Biniris (Aust) Pty Ltd
[2009] FWA 605
•19 OCTOBER 2009
[2009] FWA 605 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
Regulation 2.02 - Redundancy pay applications
(C2009/10143)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 19 OCTOBER 2009 |
Summary: cleaning contract industry – whether 24 employees warrant the payment of redundancy – TCR standard – Regulations – whether FWA has jurisdiction given Award limits on State tribunal function – NES and TCR.
[1] On 23 July 2009 Biniris (Aust) Pty Ltd (“the Employer”) made an application to Fair Work Australia (“FWA”) to set aside or vary a redundancy entitlement it might otherwise be obliged to pay its former employees by way of the operation of the Caretakers and Cleaners Award – SA (“the Award”). The application was (incorrectly, for reasons outlined below) made under Section 12 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the FWTP&CA Act”), which concerns applications to vary transitional instruments.
[2] The Liquor, Hospitality and Miscellaneous Union (“the LHMU”) sought to resist the application on behalf of certain former employees of the Employer.
[3] There are some 24 former employees of the Employer potentially affected by this application. The Notice of Listing of this matter was sent to all 24 employees, and they were invited to attend the hearing and to make submissions.
[4] The LHMU represented a sub set of the employees only; who appear to have been certain employees who brought the Notice of Listing to the attention of the LHMU. The LHMU were otherwise intended to be served by the Employer at all times, but that process was overtaken by other practicalities.
[5] The matter came to a hearing on 9 October 2009.
[6] The immediately relevant clauses are found at clause 34.4.7 of the Award, and read:
“4.4.7 Alternative employment
4.4.7.1 An employer in a particular redundancy case may make application to the Commission to have the severance pay prescription varied if the employer obtains acceptable alternative employment for an employee.
4.4.7.2 The following provisions shall apply in cases where an employer loses a cleaning contract (the outgoing contractor) and the work performed under that cleaning contract is Awarded to another cleaning contractor who offers employment to former employees of the outgoing contractor such that those employees are performing substantially the same work as they were previously performing for the outgoing contractor.
4.4.7.2(a) Such application shall be lodged as soon as practicable, but in any event no later than one calendar month after the date of termination of such employment.
4.4.7.2(b) Specific applications granted by the Commission pursuant to this clause are set out in clause 2 of Schedule 4.
4.4.7.2(c) For the purposes of this clause, up to and including a 20% reduction in hours to be worked by an employee in the alternative employment shall be regarded as “suitable alternative employment” insofar as the number of hours is concerned.
4.4.7.2(d) Any dispute as to what constitutes “suitable alternative employment” in any specific instance shall be dealt with in accordance with the grievance and dispute settlement procedures set out in clause 3.2.”
[7] The redundancy entitlements are set out at Schedule 4 of the Award, along with other incidental provisions.
[8] I should state at the outset that the application should be taken, and has been taken as an application under Regulation 2.02 of Division 1 of Part 2 of Schedule 2 of Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 (“the FWT&CA Regulations”), which reads as follows:
“2.02 Redundancy pay applications — transitional instrument
(1) For subitem 7 (1) of Schedule 2 to the Act, this regulation applies if:
(a) an employer would be obliged under a transitional instrument to pay redundancy pay for the redundancy of an employee; and
(b) a term of the instrument permits the employer to make a redundancy pay application to the Australian Industrial Relations Commission or to a State industrial tribunal.
(2) If the employer makes a redundancy pay application during the bridging period:
(a) the functions of receiving and determining the redundancy pay application are conferred on FWA; and
(b) a provision in the instrument has effect as if the references in it to the Commission or a State industrial tribunal were references to FWA.”
[notations removed]
[9] Regulation 1.03 defines “redundancy pay applications” as follows:
“redundancy pay application means an application by an employer to have an obligation to pay an amount of redundancy pay for an employee varied or set aside because:
(a) the employer has obtained acceptable alternative employment for the employee; or
(b) the employer cannot pay the amount.”
[10] The Award is a transitional instrument for the purposes of the Regulations. The FWTP&CA Act states:
“(5) Transitional instruments are classified as follows:
(a) awards, and notional agreements preserving State awards, are award-based transitional instruments” 1
[11] Under the Workplace Relations Act 1996 the Australian Industrial Relations Commission (“the Commission”) had the express power in respect of redundancy pay obligations that was conferred on it by the Workplace Relations Regulations 2006 (Cth) (“the Workplace Relations Regulations”).
[12] Regulation 3.5 of Division 5 of Part 3 of Chapter 5 of the Workplace Relations Regulations stated as follows:
“3.5 Varying or setting aside obligation to pay redundancy pay
(1) For clause 55 of Schedule 8 to the Act, this regulation applies if:
(a) an employer would be obliged under a notional agreement preserving State awards to pay redundancy pay in relation to the redundancy of an employee; and
(b) a term of a notional agreement preserving State awards permits the employer to make an application to the State industrial authority to have the obligation to pay redundancy pay in relation to the employee varied or set aside where the employer has obtained alternative employment for the employee.
(2) The Commission may:
(a) receive an application to vary or set aside an obligation to pay redundancy pay; and
(b) by order, determine the application if the Commission is satisfied that the alternative employment is acceptable.”
[notations excluded]
[13] Regulation 3.5 of the Workplace Relations Regulations had the effect of allowing the Commission to receive and determine an application to vary or set aside a particular employer’s obligation to pay redundancy, where a NAPSA, on its face, permits an employer to make such an application to a State industrial authority on like terms.
[14] It appears to me that the regulatory arrangements under the FWT&CA Regulations provide a function to FWA, in relation to redundancy pay applications, that is broadly comparable to that performed by the Commission throughRegulation 3.5 ofDivision 5 of Part 3 of Chapter 5 of the Workplace Relations Regulations.
[15] The consequence of this is that FWA cannot perform any function previously performed by a State Industrial Tribunal in relation to redundancy pay applications. 2 It can only perform the functions of “receiving and determining the redundancy pay application” so far as these were functions vested in the State Tribunal (or the Commission, as it was). 3 The implications of this are discussed below.
[16] In the circumstances of this application, the Employer, on 20 June 2009, lost the contract to provide cleaning services to a number of schools in South Australia. As a result the Employer terminated the employment of the relevant employees on or about the same time.
[17] Some 24 employees of the outgoing employer (Biniris) appear to have been successful in acquiring work from the incoming employers (of which it appears there were a number).
[18] The parties provided an Agreed Statement of Facts in this matter. 4 The effect of that Statement was that the parties agreed that the Employer did not obtain any employment for the employees.
[19] The Employer has now made application not to pay redundancy in such circumstances (though given its position on the construction of the clause, which is discussed below, there might be some question as to whether an application in the terms as sought was necessary in any event).
[20] The LHMU considers that the Employer must make redundancy payments to the affected employees. In this regard, it relied for its primary position on a decision of the Industrial Relations Commission of South Australia by Commissioner Dangerfield in Menzies International Australia Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union on Behalf of its Members [2001] SAIRComm 57. 5
[21] The parties agreed that the circumstances before Commissioner Dangerfield were on all fours with those currently before me, in so far as they concerned a loss of contract situation.
[22] Commissioner Dangerfield concluded in his decision that clause 4.4.7.1 of the Award (which was sub clause 40(7)(i) in the Award as it then was) was a “lead-in” to sub clause 4.4.7.2 of the Award (which was sub clause 40(7)(ii) in the Award as it then was), and that the two sub clauses should be read “conjunctively”. The effect of this reading was that:
“the Commission must be satisfied that suitable (or acceptable) employment must first be obtained by the outgoing contractor before it can successfully make application to pay reduced severance payments.” 6
[23] One argument that the Commissioner found “compelling” in that it led to this conclusion, was that:
“ it is fundamentally the circumstance of continuation of employment with the incoming contractor at the same workplace, through the efforts of the outgoing contractor that was meant to be the key factor justifying a reduction of severance payments. Indeed, if it were otherwise, then there would be no difference between someone who managed to obtain employment at the same workplace with the incoming contractor through their own efforts entirely, and someone who, faced with the same prospect of redundancy, obtained employment in another industry altogether, once again entirely through their own efforts. In the latter case, severance payments are not reduced; why therefore should they be reduced in the former? It must be that the thing that makes the difference in cl 40(7)(ii) is that it is the employer who literally does the “obtaining” of what amounts to substantially the same sort of work on substantially the same pay and conditions as before.”(sic) 7
[24] The Commissioner also commented that it was argued before him:
“that the only provision for any application for reduced payments to be made is in (7)(i). An employer’s application must be made pursuant to (7)(i) even if it seeks to rely on the provisions of (7)(ii). I might add that this is reinforced by the reference to the words “such application” in (7)(ii)(a) which simply must refer back to the only previous reference to “application” just a few lines earlier in (7)(i).
I find these textual arguments of themselves to be strongly supportive of the conjunctive interpretation of (7)(i) and (7)(ii).” 8
[25] In the view of the LHMU and as reflected in the decision by Commissioner Dangerfield, it appears that unless an employer “obtains” alternative employment, it cannot make an application for a severance pay obligation to be set aside. Conversely, if an employer has not obtained alternative employment for the employees by its requisite measure of initiative 9, the employer is obliged to pay severance pay.
[26] The consequential argument, therefore, is that if an employer does obtain alternative employment for its employees (which is not the case here) in a loss of contract situation, and there is a dispute about the acceptability or suitability of that alternative work, the parties must make recourse to sub clauses 4.4.7.2(a) – (d) of the Award.
[27] The difficulty with this construction, as argued by the Employer, was that sub clause 4.4.7.2(a) – sub clause 4.4.7.2(d) of the Award, in its view, suggested a code or a carve out by which circumstances of loss of contract were treated differently than generalised severance pay circumstances. Common redundancy-type situations were dealt with at clause 4.4.7.1 of the Agreement, with loss of contract situations, which are common in the industry covered by this Award, dealt with by an application in respect of sub clauses 4.4.7.2(a) – (d).
[28] The Employer also appeared to contend that that clauses 4.4.7.1 and 4.4.7.2 of the Award deal with two different circumstances.
[29] In the first instance, the Employer contended that clause 4.4.7.2 of the Award concerns circumstances in which a loss of contract situation has arisen, which is a sub set of the potential set of redundancy situations that an employer may experience (and for which provision is provided under clause 4.4.7.1 of the Award). Loss of contract is arguably one that is common in the industry.
[30] Clause 4.4.7.1 of the Award relates to the circumstances of the outgoing employer who “obtains employment” for the affected employees. Clause 4.4.7.2 of the Award deals with the incoming employer “who offers employment to former employees of the outgoing” employer. This was taken to demonstrate the differentiated function of clause 4.4.7.1 and clause 4.4.7.2 of the Award.
[31] The Employer seemed to contend further that if I was to adopt any alternative construction, I would not give the different words in clauses 4.4.7.1 and 4.4.7.2 sufficient work to do, and I would fail to distinguish the differentiated subject of the two clauses (which refer to two different identities – the outgoing and the incoming employees).
[32] The better construction of the operation of the Award, therefore, as it was put by the Employer, is that that sub clauses 4.4.7.2(a) – (d) of the Award concerns loss of contract situations where incoming employers may employee the employees of outgoing employers. In such circumstances outgoing employers may have no practical role to perform where an incoming employer who has won a contract may have an immediate need for labour.
[33] In such a situation, the Employer suggest, there is no obligation under the Award for the outgoing employer to obtain alternative employment for the purposes of being relieved of the obligation to pay redundancy pay. I take the argument to be that this is because the obligation (upon the outgoing employer) to pay redundancy pay in loss of contract situations arises only where the incoming employer does not offer work which is suitable alternative work (within the parameters provided for in the clause) to the (outgoing employer’s) employees.
[34] In the event that there is a dispute as to whether the employment offered by the incoming employer is believed to be unsuitable, such a dispute is to be subject to the Award’s dispute resolution provisions. 10 This provision, which is discussed below in detail, does not afford the parties a means by which a dispute may be brought to finality by way of a determinative process.
[35] Generally, the thrust of the Employer’s position was that in loss of contract situations, the outgoing employer is relieved of any dual obligation both to obtain alternative employment for its former employees and to obtain work that is acceptable for its former employees in the sense in which the Termination, Change and Redundancy Test Case Supplementary Decision 11(“TCR Decision”) referred to below (and as amended over time) intended to establish as an Award standard. In loss of contract situations, the only obligation to pay redundancy is when the alternative work offered by the incoming employer is not suitable, in the terms as defined.
[36] For purposes of my own considerations, I have had regard to the decision of Commissioner Dangerfield and the reasoning on which it is based.
[37] It does appear to me that the drafting of the Award leaves much to be desired. But that is not unusual, and the tribunal system routinely applies itself to the task of properly constructing award and agreement provisions in such circumstances.
[38] In respect of this task, I adopt the approach to Award interpretation taken by Madgwick J in Kucks v CSR Limited 12
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind; they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for.”
[39] I commence my consideration with the observation that theTCR Decision determined that the following standard clause should be included in awards:
“An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtains acceptable alternative employment for an employee”.
[40] Such a provision has been common in many awards made at both State and Federal levels as a common standard.
[41] It does not appear to me that on a plain reading of the Award now before me that the effect of the wording is to detract from the general obligation upon an employer to “obtain” alternative work for its employees who have been made redundant.
[42] What the Award does do, however, which is novel, is to stipulate that in loss of contract situations, the degree of tolerance for purposes of determining what is adequate, suitable or acceptable alternative work in relation to hours is greater than it might otherwise be. 13
[43] That is, when clause 4.4.7.1and sub clause 4.4.7.2(c) of the Award are read together, they suggest that “suitable alternative work” may include work which is offered by the new employer (as it must be by definition) of “up to and including a 20% reduction in hours” from that worked for the outgoing employer.
[44] While the Award introduces an express and expanded (arguably) tolerance in relation to loss of contract situations (in relation to hours), it does so only in relation to the suitability of the alternative employment. The Award does not serve to relieve the employer of the ordinary burden of having to “obtain” the alternative employment at first instance.
[45] Despite the infelicities in its drafting and (re-)numbering, I see nothing in the plain words of the Award that demonstrate that its intent was to depart so fundamentally from the essential obligation of the standard TCR Decision established in 1984. Clause 4.4.7.1 of the Award, in my view, retains the essential TCR obligation for an employer to obtain alternative work for its employees, regardless of the circumstances (be there redundancy situations for any reason). As discussed below, clause 4.4.7.2 of the Award has a particular function to play within the terms of the Award, and these do not derogate from the necessity for the outgoing employer to obtain work in the manner stipulated in the Full Bench in Derole Nominees: 14
“[…] the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.”
Or later:
“[…] it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.”
[46] For the reasons given above, I also see no “exclusive code” operating in relation to clause 4.4.7.2 of the Award, as the Employer claimed. The clause does not serve to confine wholly the circumstances in which an outgoing employer is obliged to make pay redundancy.
[47] Clause 4.4.7.2 of the Award is only stepped down from clause 4.4.7.1 of the Award in relation to considerations about the alternative work offered to employees in relation to loss of contract situations: it is not severable from the standard award obligation set out in clause 4.4.7.1 of the Award.
[48] The Award’s drafting plainly serves only to set out that in loss of contract situations where employment as obtained by the outgoing employer is offered by the incoming employer, a 20% reduction in hours (presumably all other things being equal) will constitute “suitable alternative employment”.
[49] In light of this, as it is conceded by the Employer that it has not obtained alternative employment for its former employees, I must dismiss the application to vary or set aside the obligation to pay redundancy.
[50] I add that there two other matters that arise from the application which I have not determined for reason that the submissions put to me did not canvass them in sufficient detail. Neither does it affect, in substance, the decision that I reached above.
[51] The first relates to 4.4.7.2(a) of the Award which reads:
“Such application shall be lodged as soon as practicable, but in any event no later than one calendar month after the date of termination of such employment.”
[52] There appears to be some dispute between the parties as to the date on which the redundancies took place, such that the application might not have been made within the period of “one calendar month”. This matter arose in passing in the viva voce submissions and it was not pressed with any vigour by the LHMU.
[53] The second issue relates to whether or not the Award provisions set out at clauses 4.4.7.1 and clause 4.4.7.2 of the Award are consistent with the jurisdiction FWA as set out in Regulation 2.02 of the FWT&CA Regulations. As cited earlier, Regulation 2.02 of the FWT&CA Regulations reads as follows:
“(2) If the employer makes a redundancy pay application during the bridging period:
(a) the functions of receiving and determining the redundancy pay application are conferred on FWA; and
(b) a provision in the instrument has effect as if the references in it to the Commission or a State industrial tribunal were references to FWA. [notations removed]
[my emphasis]
Regulation 1.03 defines “redundancy pay applications” as follows:
redundancy pay application means an application by an employer to have an obligation to pay an amount of redundancy pay for an employee varied or set aside because:
(a) the employer has obtained acceptable alternative employment for the employee; or
(b) the employer cannot pay the amount.”
[54] It appears to me that for an application to be competent for purposes of FWA’s jurisdiction, the Award function vested in FWA must be a function to determine the application.
[55] Arguably at least, sub clause 4.4.7.2(d) of the Award concerns disputes about what constitutes suitable alternative work for purposes of sub clause 4.4.7.2(c) of the Award, which concerns loss of contract situations.
[56] If this were so, what constitutes “suitable” alternative work in loss of contract situations is not a matter that is capable of determination.
[57] The reason for this is that sub clause 4.4.7.2(d) of the Award reads:
“Any dispute as to what constitutes “suitable alternative employment” in any specific instance shall be dealt with in accordance with the grievance and dispute settlement procedures set out in clause 3.2.”
[58] Clause 3.2 of the Award reads as follows:
“3.2.1 Subject to the provisions of the Act, any industrial dispute or matter likely to create a dispute shall be dealt with in the following manner:
3.2.1.1 Any matter which has been fully discussed between an employee or employees and the supervisor and is still in dispute shall be referred to the Job Delegate or nominated employee representative.
3.2.1.2 The matter in dispute shall be discussed with the supervisor concerned.
3.2.1.3 If unresolved at this level, the matter in dispute shall be referred to the responsible management representative who shall ensure that the matter is recorded in writing and shall take all reasonable steps to resolve the matter.
3.2.1.4 If the matter is still unresolved, discussions shall then occur between a responsible management representative and a union official if applicable.
3.2.1.5 If agreement has not been reached the matter shall then be discussed between a representative nominated by the employer, which may include a representative of the Association of employers to which the employer is a member and the union official, if applicable.
3.2.1.6 If still not settled the matter shall be submitted to the Commission.
3.2.1.7 Without prejudice to either party, work shall continue to be performed in accordance with the Award while the matters in dispute are negotiated in good faith.
3.2.1.8 Subject to the provisions of the Occupational Health, Safety and Welfare Act, 1986, where a matter arises concerning a bona fide safety issue, the Union should notify the employer immediately, and if the matter is not able to be resolved between the parties, the assistance of an appropriate Safety Authority should be sought.
3.2.1.9 An any stage of the procedures, the parties; may seek the assistance of a conciliator, a member of the Commission, or a mutually acceptable person.”
[59] On one hand, the Award may have the effect the effect of transferring a dispute about the suitability alternative work as obtained by the outgoing employer (and subsequently offered by the incoming employer) from clause 4.4.7 of the Award to the disputes clause at clause 3.2 of the Award. This does not appear to be a procedural step (nor a process for FWA) that falls within the contemplation of Regulation 2.02 of the FWT&CA Regulations.
[60] The jurisdiction to receive and determine a redundancy pay application appears to be distinguishable from carrying out a dispute role under the grievance and dispute provisions of a transitional instrument.
[61] On the other hand, the jurisdiction to exercise “the functions of receiving and determining the redundancy pay application” are conferred in FWA if they were conferred on the State Tribunal by the transitional instrument.
[62] In this regard, Regulation 2.02(b) of the FWT&CA Regulations states that:
“a provision in the instrument has effect as if the references in it to the Commission or a State industrial tribunal were references to FWA.”
[63] For FWA to receive and determine an application of the relevant kind and to discharge its function under the Regulations, the State tribunal must itself have been conferred with a function to determine the redundancy pay application (in all respects) by the Award.
[64] It is sufficiently clear that the clause 3.2 of the Award does not permit the State Tribunal to determine to whether the alternative work as obtained (by the outgoing employer) and then offered (by the incoming employer) was “suitable”. This is because the State Tribunal itself was not vested with a determinative function in this regard under the Award.
[65] Thus, FWA could not receive an application for the purpose of determining a redundancy pay application (in loss of contract situations) because Regulation 2.02(b) FWT&CA Regulations requires that FWA may only exercise a function conferred on the State tribunal.
[66] Of course, if sub clause 4.4.7.2(d) of the Award were construed to have application to a dispute about the acceptability of alternative work for purposes of clause 4.4.7.1 of the Award, then on the above reasoning, an employer could not make application to vary or set aside a redundancy pay obligation in any circumstances (in loss of contract situations or otherwise).
[67] An argument in relation to a construction of the Award in these terms might commence with the difficulties of comprehending two different dispute resolution vehicles for “acceptable” alternative work and “suitable” (or, arguably, even “substantially the same work” as it is referred to in clause 4.4.7.2 of the Award).
[68] These matters are made more complicated by other drafting matters in the Award.
[69] Clause 3.2 of the Award appears not be drafted in such a way as to accommodate the purpose intended by sub clause 4.4.7(2)(d) of the Award. This is because clause 3.2 of the Award is premised on the employment relationship being intact, and with the employee having access to internal machinery for purposes of escalating his or her dispute or grievance.
[70] This would clearly not be the case in relation to an employee who has been made redundant.
[71] These various matters were not addressed by the Employer or the LHMU in their submissions, and they appeared under prepared in relation to such argument in any regard at the time of the hearing. Therefore, absent any substantive submission from the parties, I am not inclined to make any finding of a determinative nature in respect of this matter as a consequence.
[72] I add that that the applicable National Employment Standard (Division 11, Part 2-2 of Chapter 2 at of the Fair Work Act 2009) upon its commencement on 1 January 2010 will re-establish the TCR standards across the national system. Some other relevant matters regarding consultation in contract cleaning situations will be dealt with prospectively in the relevant Modern Award.
[73] Notwithstanding the above discussion, my finding at paragraph 49 above stands, and I dismiss the application to set aside or vary the obligation to pay redundancy.
SENIOR DEPUTY PRESIDENT
Appearances:
C Pollard of Jones Ross for the Applicant
D Duke for the Liquor, Hospitality and Miscellaneous Union
Hearing details:
Adelaide
2009
9 October.
1 Section 2(5) of Part 2 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
2 Regulation 2.02(2)(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
3 Regulation 2.02(2)(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
4 Exhibit 1
5 That decision was subject of appeal decision on 3 April 2002 [2002] SAIRComm 15. My reading of that appeal decision is not of relevance to this matter as the issues of construction which are discussed below were not grounds for the appeal, and the Full Bench made no comment on the same.
6 Menzies International Australia Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union on Behalf of its Members [ 2001] SAIRComm 57 at paragraph 103
7 Menzies International Australia Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union on Behalf of its Members [ 2001] SAIRComm 57 at paragraph 100
8 Menzies International Australia Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union on Behalf of its Members [ 2001] SAIRComm 57 at paragraphs 95 - 96
9 See Australian Chamber of Manufactures and Derole Nominees re Clothing Trades Award [1990] Print J4414 (unreported)
10 See clause 3.2 of the Award
11 See [Print F7262] AIRC, 14 December 1984 at PN 27
12 (960141)IR Court of Australia 19 April 1996 at page 4
13 For the relevant authority in this respect, see Munro and Peterson JJ, Leary C, 4 July 1988 [27 IR 226], pp.230-1
14 Peterson J, Marsh DP, Oldmeadow C, 12 September 1990 [J4414] (Online version is neither paragraphed nor paginated)
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