Construction, Forestry, Maritime, Mining and Energy Union v Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia
[2023] FWCFB 54
•22 MAY 2023
| [2023] FWCFB 54 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Ltd and Brisbane Container Terminals Pty Ltd T/A Hutchison Ports Australia
(C2023/74)
| VICE PRESIDENT CATANZARINI DEPUTY PRESIDENT CROSS COMMISSIONER MCKINNON | SYDNEY, 22 MAY 2023 |
Background
Appeal against decision [2022] FWC 3331 of Deputy President Easton at Sydney on 19 December 2022 in matter number C2022/1083 - correct remuneration for work on a public holiday – arbitration of a dispute in accordance with a dispute settlement procedure – principles of agreement interpretation –plain meaning not disturbed by historical provisions - decision upheld.
The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (the MUA) appeals a decision of Deputy President Easton made on 19 December 2022 (the Decision)[1]. The appeal is lodged pursuant to s.604 of the Fair Work Act 2009 (the Act). Proceedings before the Deputy President concerned an application by the MUA under s.739 for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement term in the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). The dispute also involved consideration of the provisions of the Stevedoring Industry Award 2020 (the Award).
Clause 14.4.2 of the Agreement allows for a dispute to be referred to the Commission for resolution, including by arbitration. Clause 14.6 of the Agreement provides:
14.6 If the FWC arbitrates the dispute:
14.6.1 It may also use the powers that are available to it under the Act, and
14.6.2 An appeal may be made against the decision.
The Deputy President characterised the dispute in the following terms:[2]
[3] Clause 29.12 of the Agreement requires Hutchison Ports Australia (Hutchison Ports) to pay employees who work on a public holiday “at the Award public holiday rates of pay.”
[4] Hutchison Ports argues that the term “Award public holiday rates of pay” refers to both the percentage loadings in the Stevedoring Industry Award 2020 (Stevedoring Award) and the corresponding ordinary hourly rates in that award. The MUA argues that the term “Award public holiday rates of pay” only refers to the percentage loadings in the Stevedoring Award and that the award percentages must be applied to the ordinary hourly rates in the Agreement.
[5] The hourly rates in the Agreement are significantly higher than the hourly rates in the Stevedoring Award.
[6] Both parties argue that words used in clause 29.12 of the Agreement have a “clear and unambiguous” meaning in their ordinary context. However, the parties do not agree on what that clear and unambiguous meaning is.
The Deputy President determined the dispute by deciding that clause 29.12 of the Agreement requires the Respondent (Hutchison Ports) to pay the percentages stated in clause 21 of the Stevedoring Award (250% or 300%), calculated at the ordinary time rates under the Stevedoring Award.[3]
The relevant provisions of the Agreement and the Award
The Agreement provides for annualised salaries payable that include payment for ordinary hours of work in accordance with rosters set within the Agreement and include payment for shift premiums that are annualised by averaging the penalty loadings payable over an eight-week recurring roster. The Award, however, does not include any provision for annualised salaries. The ordinary hourly rates in the Agreement are approximately 70-80% higher than the Award.
Clause 6 of the Agreement is titled Previous Agreements Rescinded and/or Varied, and provides:
6.1 This Agreement shall replace and rescind any existing Agreement whether certified or not, memorandum of understanding, deed, exchange of correspondence, work practice(s), arrangement(s), written or unwritten which applied prior to the commencement of this Agreement and which regulated the terms and conditions of employment of Employees to whom this Agreement applies.
6.2 In the event of any inconsistency between Part A and any Part B Schedule contained in this Agreement, the Part B Schedule will prevail to the extent of the inconsistency.
Payments for public holidays, however, are not annualised in the Agreement, and the entitlements for any particular public holiday depend on variables such as when the public holiday falls, the rostered hours, and whether the employee performs work on the day. Clause 16.2 and 16.3 of the Agreement provide:
16.2 The Annual Salary for a Permanent Full Time Employee is inclusive of the:
16.2.1 Ordinary Rate of Pay of the appointed Level
16.2.2 Shift premiums that would otherwise be payable in accordance
with the provisions of this Agreement.
16.3 Where a Permanent Full Time Employee is engaged on an Annual Salary, the
following benefits will be payable in addition to the Annual Salary in accordance
with this Agreement when worked in any shift:
16.3.1 Higher duty payments (upgrades)
16.3.2 Public Holidays
16.3.3 Meal Allowance
16.3.4 Shift Extensions or Pre-Starts
16.3.5 Overtime.
Regarding payment to workers who are rostered to work on a public holiday and who attend work, Clause 29.12 of the Agreement provides:
29.12 Employees who work on a Public Holidays shall be paid at the Award public
holiday rates of pay.
The relevant provisions of the Award for the determination of the dispute are Clauses 21.5(b) and 30.2 and of the Award. They provide:
21.5 Overtime rates—full-time and guaranteed wage employees—shift work
…
21.5(b) A full-time or guaranteed wage shift worker required to work overtime that is not continuous with the commencement or conclusion of a shift in which their ordinary hours of work are performed will be paid:
(i) 200% of the ordinary hourly rate for Monday to Saturday;
(ii) 250% of the ordinary hourly rate for Sunday;
(iii) 250% of the ordinary hourly rate for day and evening shifts worked
on a public holiday; and
…
(iv) 300% of the ordinary hourly rate on a night shift on a public holiday.
and
30 Public Holidays
30.2 Where an employee works on a public holiday they will be paid in accordance
with clause 21.3(a) or 21.5(b).
The Deputy President noted[4] that the combined effect of clauses 30.2 and 21.5(b) is that time worked under the Award on a public holiday, be it ordinary rostered hours or overtime hours, is paid at overtime rates, and apart from tradespersons, there was not any entitlement to an additional day off if a worker is rostered to work on a public holiday and in fact works.
The Decision under appeal
The Decision under appeal was largely an exercise of construing the Agreement. The MUA led evidence by witness statement from Mr Warren Smith, the Divisional Deputy National Secretary of the MUA. That statement was received into evidence without objection and there was no cross-examination.[5] The evidence of Mr Smith went to historical provisions at the Respondent and the industry generally, and evidence of bargaining for the Agreement. The Respondent led no evidence.
The Deputy President noted that the principles for interpreting enterprise agreements were distilled by the Full Bench of the Commission in AMWU v Berri Pty Limited[6] (“Berri”) and the Federal Court in James Cook University v Ridd.[7] The Deputy President also noted:[8]
Both parties argue that words used in clause 29.12 of the Agreement have a “clear and unambiguous” meaning in their ordinary context. However, the parties do not agree on what that clear and unambiguous meaning is.
Regarding the ordinary meaning of the words of the Agreement, read as a whole and in context, the Deputy President noted that in every other clause of the Agreement where a loading is specified, the underpinning rate is also specified, as one of three different “rates”, being ordinary time rates of pay, secondary rates of pay and the Award public holiday rates.
The Deputy President found that the ordinary meaning of the words in clause 29.12, read in the context that every other comparable surrounding provision in the Agreement specifies the rate at which the entitlement is be paid, pointed towards clause 29.12 specifying both the Award loadings and the rates to which loadings must be applied.
Regarding historical provisions and annualised salaries, while acknowledging that award and agreement histories can illuminate the present, particularly if a specific provision is a product of history, out of which it grew to be adopted in its present form,[9] the Deputy President found the history of the provisions did not shed any light on the words used in clause 29.12, or bring any ambiguity or obscurity that is not seen on the face of the Agreement itself.
The Deputy President noted that the one important difference between the 2015 and 2021 Agreements was the introduction of the annual salary arrangement, and to the extent that it might be said that clause 29.12 should be applied in a way consistent with earlier agreements, the strength of that argument, and the nexus with previous provisions, was significantly reduced because of the introduction of the annual salary.
In dealing with a MUA submission that use of the Award hourly rates was inconsistent with surrounding provisions in the Agreement that touch upon similar circumstances, thereby creating an anomaly, the Deputy President noted that surrounding provisions of the Agreement were not consistent and referred to three different “rates”. As a result, the more consistent way to read clause 29.12 was to assume that it, like all of the other comparable provisions, specifies both the penalty loading and the rate to which it is applied.
Further, applying the interpretation urged by the Respondent did not give rise to anomalous pay outcomes as alleged by the MUA.
While the words of clause 29.12 that were agreed between the bargaining representatives and voted on by the employees could have been much clearer, the reference to Award percentage public holiday loadings was found to be a logical and common drafting device. Every other comparable provision of the Agreement specified both the loading and the rate to which the loading is applied.
Grounds of appeal and submissions
The MUA relied on seven grounds of appeal, being:
1. The Deputy President erred in finding that the ordinary meaning of the words “Award public holiday rates of pay” in clause 29.12 of the Agreement read in context is the percentage loadings in clause 21.5(b) of the Stevedoring Industry Award apply to the Stevedoring Industry Award rates of pay and thereby failed to correctly construe and give effect to the plain and ordinary meaning of the words “Award public holiday rates of pay” in clause 29.12 of the Agreement, including having regard to their context and purpose.
2. The Deputy President erred in finding that the Appellant’s case did not satisfactorily explain how or why the words “Award public holiday rates of pay” in clause 29.12 of the Agreement should not be read to mean something different to the other rates referred to in the Agreement.
3. The Deputy President erred in finding that using the Stevedoring Industry Award rates of pay does not produce an outcome that is objectively anomalous.
4. The Deputy President erred in relying on the underpinning Stevedoring Industry Award rates to ground his finding that the differential between part – time public holiday rates of pay using the Stevedoring Industry Award rates of pay and part – time evening shift rates of pay under the Agreement does not produce an outcome that is objectively anomalous.
5. The Deputy President erred in finding that the distinction between voluntary and involuntary work on public holidays does not advance the Appellant’s contention that the ordinary rate of pay under the Agreement is the applicable rate of pay for work on a rostered - on shift on a public holiday in accordance with clause 29.12 of the Agreement.
6. The Deputy President erred in finding that clause 29.12 should not be applied in a way consistent with predecessor provisions in predecessor agreements.
7. The Deputy President failed to properly consider, or give sufficient weight to, the evidence before the Commission, including the context in which the Agreement and its predecessors were made.
Appellant’s submissions
Appeal grounds 1,2 and 3
The MUA noted that their primary contention before the Deputy President was that using the Award rates of pay for the purposes of payment for work on rostered shifts on a public holiday in accordance with clause 29.12 of the Agreement was inconsistent with the Agreement rates of pay payable in accordance with the other provisions of the Agreement dealing with payment for work on rostered off shifts and shift extensions on a public holiday. The Appellant, relied on two aide memoires outlining calculations, and contended that such a construction would produce pay outcomes so objectively anomalous that they could not have been intended.
Appeal ground 4
The Appellant submitted that it was irrelevant that the hourly rate of pay for a permanent part–time employee working an evening shift on a non-public holiday, calculated at the ordinary rate in the Agreement multiplied by the applicable shift premium in clause 16.10, or an evening shift on a public holiday, calculated at the Award rate of pay multiplied by the applicable loading in clause 21.5(b) of the Award, were both greater than the underpinning Award rates of pay.
The appropriate comparator was submitted to be the hourly rate of pay under the Agreement for working on a public holiday versus the hourly rate of pay that is payable to the same employee for working a non–public holiday. The Deputy President’s reliance on the Award rates of pay as the appropriate comparator and his comparison between the pay outcomes for permanent part–time employees and permanent full–time employees infected the Deputy President’s process of reasoning and his ultimate finding that the Award rates of pay were the applicable rates of pay under clause 29.12 of the Agreement.
Appeal ground 5
The Appellant submitted that all rostered work under the Agreement, other than work in accordance with clause 27 Overtime, is payable at the ordinary rate of pay. Overtime, including work on a rostered off shift on a public holiday, and shift extensions on a rostered and rostered off shifts on a public holiday, is voluntary and accordingly, paid at the secondary or overtime rate in clause 16.11 of the Agreement. The Deputy President was submitted to have failed to appreciate the significance attached to the distinction between voluntary and involuntary work in the Agreement and in so doing, to have failed to correctly construe clause 29.12.
Appeal grounds 6 and 7
The Appellant noted that the Deputy President acknowledged the significance of history and context beyond the words of an industrial instrument as an aid to the construction. However, having referred to the relevant authority, the Appellant submitted the Deputy President discounted the history of clause 29.12 as relevant context finding that the introduction of the annual salary arrangement and the new wording agreed by the parties rendered such history and context of diminished relevance.
The Appellant submitted, however, that its case below was not that the entitlement for working on a public holiday remained unchanged, or that “new wording” was agreed in relation to the predecessor to clause 29.12, or the rate of pay at which an employee working a rostered shift on a public holiday is paid. Rather, it was the Appellant’s case that the relevant text of clause 29.12 and the rate of pay payable in accordance with that text remained unchanged. In so misunderstanding the Appellant’s case below, the Deputy President failed to address or deal with Mr Smith’s evidence.
Respondent’s submissions
The Respondent submitted that the Commission was correct to conclude that the words in clause 29.12 of the Agreement required the Respondent to pay the percentages stated in clause 21 of the Award (250% or 300%), calculated at the ordinary time rate of pay under the Award. “Award” is a defined term in the Agreement meaning “the Stevedoring Industry Award 2020 or its successor Award.”
The Appellant’s contention that clause 29.12 requires payment of the applicable overtime rates in clause 21.5 of the Award for work on a public holiday multiplied by an employee’s ordinary rate of pay as specified in the Agreement was, in the Respondent’s submission, untenable, and not supported by the language of the Agreement.
The Respondent noted that the Appellant’s contention, that clause 29.12 should be read to refer to rates in the Agreement because all other rates referred to in the Agreement are Agreement rates of pay, ignores not only the plain text of the Agreement but also that clause 29.12 is in different terms to the other terms of the Agreement that specify rates (such as the ordinary rate or secondary rate). The lesser ‘secondary rate’ under the Agreement could be equally applicable if the Appellant’s analysis was to be adopted.
Appeal grounds 1, 2 and 3
The Respondent submitted that the inconsistency between clause 29.12 and other rates of pay provided for in the Agreement asserted by the Appellant did not arise as those rates provided for different circumstances, being rates for rostered on shifts under clause 29.12 and rates for rostered off shift extensions. Further, inconsistency did not arise as all provisions of the Agreement may be complied with without conflict with another.
To the extent that the Appellant contended the Deputy President’s construction would produce pay outcomes so objectively anomalous that they could not have been intended, the Respondent submitted that the calculations relied upon were concerned with rates payable in circumstances that are different to the circumstance of clause 29.12 and do not take into account that in addition to the payment under clause 29.12 an employee working on a rostered shift on a public holiday also receives the annual salary component for the day. Further, there is no ‘legislative intent’ from the other provisions of the Agreement that support the Appellant’s departure from the literal meaning of clause 29.12.
Appeal ground 4
The Respondent submitted that, while the Appellant submitted otherwise, the provisions of the Agreement do not suggest an “appropriate comparator” as the hourly rate payable under the Agreement for an employee working on a public holiday and non-public holiday. Nor do the provisions of the Act support the Appellant’s interpretation.
The Respondent further noted that the Appellant’s submission ignores the introduction of the annual salary arrangement as an important difference identified by the Deputy President between the 2015 Agreement and the Agreement. The difference with the Agreement whereby every full time employee is paid an annual salary was a significant development that provides important context. The Appellant’s submission also ignores that employees receiving a payment under clause 29.12 receive the annual salary component for the day in addition.
Appeal ground 5
The Respondent submitted the Deputy President was correct to identify a problem with the Appellant’s construction of clause 29.12, being that there are two rates that apply under the Agreement, the ordinary rate and secondary rate. The secondary rate is payable for overtime, for voluntary work, and rostered on work on a public holiday, unlike other rostered work, which is voluntary[10], and which, as the Appellant acknowledges, is not paid at the secondary rate.
Appeal grounds 6 and 7
The Respondent noted that it is well settled that evidence of surrounding circumstances will not be admitted to contradict the plain language of an agreement. The words “at the Award public holiday rates of pay” can only be the rates of pay in the Award. The words are not ambiguous or susceptible of more than one meaning.
The task of interpreting clause 29.12 included considering the context in which clause 29.12 appeared in the Agreement, which necessarily involved recognition of the introduction of the annual salary concept in the Agreement, inclusive of ordinary rates of pay and shift premiums, and the separate entitlement for employees rostered on a public holiday to receive payment under clause 29.12, in addition to the component of annual salary for that day’s work.
Appellant’s submissions in reply
The Appellant submitted the ordinary meaning of the phrase “at the Award public holiday rates of pay” is not plain, and the Appellant’s contended construction does not seek to re–write clause 29.12. The language and purpose of all other comparable provisions of the Agreement confirm that work in accordance with the Agreement is paid at Agreement rates of pay, and inconsistency arises from the Deputy President’s construction.
The Appellant maintained that anomalous outcomes arise from the Deputy President’s interpretation, disputed that all work on a public holiday is voluntary as employees can be forced to work in accordance with clauses 29.2 and 29.8 of the Agreement, and submitted the introduction of annualised salaries did not alter the text of clause 29.12 nor the rate at which it is paid.
Principles on appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker.[11]
An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[12] There is no right to appeal under the Act and unless an enterprise agreement provides to the contrary, an appeal may only be made with the permission of the Commission.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error,[14] or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[16]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[17] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[18] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
The Decision under appeal did not involve the exercise of discretion. It was concerned with determining the appropriate rate of pay on which to calculate holiday pay under the Agreement by interpreting the Agreement. There is no discretionary element involved in that task. It follows that our task on appeal is to determine whether the interpretation of the Agreement adopted by the Deputy President is correct.[19] If the instrument was erroneously interpreted or the facts erroneously applied to its proper interpretation then it is open for an appellate bench to grant the appeal. Accordingly, the question on appeal, as concerns the Deputy President’s interpretation of the Agreement, is whether his interpretation was correct.[20]
Consideration
Permission to appeal
On the question of whether the Appellant requires permission to appeal, we reproduce Clause 14.6 of the Agreement in its entirety below:
14.6 If the FWC arbitrates the dispute:
14.6.1 It may also use the powers that are available to it under the Act, and
14.6.2 An appeal may be made against the decision.
Clause 14.6.2 does not provide an automatic right of appeal to the Appellant, despite the Deputy President having arbitrated the dispute. Clause 14.6.2 provides that an appeal ‘may be made against the decision’. This does no more than reflect the default position of conditional capacity to appeal decisions of the Commission to a Full Bench under s 604 of the Act.[21] Accordingly, permission to appeal is required.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[22] As we are not persuaded that the Decision is attended by an appealable error, and we consider that the Deputy President’s conclusion was correct, we have decided to refuse permission to appeal. Our reasons for that conclusion are set out below.
Was the Deputy President’s interpretation of clause 29.12 correct?
The principles applicable to the proper construction of an enterprise agreement were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel).[23] The summary of the applicable principles set out in Golden Cockerel was modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)[24] to take account of the discussion by the Full Bench of the extent to which evidence of prior negotiations and positions adopted in negotiations might be called into aid construction in light of the statutory scheme under which an enterprise agreement is made and the fact that it is made when a majority of relevant employees vote to approve the agreement. As the Deputy President observed, the Federal Court recently applied substantially the same approach to Berri in James Cook University v Ridd.[25]
As with construing a statute, the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered.
We consider that the Deputy President correctly applied the applicable construction principles and approached the task of construing the Agreement in an orthodox way.
Clause 29.12 of the Agreement specifies payment for rostered work on a Public Holiday at “… the Award public holiday rates of pay”. The meaning of this phrase is plain and unambiguous, grammatically capable of only one meaning, and requires payment of the rates of pay payable under the Award for rostered work on a public holiday. The rates of pay are determined by applying the relevant Award public holiday loading to the relevant minimum Award rate of pay.
The Appellant’s approach disregards the existence of three possible reference rates under the Agreement, and the difficulty that the lesser “secondary rate” under the Agreement could equally apply if its analysis was to be adopted.
The Deputy President was correct to reject the submission that anomalies arose from the Respondent’s interpretation of the Agreement, and correct to observe (without objection) that, generally:
(a) The Respondent’s interpretation resulted in the total amount to be paid for a full shift worked on a public holiday of approximately 2.5 days’ pay at Agreement rates, or approximately 4.2 days’ pay at Award rates; and
(b) The Appellant’s construction resulted in the total amount to be paid for a full shift on a public holiday of approximately 3.5 days’ pay at Agreement rates and approximately 6 days’ pay at Award rates.
Insofar as the Deputy President relied on context in interpreting clause 29.12, he correctly applied the principles outlined in Berri, having regard to the introduction of annualised salaries with the Agreement, involving as they did components of ordinary rates of pay and shift premiums, and the fact that employees rostered on a public holiday also receive a component of annual salary for a day’s work on public holidays.
Conclusion
The Deputy President was required to resolve the dispute in the manner authorised by the dispute resolution provision in the Agreement. This required him to interpret the relevant provisions of the Agreement correctly and apply them to the questions that had been put to him in order to determine the dispute. This is what he did. His analysis was correct, and the Decision was not affected by error.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
16 March 2023, for the Appellant.
13 March 2023, for the Respondent.
[1] [2022] FWC 3331.
[2] Ibid at [3] to [6].
[3] Ibid at [7] and [73].
[4] Decision at [15] and [16].
[5] Transcript PN 5.
[6] (2017) 268 IR 285 at 310, [2017] FWCFB 3005 at [114].
[7] (2020) 278 FCR 566, (2020) 298 IR 50, [2020] FCAFC 123 at [65].
[8] Decision at [6].
[9] Decision at [55] referring to Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518, [1993] FCA 72 at [7]-[8].
[10] Agreement at Clauses 29.2 and 29.8.
[11] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[12] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ. (Coal and Allied Operations Pty Ltd).
[13] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[15] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[16] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[17] Wan v AIRC (2001) 116 FCR 481 at [30].
[18] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[19] Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [7].
[20] Energy Australia Yallourn Pty Ltd T/A Energy Australia v Construction, Forestry, Mining and Energy Union[2017] FWCFB 3574 applying Pawel v AIRC [1999] FCA 1660.
[21] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 7163; and Sydney International Container Terminals Pty Limited T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCFB 87.
[22] Wan v AIRC (2001) 116 FCR 481 at [30].
[23] [2014] FWCFB 7447.
[24] [2017] FWCFB 3005.
[25] (2020) 278 FCR 566, (2020) 298 IR 50, [2020] FCAFC 123 at [65].
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