Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Bitzer Australia Pty Ltd t/as Buffalo Trident
[2009] FWA 962
•4 NOVEMBER 2009
[2009] FWA 962 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Bitzer Australia Pty Ltd t/as Buffalo Trident
(B2009/10782)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 4 NOVEMBER 2009 |
Proposed protected action ballot by employees of Bitzer Australia Pty Ltd t/as Buffalo Trident.
Introduction
[1] On 8 October 2009, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) made an application to Fair Work Australia (FWA) under s.437 of the Fair Work Act 2009 (Cth) (the FW Act) for an order requiring a protected action ballot to be conducted to determine whether employees of Bitzer Australia Pty Ltd t/as Buffalo Trident (Buffalo Trident) wish to engage in particular protected industrial action for a proposed enterprise agreement.
[2] Buffalo Trident opposed the making of the order on the basis the AMWU has not been, and is not, genuinely trying to reach an agreement with Buffalo Trident being the employer of the employees to be balloted.
[3] The basis of Buffalo Trident’s opposition to the making of the protected action ballot order was that the AMWU is seeking a non-permitted matter to be included in the proposed enterprise agreement.
[4] The non-permitted matter is said to be clause 16.1 of the following clause for the proposed agreement:
“16. Contractors
16.1 Consultation:
16.1.1 Before the employer engages contractors or labour hire companies to do work covered by this Agreement the employer must consult with the Union. For the purpose of the consultation the employer must inform the Union of:
• the name of the proposed contractor(s) or labour hire company or companies;
• the type of work proposed to be given to the contractor(s) or labour hire company or companies;
• the number of persons and qualifications of the persons the proposed contractor(s) or labour hire company or companies may engage;
• and the likely duration.
16.1.2 The employer must consult with the Union over issues such as:
• safety;
• criteria for the selection of particular contractors or labour hire companies;
• whether having the work done in-house will enhance or diminish job security for employees engaged under the Agreement;
• alterations in the working conditions for employees covered by this Agreement caused by the proposed use of contractors or labour hire companies; and
• inductions and facilities for contractor and labour hire employees.
16.2 Wages and Conditions of Contractors’ and Labour Hire Companies’ Employees
16.2.1 The employer must ensure the wages and conditions of contractors’ and labour hire companies’ employees engaged to do work covered by this Agreement are no less favourable than the wages and conditions provided for in this Agreement for equivalent or similar work.”
[5] The term “Union” in the proposed clause 16.1 means the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU).
[6] The application was heard by me on 23 October 2009. At the conclusion of the proceedings I indicated I had decided I would make the order sought and made the order 1 that day. I now give my reasons for so deciding.
Relevant Legislation
[7] Section 437 of the FW Act provides that:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
[8] Section 443(1) and (2) of the FW Act provide that:
“443 When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”
[9] Section 172(1) of the FW Act provides that:
“172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.
Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.
Note 2:` An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.”
Consideration
[10] It can be seen from s.172(1) of the FW Act that an enterprise agreement can be made about permitted matters. Permitted matters include, amongst other things, matters pertaining to the relationship between an employer and an employee organisation that will be covered by the agreement and matters pertaining to the relationship between an employer and that employer’s employees.
[11] Clause 16.1 of the proposed enterprise agreement requires Buffalo Trident to consult with the AMWU before it engages contractors or labour hire companies to do work covered by the proposed enterprise agreement. The clause also sets out the matters Buffalo Trident must inform the AMWU of for the purposes of the consultation and the issues over which Buffalo Trident must consult.
[12] The expression “matters pertaining to the relationship between an employer … and … employees” has been the subject of much authority.
[13] In R v Kelly and others; Ex parte The State of Victoria and another 2 the High Court said:
“The words ‘pertaining to’ mean ‘belonging to’ or ‘within the sphere of,’ and the expression ‘the relations of employers and employees’ must refer to the relation of an employer as employer with an employee as employee”. 3
[14] In Re The Manufacturing Grocers’ Employees Federation of Australia and another; Ex parte The Australian Chamber of Manufacturers and another, 4 the High Court said in respect of the expressions:
“For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute.” 5
[15] Further, in Re Cram and others; Ex parte NSW Colliery Proprietors’ Association Limited and others 6 the High Court added that “the conception of what arises out of or is connected with the relations of employers and employees includes much that is outside the contract of service, its incidents and the work done under it.”7
[16] In light of this authority and given the similarity in wording, the expression “matters pertaining to the relationship between the employer … and … the employee organisation” might be held at least to mean matters belonging to, within the sphere of or connected with the relationship between the employer in its capacity as an employer and the employee organisation in its capacity as an employee organisation.
[17] As much seems to be confirmed by the Explanatory Memorandum to the Fair Work Bill 2008. In respect of clause 172(1)(b), the Explanatory Memorandum said:
“675. Paragraph 172(1)(b) permits terms in agreements that are about matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations that will be covered by the agreement. For an agreement term to fall within paragraph 172(1)(b), the term needs to relate to the employee organisation‘s legitimate role in representing the employees to be covered by the agreement.
676. The following terms are examples of those intended to fall within the scope of permitted matters for the purpose of paragraph 172(1)(b):
• terms relating to union training leave and leave for training conducted by a union;
• terms that provide for employees to have paid time off to attend union meetings or participate in union activities;
• terms that provide for union involvement in dispute settlement procedures;
• terms that allow unions to promote membership or have noticeboards in the workplace or otherwise provide information to employees;
• terms that require an employer to provide information to a union about employees who are covered by an enterprise agreement or information about a union to an employee;
• terms that provide for the union to attend the workplace for certain purposes such as dispute resolution or consultation meetings (subject to the rules governing unlawful content – clause 194).
677. The fact that a term falls with paragraph 172(1)(b) does not prevent it from also falling within the description in paragraph 172(1)(a).
678. Because of the way in which the relationship arises, there are limitations on the types of terms that would pertain to the relationship between an employer and an employee organisation. For example, a term granting a lease over property owned by the employer to the employee organisation would not be a term about a permitted matter because it would not concern the relationship between the employer as an employer and the employee organisation as a representative of the employees covered by the agreement.”
[18] The issue of matters pertaining to the relationship between an employer and employee organisation was considered by a Full Bench of the then Australian Conciliation and Arbitration Commission in Amalgamated Metal Workers’ and Shipwrights Union and others v BHP Pty Ltd, Whyalla and another. 8 In that case, the Commission was considering a claim that “an employer shall notify employees and their unions as early as possible of all proposed changes which will affect the performance or organization of work and shall consult fully with each relevant union about all aspects of the changes at least two years before the changes are to be introduced.”9
[19] The Full Bench said:
“We are of the view that the requirement to consult with each union is a claim which seeks to regulate the relations of employers and unions not employers and employees as distinct from the first part of the paragraph which requires notice to both employers [sic] and the union. It is one thing to require an employer, as is done in the first part of claim A(1), to talk about notifying employees and their unions about proposed changes in work, but it is quite another thing to make a demand which does not involve employees at all but confined to the relationship of unions and employers. In this case we consider that the strictures of Menzies J. quoted above are apposite and that although the claim as to notice is valid, the claim as to consultation fails.” 10
[20] The strictures of Menzies J to which the Full Bench referred were as follows:
“The claim which is put forward as a claim for preference in grading is I think with one qualification a claim for preference in an industrial matter. Although I understand how the obligation to give the union notice of a vacancy fits into a scheme of preference for unionists I do not think that the claim that a branch secretary of the union must be notified of any proposal which an employer has in mind to grade or promote an employee is a claim pertaining to the relations of employers and employees and is not a matter within any of the lettered paragraphs of the definition of industrial matters in s.4 of the Act. In my opinion therefore a clause following the last paragraph of 2(b) of the log could not be included in an award.” 11
[21] Matters concerning consultation were considered by the High Court of Australia in The Federated Clerks’ Union of Australia and another v The Victorian Employers’ Federation. 12 In the Clerks’ case the High Court considered a provision of an award of the then Industrial Relations Commission of Victoria which was in the following terms:
“39. Technological Change
(a) Definitions
For the purpose of this clause –
‘Technological change’ means the introduction, alteration or replacement of computers (including word processing machines), or work practices ancillary to the use of such equipment, which change, if implemented by an employer, may have material effects in or on the employment of persons to which this award applies.
‘Computer’ means an electronic device (including word processing machines) which is capable of receiving facts or data, processing or performing calculations on that data and delivering answers or information in the required format for use by a person, or to control the operations of another machine or computer.
‘Material effects’ means the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations.
(b) Notification
When the employer instructs or commissions employees, computer consultants or suppliers or any other persons to carry out an investigation of the feasibility of technological change or where he personally commences such an investigation he shall notify –
(i) the secretary of the Federated Clerks Union of Australia, Victorian Branch ("the Union"); and
(ii) in any case where the employer is able to identify the employees who may be materially affected in their employment by the change, those employees
that the investigation is being undertaken, and specify the employer's principal objective or objectives of such investigation.
(c) Consultation during Feasibility Investigation
During the course of any feasibility investigation the employer shall:–
(i) keep the Union and the employees who have been notified informed of; and
(ii) when requested in writing by the Union or by such employees or any of them to do so, consult with them about
any technological change being considered, any material effect which might ensue and alternative proposals which might eliminate or lessen such effects.
(d) Decision to Implement
(i) If an employer decides to implement technological change he shall notify the Union and the employees, who may be materially affected in their employment by the change, as soon as possible thereafter.
(ii) After notifying the decision the employer will inform the Union, and the employees who have been notified, of the nature and extent of likely material effects, will consult with them about the proposed change, the reasons for it and any alternative proposals which, if implemented might eliminate or lessen likely material effects.
(e) Information
In providing information to the employees and the Union the employer will indicate the source thereof and provide such technical data as will allow evaluation of the likely material effects of any proposal for technological change. The information provided pursuant to this clause shall not be divulged to any other employer nor be used for any purpose other than the making of the said evaluation.
(f) Method of Notification
(i) All notifications and information to the Union will be addressed in writing to the secretary of the Union or to such other official thereof as is designated by the said secretary.
(ii) All notifications and information, to employees shall be in writing.
(g) Consultations
All consultations between the Union and the employer will take place at the employer's place of business during the usual office hours at such time or times as are agreed upon, or in the absence of agreement as are specified by the employer.” 13
[22] In the Clerks’ case, Mason J said:
“The present case does not call for a resolution of the question in the context of the Victorian Act. The provisions of cl.39 prescribe procedures for the provision of notification and information by employers to the union and to employees who may be materially affected when technological change having that effect is contemplated and for consultation between the employers, the union and the employees materially affected. The provisions fall into two categories: (1) those which relate to the period of feasibility study (par. (c)), and (2) those which relate to the decision to implement technological change (par. (d)). The award stops short of regulating the employer's right to decide whether it will introduce technological change except in so far as it obliges the employer to give notification and information and to consult with the union and employees. The prescribed procedures are designed to ensure full and informed consultation. They have as their object improved industrial relations between employer and employees with respect to ‘material effects’ of the introduction of technological change. These effects are defined by the award to include:
‘... the termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retaining or transfer of employees to other work or locations.’
It is well known that these are the consequences of technological change upon the employment of employees and that these consequences and the apprehension of them is a continuing and important cause of industrial disputation and disruption.
In these circumstances the provisions relating to both stages, feasibility study and decision to implement, are in my view ‘industrial matters’ on the footing that award provisions requiring consultation with respect to the introduction of technological change constitute an ‘industrial matter’ in the context of a statute dealing with the subject of industrial relations. If it were necessary to do so, I would hold that the provisions were specifically authorized by pars. (d) and (e) of s.34(1). They may be authorized by other paragraphs as well, but there is no occasion for me so to decide.” 14
[23] Wilson J stated:
“The issue may be stated as being whether the award has more than an indirect, consequential or remote effect upon the relations of employers and employees as such. I choose to concentrate on this formulation of the test rather than examining all the possibilities inherent in the detailed enumeration of the matters referred to in pars. (a) to (k) in s.34(1) because this formulation appears to me to be the one which is most relevant to the problem. If the award cannot satisfy this test then I am unable to see how it could satisfy any of the others…
I have come to the conclusion that it was within the power of the Commission to make the award. I am not obliged to judge the wisdom or the appropriateness of the means which it has chosen to employ; indeed, if the effect of the award is to require the employer to divulge highly confidential information pertaining to the conduct of his business there could be serious practical difficulties in the way of its implementation. However, I am satisfied that, having regard to the finding of the Commission that technological change as defined in the award will significantly affect the livelihood and careers of employees engaged in clerical occupations in Victoria, any consideration by an employer which may lead to the introduction of such technology is a matter of crucial importance to those employees and hence brings into being a matter relating to the relations of that employer with his employees as such. I emphasize that it is the process of examining the feasibility and implications of a particular course of development rather than the decision to embark on that development which attracts the exercise of jurisdiction with respect to a contribution by the union to that process. The Commission was therefore seized of an industrial matter within the meaning of s.34(1) of the Act and empowered to make an award determining that matter. I do not think that so to recognize the existence of such a power conflicts with any received doctrine although nowadays there is probably a greater recognition of the importance and place of notification and consultation in the conduct of industrial relations. The award does not challenge the right of the employer to make decisions with respect to the introduction of technology into his business. But it does oblige him in cases where the introduction of that technology may have material effects on his employees to notify and inform the union, and any employees who can be identified as being likely to be involved, of the steps that are being taken and to provide the opportunity for appropriate consultation.
I have already referred to the distinction between pars. (c) and (d) of the award. The respondent argues that the industrial relationship linking an employer with his employees is not involved until the decision to introduce the technology has been made and implemented or, in other words, until the material effects are in fact about to be realized. Until then, the effect on that relationship is no more than indirect, consequential and remote. But in my opinion that is to take altogether too narrow a view of the industrial relationship. The definition of material effects makes it clear that the connexion between planning for technological change and the employment is anything but tenuous or remote. Those effects are defined in the award to mean:
‘The termination of employment, the elimination or diminution of job opportunities, promotional opportunities, job tenure or the use of skills, the alteration of hours of work, and the need for retraining or transfer of employees to other work or locations.’
These effects may be minimized by appropriate planning in advance. What the award recognizes is that while the responsibility for making decisions falls on the employer alone, he must allow for some participation by the union and employees in the planning process. That process must be shared. This is why the machinery of notifying and supplying information is important; it is the essential prerequisite to appropriate consultation. Such consultation is a natural expression of the industrial relationship of employer and employee in the face of technological change. Viewed in this light, the award is within power. Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity.
Nor is this approach at all novel. In 1968, when ruling on a variation of the Clerks (Oil Companies) Award 1966, the Full Bench of the Commonwealth Conciliation and Arbitration Commission (Kirby P., Moore J. and Commissioner Matthews), said:
‘When employers are contemplating the introduction of computers and other automatic devices which may have serious effects on employees such as termination of employment or transfer interstate it is essential that both the employees and the union concerned should be informed of and involved in the planning as soon as possible. Many real human problems may be involved which may not be known to company executives and they, with the best will in the world, may take steps which do not help to solve them. It is our view that employees and their welfare are as important in the planning of a change of the kind we have had to consider as any other aspect of the change and that they, both individually and through their union, should be brought in at the planning stage. When brought into the planning both employees and the union should in their turn attempt to understand the problems which the employer faces and co-operate with him to try to find a reasonable solution.’ 15 (Citation omitted)
[24] Section 34(1)(e) of the Industrial Relations Act 1979 (Vic) empowered the Industrial Relations Commission of Victoria to make an award determining all matters relating to the relations of employers and employees.
[25] Section 205 of the FW Act provides that an enterprise agreement must include a consultation term that requires the employer to consult its employees about major workplace changes that are likely to have a significant effect on the employees and allows for the representation of those employees for the purposes of that consultation.
[26] In respect of clauses concerning contractors, in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2), 16 French J as his Honour then was concluded that provisions for a proposed workplace agreement under the Workplace Relations Act 1996 (Cth) (the WR Act) restricting or qualifying an employer’s right to use independent contractors were not provisions pertaining to the employment relationship.
[27] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004, 17a Full Bench of the Australian Industrial Relations Commission on appeal considered a clause in a workplace agreement under the WR Act concerning employees of labour hire agencies and which provided, amongst other things, as follows:
“17.1 The employer and unions confirm commitment to permanent direct employment, but also recognise that labour flexibility is an ongoing requirement to achieve job security and productivity requirements. The parties agree to the following criteria regarding the engagement of employees of labour hire agencies.
17.2 The agreed maximum level of employees of labour hire agencies will be 20% of total weekly paid employees. The company agrees to consult with shop stewards when the percentage is in excess of 20% as to the reasons the additional labour hire agency employees are required.
17.3 There will be a formal quarterly review of labour hire agency employees through the consultative committee. This meeting will review both the total number of labour hire agency employees and their length of service.” 18 (Underlining added)
[28] The Full Bench concluded these sub-clauses pertained to the employment relationship. The Full Bench endorsed the reasoning of the member at first instance which was as follows:
“[29] Clause 17 has three principal components. Sub-clauses 17.1, 17.2 and 17.3 deal with the circumstances under which labour hire employees may be utilised. I accept that the use of labour hire employees has the potential to be a matter of interest to Schefenacker employees and hence the circumstances under which labour hire employees will be engaged may be a matter which pertains to the employment relationship. In the circumstances of this agreement, I am satisfied that these three subclauses do pertain in that they described the work situation under which Schefenacker employees will be supplemented by other persons. They do not usurp management functions and fundamentally are about issues associated with direct employment opportunities. I have taken the obligation in clause 17.2 as simply an obligation to consult because to take it further may raise issues associated with the Freedom of association provisions in the Act.” 19
[29] The Full Bench then added that:
“The number of labour hire employees engaged, it is to be inferred, is likely to have a direct effect upon the amount of work available to Schefenacker’s employees and, ultimately, upon the number of employees Schefenacker engages directly. While it is true that cl.17.2 and cl.17.4 may be construed as a partial prohibition on the use of labour hire employees, they are also designed to increase permanent employment by placing obligations upon the employer to engage more permanent employees in the circumstances specified.” 20
[30] Clause 16.1, therefore, is pursued by the AMWU as part of a proposed enterprise agreement in circumstances where:
- permitted matters for an enterprise agreement include matters pertaining to the employment relationship as well as matters pertaining to the relationship between an employer and an employee organisation; 21
- an enterprise agreement must include a consultation term requiring an employer to consult its employees about major workplace changes likely to significantly affect them and allowing those employees to be represented for that consultation; 22
- a claim requiring an employer to fully consult with a union about all aspects of proposed changes which will affect the performance or organisation of work has been held by a Full Bench of the Australian Conciliation and Arbitration Commission to be a claim which seeks to regulate the relations of employers and unions; 23
- award provisions for an employer, pre-decision, to consult with and provide information to a union and/or employees about workplace change which might have a material effect on its employees, including on their employment, job and promotional opportunities, skills usage, hours, work or work location, have been recognised by the High Court as matters pertaining to the employment relationship; 24
- it can be accepted workplace change involving the engagement of contractors or labour hire companies by an employer to do work covered by an enterprise agreement may affect the employment, job and promotional opportunities, skills usage, hours, work or work location of the employees covered by the agreement;
- a clause in a workplace agreement requiring a company to consult with shop stewards as to the reasons additional labour hire agency employees are required has been held by a Full Bench of the Australian Industrial Relations Commission to be a matter pertaining to the employment relationship; 25 and
- clause 16.1 only requires the employer to consult with the AMWU about contractors and labour hire companies and provide information for the purposes of that consultation before the employer engages the contractors or labour hire companies.
[31] In these circumstances, I considered the AMWU’s clause 16.1 for the proposed enterprise agreement was a permitted matter for an enterprise agreement under the FW Act.
[32] Accordingly, I could not conclude the AMWU’s proposed clause 16.1 provided a basis for me to be satisfied the AMWU had not been, and was not, genuinely trying to reach an agreement with Buffalo Trident.
[33] I also considered Buffalo Trident properly refrained from pursuing a submission that the AMWU’s clause 16.2 for the proposed enterprise agreement was not a permitted matter for an enterprise agreement. Such a submission would not have been tenable in light of the authority in Schefenacker’s case 26 and in National Union of Workers Re Excel (Australia) Logistics Pty Ltd – Edinburgh Park and Salisbury South, South Australian (Enterprise Agreement 2004 and others.27
Conclusion
[34] Buffalo Trident did not object on any other grounds to the AMWU’s.437 application for an order requiring a protected action ballot to be conducted to determine whether its employees wish to engage in particular protected industrial action for a proposed enterprise agreement. Moreover, I was satisfied on the material before me with respect to the requirements in the FW Act for the making of such an order. For these reasons I made the protected action ballot order 28 on 23 October 2009.29
SENIOR DEPUTY PRESIDENT
Appearances:
T. McCauley for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
G. Pels for Bitzer Australia Pty Ltd t/as Buffalo Trident.
Hearing details:
2009.
Melbourne:
October 23.
1 PR989830.
2 (1950) 81 CLR 64.
3 Ibid at 84.
4 (1986) 160 CLR 341.
5 Ibid at 353.
6 (1987) 163 CLR 117.
7 Ibid at 134.
8 [1982] 5 IR 69.
9 Ibid.
10 Ibid at 72.
11 R v Holmes and another; Ex parte Altona Petrochemical Company Limited and others, (1972) 126 CLR 529 at 558.
12 (1984) 154 CLR 472.
13 Ibid at 476-478.
14 Ibid at 491-492.
15 Ibid at 498-499 and 500-502.
16 (2004) 138 IR 362.
17 PR956575.
18 Ibid at paragraph 71.
19 Ibid at paragraph 72
20 Ibid at paragraph 79.
21 Fair Work Act 2009 (Cth), ss.172(1)(a) and (b).
22 Fair Work Act 2009 (Cth), s.205.
23 [1982] 5 IR 69 at 72.
24 (1984) 154 CLR 472 at 498-499 and 500-502.
25 PR956575 at paragraphs 72 and 79.
26 Ibid.
27 PR962259 at paragraphs 16-30.
28 PR989830.
29 Ibid.
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