Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The
[2024] FWCFB 246
•6 MAY 2024
| [2024] FWCFB 246 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry and Maritime Employees Union
v
Advanced Civil Group Pty Ltd and Australian Workers' Union, The
(C2024/321)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 6 MAY 2024 |
Appeal against decision [2024] FWC 9 of Deputy President Dobson at Brisbane on 2 January 2024 in matter number AG2023/3110
Background
The appellant, Construction, Forestry and Maritime Employees Union (CFMEU) applied pursuant to s 185 of the Fair Work Act 2009 (Act) for the approval of a single enterprise agreement titled the Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement (Agreement). Advanced Civil Group Pty Limited (Advanced Civil) is the employer covered by the Agreement, which is expressed to cover employees engaged on the Gold Coast Light Rail Stage 3 Project in classifications for which the Agreement provides.[1] The application was allocated to Deputy President Dobson.
The Australian Workers’ Union (AWU) was heard in relation to the application. The AWU opposed the approval of the Agreement on several bases, including that the CFMEU was not a bargaining representative for the Agreement (and, presumably, it therefore did not have standing to make the application) and that the Notice of Employee Representational Rights (NERR) did not support the Agreement because the scope of the Agreement travelled outside of the scope described in the NERR and the NERR was invalid.
The Agreement provides for various classifications of Construction Worker/Labourer Classifications described as Civil Worker (CW) classifications for employees performing work of the nature of Civil Construction.[2] The CW classifications are in levels from CW1 through CW8 and contain within each level a description of the broadbanded classifications or jobs which fall within each level. Throughout each of the CW3-CW8 are distributed classifications or jobs of operators or plant of varying complexity.[3] The AWU maintained that the CFMEU did not have the right under its rules to enrol as members excavator operators for which the Agreement provides.
The NERR issued by the employer relevantly provided that “Advanced Civil Group Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement) which is proposed to cover employees that do building and construction and similar work and who are based in Queensland”. The AWU maintained that the work on the Gold Coast Light Rail Stage 3 Project covered by the Agreement was civil construction work, not limited to building and construction or similar work and so travelled beyond the scope of the NERR. In the result, Advanced Civil did not comply with s 173 of the Act.
Apart from the Agreement and the application for its approval, the material before the Deputy President comprised a declaration of Kane Lowth, the CFMEU’s Divisional Branch Assistant Secretary,[4] a witness statement of Nathan Stewart, the Managing Director of Advanced Civil,[5] and his employer’s declaration in support of an application for approval of a single-enterprise agreement.[6] From this material, it appears, relevantly, that the Agreement is a project agreement, which covers certain of Advanced Civil’s employees on the Gold Coast Light Rail Stage 3 Project.[7] The principal contractor on the project is John Holland Queensland Pty Ltd, which engaged Advanced Civil to perform earthmoving works using earthmoving machinery.[8] Advanced Civil employed three workers to carry out work on the project, who were each employed and work as excavator operators.[9] The employees perform earthmoving works using one of four excavators deployed on the project.[10] Mr Stewart anticipated Advanced Civil may need to supply additional employees to work on the project in the future depending on the principal contractor’s requirements, which were unknown.[11] Mr Stewart did not anticipate that Advanced Civil will employ any worker on the project in any role other than an excavator operator.[12] The AWU did not file or lead evidence, nor did it cross-examine or otherwise challenge the evidence of Mr Stewart or Mr Lowth.[13]
The Deputy President dismissed the application by a decision issued on 2 January 2024 (Decision) and the CFMEU now applies pursuant to s 604 of the Act for permission to appeal and, if granted, appeals that decision.
Consideration
Appeal grounds
By its notice of appeal lodged on 18 January 2024, the CFMEU contends the Deputy President erroneously dismissed the approval application on six grounds.
First, in finding that the excavator operators employed by Advanced Civil were not eligible to be members of the CFMEU. Second, in determining that because Advanced Civil was engaged in civil construction, this excluded coverage of the relevant employees under the CFMEU’s rules when the relevant rule is a craft or occupation rule. Third, by misapplying Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[14] and treating the industry in which an employer operated as equivalent to the employer’s organisation of work. Fourth, by not concluding that, on the uncontested evidence, the excavator operators, whose sole work was the operation of excavators, were thereby eligible to be members of the CFMEU. Fifth, in so far as the Deputy President made a finding about the validity of the NERR in paragraph [24] of the Decision, there was no defect in the NERR, or if there was it was trivial or immaterial. Sixth, by providing insufficient reasons for the conclusion about the NERR if it was intended to be operative rather than an observation.
Decision below
The Deputy President set out the background to the application and a summary of the various contentions advanced by the AWU and the CFMEU at [1]-[17] of the Decision. At [18], the Deputy President finds the AWU has a right to be heard. At [19], the Deputy President concludes that “the CFMEU has a purported member” and that the “purported member is engaged as an Excavator Operator”.
At [20]-[23] of the Decision, the Deputy President considers whether an excavator operator employed by Advanced Civil and covered by the Agreement is eligible to be a member of the CFMEU as follows:
“[20] Whilst I note the CFMEUs submissions that suggest the Commissioner in John Holland was “content to treat Excavator Operators as falling within the CFMEU rules and the AWU did not argue otherwise”, I disagree with this proposition. In John Holland the Commissioner expressed the view that whilst the AWU did not concede Excavator Operators did fall within the CFMEU FEDFA rule, he noted that in another of their submissions they did not describe them as being in contest. He further noted that excavator drivers were specifically identified as occupations falling within the FEDFA rule and that he was prepared to count them into his calculations for the purposes of checking whether in doing so, the CFMEU would reach a majority position in respect of the Greenfields Agreement that was before him for approval. He later found that even where he did include them, they still did not reach the majority required and so dismissed the application. Further, in that decision however, the Commissioner noted that he was cognisant of a recent Full Court decision at that time that endorsed an approach in interpreting the application of the FEDFA rule. That is that roles needed to be construed as a descriptor occupationally and also in terms of the purpose of employment and the organisation of the work of the employer and noted that this was the basis that the AWU did not concede excavator roles, “even though they are specifically mentioned in the rule”. Relevantly, the Full Court decision to which he referred, noted that an employee will not be “a ‘forklift driver’ within the meaning of rule 2(E)(a) ‘merely because he drives a forklift in order to do what he is employed to do.”
[21] Therefore, I am required to turn my mind to the occupational role of the excavator operator as well as the purpose of the employment of the excavator operator in this case specifically working on the Gold Coast Light Rail Stage 3 Project (Project) and the organisation of the work of the employer (Advanced Civil Group Pty Ltd).
[22] In respect of the purpose of the employment, I note the submissions of the AWU which I will set out here for completeness:
“8. The GoldLinQ Pty Ltd (GoldLinQ) website20 describes the “Gold Coast Light Rail Stage 3: Broadbeach to Burleigh Heads” in the following way:
“Gold Coast Light Rail (GCLR) has transformed public transport on the Gold Coast, helping create an integrated network that connects more people to more places in one of Australia’s most dynamic and fastest growing cities.
The Queensland Government, in partnership with the Australian Government and the City of Gold Coast is delivering Gold Coast Light Rail Stage 3 (GCLR3), extending the light rail network by 6.7 kilometres from Broadbeach to Burleigh Heads.
The Gold Coast light rail system will be delivered in stages to respond to the growth of the Gold Coast. Stage 3 will expand the tram network to 27 kilometres from Helensvale to Burleigh Heads.”
9. The website also says:
“GCLR3 is split into nine construction zones to assist with planning and delivery of works. Within each of the nine zones, the five phases of light rail construction will occur.
…
Five Phases of Light Rail Construction
Construction will take place across five distinct phases. Each phase brings a unique set of changes to surrounding communities, businesses, road users, pedestrians, bicycle riders and visitors.
Areas along the light rail corridor may be in different phases of construction at any one time.
The project team will keep the community informed of upcoming construction activities and potential impacts”
10. Clause 4 of the Building and Construction General On-site Award 2020 (BCGO Award) “Coverage” says the following at 4.1 and 4.2:
“4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule A—Classification Definitions to the exclusion of any other modern award.
4.2 For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken onsite.”
11. Relevantly, clause 4.3(a) of the BCGO Award defines “general building and construction” as set out below:
“4.3 For the purposes of clause 4.2:
(a) general building and construction means:
(i) the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
(ii) site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.3(a)(i); and
(iii) the installation in any building, structure or works of fittings and services;”12. Clause 4.3 (b) of the BCGO Award defines civil construction as follows:
“(b) civil construction means:
(i) the construction, repair, maintenance or demolition of: · civil and/or mechanical engineering projects;
…
(x) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;” (emphasis added)
13. By reason of clause 4.3(b) of the BCGO Award and based on the description of the work being performed on the GCLRS3 Project, the Proposed Agreement covers employees performing civil construction work.
14. This is further supported by “Appendix B: Classification Structure and Level Descriptions” of the Proposed Agreement -– which puts beyond doubt that the classifications apply to “employees performing work of the nature of Civil Construction”.
15. Relevantly, Appendix B says the following:
“Appendix B: Classification Structure and Level Descriptions
Construction Worker/Labourer Classifications
The Civil Worker (CW) classifications will apply to Employee(s) performing work of the nature of Civil Construction who are engaged in the classifications set out below and are employed to perform the works set out in this Agreement.”16. Finally, in Re John Holland Queensland Pty Ltd, in dismissing an application for approval of a Greenfields agreement for work being performed on the GCLRS3 Project, the Commission observed that:
“317. …the project is itself clearly a civil construction and light rail project on the Applicant’s evidence.”
[23] In consideration of these factors, I am satisfied that the purpose of the work of the relevant employee/purported member, is to perform civil construction work specifically to construct a light railway. That is sufficient to satisfy me that the Applicant is not eligible to represent the industrial interests of the employee/purported member covered by the Agreement and I must dismiss this Application. To be clear, in consideration of the organisation of the work of the Employer (Advanced Civil Group Pty Ltd), I note that the Form F17 Declaration completed by the Employer, lists its primary activity as “Earthmoving” and I note that the name of the Employer incorporates the word “Civil”. In consideration of these factors and in the absence of any evidence being put before the Commission in the alternative, I am satisfied that the organisation of the work of the Employer is civil work. The primary purpose of employment of the purported member is not that of an excavator driver taking into account the nature of the work performed, the context in which it is done, the industry in which it is done and the operations of the Employer.” [Footnotes omitted]
At [24] of the Decision, the Deputy President notes that:
“[24] Given my conclusions above it is strictly unnecessary to deal with the remaining objections however for completeness I would not have found the NERR contained a minor procedural error capable of approval by exercising my discretion under s.188(5) of the Act given the NERR referred to the whole of Queensland given that the Agreement was specifically limited to application on the Project.” [Footnote omitted]
Permission to appeal
It is uncontroversial that an appeal under s 604 of the Act is by way of rehearing and that the powers under s 607(3) are accordingly exercisable only once error is shown.[15] Grounds 1 to 4 challenge the Deputy President’s conclusions that excavator operators employed by Advanced Civil and covered by the Agreement were not eligible to be members of the CFMEU. To this, there is only one legally correct answer, and that decision does not involve the exercise of any evaluative judgment or discretion. We will later deal with whether the Deputy President decided the NERR validity question. For the reasons which will shortly become clear, we consider the CFMEU advanced an arguable case of appealable error. Additionally, as the appeal raises for consideration the proper administration of the enterprise agreement approval provisions of the Act, we consider that it is in the public interest for permission to appeal to be granted and we do so.
Whether excavator operators employed by Advanced Civil and covered by the Agreement are eligible for membership of the CFMEU
The CFMEU eligibility rule at issue (rule 2(E)(a)) relevantly provides:
“(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.
Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership.
. . .” [Our underlining]
There was no dispute below nor before us that there was any distinction between an excavator operator and an excavator driver. Whether excavator operators employed by Advanced Civil and covered by the Agreement are eligible for membership of the CFMEU is to be resolved in part by properly construing rule 2(E)(a).
The approach to the construction of a union’s eligibility rules is not seriously in contest. Interpreting the eligibility rules of a union and determining their application in a particular factual context is “a legal question to be solved by legal considerations”.[16] The essential task is to construe the words of the eligibility rules objectively and give the words used their ordinary meaning.[17] It is legitimate to have regard to the industry rule for the purpose of resolving doubt as to the proper construction of the eligibility rule of a union,[18] understanding that the scope of the eligibility rule is not restricted by the scope of the industry rule.[19] The eligibility rules of a union are generally construed in a liberal or purposive manner,[20] but the approach of giving a broad or generous construction to a legal document has limits and the meaning of the words used remains a legal question and the ordinary meaning of the words used will generally be applied.[21] Eligibility rules will not be interpreted in a manner that would give the rule a wide and indefinite scope of operation[22] or to promote exorbitant claims to coverage.[23] Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation – that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work.[24]
It is by now clear that rule 2E(a) is an occupational rule[25], one that is focused on the work activities or industrial occupations of employees not the industry or enterprise of the employer. The rule reflects the craft or occupational nature of the Federated Engine Drivers and Firemen’s Association (FEDFA),[26] the organisation from which the rule originated when the FEDFA amalgamated with the then Construction, Forestry and Mining Employees Union and the Operative Plasterers and Plaster Workers Federation of Australia on 23 September 1992.[27] Rule 2E(a) is not to be read down by reference to the CFMEU’s industry rule, but the industry rule may be considered in resolving any ambiguity in the relevant part of the occupational rule.[28] However, the rule must to be considered as a whole so that its parts may shed light on each other.[29]
In ascertaining whether an excavator operator employed by Advanced Civil and covered by the Agreement falls within one of the occupations listed in rule 2E(a), the primary purpose test of employment is appropriate.[30] The employment identified in the rule by reference to the occupation must be construed as a descriptor of an occupation.[31] Therefore, it is necessary to establish the purpose of the position in the context of Advanced Civil’s business.[32] In DuluxGroup, a Full Court considered whether an employee of Dulux who drove a forklift in one of Dulux’s warehouses was a “forklift driver” caught by rule 2E(a). The Court held that although the employee spent the vast bulk of his working time in control of forklifts (including spending almost a third of his time performing “picking” work using an LLOP, which requires no licence and no special skill), his purpose (and his role within Dulux) was to work as a Warehouse Operator, including “picking”, using the RF Gun, and using the LLOP and manual handling techniques.[33] The Court said that the purpose of the employee’s role was the performance of all tasks in connection with the receiving, storing, picking and despatching of goods in the Dulux business (and, if required, to work flexibly in the paint manufacturing facility).[34] And so, driving or other use of forklifts undertaken by the employee was best seen as a function directed to the end of fulfilling the purpose of the employee’s job, which was to carry out his assigned tasks necessary for the operation of the warehouse.[35] Accordingly, the employee was not eligible for membership of the union.
But here, the purpose of the employment of the three employees could not be said to be anything other than to operate excavators. As we earlier noted, the evidence before the Deputy President was that the principal contractor on the project engaged Advanced Civil to perform earthmoving works using earthmoving machinery.[36] Advanced Civil employed three workers to carry out work on the project, each was employed as an excavator operator and worked as such.[37] The employees performed earthmoving works using one of four excavators deployed on the project.[38] There was no suggestion that the three employees performed any other work on the project than earthmoving work by operating the available excavators. The Managing Director of Advanced Civil gave evidence that each employee was employed as an excavator operator and that their title accurately describes the purpose and duties of their role.[39] Mr Stewart was not challenged about this, nor was any evidence led to contradict his evidence. That Advanced Civil performed earthmoving works on a civil construction project and the excavator operators were employed to work on a civil construction project is beside the point. Nor is any suggestion that because the employer has “civil” in its name this shines some light on the purpose of the employment. It does not. The evidence about the purpose of the employment of the three employees was clear, unequivocal and not challenged. The principal purpose of the role into which each of the three employees was employed, in the context of Advanced Civil’s business, was that of excavator operators using the available excavators to carry out earthmoving works at the project which Advanced Civil had been contracted to undertake. That occupation is caught by the occupation of “excavator drivers” in rule 2(E)(a).
The AWU’s contention that the evidence supports the Deputy President’s finding of fact that no employee was principally employed as an “excavator driver” within the meaning of rule 2(E)(a) and that she was correct to make this finding in the absence of any probative contrary evidence regarding the work to be performed by employees covered by the Agreement is rejected for the reasons we give above.
It follows that appeal grounds 1 to 4 succeed. The Commissioner erred in concluding that the excavator operators employed by Advanced Civil and covered by the Agreement are not eligible for membership of the CFMEU.
That part of the Decision will be quashed.
On a rehearing of that issue, the Deputy President’s conclusion that the CFMEU has as a member at least one of the operators (Decision at [19]) is not challenged and we adopt it. And for the reasons earlier stated, such employee is eligible for membership of the CFMEU. Consequently, the CFMEU was a bargaining representative for the Agreement and has standing. Indeed, as a bargaining representative for the Agreement it was required to apply for the Agreement’s approval.[40]
NERR issue
As we earlier observed, the Deputy President notes at [24] of the Decision that she “would not have found the NERR contained a minor procedural error capable of approval by exercising [her] discretion under s.188(5) of the Act given that the NERR referred to the whole of Queensland whilst the Agreement was specifically limited to application on the Project”.
Although not altogether clear whether the Deputy President intended to decide the issue, we will proceed on the basis that she did so.
Ground 6
It is convenient here, to briefly deal with appeal ground 6 – adequacy of the reasons for decision on the NERR issue. We agree with the AWU that the reasons given for the decision about the NERR are adequate.
It is uncontroversial that a decision-maker is not required to mention every fact or argument relied on by the losing party or expose every step of his or her chain of reasoning, nor is it necessary for reasons to be elaborate or lengthy. Whether reasons are adequate depends upon the circumstances, including the nature of the statutory function being exercised, the decision and the submissions and material in the case. But the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision.[41]
Here, although the ‘reasons’ given by the Deputy President - that “the NERR referred to the whole of Queensland whilst the Agreement was specifically limited to application on the Project” – are neither elaborate nor lengthy, the reasons given are adequate in that they disclose the basis for her conclusion. The Deputy President regarded the NERR to be broader in scope than the Agreement made. Consequently, the Deputy President concluded that the NERR was deficient, and the deficiency could not be overlooked as a minor procedural error in considering whether the Agreement was genuinely agreed to by the relevant employees for the purposes of s 188(5) of the Act. Though the reasons are delivered shorthand, so much is clear. The brief reasons given also disclose error with which we deal under the “Ground 5” subheading below.
Ground 6 is dismissed.
Ground 5
By ground 5, the CFMEU contends the Deputy President erred as to the NERR issue because there was no defect in the NERR.
Before the Deputy President, the AWU contended[42] that the Agreement could not be approved because the scope of the proposed agreement described in the NERR differed from the scope of the Agreement as made. It maintained that any difference between the scope of the proposed agreement described in the NERR, and the scope of the Agreement renders the NERR inaccurate. The NERR was said to be inaccurate because it indicated the work being performed was “building and construction and similar work” rather than “civil construction work” as described in the Agreement. And because the NERR indicated that the proposed agreement will apply to work performed throughout Queensland and was not limited to work performed on the Gold Coast Light Rail Stage 3 Project, the NERR was invalid. The AWU also contended that this defect could not be cured or overlooked under s 188(5) of the Act.
The Deputy President seems to have agreed with the AWU that the NERR was invalid because the NERR indicated that the proposed agreement will apply to work performed throughout Queensland and was not limited to work performed on the Gold Coast Light Rail Stage 3 Project, which is the scope of the Agreement. She does not engage with the other arguments raised by the AWU, nor will we.
We do not agree that the scope of the proposed agreement described in the NERR rendered the NERR invalid. To the extent that the Deputy President’s decided to the contrary, she erred. Our reasons for our conclusion may be briefly stated. It is uncontroversial that the scope of a proposed enterprise agreement is a legitimate matter for bargaining. Thus, the scope set out in the NERR of the proposed enterprise agreement does not determine or affect the scope of an enterprise agreement thereafter made. Although casting the scope too narrowly in a NERR might lead to other potential problems such as a failure to provide the NERR to relevant employees, , the same cannot be said in reverse. An employer, who issues a NERR containing a broad scope for the proposed agreement to employees, may rely on that NERR to make an agreement with a narrower scope with some employees provided all of those employees fall within the narrower scope.
Here, Advanced Civil issued a NERR with a broad scope but made the Agreement with a narrower scope. The narrower scope fits wholly within the broader scope. The Gold Coast Light Rail Stage 3 Project is in Queensland. And we agree with the CFMEU that while the Agreement is concerned with civil construction work on the project, civil construction is a form of construction and so comfortably falls within the description of “building and construction and similar work” found in the NERR.
Ground 5 therefore succeeds.
Other matters
In both its written and oral submissions, the AWU raised additional concerns about inconsistencies in the various materials filed in support of the approval application before the Deputy President.[43]
Most of these matters were not ventilated below and certainly they were not determined by the Deputy President. Some of the matters raised, if they be an impediment to meeting the agreement approval requirements, might be addressed by undertakings or could be clarified by further evidence. In making this observation we should not be understood as having determined that the Agreement meets the statutory approval requirements. We also note that Advanced Civil did not file any submissions on appeal, nor did it attend the appeal hearing. For these reasons, we consider the better course is to uphold the appeal on grounds 1-5, quash the Decision and remit the matter to the Deputy President for redetermination of the approval application.
Order
We order:
1. Permission to appeal is granted.
2. Grounds 1 to 5 of the notice of appeal are upheld.
3. Ground 6 of the notice of appeal is dismissed.
4. The decision in Construction, Forestry and Maritime Employees Union [2024] FWC 9 is quashed.
5. The application in AG2023/3110 is remitted to Deputy President Dobson for redetermination.
DEPUTY PRESIDENT
Appearances:
W Friend KC and O Fagir of counsel for the appellant
J Murdoch KC and T Spence of counsel for The Australian Workers’ Union
No appearances for Advanced Civil Group Pty Ltd
Hearing details:
2024
Melbourne
16 April
Written submissions:
Appellant, 29 February 2024
The Australian Workers’ Union, 4 April 2024
Advanced Civil Group Pty Ltd, no written submissions
[1] Appeal Book (AB)152, clause 1.1.2
[2] AB186-AB187
[3] Ibid
[4] AB56
[5] AB54-AB55
[6] AB59-AB76
[7] AB152, clause 1.1.2
[8] AB54 at [3]
[9] AB54 at [4]
[10] AB54 at [5]
[11] AB54 at [6]
[12] Ibid
[13] AB25-AB44 (transcript of hearing for AG2023/3110, 27 November 2023)
[14] [2022] FCAFC 101, (2022) 293 FCR 1
[15] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [2000] HCA 47 at [17]
[16] R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Re Australian Workers' Union; Ex parte Construction Forestry Mining and Energy Union (2002) 120 FCR 527, (2002) 120 FCR 527 at [44]
[17] R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402, [1982] HCA 68 at 408; Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [34]
[18] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [50]-[52]; Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [34]
[19] R v Gough; Ex parte Municipal Officers’ Association (1975) 133 CLR 59, [1975] HCA 30 at 69; Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [34]
[20] R v Cohen ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, [1979] HCA 46 at 587; Re Electrical Trades Union of Australia v Waterside Workers Federation of Australia (1982) 59 FLR 78, (1982) 1 IR 349 at 87; Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [34]
[21] R v Aird; ex parte Australian Workers’ Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at 361
[22] R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59, [1975] HCA 30 at 68-69; Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [52]-[53].
[23] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [49]
[24] Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at 363-364; Australian Manufacturing Workers’ Union v ResMed Limited[2014] FWCFB 3501 at [34]
[25] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [28]
[26] Construction, Forestry and Maritime Employees Unionv Norman McMahon Patches Pty Ltd[2023] FWCFB 55 at [19]; Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [41]; Re Coldham; Ex parte the Australian Workers’ Union [1984] HCA 62, (1984) 56 ALR 149 at 150.
[27] Application by Grahame Patrick Kelly – withdrawal from amalgamated organisation – Mining and Energy Division – Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCFB 6002 at [17]-[18]
[28] R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59, [1975] HCA 30
[29] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [28]
[30] Ibid at [44]
[31] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101, (2022) 293 FCR 1 at [42]
[32] Ibid at [43]
[33] Ibid at [44]
[34] Ibid
[35] Ibid
[36] AB54 at [3]
[37] Ibid at [4]
[38] Ibid at [5]
[39] Ibid at [4]
[40] Fair Work Act 2009 (Cth), s 185(1)
[41] Barach v University of New South Wales[2010] FWAFB 3307 at [16]; Tenterfield Care Centre Limited v Mrs Madeline Wait[2018] FWCFB 3844 at [26]-[27]
[42] AB115–AB117 at [74]–[83]
[43] See, for example, Outline of Submissions for the Australian Workers’ Union (4 April 2024) at [31]-[40]
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