Construction, Forestry, Mining and Energy Union v Iluka Resources Limited
[2011] FWA 7922
•16 NOVEMBER 2011
[2011] FWA 7922 |
|
DECISION |
Fair Work Act 2009
s.229—Bargaining order
Construction, Forestry, Mining and Energy Union
v
Iluka Resources Limited
(B2011/3852)
COMMISSIONER WILLIAMS | PERTH, 16 NOVEMBER 2011 |
Application for bargaining order.
[1] This decision deals with an application made by the Construction, Forestry, Mining and Energy Union (the CFMEU) under section 229 of the Fair Work Act 2009 (the Act). The Respondent is Iluka Resources Limited (Iluka).
Background
[2] Iluka in Western Australia conducts operations mining and processing titanium minerals and zircon. The company also conducts mining and processing operations in South Australia and in the Murray Basin in Victoria.
[3] In Western Australia some of Iluka’s employees are covered by a collective agreement, the Iluka Resources Limited Union Collective Workplace Agreement 2007−2010 (the existing collective agreement). This agreement has a nominal expiry date of October 2010. Other employees are covered by Australian Workplace Agreements or ITEAs.
[4] Since May of 2011 Iluka has been involved in the process of bargaining for an enterprise agreement to replace the existing collective agreement. The CFMEU is one of three bargaining representatives appointed by employees to represent them in those negotiations.
[5] In mid-October 2011 Iluka put a proposed agreement to its employees for a vote by secret ballot.
[6] The CFMEU conducted a vote no campaign against the agreement being accepted by employees.
[7] At the time of the ballot there were 165 employees eligible to vote. The results of the ballot were 76 valid yes votes and 76 valid no votes.
[8] Following this tied vote the company advised the bargaining representatives including the CFMEU and its employees that it intended to conduct a second ballot of its employees.
[9] The CFMEU subsequently advised Iluka that they objected to the company conducting a second ballot and that they wished to continue bargaining with Iluka and resume negotiating on the terms of the agreement.
[10] In reply Iluka has advised its employees and all the bargaining representatives, including the CFMEU, that it will not be resuming bargaining but will put the same proposed agreement to a second ballot of its employees.
[11] The evidence of Iluka is that the access period for the proposed enterprise agreement begins on 11 November 2011 and employees are being advised that voting for the proposed enterprise agreement will open on 19 November 2011 and close on 29 November 2011.
The orders sought
[12] The CFMEU seek the following orders:
“1. Iluka Resources Limited (the Employer) is to desist from seeking approval for a proposed enterprise agreement under the Act until the conditions of paragraph 2-4 below have been met, or until further order.
2. The Employer is to provide each employee bargaining representative with a copy of this Order. The Employer shall also provide a copy of this Order (where practical) to each employee covered by the proposed enterprise agreement by company email. The Employer shall also affix this Order on company notice boards at each of its workplaces to be covered by the proposed enterprise agreement.
3. The Employer and the employee bargaining representatives shall meet at least weekly over the next four weeks and shall negotiate in good faith with the shared aim of reaching a mutually acceptable enterprise agreement to be put to employees for approval. The Employer shall provide the reasonable paid leave and resources for bargaining representatives to participate properly in negotiations. Any dispute about the operations of this clause may be brought back to Fair Work Australia (as presently constituted) at short notice for determination.
4. At the conclusion of the four weeks of negotiations, the Applicant and the Employer shall report back to Fair Work Australia as presently constituted on [insert date] as to the progress of negotiations. The disposition of this matter shall be determined at this report back hearing.
5. In the event that the Employer and employee bargaining representatives have agreed mutually satisfactory terms for an enterprise agreement before the report back date in paragraph 4, the Applicant and the Employer may jointly apply for this Order to be rescinded.”
The evidence
Events prior to the secret ballot
[13] Evidence was given by Mr G. Wood who is the Secretary of the CFMEU Mining and Energy Division of Western Australia. Mr Wood had acted on behalf of the Applicant’s members in the bargaining negotiations with Iluka.
[14] Evidence was also given by Mr S. Stock who is the Human Resources Manager Australian Operations for Iluka. Mr Stock represented Iluka in the bargaining negotiations.
[15] The parties generally agree on the historical chronology of the negotiations.
[16] On 30 May 2011 Iluka provided to its employees a Notice of Employee Representational Rights.
[17] The CFMEU and two employees, Mr Cavallaro and Mr Denham were appointed by employees as bargaining representatives.
[18] The evidence of Mr Stock was that 10 employees advised Iluka that the CFMEU was appointed as their bargaining representative. A further 25 employees advised Iluka that Mr Wood was appointed as their bargaining representative.
[19] Six employees advised that Mr Cavallaro was appointed as their bargaining representative, including himself.
[20] Seven employees advised that Mr Denham was appointed as their bargaining representative, including himself.
[21] As Iluka pointed out in the hearing of this matter the application is brought by the CFMEU only, not any of the other bargaining representatives. Mr Wood is not an applicant in this matter.
[22] Bargaining meetings began in late June 2011 and between that date and 1 September 2011 five meetings were held. Mr Wood attended all of those meetings. Mr Cavallaro attended all but the last of these meetings. Mr Denham only attended the last three of these meetings.
[23] Iluka provided to the parties at the first meeting a proposed agreement and in the second meeting the CFMEU responded with their proposals for changes and requests for certain information.
[24] These meetings generally lasted 1 to 2 hours in duration although Mr Stock's evidence was a meeting on 4 August 2011 went for approximately 5 hours.
[25] In early September 2011 following the fifth meeting correspondence was swapped backwards and forwards between Mr Wood and Iluka regarding issues in dispute.
[26] In mid-September Mr Stock held separate meetings with Mr Cavallaro and then Mr Denham and then with Mr Wood to discuss the outstanding issues they had.
[27] Following further correspondence from Iluka to the bargaining representatives, Mr Stock on 29 September 2011 met with Mr Wood and they discussed those clauses on which they still had fundamental differences.
[28] On 30 September 2011 Mr Stock emailed Mr Wood attaching a new version of the proposed agreement and advising this was Iluka's final offer. Mr Stock further advised that Iluka intended to take the agreement to the employees for a vote. 1
[29] His e-mail concluded as follows:
“Gary as mentioned yesterday we are keen to get your endorsement of what we believe is a fair and reasonable agreement. We appreciate the efforts of all bargaining representatives. Bargaining has been carried out in good faith and consensus has been achieved across the majority of the agreement. Can you please advise within 48 hours of your intentions. As mentioned on Thursday we now intend to take the agreement to eligible employees in October.
Regards.”
[30] In response to this email from Mr Stock Mr Wood wrote a letter on 3 October 2011 2 which contains the following opening paragraph:
“ Re : Western Australian enterprise agreement
On receipt of your e-mail of Friday, 30 September 2011 on the above I have considered the responses and provided the following in an endeavour to reach a compromise to enable the ' draft ' Agreement to be presented to the employees on the basis of an ' In Principle ' agreed position:”
[31] Mr Wood’s letter goes on to identify concerns with clause 3, concerns with five elements of clause 9, concerns with two elements of clause 12 and concerns with clause 13, 22, 23 and 24 of Iluka’s proposed agreement.
[32] Mr Wood explains the union's position in the second last paragraph as follows:
“Should Iluka address the issues raised above I am confident we could proceed to make copies of the ' Draft ' Agreement available to employees in a timely manner to achieve the Iluka position.”
[33] The next day Mr Stock wrote to the three bargaining representatives and confirmed the company's position that they would put the proposed agreement to a secret ballot over the period 16 to 21 October 2011. (Note Mr Stock's letter is erroneously dated 3 November, rather than 4 October).
[34] On 5 October 2011 Mr Wood replied to Mr Stock with a letter. 3
[35] In summary the letter advises that the CFMEU will provide a summary of the main points in the proposed agreement to the employees and wish to provide the company with an opportunity to respond to those matters.
[36] The letter says the approach taken by Iluka raises the question of whether the company is bargaining in good faith or the negotiations are proceeding efficiently or fairly.
[37] The letter then lists a series of concerns including that the company has preferred to seek an agreement based on the Iluka Murray Basin Agreement, that some staff of Iluka have made misleading or incorrect representation to employees about the proposed agreement or have made incomplete statements and are not explaining fully the background to some of the matters dealt with in the agreement.
[38] The union complains that the company has failed to respond to its correspondence with 3 October 2011.
[39] The union states that it is premature to commence a rollout of the proposed agreement to employees and that the CFMEU will advise employees to vote no if Iluka proceed to put the proposed agreement to the vote.
[40] The union then requests clarification on the voting methodology.
[41] The union concludes by advising that they are considering all of their options available under the Fair Work Act 2009 should Iluka proceed as indicated in their previous correspondence.
[42] On 6 October 2011 Mr Stock writes a detailed letter in response to the various concerns raised by Mr Wood in his correspondence of 5 October 2011.
[43] Subsequently voting on the agreement was conducted with votes closing on 21 October 2011.
Events after the secret ballot
[44] Iluka advised the employees by email on 25 October 2011 of the results of the voting.
[45] That same day Mr Wood wrote to the company 4 stating that in his view clearly there are significant concerns held by the employees as to the content of the proposed agreement and that he had made those concerns plain to Mr Stock in his correspondence of 5 October 2011.
[46] Mr Wood stated that in his view the proposed agreement will not be approved by employees until those concerns are properly addressed by the company. The letter goes on to state in the penultimate paragraph that:
“In order to progress this issue, I propose that further negotiations be scheduled as a matter of urgency in order to consider the matters that are of concern to employees.
Please contact me so that dates can be scheduled at mutually suitable times.”
[47] The evidence of Mr Stock is that following the result of the vote Iluka decided to hold a second ballot because the first vote was a tie and because there were some invalid votes which appeared to be attempts to lodge “yes” votes and some employees were unable to vote including one who was in hospital, one who was in a remote location and another who was on extended bereavement leave.
[48] Consequently on 2 November Mr Stock emailed employees advising there would be a second vote and he also advised the bargaining representatives including Mr Wood of this.
[49] Separately Mr Stock also that day wrote to Mr Wood in response to Mr Wood’s letter dated 25 October 2011. Mr Stock confirmed that Iluka had decided to hold another vote as soon as possible and stated that in those circumstances Iluka did not believe it was appropriate for them to engage in any further negotiations until the vote is concluded.
[50] The following day on 3 November 2011 Mr Wood wrote to Mr Stock regarding the proposal to re-ballot the employees.
[51] Mr Wood referred to his earlier correspondence of 5 October 2011 which outlines concerns the union had with elements of the proposed agreement and referred to his more recent correspondence dated 25 October 2011 requesting further negotiations.
[52] Mr Wood then states in the third paragraph:
“I have serious concerns that Iluka Resources is not bargaining in good faith and that you have failed to address the matters raised in my earlier correspondence and have refused my request from further negotiations over the terms of the proposed agreement.
Accordingly, I wish to give notice that unless Iluka Resources provides a written commitment to the CFMEU by close of business today that the company will not proceed to a further ballot until there have been further genuine negotiations with the bargaining representatives of employees, the CFMEU will immediately seek appropriate orders in Fair Work Australia.”
[53] In reply Mr Stock the same day, 3 November 2011, wrote to Mr Wood stating that he wished to confirm that Iluka intends proceeding with the second ballot for approval of the proposed agreement.
[54] Mr Stock then states:
“Given that the first ballot resulted in a tied vote (76−76), Iluka believes that the most appropriate course of action is to allow the employees a further opportunity to approve the agreement. In proceeding with a second ballot Iluka does not believe it has failed to comply with its obligations to bargain in good faith.
Iluka will shortly commence communicating with those employees to be covered by the agreement to explain the voting process for the second ballot.”
[55] Consequently the next day 4 November 2011 the CFMEU made this application for bargaining orders.
Consideration
[56] Section 228, 229 and 230 relevantly deal with applications for bargaining orders.
228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
229 Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.
Multi-enterprise agreements
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.
230 When FWA may make a bargaining order
Bargaining orders
(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) FWA must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).
Section 229(4) prerequisites
[57] The Applicant is required to first demonstrate that it has complied with the prerequisites for making an application for a bargaining order that are detailed in section 229 (4).
[58] The Applicant points to the correspondence it sent to Iluka dated 5 October 2011 and on 3 and 5 November 2011.
[59] Mr Wood’s letter to Mr Stock dated 5 October 2011 said that the approach taken by the Iluka and the bargaining process “... certainly raises the question of whether the company is bargaining in good faith, or the negotiations are proceeding efficiently or fairly.”
[60] I am doubtful that this letter does satisfy all of the requirements of section 229 (4).
[61] However the letter Mr Wood sent to Mr Stock dated 3 November 2011, stated as follows:
“Accordingly, I wish to give notice that unless Iluka resources provides a written commitment to the CFMEU by close of business today that the company will not proceed to a further ballot until there have been further genuine negotiations with the bargaining representatives of employees, the CFMEU will immediately seek appropriate orders in fair work Australia.”
[62] Although the time within which to respond was very short overall I accept that in the circumstances this does satisfy the requirements of section 229 (4) of the Act.
[63] Accordingly the Applicant has met the required prerequisites for making an application such as this.
Section 230
[64] Section 230 sets out when the Tribunal may make a bargaining order.
[65] Considering the requirements of section 230 (1) and (2) I accept that an application for a bargaining order has been made and I am also satisfied that Iluka has agreed to bargain for an agreement.
[66] The next critical consideration is with regard to section 230 (2), being whether Iluka's bargaining representatives have not met, or are not meeting the good faith bargaining requirements.
[67] On this the CFMEU points to the general approach throughout the negotiations by Iluka, in particular their pursuit of an agreement similar to the Murray Basin arrangements and what the CFMEU say is a very limited set of concessions made by Iluka.
[68] The CFMEU also raise some ancillary complaints about the lack of response to concerns and questions raised by the CFMEU.
[69] I note that it was always open to the CFMEU to make an application such as this if they seriously were of the view that Iluka had not been meeting its good faith bargaining requirements during the bargaining. However this application has not been made until after the first ballot result was known and then only after Iluka advised that they were putting the proposed agreement to their employees for a second vote.
[70] My conclusion is that prior to the first vote on the proposed agreement the CFMEU did not seriously take issue with the negotiating behaviour of Iluka and notwithstanding the correspondence of Mr Wood dated 5 October 2011 which mentioned doubts about whether Iluka had been bargaining in good faith the union did not have any real basis for complaint in terms of the good faith bargaining requirements but rather was complaining about the position adopted by Iluka and their continued resistance to some of the CFMEU proposals.
[71] Reviewing the evidence of the negotiating activity between the bargaining representatives prior to the first vote on the proposed agreement there is nothing in my view that would support a finding that the bargaining representatives of Iluka had failed to meet the good faith bargaining requirements prescribed by section 228.
[72] Separately from these general complaint, the CFMEU specifically complain that the refusal, following the tied vote on 22 October 2011, to meet with the CFMEU and the other bargaining representatives to resume negotiations and instead acting to put the proposed agreement to a second vote is contrary to the good faith bargaining requirements in section 228 (f).
[73] Section 228 (f) says that it is a good faith bargaining requirement for bargaining representatives to recognise and bargain with the other bargaining representatives for the agreement. The CFMEU argue that since the tied vote Iluka have refused to bargain with the other bargaining representatives.
[74] Certainly the evidence supports the CFMEU's submission. Following the tied vote the CFMEU undoubtedly did request that they meet with Iluka and resume bargaining and Iluka has advised the CFMEU that it will not do this.
[75] The context for Iluka’s refusal to meet with the other bargaining representatives to continue bargaining however is that it intends to proceed with a second ballot to again seek approval of the proposed agreement in the wake of the first ballot that resulted in a tied vote.
[76] When declining the CFMEU's invitation to resume bargaining, Iluka advised that following the tied vote in its view the most appropriate course of action was to allow the employee’s a further opportunity to approve the agreement.
[77] The evidence is that Iluka is arranging for a second secret ballot to be conducted and voting will open on 19 November 2011 and close on 29 November 2011.
[78] Obviously the CFMEU hold a different view, which is that following the tied vote the bargaining representatives should resume negotiations and potentially then develop a revised draft agreement that could then be put to the employees for a vote.
[79] The CFMEU represents 10 employees, a small minority of the more than 165 affected employees. The evidence is that the two other bargaining representatives, representing a total of 13 employees, have not approached Iluka requesting that bargaining meetings be resumed.
[80] The CFMEU's approach is that it requires the Tribunal to implicitly determine that following the first tied vote that of the two proposed courses of action, either resuming bargaining or having a second vote, one is correct and the other not. The correct view however is that neither is to be preferred over the other and both are legitimate approaches to this unusual situation. It is not obvious that seeking a second vote is wrong because it is contrary to the good faith bargaining requirements.
[81] The situation the parties find themselves in is that the employees have voted on a proposed agreement and the outcome of that vote was a tie. That is a most unusual situation.
[82] Iluka's decision not to continue bargaining with the other bargaining representatives is not a simple refusal to recognise or bargain with them but rather the side effect of their view that the appropriate response to the tied vote is to have a second vote. Other minds may see other approaches as being preferable but it cannot be said that there is anything improper in asking the employees themselves who will be subject to the proposed agreement, to participate in a second secret ballot to determine whether or not they will approve the agreement.
[83] As a general proposition that Tribunal should not unnecessarily interfere in the process of bargaining between the parties. Other cases have, when similar orders have been sought, also identified the concern that granting similar orders to those sought by the CFMEU must not fall foul of s. 255 which obliges the Tribunal not to make orders that have the effect of requiring employees not to approve a proposed agreement. 5
[84] Section 230 which prescribes when Fair Work Australia may make a bargaining order says that the making of such orders is discretionary and section 230 (1) (c) reinforces this as it requires Fair Work Australia to be satisfied that it is reasonable in all the circumstances to make the order.
[85] The CFMEU and Iluka have alternate views on how to move forward following the tied vote. Both approaches are legitimate.
[86] This application is bought by the CFMEU on behalf of a small group of employees and it should be remembered that if the majority of employees also believe there should be further negotiations and changes should be made to the proposed agreement then they can vote no in a second ballot and the agreement will not be approved.
[87] The CFMEU raised a concern about the fact that there are employees working at Eneabba who have been engaged since the first vote and so will be eligible to vote in any second ballot. It is not clear why I should conclude that Iluka’s preference for a second vote amounts to a failure to bargain in good faith simply because of this development. Even under the CFMEU's preferred approach there will eventually be a second ballot and these employees will vote on that occasion.
[88] The general question of whether the holding of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements was considered by a Full Bench of Fair Work Australia in Construction, Forestry, Mining and Energy Union-Mining and Energy Division and Tahmoor Coal Pty Ltd at [2010] FWAFB 3510. At paragraph [30] the Full Bench concluded:
“We deal now with the ballot of employees. Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor’s words: “an impasse”. Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor’s latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. However it is put, we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time.”
[89] In this case I am satisfied that the CFMEU and the other bargaining representatives have reached an impasse in the negotiations with Iluka. I am also satisfied that the CFMEU and the other bargaining agents have had a reasonable opportunity to consider and respond to Iluka’s final proposal. I accept that that the negotiations prior to the first vote had reached a stage where Iluka was entitled to put its proposed agreement to a ballot in order to see if progress could be made and the fact there has been a ballot with a tied vote does not change this. For all of the reasons explained above I am also satisfied that in the particular circumstances of this case Iluka’s decision to put the proposed agreement to a second vote of employees is not a breach of the good faith bargaining requirements.
[90] The actions of Iluka are not such that it can be said they have breached the good faith bargaining requirements. In any event if I am wrong on that point the particular highly unusal circumstances of this matter are such that I am not satisfied it would be reasonable to make any order even if the good faith bargaining requirements have not been met
COMMISSIONER
Appearances:
Mr T Kucera of counsel, for the Construction, Forestry, Mining and Energy Union.
Mr S Harben of counsel, for Ilkua Resources Limited.
Hearing details:
Perth
2011
9 November 2011
1 Witness statements of Mr Stock paragraph 40.
2 Annexure 19 to Mr Stock's witness statement.
3 Annexure 21 to Mr Stock's witness statement.
4 Annexure 26 to Mr Stock's witness statement.
5 [2010] FWA 942; [2009] FWA 202.
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