Construction, Forestry and Maritime Employees Union v Goulburn Valley Laundry Service Pty Ltd

[2024] FWC 2460

[2024] FWC 2460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

Construction, Forestry and Maritime Employees Union
v

Goulburn Valley Laundry Service Pty Ltd

(B2024/179)

COMMISSIONER YILMAZ MELBOURNE, 10 SEPTEMBER 2024

Application for a majority support determination

1. The Manufacturing Division of the Construction, Forestry and Maritime Employees Union (CFMEU or the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. The application is made in respect to employees of Goulburn Valley Laundry Service Pty Ltd T/A Gouge Linen and Garment Services (GVLS or the Respondent) at 17 Huggard Drive, Mooroopna Victoria. GVLS employees are otherwise covered by the Dry Cleaning and Laundry Industry Award 2020[1] and/ or the Road Transport and Distribution Award 2020[2]. The CFMEU contends that the group of employees are operationally and geographically distinct.

1. GVLS is a commercial laundry and dry-cleaning business. It collects, cleans and delivers linen predominantly to health, aged care and accommodation providers, tourism services and services smaller garment processing contracts.[3] While the commercial laundry operates from 17 Huggard Drive, Mooroopna (the factory), GVLS submits that the logistics part of the business (employing drivers) is based out of a depot at 11 Huggard Drive, Mooroopna. In addition, the Respondent has warehouses/distribution centres located in Bendigo, Ballarat, Geelong and Metropolitan Melbourne. GVLS objects to the application and submits the drivers are separate and distinct.

1. The Respondent was granted leave to be represented by Tom Earls of Fair Work Lawyers.

1. The witness for the Applicant was Donna Jordan, CFMEU Organiser, and for the Respondent was Martina Johnson, General Manager – HR & Compliance.

1. This matter was first listed for conference on 20 March 2024, the Respondent objected to the application; therefore, directions were issued. Amended directions were subsequently issued on 18 April 2024. On 7 May 2024, the Respondent sought a further listing of the matter, and on 8 May 2024 further amended directions were issued.

The submissions and evidence

Applicant submissions

1. The CFMEU is a default bargaining representative in respect to its members who would be covered by an agreement.  It is not contested that its rules entitle them to represent the industrial interests of those employees it seeks to cover by an enterprise agreement.[4]

1. The CFMEU in considering s.237(2)(a) of the Act submits that the group of employees proposed to be covered by the agreement are those employees of the Respondent at 17 Huggard Drive Mooroopna who would otherwise be covered by the Dry Cleaning and Laundry Industry Award 2020 and/ or the Road Transport and Distribution Award 2020. Further, it contends that the Commission has within s.237(3) discretion to determine the time at which the group of employees who will be covered by an enterprise agreement are counted, and the Commission may determine the methodology by which the existence of majority support is to be determined. In this regard the CFMEU presented a petition of workers on which it relies for the majority support determination, titled ‘Majority Support Petition’. 

1. It is submitted that the petition, which is commonly an acceptable method of establishing majority support, contains 173 signatures and that the petition constitutes a majority of about 280 employees. 

1. The CFMEU further submits that pursuant to s.237(b) of the Act the employer (Respondent) has not agreed to bargain. It tendered in evidence its correspondence with the employer together with the witness statement of its Organiser. Its submissions further deal with the balance of requirements of s.237 necessary for the Commission to be satisfied to make the majority support determination order.  

1. Witness evidence from Ms Jordan, Organiser was not contested; that the Respondent’s employees are covered by the Dry Cleaning and Laundry Industry Award 2020 and its drivers by the Road Transport and Distribution Award 2020. Further it is not contested that the Respondent has never had an enterprise agreement to cover the employees at 17 Huggard Drive Mooroopna.[5]  

1. Ms Jordan gave evidence that the driver’s employment contract specifies the employer at 17 Huggard Drive Mooroopna and that they may be required to perform work in the laundry. Further witness evidence concerned the process taken to obtain signatures on the petition after the Respondent advised that it did not intend to bargain.[6]

1. In support of their submissions, the Applicant tendered in evidence ASIC reports[7] which show that the principal place of business of the Respondent is 17 Huggard Drive Mooroopna and this evidence directly relates to the place of employment of both drivers and those based out of the facility performing work covered by the Dry Cleaning and Laundry Industry Award 2020.[8] Additional evidence in support included a redacted Driver Employment Agreement alongside Ms Jordan’s witness evidence.  

1. In relation to the Applicant’s petition, it submits that it relies on the unredacted petition provided to the Commission as evidence of majority support and the wording both at the top and bottom of each page which identifies the purpose of the petition and that each employee signed of their own free will. In summary it submits that drivers ought not be excluded from the petition and the objections regarding alleged maintenance employees (which it rejects) and the unidentified employees will be for the Commission to review against the Respondent’s list of employees to form the decision whether there is majority support. 

1. The Applicant contends that the time to be fixed for determining the cohort of employees is 22 May 2024; the date the list of employees was to be provided to the Commission. It further submits that any casuals on the employer list of employees should be omitted. It contends that the Respondent included casuals on the basis of its expectation that the casuals on the list are those that would have an expectation to work at some point during bargaining. This, it says, is inconsistent with decisions of the Commission when dealing with casuals employed for the purposes of a majority support determination.[9]

Respondent submissions

1. The Respondent does not contest that the CFMEU is able to represent at least one person within the scope of the proposed agreement and that the Respondent had not yet agreed to or initiated bargaining for an agreement.[10] However, it submits the Commission cannot be satisfied that a majority of employees petitioned by the CFMEU wish to bargain, that the group is fairly chosen, or that it is reasonable in the circumstances to make the determination.[11]

1. GVLS submits that at the 17 Huggard Drive factory, 321 employees perform work covered by the Dry Cleaning and Laundry Industry Award 2020 and who would be expected to be covered by an order to commence bargaining and there are no employees employed at the same facility employed under the Road Transport and Distribution Award 2020. It submits the drivers are employed in a geographically separate and distinct location. It further submits that it can identify 171 signatures on the redacted petition after the individuals identified as drivers and maintenance employees are excluded from the list.  

1. In addition, the Respondent contends that maintenance employees are covered by the Manufacturing and Associated Industries and Occupations Award 2020 and as there is substantial churn of employees in the laundry, the Applicant will be hard pressed to satisfy the Commission that a majority of employees wish to bargain.  

1. The Parties further addressed the Commission in respect to the “time” that the Commission makes the determination. The CFMEU conducted the petition over the period 23 November 2023 to 28 February 2024. At a hearing on 8 May 2024, the Parties agreed that the Commission ought to compare the CFMEU petition against the list of employees provided by the Respondent and should the comparison show there is no majority, the balance of the Respondent’s objections fall away.  The Respondent provided its list of employees at the factory and a separate list of employee drivers which it contends are employed at the separate Mooroopna location (the Depot). 

1. Evidence concerning whether the Commission can be satisfied that employees wanted to bargain, that the group was not fairly chosen and that it is not appropriate to make an order was tendered by the Respondent’s General Manager. This consisted of witness evidence of the General Manager together with two petitions provided to the Respondent by two separate employees[12].

1. The Respondent submits that it is obvious that the application will not cover all of the employees and therefore the Commission must consider whether the group is geographically, operationally or organisationally distinct.[13]  It submits that there are 321 employees at 17 Huggard Drive and drivers are employed at a separate location which is geographically separate.[14] 

1. In respect to the Applicant’s petition, the Respondent submits that it identifies 171 employee signatures, of which 126 are production employees, 12 drivers, 2 maintenance employees and 31 not identified by classification of work. It further submits that there has been a substantial churn of employees and therefore highly probable that the employees on the list no longer work at the facility. It submits that the list of employees on the petition ought be adjusted to remove those employees either classified as drivers, maintenance employees or those not covered by work in the dry cleaning and laundry service which fall within the scope of the Dry Cleaning and Laundry Industry Award 2020.[15] To assist the Commission, the Respondent states that it also provided a list of drivers employed in the Depot on an ex parte basis, which will show that even if their work is incidental to the facility and fairly chosen, that there is no majority.[16] 

1. Evidence concerning whether the Commission can be satisfied that employees wanted to bargain, that the group was not fairly chosen and that it is not appropriate to make an order was tendered by the Respondent’s General Manager. In this regard the Respondent submits the two staff petitions[17] are relevant.

1. The Respondent submits that the Commission cannot be satisfied that employees wish to bargain. The Respondent submits that the signatures in the Staff Petition (MJ-6) shows employees that signed the Applicant’s petition did not understand it and did not want to support the application.[18] The Respondent’s witness gave evidence of the background to the two staff petitions on which it relies and other incidences in the workplace which are relevant. It says it is relevant to the consideration of whether at any time the Applicant had majority support. 

1. In respect to the drivers, the Respondent submits that they are geographically and operationally distinct but also there are operational differences which the Commission ought to find it not appropriate to require bargaining for both groups. To include drivers in a determination would have the effect of one group (the larger group and lower paid) dictating its will on another group which is smaller and better paid to bargain collectively.[19] 

The legislative framework

1. To make a Majority Support Determination Order, the Commission must be satisfied that s.236 and s.237 of the Act are met. Relevantly s.236 provides:

“Majority support determinations

(1)  A bargaining representative of an employee who will be covered by a proposed single - enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(1A)  Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.

Note:  While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection  72(7)).

(1B)  Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:

(a)  a single interest employer agreement or a supported bargaining agreement applies to the employee; and

(b)  the agreement has not passed its nominal expiry date.

(2)  The application must specify:

(a)  the employer, or employers, that will be covered by the agreement; and
(b)  the employees who will be covered by the agreement.”

1. Section 237 of the Act deals with what the Commission must be satisfied about before a determination is made. Importantly, s.237 (1) states the Commission must make a majority support determination if certain matters are satisfied.[20] Relevantly, s.237 provides:

“When the FWC must make a majority support determination

Majority support determination

(1)  The FWC must make a majority support determination in relation to a proposed single - enterprise agreement if:

(a)  an application for the determination has been made; and

(b)  the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2)  The FWC must be satisfied that:

(a)  a majority of the employees:

(i)  who are employed by the employer or employers at a time determined by the FWC; and

(ii)  who will be covered by the agreement;

want to bargain; and

(b)  the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c)  the group of employees who will be covered by the agreement was fairly chosen; and

(d)  it is reasonable in all the circumstances to make the determination.

(3)  For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A)  If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4)  The determination comes into operation on the day on which it is made.”

Consideration

1. It is not contested that the Applicant is a bargaining representative, that it made an application, and the Respondent has not yet agreed to bargain, thereby satisfying s.237(1)(a) and s.237(2)(b) of the Act.

1. The Respondent submits that the Commission cannot be satisfied that a majority of employees at the time determined by the Commission who will be covered by the agreement want to bargain,[21] that the group was fairly chosen,[22] and that it is reasonable in all the circumstances to make the determination.[23]   

1. It is helpful to separate out and consider these objections.

Time to bargain

1. Firstly, it is helpful to consider the submissions made by the parties regarding the time determined by the Commission. The authorities relied by the parties are relevant. The Full Bench in Kantfield[24] stated:

“[35] The power to apply a time based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a)(i) more broadly. That is, the power to apply a point-in-time limitation in section237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to fix historical or future points in time for other aspects of section 237.

[36] In Peko-Wallsend, Mason J stated:

“….there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.”

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision.”

1. Relevantly in Lovisa[25] the Deputy President considered whether a majority wished to bargain in a contested matter concerning the count of casual employees ‘at a time determined’ by the Commission. The question of who an employee is, was considered in reference to casuals in the context of the Kantfield authority. In Lovisa there was a concern that in a business which predominantly engages casual employees the evidence of seasonally hired casuals potentially expanded the pool of employees in the calculation of whether there is a majority. Lovisa confirmed that the Commission’s power to determine a time is “confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of majority is to be determined”……..but….”it does not have discretion to determine the date on which a majority wishes to bargain. Rather, it must assess this question as at the date of the decision, using the most recently available information.”[26]

1. The evidence before the Commission was that casuals were employed only on the days that they actually worked. Therefore, based on the evidence of a highly casualised workforce a single day to be determined as the time was not appropriate, therefore a 4-week period was determined on the most recent list of employees provided by the employer.  

1. In this matter both parties identified the engagement of casual employees, but they were not the dominant form of engagement. Ms Johnson gave evidence that the business is seasonal and engages casuals accordingly,[27] mainly in level 1 and occasionally at level 2 or fixed term[28] and this affects its need for staff on the factory floor. No evidence was led as to whether the Respondent’s list of employees identified these fixed term or seasonal casuals nor whether there were longer term casual employees or how they ought to be considered for the purpose of this matter.

1. The Respondent was directed to file and serve its list of employees on 22 May 2024. The Applicant submits that 22 May 2024 is the time that ought to be fixed by the Commission in determining the cohort under s.237(2)(a)(i). The Respondent agreed, however, in closing submissions the Parties addressed the issue whether a period of time ought to be considered. The Respondent submits that Commission decisions favour a four week period and therefore the four weeks up to 22 May 2024 may be appropriate. Whilst the Applicant submits if a period is to be considered, then the two weeks since its petition is appropriate.     

1. Further on this issue, Ms Johnson gave evidence that its list of casual employees are those that it would expect to work at some point during bargaining if a majority support determination was granted.  She further states that she has removed any casual that does not meet this criterion.[29]   

1. This approach by the Respondent is inconsistent with Lovisa and the principles concerning the employment of casuals in the context of bargaining and the vote. The correct reasoning is to include casuals that were employed and not merely on the books expecting to be employed at a time the employer considers bargaining may take place. However, the parties were at odd as to what period the Commission should consider and there is a lack of evidence regarding the seasonal nature of engagement of casuals and whether longer term and regular casuals are employed. Having had the benefit of reviewing the three petitions it may be reasonably concluded that some casual engagement may not be engaged solely for seasonal work. 

1. Due to the absence of evidence to draw logical conclusions regarding the engagement of casuals in terms of a time period without further compromising the Applicant’s petition and the employer list, it is appropriate to simply determine whether there is a majority by comparing those two lists, that is utilising the most current material before the Commission.

Want to bargain

1. The second issue identified by the Respondent is its contention that not all staff that signed the Applicant’s petition want to bargain. In this respect it tendered 2 staff petitions[30] of which it submits Staff Petition 2 contains 32 signatures of employees[31] that indicate they signed the Applicant’s petition but wish to be removed. It submits that these 32 signatures appear on the Applicant’s petition and they ought be removed. The Respondent’s Staff petition 1[32] allegedly concerns an event in the workplace involving the Organiser where signatures were subsequently obtained allegedly expressing concerns about the presence of the CFMEU on site. The Respondent submits that while Staff Petition 1 is not directly relevant to the determination of this matter, it undermines the Applicant’s submissions that it has majority support among employees.[33] 

1. The Applicant contests this evidence and submits the Commission should not accept this evidence or give it no or minimal weight as there is no probative value. In relation to Staff petition 1, the Applicant submits it is threadbare and irrelevant to the proceedings, further it is confusingly titled CFMEU petition therefore likely to mislead employees as to what they were signing.[34] 

1. Staff petition 1 (MJ-4) is irrelevant and has no weight in relation to the Respondent’s submissions that the Application lacks majority support. The petition is titled CFMEU petition which misleads who is behind the petition. The preamble below produces a range of interpretations regarding its purpose and at best can be described as a document wishing the union to have a designated table or a board room or meeting room. This petition is of little value to these proceedings.

“CFMEU Petition.

There has been talk between staff on the floor about the CFMEU Representatives in the tearoom and smoko area causing discomfort and anxiety for those on smokos and lunches. Many of us are avoiding the tearoom in hope of avoiding conversations with them, this is due to the behaviour so far shown by them that has been described by staff as rude, aggressive, pushy, confusing, disrespectful, and threatening.

We are going around with a petition, that we are encouraging all to sign to request that our smoko area and break room be made a safe space with either a designated table for the Union or that they set up in the board room or meeting room to stay available for those interested.”

1. Staff Petition 2 (MJ-6) tendered by the Respondent is titled “Name Removal from Petition”, and then contains two dot points. This list contains 50 names. The first dot point clarifies that the purpose is to remove signatures from the CFMEU petition. However, the only petition titled CFMEU petition is Staff petition 1. From among the signatures, almost half did not sign the Majority Support Petition and a significant number did not sign the CFMEU / Staff Petition 2 (MJ-4).  Under the second dot point, this Staff petition has the subtitle “why?” and then a description. This is of little value to the Commission to understand why the individual signed the petition, nor was there any evidence as to how the signatures were obtained. The preamble states that employees did not understand what they were signing and the CFMEU representatives did not make it clear. A number of other statements are made and therefore it is difficult to discern which of the statements prompted a signature. There is also a statement that suggests that those that should sign this petition may do so because their signatures may “be used for anything”. The preamble is unclear which petition these statements relate to or whether some or all of the statements need to apply. During the hearing evidence was presented by Ms Johnson regarding her knowledge or lack of it in terms of how this petition was generated or how signatures were obtained. It was obvious from that evidence that she knew of the offer to develop a petition before it took place. Given the complexities arising from how this petition ought to be considered, I will not, as the Respondent submits, remove the names on this list from the Majority Support Petition. 

1. The Applicant’s petition clearly identified as “Majority Support Petition” was populated over the period 23 November 2023 to 22 February 2024 and provides the following wording at the top and bottom of each page respectively:

“We the undersigned employees of Goulburn Valley Laundry Service Pty Ltd (Gouge Linen and Garment Services, ABN 46 104 861 378), 17 Huggard Drive Mooroopna, Victoria 3629, want to bargain for a new enterprise agreement. If the employer refuses to bargain, we respectfully request that the Fair Work Commission make a Majority Support Determination requiring the employer to bargain with us.”

“The undersigned confirm that each of us have signed this petition of our own free will without anyone pressuring us in a way to sign this petition. This petition and names listed will not and cannot be provided to the employer – but may be provided confidentially to the Fair Work Commission if the Union seeks an order to bargain.”

1. I observe that this petition does not identify the CFMEU but rather allows for employees to sign because they want to bargain for a new enterprise agreement and if the employer refuses that the Commission make majority support determination. The purpose of the petition is not ambiguous nor offers multiple statements regarding its purpose. Both statements contained as above on each page of the petition leaves no question for the purpose of the signatures on each page unlike Staff Petition 1. On this basis I accept the Applicant’s petition to compare with the current list of employees.

Commission cannot be satisfied that the group was fairly chosen

1. Section 237(2)(c) requires the Commission to be satisfied that the group of employees was fairly chosen. The Applicant contends that the group of employees is geographically distinct in that the principal place of business is 17 Huggard Drive Mooroopna, and that the cohort is operationally distinct because the employees perform work under the two modern awards identified. It further submits that the cohort is organisationally distinct as they are identifiable as a distinct part of the Respondent’s broader operations located in Mooroopna.[35]  

1. The Respondent contends that the drivers are employed on superior conditions to the employees engaged in laundry and dry-cleaning services at the factory and further that the drivers are engaged at the depot (number 11) and not at 17 Huggard Drive.  

1. The Applicant tendered in evidence that the principal place of business is 17 Huggard Drive in ASIC records[36] and the driver contract[37] of employment which identifies the same address as the employer and principal place of work in Mooroopna. The contract of employment provides that the Company (who is a Party to the contract) shall employ the driver in the position or such other position as directed (clause 2.3), the principal place of work shall be the location in the schedule (Mooroopna) and the employee may be required to work at other locations as directed (see clause 2.6). While the drivers may commence and conclude their day’s work at the depot located a few doors down at 11 Huggard Drive, their employer’s principal place of business (which is noted in their contract of employment) is 17 Huggard Drive. In the absence of evidence to the contrary, the drivers together with the employees located at the factory (employed by the same employer at 17 Huggard Drive) are geographically distinct (i.e. employed in Mooroopna). This geographical location is distinguished from the evidence that the Respondent operates other warehouses/ depots in Melbourne, Geelong, Bendigo, Ballarat and Shepperton. 

1. I am satisfied that the drivers are employed from the same principal place of business, and they are also required to undertake work connected to the work performed at the factory. The duties described in the job description refer to trolleys being unloaded and pushed to the unloading area, obtaining despatch reports from despatch before leaving on a run, and checking the driver board before leaving on the run together with the requirement to perform alternative duties as required, all of which appears to be located at the factory. There was no persuasive evidence contesting the evidence from the Applicant that drivers are employed other than at 17 Huggard Drive and I am satisfied that the work of drivers ought not be excluded from the application.    

1. Furthermore, evidence that drivers are on superior employment conditions is not a reason to exclude them or find they are not fairly chosen. Enterprise agreements often include terms and conditions that vary between classifications of work and where the work of employees may be covered by more than one modern award. The Applicant disputes the exclusion of drivers from the determination. I find that the drivers and laundry workers in the factory as a group is fairly chosen. 

Commission cannot be satisfied that it is reasonable in all the circumstances to make the determination

1. The Respondent submits the Commission ought to consider the bargaining dynamics of drivers and the factory. In so doing it provides an analysis comparing employment agreements where rates of pay differ between agreements for drivers and where there is combined coverage. Additional submissions are made distinguishing the work of drivers to those employed in the factory.

1. The outcome of any bargaining that may be reflected in an enterprise agreement is for the parties to bargain and the detail contained in an enterprise agreement, provided the outcome meets the better off overall test is a matter for the parties. Such submissions comparing different groups of employees to infer that this analysis is a concern for employees, is not evidence that employees hold this view and necessitates consideration.  The purpose under s.237 of the Act is confined to the Commission being satisfied that the majority of employees agree to bargain.

A majority of employees

1. Having regard to my above findings, and a comparison of names on the Majority Support Petition against the Respondent’s list shows there is 42% support to bargain. Consistent with the evidence that casuals commence at level 1 and engaged for seasonal demands, if an adjustment is made by removing all casual level 1 employees including level 1 junior casuals from both the Majority Support Petition and the Respondent’s list, there is 46% support to bargain. Clearly if either method was adopted, the Applicant does not have majority support to bargain.  

Conclusion

1. Section 237(1) states that the Commission must make a majority support determination if the application is made, and it is satisfied of the matters in subsection (2). On the evidence before me I have considered the comparison of the signatures on the Applicants petition and the Respondent’s list of employees including drivers and, on that basis, I cannot issue a determination under s.237(1) of the Act as there is no majority support.

COMMISSIONER

Appearances:

V Wiles with D Malbasa and P Nicholls for the Construction, Forestry and Maritime Employees Union. 
T Earls of Fair Work Lawyers for the respondent.

Hearing details:

2024.
Melbourne:
May 30.

Final written submissions:

Applicant, 28 May 2024
Respondent, 7 June 2024

[1] [MA000096].

[2] [MA000038].

[3] Exhibit R1, Affidavit of Martina Johnson (including annexures MJ-1 – MJ-6), [4] - [7].

[4] The CFMEU submissions concerning its rights under s.176 of the Act- bargaining representatives and its eligibility under its rules were not contested by the Respondent; Applicant’s Outline of Submissions, [10]-[24].

[5] Exhibit A1, Witness statement of Donna Jordan (including annexures DJ-1 and DJ-2), [7] – [9].

[6] Exhibit A1, [10] – [19]; DJ-1.

[7] Exhibit A3 ASIC Report.

[8] Applicant’s Reply Submissions [20] - [33]; Annexure DJ-3 to Exhibit A2, Reply Witness Statement of Donna Jordan (including annexure DJ-3).

[9] Applicant’s Reply Submissions [57] – [61].

[10] Respondent’s Outline of Submissions, [4].

[11] Ibid, [5]-[6].

[12] Staff Petition 1 (MJ-4) and Staff Petition 2 (MJ-6).

[13] Respondent’s Outline of Submissions, [5].

[14] Ibid [8] – [11].

[15] Ibid [13] – [21].

[16] Ibid [22]-[23].

[17] MJ-4 and MJ-6.

[18] Respondent’s Outline of Submissions, [24] – [28]; Exhibit R1 with MJ-6.

[19] Respondent’s Outline of Submissions, [38] – [39].

[20] Contained within s.237(2).

[21] s.237(2)(a) and s.237(3).

[22] s.237(2)(c) and s.237(3A).

[23] s.237(2)(d).

[24] Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers’ Union[2016] FWCFB 8372, quoting Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 45 (Mason J).

[25] National Union of Workers v Lovisa Pty Limited[2019] FWC 2571.

[26] Ibid [31].

[27] Transcript of Proceedings, PN319.

[28] Transcript, PN386 – PN395.

[29] Exhibit R1, [19]-[20]; Transcript, PN464 – PN472.

[30] MJ-4 and MJ-6.

[31] MJ-6.

[32] MJ-4.

[33] Respondent’s Outline of Submissions, [27]-[28].

[34] Applicant’s Reply Submissions, [65] – [83].

[35] Applicant’s Outline of Submissions, [40] – [43]; Exhibit A1, [6]- [12].

[36] Exhibit A3.

[37] DJ-3, Parties includes the employer of 17 Huggard Drive Mooroopna.

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