Construction, Forestry, Mining and Energy Union v Lendlease Engineering Pty Limited
[2017] FWCFB 4001
•14 AUGUST 2017
[2017] FWCFB 4001
The attached document replaces the document previously issued with the above code on 14 August 2017.
Referencing errors have been amended.
Associate to Vice President Catanzariti
Dated 15 August 2017
| [2017] FWCFB 4001 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Lendlease Engineering Pty Limited
(C2017/3377)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 AUGUST 2017 |
Appeal against decision [2017] FWC 3080 of Commissioner Roe at Melbourne on 6 June 2017 in matter number AG2017/1537.
[1] On 6 June 2017, Commissioner Roe issued a Decision, 1 whereby he approved the Lendlease Engineering Pty Ltd New South Wales Enterprise Agreement 2016 (“the Agreement”) made by Lendlease Engineering Pty Limited (“the Respondent”) pursuant to section 185 of the Fair Work Act 2009 (Cth) (“the Act”).
[2] On 22 June 2017, the Construction, Forestry, Mining and Energy Union (“the Appellant”) lodged a Notice of Appeal, appealing the Decision of Commissioner Roe. We heard the appeal on 26 July 2017 and reserved our decision. At the hearing, Mr I. Latham, of Counsel, sought permission to appear for the Appellant and Mr Y. Shariff, of Counsel, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.
The Decision at First Instance
[3] The Commissioner noted that the issues in contention before him were:
1. The unions argued that some employees did not receive a copy of the Agreement and the notice concerning the vote. The unions submitted that the employer did not take all reasonable steps to notify the relevant employees of the time and place at which the vote would occur and the method of voting.
2. The unions submitted that documents which are incorporated by reference in the Agreement were not provided, or reasonable access to them was not provided throughout the access period.
3. The unions argued that some employees did not have a reasonable opportunity to vote and given the closeness of the vote, this may have affected the outcome.
4. The unions argued that employees did not receive adequate explanation of the Agreement and the effect of the Agreement because some were unable to attend meetings as they were already on leave.
5. The unions argued that the Respondent misled employees by the inclusion in the Agreement of a provision which indicated that the unions were likely to seek to be covered by the Agreement. This wrongly gave employees the impression that the unions supported the Agreement.
6. The unions argued that the provision which notes that the unions were likely to seek to be bound by the Agreement is an unlawful term because it is an attempt to coerce the unions to be covered by the Agreement.
7. The unions argued that the requirements of section 187(2) of the Act regarding good faith bargaining were not met, or in the alternative, there was a lack of genuine agreement (section 188(c) of the Act) because of:
● The timing of the access period. Employees had inadequate opportunity to get advice from their bargaining representatives or to discuss the issue amongst themselves due to the Easter and Anzac Day weekends falling during the access and voting period;
● The Respondent misled the unions who were expecting to receive a revised document and that voting would not occur over the Easter period; and
● The Respondent was aware that at least one of the key union officials would be on leave over the period.
[4] The Commissioner found that the Respondent took all reasonable steps; to notify the relevant employees of the time and place at which the vote would occur; to notify the relevant employees of the method of voting; and to provide employees with a copy of the Agreement pursuant to sections 180(2) and (3) of the Act.
[5] The Commissioner was satisfied that providing advice about the relationship between the Building and Construction General On-site Award 2010 (“the Award”) and the Agreement, together with a link to the Award was sufficient in the circumstances of this case to meet the test of taking “all reasonable steps” to provide employees with or with reasonable access to any material incorporated by reference to the Agreement pursuant to section 180(2) of the Act.
[6] The Commissioner found there was no basis for concluding that employees were denied a reasonable opportunity to vote or that employees’ votes were not counted. The Commissioner noted there was no suggestion that employees who were not eligible to vote, voted, or that employees who would be covered by the Agreement were excluded from the voting roll, or that employees were coerced or misled, or that the integrity of the ballot was compromised. The Commissioner held that the rate of participation in the ballot was high and was satisfied that a valid majority of those who voted, albeit a narrow majority, supported the Agreement.
[7] The Commissioner was satisfied that the Respondent took all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained, taking into account the particular needs and circumstances of employees pursuant to section 180(5) of the Act.
[8] The Commissioner noted the Appellant’s contention that the Respondent misled employees by the inclusion in the Agreement of a provision which indicated that “it is anticipated that the Unions will give notice to the FWC pursuant to s183 of the Act in order that this Agreement will cover them” (Clause 1.4 of the Agreement). In this regard, the Commissioner highlighted that the Appellant asserted this wrongly gave employees the impression that the unions supported the Agreement. The Commissioner found that the clause did not say that the unions will be covered by the Agreement, but rather, that it is likely that they will seek to be covered. Thus, the Commissioner was not satisfied that the coverage clause misled employees.
[9] The Commissioner also held that the clause did not say that the unions will be bound by the Agreement. The Commissioner found that the clause allows for the possibility that the unions may decline to be covered by the Agreement and, therefore, was not satisfied that the clause represented an attempt to coerce the unions to be covered by the Agreement.
[10] The Commissioner had regard to whether the Respondent breached its good faith bargaining obligations, or if there was a lack of genuine agreement. In this respect, the Commissioner was satisfied that the actions of the Respondent in misleading the unions about when the ballot would occur and about their intention to provide employees with a copy of the revised document, and in failing to provide the document to the unions as promised prior to initiating the ballot, was conduct inconsistent with their good faith bargaining obligations. However, having regard to the Explanatory Memorandum, the Commissioner held that section 187(2) was not relevant in the circumstances. The Commissioner noted the Appellant’s contention, in the alternative, that the Agreement should not be approved because of the operation of section 188(c) which requires that an enterprise agreement be genuinely agreed. In this regard, the Commissioner was not satisfied that there were other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
The Appeal
[11] At the heart of the appeal is whether the Commissioner correctly applied and construed the various sections of the Act in approving the Agreement.
[12] We note the Appellant and the Respondent filed extensive submissions in relation to the appeal before us. In this regard, we have considered all the material and will only briefly summarise those submissions.
Appellant’s Submissions
[13] We summarise the submissions of the Appellant into three main grounds of appeal as follows.
[14] First, grounds 1 to 3 contended the Commissioner erred as a matter of law in finding that the Agreement complied with sections 186(2)(a) and 188(c) of the Act, notwithstanding that the Agreement contained a clause, namely clause 1.4, which when read in context with clauses 1.3 and 1.5 and the signing page, made a false and misleading representation.
[15] The Appellant contended that clauses 1.3 and 1.5 of the Agreement contained a representation by the Respondent to its employees to the effect that, if the Agreement was approved, the future intention of the Appellant was to exercise its workplace right under section 183 of the Act to give the Commission notice stating that it wished to be covered by the Agreement with annotation under section 201(2) of the Act, including for the purposes of section 52 of the Act. Having regard to the chronology of events, particularly those referred to at paragraphs 17(a), (e), (f), (g), (l) and (n) of its submissions, the Appellant contended that such a representation was knowingly misleading by the Respondent. In this regard, the Appellant asserted the representation was in contravention of section 345 of the Act, although this is a matter for formal consideration elsewhere. The Appellant submitted that Commissioner Roe did not address the question of whether the representation was misleading and, in failing to do so, he miscarried his exercise of discretion.
[16] Second, grounds 4 to 6 asserted that the Commissioner erred as a matter of law in finding that the Agreement complied with sections 186(2)(a) and 188(c), notwithstanding his findings at [64] of the Decision. The Appellant contended that the conclusion that section 188(c) is limited to matters which only affect the integrity of the vote is wrong on the authorities and the Commissioner provided no authority in support of this proposition. The Appellant asserted that, in circumstances where such a misrepresentation was made (contrary to section 345 of the Act), it is not for the Appellant to provide evidence “sufficient to establish that it is likely that the conduct of which the unions complain affected the integrity of the ballot.”
[17] The Appellant referred to CFMEU v BHP Coal Pty Ltd, 2 and noted that the Full Federal Court held:
“A representation is misleading if it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39]. Of course, it is possible that a half-truth or an ambiguous remark or even silence may have this tendency (Justice JD Heydon AC, Thomson Reuters, Trade Practices Law – Competition and Consumer Law, vol 3 (at Service 178) [190.150]). But the words in the documents must be read in context …” 3
[18] The Appellant also contended that it is clear that misrepresentations expressed in terms of anticipated future outcomes may be a misrepresentation under the Act. 4 Therefore, the Appellant asserted that the Commissioner should not have approved the Agreement and the Full Bench should quash the approval.
[19] Third, grounds 7 to 9 submitted the Commissioner erred as the Respondent had failed to take all reasonable steps to ensure that during the access period for the proposed agreement, the relevant employees, employed at the time, who were to be covered by the proposed agreement were given copies of other material incorporated by reference in the proposed agreement, namely, the Award and the Building Code. The Appellant contended that the test posited by Commissioner Roe is not supported by authority and that the approach of the Commission in CFMEU v Sparta Mining Services 5 (“Sparta Mining”) and National Tertiary Education Industry Union v Swinburne University of Technology6 (“NTEU”) should be preferred.
Respondent’s Submissions
[20] The Respondent responded to each of the grounds of appeal contended by the Appellant.
[21] In relation to grounds 1 to 3, the Respondent submitted that clause 1.4 could only have been a statement as to an anticipated state of affairs and that it was a belief, not a statement which conveyed an actual fact. 7 The Respondent had regard to [29] of the Appellant’s submissions at first instance and contended that as the Appellant conceded the clause “may” have been misleading, not actually misleading. The Respondent asserted that Commissioner Roe’s conclusion at [50] of the Decision dealt with the precise contention that was advanced by the Appellant in its written submissions. The Respondent also submitted that the Appellant changed its case at [48] of its submissions. In this regard, the Respondent asserted the Appellant should not be permitted to raise new matters on appeal that it had not raised in the proceedings at first instance. The Respondent contended that Commissioner Roe was correct to conclude that the clause was not misleading in circumstances where there was no evidence that any employees were misled by the clause.
[22] In relation to grounds 4 to 6, the Respondent submitted that various Full Bench authorities in relation to section 188(c) of the Act are entirely consistent with the observations made by Commissioner Roe. In this regard, the Respondent contended there was no error in the Commissioner’s conclusion at [71] of his Decision.
[23] In relation to grounds 7 to 9, the Respondent asserted the Commissioner made a correct statement of principle at [31] of the Decision and the conclusion he reached at [33] of the Decision was open to him on the evidence. The Respondent also contended that the Commissioner’s finding at [30] of the Decision was correct.
[24] For the above reasons, the Respondent submitted that permission to appeal should be refused and the appeal be dismissed.
Appellant’s submissions in reply
[25] The Appellant contended the Respondent was not correct to say that the requirement of satisfaction necessarily involves the exercise of discretionary power; rather, it may do so and may involve satisfaction as to jurisdiction and fact.
[26] The Appellant further contended that the Respondent breached its good faith bargaining obligations, having regard in particular to [64] of the Commissioner’s Decision. In this regard, the Appellant asserted the Respondent made misleading representations and that finding a representation to be misleading is not dependent upon proof that one was, in fact, misled. The Appellant submitted that the Respondent had distorted the access process to increase the likelihood of agreement, which was not an exercise in genuine agreement. In relation to whether the Respondent had taken “all reasonable steps” pursuant to section 180(2)(a), the Appellant posited that the Commissioner’s finding at [31] of his Decision was not justified by reference to authority. Thus, for the above reasons elicited in its original submissions and in reply, the Appellant contended permission to appeal should be granted, the appeal should be upheld and the Decision of Commissioner Roe quashed.
Consideration – Permission to Appeal
[27] The Commission will grant permission to appeal if it is in the public interest to do so. 8 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.9 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,10 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues 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, it seems to us that none of those elements is present in this case.”
[28] Alternately, other grounds on which permission to appeal may be granted include the decision being attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. 11 It will rarely, if ever, be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as an appeal cannot succeed in the absence of such error.12 However, the mere identification of some error in the decision under appeal may not by itself constitute a sufficient basis for the grant of permission to appeal.13
[29] To the extent that part of the decision making process required to approve an agreement involves the exercise of discretion or satisfaction in relation to statutory criteria, the principles relevant to appealable error in relation to such decisions are well established. An appealable error in a decision involving the exercise of discretion is an error of the kind identified in House v The King. An error in relation to satisfaction is a question as to whether the decision maker has reached a “state of mind which must be formed reasonably and on a correct understanding of the law.” 14
[30] There is an element of overlap between error in relation to a discretionary decision in the House v The King sense and satisfaction error. For the reasons that follow, we are of the view that it matters not to the outcome of this case, whether the Commissioner’s decision is characterised as discretionary or a state of mind.
[31] In determining whether permission to appeal should be granted, we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[32] We now turn to consider whether permission to appeal should be granted.
[33] The Appellant contended that clause 1.4, when read in context with clauses 1.3 and 1.5 and the signing page of the Agreement, made a false and misleading representation that the Appellant’s future intention was to exercise its right under section 183 of the Act to inform the Commission that it wished to be covered by the Agreement. In other words, the Appellant contended this clause was misleading as it wrongly gave employees the impression that the unions had supported the Agreement. We do not agree with this submission.
[34] Clause 1.4 of the Agreement states:
“It is anticipated that the Unions will give notice to the Fair Work Commission (FWC) pursuant to s.183 of the Act in order that this Agreement will cover them.”
[35] In our view, it is clear that clause 1.4 refers to an anticipated state of affairs that may arise in the future, and does not convey an actual fact. The clause does not imply that the Appellant had evinced an intention to be covered by the Agreement. Clause 1.4 merely conveys a belief on the part of the Respondent as to the future intention of the Appellant and the AWU. There is no suggestion that the Respondent did not genuinely hold such a belief. Further, conveying such a belief did not have a tendency to lead a person into error. The reasonableness of the belief and that it did not have a tendency to lead a person into error (here those who were to be covered by the proposed Agreement) was supported by the fact that:
(a) The same clause had been included in the two previous agreements that applied to the enterprise covered by the Agreement;
(b) The CFMEU had, in fact, during the approval of the previous agreements applied to be covered by those agreements;
(c) Mr Maher gave evidence that the clause was included in the Agreement because it was contained in earlier drafts and none of the bargaining representatives raised an issue about the clause; and
(d) As the Commissioner found, it is commonplace for unions to apply to be covered by an enterprise agreement, even when they have not supported the making of the agreement.
[36] In any event, we note that the Respondent asserted in its submissions at first instance (at [29]) that:
“By retaining the clauses relating to CFMEU and the signature page with a space for the CFMEU to sign, the agreement may have misleadingly created the impression to the workers voting that CFMEU was in support of the proposed agreement.”
[37] That is, the Appellant conceded in its submissions the clause “may” have been misleading, not that it was misleading or had actually misled employees. Nevertheless, the Commissioner considered the material before him at [48]-[51] of his Decision in relation to this submission and rejected this contention, concluding that he was “not satisfied that the coverage clause misled employees.” 15 We are not satisfied that the Commissioner erred in relation to his rejection of the contention that the Respondent made any false or misleading representations.
[38] Further, the Appellant contended that the Commissioner erred as a matter of law because, having found that the Respondent engaged in the misleading conduct referred to in paragraph [64] of the Decision, the Commissioner should have found that the agreement had not been genuinely agreed to by the employees covered by the Agreement, contrary to sections 186(2)(a) and 188(c) of the Act. We do not agree with this submission. At [71] of the Decision, the Commissioner had regard to the principles of genuine agreement, stating:
“Section 188(c) goes to matters which affect the integrity of the vote. This includes matters such as misinformation, denial of access, intimidation, or manipulation.”
[39] The Appellant contended that this finding was inconsistent with the authorities. We do not agree with this submission. In KCL Industries, 16 for example, the Full Bench held at [24] that:
“The ‘genuinely agreed’ requirement has its origin in the scheme for the making and certification of collective agreements under the Workplace Relations Act 1996. Section 170LT(6) of that Act (as it was prior to the amendments effected by the Workplace Relations Amendment (Work Choices) Act 2005) provided, as a requirement in order for an agreement with employees to be certified, that ‘a valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement’. In CFMEU v Australian Industrial Relations Commission (Gordonstone) the Federal Court Full Court said that s.170LT(6) ‘plainly betokens a concern with the authenticity and, as it were, the moral authority of the agreement’. An example of the application of Gordonstone under the Workplace Relations Act was Grocon Pty Ltd Enterprise Agreement (Victoria), in which it was held that an agreement had not been genuinely agreed because the employees’ consent was not informed and they were not advised of the consequences of their vote.” (our emphasis)
[40] The discretion afforded under section 188(c) of the Act is broad and, as highlighted above, is generally concerned with the “authenticity” and “moral authority” of the enterprise agreement concerned. In this regard, the Commissioner’s reference to the matters concerned under section 188(c) at [71] of his Decision is consistent with previous authorities. In applying those principles, the Commissioner undertook an orthodox approach and we are not satisfied that the Commissioner’s application was disharmonious when compared with other decisions dealing with similar matters. Therefore, we are not satisfied the Commissioner erred in this regard either at law or in a House v The King sense. We are also of the view that, to the extent that the Commission was required to reach a state of mind in relation to this matter, he did so reasonably and on a proper understanding of the law.
[41] Further, contrary to the Appellant’s submissions, the Commissioner did not state that a breach of the good faith bargaining obligations was never relevant to the determination of a genuinely agreed argument under section 188(c). Instead, in the circumstances of this case, the Commissioner found (at [71]) that the Appellant’s complaints related to the “bargaining process”, as opposed to the actual vote or the integrity of the vote, and that such matters could have been dealt with by a good faith bargaining order. The Commissioner’s reasoning in this regard was not, in our view, erroneous.
[42] The Appellant also contended that the Commissioner erred as a matter of law because section 180(2)(a)(ii) had not been complied with in relation to the taking of steps to provide copies of incorporated documents, being the Award and the Building Codes. Further, the Appellant submitted that the test posited by the Commissioner was not supported by any authority and the approach in Sparta Mining and NTEU should be preferred. We do not agree with these submissions.
[43] In relation to the Award, the question was whether all reasonable steps had been taken to provide access to the Award. In answering this question and construing section 180(2)(a) of the Act, the Commissioner had regard to McDonald’s Australia Pty Ltd; Shop, Distributive and Allied Employees Association. 17 We note at [43] of the decision, it was held:
“References in the Agreement to the NES do not incorporate the terms of the NES into the Agreement. The South Australian Long Service Leave Act 1987 is however incorporated because the terms of the agreement provide for its application in Broken Hill - which is beyond its legislative effect. The benefits are greater than those provided by New South Wales legislation. The laws of the land are available to Australian citizens in a variety of ways. We find that the employer was not required to take any further steps to ensure that the relevant employees had access to the South Australian legislation. Because the legislation is freely available in the public domain, no further steps were required.”
[44] In this regard, the approach formulated in that case was not overruled in NTEU, which was relied upon by the Appellant. In NTEU, it was held at [24] that:
“We are not persuaded a sufficient argument has been made out to revisit the approach taken in McDonalds. We do acknowledge however that there may be cases where the characteristics of the workplace and the composition of the workforce may require more than what that Full Bench indicated was adequate. This is not such a case.”
[45] Further, in Sparta Mining, the Full Bench held that:
“… the subsequent Full Bench decision in National Tertiary Education Industry Union v University of New South Wales left open the possibility that paragraph [43] of McDonalds above may not be universally applicable, but rather that ‘that there may be cases where the characteristics of the workplace and the composition of the workforce may require more than what that Full Bench indicated was adequate’.
[46] Again, Sparta Mining did not overrule the decision in McDonald’s, despite the Appellant’s reliance upon this decision. Rather, the Full Bench merely held that, as Commissioner Roe did at first instance at [31] of his Decision, what constitutes all reasonable steps pursuant to section 180(2) of the Act “will depend on the circumstances”. Thus, we are of the view that the principle elicited by the Commissioner at [31] of his Decision was consistent with previous authorities. In applying this principle, the Commissioner had regard to various factors that related to the nature of the workplace and characteristics of the workforce, consistent with the approach outlined in NTEU at [24]. Subsequently, the Commissioner concluded that the Respondent had met the test of taking “all reasonable steps” pursuant to section 180(2) of the Act at [33] of his Decision. In doing so, the Commissioner undertook an orthodox approach and we are not satisfied that the Commissioner’s application was disharmonious when compared with other decisions dealing with similar matters, nor are we satisfied that the Commissioner erred in the House v The King sense in dealing with this issue. We are also of the view that to the extent that the Commission was required to reach a state of mind in relation to this matter, he did so reasonably and on a proper understanding of the law.
[47] Additionally, the Appellant asserted that the Building Codes were incorporated into the Agreement by virtue of clause 10.6. We are not persuaded by this submission. Clause 10.6 of the Agreement states:
“The decision of the FWC will bind the parties to the dispute, subject to either party exercising a right of appeal against the decision. Any decision or outcome that is made by the FWC in any arbitration or appeal must not be inconsistent with the Building Code 2013, the Code for the Tendering and Performance of Building Work 2016, or if it is replaced, any successor Code, the New South Wales Code of Practice for Procurement, the Implementation Guidelines to the New South Wales Code of Practice for Procurement: Building and Construction (July 2013), or legislative obligations.”
[48] This clause merely outlines that the Commission is prevented from handing down a decision that would be inconsistent with the Building Code or any legislative provisions. In doing so, the clause does not incorporate the Building Code into the Agreement. Thus, we are not satisfied that the Commissioner erred at [29] in concluding that he was not satisfied that clause 10.6 incorporated the Building Code into the Agreement.
[49] We also note that, of the 112 employees covered by the Agreement, 96 employees voted. This is a high participation rate. These matters, together with the other facts and circumstances to which the Commissioner referred in the Decision, support the Commissioner’s conclusion that there was genuine agreement and the other statutory requirements for approval of the Agreement were met.
[50] We are not satisfied that there is an arguable case of error in relation to any other ground of appeal asserted by the Appellant. Further, we have considered whether this appeal attracts the public interest and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The Decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
[51] For the reasons set out above, we are not satisfied that it would be in the public interest or otherwise warranted to grant permission to appeal.
[52] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
I. Latham, of Counsel, for the Appellant.
Y. Shariff, of Counsel, for the Respondent.
Hearing details:
2017
Melbourne via video link to Sydney:
26 July.
1 [2017] FWC 3080.
2 (2015) 230 FCR 298.
3 Ibid 328 [159].
4 Hadgkiss v CFMEU [2008] FCAFC 22 at [75]; 166 FCR 376.
5 [2016] FWCFB 7057.
6 [2015] FCAFC 98.
7 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82, 88.
8 Fair Work Act 2009 (Cth) s 604(2).
9 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [6].
10 [2010] FWAFB 5343, [27].
11 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210, [7].
12 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538.
13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26] – [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
14 Buck v Bavone (1976) 135 CLR 110; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 35 [33] (per Gageler and Keane JJ).
15 [2017] FWC 3080, [51].
16 [2016] FWCFB 3048.
17 (2010) 196 IR 155.
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