Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch

[2021] FWC 1488

[2021] FWC 1488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.512—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union-Construction and General Division, New South Wales Divisional Branch
(RE2020/1197)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 18 MARCH 2021

Application by CFMMEU for issue of right of entry permit for Arron Platt – satisfied that fit and proper person – permit issued.

[1] On 22 December 2020 the Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch (CFMMEU) made an application to the Fair Work Commission (Commission) under s 512 of the Fair Work Act 2009 (Cth) (Act) for an entry permit for Mr Arron James Platt, who is employed by the CFMMEU in the position of State Organiser.

[2] Mr Platt has not previously held a right of entry permit under the Act or any other legislation.

[3] The Australian Building and Construction Commissioner (ABCC) intervened in these proceedings and made submissions against the CFMMEU’s application for a right of entry permit for Mr Platt.

[4] On 5 March 2021 I conducted a hearing, by video conference, to determine the application for a right of entry permit for Mr Platt. Oral evidence was adduced from Mr Platt, in addition to his declaration made in support of the application and his statutory declaration made on 12 February 2021. The CFMMEU also relies on the declaration made by Ms Rita Mallia, State President of the NSW Divisional Branch of the CFMMEU, in support of the application and a statutory declaration made by Ms Mallia on 12 February 2021. Ms Mallia was not required for cross examination. The CFMMEU further relies on a letter dated 18 December 2020 detailing the right of entry training provided to Mr Platt and a Nationally Coordinated Criminal History Check Certificate for Mr Platt. The ABCC tendered two letters addressed to Mr Platt in relation to his employment with the Titan Cranes group of companies: the first is dated 10 September 2018 and the second 18 February 2019.

Statutory Framework

[5] Part 3–4 of the Act provides a framework within which officials of organisations may gain access to premises of employers and occupiers to represent members of organisations in the workplace, to hold discussions with members and potential members, and to investigate suspected contraventions of the Act, fair work instruments and State or Territory occupational health and safety laws.

[6] The object of Part 3–4 of the Act is to establish a framework that balances the right of organisations to represent their members, hold discussions with potential members and investigate suspected contraventions of relevant laws and instruments, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. 1

[7] Part 3–4 of the Act confers upon a permit holder a statutory right to enter premises owned or controlled by the occupier or employer that diminishes the common law rights of the occupier or employer. 2 The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints.3 Accordingly, the right of entry scheme established by Part 3–4 of the Act should not be construed as giving any greater right than which is necessary to achieve the express or implied statutory purpose of the scheme.4

[8] Section 512 of the Act provides that the Commission may, on application by an organisation, issue an entry permit to an official of the organisation if it is satisfied that the official is a “fit and proper person” to hold the entry permit. The Commission’s discretion whether or not to issue an entry permit is not conferred in general, unqualified terms. The discretion must be exercised having regard to the “permit qualification matters” set out in s.513(1) of the Act and in a way that is not arbitrary, capricious or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context and purpose. 5

[9] Section 513 of the Act sets out the permit qualification matters as follows:

“513 Considering application

(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:

(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;

(b) whether the official has ever been convicted of an offence against an industrial law;

(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:

(i) entry onto premises; or

(ii) fraud or dishonesty; or

(iii) intentional use of violence against another person or intentional damage or destruction of property;

(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;

(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;

(f) whether a court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:

(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or

(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;

(g) any other matters that the FWC considers relevant.

(2) Despite paragraph 85ZZH(c) of the Crimes Act 1914, Division 3 of Part VIIC of that Act applies in relation to the disclosure of information to or by, or the taking into account of information by, the FWC for the purpose of making a decision under this Part.

Note: Division 3 of Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.”

[10] Section 515 of the Act allows the Commission to impose conditions on entry permits. It relevantly provides as follows:

“515 Conditions on entry permit

(1) The FWC may impose conditions on an entry permit when it is issued.

(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.

(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).”

[11] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 6 Vice President Hatcher set out the following principles relevant to the interpretation and application of sections 512 and 513(1) of the Act as follows:

“[32] The proper approach to the assessment of whether a person is a fit and proper person to hold an entry permit for the purpose of s.512 of the Act has been set out in a number of decisions including The Maritime Union of Australia [2014] FWCFB 1973, CEPU v Director of the Fair Work Building Industry Inspectorate [2014] FWCFB 4397, Director of the Fair Work Building Industry Inspectorate v CFMMEU [2014] FWCFB 5947, Construction, Forestry, Mining and Energy Union [2014] FWCFB 6497, Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland [2014] FWCFB 7154 and Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2014] FWFCB 7194. The relevant principles may be summarised as follows:

•  A “fit and proper” standard, generally speaking, involves assessing the relevant personal characteristics of the individual concerned in relation to the activities for which satisfaction of the standard is required.

•  The expression “fit and proper person” in s.512, read in its context, is to be applied by reference to the suitability of the relevant official to hold an entry permit.

•  The permit qualifications matters are not matters to be considered at large without reference to the question that needs to be answered in s.512. They are not matters to be considered to determine whether a person is a “fit and proper person” per se, but rather whether an official of an applicant organisation is a fit and proper person to hold the entry permit that has been applied for by the organisation.

•  The question of whether an official is a fit and proper person to hold an entry permit will therefore necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights.

•  The requirement to take the permit qualification matters into account means that the consideration of them must be treated as a central element in the deliberative process and that each matter must be given proper, genuine and realistic consideration and appropriate weight.

•  The permit qualification matters are all concerned with matters personal to the official for whom the issue of an entry permit is sought.

•  While each of the permit qualification matters are to be evaluated and given due weight, there is no statutory indication that any particular permit qualification matter should be given more weight than any other. In such circumstances it will generally be a matter for the first instance decision maker to determine the appropriate weight to be given to each of the matters which are required to be taken into account in exercising the power in s.513(1).

•  Relevance referred to in s.513(1)(g) is relevance to the question of whether the particular official concerned is a fit and proper person to hold an entry permit, so that for a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with the holding of an entry permit.”

[12] In Maritime Union of Australia v Fair Work Commission (MUA v FWC) 7, a Full Court of the Federal Court of Australia observed the following in relation to the phrase “a fit and proper person”:

“[17] The phrase a ‘fit and proper person’ is used in many different statutory contexts: e.g., Customs Act 1901 (Cth), ss 67H, 102CF; Migration Act 1958 (Cth), s 290; Marriage Act 1961 (Cth), ss 31(1), 33(1). Some statutes perhaps expand upon the generality of what would otherwise fall within the phrase ‘fit and proper person’ by expressly including a reference to whether an individual is of ‘good fame, integrity and character...’: e.g., Tax Agent Services Act 2009 (Cth), s 20–15. But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ there relevantly observed:

‘The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’” 8

[13] In MUA v FWC, the Full Court ultimately concluded as follows:

“[42] When deciding whether to issue an entry permit pursuant to s 512 of the Fair Work Act, those considerations relevant to the exercise of the power are not confined (for example) to convictions and penalties imposed for prior contraventions solely for the manner in which rights under an entry permit have been exercised. The weight to be given to other considerations remains a matter for the decision-maker – at least initially. The prospect remains for judicial review founded upon (for example) alleged ‘unreasonableness’.” 9

Consideration

[14] I will now take into account all of the permit qualification matters specified in s 513(1) of the Act in relation to the application for an entry permit for Mr Platt.

Permit qualification matters – ss 513(1)(a), (b), (d), (e) and (f)

[15] According to the declarations and statutory declarations filed by the CFMMEU in support of the application for the grant of an entry permit to Mr Platt:

(a) Mr Platt has received appropriate training about the rights and responsibilities of a permit holder (s 513(1)(a) of the Act). In particular, Mr Platt completed a structured right of entry course, delivered face-to-face, by a legal/industrial officer of the CFMMEU, using training materials approved by the Fair Work Commission on 24 October 2013. In addition, I am persuaded by the oral evidence Mr Platt gave in answer to questions from Ms Bindon, counsel for the ABCC, that he understands the obligations of an entry permit holder under the Act. The extent of Mr Platt’s knowledge about such matters is a relevant consideration under s 513(1)(g) of the Act;

(b) Mr Platt has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

(c) neither Mr Platt nor any other person has ever been ordered to pay a penalty under the Act or any other industrial law in relation to action taken by Mr Platt (s 513(1)(d) of the Act);

(d) Mr Platt has not had any entry permit issued under Part 3–4 of the Act or a similar law of the Commonwealth revoked, suspended or made subject to conditions (s 513(1)(e) of the Act); and

(e) Mr Platt has not had an entry permit under State or Territory industrial or occupational health and safety laws which has been cancelled, suspended or been made subject to conditions, nor has he been disqualified under such laws from exercising or applying for an entry permit (s 513(1)(f) of the Act).

[16] I accept that the information set out in the previous paragraph, as disclosed in the declarations and statutory declarations made by Ms Mallia and Mr Platt concerning these matters, is true and correct. The permit qualification matters set out in s 513(1)(a),(b) and (d) of the Act weigh in favour of a conclusion that Mr Platt is a fit and proper person to hold an entry permit. Given that Mr Platt has not previously held an entry permit, the permit qualification matters set out in s 513(1)(e) and (f) are neutral considerations.

Permit qualification matter – s 513(1)(c)

[17] Mr Platt has never been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving entry onto premises, or fraud or dishonesty. However, Mr Platt has been convicted of the following offences in relation to intentional use of violence against another person:

•  First, in about November 2012 Mr Platt was visiting Melbourne to attend the Melbourne Cup with his partner at the time. He and his partner visited the Crown Casino after drinking alcohol all day. Whilst at the casino, a man approached Mr Platt’s partner, grabbed her on the bottom and pulled her close to him. He did this without the consent of Mr Platt’s partner and without any encouragement on her part. The man made sexually suggestive comments to Mr Platt’s partner. Mr Platt believed that his partner looked frightened and taken aback. Mr Platt told the man to get off his partner. The man pushed Mr Platt. A fight then broke out between Mr Platt and the man. Mr Platt was charged with intentionally causing injury. Mr Platt pleaded guilty and was ordered to pay a fine of $3,000 plus court costs of $71.40. He paid the fine and court costs immediately. Mr Platt accepts that his actions in relation to this offence were inappropriate and he is deeply embarrassed and ashamed by them. I accept Mr Platt’s evidence that he regrets engaging in a fight with the man concerned and should have walked away. Mr Platt instructed his lawyer to inform the court that he was sorry for his conduct and sorry to the man he injured.

•  Secondly, in about mid 2015 Mr Platt was visiting the Star Casino in Sydney to celebrate a friend’s birthday. While lining up to enter one of the bars inside the casino, a stranger pushed his way into the front of the line. Mr Platt confronted the man about pushing in. The man then pushed Mr Platt and a fight broke out between Mr Platt and the man. The police attended and both men involved in the fight were charged with common assault. At the time of the incident Mr Platt had been drinking alcohol all day. Mr Platt pleaded guilty to the assault charge. He was ordered to pay a fine of $500 and placed on a 12-month good behaviour bond. The bond required Mr Platt to be of good behaviour. During the operation of the bond, Mr Platt kept his head down and tried to get back into work. He was not involved in any other incidents during the period of the bond. Mr Platt accepts that his conduct in relation to this matter was foolish and inappropriate. I accept Mr Platt’s evidence that he is ashamed and embarrassed by his conduct and regrets it deeply. Mr Platt’s lawyer informed the Local Court, on Mr Platt’s instructions, that Mr Platt was sorry for his conduct and sorry to the victim.

[18] These matters are plainly relevant to my assessment of Mr Platt’s fitness and propriety to hold a right of entry permit. They weigh against a conclusion that he is a fit and proper person to hold such a permit.

Permit qualification matter – s 513(1)(g)

[19] Pursuant to s 513(1)(g) of the Act, in deciding whether Mr Platt is a fit and proper person I must take into account any other matters that I consider relevant. Any such matters must be relevant to whether Mr Platt is a fit and proper person to hold a right of entry permit.

Changes in Mr Platt’s life since the two criminal incidents

[20] At the time the two criminal incidents took place, Mr Platt was working in the offshore oil and gas industry in northern Western Australia. That work required Mr Platt to live away from his home in New South Wales and away from his family for regular periods of time. Mr Platt worked on a four week-on, four week-off roster. Mr Platt had a partner and young daughter at home. These circumstances placed stress on Mr Platt, and led to Mr Platt’s separation from his partner. Mr Platt now accepts that he was using alcohol inappropriately to deal with the stress.

[21] After the second incident, Mr Platt realised that he had an anger management issue. He enrolled in anger management counselling to help him address his anger issues and to teach him better ways to manage conflict when it arises. The counselling Mr Platt undertook was with MD Allied Health in Mount Druitt and involved Mr Platt attending five one-on-one appointments with a psychologist. Mr Platt was taught techniques he could use if he found himself in a similar situation in the future.

[22] I accept Mr Platt’s evidence that after completing the counselling he cut back on his consumption of alcohol and is now very conscious of how much alcohol he consumes, particularly when he is in public. In addition, after the second incident Mr Platt made a decision to leave his offshore job and find more stable employment closer to home. He obtained work in the construction industry in Sydney and went back to TAFE to increase his skills and qualifications and obtain better employment.

[23] Mr Platt is now in a new relationship and has a second daughter. He is seeking to be a good role model for his daughters.

[24] I accept Mr Platt’s evidence that he is truly remorseful for his actions in relation to the two criminal matters. Mr Platt’s expression of remorse is supported by the fact that he has not been involved in any criminal matters since the second incident in 2015.

[25] Mr Platt is reliant on his income as a CFMMEU organiser to provide for his family. He knows that holding an entry permit under the Act is a critical part of his job, and he will not continue to be employed by the CFMMEU if he does not obtain a right of entry permit. I accept that these factors will provide a strong incentive for Mr Platt to comply with his obligations as a right of entry permit holder. I also accept Mr Platt’s evidence that he will use the techniques he has learned to remain calm when faced with difficult, stressful or unfair situations at work, and will obtain assistance from the CFMMEU legal department if he faces a situation where an occupier of premises is persisting in interfering with Mr Platt’s exercise of his rights as a permit holder.

[26] The fact that Mr Platt has never in the past responded with aggression or violence in the workplace when faced with what he perceives to be an unfair or unjust situation provides some further comfort that Mr Platt will not respond in such a way in the future if he is granted an entry permit. In that regard, it is relevant that Mr Platt has worked in the offshore oil and gas industry for about nine years and the construction industry for about five years. Mr Platt has been a CFMMEU member since 2016 and was a CFMMEU delegate and elected health and safety representative for about 18 months during his employment in the construction industry. Mr Platt does not have any convictions for contraventions of an industrial law. There is no suggestion in the material before the Commission that Mr Platt has contravened any industrial laws.

[27] On the basis of the foregoing matters, I accept that Mr Platt has matured and turned his life around. He has made important changes to his working and living arrangements, attended and learned important techniques from counselling, reduced his alcohol consumption, and obtained stable employment with the CFMMEU. Mr Platt is clearly passionate about his current employment and does not want to lose it. He understands that he will lose that employment, together with the financial security that it brings, if he behaves inappropriately while exercising rights of entry. Those matters weigh in favour of the contention that Mr Platt is a fit and proper person to hold an entry permit.

Mr Platt’s employment with the Titan Cranes group of companies

[28] The ABCC tendered two letters addressed to Mr Platt dated 10 September 2018 and 18 February 2019 respectively from his employer during the time that he was employed by the Titan Cranes group of companies. No witnesses were called by the ABCC to give evidence in relation to the events the subject of those letters.

[29] The letter dated 10 September 2018 refers to an incident on 13 June 2018 when Mr Platt allegedly spoke to his partner on his mobile telephone during a time when he was working in the vicinity of a crane. Mr Platt accepts that he received this letter but denies that he used his mobile telephone as alleged. Mr Platt says that he did not challenge the letter when he received it because the letter was sent months after the event and Mr Platt had moved to another work site by the time he received the letter.

[30] The only evidence in support of the allegation that Mr Platt used his mobile phone while working is the letter dated 10 September 2018. In light of the absence of any other evidence, Mr Platt’s sworn denial of the allegation, and Mr Platt’s plausible reason for not challenging the letter when he received it, I am not satisfied on the balance of probabilities that Mr Platt used his mobile telephone as alleged.

[31] The second incident to which the 10 September 2018 letter refers is one which took place on 22 June 2018. On that day Mr Platt accepts that he placed a CFMEU flag on a crane at the site where he was working. The letter alleges that Mr Platt placed the flag on the crane without going through the proper consultation process, and he was told to remove the flag and go through the correct procedure, which he did not do and, as a consequence, his employer “lost a position at NRT” and had to remove Mr Platt to another site. Mr Platt denies that he did not go through the correct process or that his employer lost a position at the site or moved him to another site as a consequence. Mr Platt gave evidence that there was a dispute between the CFMEU, the site manager, and his employer about the placement of the flag on the crane. Mr Platt says he was caught in the middle of this dispute and he was content to do whatever he was directed to do once the dispute was resolved. Mr Platt also gave evidence, which I accept, that he believed that he acted in compliance with the applicable enterprise agreement when he placed the flag on the crane. Mr Platt says he was told that he was being moved to another site because of a downturn in work. In the absence of any evidence (other than the letter) to the contrary, I accept Mr Platt’s evidence in relation to this incident. In particular, it rings true that Mr Platt was caught in the middle of a dispute between others in relation to this issue and he was content to comply with whatever outcome those parties reached.

[32] The final incident to which the 10 September 2018 letter refers is a day of inclement weather at a site on 3 September 2018. The letter alleges that Mr Platt walked off the job when rain had started to fall, did not follow the applicable enterprise agreement, “tool boxed the process on the following day”, failed to communicate with site management and potentially caused his employer to lose a crew position on the site. Mr Platt denies that he failed to follow the enterprise agreement, failed to communicate with site management, and potentially caused his employer to lose a crew position. Mr Platt agrees that he was asked to, and did, speak to other employees on the site at a tool box meeting on the following day to explain the operation of provisions in the enterprise agreement and underlying award (which was incorporated into the enterprise agreement) that deal with inclement weather. Mr Platt also gave unchallenged evidence that neither he nor his co-workers who left site on the day in question had their pay docked. In the absence of any evidence (other than the letter) to the contrary, I accept Mr Platt’s evidence in relation to this incident.

[33] The letter dated 18 February 2019 refers to alleged serious and wilful misconduct on the part of Mr Platt. In particular, it contends that he engaged in the knowing and deliberate falsification of company timesheets on 13 February 2019. The letter refers to a ten day consultation period with Mr Platt in relation to the potential termination of his employment on the grounds of serious and wilful misconduct, and a meeting to be arranged at an agreed independent location. Mr Platt gave unchallenged evidence, which I accept, that no such consultation period or meeting took place after the date of the letter, and that he remained in employment with his employer for a further period of about 19 months. Mr Platt’s curriculum vitae supports his evidence that he remained in employment with the Titan Cranes group of companies until September 2020.

[34] Mr Platt also denies receiving the letter and denies engaging in the conduct to which the letter refers. As to receipt of the letter, it is addressed to Mr Platt’s residential address at the time but, unlike the 10 September 2018 letter, does not appear on its face to have been sent to Mr Platt by email. I accept Mr Platt’s evidence that he ordinarily received documentation from his employer at the time by email.

[35] The allegations in the 18 February 2019 letter are plainly serious. I would not lightly make a finding that an employee engaged in knowing and deliberate timesheet fraud. I am not persuaded by the limited evidence before me that such a finding should be made in this matter. Indeed, that Mr Platt remained employed by the Titan Cranes group of companies for a further 19 months after the date of this alleged incident is a strong indicator that either the incident did not occur or the employer at the time was not satisfied that Mr Platt was responsible for the alleged fraud.

[36] In all the circumstances, I am not persuaded that Mr Platt’s fitness or propriety to hold an entry permit is impacted in a negative way by the matters referred to in the letters dated 10 September 2018 and 18 February 2019.

Conclusion

[37] Ultimately, the assessment to be made is not a punitive one aimed at continuing to punish Mr Platt for his past wrongdoing. I accept Mr Platt’s evidence that he has changed his life for the better and that he has a strong incentive to remain in stable employment with the CFMMEU and comply with his obligations under Part 3–4 of the Act.

[38] After taking into account and weighing each of the permit qualification matters set out in s 513(1)(a) to (g) of the Act, I am satisfied, on balance, that Mr Platt is a fit and proper person to hold a right of entry permit. The matters which weigh in favour of a finding that Mr Platt is a fit and proper person to hold a right of entry permit outweigh those that weigh against such a conclusion.

[39] I have considered whether any conditions should be imposed on any entry permit issued to Mr Platt conjointly with my consideration of whether he is a fit and proper person to hold an entry permit. My conclusion on that score is that no conditions should be imposed.

[40] In the circumstances, I am satisfied that it is appropriate to exercise the discretion conferred on me by s 512 of the Act in favour of issuing Mr Platt with an entry permit.

DEPUTY PRESIDENT

Representation:

Mr P Boncardo, of counsel, forthe CFMMEU.
Ms P Bindon, of counsel, on behalf of the ABCC.

Submissions:

CFMMEU, 12 February 2021
ABCC, 25 February 2021

Printed by authority of the Commonwealth Government Printer

<PR727904>

 1 Section 480 of the Act

 2   Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85; (2012) 203 FCR 389 at 405 [57] per Flick J

 3   Ibid at 405 [56] per Flick J

 4   Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 5   Construction, Forestry, Mining and Energy Union v Fair Work Commission[2017] FWCFB 4141

 6   [2015] FWC 1522

 7 [2015] FCAFC 56

 8   Ibid at [17]

 9   Ibid at [42]