David Klemm v Penrice Soda Products Pty Ltd (In Liquidation)

[2016] FWC 6527

[2016] FWC 6527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Klemm
v
Penrice Soda Products Pty Ltd (In Liquidation)
(U2014/8470)

COMMISSIONER HAMPTON ADELAIDE, 20 SEPTEMBER 2016

Application for relief from unfair dismissal – company in liquidation – in-principle settlement – matter not formally discontinued – application made to relist application 15 months later after approach to statutory fund unsuccessful – application to dismiss – abuse of process and failure to prosecute found – appropriate and within power to dismiss application – unfair dismissal application dismissed.

1. The circumstances of this application

[1] The background to this matter is set out in some detail in a related decision 1 issued in June 2016. This decision should be read in conjunction with the June 2016 decision.

[2] In July 2014, Mr David Klemm filed an application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in relation to an alleged unfair dismissal. Mr Klemm had been employed by the respondent in these proceedings, Penrice Soda Products Pty Ltd (In Liquidation) (Penrice) for some six years prior to his dismissal earlier that month. The dismissal was apparently based upon alleged misconduct associated with Mr Klemm’s operation of machinery.

[3] Penrice is in liquidation. In that light, the appointed Liquidator, McGrath Nicol, stands in the shoes of the employer. References to Penrice or the employer in this decision include the actions taken by representatives of that firm. The division of the business in which Mr Klemm was employed was sold to an unrelated third party in late July 2014.

[4] At a directions conference before me in mid-December 2014, the parties advised that the application had been resolved “in principle” and that they would execute a deed setting out the terms of settlement leading to Mr Klemm filing a Notice of Discontinuance. This result was recorded within the Commission’s case management system.

[5] Despite various attempts by the Commission to follow up with the applicant, no Notice of Discontinuance was provided and no request was made to have the application relisted or dealt with. In April 2015, the file was administratively closed by the Commission.

[6] In March 2016, an application was made to the Commission on behalf of Mr Klemm seeking that this matter be set down for arbitration. Mr Klemm has contended that the unfair dismissal application has not been resolved and the matter has not been discontinued or withdrawn. In that light, he submits that it is appropriate that the application now be determined by the Commission.

[7] Penrice has accepted that it is not necessary for the applicant to seek to formally reopen the matter. However, it contends, in effect, that the unfair dismissal application should now be dismissed for want of prosecution.

[8] During April and May 2016, the parties provided written submissions in support of their positions. However, I then raised a jurisdictional issue arising from the status of Penrice and the import of the Corporations Act 2001 (Cth) which had not been highlighted to that point. Having heard from the parties on that issue, in the June 2016 decision I determined as follows:

“[48] In the circumstances of the creditors’ voluntary winding as in this case, s.500(2) precludes the Commission from proceeding with an unfair dismissal matter in the absence of a Court granting leave for the action to continue.

[49] Penrice has been the subject of a relevant creditors’ voluntary winding up and there is no indication that leave of the Court has been granted or even sought.

[50] For reasons set out in this decision, the Commission is precluded from determining this application, or from taking further action, in the absence of a Court order granting leave.

[51] In these circumstances, it is also not appropriate for the Commission to determine Penrice’s application to dismiss the unfair dismissal application.

[52] The unfair dismissal application in this matter will be stayed. In the event that Mr Klemm obtains a Court order permitting his claim against Penrice to proceed, I will then, subject to any conditions imposed by the Court, determine Penrice’s s.587 dismissal application.

[53] In the event that Mr Klemm does not provide evidence to the Commission that he has made an application seeking a Court order within the next 30 days, the unfair dismissal application will be dismissed without further hearing or notice to the parties.”

[9] On 19 August 2016, a Registrar of the Federal Court granted leave to Mr Klemm to continue this application. I note that this was not opposed and was, in effect, treated by Penrice as a matter of procedure. 2

[10] During a directions conference conducted by the Commission on 7 September 2016, the parties agreed that I should determine Penrice’s application to dismiss the unfair dismissal claim. Each party was also content to rely upon the submissions and evidence that had earlier been filed in relation to that matter.

[11] This decision deals with Penrice’s application.

2. The events between the December 2014 in-principle settlement and the application in March 2016 to have the matter relisted for arbitration  3

[12] Prior to the December 2014 directions conference (the December 2014 conference), a draft deed of settlement was circulated between, and amended by, the parties.

[13] Following the December 2014 conference, a further deed was prepared on behalf of Penrice and provided to Mr Klemm’s legal representative.

[14] On 18 December 2014, Penrice sent an email to Mr Klemm’s legal representative requesting a finalised copy of the deed for the parties to execute.

[15] In response to this request, on 24 December 2014, Mr Klemm’s legal representative advised that he was waiting on a claim lodged under the Fair Entitlement Guarantee Scheme (the FEG scheme) and that he could then “send on” 4 the deed, further noting that he would be on holidays until 19 January 2015.

[16] On 9 February 2015, my Associate confirmed with the parties by email that the Commission had earlier been advised that the matter had settled and requested that a Notice of Discontinuance be filed. There is an indication that following the email of my Associate, a representative of Penrice telephoned Mr Klemm’s legal representative to request that the deed be signed.

[17] On 24 February 2015, an email from Penrice was sent to Mr Klemm’s legal representative requesting a final copy of the deed for the Liquidators to sign.

[18] On 20 March 2015, Mr Klemm’s legal representative advised Penrice that Mr Klemm would not sign the deed until he had heard from the FEG scheme about his claim.

[19] At some stage, Mr Klemm was advised that the FEG claim had been rejected and a review of that decision was sought on his behalf.

[20] On 19 May 2015, an email was sent from Penrice to Mr Klemm’s legal representative in relation to Mr Klemm’s requested review of the FEG decision. The email continued:

“FEG have asked us to confirm the circumstances of Mr Klemm's departure and whether he was eligible for redundancy (noting he has already received PILN 5). If you have Mr Klemm execute the deed previously provided we will be in a position to say it was a genuine redundancy. I expect FEG will then agree to paying redundancy.”6

[21] The following day, Penrice sent a “clean and mark[ed] up” 7 version of the deed to Mr Klemm’s legal representative requesting that he arrange for Mr Klemm to sign it.

[22] On 22 May 2015, Penrice sent a follow-up email to Mr Klemm’s legal representative requesting an update on how he was progressing. The email also advised that the FEG scheme had requested a response regarding a number of employees, including Mr Klemm, and that the respondent could not delay a response to the scheme.

[23] A further email was sent from Penrice to Mr Klemm’s legal representative on 27 May 2015, again requesting an update on how he was progressing.

[24] On 29 May 2015, Penrice informed Mr Klemm’s legal representative that they were endeavouring to contact Mr Klemm to execute the deed, in which Mr Klemm’s legal representative replied “Happy for that to occur”. 8

[25] On the same day, Penrice emailed Mr Klemm explaining the situation with the FEG scheme and requesting that, as a matter of urgency, he sign the deed and a Notice of Discontinuance.

[26] On 16 July 2015, Penrice emailed Mr Klemm and his legal representative advising that they will provide a copy of Mr Klemm’s letter of termination to the FEG scheme and further that they cannot advise the scheme that the termination was a case of genuine redundancy if the deed was not returned.

[27] On the same day, Penrice advised the Commission that a response could not be obtained from the applicant or his legal representative. The employer further inquired whether the matter could be dismissed in the absence of a Notice of Discontinuance. Staff of the Commission informed the respondent that the Commission’s records showed that the matter had been resolved and closed. Ultimately, in light of that information, Penrice did not pursue the issue at that time.

[28] Penrice has indicated that in or around July 2015, it ceased “chasing” Mr Klemm for the deed.

[29] On 1 October 2015, a Review Officer administering the FEG scheme contacted staff at the Commission requesting information on how the matter was resolved. The Review Officer was informed that the Commission’s records stated that the matter was resolved prior to formal hearing and details of the resolution were unknown.

[30] On or about 8 October 2015, Mr Klemm was advised that his application to the FEG scheme had failed. Mr Klemm (or his representative) did not make contact with Penrice or the Commission.

[31] On 8 December 2015, Penrice was advised by the Department of Employment (which administers the FEG scheme) that Mr Klemm had lodged a request for a review by the Administrative Appeals Tribunal.

[32] On 11 March 2016, a Form F48 Application for directions on procedure was lodged with the Commission on behalf of Mr Klemm by his legal representative. That application sought that the unfair dismissal matter be listed for arbitration.

3. The basis of Penrice’s application to dismiss the unfair dismissal application

[33] Penrice contends that Mr Klemm has made no reasonable attempt to progress or prosecute his application and that no reasonable explanation has been provided for the significant delay. That is, despite being legally represented and reaching an in-principle settlement in December 2014, Mr Klemm took no steps in a period of over 15 months to either confirm the resolution or prosecute his unfair dismissal case.

[34] Penrice seeks to rely on s.587(1) and (3) of the Act and further contends that the Commission is permitted to dismiss an application outside of the three considerations expressly listed in s.587(1)(a)-(c). In that regard, it relies on the decision of the Full Bench of the Australian Industrial Relations Commission in Chand v State Rail Authority of NSW 9 as cited by Sams DP in Ayaz v Transdev NSW South Pty Ltd10(Ayaz). It further contends that a failure by an applicant to prosecute their case in a timely manner and without due diligence is a proper ground to dismiss that application.

[35] Penrice also contends that the ultimate issue is what is required in the interests of justice in the particular circumstances of the case.

[36] Penrice contends that the Commission can take notice of the delay as it necessarily caused prejudice to the respondent. It further relies on the statutory scheme of the Act and alleges that it is not in keeping with the scheme that applications of this kind be delayed, particularly when the applicant made a representation at the December 2014 conference that he no longer intended to prosecute his application.

[37] It further contends that the interests of justice require that unresolved matters should progress to arbitration as soon as practicable. Furthermore, Penrice alleges that conduct of the kind undertaken by Mr Klemm should be discouraged by the Commission, as delaying the resolution and then seeking to resume prosecution of the application over 12 months later is, in effect, abusing the Commission’s processes.

[38] Penrice submits that taking into account relevant circumstances, including the status of the company (in liquidation), it is in the interests of justice that the unfair dismissal application be dismissed.

4. Mr Klemm’s position seeking to have the application remain on foot and be subject to arbitration

[39] In relation to the “in principle agreement”, Mr Klemm contends that:

• the “in principle agreement” was contingent on the parties agreeing the terms of the deed;



• the deed was never agreed; and



• the respondent cannot submit that the applicant failed to sign the deed as this is “no different to the Applicant arguing that the delay results in the Respondent not signing the first Deed prepared by him”. 11

[40] Mr Klemm relies on the fact that Penrice was well aware of the application under the FEG scheme. He states that Penrice was unwilling to sign a deed with monetary compensation but nonetheless were willing to allow the scheme to pay him entitlements arising from a genuine redundancy once their version of the deed was signed.

[41] Mr Klemm has submitted that Penrice should have been aware that if his FEG claim was unsuccessful, and had he signed a deed, then he would have been barred from bringing a further claim against the respondent for his unfair dismissal application. Alternatively, if the FEG scheme application was successful, he contends that he would then not have progressed with the unfair dismissal application and alleges that in any event the monetary relief provided by the scheme would have cancelled out any additional compensation that he would have been entitled to under s.392 of the Act.

[42] Mr Klemm contends that the delay was caused by the FEG scheme taking 14 months to make a decision about his claim. He further contends that it is, therefore, unfair and misleading for Penrice to suggest that he did not return the deed or attempt to progress his matter for a 15 month period. He refers the Commission to the annexures of the respondent’s affidavit to “bolster” that position.

[43] Mr Klemm alleges that s.587(1) of the Act is irrelevant in respect of the facts of this case and relies on Rule 10 of the Fair Work Commission Rules 2013 which states:

“10  Discontinuance
(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or
(b) advising the Commission by letter, email, fax or telephone that the applicant:

(i) wishes to discontinue the application; or
(ii) has settled the application; or
(iii) wishes to withdraw the application; or
(iv) no longer needs the Commission to deal with the application; or

(c) advising the Commission of the discontinuance during the course of a conference or hearing.

Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).
Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.
Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.”

[1] He alleges that the Commission must take into account the fact that he did none of the things listed in Rule 10 and that Penrice has not contended otherwise.

[2] Mr Klemm further contends that paragraphs [46] and [47] of Ayaz are unrelated to the issues before the Commission.

[3] Finally, he submits that it is in the interests of justice to permit the unfair dismissal application to proceed and that if the application is dismissed he will not be entitled to relief under the FEG Act or the Administrative Appeals Tribunal as he was not made redundant.

5. Can the Commission dismiss an application in these circumstances and should that occur in this case?

[4] Penrice have sought that the Commission utilise the powers available under the Act to dismiss the application. Section 587(1) and (3) of the Act provides as follows:

“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

[5] Section 577 of the Act also applies to inform how the Commission should exercise its powers and perform its functions and provides as follows:

“577Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[6] Section 578 of the Act also provides as follows:

“578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

[7] The broad decision making power of the Commission is also confirmed in s.589 of the Act in the following terms:

“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or
(b) on application.

(3) This section does not limit the FWC’s power to make decisions.”

[8] Mr Klemm contends that the circumstances of this case do not fall within the scope of s.587 and that the Commission should not dismiss the unfair dismissal application on any ground.

[9] It is well established that the Commission may dismiss an application on grounds that are not expressly set out in s.587 of the Act. This includes other express statutory grounds, such as s.399A, and when matters fall outside of the Commission’s jurisdiction. Despite some contrary views, 12 various Members of the Commission have also utilised a more general discretion maintained by s.587. For example, in Tomas v Symbion Health,13 Gooley C (as she then was) said in relation to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.” 14

[10] In Romy Kennedy v Complete Belting Solutions Pty Ltd 15 Jones C (as she then was) held:

“[7] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.”

[11] These matters also involved unfair dismissal applications and were determined prior to the introduction of, or in one case without reference to, s.399A of the Act, which provides additional grounds to dismiss such an application.

[12] Section 399A permits the Commission to dismiss an unfair dismissal matter on application from an employer where an applicant has failed to attend a conference or hearing conducted by the Commission, failed to comply with a direction or order, or failed to discontinue the application after a settlement agreement has been concluded. The provision is not intended to limit the powers otherwise available to the Commission. This much is clear from the provision itself, which provides:

“(3) This section does not limit when the FWC may dismiss an application.” 16

[13] I do not consider that the terms of s.399A were intended to represent a complete code in relation to the procedural circumstances under which the Commission may dismiss an unfair dismissal application.

[14] As a Tribunal exercising jurisdiction conferred by statute, the Commission only has those powers expressly, or by implication, conferred by the legislation which governs it. The permissive application of s.587 would appear to be consistent with the relevant Explanatory Memorandum. 17 More importantly, the High Court18 has held that legislation conferring powers to make orders in relation to proceedings and jurisdiction should be construed as generously as the words used would permit. In Knight v. F.P. Special Assets Limited Gaudron J said:-

“Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.” 19

[15] This has been applied to Tribunals where they are required to act judicially. 20

[16] In cases such as Viavattene v Health Care Australia 21 and Adams v Monadelphous Engineering Pty Ltd,22 whilst these also relied upon s.399A, the Commission in each case has also referred to a failure to prosecute or an abuse of process as being grounds that might lead to the dismissal of an application.

[17] In Ayaz Sams DP found as follows:

“[47] Section 587 of the Act provides a wide discretion to the Commission to dismiss an application on grounds which are common to other courts and tribunals. There is no doubt that one such ground is the failure of an applicant to prosecute his/her case in a timely manner, that is, with due diligence. In my view, this is one such case. To the extent necessary, I make such a finding under ss 587(1) and (3) of the Act.” 23

[18] In an earlier matter of Carter v The Hanna Group Pty Ltd, 24 Sams DP dealt with the relevant authorities applied by Courts and Tribunals when exercising a power to dismiss an application for want of prosecution. He observed:

“[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. … …”

[19] Given the statutory charter applying to the Commission, the obvious need to be able to prevent an abuse of its processes consistent with the objects of the Act, and the permissive provisions of s.587, I consider that the Commission has the power to consider the dismissal of the application in the present circumstances.

[20] In Chand v State Rail Authority of NSW, 25 a Full Bench of the Australian Industrial Relations Commission dismissed an application for want of prosecution and failure of the applicant to attend the listed arbitration. In its decision, the Full Bench noted that the classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution were a failure, typically a repeated failure, by an applicant to comply with directions of the court or a prolonged period of inactivity on the part of the applicant.26Although determined under the earlier legislation, this approach remains generally apposite in terms of any discretion that arises in a matter such as this.

[21] In this case, I consider that the conduct of the matter by Mr Klemm represents both a failure to prosecute the application and an abuse of process. My reasons for that conclusion are set out below.

[22] Despite some contrary intentions, it has not been contended that there was a binding settlement of the matter. There was however, an in-principle agreement to resolve the application and this was undertaken in good faith by both parties. In particular, it is evident that the Liquidators, given the status of Penrice, were prepared to enter into a settlement that would change the foundation of the dismissal and provide a basis for Mr Klemm to actually make a claim upon the FEG scheme. That is, to make Mr Klemm redundant, which could have created an entitlement to a payment relevant to that scheme. Without that settlement, Mr Klemm remained as an ex-employee with an unfair dismissal claim, but that action was against a company which was already in liquidation.

[23] The FEG scheme is a legislative safety net scheme which provides financial assistance to employees who have lost their job due to the liquidation or bankruptcy of their employer and who are owed employee entitlements which are not able to be paid by their employer or from another source. Entitlements that can be claimed under the FEG scheme include wages, annual leave, long service leave, payment in lieu of notice and redundancy pay. 27

[24] The irony of Mr Klemm’s decision not to sign the deed, was that the absence of a basis upon which the FEG scheme could be satisfied that he had an actual entitlement – which he could not provide given the absence of the agreed outcome reflected in that deed, has led to the present situation where Mr Klemm now seeks to revive the unfair dismissal application.

[25] Accordingly, the decision not to sign the deed, apparently in order to keep open the unfair dismissal claim, was counterproductive. Further, and in any event, having advised the Commission that the application was resolved and not seeking to advance the case at that time, then failing to respond to attempts by the Commission (and at some stages by Penrice) to ascertain the status of the application or advance the matter, and only seeking to relist this application when the FEG option failed, this conduct was an abuse of the Commission’s processes. In that regard, it is important to appreciate that Mr Klemm did not seek, and was not given, any permission from the Commission to, in effect, hold the unfair dismissal application in abeyance. This lack of due process also continued notwithstanding that in February 2015 the Commission confirmed to Mr Klemm the earlier advice from the parties that there had been an in-principle resolution, and requested him to provide a formal discontinuance. The absence of any response or action at that point is significant.

[26] The failure to prosecute and the consequential delay is also unfair to Penrice given the consequences of potentially having to defend an application so long after the event, particularly in circumstances where the Liquidators are dealing with a company that is already in liquidation.

[27] The fact that the unfair dismissal matter was not formally discontinued does not represent a proper response to these findings. I note also that neither party sought to rely upon the Registrar’s grant of permission under the Corporations Act 2001 (Cth) in relation to the merit or otherwise of this matter.

6. Conclusions

[28] I have some sympathy for the situation now facing Mr Klemm and the potential consequences of this decision upon him are an important consideration. However, in all of the circumstances his application has not been conducted in an appropriate manner and this has led to a situation where there was a failure to prosecute the case and it would be an abuse of the processes of the Commission, and also unfair to Penrice, to now relist and hear the matter.

[29] I consider that an order dismissing the unfair dismissal application is appropriate and consistent with the statutory charter of the Commission. An order is being issued in conjunction with this decision. 28

COMMISSIONER

Appearances:

A Wright of WK Lawyers, with permission, for Mr David Klemm.

K Luke of Thomson Geer, with permission, for McGrath Nicol (as Liquidators of Penrice Soda Products Pty Ltd (in liquidation)).

Telephone Conference details:

2016

March 22

September 7.

 1   Klemm v Pernrice Soda Products Pty Ltd (In Liquidation)[2016] FWC 3170.

 2   Confirmed during the course of the directions conference on 7 September 2016.

 3   These findings are based upon sworn evidence provided by Penrice and non-controversial matters of record known to both parties.

 4   Annexure 7 to the Affidavit of Ms Eszenyi.

 5   Pay in lieu of notice.

 6   Annexure 12 to the Affidavit of Ms Eszenyi.

 7   Ibid.

 8   Annexure 15 to the Affidavit of Ms Eszenyi.

 9   PR975108 (19 December 2006).

 10   [2015] FWC 7098.

 11   Applicant’s Response to Respondent’s Outline of Submissions.

 12   Przybyszewski v Diabetes Australia Victoria[2011] FWA 4213 per Smith C (as he then was).

 13   [2011] FWA 5458.

 14 Ibid at [57].See also and McLeod v Kulgera Trading Company Pty Ltd[2014] FWC 2112.

 15   [2013] FWC 2777.

 16   Fair Work Act 2009 (Cth) s. 399A(3).

 17   Explanatory Memorandum for the Fair Work Bill 2008 at 2273.

 18   Knight v. F.P. Special Assets Limited (1992); 174 C.L.R. 178 at 185

 19   Ibid at 205.

 20   See for example: Schmidt v The Corporation (Hilton International Adelaide Hotel) [1993] SAWCT 63.

 21   [2013] FWCFB 2532.

 22   [2013] FWCFB 1470.

 23   This decision was upheld on appeal – Ayaz v Transdev NSW South Pty Ltd & Veolia Transport (NSW) Pty Ltd[2016] FWCFB 3672.

 24   [2011] FWA 31.

 25   PR975108 (19 December 2006).

 26 Ibid at [48].

 27   Department of Employment, What Assistance Can FEG Provide?, March 2016, Fair Entitlements Guarantee, <   PR585521.

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