Construction, Forestry, Maritime, Mining and Energy Union v Peabody CHPP Pty Ltd

[2020] FWC 6287

[2020] FWC 6287

FAIR WORK COMMISSION

0B0BDECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Maritime, Mining and Energy Union
v
Peabody CHPP Pty Ltd
(C2020/4665)

COMMISSIONER RIORDAN SYDNEY, 21 DECEMBER 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES.

[1] This decision relates to an interpretation of an Enterprise Agreement and whether the service of an employee transfers to a new employer when a transfer of business occurs.

[2] Peabody CHPP Pty Ltd (the Respondent) operates a Coal Handling and Processing Plant (CHPP) at their mine, which is known as the Metropolitan Mine, at Helensburgh in the Illawarra region of NSW.

[3] In June 2019, the Respondent decided to insource the operation of the CHPP from a contractor called SADA Pty Ltd (SADA). Its employees were working under the SADA Metropolitan Coal Processing Plant Enterprise Agreement 2018 (the Agreement).

[4] The CFMMEU (the Applicant) made this application of behalf of four former employees of the Respondent, all of whom had previously worked for SADA. Mr Akerman for 9 years, Mr Charker for 21 years, Mr Daly for 9 years and Mr White 8 years (together the Former Employees).

Background

[5] Each Former Employee was successful in applying for a role with the Respondent through a job advertisement on Seek.

[6] The Former Employees were terminated by the Respondent on 24 August 2020 by way of forced redundancy.

[7] It is not in dispute that the Agreement transferred to the Respondent or that the Former Employees are ‘transferring employees.’ The relevant provisions of the Agreement states:

“29. TERMINATION OF EMPLOYMENT:

An employee is required to give one week's notice to terminate employment, or forfeit to Sada one week's pay in lieu of giving notice.

Where Sada gives a full-time employee notice of termination or payment in lieu of notice, other than redundancy termination, such notice or payment in lieu will be administered according to the below table and the provisions of Section 117 of the Fair Work Act 2009.

Employee's period of continuous service with Sada	Period of Notice
Not more than one year	at least one week
More than one year but not more than three years	at least two weeks
More than three years but not more than five years	at least three weeks
More than five years	at least four weeks

The period is increased by one week for employees over 45 years of age who have completed at least two years continuous service with SADA.

Redundancy Termination

Where termination occurs due to redundancy caused by technological change, market forces or loss of contract Sada will give four (4) weeks' notice of termination or payment in lieu paid as if at work.

Where full time employees are terminated due to redundancy, they will receive payment equal to three weeks' pay of 35 ordinary hours for each completed year of employment. Regardless of the length of employment, the minimum payment to an employee will be three weeks for every completed year of service. For employees employed less than twelve months the minimum payment will be two weeks' pay of 35 ordinary hours.

Sada is not liable for redundancy payments if, within seven days of termination of employment of employees, Sada obtains or causes to be made available employment for the employees within the southern districts;

(a) that the employee is competent to perform; and

(b) is in a position that carries the same or higher rate of pay than the employee was paid prior to redundancy including average bonus payable at the time of transfer;

(c) that can reasonably be regarded as permanent.”0F0F 1

(My emphasis)

[8] The Former Employees received their redundancy pay in accordance with clause 29 of the Agreement based on their employment with the Respondent only, ie 14 months service.

[9] The Former Employees believe that their redundancy pay should have included their service at SADA.

Evidence and Submissions

[10] The Former Employees were part of a cohort of 15 ex SADA employees who were successful in gaining employment with the Respondent. I note that SADA played no role in assisting the Former Employees in gaining employment with the Respondent. Each of the ex SADA employees who were employed by the Respondent received a letter of offer which contained the following provisions:

“Terms and Conditions of Employment

The terms and conditions of our offer of employment are subject to the enclosed SADA Metropolitan Coal Processing Plant Enterprise Agreement 2018.

The SADA Metropolitan Coal Processing Plant Enterprise Agreement 2018 will transition with you from SADA to Peabody and will be in place until the agreement is required to be renegotiated.

Please review the Enterprise Agreement thoroughly as it will for the agreement between you and Peabody CHPP Pty Ltd (ABN 26 609 368 649).

...

Recognition of Entitlements

Your Coal Long Service leave will remain in place. All other employment entitlements will be settled between yourself and SADA and will not transfer to Peabody.

When you commence with Peabody you will start accruing annual leave and personal leave as specified in the Enterprise Agreement.”1F1F 2

...

(My emphasis)

[11] The Applicant submitted that in accordance with clause 29 of the Agreement, the Former Employees were entitled to three weeks’ pay for every completed year of service, where a completed year of service included service with SADA as well as their service with the Respondent.

The Applicant referred to section of 22 (5) of the Fair Work Act 2009 (the Act), which states:

22 Meanings of service and continuous service

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

…

(5)  If there is a transfer of employment (see subsection (7)) in relation to a national system employee:

(a)  any period of service of the employee with the first employer counts as service of the employee with the second employer; and

(b)  the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer(taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.

Note: This subsection does not apply to a transfer of employment between non-associated entities, for the purpose of Division 6 of Part 2-2 (which deals with annual leave) or Subdivision B of Division 11 of Part 2-2 (which deals with redundancy pay), if the second employer decides not to recognise the employee’s service with the first employer for the purpose of that Division or Subdivision (see subsections 91(1) and 122(1)).

(6)  If the national system employee has already had the benefit of an entitlement the amount of which was calculated by reference to a period of service with the first employer, subsection (5) does not result in that period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.

Note: For example:

(a)    the accrued paid annual leave to which the employee is entitled as an employee of the second employer does not include any period of paid annual leave that the employee has already taken as an employee of the first employer; and

(b)    if an employee receives notice of termination or payment in lieu of notice in relation to a period of service with the first employer, that period of service is not counted again in calculating the amount of notice of termination, or payment in lieu, to which the employee is entitled as an employee of the second employer.

Meaning of transfer of employment etc.

(7)  There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:

(a)  the following conditions are satisfied:

(i)  the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;

(ii)  the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or

(b)  the following conditions are satisfied:

(i)  the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;

(ii)  the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.

Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.

(My emphasis)

[12] The Applicant submitted that, although section 122(1) and the Note in section 22(5) of the Act state that section 22(5) does not apply when a second employer decides not to accept the service of the first employer, this exception only applies to the NES redundancy provisions and not those contained in an enterprise agreement.

122 Transfer of employment situations that affect the obligation to pay redundancy pay

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

(1)  Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non-associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

[13] Further, the letters of offer only made mention of the annual leave and long service leave entitlements. Importantly, redundancy is not mentioned by the Respondent in any correspondence as an exclusion from the transfer of employment.

[14] The Applicant argued that the words ‘employment’ and ‘service’ in clause 29 are not interchangeable and that the Commission should apply the ordinary meaning to those words. In doing so, the Applicant submitted, the provision takes on a whole new meaning and strengthens the case for the Commission to adopt the definition of service in section 22 of the Act.

[15] The Applicant also submitted that the Respondent could have utilised section 320 of the Act and sought a variation of the Agreement to remove any ambiguity in relation to the prior service of the transferring employees.

[16] Further, the Applicant submitted that section 22 of the Act applies to all provisions of the Act and is not confined to the NES, e.g. the definition of service also applies to the unfair dismissal provisions of the Act (sections 384 and 392 of the Act)

[17] The Applicant submitted that the paragraph contained in the letters of offer (see paragraph 10 above) does not have the effect of informing the employee that their prior service will not be recognised for redundancy.

[18] In the alternative, the Applicant submitted that if there was no direct obligation to recognise service as per section 22 of the Act, then clause 29 of the Agreement should be intended to adopt the meaning of service contained in section 22 of the Act.

[19] The Respondent submitted that by giving the words of the Agreement their plain and ordinary meaning as per the recent decision in James Cook University v Ridd (Ridd)2F2F 3 where the Full Court of the Federal Court of Australia recently summarised the relevant principles;

“[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] IRCA 166; [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “... the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380)

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).”3F3F 4

Applying these principles, the Respondent argued that the terms ‘employment and service’, in clause 29 of the Agreement, are interchangeable.

[20] The Respondent submitted that the clear intention of the Respondent was to not recognise the service of the Former Employees with SADA. The Respondent argued that the letters of offer are clear and concise and satisfy section 122(1) of the Act. Therefore, section 22(5) of the Act does not apply.

[21] The Respondent submitted that it was “plainly unfair” that the Former Employees have not received a benefit referable to their service with SADA, but that was a matter to be resolved between the Former Employees (with the support of the CFMMEU) and SADA.

[22] The Respondent argued that if the Commission were to adopt the reasoning of the Applicant in relation to section 22(5) of the Act, then such a conclusion would create a degree of difficulty in relation to consistency and plainly result in unintended consequences.

[23] The Respondent submitted that if an enterprise agreement does not contain a redundancy provision then the NES applies. In this current circumstance, an employer has the right to refuse the prior service in a transmission of business situation. However, if the enterprise agreement replicates the NES, based on the submission of the Applicant, the source of the redundancy entitlement is the enterprise agreement and the employer cannot do anything but accept the prior service in a transfer of business scenario.

[24] The Respondent argued that the Applicant’s submission creates an inconsistency on the basis that section 22(5) of the Act applies to enterprise agreement benefits but the right of the employer to not recognise service (section 122(1) of the Act) does not apply. The Respondent submitted that such an outcome was illogical and would be an unintended outcome

[25] The Respondent argued that, to overcome this scenario and to ensure certainty and logical outcomes, the section 22 provisions only applies to NES benefits. Flowing on from this proposition, the provisions which allow an employer not to accept service also don’t apply to other enterprise agreement benefits.

[26] The Respondent also submitted that the Applicant’s proposition is contrary to the regime which existed under the Workplace Relations Act. The Respondent argued that if it was the intention of Parliament to make this change then the Government did not mention it to anyone either before or since the enactment of the legislation.

[27] The Respondent referred the Commission to section 313 of the Act which states:

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a)  the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b)  while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

(2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer.

(3)  This section has effect subject to any FWC order under subsection 318(1).

[28] The Respondent argued that this section of the Act makes no mention of the term ‘service’; but states that the transferable instrument, i.e., the Agreement, only comes into effect for the Respondent at the time that the employee becomes an employee of the new employer, i.e., the Respondent.

[29] The Respondent submitted that the issue of service and section 22(5) of the Act has been dealt with previously by the Commission in a matter between the two parties to this dispute. In CFMEU v Peabody Energy Australia Coal Pty Ltd4F4F 5, Commissioner Stanton held:

“[66] As a matter of construction, it must therefore follow that s.22(5) cannot require an employer to recognise service for the purposes of conferring a benefit outside of those established under the NES, such as the bonus scheme. The application of s.22(5) is restricted to a situation where there is a transfer of employment and the second employer elects to recognise the employee’s service with the first employer for the purposes of redundancy. Moreover, s.22(6) states that where a transferring employee has already received an entitlement based on service with the first employer, the provisions of s.22(5) do not require that period of service to be counted again when calculating the employee’s entitlements with the second employer. Wambo was not required to recognise a transferring employee’s service with Downer with respect to the NES requirements concerning annual leave and redundancy pay.

[67] The proposition put by the Union that s.22(5) requires Wambo to recognise a transferring of employee’s service with Downer for the purpose of administering the bonus scheme has no legislative support. The provisions of s.22 of the Act do not create an obligation on the employer per se but rather provide a set of definitions concerning the meaning of “service’, “continuous service”, “transfer of business” and the like. Nor does s.22 of the Act require that prior service with Downer be recognised “for all purposes” as contended by the Union. The provisions of s.22(6) clearly prevent “double dipping” and prevents a period of service in respect of an entitlement taken with the first employer from being counted again when calculating the same entitlement of the transferring employee with the second employer. For the sake of further clarity, the Explanatory Memorandum relevantly states at Items 103 and 113 to 115:   5F5F 6

[30] The Respondent also referred me to the relevant provisions of the Explanatory Memorandum of the Act.

“103. Clause 22 defines the meaning of service and continuous service in general terms that apply to the Bill as a whole (including the NES), and also in the specific context of identified Divisions of the NES where a particular meaning is required.

…

113 Broadly, these provisions are intended to ensure that an employee’s service related entitlements under the NES are not affected merely because the employee’s employer changes as a result of a transfer of business, or because the employee’s employer changes within a group of employers who are associated entities.

114. A legislative note under paragraph 22(5)(b) makes clear that this subclause does not apply to a transfer of employment between non-associated entities in relation to the NES annual leave provisions in Division 6 of Part 2-2 of the Bill, or the NES redundancy pay provisions in Subdivision B of Division 11 of Part 2-2 if the second employer decides not to recognise the employee’s service with the first employer.

115. Subclause 22(6) is an ‘anti-double dipping’ provision. Where an employee has taken the benefit of an entitlement and that entitlement was calculated by reference to a period of service with the first employer, then subclause 22(5) does not result in the employee’s period of service with the first employer being counted again when calculating the employee’s entitlements of that kind as an employee of the second employer.”6F6F 7

[31] The Respondent also referred the Commission to section 55(6) and what it described as an awkward clause.

[32] The Respondent posited that this provision means that if an employer provides a benefit which is greater than the NES through an enterprise agreement, as SADA has done in relation to redundancy, then the benefit is required to be broken down into two separate benefits. The Respondent submitted that the NES entitlement will be protected by the NES protections whilst any additional entitlement will not be subject to these provisions.

[33] The Respondent also referred to the recent High Court of Australia decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Mondelez)7F7F 8, to highlight the fact that the High Court had applied a common-sense interpretation to arrive at a result which it believed was the intended outcome of the Parliament. The Respondent suggested that the same common-sense approach be adopted in this circumstance.

Consideration

[34] I have taken into account all of the submissions and evidence that has been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[35] I have taken into account that section 22(5) of the Act only applies to NES accumulated annual leave and redundancy provisions. The Applicant has made it abundantly clear that this application does not involve NES entitlements.

[36] I have taken into account, the opposing submissions in relation to the plain and ordinary meaning of ‘service’. I note that the Concise Oxford Dictionary (tenth edition) defines ‘service’ to mean;

“Service - a period of employment with a company or organisation.”

[37] I have taken into account the Explanatory Memorandum of the Act. Paragraph 103 of the Explanatory Memorandum states that the definition of service and continuous service of clause 22 apply throughout the entire Act, including the NES. However, paragraph 114 categorically states that service with a former employer can count as service with the second employer for the purpose of NES Annual Leave or NES Redundancy, unless the second employer decides not to recognise the employees service with the first employer.

[38] I have taken into account the letter of offer which was provided to the Former Employees prior to their commencement with the Respondent.

[39] This correspondence sets out the “offer of employment” that was made to each of the Former Employees. All the Former Employees accepted this offer. Relevantly, the following extracts help to provide an understanding of the dispute:

“Recognition of Entitlements

Your Coal Long Service leave will remain in place. All other employment entitlements will be settled between yourself and SADA and will not transfer to Peabody.

When you commence with Peabody you will start accruing annual leave and personal leave as specified in the Enterprise Agreement.”8F8F 9

[40] I have taken into account that the Former Employees accepted that all of their employment entitlements (except for their coal industry long service leave) will be settled with SADA and not transfer to the Respondent. It is not in dispute that redundancy is an employment entitlement, which in this case, is governed by the terms of the Agreement.

[41] In response to questions from me, Mr Ackerman said:

“Thank you.  Now, there is evidence which you may not have seen that's been put on by Mr Kruger, which is an email train between himself and a Ms Stephanie Gelland.  Are you aware of who Ms Gelland is?---Ms Gelland was the HR officer at Peabody.

Were you talking to her about your entitlements that might be coming across with you from SADA to Peabody?---Personally, no, but there was a letter given to us about our - Sada would pay our - what do you call it - sick leave and holidays; that would be paid out.

Did anybody ask Ms Gelland, from your information, about whether or not you were entitled to redundancy?---Not that I'm aware of.

Was there every any discussion from Ms Gelland to suggest to you that when you came across to Peabody that you would not get redundancy?---No, there was no discussion because as people were asking when the redundancies came out this time, people were worried about their financial situation and were trying to find out about years' service.”9F9F 10

I have taken this into account.

[42] I have taken into account the following answer by Mr Ackerman to a question from Mr Williams:

“This letter says, "All other employment entitlements will be settled between yourself and Sada."  Did you give any consideration at the time or since to making a claim against Sada for redundancy based on the Sada service?---No, no, we were just happy to get a job with Peabody at the time.”10F10F 11

[43] I have taken into account the decision of my former colleague, Stanton C in CFMEU v Peabody Energy Australia Coal Pty Ltd. I note that the CFMEU did not appeal this decision and whilst that decision was in relation to the length of an employee service for the purpose of calculating a bonus, the fundamental issue of prior service is common. I do not disagree with the reasoning or finding of my esteemed former colleague.

[44] I have taken into account the approach adopted by the High Court in applying the normal and ordinary meaning of a word, along with the utilisation of extrinsic material in determining a common-sense solution to a problem. I note that the use of extrinsic material is a common approach used by the High Court in statutory interpretation.

Determination

[45] I am satisfied that the wording in the Agreement, whilst confusing at first instance, does not contain an obligation for the Respondent to recognise and reward the Former Employees’ service with SADA. I agree with the Respondent and find that the words ‘employment and service’ in clause 29 of the Agreement are interchangeable.

[46] I do not accept that the definition of service in section 22 of the Act can be automatically transported into an enterprise agreement. The principles of interpretation determined in Ridd require words to be given their plain and ordinary meaning. I endorse the definition from the Oxford Dictionary in providing the plain and ordinary meaning of this term, that is, service is the period of time where an employee is employed by an organisation.

[47] Based on the evidence of Mr Ackerman, I am satisfied that the employees were aware that all of their service-related entitlements were to be paid out by SADA. It is not unusual for employees facing a redundancy situation to be focused on finding new employment rather than worrying about entitlements. The Respondent’s representative, Mr Williams, is a very experienced legal practitioner. Mr Williams believes that the Former Employees have a prima facie case against SADA for a redundancy payment for their service at SADA. Based on the limited material before the Commission, he may be correct in his assessment.

[48] If I am wrong, and the term “service” should be defined as per section 22 of the Act, then I find that the Respondent has provided the requisite written notice to the employees that their service with SADA would not be transferring to the Respondent in accordance in with section 122(1) of the Act. Apart from the wording in the letter of offer, the Former Employees had to undertake and endure a totally separate recruitment process through Seek. They weren’t given preference due to their employment with SADA or simply transferred between SADA and the Respondent, which is what usually happens when a contractor loses a contract to a competitor and the employees start with the new employer.

[49] I do not accept the argument from the Respondent that there is a need for employers who have superior redundancy provisions than the NES to spilt the entitlements, calculation and means of accrued into two separate categorise, i.e. NES and over NES. Such a scenario would be an administrative nightmare and would not have been the intention of Parliament.

[50] In applying the common sense approach to statutory interpretation in Mondelez, I am satisfied that the Respondent has acted in accordance with the intention of the Parliament. It would be industrially unfair if a new employer was required to recognise and account for the accrued entitlements of a former employee without contribution or compensation from the transferring employer, especially after the Respondent had advised the Former Employees to settle their employment entitlements before they transferred to the Respondent. No employer would be able to afford such a scenario, especially when the existing contractor had a number of employees who had more than 10 years service.

Conclusion

[51] For the reasons stated above, I find that the Respondent did not have to pay the Former Employees redundancy pay based on their prior service with SADA.

[52] The application is dismissed.

COMMISSIONER

Appearances:

Mr Alister Kentish for the Applicant.

Mr Dan Williams, Solicitor on behalf of the Respondent.

Hearing details:

By Telephone

2020
October 15

2020
October 26

Printed by authority of the Commonwealth Government Printer

<PR724809>

 1   Metropolitan Coal Processing Plant Enterprise Agreement 2018, clause 29.

 2   Witness Statement of Nathan Ackerman Annexure 1.

 3 [2020] FCAFC 123.

 4   Ibid, [65].

 5   [2015] FWC 446

 6   ibid [66]-[67].

 7   EA 103 – 113 -115

 8 [2020] HCA 29.

 9   Witness Statement of Nathan Ackerman Annexure 1.

 10   Transcript of Hearing on Thursday 15 October 2020 [44] – [47].

 11 Transcript of Hearing on Thursday 15 October 2020 [51].