Cleanaway Operations Pty Ltd

[2021] FWC 3363

[2021] FWC 3363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleanaway Operations Pty Ltd
(AG2021/261)

CLEANAWAY SOLIDS SERVICES ROCKHAMPTON REGION DRIVERS ENTERPRISE AGREEMENT 2020

Waste management industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 JUNE 2021

Application for approval of the Cleanaway Solids Services Rockhampton Region Drivers Enterprise Agreement 2020.

[1] Cleanaway Operations Pty Ltd (Cleanaway) has applied for approval of a single enterprise agreement known as the Cleanaway Solids Waste Services Rockhampton Region Drivers Enterprise Agreement 2020 (the Proposed Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] I have determined to dismiss the application. The reasons for this decision follow.

Context

[3] Bargaining for an enterprise agreement to replace the Cleanaway Rockhampton Region Drivers Enterprise Agreement 2017 (Current Agreement) commenced on 30 September 2020.1

[4] The Transport Workers’ Union of Australia (TWU) was a bargaining representative of employees to be covered by the proposed enterprise agreement and involved in the negotiations.2

[5] On 28 January 2021, 10 of the 11 employees covered voted to approve the Proposed Agreement.3

[6] After this application was filed, initial concerns were raised by and with the Commission. In particular, about whether the Proposed Agreement passes the “better off overall” test.

[7] Two sets of proposed undertakings were given by Cleanaway and discussed with the TWU in conference.4 Further undertakings were proposed.5 In response to the further proposed undertakings, further issues were raised by the TWU about whether the Commission can be satisfied that the Proposed Agreement was “genuinely agreed”, and the TWU’s initial support for approval of the Proposed Agreement was subsequently withdrawn during the course of the proceedings.6

[8] A hearing was required and took place on 14 April 2021. Closing submissions were subsequently filed and Cleanaway filed a further and final set of proposed undertakings (Final Proposed Undertakings).7

Was the Agreement “genuinely agreed”?

[9] The TWU invited the Commission to find that the Proposed Agreement was not “genuinely agreed” within the meaning of s.188 of the Act. Specifically, regarding whether the terms and effect of the Proposed Agreement had been explained as required by s.180(5).

Statutory context

[10] The starting point under the legislation is that the Commission is required to approve an enterprise agreement if the requirements of ss.186 and 187 are met.

[11] Section 186(2)(a) provides that the Commission must be satisfied that the Proposed Agreement has been “genuinely agreed” by the employees covered by the agreement.

[12] Section 188 defines when employees have genuinely agreed. It establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s.186(2)(a).

[13] Section 188(1)(a)(i) requires compliance with s.180(5), which provides that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees in an appropriate manner taking into account any particular circumstances and needs.

[14] Whilst the statute does not specify a time for compliance with s.180(5), the “evident purpose” was described in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited8as “to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it”.9

[15] A key question will be whether “all” reasonable steps were taken, and what is reasonable will depend on the particular circumstances of the case.

[16] The Act allows the Commission to overlook certain “minor procedural or technical errors” where the employees covered by the agreement are ‘not likely to be disadvantaged by the error” (s.188(2)). A Full Bench of the Commission in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others10 enunciated a number of propositions regarding the proper construction of s.188(2), including to clarify that the “latitude as to the choice of the decision to be made is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgement”.11 Consideration of the genuineness of agreement under s.188(1) and (2) involves an evaluative assessment. The particular circumstances of the case, including factors such as the impact of the error assessed by reference to the objects of the requirement, is necessary in making this assessment.

[17] The content and accuracy of pre-vote communications and explanations may be a relevant consideration in terms of the requirements to take all reasonable steps to explain the terms and effect of the Proposed Agreement (for the purposes of ss.188(1)(a) and 180(5)).12

Summary of the evidence & contentions

[18] Cleanaway’s evidence of the steps taken to explain the terms and effect of the Proposed Agreement to the relevant employees was as follows.

[19] Mr Saliba (Cleanaway’s Senior Human Resources Business Partner) was deponent to the declaration filed with the application. Mr Saliba was not directly involved in the explanation to employees due to geographic distance.13 Nonetheless he declared that, on 19 January 2021: a memo explaining Cleanaway’s offer, a copy of the Proposed Agreement and an explanation of the terms and effect of those terms was provided to each employee; a toolbox meeting was held to inform employees of the Proposed Agreement and provide a full explanation of the terms; and a document outlining all the changes to the Proposed Agreement was distributed to employees and placed on the noticeboard for all employees to access during the access period.14 The agreement memo and explanation of changes document were attached to the declaration.

[20] Mr Williamson (Cleanaway’s Branch Manager) had been involved in the negotiations and was primarily responsible for the explanation to employees.15 He gave evidence of handing out the documents and of some discussion at a toolbox but of taking an individual (rather than collective) approach to the verbal explanations.16 That is, one-on-one discussions which he arranged on 19 January 2021, during which each individual employee was provided with a hard copy of the Proposed Agreement, the agreement memo and the explanation of changes document. Two employees who were on leave were attempted to be contacted by telephone, SMS and at their homes.17 He guided the employees with a line-by-line discussion of the agreement memo and a page turn of the explanation of changes document.18 In the one-on-one discussions, Mr Williamson said he focussed on the “main areas of change” (he listed them as: Period of Operation; Application and Coverage; Interpretation of Agreement; Allowances; Hours of Work; Overtime; Annual Leave; Personal Leave; Family and Domestic Violence Leave and Base Rates of Pay); he invited each employee to ask questions about the changes and how the changes would affect them; he asked each employee if they had any questions and advised that he would be available to answer questions during the access period. Mr Williamson said he was not approached with any questions on the terms of the Proposed Agreement or the effects of the changes.19

[21] The TWU contended that Cleanaway changed significant aspects of the contents of the Current Agreement without ever raising those matters “at any time” with employees. The TWU put in issue the following which it said were not explained and constituted substantial changes with a “profound” impact on the relevant employees: ordinary days of work; ordinary hours of work; payment of overtime; payment of casual employees; access to arbitration and changes to rosters. Of the 11 employees covered, 4 gave evidence that they did not have a one-on-one meeting with Mr Williamson.20

[22] In cross-examination, Mr Williamson said the majority of the changes in the Proposed Agreement (compared to the Current Agreement) were “self-explanatory” and he spent more time on the priority issues for employees being increases in wages and the timeline for those to be implemented. 21 He was taken to certain clauses in the Proposed Agreement and in each case said that where he had explained there would be no change to current arrangements he had also foreshadowed the possibility of future change subject to client or operational requirements.

[23] One such example related to the ordinary hours of work. Under the Current Agreement ordinary hours may be worked Monday to Friday; whereas under the Proposed Agreement there is no limitation on the days on which ordinary hours may be worked (the two clauses are extracted at Annexure A). Regarding this term the explanation of changes document provides, in orange font (to indicate the changes “are necessary for compliance”):

New clause	Old clause	Change
22. Hours of Work	24. Hours of Work	Hours of work The average of 38 ordinary hours per week, over a period of not more than 12 months, will be arranged to meet the ongoing operational requirements of the business.

[24] Mr Williamson accepted that he did not explain to the relevant employees that at any time they could be rostered Monday to Sunday:

“The discussion I had during my one-on-ones is that the hours of work was to continue as they are, Monday to Friday. Weekends to be paid overtime penalty rates for the foreseeable future. The provision is there for change in roster, if and when it arises.”22

[25] His rationale for explaining the term in this way was that such changes would not be implemented until such time as there is customer demand.23

[26] Mr Williamson was also taken to the disputes resolution procedure in the Proposed Agreement which differs to that in the Current Agreement (the two clause are extracted at Annexure B). He acknowledged that under the Proposed Agreement the TWU can not lodge a dispute for arbitration unless Cleanaway agrees. His evidence was that he did not discuss this with employees at all. The discussion was directed to the effect that “any disputes would be taken to TWU who was acting on behalf of the employees”.24

[27] The disputes resolution procedure was however referenced in the agreement memo and explanation of changes documents that Cleanaway distributed to the relevant employees and Mr Williamson said he discussed with each of the employees.

[28] The agreement memo summarised the offer and then “the main terms of the Agreement” as, relevantly:

“Clause 9: Dispute Resolution Procedure – this clause outlines the procedure to resolve disputes for any matter arising under this Agreement or the NES that may be in dispute between the parties.”

[29] The explanation of changes document provided, among other items on page 4 of 13 and in black font (to indicate “changes are considered incidental”):

New clause	Old clause	Change
9. Disputes resolution procedure	11. Disputes Resolution Procedure	Updated only – incidental

[30] In relation to the number of ordinary hours that may be worked per day, Mr Williamson clarified that he was unaware of the impact of the change made in the Proposed Agreement at the time of the one-on-one discussions.25

[31] To the extent of any gap between Mr Williamson’s explanation and the actual effect of the terms in the Proposed Agreement, Cleanaway said its Final Proposed Undertakings clarify and rectify any matters which might otherwise be said to constitute non-compliance with the obligation at s.180(5).

[32] Cleanaway also contended that the steps it took to explain the terms and effect of the Proposed Agreement are contextualised by the employees being respectively experienced in the waste management industry, familiar with the underpinning award and the Current Agreement (many were involved in the negotiations for the Current Agreement), from English-speaking backgrounds and represented in bargaining by an experienced union.

Consideration

[33] Taking Cleanaway’s evidence at its highest, Cleanaway took steps just prior to the commencement of the access period to meet with employees about the Proposed Agreement; provided verbal explanation of some but not all terms of the Proposed Agreement; and otherwise contends that it met the obligation at s.180(5) by distribution of the agreement memo and the explanation of changes document along with a copy of the Proposed Agreement itself.

[34] Cleanaway ultimately proposed the Final Proposed Undertakings which were intended to clarify and rectify any inadvertent difference between Mr Williamson’s explanation to employees and the actual drafting and application of the Proposed Agreement. The range of conditions subject of the Final Proposed Undertakings include: overtime payment for casuals, conditions for part-time employees, rosters and alteration of rosters, notice of directions to take annual leave, definition of “immediate family”, the period for averaging of ordinary hours of work, weekend penalty payments and overtime payments on weekends. The TWU contended that the Final Proposed Undertakings did not adequately address the deficiencies in the explanation of the changes to ordinary hours of work from Monday to Friday to Monday to Sunday or the right to consultation regarding roster changes. The Final Proposed Undertakings at least provide for weekend penalties and overtime payments for time worked on weekends and for rosters to be altered by consent or on 7 days’ notice. Such undertakings would not appear to align the content of the Proposed Agreement with the explanations given in all respects. However, even if the Final Undertakings could be accepted as suitably clarifying and rectifying deficiencies in the explanation of these particular terms and their effect, a further issue remains.

[35] The disputes resolution procedure in the Proposed Agreement is different to the disputes resolution procedure in the Current Agreement. The Proposed Agreement permits final resolution of a dispute by way of arbitration only by express agreement (such agreement may be withheld), whereas under the Current Agreement such arbitration is “as of right”. The proposed disputes resolution procedure alters the method of final resolution of disputes about rights arising under the Proposed Agreement and the NES until such time as the Proposed Agreement is replaced or terminated. In my view, the explanation of the terms necessary to enable employees to make a considered and informed decision on the Proposed Agreement included an explanation of the differences between the current and proposed dispute resolution procedures.

[36] By the agreement memo and explanation of changes document, the employees were directed to where the disputes resolution procedure provision can be found in both the Current Agreement and the Proposed Agreement, and given a general reference to the purpose of the term. But it is plain on review of the documents that there was no written explanation of the effect of this term as drafted in the Proposed Agreement. Cleanaway did not contend that there was such verbal explanation. The focus of Mr Williamson’s explanation was on “the main areas of change” which did not, on his own account, include an explanation of the term about resolving disputes at clause 9 of the Proposed Agreement other than to say that disputes would be referred to the TWU.26 That statement of itself is not accurate, as clause 9 of the Proposed Agreement sets out a procedure for Cleanaway and its employee(s) to resolve their disputes, and affords nothing more than a right for either party to appoint a representative at any stage which may include a union.

[37] Whilst the explanation of changes document notes a “change” from the Current Agreement, I do not accept the effect of the change to be “self-explanatory” when regard is had to the context of employees’ current terms and conditions and the explanation given by their employer. The written explanation of changes document does not elaborate on the nature of the change other than to say, simply: “Updated only – incidental”. Some of the changes to the drafting of the disputes resolution procedure may be described as “incidental” to the extent that the effect is the same or inconsequential – for example, the changed drafting about the speed with which the parties are to carry out the disputes resolution procedure may be described as incidental. However, in my opinion, the change to final resolution of any dispute arising under the Proposed Agreement or the NES by arbitration only by express agreement of both parties to the dispute (which may be withheld) represents a substantial alteration and can not be described as “incidental”. Cleanaway is not in this case able to rely on employees’ prior experience and knowledge of their existing terms and conditions of employment to discharge its obligation that it took all reasonable steps to explain the terms and effects of the Agreement. The notation about the “change” to the disputes resolution procedure in the explanation of changes document is inaccurate at best.

[38] At least conceivably, an undertaking to address the identified detriment in the disputes resolution procedure may have been proposed as to “cure” the deficiencies in the explanation such that this would not prevent approval for the purposes of s.180(5).27 However an undertaking may only be accepted under s.190 if the Commission has a concern that the agreement does not meet the approval requirements set out in ss.186 and 187. As the context of the matter reveals, Cleanaway was invited to propose undertakings on numerous occasions during the course of these proceedings (including after the conclusion of the hearing). In total Cleanaway has proposed 4 different versions of undertakings. I have considered the Final Proposed Undertakings but do not consider they meet all of the identified concerns about the explanation provided to employees. Further, I am satisfied that the Commission has afforded substantial opportunity to Cleanaway to propose such undertakings and it has elected not to do so.

[39] Although I accept that the steps taken by Cleanaway were reasonable steps, it did not explain the terms of the Proposed Agreement which would alter their currently applicable terms in the Current Agreement in a substantial way. More was required to explain the effect of those terms. In particular, given the significance of the disputes resolution procedure in resolving disputes arising under the Proposed Agreement or the NES for the duration of its operation, and the absence of a clear explanation of the effect of this term, I am not persuaded that Cleanaway took all reasonable steps as required by s.180(5).

[40] As I am not able to be satisfied that all reasonable steps were taken to comply with the pre-approval steps at s.180(5), I am required to consider whether this is an appropriate case to exercise the discretion at s.188(2) such that the Proposed Agreement must be approved subject to the other approval requirements in the Act and notwithstanding the non-compliance with s.180(5).

[41] On the evidence and materials before the Commission, in all of the circumstances of this case and having regard to Huntsman, I am not persuaded that the non-compliance with s.180(5) constitutes a “minor procedural or technical” error. The steps taken were such that employees were not in a position to make an informed decision about the terms of the Proposed Agreement upon which they were asked to vote. The materials were not “self-explanatory” and I do not regard the role of the TWU as bargaining representative, the experience or language abilities of the employees (individually or together) as factors to weigh against such conclusion. Accordingly, I am not satisfied that the employees were not likely to have been disadvantaged by Cleanaway’s error in failing to take all reasonable steps to ensure the terms and effect of the Proposed Agreement were explained to employees as required by s.180(5) of the Act. In the absence of the requisite satisfaction, the Proposed Agreement is not “genuinely agreed” within the meaning of s.188(2).

[42] To the extent that the explanation to relevant employees was not just deficient but in some important respects incorrect, this gives rise to a legitimate basis for considering that there are other reasonable grounds for considering that the Proposed Agreement was not genuinely agreed within the meaning of s.188(1)(c).   That is a matter about which the discretion at s.188(2) is not able to be engaged.

Other matters

[43] For completeness, whilst there remained concerns about whether the employees would be “better off overall” under the Proposed Agreement than if the award applied, and whether the Final Proposed Undertakings are in a form that may be accepted pursuant to s.190 or would result in “financial detriment” and/or “substantial changes” to the Proposed Agreement as the TWU contended, having regard to my findings above I need not determine these matters.

[44] It may also be noted that the application was not made in the form or manner required by s.185 of the Act and the Regulations (because it was not signed by a representative of the relevant employees) and there was no application for a correction, amendment or waiver in this respect.

Conclusion

[45] For the above reasons, the application in this matter is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730633>

Annexure A

Cleanaway Solids Waste Services Rockhampton Region Drivers Enterprise Agreement 2020

(The Proposed Agreement)

Cleanaway Rockhampton Region Drivers Enterprise Agreement 2017

(The Current Agreement)

22. HOURS OF WORK

a) The ordinary hours of work for a full-time Employee are an average of 38 hours per week.

b) The average of 38 ordinary hours per week, over a period of not more than 12 months, will be arranged to meet the ongoing operational requirements of the business.

c) The ordinary hours of work shall be worked between the hours of 4.00 a.m. and 5.00 p.m.

d) For public holidays only, the spread of hours (i.e. 4.00 a.m. to 5.00 p.m.) may be altered by up to one hour at either end of the spread, by agreement between the Company and the majority of Employees concerned or in appropriate circumstances, between the Company and an individual Employee.

e) Where the Company desires to vary or change the regular starting time of an Employee it shall give one (1) weeks' notice of such variation or change to the Employee concerned and post a notice of the intended change at the depot or yard.

24. HOURS OF WORK

24.1. The ordinary hours of work for full-time employees shall be an average of 38 hours per week to be worked within a work cycle not exceeding 28 consecutive days.

24.2. Subject to the exemption hereinafter contained the ordinary hours of work shall be worked on any Monday to Friday between the hours of 4.00 a.m. and 5.00 p.m.

24.3. For public holidays only, the spread of hours (i.e. 4.00 a.m. to 5.00 p.m.) may be altered by up to one hour at either end of the spread, by agreement between the Employer and the majority of employees concerned or in appropriate circumstances, between the Employer and an individual employee.

24.4. where the Company desires to vary or change the regular starting time of an employee he/she shall give one week's notice of such variation or change to the employee concerned and post a notice of the intended change at the depot or yard.

Annexure B

Cleanaway Solids Waste Services Rockhampton Region Drivers Enterprise Agreement 2020

(The Proposed Agreement)

Cleanaway Rockhampton Region Drivers Enterprise Agreement 2017

(The Current Agreement)

9. DISPUTES RESOLUTION PROCEDURE

a) The dispute resolution procedure applies to any matter arising under this Agreement or the NES that may be in dispute between the parties ('the Matter'). To avoid doubt, this dispute clause does not cover disputes about whether or not the Company had reasonable business grounds under section 65(5) or 76(4) of the FW Act.

b) The Company and the Employee will, in the first instance attempt to resolve the matter at the workplace level, including, but not limited to:

(i) the Employee and his or her supervisor meeting and conferring on the matter; and

(ii) if the matter is not resolved at such a meeting, the Company or the Employee will arrange for further discussions between the Employee and a more senior level of management (as deemed appropriate by the Company).

c) The Company and the Employee acknowledge the right of either party to appoint another person or organisation to act on behalf of the Company and the Employee at any stage in the dispute resolution procedure, this may also include a Union.

d) Whilst the dispute resolution process is been followed, the Company and the Employee agreed that:

(i) work will continue in accordance with this Agreement and the FW Act, subject to applicable occupational health & safety legislation; and

(ii) the Employee will comply with all reasonable and lawful direction given by the Company to perform other available work, whether at the same workplace or another workplace.

e) the Company and the Employee will use their best endeavours to ensure that the dispute resolution procedure progresses without unnecessary and foreseeable delays. -If the Matter cannot be resolved at the workplace level, either the Company or the Employee may refer the matter to the Fair Work Commission (FWC) by giving the other party written notice of its intention to refer the dispute to the FWC seven (7) days prior to lodgement.

f) If the dispute remains unresolved at the workplace level and the above dispute resolution steps have been undertaken, the FWC may attempt to resolve the Matter as it considers appropriate, including mediation, conciliation, expressing an opinion or making a recommendation.

g) If the Matter is not resolved in conciliation the Company and the Employee may agree that the Matter may be arbitrated by the FWC.

11. DISPUTES RESOLUTION PROCEDURE

The dispute resolution procedure applies to any matter arising under this Agreement or the NES that may be in dispute between the parties (‘the matter’).

11.1 The parties will attempt to resolve the matter at the workplace level, including, but not limited to:

(a) the employee and his or her supervisor meeting and conferring on the matter; and

(b) if the matter is not resolved at such a meeting, the parties arranging further discussions involving more senior levels of management (as appropriate).

11.2 The parties acknowledge the right of either party to appoint another person or organisation to act on behalf of the party at any stage in the dispute resolution procedure, this may also include a Union.

11.3 During the time when the parties attempt to resolve the matter it is agreed that:

(a) the employee will continue to work in accordance with his or her contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health or safety; and

(b) the employee will comply with any reasonable direction given by the Company to perform other available work, either at the same workplace or another workplace;

(c) work must continue without any form of stoppages, strikes, lockouts and/or other bans or limitations on the performance of work. For the avoidance of doubt this clause does not prevent employees from engaging in protected industrial action in accordance with the Act;

(d) the parties will cooperate to ensure that the dispute resolution procedure is carried out as quickly as is reasonably possible.

11.4 If the matter in dispute cannot be resolved at the workplace level, either party may refer the matter to the Fair Work Commission.

(a) If the matter is not resolved in conciliation conducted by the FWC, the parties agree that the FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute. In relation to such an arbitration, the parties agree that:

(i) The FWC may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009 (Cth) or other legislation applicable to the Tribunal.

(ii) Before making a determination the FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.

(iii) in making its determination the FWC will consider and use all materials, including witness evidence, and submissions put before it at the hearing process.

11.5 The decision of the FWC will be binding on the parties subject to the following agreed matter:

(a) There shall be a right of appeal to a Full Bench of the FWC against the decision, which must be exercised within 21 days of the decision being issued or within such other time as the Full Bench may allow.

11.6 This clause shall not be applied in a practice that is inconsistent with the requirements set out in the Building Code.

 1   Form F17 filed by Cleanaway on 9 February 2021 at item 17.

 2   Form F16 filed by Cleanaway on 9 February 2021; Form F18 filed by the TWU on 12 February 2021.

 3   Form F17 filed by Cleanaway on 9 February 2021 at item 26.

 4   Conference convened on 22 March 2021.

 5   Further proposed undertakings filed on 22 March 2021.

 6   Form F18 filed by the TWU on 12 February 2021; Email correspondence attached to submissions of the TWU filed 23 March 2021.

 7   Further proposed undertakings filed on 27 April 2021.

 8   [2019] FWCFB 4022 (Ditchfield).

 9   Ibid at [71] - [72].

 10   [2019] FWCFB 318 (Huntsman).

 11 Ibid at [41].

 12   One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77; CFMMEU and AMOU v Broome Marine and Tug Pty Ltd [2021] FWCFB 171.

 13   Witness Statement of Mr Williamson at 17.

 14   Form F17 filed by Cleanaway on 9 February 2021 at items 21 and 22.

 15   Witness Statement of Mr Williamson at 1.

 16   Witness Statement of Mr Williamson at 18; Transcript of Hearing at PN55 and 87.

 17   Transcript of Hearing at PN149.

 18   Witness Statement of Mr Williamson at 20.

 19   Witness statement of Mr Williamson at 21 to 24.

 20   Transcript of Hearing at PN184, 288, 424-425 and 508-509.

 21   Transcript of Hearing at PN129.

 22   Transcript of Hearing at PN98, see also at PN102 and PN131.

 23   Transcript of Hearing at PN100.

 24   Transcript of Hearing at PN126-127.

 25   Transcript of Hearing at PN86.

 26   Witness statement of Mr Williamson at 21; Transcript of Hearing at PN127.

 27   Karijini Rail [2020] FWCFB 958.