Centre for Non-Violence

[2015] FWCA 4196

[2015] FWCA 4196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Centre for Non-Violence
(AG2015/2358)

CENTRE FOR NON-VIOLENCE INC. ENTERPRISE BARGAINING AGREEMENT 2015-2018

Social, community, home care and disability services
COMMISSIONER CRIBB	MELBOURNE, 22 JUNE 2015

Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2015-2018 Application for approval of the Centre for Non-Violence Inc. Enterprise Bargaining Agreement 2105-2018.

[1] On 7 April 2015, the Centre for Non-Violence Inc. (CNV, the Centre) made an application for approval of the Centre for Non-Violence Inc Enterprise Bargaining Agreement 2015 – 2018 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement and it was lodged within 14 days after it was made.

[2] On 21 April 2015, the Australian Services Union (ASU, the union) filed a Form F18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question "Does the union support the approval of the Agreement by the Fair Work Commission?", the ASU answered "No".

[3] The ASU opposed the approval of the Agreement on the basis that section 180 (5) of the Act had not been complied with and so argued that the Commission cannot be satisfied that the Agreement has been genuinely agreed to pursuant to section 188 of the Act.

[4] The application was listed for hearing on Monday 4 May 2015. Witness statements and an Outline of Submissions were filed by the ASU on 1 May 2015. A witness statement and Outline of Submissions was provided by the Victorian Employers’ Chamber of Commerce and Industry (VECCI), on behalf of CNV, on 4 May 2015. At the end of the hearing, unfortunately, the Commission reserved its decision due to the need to give further consideration to the material before it.

1. Background

[5] The following matters appear to have been common ground between the parties or were otherwise not contested:

• The existing agreement is the Emergency Accommodation and Support Enterprise Inc Employee Collective Agreement 2007.



• Negotiation meetings to replace the existing Agreement commenced in November 2013. 1



• CNV wrote to the ASU, on 2 March 2015, and advised that, of the remaining six changes sought by the union in the proposed agreement, CNV was prepared to make all of the changes except for one change. This particular change concerned modifying the dispute resolution clause and CNV explained the reasons for the organisation's decision not to agree to that request. 2



• On 6 March 2015, the ASU lodged a bargaining dispute under section 240 of the Fair Work Act. A conference was held on 18 March 2015 but no resolution was reached. 3



• On 11 March 2015, CNV e-mailed all staff the EBA Negotiation Update. 4



• A staff meeting was held with all staff on 17 March 2015 with the Committee of Management and the Acting CEO in attendance. The purpose of the meeting was to explain the content of the Agreement and to notify staff of the time, place and method of voting. 5



• A union meeting was held on 19 March 2015 during which a bargaining update was distributed to members. Mr Wiegard and Mr McCourt were in attendance from the union. 6



• Ms Darmanin, Branch Executive President of the ASU, wrote to CNV on 19 March 2015 requesting that the Centre correct two allegedly untrue statements in the employer's EBA Negotiation Update. The statements of concern to the union were that the outstanding clause was "a little used clause not affecting your day to day work" and that there had "been no issues to date in this area of the 2007 agreement." 7



• The vote was held on 24 March 2015. 24 employees voted in favour of the Agreement and 7 employees voted against the Agreement.

2. Witness Evidence

(a) CNV

(i) Ms Davies

[6] Ms Davies is the Operations Manager of CNV. She provided a written witness statement,  8 in addition to giving oral evidence.

[7] Ms Davies gave evidence that:

• There were two remaining employees who had raised concerns about their reclassifications in 2012 9. There were many meetings held with the employees and VECCI was involved to provide assistance. The organisation re-met with staff and gave them every opportunity to put their case forward for reclassification. Management made a determination that the employees should not be reclassified to a higher level. Although the employees did not agree with the outcome, a determination was made on the basis of all of the factual evidence. 10



• These were disputes under the existing Agreement.  11



• When reviewing the EBA Negotiation Update, 12 Ms Davies did not consider marking up or indicating that the first full paragraph on the second page was a misleading statement.13



• CNV provided instructions, to VECCI, to not agree to the FWC dealing with disputes as part of the dispute resolution procedure in the proposed agreement, as sought by the ASU. 14



• It was confirmed that the FWC does not charge for its dispute resolution procedures. Ms Davies was aware of this when the EBA Negotiation Update was prepared. 15



• It was Ms Davies’ understanding that, under the 2007 agreement, if the parties had gone to an external dispute resolution provider, there would have been a cost involved. 16



• The EBA Negotiation Update stated that employees received a benefit due to the inclusion of the FWC in the proposed Agreement. 17



• It was confirmed that, under clause 7 of the proposed Agreement (the new dispute settlement procedure), CNV can still refuse to have the FWC arbitrate a matter. 18 It was Ms Davies’ understanding that disputes would come, automatically, to the FWC for mediation and conciliation.19 The organisation was trying to strike a balance between being a small organisation and the non-sustainability if all disputes went to the FWC for arbitration.20



• Ms Davies believed that, if the matter was not resolved through mediation, it would be taken back to the workplace where the organisation would try and resolve it. Her understanding was that there were no other external avenues available to employees if, following mediation/conciliation, the matter was not resolved. 21



• The organisation prides itself on always having an open door policy with staff. There is a lot of supervision and support and the organisation is very welcoming of any concerns that staff raise. The CEO was described as very compassionate and the organisation was said to have always listened respectfully to any genuine concerns that staff might have. 22



• In her written statement, Ms Davies provided a detailed account of what occurred during the meeting on 17 March 2015. 23 In relation to the dispute resolution clause, Ms Davies had explained that the existing clause had only been modified slightly and that the language had been strengthened to mention the FWC as the independent mediator/arbitrator.24 She had also explained that the ASU did not agree with the new proposed wording as the union felt it was unfair that the dispute could not go directly to the FWC unless it was mutually agreed by both parties.25

(ii) Ms Watson

[8] Ms Watson is the Finance Manager of CNV.

[9] Ms Watson gave evidence that:

• On 17 March 2015, a special meeting was held with the acting CEO and staff to explain the new provisions of the new agreement. It lasted well over an hour. 26



• During the meeting, it was mentioned that the dispute clause had not been agreed on. It was also mentioned that it had not changed significantly from the previous enterprise agreement. The only change was to include the FWC as the place to refer any matters to. 27



• No particular disputes were talked about during the meeting. 28



• Ms Watson understood, as a result of the meeting, that the dispute clause provided that, if there was a dispute in relation to the Agreement, if there was no resolution internally, on the basis of mutual agreement, it could be taken to the FWC. 29



• Ms Watson received correspondence from the union regarding why it did not support the Agreement. It was recalled that the union's view was that the dispute clause denied people their rights and that that had not been made clear. 30

(iii) Ms Elliott

[10] Ms Elliott is the receptionist/admin/Quality Assurance Officer of CNV.

[11] Ms Elliott gave evidence that:

• Ms Elliott received a notice from her employer regarding the details of the vote that was to be held. 31



• Following receipt of that notice, she attended a meeting on 17 March 2015 which went for 1.5 –2 hours. 32



• During the meeting, it was said that the dispute resolution procedure had been a sticking point in getting agreement about a new enterprise agreement and that the Board of Management had decided that they were going to bring it to a head by putting it out to a vote. The dispute resolution procedure was not an issue for her but it was certainly an issue for the staff members. It was recalled that it was not very clear to the staff members as to how it was going to proceed. 33



• It was recalled that a couple of staff members had raised the issue of the dispute resolution procedure because it had not been explained to them in their union meetings. Ms Elliott said that the union representative present had indicated that she could not explain it but that the Organiser would explain at their next meeting. 34



• Ms Elliott's understanding of the proposed dispute resolution clause was that, if the matter could not be resolved internally, both parties would need to agree to it going further. 35

(b) ASU

(i) Mr Wiegard

[12] Mr Wiegard is a Branch Coordinator with the ASU. He provided a written witness statement 36 and also gave oral evidence.

[13] Mr Wiegard gave evidence that:

• He attended a meeting on 9 March 2015 to update members but did not attend any of the bargaining meetings. 37



• He had assisted Mr McCourt in preparing the CNVEnterprise Agreement 2015 flyer which was distributed to members on 9 March 2015. 38



• The issue of the proposed dispute resolution procedure was discussed at the meeting of members on 9 March 2015. 39



• In his written statement, Mr Wiegard explained that the dispute resolution procedure was the only remaining point of disagreement between the ASU and CNV. It was stated that the union was seeking a procedure that allows a party to unilaterally take a dispute to the Fair Work Commission. 40

(ii) Ms Maggs

[14] Ms Maggs is employed as Children's Resource Worker with CNV and is an elected Workplace Delegate for the ASU. Ms Maggs provided a written witness statement 41 and also gave oral evidence.

[15] Ms Maggs gave evidence that:

• Ms Maggs disagreed with Ms Davies’ statement that, during the 17 March 2015 meeting, a staff member had said that some union members were disrespectful to non-union members’ opinions and that another staff member had raised concerns that the union did not support team leaders. 42



• Ms Maggs agreed that a staff member had asked why, if the dispute resolution clause was such a big issue, the union had not mentioned it before. Ms Maggs explained the reasons why this person had not been receiving the regular union updates. 43



• Ms Maggs confirmed that management had explained that it did not want employees constantly going to the FWC with insignificant workplace issues. This was said to be a waste of the agency's time. 44



• It was recalled that staff were informed that the dispute resolution clause would not affect them and that it was other matters within the new agreement that staff needed to be concerned about. It was also said that ordinary workplace disputes would not be affected by the new agreement and that the option to take matters to FWC was the best option for staff and the organisation as it would not cost anything (compared to a private dispute resolution provider). It was recalled that staff were also told that they had already had a similar clause in the current agreement and that it had worked well for many years. 45



• It was confirmed that she had suggested that she preferred for Mr McCourt to explain the dispute resolution clause and the process when he came to update members at a meeting to be held later that week. However, Ms Maggs recalled that, later in the meeting, she had expanded a little bit more about the process by explaining that staff could make their own choice in relation to arbitration. 46 She did not recall saying that she was not in a position to explain the clause as she did not have the full detailS.47



• Ms Maggs agreed that the five issues out of the six, that had been agreed to, were discussed at the meeting on 17 March 2015. 48



• Ms Maggs confirmed that there was a meeting of union members only on 19 March 2015 with Mr McCourt present. 49 She also confirmed that the union ran a "No" campaign on the Agreement.50



• Ms Maggs had followed up, personally, four people who could not attend the meeting on 19 March 2015. 51 It was confirmed that the union flyer was e-mailed prior to the meeting and that the dispute resolution clause was discussed at the meeting (seven staff were in attendance). Members were spoken to about the importance of the clause. An example that was given was the classification dispute, which had resulted in individuals in the process of going to the Federal Court.52



• During the meeting on 19 March 2015, the Centre's agreement to five out of the six remaining items was briefly discussed. 53



• There were no arrangements put in place for a joint (CNV and ASU) explanation of the terms of the proposed Agreement. 54



• In her written statement, Ms Maggs explained that she had represented members in at least six disputes, including the classification disputes and was surprised when management had stated that the dispute settlement procedure had not been used and was irrelevant. 55

(iii) Ms Wark

[16] Ms Wark is an Organiser with the ASU. Ms Wark provided a written statement 56 and was not cross-examined.

[17] Ms Wark’s written evidence went to the classification disputes of three members which commenced in July 2013. 57 Ms Wark’s statement set out the chronology of what became two disputes, including their lodgement in the Fair Work Commission and subsequent withdrawal. It was stated that one of the members concerned is in the process of pursuing advice about making an application to the Federal Circuit Court to deal with the issue.58

3. The Parties’ Arguments

(a) CNV

[18] It was submitted, on behalf of CNV, by Mr Barkatsas, that the written and oral evidence showed that CNV has taken reasonable steps to explain the content of the Agreement and the affect of those terms. This was said to have been evidenced by the vote notice and the meeting held with all staff which went for more than 2 1/2 hours. It was stated that Ms Davies’ evidence, in relation to the meeting on 17 March 2015, went into great detail about what was discussed. The evidence was said to show that it was perhaps a robust discussion with the employees asking questions and being given answers. 59 The Centre also argued that the union's witnesses had highlighted the dispute resolution clause issue, particularly in the context of the meeting on 19 March 2015.60

[19] On the basis of the Full Bench decision in McDonald's Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association 61 (McDonald's), together with other authorities since then, it was argued that the test regarding section 180 (5) of the Act is not an absolute requirement, but a requirement to take all reasonable steps to explain the content and the effect of the agreement. In this matter, it was indicated that the union’s issues in this regard, concerned only the explanation of the terms of the proposed dispute resolution clause.62 Further, it was contended that there is a Full Bench decision to the effect that it is not a requirement that a dispute settlement procedure clause in an agreement has to have a determinative aspect to it.63

[20] The Centre submitted that regard should be had to the fact that the parties had been bargaining for 14 months and that the union had made significant gains. Only one item remained in dispute – the dispute resolution clause. 64 CNV decided to put the proposed agreement to the vote and, in the course of doing so, held meetings and distributed correspondence that explained the terms of the proposed agreement. Therefore, it was contended that, based on the McDonald's decision and the decision of the Full Bench in the University of New South Wales (Professional Staff) Enterprise Agreement 201065 (University of NSW Full Bench), section 185 (a) does not require an explanation of every clause in the agreement. Rather, the employer has a duty/obligation to take all reasonable steps to do so. It was submitted that, based on the evidence, this is what CNV had done.66

[21] It was also argued that the obligation is not discharged in a vacuum but in the context of the employer. It was stated that the Centre is a small regional employer (35 employees) and that a lengthy all-staff meeting was held, together with a notice to staff explaining, amongst other things, the current situation with various clauses of the proposed agreement explained. Reference was also made to the decision of Vice President Lawler in University of New South Wales (Professional Staff) Enterprise Agreement 2010 67 (University of NSW) and the decision by Commissioner Asbury in Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailor Park.68 The Centre contended that, in terms of the authorities cited, the obligations set out in section 180(5) had been complied with.69

[22] In addition, Mr Barkatsas argued that the ASU's "No" campaign should not be ignored in relation to the union's role in explaining the terms of the agreement. The University of NSW Full Bench decision was referred to in this regard. 70 It was stated that the evidence was clear that the ASU was not happy about the proposed dispute resolution clause and that they had explained it and talked about it with their members.71

[23] Further, in relation to the ASU's arguments directed to section 188(c), it was contended that the employees had genuinely agreed and that there were no other reasonable grounds for believing that the agreement has not been genuinely agreed to. CNV rejected the contention that the explanation of the dispute resolution clause in the EBA Negotiation Update was misleading. It was argued that the characterisation of the clause as technical or unimportant was not misleading in the situation where the only direct evidence of the predecessor clause being used was for three employees over two years ago. Such a low level of workforce disputation was said to not result in the characterisation of the clause, in the EBA Negotiation Update, being misleading. 72

[24] Vice President Lawler's decision in the University of NSW was highlighted in respect of his view that there needed to be some proper basis for supposing that the misleading statement may have been determinative in the vote getting over the line. 73 It was argued that there is no evidence which provides a reasonable basis for the supposition (which was not conceded) that a misleading statement has been determinative in the vote getting over the line. CNV stated that there was no evidence before the Commission that employees were mislead, duped or otherwise deceived about what that clause was in the context of the overall agreement. In the absence of any evidence, it was contended that it is a very high hurdle for the Commission to come to the conclusion that the agreement was not genuinely agreed to. Further, this situation was said to be one where the vote was not close one as it was a vote of 25 to 7.74 Commissioner Lee's decision in MSS Security Pty Limited75 (MSS Security) was said to have been in accordance with Vice President Lawler's decision.76

[25] In addition, the Centre denied that there was a false representation or material nondisclosure regarding the dispute resolution clause as was dealt with in ASU v Yarra Valley Water Corporation 77 (Yarra Valley Water Corporation). The Full Bench found that an agreement would not have been genuinely agreed to if the false representation could reasonably be expected to have had the effect of deceiving the employees into voting for something that they would not have voted for, had they known the true position.78

[26] Therefore, it was contended that there was no evidence that the dispute resolution issue was, in any way, determinative of the overall vote outcome. Nor was it the way that it has been alleged that the dispute resolution clause was characterised in the EBA Negotiation Update, that got the Agreement over the line. It was argued that, rather, it could have been the generous leave provisions that got the vote over the line. Account also needed to be taken of the ASU's "No" campaign which highlighted the issue. It was submitted that there is no reasonable basis for the Commission to overturn the vote of the employees as there is no evidence before the Commission that the dispute resolution clause issue was determinative in getting the Agreement across the line. 79

[27] In his submissions in reply, Mr Barkatsas argued that there is no proper basis before the Commission for the Commission to conclude that the 12 March 2015 correspondence was determinative in getting the vote up. That 78% of employees voted in favour of the Agreement was highlighted. In addition, it was stated that there was no evidence that it was a deliberate intent by the Centre to mislead employees. Rather, as part of the cut and thrust of bargaining, such statements were going to be made. Finally, it was contented that, practically speaking, there is no proper basis to overturn the entire vote (25 to 7) on the basis of the statements in the EBA Negotiation Update. 80

(b) ASU

[28] On behalf of the union, Mr Bray confirmed that there were two grounds to the ASU's contention that the Agreement should not be approved. The first contention was that, pursuant to section 186(2)(a), the Commission cannot be satisfied that the Agreement was genuinely agreed to by the employees to be covered by the Agreement with reference to the statutory test at section 188. The two parts of the statutory test, that were stated to be relevant in this matter, were section 188(a)(i) – with regard to compliance with section 180(5)(a) (the requirement to take all reasonable steps to explain the terms of the Agreement and the affect of those terms). 81

[29] The second contention was submitted to be the test at section 188(c) as it was argued that there were other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. 82

[30] Further, the union confirmed that the sole issue, at the time the Agreement went to the vote, was the dispute resolution procedure (clause 7 of the proposed Agreement). 83

[31] The Commission was referred, firstly, to the decision of the Federal Court in CFMEU v Australian Industrial Relations Commission 84. This decision was said to be authority in relation to the importance of a valid majority vote and the moral authority that that vote needs to provide. It was argued that the Commission, therefore, did not have the ambit to approve an Agreement in a case where a statement has been made that is factually wrong – which had resulted in the moral authority of the Agreement being completely undermined. Given that the Agreement clause in question is the dispute resolution clause, this was stated to have raised to a higher level, the false statements that were made in relation to it.85

[32] With respect to McDonald's, the Commission's attention was drawn to a different passage of the decision from the one highlighted by the Centre. This passage set out the Full Bench's view that the requirements for approval should be considered in a practical and non-technical manner and that reasonable efforts should be made to clarify matters with the parties. In the context of this matter, the union contended that the ASU had taken reasonable steps to notify CNV of its concerns including the misleading statements. It was stated that there was no evidence that CNV took any steps to remedy those statements. 86 Ms Darmanin had written to CNV, after the Commission conference, and had clearly identified those statements in the EBA Bargaining Update that were believed to be misleading and factually incorrect.87 Therefore, the Agreement cannot be approved.88

Section 180(5)(a)

[33] In terms of the requirements of section 180(5)(a), the ASU contended that the steps to be taken should be reasonable steps that are reflexive i.e. they should respond to all of the circumstances as they arise during the process. In addition, the Commission should apply the requirements of section 180(5) in a non-technical way. It was argued that the Commission cannot be satisfied that the Centre has complied with section 180(5)(a). The union indicated that both parties agreed that the appropriate test was that contained in Vice President Lawler's decision in the University of NSW case. The test was described as requiring a practical approach by the Commission and that the steps that will constitute all reasonable steps will vary according to different circumstances. 89

[34] Following a discussion of the University of NSW Full Bench decision, together with the McDonald's decision, the union distilled the principles arising from those decisions in relation to the circumstances surrounding the pre-approval process in this matter and whether CNV took all reasonable steps using a practical and non-technical approach. There were stated to be a number of categories for dealing with this question. 90

[35] The first category was said to be that the subject matter was important. It was stated that the statements made by CNV were blatantly misleading and that the subject matter (the dispute resolution procedure) was important, both objectively and subjectively. In terms of objectively, the union argued that the dispute resolution procedure is important to the operation of the Agreement as it is necessary to have a process for dealing with any issues that arise. Further, it was stated to be one of the mandatory requirements of an agreement. Although arbitration is not required, the contents of the dispute resolution procedure were obviously important. 91

[36] Secondly, it was contended that, subjectively, it was important because members of the ASU had continuously raised it as a major point of bargaining concern. The union stated that everybody understood that it was an incredibly important provision and that almost the entirety of the employer’s EBA Negotiation Update was directed to that issue. 92

[37] The ASU submitted that the union's concerns that the statements were misleading were not irrelevant or technical or hair splitting. Rather, it was argued that the letter to the union, from CNV, on 11 March 2015 and the information provided to employees on 17 March 2015, mischaracterised a supposed financial gain to employees. This was because CNV had refused for the FWC to be the mutually agreed provider in relation to two classification disputes, but CNV did not propose a dispute resolution provider of their own. Therefore, it was argued that it is impossible to test whether the cost would have been split. 93 Further, the union argued that the EBA Bargaining Update, distributed by CNV, compounded the misleading statements with an outright lie where it stated that disputes had not been raised under the Agreement previously.94 It was said that the evidence also showed that no specific disputes were discussed at a staff meeting on 17 March 2015. In addition, it was indicated that there was no evidence that CNV took any steps to remedy the misleading information.95

[38] It was acknowledged that the union’s "No" campaign was relevant but the ASU contended that it is not the sole indicator of information being distributed to employees in a manner which discharged the obligations under section 180(5)(a). The union stated that, unlike in McDonald's and the University of NSW Full Bench decision, there was no collaboration between CNV and the union. Rather, it was described as hostility. 96

[39] With respect to the issue of the composition of the workforce, this matter was distinguished from the University of NSW cases where the workforce there was experienced and a group of professional employees. This was said not to have been the case in relation to CNV's workforce. 97 The union argued that it was not reasonable for CNV to import the sophistication of the University of NSW's workforce into a small workforce that was not experienced in collective bargaining and where there was a hostile outcome at the conclusion of the negotiations.98

[40] Further, the union distinguished between the existing Agreement (which had been made under the Work Choices Amendment Act 2005) and the requirements under the Fair Work Act 2009 in relation to the dispute settlement procedure. It was argued that the current requirements were quite different to the less authoritative role of the Commission under the earlier legislation. 99

Section 188(c)

[41] The ASU acknowledged that, in the University of NSW Full Bench decision, it was stated that some misleading statements may arise in the heat of the cut and thrust of negotiations. However, it was submitted that one of the misleading statements in this matter, was factually misleading and was brought to the attention of the employer. 100

[42] It was contended by the ASU that there are reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. The union took no issue with the Centre’s submission that the appropriate test for section 188(c) was the one set out by Vice President Lawler in the University of NSW case. In addition, it was argued that the other relevant authority was the Yarra Valley Water Corporation case. The union stated that this Full Bench had adopted a similar approach to Vice President Lawler by finding that a false representation may constitute a reasonable ground for finding that section 188(c) had not been met if it could reasonably be expected to have deceived the employees into voting for something which, if they had known the true position, they would not have voted for it. 101 It was argued that, in a practical sense, this test would be impossible for the Commission to satisfy as each employee would have to give evidence as to their subjective opinion at the time of the site.102

[43] Rather, the union submitted that the test was to look at the circumstances and decide whether there was a reasonable expectation that it had made a difference. As the dispute resolution procedure was the only non-agreed issue, a reasonable inference could be drawn that factually incorrect information on this issue would have deceived employees into voting for the Agreement, which they would not have done if they had known the true position. 103

[44] The ASU argued that there was not a requirement that there be a deliberate act or malice or intention behind the statements. It was contended that the only question was whether or not the employees were deceived. The union distinguished this case from the decision in Yarra Valley Water Corporation on the basis that the issue here (the dispute resolution clause) was not trivial and that CNV had not responded to the employees in relation to the ASU's concerns. 104

[45] Further, reference was made by the ASU to the decision in MSS Security 105. Commissioner Lee’s finding that there was not a proper basis for concluding that the failure to mention adverse changes was not determinative in getting the vote over the line, was distinguished from this matter. This was on the basis that the particular issues, in the MSS Security case, were not significant issues at the time of the vote. In this matter, there was only one point of contention and a factually misleading statement was made in relation to it, rather than the omission of material about two issues which were not significant issues in the MSS Security case.106

[46] It was submitted that there is a reasonable basis on which to believe that, had the employee's known of the existence of the previous disputes and the circumstances of those disputes, the employees may have thought very differently about how they would vote. 107 That the Commission was balancing a range of factors was acknowledged but it was submitted that there is one critical fact – the misleading and factually incorrect statement. It was argued that the dispute resolution clause was clearly at issue and, more importantly, that it was the sole issue. Therefore, the Commission was able to reach a reasonable inference about it affecting the vote as it was the sole issue the employer was concerned about in getting its preferred agreement across the line – and it had made a misleading statement about it.108

[47] With respect to the voting outcome, the ASU submitted that the McDonald's decision found it to be an important factor whilst, in MSS Security, the extent of the majority was balanced against other factors. It was contended that the vote was part of the weighing up of all of the factors and was not solely determinative of whether an agreement should be approved. 109

[48] The ASU submitted, therefore, that there is a proper basis to find that there are reasonable grounds to believe that the Agreement was not genuinely agreed to, as required by section 188(c). This was on the basis that the dispute resolution procedure is an important component of an agreement; attempts were made to clarify the incorrect statements made by CNV but no reasonable steps were taken to correct them and this issue appeared to be important to both parties. The latter was said to be particularly so when CNV offered up to 3% of additional wages per annum to put aside those disputes. 110

4. Considerations and Conclusions

[49] The ASU opposed the approval of the Agreement on the grounds that the Commission could not be satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement, in accordance with section 186(2)(a) of the Act. The union contended that the Commission could, therefore, not be satisfied that sections 188(a) (i)/180(5)(a) and 188(c) have been complied with by CNV. This was on the basis that the employer had made misleading and factually incorrect statements which, if the employees had known the correct factual situation, it could reasonably be inferred, that the employees would have changed the way they voted. Therefore, it was submitted that the employer had not taken all reasonable steps to explain the terms of the Agreement to the employees together with the effect of those terms. Accordingly, the union stated that the Agreement had not been genuinely agreed to by the employees covered by the Agreement.

[50] For its part, CNV denied that any misleading or factually incorrect statements had been made and submitted that all of the legislative requirements for approval of the Agreement had been met. It was contended that the employees had genuinely agreed to the Agreement as the employer had taken all reasonable steps to explain the terms of the Agreement, and the effect of those terms, to the employees.

Relevant statutory provisions

[51] As set out in the Yarra Valley Water Corporation decision 111, the relevant statutory provisions are as follows:

“Section 186 sets out the basic requirements applicable to the approval of enterprise agreements. Subsections (1) and (2) provide:

“Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.”

“Note 1” to subsection 2 states: “For when an enterprise agreement has been genuinely agreed to by employees, see section 188.” Section 188 provides:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

For completeness, s.180(5) (which is referred to in s.188(a)(i)) provides:

“(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.””

Considerations

[52] The arguments put forward by the ASU overlapped between the issue of CNV’s compliance with section 180(5)(a) and their compliance with section 188(c). For ease of discussion, I will consider whether CNV has complied with section 188(c) in the first instance. I will then deal with the requirements of section 180(5)(a) and any additional arguments put forward which have not been taken into account in considering section 188(c) of the Act.

Section 188(c)

[53] The ASU’s contention that CNV had made misleading and factually incorrect statements in relation to the dispute resolution clause of the proposed Agreement, falls squarely to be considered under section 188(c) of the Act. The union took no issue with the other clauses of the Agreement and did not challenge that the employer had taken all reasonable steps to ensure that all of the other terms of the Agreement (except for clause 7), and the affect of those terms, were explained to the relevant employees. It was accepted that the Commission could be satisfied that the requirements of section 186(2)(a) had been met, in relation to the Agreement, save for clause 7 of the proposed Agreement.

[54] CNV rejected the ASU’s claims that the statements were misleading and denied that the statements in question were factually incorrect. The Centre contended that the characterisation of the dispute resolution clause as technical or unimportant was not misleading as the only direct evidence of disputation was in relation to three employees a couple of years ago. It was argued that there was no evidence before the Commission which would support a finding that the employees were deceived and that, if they had known the true position, they would have voted down the Agreement.

[55] It is useful at this point, to set out the contentious paragraphs of the EBA Negotiation Update. They are as follows:

“The one sticking point – a little used clause not affecting your day-to-day work
Staff may know the current EBA (“Centre for Non-Violence Enterprise Agreement 2007”) contains a clause which did not provide any external determination of staff matters, only that “parties could elect to use an alternative dispute resolution process” but that it could only be “conducted by a person agreed between the parties in dispute on the matter” (see cl.6.2). Presumably if such a mediator/ADR practitioner was paid for their services the parties to the dispute would need to divide the fee equally between them (noting there is no provision for CNV to have to pay for disputes brought against it).

We have replicated and improved this clause, providing the ‘industrial umpire’ the Fair Work Commission (“FWC”) as the body responsible for determining such disputes and continuing the practice from the 2007 Agreement whereby this can be done where both parties consent. Importantly, we have drafted this clause in such a way whereby any cost is removed for employees, with the FWC providing a completely free service for employees who seek to have such matters resolved/litigated externally. We consider this clause strikes the right balance and continues the 2007 Agreement clause which has worked very well for CNV and employees for many years. The ASU’s concerns here are of a technical and irrelevant nature given our workforce and that there has been no issues to date in this area of the 2007 Agreement. Rather than needlessly fighting over an unimportant technical clause we want to ‘get on with it’ and give employees a voice and a Say to Vote Yes and receive a payrise rather than delay, delay, delay!” 112

[56] With respect to the second (larger) paragraph reproduced in the paragraph above, during the hearing on 4 May 2015, based on the material before the Commission, the Commission made the finding that this paragraph was factually incorrect. 113 Evidence had been provided by the union that two classification disputes had been notified to the FWC in December 2013.114 This evidence is contrary to the statement made in the employer’s EBA Negotiation Update that ‘...there has been no issues to date in this area of the 2007 Agreement.’ The fact that these classification disputes occurred and that the ASU had notified the Commission, was not disputed by the Centre. Therefore, I confirm the finding that the statement ‘...there has been no issues to date in this area of the 2007 Agreement..’ is factually incorrect and can also be described as misleading.

[57] Vice President Lawler, in the University of NSW, stated that:

“It is inevitable that in a hotly contested vote in which opposing parties actively campaign for or against support of an agreement that statements will be made that can be characterised as misleading...” 115

[58] I have formed the view that the statement in question does not fit into the category outlined by Vice President Lawler. It is understood that, as part of enterprise bargaining, both parties, on occasion, will add "spin" to their respective "take" on the negotiations. However, that the statement concerned was factually incorrect is a serious matter, which cannot necessarily be explained away by industrial experience. This is particularly so as this issue was the last sticking point in the negotiations between the parties. That it was the last sticking point was referred to in the EBA Negotiation Update.

[59] The Commission also expressed the view that the misleading statement concerned one of the mandatory clauses required to be in an agreement. 116

[60] The Commission was referred by both parties to a number of authorities e.g. McDonald's, University of NSW and the University of NSW Full Bench, Yarra Valley Water Corporation and MSS Security. The parties generally agreed on the relevant test to be applied in determining this matter. Of these authorities, the Yarra Valley Water Corporation Full Bench dealt squarely with the issue of misleading statements, as did Vice President Lawler in the University of NSW (this aspect was not disturbed by the University of NSW Full Bench decision) and MSS Security (Commissioner Lee concurred with Vice President Lawler's decision on this point).

[61] In the Yarra Valley Water Corporation decision, the Full Bench found that, in certain of the employer's documentation to employees about the proposed agreement, there were a number of misleading propositions. The Full Bench expressed the following view:

“A false representation or a material non-disclosure by an employer in the course of bargaining for an enterprise agreement may constitute a reasonable ground for believing under s.188(c) of the Act that an enterprise agreement has not genuinely been agreed to by employees if it could reasonably be expected to have had the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for. The question in this appeal is whether the misleading representations in the Emails and the Table could reasonably be expected to have had this effect.” 117(footnote omitted)

[62] The conclusion reached by the Full Bench was that the e-mails and the Table could not have had this effect. 118 This was on the basis that the issues were trivial compared to wage increases and back pay and that, because of the strong ASU "No" campaign, this would have alerted employees to the need to carefully consider all of the provisions of the agreement in making their decision about which way to vote.119

[63] Vice President Lawler, in the University of NSW decision, made the following observations about the impact of misleading information:

“There can be little doubt that if employees are sufficiently mislead about the contents or effect of a proposed enterprise agreement this may form a proper basis for a finding that the agreement was not "genuinely agreed to" by employees as required by s.186(2)(a) notwithstanding that a majority of voting employees voted to approve the agreement. In a proper case s.188(c) would be engaged. Obviously, whether this is so will depend on all of the circumstances.....” 120

And further:

“It is inevitable that in a hotly contested vote in which opposing parties actively campaign for or against support of an agreement that statements will be made that can be characterised as misleading. To the extent that reliance is placed on misleading statements to the voting employees as "a reasonable ground for believing that the Agreement has not been genuinely agreed to by the employees" within the meaning of s.188(c) a practical approach, that takes account of this reality, is called for. There needs to be some proper basis for supposing that the misleading statements may have been determinative in the vote getting over the line." 121

[64] It was concluded by the Vice President that, in the circumstances of that case, he had not been persuaded that the employees were mislead to the extent that he should therefore be satisfied that the agreement had not been genuinely agreed to. 122

[65] The primary question, therefore, is whether, in all of the circumstances, there is some proper basis for supposing that, had the employees known about the two previous disputes under the existing Agreement and their circumstances, they would have thought differently about how they would vote?

[66] In answering this question, there are a number of factors that need to be taken intoaccountas part of the circumstances of this particular matter. As indicated during the hearing, some of these factors include the following:

• A misleading/factually incorrect statement regarding the absence of any disputes under the existing Agreement was made in the employer’s EBA Negotiation Update document which was circulated to all employees.



• The disputes resolution clause of the proposed Agreement was the sole remaining issue which had not been agreed between CNV and the ASU.



• The ASU ran a "No" campaign against the Agreement on the basis of this non agreed clause.

[67] I have carefully considered all of the material before me. Serious as it is that the employer made a factually incorrect and misleading statement about the only remaining non-agreed item, on balance, I have not been persuaded that a reasonable inference can be drawn that the factually incorrect statement about the absence of any prior disputes would have deceived employees into voting for the Agreement - which they would not have done if they had known the true position. In forming this view, I am mindful that the ASU ran a vigorous ‘No’ campaign on the issue of the dispute resolution clause. That the union opposed the Agreement on this basis was set out in the employer’s EBA Negotiation Update. It is reasonable, therefore, to assume that employees were aware of the issue and the reasons for the union’s opposition to the Agreement. As well, the staff meeting on 17 March 2015 appears to have lasted about two hours and, on the basis of the evidence, it seems to have been a vigorous meeting with the staff asking a number of questions. It seems that the issue in contention was discussed but it is noted that the fact of previous disputes was not raised during the meeting - by anyone.

[68] Therefore, in terms of the test set out in the Yarra Valley Water Corporation decision and the decision of Vice President Lawler in the University of NSW, on balance, I do not consider that the misleading statement by CNV, in relation to prior disputes, could reasonably be expected to have had the effect of deceiving the employees into voting for something which, if they had known the true position, they would not have voted for.

[69] Accordingly, I am satisfied that there are no reasonable grounds, for the purposes of s.188(c) of the Act, for believing that the Agreement was not genuinely agreed to by the employees covered by it.

Section 180(5)(a)

[70] I turn now to the ASU’s submissions that CNV did not take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the employees. As indicated earlier, the union’s objections concern only clause 7 (the dispute resolution clause) of the proposed Agreement. The union argued that the Centre has not complied with this requirement of the pre-approval process on the basis that the statements in the employer's EBA Negotiation Update were misleading. This was said to be particularly important given that, when advised by the union that the statements were misleading, CNV took no steps to remedy the situation. In addition, it was contended that the dispute resolution clause is an important clause, in and of itself and also because it was a major point of bargaining concern during the negotiations and was the sole remaining non-agreed clause in the Agreement that was put out to vote. The ASU also argued that the composition of the Centre's workforce was a factor to be taken into account, together with the voting result (as one of the factors) and the fact that the union ran a "No" campaign.

[71] On the other hand, CNV submitted that the employer had complied with this particular pre-approval step in relation to the dispute resolution clause of the Agreement as all reasonable steps had been taken to explain the terms of the Agreement. It was argued that the obligation on the employer did not require an explanation of every clause in the Agreement. The Centre also contended that the workforce was a small regional workforce which was not experienced in enterprise bargaining and that a significant number of employees had voted in favour of the Agreement. The ASU’s ‘No’ campaign was stated to be relevant was the lengthy staff meeting on 17 March 2015. It was contended that, as CNV had not accepted that the statements in the EBA Negotiation Update were misleading, therefore, there had been no need to take any remedial action.

[72] The parties held a common view as to the tests to be applied in deciding whether or not the pre-approval process step in section 180(5)(a) has been complied with. Vice President Lawler’s decision in the University of NSW was referred to in terms of adopting a practical approach (which was not disturbed by the Full Bench decision) 123 and also the McDonald’s decision. The latter decision stands for the propositions that the Act requires only that the employer take reasonable steps to ensure that the terms and conditions are explained to employees and that there is no requirement that there be a full explanation of the terms of the agreement prior to the employer requesting employees vote on an agreement. The requirement was said to be that the employer take reasonable steps to ensure that explanations are provided.124 The Full Bench’s findings in relation to the collaboration with bargaining representatives to provide relevant explanations125 is not relevant in this matter.

[73] During the hearing on 4 May 2015, the Commission made reference to a number of relevant factors. Some of these factors have been referred to in paragraph 66 above but will not be repeated here. As well, there is no necessity to repeat the parties’ submissions in relation to the issue of misleading/factually incorrect statements. On the basis of the material before the Commission, the following factors, in terms of the circumstances of this case, and taking a practical approach, are relevant to consideration of whether the requirements of section 180(5)(a) have been complied with by the employer:

• This is a small workplace (about 35 employees), compared to the workforce in the McDonald's and University of NSW cases.



• The employer is a regional employer i.e. not a capital city employer.



• The parties are not highly skilled or experienced in enterprise bargaining (unlike the University of NSW workforce). The current agreement was first negotiated in 2007.



• The parties had been negotiating a new agreement for around 14 months.



• The vote was 25 to 7 in favour of the Agreement.



• At the time of the vote, there was only one item which was not agreed between the parties - the dispute resolution clause.



• The dispute resolution clause is one of the mandatory clauses in agreements and, in that sense, it is important.



• The ASU wrote to CNV, on 19 March 2015, regarding its concerns about a number of statements contained in the EBA Negotiation Update. 126 The Centre was asked to correct the allegedly untrue statements regarding there having been no issues (disputes) to date and that the dispute resolution clause was a little used clause which did not affect employees’ day to day work.127 There is no evidence before me that any remedial actions were taken by CNV.

[74] In addition to the factors set out in the paragraph above, the Commission has already found that the employer’s EBA Negotiation Update contained a misleading and factually incorrect statement in connection with the dispute resolution clause. Taking all of these considerations into account and balancing the various factors, on balance, I am satisfied that in the circumstances of this matter, the employer took all reasonable steps to ensure that the Agreement was explained to employees. There is no evidence before me that the employees were unaware of the dispute between the parties in relation to the dispute resolution clause or of the union’s reasons for this. A lengthy staff meeting was held on 17 March 2015 during which there appears to have been a robust discussion about the proposed agreement, including the non agreed clause. In addition, both parties circulated written explanations of the state of the negotiations and various clauses of the proposed Agreement, including the dispute resolution clause. It is also a small workplace of 35 employees and 78% of the employees voted in favour of the Agreement.

[75] It is clear from the authorities that the requirement is that the employer take reasonable steps to ensure that the terms and conditions are explained to employees. Despite the fact that a part of the explanation provided to employees, in relation to dispute resolution clause of the Agreement, was misleading and factually incorrect, and which was not remedied prior to the vote taking place, the McDonald's Full Bench found that the requirements of section 180(5)(a) do not provide an absolute requirement to ensure that the terms of the Agreement and the affect of those terms, are explained to the employees. Therefore, on balance, I am satisfied that CNV took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to employees.

Conclusions

[76] On the basis of the discussion set out in paragraphs 70 to 75 above, the Commission is satisfied that section 180(5)(a) has been complied with by CNV. Further, the Commission has also been satisfied that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. 128

[77] Accordingly, pursuant to section 186(2)(a), the Commission is satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.

[78] Therefore, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to the application for approval, have been met.

[79] The ASU, being a bargaining representative for the Agreement, has given notice under section 183 of the Act, that it wants the enterprise agreement to cover it. In accordance with section 201(2) of the Act, the Commission notes that the Agreement covers the organisation.

[80] The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 30 June 2015. The nominal expiry date is 31 March 2018.

COMMISSIONER

 1   Exhibit A1 at paragraph 3.

 2   Exhibit R1 at paragraph 4 and attachment LW – 01.

 3   Exhibit R1 at paragraphs 6 and 8 and attachment LW – 04 and LW – 05.

 4   Exhibit A1 at paragraph 5; Exhibit R1 at attachment LW – 06.

 5   Exhibit A1 at paragraphs 6 –8.

 6   Exhibit R1 at paragraph 9 and attachment LW – 07.

 7   Exhibit R1 at attachment LW – 07.

 8   Exhibit A1.

 9   Transcript PN 35 and 37.

 10   Transcript PN 101 – 103.

 11   Transcript PN 38.

 12   Exhibit R2 at attachment JM – 03.

 13   Transcript PN 44.

 14   Transcript PN 45 – 50 and 66; Exhibit R3 at attachment TW – 04.

 15   Transcript PN 67 – 68.

 16   Transcript PN 112.

 17   Transcript PN 69.

 18   Transcript PN 70 and 83.

 19   Transcript PN 88 – 89.

 20   Transcript PN 86.

 21   Transcript PN 93 – 95 and 100.

 22   Transcript PN 112.

 23   Exhibit A1 at paragraphs 6-40.

 24   Exhibit A1 at paragraph 17

 25   Ibid at paragraph 18.

 26   Transcript PN 129 – 131 and 133.

 27   Transcript PN 132.

 28   Transcript PN 150.

 29   Transcript PN 135 – 138.

 30   Transcript PN 141.

 31   Transcript PN 171.

 32   Transcript PN 173 – 176.

 33   Transcript PN 177 – 179.

 34   Transcript PN 180 – 181.

 35   Transcript PN 193.

 36   Exhibit R1.

 37   Transcript PN 222 – 223.

 38   Exhibit R1 at attachment LW – 07; Transcript PN 224 – 225.

 39   Transcript PN 227 – 229.

 40   Exhibit R1 at paragraph 4.

 41   Exhibit R2.

 42   Transcript PN 259.

 43   Transcript PN 265.

 44   Transcript PN 266.

 45   Exhibit R2 at paragraph 9.

 46   Transcript PN 268 and 273 – 277.

 47   Transcript PN 272.

 48   Transcript PN 343.

 49   Transcript PN 278 – 279; Exhibit R2 at paragraph 10.

 50   Transcript PN 280; Exhibit R2 at paragraph 10.

 51   Transcript PN 283 – 285.

 52   Transcript PN 289 – 311 and 344.

 53   Transcript PN 345 – 347.

 54   Transcript PN 366 – 373.

 55   Exhibit R2 at paragraphs 11 – 14.

 56   Exhibit R3.

 57   Exhibit R3 at paragraph 4.

 58   Ibid at paragraph 12.

 59   Transcript PN 409; Exhibit A2 at paragraphs 3 –4.

 60   Transcript PN 410.

 61   [2010] FWAFB 4602 at paragraph 29.

 62   Transcript PN 411; Exhibit A2 at paragraph 9.

 63   Transcript PN 412.

 64   Transcript PN 412.

 65   [2011] FWAFB 5163.

 66   Transcript PN 413 and 430; Exhibit A2 at paragraph 10.

 67   [2010] FWAA 9588.

 68   [2010] FWAA 7217.

 69   Transcript PN 430; Exhibit A2 at paragraphs 9 – 10.

 70   Transcript PN 436 – 438; Exhibit A2 at paragraphs 11 – 12.

 71   Transcript PN 441.

 72   Exhibit A2 at paragraphs 7 –8.

 73   Exhibit A2 at paragraph 13; Transcript PN 445 – 448.

 74   Transcript PN 445 – 448; Exhibit A2 at paragraph 13.

 75   [2013] FWCA 1474.

 76   Transcript PN 449; Exhibit A2 at paragraph 14.

 77   [2013] FWCFB 7453.

 78   Ibid at paragraph 28.

 79   Transcript PN 452 – 455 and 487 – 488.

 80   Transcript PN 631 – 635 and 663 – 664.

 81   Transcript PN 420 and 501; Exhibit R4 at paragraphs 15 – 18.

 82   Transcript PN 502; Exhibit R4 at paragraph 18.

 83   Transcript PN 348 – 353.

 84 [1999] 93 FCR 317.

 85   Transcript PN 504 – 508.

 86   Transcript PN 510 – 512.

 87   Transcript PN 516 – 531; Exhibit R1 at attachment LW – 07).

 88   Transcript PN 512.

 89   Transcript PN 534 – 536.

 90   Transcript PN 540.

 91   Transcript PN 541.

 92   Transcript PN 541.

 93   Transcript PN 547 – 548.

 94   Transcript PN 549.

 95   Transcript PN 549 – 552.

 96   Transcript PN 550 – 553.

 97   Transcript PN 554.

 98   Transcript PN 555.

 99   Transcript PN 554 – 555.

 100   Transcript PN 556.

 101   Transcript PN 560 – 562.

 102   Transcript PN 563.

 103   Transcript PN 563.

 104   Transcript PN 567 – 569.

 105   [2013] FWCA 1474; Transcript PN 570 – 571.

 106   Transcript PN 572 – 574.

 107   Transcript PN 584.

 108   Transcript PN 584 – 604.

 109   Transcript PN 620 – 621.

 110   Transcript PN 623 – 626.

 111   [2013] FWCFB 7453, paragraphs 18-20.

 112   Exhibit R1 at attachment LW-06.

 113   Transcript PN 457 and 469 – 473.

 114   Exhibit R3 at attachment TW-02.

 115   [2010] FWAA 9588 at paragraph 51.

 116   Transcript PN 461.

 117   [2013] FWCFB 7453, paragraph 28.

 118   Ibid at paragraph 29.

 119   Ibid at paragraphs 29 – 30.

 120   [2010] FWAA 9588 at paragraph 48.

 121   Ibid at paragraph 51.

 122   Ibid at paragraph 52.

 123   [2010] FWAA 9588 at paragraph 46; [2011] FWAFB 5163 at paragraphs 32-33.

 124   [2010] FWAFB 4602 at paragraphs 29 – 30.

 125   Ibid at paragraph 31.

 126   Exhibit R1 at attachment LW-07.

 127   Ibid.

 128 Section 188(c), Fair Work Act 2009.

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