Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd
[2021] FWCFB 3190
•3 JUNE 2021
| [2021] FWCFB 3190 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Fredon Industries Pty Ltd
(C2020/7771)
VICE PRESIDENT HATCHER | SYDNEY, 3 JUNE 2021 |
Appeal against decision [2020] FWCA 5198 of Deputy President Dean at Sydney on 29 September 2020 in matter number AG2020/1731.
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an appeal on 19 October 2020 under s 604 of the Fair Work Act 2009 (Cth) (FW Act) against a decision of Deputy President Dean issued on 29 September 20201 approving the Fredon Industries Pty Ltd NSW Enterprise Agreement 2020 (Agreement). The Agreement commenced operating on 6 October 2020 and, prior to its operation, the Fredon Industries Pty Ltd NSW Enterprise Agreement 2016 (2016 Agreement) applied to relevant employees. The notice of appeal contained various appeal grounds the majority of which contend error in the Deputy President’s decision not to make an order requiring Fredon Industries Pty Ltd (Fredon) to produce certain documents (Production Grounds). The remaining appeal grounds alleged error in the Deputy President’s consideration of whether the employees who voted in the ballot for the Agreement were employed at the time; error in finding that there were no other reasonable grounds for believing that the Agreement was not genuinely agreed to by the relevant employees; and error in her conclusion that Mr Michael Taylor and Mr Siegfried Eichholz, two employees who voted in the ballot to approve the Agreement, were each employees employed at the time who will be covered by the Agreement (Approval Grounds).
[2] In our decision 2 published on 22 January 2021 we concluded that several of the categories of documents sought by the CEPU in the proceedings before the Deputy President had an apparent relevance to the issues in the proceedings and that the Deputy President erred in concluding to the contrary.3 We also concluded that while the Deputy President’s failure to make a document production order denied the CEPU the opportunity to run the case it wanted to in opposition to the approval application, it was difficult to assess whether the failure deprived the CEPU of the possibility of a successful outcome without reviewing the documents which ought to have been ordered to be produced.4 Consequently we granted permission to appeal on the Production Grounds and we ordered the production of modified categories of documents (Production Order) originally sought by the CEPU.5 In relation to the documents produced pursuant to the Production Order, the parties were subsequently directed to file and serve further written submissions.6 The parties consented to this aspect of the appeal being determined without a further hearing.7
[3] This decision deals with whether, in light of the documents now produced by Fredon, the CEPU was deprived of the possibility of a successful outcome before the Deputy President and if so, the consequences that should follow. We also deal with the outstanding Approval Grounds which were the subject of submissions at the hearing which was held on 17 December 2020. The relevant background is set out in our 22 January 2021 decision8 and need not be repeated.
Production Grounds
[4] The CEPU contends the documents produced by Fredon show that it was deprived of the possibility of a successful outcome because:
• on 7 February 2020 Fredon had decided upon three rounds of redundancies for the workforce and Mr Eichholz was identified as going in the second round and Mr Taylor, Mr Samuel Sinclair and Mr Matthew Betts were identified as going in the third round and this plan was not disclosed by Fredon during the proceedings before the Deputy President;
• the plan was not carried out;
• instead, Mr Eichholz was deployed to a position working under the Agreement and although initially selected to be made redundant before the two existing employees covered by the 2016 Agreement, he inexplicably remained employed well after them;
• in the result Mr Eichholz was able to vote on the Agreement whereas in his pre-redeployment position he was not covered by the 2016 Agreement (and therefore the proposed agreement) he was not able to do so;
• there is no sound explanation disclosed by any of the documents as to why Mr Eichholz’s employment did not end when it was proposed under the plan;
• by 22 April 2020 Mr Eichholz had gone from an employee who was leaving in the second round of redundancies to an employee who was not to be made redundant at all. The absence of an explanation about this and no documents shedding any further light, support an inference consistent with the CEPU case that Mr Eichholz survived so he could vote on the Agreement;
• these matters at the least raise a possibility of a different outcome had they been available to the CEPU at first instance, leaving open the possibility that the manipulation claimed by the CEPU to have been involved in the making of the Agreement (which included selecting Mr Betts for redundancy once he had appointed the CEPU as bargaining representative) in fact occurred allowing for a conclusion that there are reasonable grounds for believing that the Agreement was not genuinely agreed to by the relevant employees.9
[5] The CEPU also contends that the documents produced disclose that by 31 March 2020:
• emails were circulating seeking ‘commencement dates’ for all four employees (Mr Betts, Mr Sinclair, Mr Eichholz and Mr Taylor). The CEPU says that it is far from clear why this was happening and contends that one real possibility is that it was relevant to who would be made redundant by applying the last on first off criteria for redundancy selection. It says that it is significant that Mr Eichholz would on that criteria go before Mr Betts. But he did not. The CEPU contends that the possibility is left open that there was some other reason, namely holding Mr Eichholz available for a vote in favour of the Agreement, which was then not so assured from Mr Betts;10
• a ‘particular awareness’ that Mr Betts and Mr Sinclair were ‘under our regional NSW agreement.’ The CEPU says that it is not at all clear from the documents why that was important enough to achieve ‘some notoriety’ on that date when things were going on about redundancies. It says that there is nothing in any document produced suggesting the plan for Mr Eichholz to go before Mr Betts and Mr Sinclair had changed or if it had changed, why the plan for Mr Eichholz to go at that time had changed.11
[6] Further, the CEPU contends that the documents produced do not show that skills of the employees were used as criteria for redundancy selection and so inferentially the absence of such documents suggests that a skills-based criterion for selection was not relevant nor applied by Fredon.12
[7] One of the bases on which the CEPU contended before the Deputy President that the Agreement should not be approved was that some of the employees who voted on the Agreement were not employees employed at the time who would be covered by it. The Deputy President concluded to the contrary13 and the CEPU’s contention that she erroneously did so is reflected in grounds 6 and 8 of its Notice of Appeal. There is no suggestion in the CEPU’s submissions that the documents produced by Fredon disclose that the CEPU was deprived of the possibility of a successful outcome before the Deputy President on this basis or that the documents produced could have had some forensic utility before the Deputy President in establishing that Mr Eichholz or Mr Taylor were not employed at the time or that they would not be covered by the Agreement when they voted. On our review of the documents, we are not persuaded that the failure by the Deputy President to order production of documents deprived the CEPU of the possibility of a successful outcome by establishing that one or more of the employees who voted to approve the Agreement were not employees employed at the time or would not be covered by the Agreement.
[8] That leaves the second basis for the CEPU’s objection - that there was the possibility of a manipulation by Fredon of the electorate, thereby raising reasonable grounds for believing that relevant employees did not genuinely agree to the Agreement. This is reflected in ground 7 of the CEPU’s Notice of Appeal.
[9] Arising from the production of the documents, the possibility of manipulation is put in two ways. First, the inclusion of Mr Eichholz in the electorate. The documents produced disclose that Mr Eichholz was identified for redundancy in the second of three rounds of redundancies, but that he was not thereafter dismissed on redundancy grounds. As earlier noted, the CEPU contends that there is no sound explanation disclosed by any of the documents why Mr Eichholz’s employment did not end when initially proposed. This submission ignores the evidence given below by Ms Leigh Sargent, Fredon’s HR Business Partner, who explained that although Mr Eichholz’s position as Foreperson at the Grafton Prison Project was no longer required, he was retained to perform specific tasks which required critical power and Medium voltage experience and for which he was qualified. He was offered and accepted a role to perform that work. It was an offer of redeployment.14
[10] Mr Cameron Stanfield, Fredon’s General Manager, Electrical Qld (and at all relevant times the Construction Manager responsible for the construction contract for the Grafton Prison Project), also gave evidence about the purpose for which Mr Eichholz continued in employment. He said that Mr Eichholz is presently employed to work through defects and defect liability for the original construction contract at the Grafton Prison Project and, while construction of the gaol is complete from Fredon’s perspective, Mr Eichholz remains employed because Fredon maintains an obligation to ensure that the construction works were carried out correctly. He said Mr Eichholz’s role is to identify and rectify any defects with the construction work previously undertaken by Fredon. Mr Stanfield said that this was a temporary arrangement as Fredon is required to guarantee the work through a phase that is called “commercial acceptance” and will last approximately 12 months.15 Nothing in the documents contradicts the explanation given by Ms Sargent or Mr Stanfield or causes their evidence to be doubted.
[11] That Mr Eichholz was identified for redundancy in the second round is consistent with Ms Sargent’s evidence that his role was no longer required and that there was thereafter some consultation. That he was not dismissed on redundancy grounds is consistent with Ms Sargent’s evidence that Mr Eichholz was offered and accepted redeployment to another position for which there was need and for which he was qualified. We therefore agree with Fredon that, for the CEPU to have been deprived of a possibility of a successful outcome, it is necessary to conclude that one or more documents could have realistically been deployed to show that the evidence of Ms Sargent and Mr Stanfield should not have been accepted in the relevant respects. We do not accept that any document produced could have been so deployed nor, as we have already observed, do any of the documents contradict the relevant evidence given by Ms Sargent or Mr Stanfield.
[12] As to the email correspondence “circulating” on 31 March 2020 it is apparent on the face of the emails and, in particular the “subject” line, that the purpose of each email is to establish the notice period that must be given in the event of dismissal on redundancy grounds. The subject line of each email reads: “Confirmation of notice period” and the first email (8:19 AM) in the chain contains the following question: “Can you please let me know this morning what the notice period is for the below staff. I believe all are 2 weeks.” The service periods listed in the email for each of the employees are plainly included to assist in working out the correct notice period. A further email from Ms Rachael Gjorgjijoska sent on 31 March 2020 (at 9:32 AM) responding to Ms Sargent’s questions about commencement dates and Mr Taylor’s age contains the original questions and the answers provided (reproduced in bold font):
“Can you please provide me with commencement dates for the following employees:
Matthew Betts – 04/09/18
Michael Taylor – 03/04/18
Sam Sinclair – 29/01/19
Siegfried Eichholz – 29/10/18
I believe that Michael Taylor may be getting close to his two year anniversary. If so, can you please let me know if he is 45 years old or over? Yes he is over 45”.
[13] Plainly the questions about commencement dates and age (in the case of Mr Taylor) are asked for the purpose of determining notice periods.
[14] Contrary to the CEPU’s contention that it is “far from clear why this was happening” the reason is not only self-evident but is expressed in clear terms in the body of the first email earlier mentioned. It is simply not plausibly arguable that periods of service were being mentioned in these emails because Fredon was applying or was contemplating applying a last on first off criterion for redundancy selection. Further the absence of any document showing the use of a skills-based criterion for selection for redundancy does not mean an inference arises that a last on first off criterion was to be used. It is to be remembered that the redundancies were necessitated because the Grafton Prison Project had come to an end, save for rectification works. 16 In the result, unless redeployment opportunities were available, the entire workforce on the project was to be dismissed on redundancy grounds.
[15] The same must be said about the “particular awareness” that Mr Betts and Mr Sinclair were “under our regional NSW agreement”. The relevant email, which is the third in the chain (9:46 AM) provides: “For your information in ensuring full compliance, these are two permanent employees of Industries under our Regional NSW agreement.” Plainly, when read in the context of the email exchanges about the appropriate notice periods required on termination of employment, it is unremarkable that someone might suggest consulting the relevantly applicable industrial instrument to ensure “full compliance” with the notice requirements applicable to each employee. The suggestion by the CEPU that it is not at all clear from the documents why the reference to the Regional NSW agreement was important enough to achieve some notoriety must be rejected. It is abundantly clear.
[16] The only substantive additional fact disclosed by the documents produced and which was not known to the CEPU at the time it put its case to the Deputy President was that Mr Eichholz was identified for redundancy in the second of three rounds. It otherwise knew Mr Eichholz had been redeployed into a position that would be covered by the Agreement. Given the evidence before the Deputy President about the reason for Mr Eichholz’s redeployment discussed earlier, we do not consider that the failure by the Deputy President to order production of documents deprived the CEPU of the possibility of a successful outcome.
[17] The second basis for the possibility of manipulation submission concerns the exclusion of Mr Betts and Mr Sinclair from the electorate by reason of their dismissals on redundancy grounds. 17 Apart from the email correspondence of 31 March 2020 which noted that “in ensuring full compliance, these are two permanent employees of Industries under our Regional NSW agreement” the CEPU points to no other document produced which would have further advanced its case before the Deputy President. We have already dealt with our reasons for rejecting any suggestion that the content of the 31 March 2020 chain of emails may be brought in to aid the CEPU’s electorate manipulation hypothesis. We agree with Fredon’s submission that nothing in the documents suggests that the timing or order of Mr Betts’ or Mr Sinclair’s dismissal on redundancy grounds was in any respect designed to achieve a particular result in the vote for the approval of the Agreement nor, we should add, does any document suggest Mr Betts’ dismissal was undertaken because he had nominated the CEPU as his bargaining representative.
[18] Moreover, Mr Betts did not, in his evidence below, suggest that he had been dismissed in order that the pool of employees voting for the Agreement might be manipulated. His evidence was simply that in late February 2020 he was offered an ongoing role at Fredon. He said:
“I was called into the office by Michael Hale, the Project Manager. Hale asked me if I wanted a maintenance role in the prison. I said I would prefer a role on the upcoming Tweed project.”18
[19] Mr Betts said that he received a redundancy risk letter on 31 March 2020 and that he was shocked because “the plan” (that is, his plan) was to continue working for Fredon in Brisbane and then at Tweed Heads Hospital.19 The evidence was that at the time of the redundancy risk letter Mr Betts was told that there were no positions available in Brisbane20 and Mr Stanfield’s evidence was that at that time Fredon had not secured the Tweed Valley Hospital contract and that the early works being performed at that site would finish in April 2020.21 Thus the reason Mr Betts did not secure ongoing employment at the Tweed Valley Hospital project was explained, and he did not express an interest in the maintenance contract role at the Grafton Prison Project (discussed further below). Mr Sinclair was interviewed for the maintenance contract role, along with Mr Taylor and another employee. 22 Although Mr Sinclair believed that there were two positions available, ultimately Fredon only required one employee to perform the contract with Serco23, and Mr Sinclair was not identified as the electrician most suitably qualified.24 Mr Taylor was selected for the maintenance contract role. None of the documents produced undermine Fredon’s evidence as to the circumstances in which Mr Betts and Mr Sinclair were dismissed or the reasons for the redeployments of Mr Taylor and Mr Eichholz, much less add any fuel to the CEPU’s manipulation hypothesis.
[20] For these reasons so much of the appeal as is founded in grounds 1 to 5 of the Notice of Appeal is dismissed.
[21] Before returning to the Approval Grounds, we briefly need to deal with two matters. The first concerns an issue raised in the CEPU’s outline of submissions about the absence of an affidavit verifying whether all documents caught by the categories of documents the subject of the Production Order have been produced to the Commission. 25 The CEPU submitted that absent a verifying affidavit we could not be satisfied that Fredon had complied with the Production Order and it wished to test the claim that all documents have been produced.26 Accompanying Fredon’s submissions was an affidavit sworn by Ms Sargent setting out the enquiries she made in collecting documents responsive to the Production Order.27 No further submission to test the claim that all documents have been produced is made by the CEPU in its reply submissions and, as it consented to the matter being determined on the materials filed and without a further hearing, we assume the claim is no longer pressed. In any event having regard to Ms Sargent’s affidavit, we are satisfied that Fredon has complied with the Production Order.
[22] The second matter concerns the absence of any document amongst the documents produced by Fredon about the claimed discussions with Mr Taylor and Mr Eichholz, to which reference is made in the letters of offers of redeployment given to these employees dated 27 April 2020. 28 The CEPU contends that, absent the production of such documents, the CEPU wishes to have both employees ordered to attend and give evidence about those discussions. It says that is a course it is entitled to take as it is now said there is no evidence in documentary form about what was discussed with Mr Taylor and Mr Eichholz.29 This submission must be rejected.
[23] The fact that some discussions occurred with Mr Taylor and Mr Eichholz on or before 27 April 2020 was known to the CEPU at the time of the proceedings before the Deputy President. The relevant documents disclosing the fact that there had been communications on or before 27 April 2020 with each employee “in relation to your role at Fredon” were annexed to Ms Sargent’s first witness statement filed in the proceedings 30 and so was known to the CEPU at the time of the proceedings before the Deputy President. Additionally, Ms Sargent gave evidence that during late March/early April 2020 when Fredon determined that the Foreperson positions occupied by Mr Taylor and Mr Eichholz were no longer required, “consultation occurred” between Fredon and these employees.31 It was therefore open to the CEPU to have sought orders that Mr Taylor and Mr Eichholz be called to give evidence. In these circumstances, the fact that no documents were produced or that no documents exist which record the discussions does not now give the CEPU any entitlement to have Mr Taylor and Mr Eichholz called to give evidence. Neither the Deputy President’s failure to order production of documents nor the subsequent production pursuant to the Production Order has deprived the CEPU of pursuing enquiries during the proceedings before the Deputy President in the manner we have described above.
Approval Grounds
[24] Except to contend that the Deputy President’s refusal to make a document production order deprived it of the opportunity of exploring whether Mr Taylor and Mr Eichholz were “electrical workers who would be covered by the proposed agreement”, 32 the CEPU did not advance any submissions in support of the errors for which it contended in grounds 6 and 8 of the Notice of Appeal. The essential contention advanced by the CEPU’s written submissions33 in furtherance of the Approval Grounds is that the Deputy President erred in concluding that there were no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. The CEPU contends that this is because the dismissal of some employees who would be covered by the Agreement and engagement of others in positions that would be covered by the Agreement in circumstances where they occupied positions that were not covered by the 2016 Agreement and would therefore not otherwise be covered by the Agreement raised reasonable grounds for believing that the Agreement has not been genuinely agreed to by employees. The case advanced is that the reason for the dismissal of some employees and the redeployment of others is suggestive of a manipulation of the pool of voters available to vote for the approval of the Agreement.
[25] It is evident from the letters of offer of redeployment given to each of Mr Eichholz and Mr Taylor that they were redeployed into positions covered by the 2016 Agreement and would therefore be covered by the Agreement.34 We have earlier discussed the evidence about the reasons for Mr Eichholz’s redeployment. Mr Stanfield also gave evidence about the reasons for Mr Taylor’s redeployment. He said that Mr Taylor was engaged to perform work on the planned preventative maintenance contract for Serco at the Grafton Prison Project and that this work was to be performed under a contract awarded to Fredon by Serco on 2 April 2020 with work under the contract commencing in early May 2020.35 The letter of redeployment given to Mr Taylor is dated 27 April 2020 and is consistent with this timeline. There was no evidence before the Deputy President which would tend to contradict this evidence nor do the documents since produced have this effect. To the contrary, the evidence before the Deputy President established that both Mr Eichholz and Mr Taylor were employees employed at the time of voting and would be covered by the Agreement. This is the essence of the Deputy President’s conclusion at [81] of the Decision. There was no evidence before the Deputy President (nor has the production of documents since provided such evidence) that the reason or purpose underpinning the redeployment of these employees was to manipulate the pool of voters available to approve the Agreement and there was evidence setting out cogent reasons for their redeployment.
[26] As to the position of Mr Betts and Mr Sinclair, there was no real issue before the Deputy President that the roles occupied by these employees were no longer required. Although Mr Sinclair gave evidence that he expressed an interest in the maintenance contract role, a role ultimately given to Mr Taylor, Ms Sargent’s evidence was that Fredon only had one role available and that both Mr Sinclair and Mr Betts were invited to express an interest for the position as well as other employees.36 Ms Sargent’s evidence was that Mr Sinclair was not identified as the electrician most suitably qualified, skilled or experienced to perform the maintenance contract role and it was filled by another employee (Mr Taylor) who would otherwise have been dismissed on redundancy grounds.37 Ms Sargent said that Mr Betts did not wish to be considered for the role38 and Mr Betts did not give any evidence to the contrary. Indeed, his evidence noted at [18] above is consistent with Ms Sargent’s evidence. We have already dealt with Mr Betts’ desire to be relocated to the “Tweed Heads Hospital” project and the reason that desire was not realised.
[27] There was no evidence before the Deputy President (and none is disclosed from the documents since produced) suggesting that the dismissal of Mr Betts or Mr Sinclair on redundancy grounds was anything other than genuine and that they were unable to be redeployed into another position for the reasons discussed earlier. Both were employed on the Grafton Prison Project which came to an end. Much less is there any evidence which would support a conclusion that Mr Betts and Mr Sinclair had their employment terminated to manipulate the pool of employees available to vote on the Agreement. This is the essence of the Deputy President’s conclusion at [83] of the Decision.
[28] While the Deputy President did not expressly state that she was satisfied that there were no other reasonable grounds for believing that the Agreement was not genuinely agreed to by the employees, we consider, on a fair reading of the Decision taking into account the Deputy President’s summary at [71] of the factors raised by the CEPU in support of its contention that “the Commission could be satisfied there are reasonable grounds for believing that the Agreement had not been genuinely agreed” and her ultimate conclusion at [90] of the Decision that she was satisfied, inter alia, the requirements of s 188 had been met, that she was so satisfied.
[29] For these reasons we are not persuaded that there is an arguable case made out by the CEPU of appealable error as alleged in the Approval Grounds. We are also not persuaded that it is in the public interest that permission to appeal on the Approval Grounds should be granted or that permission to appeal should otherwise be granted on discretionary grounds. Permission to appeal on the Approval Grounds is therefore refused.
Orders
[30] We order as follows:
1. So much of the appeal as is founded in grounds 1-5 of the Notice of Appeal is dismissed;
2. Permission to appeal is otherwise refused.
VICE PRESIDENT
Appearances:
R Reitano of counsel for the Appellant.
S Meehan of counsel for the Respondent.
Hearing details:
2020.
Sydney and Melbourne (via video-link).
17 December.
Final written submissions:
Appellant, 12 March 2021 and 1 April 2021.
Respondent, 26 March 2021.
Printed by authority of the Commonwealth Government Printer
<PR730415>
1 [2020] FWCA 5198
2 [2021] FWCFB 128
3 Ibid at [22]
4 Ibid at [24]
5 Ibid at [25]; PR726114
6 Directions were issued on 12 February 2021 and amended on 16 February 2021
7 Email correspondence to the Chambers of Vice President Hatcher dated 27 April 2021 (from the Respondent’s Solicitors) and 28 April 2021 (from the Appellant)
8 [2021] FWCFB 128 at [2]-[4]
9 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (12 March 2021) at [5]-[6], [10]-[12]; Outline of submissions in reply of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at [4]-[6]
10 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (12 March 2021) at [7]
11 Ibid at [8]
12 Ibid at [9]
13 [2020] FWCA 5198 at [88]
14 Appeal Book 145-146 at [17]-[18], Appeal Book 162, attachment LS 6
15 Appeal Book 188 at [4], Appeal Book 189 at [10]
16 Appeal Book 172-3 at [10]-[13]
17 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (12 March 2021) at [7]-[9], [11]
18 Appeal Book 203 at [12]
19 Appeal Book 207 at [33] – [35]
20 Ibid at [34]
21 Appeal Book 192 at [27]
22 Appeal Book 239 at [10]
23 Appeal Book 173 at [14]; Appeal Book 189 at [7]
24 Appeal Book 173 at [15]
25 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (12 March 2021) at [3]
26 Ibid
27 Fredon submissions (26 March 2021) at [4]; Affidavit of Leigh Sargent sworn on 26 March 2021
28 Appeal Book 153, Annexure LS – 3; Appeal Book 162, Annexure LS – 6
29 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (12 March 2021) at [3]-[4]
30 Appeal Book 153, Annexure LS – 3; Appeal Book 162, Annexure LS – 6
31 Appeal Book 145 at [11] and [17]
32 Outline of submissions of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (19 November 2020) at [29]
33 Ibid at [32]-[35]
34 Appeal Book 153, Annexure LS – 3; Appeal Book 162, Annexure LS – 6
35 Appeal book 189 at [7]
36 Appeal Book 173 at [14]
37 Ibid at [15]
38 Ibid
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