Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto
[2023] FWCFB 220
•23 NOVEMBER 2023
| [2023] FWCFB 220 |
| 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
Rio Tinto Aluminium Limited T/A Rio Tinto
(C2023/5930)
| VICE PRESIDENT CANTAZARITI DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT MILLHOUSE | SYDNEY, 23 NOVEMBER 2023 |
Appeal against decision [2023] FWC 2391 of Deputy President Dobson at Brisbane on 15 September 2023 in matter number C2023/2887
The appellant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term in the Rio Tinto Gove Enterprise Bargaining Agreement 2022 (Agreement). The appellant is one of several registered organisations covered by the Agreement. The respondent, Rio Tinto Aluminium Limited is also covered by the Agreement.
The respondent conducts bauxite mining operations on the Gove Peninsula and is responsible for supplying electricity to the Gove community and the mine. This involves supplying power to the town of Gove, and several outlying indigenous communities. It has structured its electrical maintenance teams to meet its electricity supply obligations. The respondent’s low voltage electrical team (LV Team) is responsible for providing electrical support for the site and consists of four crews of three electricians: the ‘S crew’, ‘U crew’, ‘T crew’ and ‘V crew’. The crews are rostered to provide 24 hours/7-day coverage and the need for continuous service to support production is acknowledged in the Agreement (clause 9).
Generally, the LV Team performs planned maintenance work and breakdown work. The former includes planned servicing and maintenance activities, while the latter involves unplanned maintenance and repair work of the same equipment and systems. Breakdown work takes priority over planned maintenance work because it is more urgent, but planned maintenance work is important to ensure operational stability and safety. About 80% of the planned maintenance work requires two electricians to safely perform it.
The respondent considered that the LV Team was only completing around 50% of the planned maintenance work and was constantly behind on the maintenance schedule, which it regarded as underperforming in comparison to other maintenance teams. It considered that the underperformance was largely due to a combination of a high level of unplanned absenteeism (just over 10%), and the fact that the LV Team could have up to four crew out of 12 on annual leave at the same time. Both the absentee rate and the proportion of staff on leave were said to exceed the levels in other teams.
Mr Chris Henderson is a member of the appellant and is employed by the respondent as an electrician in the LV Team. Low Voltage electricians, including Mr Henderson, work under the Agreement on 12-hour shifts on a four on, four off continuous shift roster. Each crew in the LV Team under that roster has three electricians. The LV Team paired crews which are the S and U crew and the T and V crew.
In or around August 2022 the respondent introduced ‘Leave Allocation Guidelines’ (Guidelines), intended to address the annual leave factor contributing to the planned maintenance performance issue about which the respondent was concerned. The Guidelines in effect provide that only 1 person from each paired crew is permitted to be on annual leave at any one time.
On or around 23 February 2023 Mr Henderson requested annual leave for four shifts during 23-26 December 2023. The request for leave was refused because it did not align with the Guidelines. Another employee on the same paired crew as Mr Henderson had earlier requested annual leave for the same period. In July 2023, Mr Henderson’s annual leave request for 25 December and 26 December 2023 was granted on the basis that an employee in Mr Henderson’s paired crew altered his leave request from annual leave to long service leave.
The dispute application was allocated to Deputy President Dobson. The parties appear to have agreed that arbitration of the dispute would involve the Deputy President answering two questions:
“Question 1:
Do the Leave Allocation Guidelines (LAG) offend the NES and/or clause 36 of the Agreement?Question 2:
Is the refusal of Mr Henderson’s annual leave application for 23-24 December 2023 unreasonable?”
On 16 September 2023, the Deputy President published a decision,[1] in which she answered the first question as follows: “. . . yes to the extent in which they have been applied to Mr Henderson’s particular circumstances.”[2] The Deputy President also answered yes to the second question.
By its notice of appeal lodged on 5 October 2023, the appellant applies for permission to appeal, and if granted appeals the decision. Unusually, the appellant does not cavil with the answers given. Rather it contends in substance that the Deputy President erroneously did not exercise the arbitral jurisdiction conferred to resolve the dispute because she failed to answer the first question and instead answered a narrower question.
The appellant advances 5 appeal grounds which may conveniently be grouped and summarised as follows. By grounds 1, 4 and 5, the appellant contends that the Deputy President erred in failing:
to exercise her jurisdiction by not answering question 1;
to give any, or any adequate, reasons for her decision not to answer question 1 and instead to limit the answer to question 1 to the extent the Guidelines as they applied to Mr Henderson’s particular circumstances; and
to resolve all issues of fact and law between the parties in the dispute.
Collectively, we describe these grounds as the “failure to exercise jurisdiction grounds”.
By grounds 2 and 3 the appellant contends the Deputy President erred in failing to take into account that which it says were relevant considerations, namely:
to make findings about the issue of consultation and take these into account; and
to make findings about the issue of planned maintenance and take these into account.
We describe these grounds together as the “relevant consideration grounds”.
We deal with each grouping of the appeal grounds below.
Failure to exercise jurisdiction grounds
The appellant’s central contention underpinning these appeal grounds is that the matter in dispute before the Commission for resolution was crystallised into the two questions for arbitration, which we have earlier set out. The questions were agreed as between the parties, and, so the appellant maintains, by the Commission. Question 1 is directed to a more general question than Question 2, which is limited to Mr Henderson’s specific circumstances in relation to a specific annual leave application. The appellant contends that the parties were in dispute about the Guidelines as a general requirement and its application to Mr Henderson. The appellant says that the Deputy President was both being empowered to act and had agreed to act. And having agreed to determine the dispute in the terms settled on by the parties, the appellant says that the Deputy President was under a duty which was not performed – there was a refusal or a failure to do the act which the Commission was authorised to perform and which it had agreed to perform. Thus, according to the appellant, the Deputy President fell into jurisdictional error in failing to arbitrate question 1 and to provide an answer.
For the reasons which follow, we do not consider the Deputy President erred in the manner alleged.
The Deputy President records at the commencement of her decision the agreed questions proffered by the parties as requiring determination. The respondent does not dispute that the parties placed before the Deputy President two questions for arbitration or that the questions were framed by the appellant and that the respondent had agreed that those questions were “relevant to [the] proceeding”.[3] The appellant’s outline of submissions below record the following:
5.The original application concerned two applications for annual leave. The first application was due to commence on 30 June 2023. This date has passed and so the Applicant no longer presses the dispute as it relates to this period.
6.The leave application which remains in dispute concerns a period of four shifts between 23 and 26 December 2023.
7.The Applicant seeks the following questions to be answered by the Tribunal:
1. Do the Leave Allocation Guidelines offend the NES and/or clause 36 of the Agreement?
2. Is the refusal of Mr Henderson’s annual leave application for 23 – 26 December 2023 unreasonable?
8.The Applicant submits that the answer to both questions is ‘yes’.
. . .
77. In conclusion, the Applicant submits that the Leave Allocation Guidelines introduced by the Respondent are unreasonable. The personal circumstances of Mr Henderson’s request, in conjunction with the unreasonableness of the Leave Allocation Guidelines, make the refusal of his request to take paid annual leave unreasonable, contrary to section 88(2) of the Act and clause 36 of the Agreement . . .[4] [Our underlining]
While the respondent’s submissions record:
2. The ultimate issue for the Commission in this proceeding is whether Rio Tinto’s refusal of Mr Henderson’s annual leave application was unreasonable.
3. Rio Tinto submits that its refusal was reasonable because it was in accordance with its Annual Leave Guidelines (Guidelines). Those Guidelines reduced the risks of planned maintenance not taking place when two electricians took annual leave at the same time, by preventing that unless there were special circumstances. The Guidelines also applied fairly and equitably to all electricians in the team and were consistent with clause 36 of the Rio Tinto Gove Enterprise Bargaining Agreement 2022 (the Agreement) and the National Employment Standards (the NES). Finally, as there were no special circumstances that warranted Rio Tinto approving the request in Mr Henderson’s case, it was appropriate to refuse the request.
Questions for arbitration
4. The applicant (the ETU) seeks an answer to two questions:
1. Do the Leave Allocation Guidelines offend the NES and/or clause 36 of the Agreement?
2. Is the refusal of Mr Henderson’s annual leave application for 23 – 26 December 2023 unreasonable?
5. Rio Tinto agrees that those are the questions relevant to this proceeding and submits the answer to both should be ‘No’.[5] [Our underlining]
The appellant sought answers to the questions it posed, the respondent agreed that the questions were relevant, and they were to be answered in the context of a dispute about the respondent’s refusal to grant Mr Henderson’s request for leave.
But neither the decision nor the material in the appeal book discloses that the Deputy President had agreed, as the appellant contends, to answer, and accordingly, was bound to answer, the questions posed to resolve the dispute in accordance with the dispute settlement term of the Agreement. Such agreement on the questions for arbitration existed only between the parties to the dispute. It did not exist with the Commission.
In any event, the dispute referred to the Commission was not one about whether the Guidelines offend the NES and/or clause 36 of the Agreement in a general sense. Rather the dispute was about the respondent’s refusal of Mr Henderson’s requests to take particular periods of annual leave because the requests for leave did not align with the Guidelines.
Clause 13 of the Agreement, which is titled “Equitable Treatment Procedure” is the dispute resolution term which engages with s 739 of the Act. Stage 1 of the procedure provides that the “Employee, and if the Employee desires, their representative (who may be a Union representative nominated by the Employee), may submit the matter to their direct leader.” Pursuant to stage 1, Mr Henderson completed and submitted an “Equitable Treatment Procedure Submission Form” which provides that the form “be used by Employees to submit a grievance in accordance with the ETP (clause 13) in the” Agreement.[6]
The form contains the following description of the dispute:
This dispute concerns section 88(2) of the National Employment Standards (NES)
which provides:
88 Taking paid annual leave
(1)Paid annual leave may be taken for a period agreed between an employee and his or her employer.
(2)The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
(emphasis added)
On approximately the 17 February 2023 I applied to take a period of annual leave from 23 to 26 December 2023. On 23 February 2023 this was rejected without explanation. When I asked for a response the reason provided to me was:
Chris,
It looks like it does not align with the annual leave guidelines.Dan,
Can you check this on your return and get back to me?Regards, Paul Richter
Superintendent Maintenance Services - Gove operations Aluminium
I am aware that Paul Richter has purported to impose a unilateral 'annual leave guideline' on 31 August 2022. The 'guidelines' were disputed at the time and the terms of which did not make themselves into the current EBA.
The guidelines purport to limit my ability to take annual leave when a member of a crew I am not a part of, and on a shift pattern which does not align with mine, is on leave at the same time.
I am concerned that refusing my application for annual leave is arbitrary unreasonable and contrary to section 88 (2) of the Act. Clause 36 of the Agreement deals with annual leave. Specifically:
. . .
Scheduling of annual leave must accommodate operational requirements and must be approved by RT A. Workgroups are encouraged to expend all efforts to ensure annual leave is taken at the best opportunity on a mutual basis, plus all annual leave days must be arranged and approved in advance.
I cannot see how my application upsets the operational requirements when I will be the only member on my crew taking leave at the time. This has been accommodated in the past and I cannot see what has materially changed to cause a flat rejection of my application.
With twelve electricians across the two crews, and Employees asked to take annual leave within twelve months of its accrual the unilateral 'guidelines' leave no flexibility for Employees to take annual leave at the same time. We are humans with life outside of work and our leave requirements should not be unreasonably refused to align with a rigid and inflexible 'guideline' which in fact does not upset the operational requirements of the business.
. . .
Provide details of any option(s) you feel should be considered to resolve the grievance
Comments:
I am asking that my application for leave be approved.[7] [The underlining where first appearing is in original. The remainder is our underlining]
Although Mr Henderson was disputing the Guidelines, he was doing so in the context of the application of the Guidelines by the respondent in refusing his annual leave request.
As earlier noted, the appellant had applied under s 739 of the Act for the Commission to deal with the dispute in accordance with clause 13 of the Agreement. Relevantly, the application described the dispute as follows:
“. . .
Mr Henderson applied for two periods of annual leave for 30/6/2023 to 03/07/2023 and 23/12/2023 to 26/12/2023. Both of which were rejected because they did not align with the ‘leave allocation guideline’.This dispute concerns whether the rejection of those leave applications was reasonable having regard to clause 36 of the Agreement and section 88 (2) of the Fair Work Act.
. . .”
The application also describes the remedy or outcome sought as follows:
“The ETU seeks a Decision that the reasons for the leave request refusals are unreasonable, and that the applications be approved.”
The scope of the dispute and the remedy sought was also discussed at the commencement of the oral hearing, and the transcript records the following exchange:
PN27 THE DEPUTY PRESIDENT: Great. Fantastic. I note that the parties have filed some very comprehensive submissions, and so it’s not necessary to repeat those submissions or to repeat that. I understand that the agreed questions for determination are question 1 to the leave allocation guidelines offending NES, and/or clause 36 of the agreement, which is the annual leave clause of the agreement. And question 2, is the refusal of Mr Henderson’s annual leave application specifically now for 23 to 24 December unreasonable. Is that correct?
PN28 MS MIDSON: It is, thank you, your Honour, yes.
PN29 THE DEPUTY PRESIDENT: And am I right to say that the remedy is that the application be approved if I find it’s not reasonable or that the rejection be confirmed if I find that it is?
PN30 MS MIDSON: Yes, your Honour. Yes, thank you.
PN31 THE DEPUTY PRESIDENT: And, Mr Payard, you agree?
PN32 MR PAYARD: Yes, that’s ultimately a question for (indistinct).[8]
The Deputy President had power to deal with the dispute by arbitration. So much is not in contest. After a matter in dispute is referred to the Commission, clause 13 of the Agreement sets out a two-stage process. First, the Commission may deal with the matter in dispute by “attempting to resolve the matter as it considers appropriate, including by conciliation, mediation, conference, expressing an opinion or making a recommendation”. Second, if the Commission, is unable to resolve the matter in dispute at the first stage, it is authorised to “arbitrate the matter and make a decision that is binding on the parties”. Consequently, in accordance with clause 13, the parties have agreed that the Commission may arbitrate the dispute, so the Commission may do so (s 739(4)). Absent any express limitation in the Agreement on the arbitral function conferred by clause 13, the Commission can exercise all its powers under the Act.[9]
The arbitral function being exercised under clause 13 of the Agreement is one of private arbitral (rather than statutory) power.[10] In exercising the function, the Commission, as a private arbitrator, is authorised to make decisions as to the legal rights and liabilities of the parties to the dispute,[11] and the arbitral award made will thereafter regulate those rights and liabilities in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. As Hayne, Crennan, Kiefel and Bell JJ in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia[12] explained:
“[76] An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated. The jurisdiction of the courts is not and cannot be ousted by a private agreement.
[77] However, if parties do go to arbitration and the arbitrator makes an award, the making of the award has legal significance in respect of the parties’ dispute and their rights and liabilities. As the plurality in Dobbs said: “if, before the institution of an action, an award was made, it [the award] governed the rights of the parties and precluded them from asserting in the Courts the claims which the award determined” (emphasis added). In such a case, the arbitrator’s award governs the rights of the parties because “[b]y submitting the claims to arbitration, the parties confer upon the arbitrator an authority conclusively to determine them.”
[78] This gives rise to the general rule that an award made by an arbitrator pursuant to such authority is final and conclusive. Further, the arbitrator’s making of an award in exercise of such authority both extinguishes the original cause of action and imposes new obligations on the parties in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. The former rights of the parties are discharged by an accord and satisfaction. The accord is the agreement to submit disputes to arbitration; the satisfaction is the making of an award in fulfilment of the agreement to arbitrate.
[79] It follows that when an arbitral award is enforced by curial process, the obligations sought to be enforced are those which are created by the award in substitution for the rights and liabilities which were the subject of the dispute referred to arbitration. A party may sue on an award as a cause of action or, in some cases, as in this case, seek enforcement of the award pursuant to the IA Act.”[13] [citations omitted]
Section 739(5) of the Act which provides that the Commission must not make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties, imposes a limit on the range of arbitrated outcomes available to the Commission in cases in which the parties have agreed that the Commission may arbitrate. But s 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement in the terms of the Agreement – it is a private arbitration.[14]
Clause 13 of the Agreement which authorised the Deputy President to arbitrate the dispute is an unrestricted power to arbitrate, limited only by the requirement to first attempt to resolve the dispute by conciliating and by s 739(5) of the Act. There is thus a conferral on the Commission of a broad discretion which is to be exercised having regard to the role of the private arbiter to determine to finality all questions of fact and law which arise for determination in the dispute.[15]
The formulation of questions for arbitration by one or more parties does not bind the Commission to answer them. The Deputy President was under a duty to arbitrate the matter in dispute. Questions framed by parties may not always reflect that which is in dispute, or they may engage with issues in the abstract. Sometimes broadly framed questions may be narrowly answered because that is all that is required to resolve the matter or matters in dispute. If parties want the Commission to be bound to answer questions framed by them, it is open to include such a limitation in a dispute settlement term of an enterprise agreement, but here no such limitation is apparent.
In the instant case, the appellant framed a broad question in the context of a narrow dispute about Mr Henderson’s request for leave albeit against the background of the operation of the Guidelines upon that request. The Deputy President found the questions of fact and law that arose for determination in the dispute related to whether the respondent unreasonably refused the employee’s leave request in all the circumstances.[16] A consideration of the NES (s 88 of the Act) and clause 36 of the Agreement, is not undertaken in a vacuum or in the abstract. Rather, analysis of whether an employer’s refusal of a request for an employee to take paid annual leave was not reasonable (s 88), or whether the leave for which an employee applied will cause undue disruption to the operation (clause 36) was required. These assessments may only be made by reference to the circumstances pertaining to an employee, the employee’s application, and the needs and circumstances of the operation. The consideration under s 88 is also undertaken having regard to the fact that paid annual leave may be taken at a time agreed between an employee and the employer (s 88(1)). An abstract consideration of the Guidelines and whether they “offend the NES and/or clause 36 of the Agreement”, will not yield a definitive answer (and most likely no answer at all) because the answer will depend on the respondent’s refusal of a request for leave having regard to the circumstances of the employee making the request and the needs of the operation when the request is made and during the period of leave requested. At best, question 1 might yield an answer to the effect that rigid application of the Guidelines to an employee’s request for annual leave without considering the employee’s circumstances and the operational needs of the employer at the time the request is made and during the proposed period of leave, may result in a refusal for leave being unreasonable and therefore contrary to s 88(2) of the Act.
In any event the Deputy President was not required to decide the appellant’s application in the terms applied for as s 599 of the Act makes clear. No orders were sought in the submissions advanced by the appellant below, beyond seeking an answer of yes to each question posed. Thus, to the extent that the answer the appellant sought to question 1 constituted a remedy sought, the Deputy President was not bound to answer the question in the binary way advanced. The limited nature of the answer given, having regard to Mr Henderson’s circumstances, was appropriate. Moreover, we note that the answers given correspond exactly with the remedy sought as described in the application – the appellant sought “a Decision that the reasons for the leave request refusals are unreasonable, and that the applications be approved”.
The Deputy President was not required in her decision and reasons to address every contention advanced. She was required to address any submission which is significant and touches upon the core duty being discharged, or which is centrally relevant to the decision being made.[17] We agree with the respondent that the Deputy President’s core duty being discharged in these circumstances was to determine by arbitration the matter in dispute, namely whether the refusal of Mr Henderson’s annual leave request was not reasonable. This was resolved in the appellant’s favour. Thus, having concluded that the respondent’s refusal of Mr Henderson’s request for annual leave was unreasonable, and having given reasons for her conclusion (at [41]-[49] of the decision), the Deputy President arbitrated the matter in dispute thereby discharging her core duty. The reason for narrowly answering the questions appears to us to be self-evident – that was all that was required to arbitrate the dispute.
Also self-evident, as we earlier mentioned, is that answering the first question in the abstract would not yield a definitive answer, because an answer is available only when there has been a refusal of an employee’s request for leave by applying the Guidelines. An assessment whether the Guidelines offend the NES and/or clause 36 of the Agreement is to be made by reference to the circumstances of the employee, the operation of the employer when the request for leave is made and the period of the leave requested. The mere existence or promulgation of the Guidelines will not “offend” the NES and/or clause 36 of the Agreement because there has been no refusal of leave. It is only the application of the Guidelines to an employee’s request resulting in a refusal by the respondent of the leave request, which can have that result. Only Mr Henderson’s circumstances were before the Deputy President and question 1 could thus only be answered by reference to those circumstances. This is what the Deputy President did.
For these reasons, the failure to exercise jurisdiction grounds advanced by the appellant do not disclose appealable error.
Relevant consideration grounds
The appellant contends that at [46] of the decision the Deputy President did not have regard to the question of whether there was adequate or appropriate consultation in the introduction of the Guidelines. The Deputy President opined that it was unnecessary to determine the issues for the purposes of her decision. The appellant accepts that as the matter was decided in a more limited fashion it was unnecessary to make the finding. Similarly, the appellant contends that at [47] of the decision the Deputy President determined that there was no utility in making findings about planned maintenance but that findings about that issue would have been necessary if question 1 was answered.
For the reasons earlier discussed it was not necessary for the Deputy President to answer the abstract question 1 in order to resolve the dispute about the refusal of Mr Henderson’s request for annual leave. Consequently, there is no error in the Deputy President’s decision not to make findings about adequate or appropriate consultation before introducing the Guidelines, or about planned maintenance.
Conclusion
The dispute was about Mr Henderson’s annual leave request which was resolved by reference to circumstances personal to him and his request. No point of general application was raised by the dispute – the breadth of the abstract question 1 notwithstanding. The Deputy President determined the dispute in the appellant’s favour, and she was not required to answer question 1 in the form advanced. None of the appeal grounds advanced by the appellant disclose appealable error and, in the circumstances, we are not persuaded to grant permission to appeal in the public interest nor on discretionary grounds.
Order
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr E White counsel for the appellant
Mr C J Murdoch KC counsel for the respondent
Hearing details:
16 November 2023
At Melbourne
Final written submissions:
Appellant: 26 October 2023
Respondent: 9 November 2023
[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto[2023] FWC 2391
[2] Ibid at [51]
[3] Appeal Book (AB) 138 – 139 at [5]
[4] AB122-123, AB137
[5] AB138 – 139
[6] AB283
[7] AB283-284
[8] AB24-25
[9] Endeavour Energy vCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, (2016) 244 FCR 178 at [29]
[10] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [30]-[31]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [86]
[11] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [32]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36]; Linfox Australia Pty Ltd v Transport Workers’ Union of Australia [2013] FCA 659; (2013) 213 FCR 479 at [19]-[24]
[12] [2013] HCA 5; (2013) 251 CLR 533
[13] Ibid at [76]-[79]
[14] Endeavour Energy vCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, (2016) 244 FCR 178 at [29]-[35]
[15] Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [22]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36]; Australian Maritime Officers’ Union, The v Newcastle Port Corporation T/A Port Authority of New South Wales[2023] FWC 2654 at [37]
[16] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto[2023] FWC 2391 at [47]
[17] Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 at [47]
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