CSR Building Products Limited v Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWC 6600
•14 DECEMBER 2021
| [2021] FWC 6600 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.425—Industrial action
CSR Building Products Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(B2021/1188)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 14 DECEMBER 2021 |
Application for an order that protected industrial action by employees be suspended - cooling off
Introduction and background
[1] The applicant, CSR Building Products Limited owns and operates a plasterboard manufacturing and distribution facility which is located at 277 Whitehall Street, Yarraville. The applicant, certain of its employees at the facility and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are covered by the CSR Limited Yarraville Enterprise Bargaining Agreement 2017, the nominal expiry day of which has passed. Since early August 2021, when the applicant gave relevant employees a notice of employee representational rights, the applicant and the CFMMEU in its capacity as a bargaining representative have been bargaining for a proposed enterprise agreement which would replace the current operative agreement. Apart from the CFMMEU, there are no other employee bargaining representatives for the proposed agreement. CSR and the CFMMEU have participated in approximately 13 bargaining meetings since bargaining commenced and the parties remain apart on the quantum of wage increases which will apply during the nominal life of the proposed agreement amongst other issues. Outside of the bargaining meetings, the parties have also exchanged correspondence about proposed wage increases. On 2 December 2021 the applicant proposed wage increases of 2.75 percent per annum with effect from 1 November 2021. The CFMMEU’s position is that wage increases should be four percent per annum.
[2] By an application dated 5 October 2021, the CFMMEU applied to the Commission for a protected action ballot order pursuant to s 437 of the Fair Work Act 2009 (Act). An order was made, and the consequential ballot resulted in the authorisation of the proposed nature of industrial action. The nature of the industrial action authorised was as follows:
• An unlimited number of stoppages of the performance of all work for a specified period (e.g. 1 hour, 2.5 hours or other specified period);
• An unlimited number of stoppages of the performance of all work for an unspecified period (indefinite strike);
• An unlimited number of periodic and/or indefinite bans on the performance of overtime;
• An unlimited number of periodic and/or indefinite bans on the loading and/or unloading of trucks;
• An unlimited number of periodic and/or indefinite bans on call backs;
• A ban on conducting and/or otherwise participating in training;
• An unlimited number of periodic and/or indefinite bans on the use of specified plant and/or machinery (e.g. forklifts); and
• An unlimited number of periodic and/or indefinite bans on tasks related to specified administrative work (e.g. stock take; labelling and/or reporting).
[3] By written notice dated 19 November 2021, the CFMMEU notified the applicant pursuant to s 414(1) of the Act, that the industrial action would commence on 25 November 2021. The nature of that action was specified as:
• An indefinite ban on the performance of overtime;
• An indefinite ban on conducting and/or otherwise participating in training; and
• An indefinite ban on the use of forklifts.
[4] On 24 November 2021, on the basis that the second and third forms of industrial action specified above amounted to partial work bans, as contemplated by s 471 of the Act, the applicant gave written notice, pursuant to s 471(4)(c) of the Act to the CFMMEU and to all employees who would be covered by the proposed enterprise agreement, advising that an employee would not be entitled to any payments while the employee participated in the bans and the applicant refused to accept the performance of any work from such an employee until the employee was prepared to perform all of his or her normal duties.
[5] The relevant industrial action has continued since 24 November 2021 and the relevant employees who are participating in the action have not worked or been paid.
[6] There is no dispute that the relevant industrial action including the subsequent failure or refusal by relevant employees to attend for work is protected industrial action, that it is for a proposed agreement and that the action is being engaged in by relevant employees.
[7] By its application dated 2 December 2021, the applicant applies for an order pursuant to s 425 of the Act suspending protected industrial action. Section 425 requires the Commission to suspend protected industrial action for a proposed agreement that is being engaged in if satisfied suspension of the action is appropriate. Several matters must be considered is assessing whether the suspension is appropriate as follow:
a. whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
b. the duration of the protected industrial action;
c. whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act; and
d. any other matters that the Commission considers relevant.
Consideration
[8] As should be evident from the structure of s 425 of the Act, the exercise of power involves a discretion in the sense that the requirement to order that protected industrial action be suspended involves reaching a state of satisfaction that the suspension is appropriate, taking into account the matters specified.
[9] The enumerated matters in s 425(1)(a)-(d) which inform satisfaction of the requisite state of affairs are plainly mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others.1 They are matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s 425(1) means that each of the matters must be treated as a matter of significance in the decision-making process.2 Taking a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors and a matter is not taken into account by simply being noticed and erroneously discarded as irrelevant.3 However, subject to some qualification the weight given to a particular matter is ultimately a matter for the decision maker.4
[10] The CFMMEU contends that there is a need to ensure that exceptional circumstances are established as a prerequisite to the making an order under s 425 of the Act. For this proposition it relies on what was said by Cambridge C in Oliveri Transport Services Pty Ltd v Transport Workers’ Union of Australia.5 Relevantly in Oliveri the Commissioner said:
“Although the Full Bench in NTEIU was dealing with an application confined to s.424 of the Act, the Decision identifies the need to ensure that exceptional circumstances are established as a prerequisite to the making of Orders under the various provisions of the Act relating to the suspension or termination of protected industrial action.”6
[11] The reference to “NTEIU” is a reference to the following passages from National Tertiary Education Industry Union v University of South Australia:7
“Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:
The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.”8
[12] With respect to the Commissioner, his analysis proceeds upon a misreading of what is said in NTIEU and moreover, finds no support in the text of the provisions at issue. The Full Bench in NTIEU was not saying that there is a need to establish exceptional circumstances before action under Part 3-3 of the Act is taken. Rather the Full Bench was making no more than the unremarkable observation that the circumstances which give rise to the exercise of power, found in the various provisions themselves, are exceptional, that is out of the ordinary course of bargaining and out of the ordinary course of the impact of protected industrial action. The passage from the Explanatory Memorandum extracted in the passages from NTIEU above clearly supports this reading. Moreover, the observation in NTIEU is made in the context of an application under s 424 not s 425 as is evident from the reference to “and where significant harm is being caused by the action” immediately after the reference to “exceptional circumstances”. It is the matters set out in each of the relevant provisions and the evaluation of them which determines whether power may or must be exercised, not any “test of exceptional circumstances” which finds no voice in the provisions. Where the statute intends the existence of exceptional circumstances to guide the exercise of power, the statute makes that requirement expressly clear.9
[13] The decision in NTIEU does not stand for the proposition which the CFMMEU advances and the Decision in Oliveri wrongly concluded or assumed otherwise. It follows that this aspect of the CFMMEU’s contention is rejected.
[14] Turning then to the matters relevant to assessing whether an order for suspension of protected industrial action is appropriate.
[15] The first matter is whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue. A consideration of this matter requires the identification of the matters at issue and assessing whether suspension would be beneficial to the bargaining representative because the suspension would assist in resolving those matters. The suspension must therefore have the result or likely have the result of assisting in the resolution of the matters at issue. Put another way, the suspension must be favourable or advantageous to all the bargaining representatives for the reason that it would or would likely be helpful in resolving the matters in dispute. That it might be beneficial for other reasons, or beneficial only to one or some bargaining representatives is insufficient for the purposes of s 425(1)(a). None of these propositions were disputed. 10
[16] It is also uncontroversial that only a few matters relating to the proposed agreement remain in dispute, the most significant of which is the prosed wages outcome. As at the date of the hearing, the applicant had proposed increasing wages by 2.75 percent per annum for four years while the CFMMEU proposed four percent per annum.
[17] In support of its contention that a suspension of protected industrial action would be beneficial to the bargaining representatives because the suspension would assist in resolving those matters, the applicant relied on the evidence of Mr Nicolaas Christiaan Van Der Mey, the applicant’s Operations Manager and one of its principal negotiators involved in bargaining for the proposed agreement.11 In essence, Mr Van Der Mey’s evidence was that suspension of the protected industrial action would assist in resolving matters in dispute and therefore would be beneficial to the bargaining representatives because a temporary suspension would enable direct exposure by the applicant’s representatives to employees and the current circumstances mean that his ability to communicate directly to employees is very limited and he is not able to hear firsthand from the employees themselves.12
[18] Mr Van Der Mey’s evidence was that on a resumption of work he will be able to speak with employees about the applicant’s proposal and that he wanted to understand reason why the employees reject the proposal.13 He said that once he understands the ‘clear reason’ for the rejection, he could recast the proposal in a way that employees might better value.14 He said that at the moment, “I can’t see that reason”.15
[19] Ms Novela Trbic, the applicant’s HR Manager and other principal negotiator, gave evidence16 about her concern that the current situation of employees not working and not being paid was entrenching the employee’s claim for a wage increase to which the applicant will not agree.17 Ms Trbic proffered a view that a temporary suspension of industrial action would break the current impasse and ultimately result in an agreement being reached within the two-week suspension period sought by the applicant.18 She said that the suspension would enable meeting in person with the CFMMEU and union site delegates in a co-operative and less combative atmosphere and would be more conducive to reaching agreement.19 She said that she was confident the pending threat of further industrial action that could occur following the conclusion of a temporary suspension would be conducive to both sides reaching agreement during that period.20
[20] The applicant contended based on the evidence that the nature of the action is such that it is hindering the bargaining representatives’ ability to resolve the remaining issues in dispute. Suspending the industrial action will be conducive to an agreement being reached.
[21] Whilst it may be accepted that the nature of the industrial action is impeding the applicant’s capacity to communicate with its employees about the matters in dispute that is a long way short of establishing that it is hindering the bargaining representatives’ ability to resolve the remaining issues in dispute or that a suspension of the action would likely assist in bringing about that result. This is so for several reasons.
[22] First, the applicant could communicate with its employees through means other than face to face discussions. Communication could occur in writing. Moreover, the applicant could seek to ascertain the employees’ “reasons” for rejecting its current proposal through an electronic survey. No persuasive reason was advanced why this could not occur.
[23] Second, a return to work and thus a return of a capacity to have face to face discussions with employees need not occur only by means of a suspension of protected industrial action. The applicant could withdraw its earlier given notice under s 471(4) of the Act. It is clear from the evidence that the applicant did not give any, or any sufficient consideration to the consequence of giving such a notice on its capacity to engage with employees.21 If direct engagement is important enough to the applicant, then the means to achieve this are available to the applicant without the need for the Commission, by order, to interfere in the CFMMEU’s and its members’ legitimate recourse to protected industrial action. Ultimately the employees are not at work because of action they had planned to take, but rather because of action taken by the applicant.
[24] Third, it is apparent that many employees spend time at the peaceful picket which operates directly outside of the applicant’s Yarraville facility. It is uncontroversial that the picket line is peaceful and disciplined and apart from Mr Van Der Mey’s concern that persons other than employees might also be present at the peaceful picket, there is no real barrier to discussions with employees occurring that Mr Van Der Mey was able to articulate.22
[25] Fourth, the applicant could ask the CFMMEU, the bargaining representative of the relevant employees for an explanation about the rejection of the applicant’s proposal. The most recent proposal was given after industrial action commenced23 and no such explanation has been sought.24 Such an explanation might give the applicant information to enable it to “re-cut” the proposal in the manner contemplated by Mr Van Der Mey.
[26] Fifth, there is no barrier to discussions between the bargaining representatives occurring or continuing during the protected industrial action.25 There is also no suggestion that site delegates would not be present at such discussions. Section 425(1)(a) is concerned with benefit to the bargaining representatives. Discussion between them will more likely progress negotiations to resolve the matters at issue than attempts by the applicant to hold discussions with employees directly. The protected industrial action presents no obstacle to discussions between the bargaining representatives for the proposed agreement. Its suspension will not better facilitate such discussions. It therefore cannot be said that suspension of the protected industrial action would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue, since there is no evident reason why discussions or bargaining as between the bargaining representatives cannot occur while industrial action is in place.
[27] For these reasons I am not persuaded that suspension of the protected industrial action would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue. In the circumstances of this case this matter weighs significantly against a conclusion that it would be appropriate to suspend the protected industrial action.
[28] Turning next to the period or duration of the protected industrial action. The applicant contends although the industrial action commenced on 24 November 2021, its duration is indefinite and so weighs in favour of a conclusion that suspension is appropriate. I disagree. The protected industrial action has been in place for a relatively short period and but for the applicant’s notice, would not have involved a cessation of work. Moreover, part of the industrial action which is sought to be suspended is responsive to the applicant’s notice. The notice could be withdrawn by the applicant and that part of the action would cease, leaving only bans which have been in place for a short period. No order is required to achieve this result. In my view, the legitimately persuasive effect of the industrial action has not been in place for a sufficiently lengthy period to suggest that it is prolonged and that it will not or will not likely produce movement by one or other of the bargaining parties. Thus, the relative short period of industrial action is not a matter that weighs in favour of a conclusion that suspension of the action is appropriate.
[29] Next is the question whether the suspension would be contrary to the public interest or inconsistent with the objects of the Act. It is common ground, given the importance of the applicant’s operations to the construction sector and its relative market share, that suspension of the industrial action would not severely and negatively affect the public interest.26 The current action is having or is likely to have an impact on the supply of plasterboard to the sector at a time of high demand. Suspending the industrial action is likely to avert a shortage or delay in supply. It is plainly not contrary to the public interest that suspension would have the result of averting supply shortages in important material in the construction process.
[30] Although neither party address the question of the constituent elements of the “public interest”, it seems to me that a consideration of the public interest will involve something that is distinct from the interests of the persons who are involved in this application. This distinction seems to be reflected in the structure of s 425 with the interest of the parties reflected in the matters for consideration under s 425(1)(a) and (b) and the public interest consideration along with the objects of the Act falling separately for consideration under s 425(1)(c).
[31] The question of how the public interest is to be assessed was considered by a Full Bench of the Australian Industrial Relations Commission in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000.27 Kellogg Brown concerned an application to terminate a certified agreement pursuant to s 170MH of the Workplace Relations Act 1996. The Full Bench observed:
“The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include.
The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.”28
[32] After considering the decision in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia,29 the Full Bench in Kellogg Brown said:
“It is clear from this passage that the ascertainment of the public interest may involve balancing countervailing public interests. That the Commission should take all of the circumstances into account is made clear by Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd [(1988) 78 ALR 466 at 467]. These authorities provide useful general guidance in the application of the test in s. 170MH(3). They illustrate the types of interests which can be properly described as public interests and confirm the breadth of circumstances which may be relevant to the ascertainment of those interests.
It should be emphasized that the Commission’s consideration of the public interest for the purpose of s. 170MH(3) is directed to the consequences of terminating the agreement. In a given case, some consequences will be clearly predictable, others will be less so. For the most part the Commission should be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences.”30
[33] The approach to the question of whether termination of an enterprise agreement is not contrary to the public interest in Kellogg Brown was adopted for the purposes of s 226 of the Act by the Full Bench of the Commission in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd.31 I consider the approach is also appropriate in respect of s 425(1)(c) for the reasons given earlier.
[34] The CFMMEU contended that the suspension of protected industrial action under anything other than exceptional circumstances would be contrary to the public interest. This, according to the CFMMEU, is because the public has a clear interest in enterprise bargaining participants being able to take protected industrial action in support of claims in accordance with the regime set out under the Act, which prohibits industrial action in all but highly regulated circumstances. It also says that the public has an interest in the objects of the Act being met. These submissions miss the point. That which “the public” may be interested in is not concerned with whether an action taken under s 425 is or would be contrary to the public interest. It is true that allowing bargaining and industrial action to proceed unhindered by unwarranted Commission intervention is consistent with the public interest in as much as the scheme of the Act, in allowing such action, must be taken to be consistent with it. But such an analysis takes the matter no further. On this analysis suspension of action because it is appropriate in the circumstances would also be consistent with the public interest in the sense that such a course is also permitted by the scheme.
[35] Ultimately the question is whether suspension would be contrary to the public interest, and although a suspension would curtail recourse to a legitimate means by which to pursue a proposed agreement, suspension pursuant to the Act per se and without more would not be contrary to the public interest. In the instant case there is no other element of public interest beyond the CFMMEU’s submission above, to which it points and says that therefore suspension is contrary to the public interest. Such considerations as are available on the evidence, as earlier noted, point the other way. In the circumstances I am not persuaded that it would be contrary to the public interest to order suspension of the action and so this aspect of s 425(1)(c) weighs in favour of a conclusion that suspension is appropriate.
[36] As to the objects of the Act, the primary object of the Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion. The means by which this is to be achieved includes providing workplace relations laws that are fair to working Australians, are flexible for business and promote productivity and economic growth and achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.32 The bargaining scheme objects in s 171 are also relevant.
[37] The applicant contends that suspension would promote a cooperative and productive workplace and would be the kind of order made within the “clear rules governing industrial action”. The CFMMEU contends that there is no specific object relating to avoiding or minimising protected industrial action. It says that the legislative regime has been constructed with a clear intention to facilitate the taking of protected industrial action (relying on Oliveri). And so, a suspension of industrial action in anything other than exceptional circumstances would be inconsistent with the objects of the Act. The CFMMEU’s submission in so far as it relies on what is said in Oliveri and the need for exceptional circumstances must be rejected for the reasons earlier given.
[38] The clear rules about industrial action to which the object in s 3 refers is given effect in Part 3-3 of which s 425 is part. Plainly a suspension mandated upon proper satisfaction that it is appropriate would be consistent with that part of the object. Bargaining under that scheme of the Act occurs primarily through bargaining representatives. Direct engagement with employees is not prohibited and there is nothing inherently wrong with a desire to directly communicate. But s 425(1)(a) is concerned with the circumstances of the bargaining representatives and not the employees. It seems to me that to suspend industrial action in order that an employer might more conveniently communicate with its employees, does not provide a sound or persuasive basis for so doing in circumstances where:
• there are no employee bargaining representatives other than the CFMMEU;
• the CFMMEU remains willing to continue bargaining;
• there is no evidence that employees are dissatisfied with the CFMMEU’s representation;
• there is no evidence that the CFMMEU has in any way misrepresented:
o the applicant’s position to employees, or
o the employees’ claims to the applicant.
[39] As Deputy President Colman noted in Orora Packaging Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union 33 when regard is had to the objects of the Act, including in s 171, “the Commission would not lightly reach a state of satisfaction that it was appropriate to suspend protected industrial action under s 425, and that a persuasive rationale must be established as to why it is appropriate to suspend the right to take protected industrial action.”34 I agree with that assessment.
[40] For the reasons given, no persuasive rationale has been advanced. Suspension in these circumstances would be contrary to the objects of the Act because suspending without such a rationale would be contrary to the clear rules governing industrial action and the ability of a bargaining representative to bargain for an enterprise agreement with the benefit of the persuasive force of protected industrial action. Consequently, this aspect of s 425(1)(c) weighs against a conclusion that a suspension is appropriate.
[41] As to the issue whether there are other matters the Commission considers relevant, the applicant contends that the fact the employees did not intend to take indefinite strike action but have now done so is a relevant factor going to the appropriateness of the order. It says that the rapid and unintentional escalation supports suspending it to facilitate discussions. This submission is rejected because there is no evidence that an escalation in industrial action of the kind for which the applicant contended has had any limiting effect on discussions. The applicant accepts that “the CFMEU bargaining representative team is the appropriate channel then for negotiations”35 and as earlier noted there appears to be no impediment to discussions continuing. Ms Trbic’s earlier noted concern that the current situation of employees not working and not being paid was entrenching the employee’s claim for a wage increase to which the applicant will not agree, is no more than that – a concern expressed without any substantive evidence of entrenchment.
[42] I also consider relevant, and weighing against the appropriateness of a suspension order, the fact that the applicant’s stated desire to engage directly with its employees may be achieved with suspension for the reasons earlier given. It seems to me that the key to resolving the outstanding issues is continuing dialogue between the bargaining representatives through further bargaining. As Ms Trbic’s evidence discloses, although she did not at the time of giving her evidence have actual authority to put a higher wage offer, she was confident if there was further bargaining and it became necessary she could obtain instructions to move to a higher percentage wage increase.36
Conclusion
[43] As is evident the preponderance of relevant matters weigh against a conclusion that suspension of the protected industrial action is appropriate, and they do so significantly. I am therefore not satisfied that such a suspension is appropriate. It follows that the application should be dismissed.
Order
[44] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
S Amendola for the Applicant
D Vroland for the Respondent
Hearing details:
2021
Melbourne
9 December
Written submissions:
Applicant, 6 December 2021
Respondent, 8 December 2021
Printed by authority of the Commonwealth Government Printer
<PR736733>
1 [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]
2 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118
3 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184
4 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 (per Mason J) at [15], p 41. In some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance.
5 [2013] FWC 2187
6 Ibid at [26]
7 [2010] FWAFB 1014
8 Ibid at [8]
9 See for example Fair Work Act 2009, ss 366, 394 and s 442(5)
10 Transcript PN45-PN58, PN411-PN412
11 See exhibit 3
12 Ibid at [31]
13 Ibid at [32]
14 Ibid
15 Ibid
16 See exhibit 2
17 Ibid at [32]
18 Ibid at [35]
19 Ibid
20 Ibid
21 Transcript PN362-PN367
22 Transcript PN270
23 Exhibit 2 at [22]
24 Transcript PN280- PN 2841
25 Transcript PN292-PN293
26 See Exhibit 4, Transcript PN548, PN554
27 (2005) 139 IR 34
28 Ibid at 40
29 (1987) 61 ALJR 393
30 (2005) 139 IR 34 at 41
31 [2015] FWCFB 540, particularly at [129]-[131]
32 See Fair Work Act 2009, s 3
33 [2020] FWC 49
34 Ibid at [34]
35 Transcript PN293
36 Transcript PN129-PN130
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