Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division Queensland Divisional Branch v Queensland..

[2014] FWC 8812

[2014] FWC 8812

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.229—Bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch
v
Queensland Electricity Transmission Corporation Limited
(B2014/1637)

DEPUTY PRESIDENT ASBURY BRISBANE, 5 DECEMBER 2014

Queensland Electricity Transmission Corporation Limited - Application for a bargaining order - Application for preservation of the status quo pending determination of scope application -Proposed agreement out for ballot - Whether requirements of ss. 230(1)(c) and 230(3) have been met - Relevant considerations in making application - Delay in making application - Application dismissed.

BACKGROUND

[1] This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a bargaining order under s. 229 of the Fair Work Act 2009 (the Act). The application was made on 25 November 2014. On the same date the CEPU also made an application under s. 238 of the Act for a scope order. The applications concern negotiations for an agreement to cover employees of the Queensland Electricity Corporation Limited (Powerlink).

[2] Those negotiations commenced on 21 July 2014 when a meeting about the bargaining framework and protocols was held between Powerlink, the CEPU, the Services Union and Professionals Australia. Following a series of negotiation meetings, Powerlink has determined to put a proposed agreement to a ballot of employees. The Access period prescribed in s. 180 (4) of the Act commenced on 21 November 2014. The ballot is being conducted by internet vote and opened at 8.00 am on 28 November 2014. The ballot will close at 4.00 pm on 11 December 2014.

[3] The CEPU initially sought that its scope application be heard on 4 and 5 December 2014. Upon being informed that the matter could not be heard on those dates, or any alternative dates prior to 11 December 2014, the CEPU sought a bargaining order. Due to the urgency of the application, it was heard on the evening of 4 December 2014. At the conclusion of the hearing I decided that I was not satisfied that the Order sought by the CEPU should be made and that the application should be dismissed. I further indicated that I would release written reasons for this decision on 5 December 2014.

[4] Statements were provided by Mr Stuart Kenneth Traill, Organiser with the CEPU and Ms Cassandra Bevan, Powerlink’s Group Manager Employee Relations. The parties agreed that the statements would be accepted and that neither of the persons who provided them would be cross-examined. The CEPU was represented by Mr Friend QC and Powerlink by Mr Neil SC. The submissions were of assistance to the Commission and the diligence of Counsel and instructing solicitors in meeting the necessarily tight time frame for the hearing of this matter was appreciated.

[5] The CEPU application was supported by the Queensland Services Industrial Union of Employees. I have considered all of the material and set out below my reasons for dismissing the application for a bargaining order. Given the time frame within which this matter was listed, heard and determined, I have dealt with the submissions of the parties to the extent it is necessary to dispose of the application.

ISSUES IN DISPUTE

[6] The purpose of the bargaining order, both final and interim, was said by the CEPU to the preservation of the status quo and to prevent Powerlink from engaging in unfair conduct pending the determination of the scope order.

[7] To understand the CEPU’s argument it is necessary to note that Powerlink employees are employed in one of three streams: Technical; Administrative; or Professional/Managerial. According to a statement in these proceedings provided by Ms Bevan, the numbers of employees in those streams are 337 in the Technical stream; 163 in the Administrative stream and 442 in the Professional/Managerial stream.

[8] Members and employees eligible to be members of the CEPU are employed in the Technical stream. Essentially the CEPU contends that the proposed agreement is unfair on the basis that it unfairly seeks to target the conditions of Technical stream employees and to use the majority of Administrative and Professional/Managerial stream employees, who have no interest in the Technical stream employees’ conditions, to outvote the Technical stream employees.

[9] The CEPU further contends that the proposed agreement seeks to make significant changes to long standing entitlements and conditions applicable to the Technical stream represented by the CEPU

[10] The CEPU further contends that Powerlink’s conduct in this regard is in contravention of s. 228 of the Act and seeks a final bargaining order preventing Powerlink from proceeding with the approval process. The CEPU also seeks a scope order which has the effect of separating out separating out the Technical stream employees from the Administrative stream and Professional/Managerial stream employees for future bargaining. Further, the CEPU seeks an interim order preserving the status quo, pending the final hearing and determination of matters B/2014/1637 (the bargaining order application) and B/2014/1638 (the scope order application).

[11] The CEPU relies on s. 230 and s. 589 of the Act and submits that in Health Services Union v Victorian Hospitals’ Industrial Association and Others 1 a Full Bench of the Commission held that the test for the purpose of determining whether to make an interim order was as set out by the High Court in Australian Broadcasting Corporation v O’Neill2 as follows:

• There is a serious question to be tried.

• The balance of convenience favours making an order.

[12] The CEPU also pointed to a number of authorities where it has been held that the balance of convenience including the damage likely to be suffered and the adequacy of damages as a remedy is not considered in isolation from the apparent strength of the parties’ substantive cases 3.

[13] Mr Traill’s evidence is that the proposed Agreement removes a number of significant entitlements enjoyed by employees in the Technical stream. It is asserted that the disproportionate nature of the unfairness to employees in the Technical Stream did not become apparent until the announcement on 10 November that the issue of the removal of certain redundancy provisions from the Agreement which had been pursued by Powerlink, would no longer pursued. Up until that point, the proposed agreement was generally detrimental to all employees.

[14] At the point that Powerlink informed the Unions that it would not pursue the claim with respect to redundancy, the continued claims by Powerlink for the removal of other entitlements applicable only to Technical employees resulted in the proposed agreement being disproportionately unfair to its members. This conduct on the part of Powerlink is a breach of s. 228(1)(e) of the Act in that it is unfair conduct which undermines collective bargaining.

[15] The terms of the interim order sought by the CEPU as amended on 4 December 2014 are as follows:

Draft Order

1. Pursuant to ss.229 and 589 of the Fair Work Act 2009, it is ordered that until application B2014/1638 is heard and determined or until further order of Fair Work Commission, the Respondent to that application shall not take steps under s.181 of the Act or otherwise to ascertain the outcome of any ballot or electronic voting conducted under that section or declare any ballot conducted under that section.

[16] The CEPU contends that there is a serious issue to be tried in respect of both the bargaining order application and the scope order application. In relation to the scope application it is submitted that if scope or all of the terms of an agreement cannot be agreed the employer is still entitled to put that agreement to a ballot of employees, including a scope that the employer has unilaterally chosen. Before approving such an agreement the Commission must be satisfied that the scope of the Agreement was fairly chosen. If, as in the present case, the agreement includes a minority group whose terms and conditions are reduced by the vote of another class of employees - the majority - then for that agreement the scope is not fairly chosen.

[17] The evidence of Mr Traill is said to establish that this is the case. In particular Mr Traill’s evidence is that Powerlink has chosen the scope of the Agreement and that it disproportionately reduces the terms and conditions of employees in the Technical stream by reference to a number of changes to terms and conditions which are applicable only to them. By unilaterally seeking to pursue approval of an agreement that has an unfair scope Powerlink is engaging in conduct that undermines collective bargaining and there is a strong and serious question to be tried in relation to the bargaining order application.

[18] Similarly, in relation to the scope order, the evidence of Mr Traill is said to indicate that Powerlink has committed to significantly reducing the longstanding terms and conditions of technical stream employees and has no such intention with respect to Administrative and or Professional Management stream employees. In circumstances where the employer has committed to pursuing an agreement that due to the content of its claims and the makeup of its workforce, has an unfair scope, the Commission should be satisfied that bargaining cannot proceed efficiently and fairly. This is because the Agreement can never be approved. It is contended that the CEPU has a real likelihood of successfully proving that the Agreement has an unfair scope and there is a strong and serious question to be tried with respect to the application for a scope order.

[19] Powerlink contends that:

1. There is no jurisdiction to make the Interim Order;

2. The Interim Order is incapable of having any legal or practical effect;

3. The Applicant has no case for the so-called ‘bargaining order’ sought in this matter;

4. The CEPU has a weak case for the scope order sought in matter number B2014/1638; and

5. There are compelling discretionary grounds against making the Interim Order, including the CEPU’s delay (Section G); the fact that Powerlink’s employees are not parties and cannot be heard, notwithstanding that the Interim Order would have the effect of temporarily disenfranchising them and denying them the benefit of Powerlink’s offer of limited employment security (Section H); and the intangible and unknowable effect that the making of the Interim Order might have on those employees who have not yet voted.

[20] In oral submissions, Mr Neil highlighted two bases for Powerlink’s opposition to the application that are said to be striking and determinative:

1. Delay in making the application; and

2. That an Order as proposed by the CEPU would have no legal or practical effect.

CONSIDERATION

Jurisdiction

[21] According to the submissions for Powerlink, the FWC has jurisdiction only to make orders that are expressly authorised by the Act. Section 589(2) authorises the Commission to make ‘interim decisions’, which by the operation of s. 598(4) may be made ‘by order’. However, the power conferred by s.589(2) is limited and in particular that section does not authorise the Commission to dispense with compliance with each of the statutory conditions for the making of such an order.

[22] That means that in the case of an interim bargaining order, which is what the Applicant is seeking, the Commission must be satisfied of, inter alia, the conditions stipulated in s.230(1)(c) and (3) and the order must comply with ss.230(4) and s.231 of the Act. Powerlink’s jurisdictional argument focussed on ss.230(4) and 231.

[23] Powerlink submitted that the Interim Order sought by the CEPU plainly did not accord with s.231(1)(a), (b) or (c). Powerlink also submitted in an appropriate case, an interim order in the terms sought by the Applicant might conceivably come within s230(1)(d). However, this is not such a case, because there is no evidence on which the Commission could be ‘satisfied’ (on a final, and not merely provisional or interlocutory basis) of the matters stipulated in s.230(3)(a)(ii).

[24] There is no evidence on which the Commission could find that making the order would achieve the purpose of promoting the efficient or fair conduct of bargaining on the basis that the CEPU’s complaints never rise beyond mere assertion, and in any event, focus on voting the agreement down rather than bargaining. The CEPU’s evidence does not address the statutory question posed by s.231 (1)(d).

[25] Powerlink also asserts that authorities for the proposition that a lesser standard of satisfaction as to the statutory conditions for the making of an order, transposed from the principles applicable to the grant of interlocutory injunctions by a court, applies to an order under s.589, are wrong, and should not be applied. Powerlink concedes that there is Full Bench authority to the contrary, and that the Commission as presently constituted must follow that authority.

[26] I do not accept the assertion that the application seeks only an interim order and that the test as set out by a Full Bench of the Commission in Health Services Union v Victorian Hospitals’ Industrial Association and Others 4 should not be followed. The Order sought by the CFMEU is in the nature of an interlocutory order preserving the status quo until its application for a scope order can be determined. The terms of the draft order are framed so that it operates until that application is determined or until a further Order of the Commission is made. I also do not accept that the order sought by the CEPU cannot be made because it relates to another application for a scope order.

[27] There is nothing novel about the form of the order proposed by the CEPU. In my view it seeks interim relief and foreshadows a further order for final relief in the event that the scope application succeeds. Such an order was made by a Full Bench of the Commission in Health Services Union v Victorian Hospitals’ Industrial Association and Others  5 in virtually identical terms to that sought by the CEPU. It is therefore appropriate to consider whether there is a serious issue to be tried and whether the balance of convenience favours granting the Order.

Legal effect of interim order

[28] In relation to the legal effect of the Order, Powerlink maintains that the Commission could not be satisfied in relation to s. 230(1)(c) that it is reasonable to make an Order in circumstances where it is incapable of having any legal or practical effect and that such an order could not be a proper discharge by the Commission of its obligations under s.578(a) and (b) of the Act.

[29] The Interim Order, if made, would be incapable of having any legal or practical effect because:

• Under s.182(1), which applies in this case, an agreement that is put to a ballot is ‘made’ for the purposes of the Act ‘when a majority of those employees who cast a valid vote approve the agreement’.

• By way of contrast, a agreement to which s.182(2) applies is made ‘immediately after the end of the voting process’.

• Section 182(1) describes, and operates on, a fact which exists objectively independently of anyone’s subjective knowledge as to its existence.

• The Interim Order, if made, would not prevent the ballot from continuing until its conclusion or the agreement from being ‘made’ if and when, during the continuation of the ballot, a majority of those employees who cast a valid vote approve the agreement. All that the Interim Order could do is to prevent anyone from knowing whether the agreement had been made for so long as the Interim Order operates.

• Put another way, the Interim Order cannot preserve the status quo. All it would do is preserve it for a time.

[30] This means that the legal and practical position will be exactly the same regardless of whether the Interim Order is made or not, because:

• If a majority of those employees who cast a valid vote do not approve the agreement, then the objective fact described in s.182(1) will not exist. In that regard, the position would be exactly the same as it was before the ballot was initiated under s.180, (with the sole exception being that Powerlink’s offer of limited employment security would no longer be available) or:

• If and when a majority of those employees who cast a valid vote approve the agreement, then the objective fact described ins.182(1) will exist, and the agreement will at that point be ‘made’, regardless of whether or when it is subjectively known. Once the agreement is ‘made’ the process that follows is inexorable and cannot be stopped by the Interim Order:

• By s.185(1), application ‘must’ be made to the Commission for approval of the agreement.

• The Commission must hear and deal with that application in accordance with ss.577 and 578.

• By s.186(1), the Commission ‘must’ approve the agreement if the requirements of ss.186 and 187 are met. Those requirements include satisfaction under s.186(3) that ‘the group of employees covered by the agreement was fairly chosen’.

• There being no power to amend an agreement in the period after it is ‘made’ and application is made to the Commission for its approval, it follows that during this period there is nothing left for anyone to bargain about, and any bargaining or scope order made during that period would be otiose.

• If the Commission concluded that any requirement stipulated in ss.186 or 187 had not been met, and on that ground did not approve the agreement, then it would then follow that it would be open for bargaining to resume, and for any bargaining representative, including the Applicant, to apply for a bargaining or scope order.

[31] It follows that, if the Interim Order was made, and the CEPU then pursued its application for substantive bargaining or scope orders, then the parties and the Commission would be in the absurd position of addressing the substantive applications without knowing whether their outcome would have any utility or not.

[32] I do not accept Powerlink’s submission that an agreement is made at some indeterminate point in the ballot process when 51% of employees cast a valid vote, and that this is an objective fact that exists independently of the ballot process. Section 18(2)(1) of the Act provides that if employees of the employer covered by a single enterprise agreement have been asked to approve the agreement, it is made when a majority of those employees cast a valid vote. The term “valid vote” connotes that there will be some process by which votes are counted and deemed to be valid.

[33] The other provisions of the Act dealing with ballots to approve an agreement are also indicative of a process whereby a period over which a ballot will be conducted is established and employees are provided with information about the proposed agreement and the process by which its approval will be sought. There are stipulated time frames in which this is to occur and voting may not commence until these are complied with. Section 185(1) provides that when an agreement is made, a bargaining representative must apply for its approval within 14 days unless a further period is allowed by the Commission.

[34] In my view, if the submission advanced on behalf of Powerlink was accepted, there could be no certainty about when an agreement was made and whether the application for approval was made with the required time. The result would be that the bargaining representatives would not be capable of determining when the Agreement was approved to allow it to be filed in the required time.

[35] Further, s. 181 requires that all employees to be covered are given an opportunity to approve the proposed agreement by vote. If Powerlink’s submission is accepted, the remaining employees who had not voted at the point that the 51% approval point was reached, would be deprived of the opportunity to vote or their vote would effectively be meaningless. It is also the case that the Agreement is collective and covers all employees including those who do not vote to approve it, provided that a majority of employees who cast a valid vote approve the agreement. This is suggestive of a requirement that all relevant employees be given an opportunity to vote 6.

[36] For reasons set out above, I do not accept that this is an application for an interim order only. I also do not accept that the Order is a nullity or that the Commission has no power to make such an order. In the alternative, Powerlink submits that the CEPU has no arguable or prima facie case for relief and that there is no case for the bargaining order sought in this matter. In this regard, the order does accord with s. 230(4) and s. 231(1) because its focus is on the scope order made in unrelated proceedings and the only objective of the order is to impede the ballot from proceeding.

[37] In my view, in an appropriate case, the Commission would have power to make an Order requiring that a ballot not be declared, such as the order sought in the present case. I have concerns about whether such an order could be made final given the significance of a ballot and the requirements in s. 255 (1)(c) of the Act. However it is not necessary to determine this in the present case. The question in the present case is whether an interim order should be made preserving the status quo until the CEPU’s scope application and bargaining order application can be heard and determined.

[38] It is not necessary to determine the other assertions made by Powerlink in relation to this matter. This is because I am of the view that the CEPU has not met the requirements for the making of an order of the kind it seeks. I do not accept that the CEPU has established a sufficient likelihood of success with respect to its scope application to justify the preservation of the status quo, in the circumstances of this case. In this regard I accept the points made by Powerlink to the effect that the evidence before the Commission establishes that:

• Historically, employees in the Technical stream have always been regulated with employees in other streams in a single collective agreement.

• The proposed scope order is inconsistent with the way in which the CEPU has conducted itself throughout the process of bargaining, in that it has bargained together with other employee bargaining representatives as part of a single bargaining unit.

• The proposed scope order is inconsistent with the position at the outset of negotiations which was that the existing single agreement should be rolled over.

• Even if the proposed scope order was made, it would be incapable of promoting fair and efficient bargaining on the basis that every claim made by the CEPU has already been accepted or rejected and every issue that divides Powerlink and the single bargaining unit also divides Powerlink and the CEPU.

• There is no evidence that the single bargaining unit has not been able to conduct bargaining fairly and efficiently. Even if there was, the fact that separate negotiations for an agreement applying only to employees in the technical stream would necessarily involve the same employee bargaining representatives as are involved in the present negotiations means that this consideration is irrelevant.

• There is no direct or hearsay evidence that any employee in the technical stream wishes to be covered by an agreement different than that which applies to employees in other streams.

[39] If the order sought by the CEPU is not made, it will lose its opportunity to seek a scope order. However, that is not the end of the matter. If the proposed agreement is approved by a valid majority of employees, the CEPU will have an opportunity, should it choose to do so, to oppose its approval by the Commission on the basis of the assertion that the group of employees covered by the Agreement was not fairly chosen. Counsel for the CEPU asserts that one of the grounds for making the bargaining order sought by the CEPU is that if the CEPU is not able to argue its scope application to the Commission, it will be entitled to pursue the same arguments in relation to any application for approval by the Commission on the basis that employees covered by the proposed agreement were not fairly chosen.

[40] It follows, on the CEPU’s argument, that if the order sought by the CEPU is not made and a valid majority of employees approve the proposed agreement, the CEPU will still have the ability to oppose its approval by the Commission on the same or a similar basis as it relies on in relation to its application for a scope order. As a result, the CEPU has a remedy for the matters about which it complains, in the form of an alternative basis to continue its opposition to the approval of the agreement.

[41] On the other hand, to make the order sought by the CEPU in these proceedings will deprive Powerlink of the opportunity to test whether an offer that it maintains is its best and final offer will be accepted by employees. It will also deny those employees who have already voted an opportunity to have their views considered in the timeframe they were informed would apply to the ballot process. Such an order will also prevent or discourage those who have not exercised their vote to refrain from doing so.

[42] Powerlink and the employees who have voted or still wish to do so, will not be able maintain their current position in the event that the CEPU is able to pursue its scope application and succeeds with that application. If the order sought by the CEPU in these proceedings is granted and it does not succeed with its scope application, it is also likely that employees who have not voted at the point the order is made will be discouraged from doing so and that any impetus that Powerlink has in its attempts to obtain approval of the proposed agreement will be halted or adversely impacted, in circumstances where it is entitled to put the agreement to ballot and where there is no evidence that it is doing so in contravention of the good faith bargaining requirements.

[43] This is in contrast to the position that the CEPU will be in if it is not able to pursue its scope application. As previously noted the CEPU will have another opportunity to advance its argument in a hearing before the Commission if the ballot approves the proposed agreement.

[44] It would be a different matter entirely if there was evidence that Powerlink was behaving in a way contrary to the requirements of good faith bargaining. However I am unable to accept that this is the case. Powerlink has done nothing more than put to ballot a proposed agreement with a scope that is not materially different to the scope of the existing agreement and its predecessors, not to mention the Award that underpins those agreements. I am also unable to accept that the proposed agreement disadvantages Technical stream employees disproportionately to a degree that would be necessary to underpin a bargaining order and outweigh the other factors relevant to why such an order should be made.

Delay

[45] Further I accept the argument of Powerlink that the CEPU’s delay in commencing these proceedings is such that the Commission could not be satisfied that making the Interim Order is reasonable in the circumstances of the case. The making of the Interim Order at this late stage in the process of bargaining would not be a proper discharge by the Commission of its obligations under s.578(a) and (b) of the Act. The order that the CEPU is seeking is akin to an equitable remedy, and delay is relevant to whether such a remedy should be granted.

[46] On Mr Traill’s evidence for the CEPU, it knew from as early as 30 June 2014 that Powerlink was not prepared to bargain for an agreement that only covered its employees in the technical stream. Mr Traill raised this on a number of occasions and was consistently told that this was Powerlink’s position. It is clear that the CEPU knew from 11 November 2014 that Powerlink intended to put a single agreement covering its employees in the technical stream along with employees in other streams to the ballot which is now underway.

[47] The minutes of the meeting on that date indicate that notwithstanding that the CEPU was told that issues it had previously raised would be considered, Powerlink’s representatives also made it clear that the proposed agreement would be put to a ballot and that it reserved its position in this regard. It is also the case that the CEPU knew from 19 November 2014 of the actual timetable of the ballot and from 21 November that Powerlink would not agree to stop the ballot. Notwithstanding this, the CEPU did not make its application for a scope order until 25 November 2014.

[48] There is also evidence that as early as 14 October 2014 Mr Traill raised the possibility at a bargaining meeting on that date, that the CEPU would make a scope application. Further, a publication forwarded by the ETU to members and interested persons entitled “Electricity Supply Industry Update”  7dated 23 October 2014 indicates concern on the part of the CEPU that entities in that industry including Powerlink, may pursue a non-union endorsed agreement sometime in the next few weeks. It can hardly have come as a surprise to the CEPU that this is exactly what Powerlink did.

[49] I do not accept the CEPU’s argument that the cause of the delay was the fact that it was not aware that its members would be singled out until it saw the final version of the Agreement on 11 November 2014. The evidence establishes that all of the clauses complained of by the CEPU and advanced as a basis for asserting that Technical employees have been singled out, were in a version of the Agreement distributed on 23 October 2014. The only items that were not in that version were a wages offer and a revised position with respect to redundancy provisions.

[50] At best the CEPU knew on 23 October that the Agreement was going to ballot with or without its endorsement and that it contained provisions which the CEPU asserts are detrimental to and target Technical employees. It is no answer to assert, as the CEPU does, that it did not become obvious that employees in the Technical stream would suffer more detriment than employees in other streams. Detriment is relative and whether it is detriment in light of the 23 October version or the 11 November version of the Agreement, on the CEPU’s evidence, it was the same detriment except that by 11 November 2014 some of the detriment in relation to changes to redundancy provisions may have been alleviated.

[51] There is no reasonable explanation for the failure of the CEPU to file a scope application at a point prior to the Agreement being put to ballot and that failure is a basis for refusing the order sought by the CEPU in these proceedings.

[52] I do not accept the submission advanced by Powerlink that the CEPU delayed making the application because it sought to create a sense of urgency in proceedings before the Commission. However the fact remains that the CEPU had from at least from 11 November until 21 November when the agreement was put to ballot, to make its application for a scope order and a bargaining order. Its failure to do so is significant

[53] In the circumstances it is not necessary to consider whether and on what terms an undertaking as to damages sought by Powerlink and offered by the CEPU could be framed.

[54]The application for a bargaining order in B2014/1367 is dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr. W.L. Friend QC as well as Mr C. Massy and Ms. J Virine of Hall Payne Lawyers on behalf of the (CEPU)

Ms. R Gerard (QSU)

Mr. I Neill SC and Mr. A Duffy of Counsel as well as Ms C Ryan of Ashurst on behalf of the Respondent

Hearing details:

Thursday 4 December 2014 5.00pm

 1 (2012) 221 IR 1.

 2 (2006) 227 CLR 57

 3   CEPU v Bluestar Pacific Pty Ltd (2009) 184 IR 333 at [21]; Samsung Electrics Co. Limited v Apple Inc. [2011] FCAVC 156 at [67].

 4 (2012) 221 IR 1

 5   PR522059

 6   TWU v DHL Supply Chain (Australia Pty) Ltd [2008] FMCA 604.

 7   Exhibit 1 Statement of Cassandra Bevan Annexure 5

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