"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Ceres Natural Foods Pty Ltd T/A Pure Harvest

[2017] FWC 6183

[2017] FWC 6183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Ceres Natural Foods Pty Ltd T/A Pure Harvest
(RE2017/952)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 4 DECEMBER 2017

Alleged dispute concerning the right of entry of AMWU officials at Pure Harvest; dispute about the operation of s.492(3); proper construction of s.492(3) in relation to multiple rooms or areas in which employees ordinarily take meal or other breaks.

Introduction

[1] By its amended application filed on 9 August 2017, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) has applied under s.505 of the Fair Work Act 2009(Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute about the operation of Part 3 – 4 of the Act, specifically, the operation of s.492 of the Act. The Applicant is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act). Ceres Natural Foods Pty Ltd T/A Pure Harvest (Respondent) employs a number of persons who are eligible to be members of the Applicant at its Drouin site in Victoria (site), and whose industrial interests the Applicant is entitled to represent (relevant employees).

[2] Ms Gaynor Ramsay, Mr John Webb and Mr Salesio Kasipale are employed by the Applicant and are permit holders under the Act. Each permit holder has exercised entry rights at the site for discussion purposes. The Respondent makes available two rooms at the site which may be used by relevant employees to take meal and other breaks. These are designated as lunchroom A and lunchroom B. As will later become apparent, the various permit holders and the Respondent have tried to agree on a room or area in which discussions might be held but were unable to do so. The Respondent proposed lunchroom A. The permit holders proposed lunchroom B.

[3] The Applicant asserts that both lunchroom A and lunchroom B are rooms that are provided by the Respondent, in which employees ordinarily take their meal and other breaks. As the Applicant’s permit holders and the Respondent have not been able to agree on the appropriate room or area in which discussions may be held. The Applicant contends that the relevant permit holders are entitled to use either or both of the lunchrooms for the purpose of holding discussions with relevant employees who wish to participate in discussions.

[4] The Applicant is seeking an order that the Respondent allow and not intentionally hinder or obstruct permit holders employed by the Applicant from exercising rights of entry under the Act for the purpose of interviewing or holding discussions in which one or more of the relevant employees who may be interviewed or participate in the discussions ordinarily take meal or other breaks. Additionally, the Applicant seeks an order that the Respondent place in a prominent position at the site at each meal room and other area where relevant employees ordinarily take their meal or other breaks and that are provided for that purpose, a notice that is annexed to the draft order that was lodged with the application. Essentially, that notice aims to provide information to relevant employees that the Applicant is entitled to hold discussions during meal times or other breaks with those employees in either of the lunchrooms that are provided by the Respondent and that it is an offence for the Respondent to hinder or obstruct such discussions.

[5] The Respondent opposes the application and contends that lunchroom A is a lunchroom, which is regularly used by relevant employees to take their meal or other breaks. It says that lunchroom A is appropriate for discussions, gives the permit holders their default position under the Act and the Act does not authorise a permit holder to utilise multiple or all lunch rooms on a site for the purpose of holding discussions. It contends that simply because employees are able to take their meal or other breaks in different lunchrooms does not mean that s.492(3) of the Act is enlivened. The Respondent also contends that the Applicant cannot rely on s.492(3) to circumvent using lunchroom A. Further, the Respondent submits that the permit holders were never hindered or obstructed from using entering lunchroom B.

[6] It seems to me that the dispute may be resolved by answering the following question. If after entering the site pursuant to s.484, a permit holder and the Respondent (as occupier) of the site cannot agree on the room or area of the site in which the permit holder is to conduct an interview or hold discussions, is the permit holder entitled to conduct the interview or hold discussions with relevant employees in both lunchrooms and in any other room or area that is provided by the Respondent for the purpose of taking meal or other breaks? The question is answered by the application of orthodox principles of statutory construction. The short answer to the question is yes. My reasons for that conclusion follow.

Background and factual context

[7] The Respondent is in the business of manufacturing and distributing natural and organic foods across Australia and internationally. The site at which this dispute has its origins employs a large number of regionally based employees. According to the Applicant, on 29 March 2017, Ms Ramsay and Mr Webb, gave notice to the Respondent that they intended to enter the site on 30 March 2017. 1 The notices specified s.484 as authorising entry. The Respondent submits that it did not receive the right of entry notices, however, nothing turns on this factual dispute.2 On 30 March 2017, Ms Ramsay and Mr Webb attended the site however, upon arrival, they were refused entry (first visit).3

[8] On 26 April 2017, Ms Ramsay and Mr Webb gave notice of their intention to enter the site on 2 May 2017. 4 Upon arrival at the site, the permit holders were introduced to Mr Mark Caile of Workplace Wizards (Respondent’s representative) who escorted them to lunchroom A and told the permit holders that they were to remain there for the duration of the visit (second visit).5 Whilst at the site, Ms Ramsay and Mr Webb formed the view that lunchroom A did not appear to be frequently used by employees for the purposes of meal breaks.6 Mr Don Lazzaro, the Respondent’s Managing Director, gave evidence that employees regularly use lunchroom A for taking their meals and preparing food and that he has seen employees using lunchroom A.7 Having formed the view that no one was using lunchroom A, Ms Ramsay and Mr Webb asked Mr Caile whether they could access lunchroom B, however, Mr Caile refused this request.8

[9] After the second visit, the Applicant, on behalf of the permit holders corresponded with the Respondent’s representative in an attempt to come to an agreement about which lunchroom the permit holders could use for the purposes of holding discussions, however, the Respondent and the permit holders could not agree on the room. 9

[10] On 13 July 2017, Ms Ramsay and Mr Kasipale gave notice to the Respondent that they intended to enter the site the following day. 10 On 14 July 2017, Ms Ramsay, together with Mr Kasipale entered the site and upon arrival, they were met by Mr Caile who escorted them to lunchroom A and told them that they were to remain in lunchroom A for the entirety of their visit (third visit).11 The permit holders requested to use lunchroom B, however the request was refused. The permit holders raised the concerns about the suitability of the lunchroom A. They held a telephone discussion with Mr Mark Ritchie (Respondent’s representative), and they were told that lunchroom A was provided for employees for their lunchbreaks.12 After some further discussions to try to reach an agreement, which was unsuccessful, Ms Ramsay and Mr Kasipale left the site.13

[11] It is not in dispute that on the second and third visits (and in correspondence between visits and subsequently) the permit holders and the Respondent have tried to reach agreement on the room or area at the site in which the permit holders are to conduct an interview or hold discussions with relevant employees but could not do so. 14 It is also not in dispute that both lunchrooms A and B are provided by the Respondent for the purpose of taking meal or other breaks.15 There is also no dispute that the dispute is of a kind with which the Commission may deal under s.505 of the Act or that I may deal with the dispute by arbitration.
Relevant principles on statutory construction

[12] The task of ascribing meaning to the words of the statute is concerned with interpreting the relevant statutory provision(s) consistently with the intended purpose or objects of the legislature as disclosed by the text of the statute and begins with an examination of the ordinary grammatical meaning of the words used in the context of the statute as a whole in which they appear. This point was made clear in the joint judgment of (McHugh, Gummow, Kirby and Hayne JJ) Project Blue Sky v Australian Broadcasting Authority 16 wherein their Honours 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 Agalianos (1955) 92 CLR 390 at 397, 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.” 17 

[13] The point was also made long ago, as is clear from the following passage of the judgment of Dixon J (as he was then) in R v Wilson; Ex parte Kisch: 18 

“The rules of interpretation require us to take expressions in their context, and to construe them with proper regard the subject matter with which instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them.” 19 

[14] Section 15AA of the Acts Interpretation Act 1901 20(AI Act) also makes it clear in interpreting a statute, regard must be had to the purpose or object underlying the statute (whether that purpose or object is expressly stated in the statute or not) and that a construction that would promote its underlying purpose or object is to be preferred to a construction that would not promote that purpose or object.

[15] The AI Act also deals, in s.15AB, with the extent to which extrinsic material may be called upon to aid the interpretation of a statute. 21 

[16] In their joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd  22, Brennan CJ and Dawson, Toohey and Gummow JJ observed:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”  23

[17] A summary of the relevant principles is contained in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  24 as follows:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” 25 26 [Footnotes omitted]

Construction of relevant provisions of Part 3 – 4

[18] The right of entry scheme established by Part 3 – 4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. Accordingly, it is an encroachment on the right an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. It also curtails the ability of an occupier or employer to determine which persons at a site might be interviewed or participate in discussions and where such discussions or interview are to be held. Statutory provisions of this kind should therefore be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication. 27 

[19] The object of Part 3-4 of the Act is to be found in s.480. It provides:

“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.”

[20] Section 484 confers on a permit holder a right to enter premises for the purposes of holding discussions with one or more employees who have particular characteristics. It provides:

“484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.”

[21] The location at which discussions may be held and the route that may be taken to that location are also regulated. Sections 492 and 492A deals with these matters as follows:

“492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).”

“492A Route to location of interview and discussions

(1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492.

Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen.

(3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.”

[22] As a Full Bench of the Commission observed in The Australasian Meat Industry Employees Union: 28

“The right of entry given to a permit holder under s.484 of the Act is not a right that is unfettered. A permit holder is not given an untrammelled right to enter the premises of an employer or occupier. The right is subject to express and to implied constraints. For example the right to enter may only be exercised if the permit holder has the prescribed purpose. This is apparent from the express terms of s.484 of the Act. Entry may only be gained during normal working hours. Other constraints include the requirement that notice of entry be given, that entry only occur on the day specified in the notice, that the permit holder complies with a reasonable request by the occupier for the permit holder to comply with an occupational safety requirement that applies to the premises to which entry is sought and that the permit holder not enter any part of the premises that is used mainly for residential purposes. One implied constraint is that the right must be exercised so as to promote the objects of Part 3-4 which are set out in s.480. There may be additional conditions with which the permit holder will need to comply by reason of any conditions imposed on the entry permit or other restrictions on the rights of a permit holder that have been imposed by the Commission.
In Maritime Union of Australia v Fair Work Commission a Full Court of the Federal Court of Australia made the following observations about Part 3-4 of the Act:

“. . . it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.
Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.”

Once a permit holder enters under s.484, the capacity to hold the discussions for which entry was gained is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise not be excessive in the circumstances of a particular case. Secondly, as indicated above, the discussions with employees may only be held during meal times or other breaks.
Thirdly, discussions to be held that are authorised by an entry under s.484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally.  A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s.484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs (a) – (c) of that section. In other words a permit holder who has entered premises may only hold discussions with employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions.” 29 [Endnotes omitted]

[23] Returning then to the provision at issue. Subsection 492(3) which deals with the default room or area in which an interview may be conducted or discussions held, is engaged if the permit holder and the occupier cannot agree on the room or area in accordance with subsection 492(2). Subsection 492(3) provides that the permit holder may conduct the interview or hold the discussions in any room or area which may be identified by reference to 2 criteria. First, any room or area must be a room or area “in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks”. Secondly, any room or area satisfying the first criterion must also be “provided by the occupier for the purpose of taking meal or other breaks”. A room or area provided by the occupier for the purpose of taking meal or other breaks, need not be provided solely for the purpose. 30 Further, determining the purpose for which a room or area is provided requires an objective assessment.31

[24] The word “any” maybe used to refer to one or some of a thing or a number of things, no matter how much or how many. It seems to me plain that both grammatically and contextually, the word “any” used in subsection 492(3) is used to signify each and every room or area, no matter how many, which satisfy the criteria to which reference is made above. This construction seems to me to be consistent with the evident purpose of the provision which is designed as a circuit breaker in default of an agreement about a room or area in which interviews or discussions may be held. Subsection 492(3) will operate to determine the default location in both small and large work places which may have one or numerous rooms or areas which meet the criteria. The subsection gives effect to the balancing of rights vested in s.480 of the Act.

[25] In any event s.23 of the AI Act 32 provides that in any Act “words in the singular number include the plural and words in the plural include the singular”. Thus in subsection 492(3), the usage of the singular “room” and the singular “area” includes the plural “rooms” and the plural “areas”.

[26] This construction appears consistent with the Explanatory Memorandum to the Fair Work Amendment Bill 2013 by which s.492 was inserted into the Act. The Explanatory Memorandum provides as follows:

“130. Part 3-4 of the FW Act confers rights on officials of organisations who hold entry permits to enter premises and exercise certain powers while on those premises. The object of the Part is to establish a framework under which permit holders may enter premises for investigation and discussion purposes, which appropriately balances the rights of organisations to represent their members in the workplace, the right of employees to be represented at work and the right of occupiers of premises and employers to go about their business without undue inconvenience.

131. The Bill will make amendments to:

•  provide for interviews and discussions to be held in rooms or areas agreed to by the occupier and permit holder, or in the absence of agreement, in any room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks and is provided by the occupier for that purpose;

•  give the FWC capacity to deal with disputes about the frequency of visits to premises for discussion purposes;

•  facilitate, where agreement cannot be reached, accommodation and transport arrangements for permit holders in remote areas and to provide for limits on the amounts that an occupier can charge a permit holder under such arrangements to cost recovery; and

•  give the FWC capacity to deal with disputes in relation to accommodation and transport arrangements and ensure appropriate conduct by permit holders while being accommodated or transported under an accommodation or transport arrangement.” 33

[27] In a given workplace the rooms or areas which will operate as the default location for conducting interviews or holding discussions will depend upon the number of rooms or areas the occupier provides for the purpose of taking meal or other breaks and whether persons who may be interviewed or participate in discussions ordinarily take meal or other breaks in the rooms or areas provided for that purpose. It may be the case that an occupier provides three rooms for the purpose of taking meal or other breaks but designates those rooms for use by different classes or classifications of employees and prohibits employees from using rooms other than those designated to the class of which each employee is a member (for example meal room A for class 1 employees, meal room B for class 2 employees and meal room C for class 3 employees). Thus if a permit holder enters premises pursuant to s.484 and the permit holder’s organisation is entitled only to represent the industrial interests of class 2 and class 3 employees, the default room will be meal rooms B and C but not A.

[28] However at the site at issue in this dispute, it is uncontroversial that employees whose industrial interests the Applicant is entitled to represent are able to and do use both lunchrooms A and B when taking meal or other breaks and the Respondent as occupier, provides both lunchrooms for that purpose. It follows that a permit holder of the Applicant who has entered the site pursuant to s.484 of the Act, and who after trying to reach agreement with the Respondent about a room or area of the site in which the permit holder is to conduct an interview or hold discussions, cannot agree on the location, is entitled to enter either or both of lunchrooms A or B. The permit holder may do so both for the purposes of ascertaining whether relevant employees wish to participate in discussions and for the purposes of holding discussions with relevant employees who wish to participate.

[29] It also follows that the Respondent’s refusal to allow the relevant permit holders to enter lunchroom B after the permit holders and the Respondent did not agree on the room or area in which discussions could be held during the second and third visits was inconsistent with the relevant permit holders’ right under subsection 492(3) of the Act.

[30] Although the Applicant urged that I make orders, I do not propose, at this stage to do so. It seems to me that the parties have been in dispute about the proper construction of s.492 of the Act. This decision should resolve the dispute and remove any doubt that the Respondent has had about the operation of that section. I would expect there to be no further disputation about this issue. But in the event that I am wrong about that, I propose to defer for further consideration whether orders are appropriate and I give liberty to the Applicant to apply by no later than 28 February 2018 for orders in the event that there is a continuing disputation about the operation of s.492 of the Act in respect of the next occasion on which one or more of its permit holders enters the site under s.484 of the Act.

DEPUTY PRESIDENT

Appearances:

Mr N Grealy for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Mr M Ritchie, Principal Consultant (Workplace Wizards) on behalf of Ceres Natural Foods Pty Ltd T/A Pure Harvest

Hearing details:

2017.

2 November.

Melbourne.

 1   Applicant’s Outline of Submissions, dated 4 October 2017 at [4]

 2   Respondent’s Outline of Submissions, dated 24 October 2017 at [9]

 3   Applicant’s Outline of Submissions, dated 4 October 2017 at [4]

 4   Ibid at [10]

 5   Exhibit 1, Witness Statement of Ms Gaynor Ramsay dated 4 October 2017 at [11]

 6 Applicant’s Outline of Submissions, dated 4 October 2017 at [7]. See also Exhibit 1 at [12] and Exhibit 2, Witness Statement of Mr John Webb dated 4 October 2017 at [6].

 7 Exhibit 4, Witness Statement of Mr Don Lazzaro dated 10 August 2017 at [3]. See also Transcript, 2 November 2017 at PN420 – PN421

 8   Applicant’s Outline of Submissions, dated 4 October 2017 at [8] and Exhibit 1 at [11]

 9   Ibid at [9]

 10   Amended Form 12 – Application for the Commission to deal with a right of entry dispute, dated 9 August 2017 at 3.2.16

 11   Exhibit 1 at [18]

 12   Ibid at [20]

 13   Ibid at [20] – [23]

 14   Transcript, 2 November 2017 at PN655 – PN658

 15   Ibid at PN659 – PN662

 16 (1998) 194 CLR 355

 17   Ibid at [69]

 18 (1934) 52 CLR 234

 19   Ibid at 244

 20   As in force on 25 June 2009; see s.40A of the Act

 21   As in force on 25 June 2009

 22 (1997) 187 CLR 384

 23   Ibid at 408

 24 [1986] HCA 74; (1986) 68 ALR 416

 25   Ibid at [4]; at 420

 26   The High Court has even more recently reiterated these principles in Commissioner of Taxation v Consolidated Media Holdings Ltd (ACN 009 071 167)(2012) 293 ALR 257; [2012] HCA 55 at [39]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross(2012) 248 CLR 378; [2012] HCA 56 at [23]–[26] and Thiess v Collector of Customs(2014) 250 CLR 664; [2014] HCA 12 at [22]–[23].

 27   See Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481-1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 28   [2015] FWCFB 5228

 29   Ibid at [17] – [20]

 30   Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 at [32]

 31   Ibid at [33]

 32   As in force on 25 June 2009; see s.40A of the Act

 33   Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), 32

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