44] Mr Ayres declared that his initial declaration “was made to the best of my knowledge and belief at the time, and following proper inquiries by myself”, that he “...primarily relied on the declaration signed by Mr Eiffe”...and that he was “...not aware of the order at the time...”.

[45] Form F42 of the Fair Work Australia Rules 2010 states that making proper inquires

includes making inquiries of the proposed permit holder. Reliance on the declaration is not
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sufficient. Mr Ayres does not address in his statutory declaration his failure to make proper
inquiries.

[46] Neither Mr Ayres nor Mr Eiffe addressed the issue of the penalty imposed on the AMWU, partly in relation to the action by Mr Eiffe, in Carr v AMWU. As noted earlier the penalty imposed the AMWU was a result of several contraventions of the WR Act by several officials of the Victorian Branch of the AMWU. Nonetheless Mr Eiffe's action contributed to the penalty and therefore should have been declared.

Discrepancy between statutory declaration and 2009 application

[47] As noted in paragraph [11] Mr Eiffe did not disclose in the penalty imposed on him in his 2009 application for an entry permit. Mr Eiffe declared in his second statutory declaration that when making the initial statutory declaration he genuinely believed that he had disclosed the contravention in the 2009 application for an entry permit. He explained that he did not have access to a copy of the 2009 application, that he had relied on memory and that he did not intend to make a false declaration or mislead the Commission.

Late return of previous permit

[48] As noted in paragraph [2] of this decision Mr Eiffe failed to return his previous permit (RE2010/3123) to the Commission. His previous employer, the ASU, returned the permit approximately two years and four months late, explaining that the permit had not been returned due to an administrative oversight.

[49] In his third statutory declaration Mr Eiffe explained that because of past practice he was under the belief that the ASU would return the expired permit on his behalf. He further stated that as soon as he was aware that it had not been returned, he contacted the ASU and arranged for its immediate return to the Commission.

[50]      Mr Eiffe also declared that he is:

...now fully aware of my obligations under section 516 and 517 of the Fair Work Act

2009 (Cth). Specifically, I understand that when I ceased to be an official of the ASU

my entry permit expired, and that it was my personal responsibility to return the
permit to the Fair Work Commission within 7 days of it expiring.

[51]      Mr Eiffe also declared that “In future, I will ensure that I will comply with these

obligations.”

Consideration

[52]      In Australian Broadcasting Tribunal v Bond (1990)xviii (Tribunal v Bond) the High

Court considered the phrase “fit and proper person” in the context of licensing under the now repealed Broadcasting Act 1942. In that decision, Toohey and Gaudron JJ made the following statement:

The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’

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cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.xix

[53] I accept that the expression “fit and proper person” is coloured somewhat by the context in which it appears and that it should be construed by having regard to the rights and responsibilities associated with the grant of an entry permit. Parliament has expressed an intention that the Commission “must” take into account the permit qualification matters set out in s.513(1) of the Act to “ensure that only appropriate persons are conferred with the significant rights to access premises”.xx Although previous judicial authorities regarding the meaning of particular terms applied in legislation, such as the exposition of the term “fit and proper person” in Tribunal v Bond are binding in similar factual circumstances,xxi care must be exercised lest such judicial expositions replace the actual statutory text.xxii

[54]      I have considered the relevant facts and circumstances in the context of the statutory

text.

[55] While Mr Eiffe's assumption that the penalty imposed in 2005 for an action taken in 2003 was not of significance is not correct, I accept that Mr Eiffe's omission regarding the penalty imposed on him and on the AMWU were genuine mistakes. I also accept that the incorrect statement in his first statutory declaration was a genuine mistake because he had relied on memory and did not have a copy of the 2009 application.

[56] I have also taken into account that the action taken by Mr Eiffe in contravention of s.170NC of the WR Act was more than 10 years ago, that no other such penalties have been imposed on him before or since. I have taken into account that, in the view of Finkelstein J, Mr Eiffe's conduct in 2003 was not very serious, and that a modest penalty was imposed.

[57] I have also taken into account that the penalty imposed on the AMWU, although relatively high, was the result of actions by several officials of the AMWU on a number of occasions and that the action of Mr Eiffe which contributed to this penalty was considered to be not very serious by Finkelstein J.

[58] I have also taken into consideration that Mr Eiffe has held several entry permits since

the imposition of the penalties and that on 6 June 2013 he received appropriate training about
his rights and responsibilities under part 3-4 of the Act.

[59] I have also taken into account that despite the late return of his previous permit, Mr Eiffe is now aware that it is his personal responsibility to return the permit to the Commission within seven days of expiry, and that he is now aware that his entry permit will expire if he ceases to be an official of the union.

[60] I have considered the objects set out in s.480(a) and (b) of the Act in relation to the

rights of registered organisations to represent their members in the workplace, hold
discussions with potential members and investigate suspected contraventions.

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[61] I also make the observation that Mr Ayres failed to make appropriate inquiries before making his initial declaration. Consequently his initial declaration was inaccurate. Mr Ayres is an officer of the AMWU and thus in a position that enables him to make proper inquiries and accurate declarations about penalties imposed under industrial law, particularly about penalties on the AMWU and its officials. Mr Ayres must ensure that he undertakes proper inquiries before making future declarations.

[62] I find that Mr Eiffe is a “fit and proper person” to hold an entry permit, taking into account the permit qualification matters, for the purpose of s.512 of the Act.

[63]      Accordingly I issue a permit.

DELEGATE OF THE FAIR WORK COMMISSION

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544902>

xiv [2010] FWAD 10039

xv Ibid at [14]

xvi [2013] FWCD 1242

xvii Ibid at [58] to [61]

xviii Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

xix Ibid at 380 (per Toohey and Guadron JJ).

xx Explanatory Memorandum, Fair Work Bill 2008, 2041.

xxi Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32.

xxii Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, 407-409 (per Windeyer J).

i Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802 (13 December

2005)

ii [2011] FWAD 3518.

iii Ibid at [21].

iv Carr v AMWU at [7]

v Ibid at [7]

vi Ibid at [16]

vii Ibid at [2]

viii Ibid at [17]

ix Ibid at '[2]

x Ibid at [13]

xi Ibid at [2]

xii Construction, Forestry, Mining and Energy Union [2012] FWAD 2545

xiii Ibid at [21] to [30]