Canberra Casino Ltd v United Voice

[2016] FWC 4265

[2016] FWC 4265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.425—Industrial action

Canberra Casino Ltd
v
United Voice
(B2016/653)

COMMISSIONER CRIBB MELBOURNE, 4 JULY 2016

Application to suspend protected industrial action, cooling off.

[1] Canberra Casino Limited (the Casino, Applicant) has made an application for an order under section 425 of the Fair Work Act 2009 (the Act). The order sought is for the suspension of protected industrial action that is currently being engaged in for a period of 14 days. The particular industrial action is the wearing of union t-shirts and badges by members of United Voice (the union). This employee claim action was notified to the Casino on 20 June 2016 and was stated to commence from 11.00am on Friday 24 June 2016. 1

[2] In accordance with the requirements of section 425(2) of the Act, the application is made by a bargaining representative for the agreement.

[3] The application was heard on Friday 24 June 2016. At the conclusion of the hearing, the Commission explained that it was necessary to reserve its decision in light of the jurisdictional objection raised by the union and the reserved right for the union to respond to the CFMEU v BHP Coal Pty Ltd 2 (BHP Coal case), which was raised by the Respondent. It was also indicated that, in order to expedite matters, the Commission would issue a brief decision but with reasons. Further, a more fulsome decision, with a summary of the evidence and submissions, would be issued on the request of either party.3

[4] Since the hearing on 24 June 2016, United Voice has filed submissions in relation to the BHP Coal Case (on 29 June 2016). The Casino, in turn, filed Submissions in Reply on 29 June 2016. The filing of submissions has allowed for the preparation of a more detailed and comprehensive decision than was contemplated on Friday, 24 June 2016. Therefore, the subsequent issuing of a more fulsome decision than this one, is no longer required.

1. Jurisdiction

(a) Submissions

[5] In its closing submissions following the witness evidence on behalf of the Casino, the union raised a jurisdictional issue in relation to whether there was any industrial action actually occurring. 4 It was argued that there had been no evidence, put by the Applicant, that industrial action is occurring. The union stated that industrial action may have occurred for an hour but then it had stopped. This was said to have been due to a direction having been given, by the Casino, to those employees wearing union t-shirts or badges, to wear their normal work uniform or otherwise face disciplinary action.5 Ms Law’s and Ms Bach’s evidence was referred to in this regard.6

[6] In response, it was submitted by the Casino that the evidence before the Commission was that industrial action was being engaged in. It was stated that employees were wearing t-shirts in the workplace. 7 The Casino indicated that, as a matter of fact, it was not known at that precise point in time, whether someone was wearing a t-shirt. However, it was also pointed out that the union had indicated that employees may still do so at any time between that point in time and 4.30am the next morning (Saturday 25 June 2016). It was stated, therefore, that industrial action is being engaged in.8

(b) Witness evidence

[7] Evidence in relation to the industrial action was given by Ms Law and Ms Bach on behalf of the Casino, and by Ms Ryan and Mr Kidman on behalf of the union.

[8] Ms Law gave evidence that:

• Whilst she was at work, she saw employees wearing union t-shirts. 9



• She saw Ms Ryan handing a staff member a t-shirt and the staff member went into the change room and got changed. 10



• Staff were wearing t-shirts for a period of time at work in the tea room and throughout the corridors. 11



• There was one particular staff member who was wearing his t-shirt in his office whilst working. 12



• The staff started to collect in the canteen around 11.00am. Some of the staff already had a t-shirt on. One employee was given a t-shirt by Ms Ryan.



• The last person she saw wearing a t-shirt was the person in the office who wore it for the whole time – for just over an hour.



• As people started to go up for their shift or as soon as they noticed that the employee was out of uniform, they were handed a direction by Canberra Casino. 13



• The notice directed staff to wear their staff uniform. 14

[9] It was Ms Bach’s evidence that:

• Whilst at work, she saw individuals either appearing at work already wearing the t-shirt or going into the dressing room and putting one on which they had been provided with. 15



• These employees would have been in customer facing roles except for one employee who is not (and does not wear a uniform). 16



• There were different people wearing t-shirts at different times but thought that, all in, employees were wearing t-shirts for about an hour. 17



• She did not see anyone wearing a t-shirt after shifts had begun except for the non-uniformed employee. 18



• This was most likely because she had asked the employees to remove the t-shirts to start work in uniform. 19



• The request came in the form of serving the employees with a letter and speaking to the direction in the letter. 20

[10] Ms Ryan gave evidence that:

• She had gone to the Casino to provide people with t-shirts to wear as part of the protected industrial action. 21



• She was given the letter by one of the members who had been handed it by Ms Bach. 22



• She was very concerned about the letter particularly for some of the younger members. 23



• The industrial action was to run for one day. 24



• Which kind of industrial action and its duration was discussed with representatives who, in turn, had discussions with their colleagues, prior to notifying the employer. 25

[11] It was Mr Kidman’s evidence that:

• The whole idea was to have a one day thing starting at 12 noon and finishing at 4.20am. It was never anything other than that. 26



• This was what he told the members at work in his capacity as a union delegate. 27



• It was an oversight that the notice to the employer was open ended in terms of duration. 28

(c) Considerations

[12] Section 425 of the Act provides as follows:

“425 FWC must suspend protected industrial action—cooling off

(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:

(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;

(b) the duration of the protected industrial action;

(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;

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

(2) The FWC may make the order only on application by:

(a) a bargaining representative for the agreement; or

(b) a person prescribed by the regulations.”

[13] As can be seen from section 425 above, section 425(1) contains a jurisdictional prerequisite that “protected industrial action for a proposed enterprise agreement … is being engaged in”. In the process of dealing with the question of whether an order under section 425 suspends any industrial action or only the particular protected industrial action which is identified as being engaged in at the time a decision is made under section 425(1), the Full Bench in The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd 29 (MUA), made the following statement:

“We consider that, on the proper interpretation of s.425(1), once it is found that protected industrial action is being engaged in and a state of satisfaction is reached that suspension of protected industrial action is appropriate, the order that is required to be made is one which suspends, for the duration of the order, the protection attached to any industrial action. There was no dispute that industrial action, at least in the form of the bans at Port Botany and Fremantle, was being engaged in at the time of the hearing before Vice President Watson and at the time the Decision and Order were issued.” 30

[14] Further, Vice President Watson, in the decision at first instance, stated that:

“I accept that the operation of s.425 is premised on industrial action that is being engaged in. Unless protected industrial action is being engaged in, as distinct from threatened, impending or probable, the section does not operate. Whether protected industrial action is being engaged in is a question of fact.” 31

[15] This aspect of the Vice President’s decision was not disturbed by the Full Bench. In reaching this conclusion, Vice President Watson considered the decision of Senior Deputy President Watson in Tas Paper Pty Ltd v AMWU and another 32 (Tas Paper). In Tas Paper, it found that there was, at that time, no protected industrial action that was being engaged in with the result that there was no jurisdiction to make the order sought.33

[16] Finally, Commissioner Roe, in his decision in Linfox Australia Pty Ltd v National Union of Workers 34 noted that the Applicant for orders under section 425 had:

“… conceded that the order for suspension of industrial action cannot be made unless industrial action is being engaged in.” 35

[17] Unlike in the MUA decision, there is a dispute about whether the industrial action in the form of the wearing union t-shirts is being engaged in at the time of the hearing. The evidence of both parties was that the protected industrial action (wearing of union t-shirts) commenced at around 11.00am on Friday, 24 June 2016. This was consistent with the notice of employee claim action notified to the Casino on 20 June 2016. 36

[18] However, what is not agreed is whether or not protected industrial action was being engaged in at the time of the hearing which commenced at 2:14pm and concluded at 5:14pm on Friday, 24 June 2016. In this case, it is not relevant as to whether the industrial action was being engaged in at the time of the decision. This is because the duration of the protected industrial action was limited and would cease at 4:30am the next morning (Saturday 25 June 2016).

[19] Ms Law and Ms Bach gave evidence that they saw people wearing t-shirts for approximately an hour. 37

[20] It was also Ms Bach’s evidence that she did not see people wearing union t-shirts after the shift had begun with the exception of one individual who was not a uniformed employee. This was said to be most likely because she had asked that the t-shirts be removed so that employees could start work in their uniform. The request to employees was given in the form of the direction letter and Ms Bach speaking to that direction. 38

[21] Ms Ryan’s evidence, on behalf of the union, was that Ms Bach approached one of the members and handed that person the letter. In addition, as members came into the staffroom and put union t-shirts on, they were further advised that they had to leave the Casino at that time and that they would not be paid for the shifts that they would have worked. 39

[22] Therefore, there is a dispute between the parties about whether industrial action was being engaged in at the time of the hearing. As the Applicant, the Casino bears the onus in establishing that protected industrial action is being engaged in.

[23] The evidence before the Commission from the Applicant’s witnesses is that:

• The protected industrial action (wearing of union t-shirts) occurred for about an hour.



• There were no employees wearing t-shirts after their shifts had started.



• One individual in a non-uniform role was wearing his t-shirt after shifts had begun.

[24] Further, it was stated, on behalf of the Casino towards the end of the hearing (at 5.00pm), that no one in the room knew whether a Casino employee was actually wearing a t-shirt. The Casino argued that section 425 should not be interpreted as saying that an order can only be obtained if it can be shown at the time the order is being granted or the application is being heard, that someone is actually engaging in the industrial action of putting on a t-shirt. It was submitted that this leads to an interpretation that is manifestly absurd or unreasonable (section 15AB of the Acts Interpretation Act). 40

[25] In accordance with the authorities set out in paragraphs [13] – [16] above, before the Commission can exercise its jurisdiction and issue an order (subsequent to the requirements of section 425(1)(a) - (d) being satisfied), it is required that protected industrial action be being engaged in at the time the application is being heard and at the time and order is issued. As Vice President Watson observed, unless protected industrial action is being engaged in, section 425 does not operate. In other words, it is necessary for protected industrial action to be being engaged in. Otherwise, an order to suspend it is superfluous if there is nothing to suspend.

[26] As it was not possible for the Casino to establish, as a matter of fact at the time of the hearing, that there was protected industrial action being engaged in, the Commission is unable to be satisfied that protected industrial action is being engaged in. As the jurisdictional prerequisite set out in section 425(1) has not been met, there is no jurisdiction for the Commission to issue the order sought. The application is therefore dismissed.

2. Section 425(1)(a) - (d)

[27] If I am wrong in this respect and the jurisdictional prerequisite in section 425(1) has been met, I now turn to deal with each of the factors in turn in s.425(1)(a) – (d).

(a) Section 425(1)(a)

[28] The Casino submitted that suspension of the industrial action would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue. It was stated that it was in nobody’s interest that the present ban be continued. Further, it was argued that the Casino has been at pains to project a new and enhanced look, feel and experience for the Casino. It was said that it was also in the employee’s interests that the Casino is a beautiful and attractive place to come to. This was because it was likely that more patrons would come which would result in the Casino becoming profitable. It was stated that it would be difficult if not impossible for the Casino, therefore, to resist wage increase proposals in the future. 41

[29] Further, the Casino contended that what should occur is that a deep breath is taken whilst the Casino formulates a proposal in relation to a wage increase to be taken to the Board and, if approved, to be put to United Voice. Ms Bach’s extensive evidence in this regard was referred to. It was indicated that Ms Bach’s evidence was that she would work as best she could to get the proposal from herself to the Board and then to United Voice in seven days. 42 It was noted that the order sought was for fourteen days.43 It was also argued that, continuing the industrial action was not going to achieve anything more than that.44

[30] In addition, the Casino submitted that the correct approach to section 425 was the one adopted by SDP O’Callaghan in Nyrstar Port Pirie Pty Ltd v Construction, Forestry, Mining & Energy Union and others.  45 It was stated that SDP O’Callaghan had simply gone through the elements of section 425 and decided whether it was appropriate to make an order that the protected industrial action be suspended to cool off.46

[31] With respect to the Full Bench decision in National Tertiary Education Industry Union v University of South Australia 47(NTEU), it was submitted that the Full Bench’s approach was wrong and that it had not been followed. Further, the Casino stated that, in the MUA decision, the NTEU decision had not been referred to. Where the NTEU Full Bench was wrong was said to be where it founded a principle that exceptional circumstances and significant harm was required to be shown, solely on the basis of an extract from the Explanatory Memorandum of the Fair Work Bill 2008 (Cth).48 Reference was made to section 15AB of the Acts Interpretation Act which provided that reference to the explanatory memorandum was not necessary for the purpose of considering a provision. The Casino contended that section 425 is not ambiguous and so there was no need to confirm any ordinary meaning and there was no manifestly absurd or unreasonable aspect to that section.49

[32] On the other hand, United Voice contended that there was absolutely no benefit to be gained by suspending the industrial action. It was stated that the evidence was that the industrial action would be over shortly (4:30am tomorrow morning). Given the time of day, it was argued that it was nonsensical to suspend the action. 50

[33] The matters that remain in dispute were stated to include a list of non-cost or low cost items and a wage increase of 3% above the award. It was argued that the union and the employer can continue to have discussions about any proposal the employer sees fit to put. The union said that a proposal had not yet been received but that the taking of industrial action did not stop the union and employer having those discussions. 51

[34] It was contended that bargaining is still continuing and the parties have always met in good faith. The union indicated that there had been no industrial action in the 6 - 7 months of bargaining. It was argued that bargaining, in the absence of protected industrial action, had not resolved the issues still in dispute. The protected industrial action had been notified with the intention of applying legitimate, albeit minor, industrial pressure to resolve the issues. 52

[35] The union submitted that, suspending the protected industrial action would undermine the intention and efforts to resolve the issues in dispute. This was said to be directly contrary to the intention of section 425. 53 It was stated that the Casino has always had the ability to apply for a bargaining order to assist the deliberations. The union said that the bargaining has been running smoothly and is still progressing even though there was still no agreement over particular issues.54

[36] It was argued that suspending the industrial action will not progress the bargaining. Rather, the union said that the taking of industrial action has already had the effect of possibly reducing the differences between the parties. It was stated that, within a couple of days of receiving the notice of intention to take protected industrial action, the Casino has indicated that they may have the capacity to move somewhat. It was not known how far but it was argued that an order suspending industrial action would in no way operate to assist the resolution of the enterprise bargaining negotiations. Further, the union said that the protected industrial action will be over prior to the proposal being put on the table by the Casino. 55

[37] The union submitted that the Full Bench in the MUA case has set a high bar for the making of an order under section 425. 56 In relation to the NTEU decision, it was argued that the quote from the Explanatory Memorandum stated that it was not intended that the mechanisms available under section 425 be triggered where industrial action is merely causing an inconvenience. Further, it was said it was not intended that section 425 be used generally to prevent legitimate protected industrial action in the course of bargaining - which was the situation in this case.57

[38] I have considered the submissions and the evidence before me. The parties have been negotiating the terms of a new enterprise agreement for the past 6 – 7 months. Agreement has not yet been reached in relation to a few no-cost/low cost items and the issue of wages. In a letter 58 dated 22 June 2016, the Casino indicated to United Voice that it was prepared to negotiate in good faith in an attempt to provide for pay rises over and above National Wage Review increases. It was Ms Bach’s evidence that the Casino was currently in the process of formulating a wages proposal which, subject to Board approval, would be put to United Voice within seven days, if possible or within 14 days.

[39] It was argued by the Casino that there was a wages proposal being presently formulated with a view to, once approved by the Board, being presented to the union within 7 to 14 days. The benefit to the parties of a suspension of the protected industrial action for 14 days was said to be that there was no benefit for the parties to be engaged in disputation, that protected industrial action would provoke a reaction from the employer and that it was in the interests of the employer and the employees for there to be no disruption to the Casino being able to be portrayed as a beautiful and attractive place to come. Ms Bach’s evidence was referred to in relation to the submission that the wearing of union t-shirts would damage the new and enhanced look, feel and experience of the Casino.

[40] On the other hand, it was the union’s view that, the employer’s advice that it was working on a wages proposal to put the union, was likely the result of the notification of employee claim action on 20 June 2016. It was stated that, suspending the industrial action would not progress bargaining and would not reduce the differences between the parties.

[41] The evidence before the Commission is that the Casino is currently developing a wages proposal which, following approval from the Board, will be put to the union. It is anticipated that this will occur possibly in seven days but at the latest within 14 days.

[42] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states, in relation suspension or termination of protected industrial action, that:

“The Bill recognises that employees have a right to take protected industrial action during bargaining….. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” 59

[43] The concerns raised by Ms Bach on behalf of the Casino in relation to the wearing of union t-shirts affecting the feel and experience of the Casino, are acknowledged and understood. However, as set out in the extract from the Explanatory Memorandum above, the bargaining scheme of the Act supports the right to take legitimate protected industrial action during bargaining.

[44] I have not been persuaded that suspending the protected industrial action will be beneficial to the bargaining representatives because it would assist in resolving the matters at issue. The parties will not be closer to reaching agreement on the matters at issue if a suspension is granted. The Casino is in the process of formulating a wages proposal to put to the union. What potentially may assist the parties in resolving the matters at issue is the receipt, by the union, of a wages proposal from the Casino. The Casino has stated that it has commenced that process and will be in a position to put a proposal to the union shortly.

[45] Further, it would seem that the notice of employee claim action on 20 June 2016 may have been a factor in prompting the Casino to write to United Voice on 22 June 2016. In the letter, the Casino indicated that it was prepared to negotiate in good faith in an attempt to provide for pay increases above National Wage Review increases. To suspend the industrial action in these circumstances would deny the union the ability to ensure that the change in the Casino’s position in relation to the provision of a wages proposal is maintained.

[46] Therefore, for all of these reasons, suspension of the protected industrial action for a cooling off would not be beneficial to the parties. This is because, what may assist the parties come closer together, is presently being worked on by the Casino.

[47] As I have found that suspending the industrial action would not be beneficial to the parties because it would not assist in resolving the matters at issue, I am satisfied that this factor weighs against a decision to suspend the industrial action for a cooling off period.

(b) Section 425(1)(b) – duration of the protected industrial action

[48] The Casino submitted that a fair reading of the notice of employee claim action to the employer was not that the industrial action was to only occur from 11.00am on 24 June 2016 until 4.30am on 25 June 2016. It was stated that the evidence on behalf of the union for the first time, was that the industrial action was for one day only. 60

[49] For the union’s part, it was contended that a notice was given to the employer stating that the action commenced on 24 June 2016. It was stated that the notice did not include an end date but that, from the evidence, the intention was to wear t-shirts from 11.00am on 24 June 2016 until 4.30am on 25 June 2016. The union argued that the industrial action is not protracted. Rather, the duration was said to be limited and that it did not provide compelling support for the making of a suspension order. 61

[50] Despite the notice of employee claim action given to the employer not having an end date, I accept the evidence of Ms Ryan and Mr Kidman that the intention was only ever that the protected industrial action would be from 11.00am on Friday 24 June 2016 until 4.30am on Saturday 25 June 2016. I therefore find that the duration of the present industrial action is limited – 17 ½ hours. It is noted that there has been no previous protected industrial action.

[51] Taking all of this into account, I am satisfied that this factor stands against a decision to suspend the industrial action for a cooling off period.

(c) Section 425(1)(c) - contrary to public interest or inconsistent with objects

[52] It was argued by the Casino that the suspension would not be contrary to the public interest or inconsistent with the objects of the Act. This was on the basis that it was in the public interest and not inconsistent with the objects of the Act that bargaining occur consensually and in the absence of industrial action in circumstances where a wages proposal from the company will be forthcoming within 7 - 14 days. 62

[53] On the other hand, the union submitted that suspension would not be in the public interest. This was on the basis that “public interest” was a broader concept than the interest of a particular group. The Commission was taken to two decisions by Commissioner Cambridge (Oliveri Transport Services Pty Ltd v Transport Workers’ Union of Australia 63 and Transit Australia Pty Ltd v Transport Workers’ Union of Australia64). It was argued that the public interest must be broader than the patrons at the Casino. This was said to be a very narrow view of “public interest”.65

[54] In relation to the objects of the Act, the union stated that there was no specific object relating to the voiding or minimizing of protected industrial action. It was also argued that the legislative regime has been construed with a clear intention to facilitate the taking of industrial action. The Full Bench decision in NTEU was referred to in support of this contention.

[55] Having considered the submissions in relation to this factor, I do not find that suspension would be contrary to the public interest. In making this finding, I have taken into account Commissioner Cambridge’s view that the public interest considerations in section 425(1)(c) are directed to a more general concept of public interest. 66

[56] With respect to whether suspension would be inconsistent with the objects of the Act, it is noted that it seems that the only mention of industrial action is contained in Object 3(f) of the Act. The legislative scheme has been constructed with a clear intention to facilitate the taking of protected industrial action. In all of the circumstances of this case, I am satisfied that this factor stands slightly against a decision to suspend the industrial action for a cooling off period.

(d) Section 425(1)(d) – any other relevant matters

[57] The Casino submitted that it was in everyone’s interests that there be a cooling off period where no industrial action is taken. It was argued that, if there was no industrial action, the employer would not be minded to take action under section 471 or any other relevant section of the Act. The Commission was also reminded that a wages proposal from the employer was imminent. 67

[58] It was further submitted contended that the effect of an order under s.425 was that any industrial action would not be protected industrial action, not just the wearing of union t-shirts. The Full Bench decision in MUA was referred to in support of this submission. 68

[59] The union argued that, if an order was made, it would have little work to do as the industrial action was only for a short duration. 69 Further, it was stated that United Voice remains committed to the bargaining process.70

[60] With respect to the additional matters put by both parties, upon careful consideration, I find that there are no other matters that the Commission considers to be relevant to the decision the Commission is required to make in relation to the application. Employer response action (lockout) is a right available to the employer as part of the enterprise bargaining scheme of the Act and, as such, is not available for ‘trading off’.

[61] With respect to the effect of an order under section 425, I agree with the Casino that, in accordance with the MUA decision, a suspension order applies to any industrial action that was approved by the ballot of members pursuant to a protected action order.

[62] This factor is therefore not a relevant consideration in relation to this application.

3. Conclusions

[63] I have carefully considered the factors that the Commission is required to take into account, as set out in section 425(1)(a) - (d). Two of the factors weigh against making the order and the third factor weighs slightly against making the order. Therefore, the Commission is not satisfied that suspension of the protected industrial action for cooling off is appropriate. Accordingly, I am unable to grant the application and make the order sought. The application is therefore dismissed.

Appearances:

J Wilson of Bradley Allen Love Lawyers for Canberra Casino Ltd

E Cresshull for United Voice

Hearing details:

2016.

Melbourne and Canberra (video hearing):

June 24.

 1   Exhibit R1

 2 (2014) 253 CLR 243

 3   Transcript PN 644

 4   Ibid PN 544 - 545

 5   Exhibit A1

 6   Transcript PN 544 - 545

 7   Ibid PN 568

 8   Ibid PN 569 - 570

 9   Ibid PN 61 - 63

 10   Ibid PN 63

 11   Ibid PN 63 - 64

 12   Ibid PN 65

 13   Ibid PN 71 – 72 and 77

 14   Ibid PN 77, 82 and 88

 15   Ibid PN 189 and 234

 16   Ibid PN 190

 17   Ibid PN 236

 18   Ibid PN 237

 19   Ibid PN 239

 20   Ibid PN 240 and 244

 21   Ibid PN 363

 22   Ibid

 23   Ibid

 24   Ibid PN 338 and Exhibit A2 at paragraph 9

 25   Ibid PN 339 and 352

 26   Ibid PN 455

 27   Ibid PN 455 - 456

 28   Ibid PN 459

 29   [2016] FWCFB 711

 30   Ibid at [37]

 31   [2016] FWC 510 at [16]

 32   [2009] FWA 1872 at [12]

 33   Ibid at [13]

 34   [2014] FWC 529

 35   Ibid at [6]

 36   Exhibit R1

 37   Transcript PN 68 - 71 and 236

 38   Ibid PN 236 - 244 and Exhibit A1

 39   Ibid PN 363

 40   Ibid PN 605

 41   Ibid PN 517

 42   Ibid PN 528

 43   Ibid PN 524 and 526

 44   Ibid PN 519

 45   [2009] FWA 1144

 46   Transcript PN 501

 47   [2010] FWAFB 1014

 48   Transcript PN 503

 49   Ibid PN 504 - 508

 50   Ibid PN 546 - 547

 51   Ibid PN 547

 52   Ibid PN 548

 53   Ibid PN 549

 54   Ibid PN 550

 55   Ibid PN 551

 56   Ibid PN 543

 57   Ibid PN 558 - 559

 58   Exhibit R2

 59   Paragraphs [1708] – [1709]

 60   Transcript PN 519 - 520

 61   Ibid PN 552 - 553

 62   Ibid PN 521

 63   [2013] FWC 2187

 64   [2011] FWA 5006

 65   Transcript PN 555 - 556

 66   [2013] FWC 2187 at [23]

 67   Transcript PN 541 and 574

 68   Ibid PN 570 - 574

 69   Ibid PN 561 - 562

 70   Ibid PN 565

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