Deborah Klimcke v Ngadju Native Title Aboriginal Corporation RNTBC

[2020] FWC 5079

[2020] FWC 5079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Klimcke
v
Ngadju Native Title Aboriginal Corporation RNTBC
(U2020/8668)

DEPUTY PRESIDENT BEAUMONT PERTH, 22 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Deborah Klimcke for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Klimcke worked for Ngadju Native Title Aboriginal Corporation RNTBC (the Respondent) as a Finance and Trust Manager (Finance Manager).

[2] The Respondent is the registered native title body corporate holding the Native Title in trust for the Ngadju People under s 56 of the Native Title Act 1993 (Cth). Payments for the use of traditional land of the Ngadju People, for example payments made by mining companies, are paid to the Ngadju Charitable Trust No. 2 (Trust). In addition to providing a benefit to the Ngadju People, the Trust provides funding to the Respondent to help meet the Respondent’s operating costs.

[3] In November 2019, the Respondent was placed under special administration in accordance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) because of governance issues (Special Administration). The Respondent’s directors were stood down and their positions vacated. As part of the Special Administration, Special Administrators were appointed, one of whom was Ms Smith.

[4] Because of the Special Administration, new business objectives were set, a new Chief Executive Officer (CEO) was appointed on 28 April 2020, and a review of the organisational structure of the Respondent was undertaken by an external consultant. The CEO and Special Administrators decided that three positions were to be made redundant, one of which was the position of Finance Manager.

[5] On 2 June 2020, Mr Klug the new CEO, and Ms Smith, met with Ms Klimcke and informed her that it was likely that the position of Finance Manager would be made redundant. Mr Klug said that the meeting was an opportunity for Ms Klimcke to discuss the likely redundancy and see if there were any other opportunities for her. Having held a further meeting on 4 June 2020 with Ms Klimcke, and having considered options such as Ms Klimcke taking a pay cut but keeping her role, the decision was made to terminate Ms Klimcke’s employment by way of redundancy effective 4 June 2020.

[6] Evidently, Ms Klimcke has contended her dismissal was harsh, unjust or unreasonable and so seeks compensation. The Respondent has objected to Ms Klimcke’s application on the jurisdictional ground that Ms Klimcke’s dismissal was a genuine redundancy for the purposes of s 389 of the Act. In the alternative, if the jurisdictional objection is dismissed, the Respondent submits that it is a small business employer and has complied with the Small Business Fair Dismissal Code (Code). Therefore, Ms Klimcke’s dismissal was not unfair within the meaning of s 385 of the Act.

[7] The jurisdictional questions of whether Ms Klimcke’s dismissal was a case of genuine redundancy, and whether there was compliance with the Code, are two of the four matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application.

[8] Regarding the other preliminary matters in s 396, I note the following:

a) Ms Klimcke’s application was made within the 21 day period required by s 394(2); and

b) she was a person protected from unfair dismissal because, while an enterprise agreement did not apply to her in her employment and she was not covered by an award, it was the case that she earned less than the high income threshold (s 382).

[9] Insofar as the Respondent’s jurisdictional objection is concerned, I have concluded that Ms Klimcke’s dismissal was a case of genuine redundancy. In light of this conclusion it has proved unnecessary to consider the Respondent’s argument concerning compliance with the Code. However, on this note, I simply observe that the Code does not cover circumstances of redundancy.

[10] Set out below are the reasons for my decision.

Background

[11] Both Ms Klimcke and the Respondent advanced their cases on the presumption that the Respondent was a national system employer and Ms Klimcke was a national system employee. There was no evidence before me to suggest otherwise.

The position of Finance Manager was made redundant

[12] Ms Klimcke commenced work on 10 July 2017 as the Finance Manager. She worked 75 hours a fortnight and additional hours as required. Her annual income sat at $130,500.00.

[13] Ms Smith gave evidence that on 11 November 2019 she was appointed as the Special Administrator for the Respondent, with a Mr James. 1 Ms Smith stated that her role as a Special Administrator was to address the corporation’s issues which included returning it to community control, as well as establishing a well-functioning and sustainable entity.2 As a result of the appointment of the Special Administrators, the directors of the Respondent were stood down. A new board was not appointed until 31 July 2020, at the end of the Special Administration.3

[14] Ms Smith explained that as part of the Special Administration the Special Administrators consulted with stakeholders who explained that they wanted the Respondent to focus on the core business of managing Native Title on behalf of the Ngadju People and to maximise the benefits for the Ngadju People. 4 It followed, said Ms Smith, that the Respondent needed to focus on cost cutting and maximising benefits of the income it received.5

[15] The Special Administrators had identified several concerns about the financial management and performance of the Respondent. Ms Smith said that it was not until around March 2020 various financial concerns of the Respondent had been addressed, such that the Special Administrators had confidence there was sufficient financial resources to review the staffing structures of the Respondent. 6

[16] An external consultant conducted a review of the organisational structure and whilst providing some useful insight, Ms Smith said that the Special Administrators wanted to work with Mr Klug to develop the structure which would help him to achieve the strategic objectives of the corporation.

[17] The external review recommended, amongst other changes, that the Finance Manager role be replaced with a Bookkeeper or Accounts Payable /Receivable Officer, the Business & Relationship Manager role be made redundant and the Respondent establish a new position of Native Title Manager. 7

[18] However, having considered the organisational structure with Mr Klug, a decision was made to make redundant the following roles:

a) Business & Relationship Manager;

b) Administrator (one of four Administrator positions); and

c) Finance Manager.

[19] Ms Smith gave evidence that the external review identified that the duties performed by the Finance Manager were more consistent with an Accounts Payable and Accounts Receivable Officer and/or Bookkeeper role. 8 The external review also identified that that the duties that would ordinarily sit within the remit of a Finance Manager were currently being outsourced and performed by an external accounting firm. The Respondent was spending in the order of $50,000.00 a year on outsourced accounting and finance management services.9

[20] Ms Smith said that Mr Klug had expressed that finance and accounting was not his area of speciality, and he needed good in-house financial management support. 10 Ms Smith stated that having worked with Mr Klug, the Special Administrators felt the Finance Manager position needed to be completely overhauled so that all financial and accounting management were brought in house and managed by a well-qualified and experienced financial manager.11 A decision was made to establish a position of Financial Controller, which would do all of the tasks of the Finance Manager plus those that were currently being outsourced to the external accounting and finance management firm.12

[21] Ms Smith explained that the Finance Controller position was a far more qualified position with a higher level of responsibility. It incorporated all previous work that had been outsourced. Mr Klug gave evidence that he considered that a senior, qualified and experienced Finance Controller was necessary to provide proper oversight of the financial management of the Respondent. This was particularly the case given the appointment of Special Administrators, the current outsourcing of accounting services, and that he considered he required advice and support in relation to financial management and accounting issues on a day-to-day basis and on a strategic level, without recourse to an external accounting advisor. 13

Discussions with Ms Klimcke about the redundancy

[22] Ms Smith gave evidence that a meeting was held on 2 June 2020 to inform Ms Klimcke that it was likely her position would be made redundant. 14 Ms Smith recalls that the meeting was short (approximately 15 minutes), and while at that point she did not think that there would be another position Ms Klimcke could fill, the purpose of the meeting was to provide Ms Klimcke with the opportunity to discuss the likely redundancy and see if there were any other opportunities for her.15

[23] Ms Klimcke recalled that in the meeting on 2 June 2020, she was not told that her position was potentially going to be made redundant, but that it had been made redundant. Ms Klimcke stated she offered to take a pay reduction to assist the Respondent but was categorically informed that this was not an option. 16 Ms Klimcke requested to have a support person present for the second meeting on 4 June 2020.

[24] A subsequent meeting was held with Ms Klimcke on 4 June 2020. Ms Klimcke had a support person present at the meeting. 17 She referred to the notes taken by her support person in the hearing. Whilst the support person was not called to given evidence, the notes that were purportedly recorded by the support person were attached to Ms Klimcke’s witness statement.

[25] In short, those notes regarding the meeting on 4 June 2020 detailed that Ms Klimcke’s position had been made redundant, and the duties and responsibilities of that position would be performed by a new role that would be filled with a ‘CPA or Chartered Accountant’. Ms Klimcke purportedly said that she had no experience in Account Management but that she had not been provided with the opportunity to be trained in this field. With regard to taking a reduction of salary, the notes stated, ‘CEO advised the reduction of income would be at least half if not less than half of her current salary and the only thing they “may” be able to offer Debbie is a data entry role’. The notes also set out that Ms Klimcke was asked to come up with a solution, and that she advised it was for the Respondent to do that.

[26] Understandably, the weight that can be attributed to the notes is questionable given the absence of the purported author. However, Ms Klimcke sought to rely on the notes, and much of their content accords with the accounts provided by Mr Klug and Ms Smith. There appeared to be disparate accounts concerning an offer of employment for a data entry role that was said to have been made to Ms Klimcke. However, Mr Klug and Ms Smith stated that no such offer was made. Mr Klug said that the idea was discussed, but that an offer was not made. This aligns with the notes provided regarding the meeting and the reference that the Respondent ‘may’ be able to offer a data entry role.

[27] Mr Klug and Ms Smith gave evidence that they left the meeting on 4 June 2020 to have a short break and consider what Ms Klimcke had said. Mr Klug gave evidence that he and Ms Smith considered the option of Ms Smith taking a pay cut and keeping the role, but both decided that this was not what was needed by the corporation and that both it and Mr Klug needed a more senior, qualified person who could manage all the accounting requirements, including those outsourced. Ms Smith stated that Ms Klimcke’s employment was terminated on the account of redundancy on 4 June 2020.

Background about the Respondent business

[28] Mr Klug gave evidence that at the time of Ms Klimcke’s dismissal, the Respondent employed less than 15 employees. 18 Mr Klug said there were nine relevant employees (who appeared to be employed in the Respondent’s offices). There were a further eleven employees who were casual and engaged from time to time to do heritage survey work.19 The heritage survey work was not, said Mr Klug, regular or systematic. Since March 2020, the Respondent had been involved in one Work Area Survey between 9 and 13 March, one Monitoring Survey between 16 and 20 March and one Work Program Clearance Heritage Survey between 15 and 18 June 2020.20 None of the employees engaged on heritage survey work had a set roster, and the most any person had worked on heritage survey work since March 2020 had been 8.5 days (two employees).

[29] Mr Klug gave evidence that before the appointment of the Special Administrators, different CEOs had utilised the services of a Negotiating Committee to progress negotiations with mining companies. The Special Administrators continued to use the Negotiation Committee (constituted with elders and responsible persons from the Ngadju People). However, the members were paid an allowance for attending meetings and other work they did as part of the Negotiating Committee, but they were absent employment contracts, set work hours, and there was no obligation to work and they were free to perform other work. 21

Protection from Unfair Dismissal

[30] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 3-2 of the Act granting a remedy for unfair dismissal.

[31] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that the circumstances set out at s 385 of the Act existed. Section 385 reads:

385 What is an Unfair Dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[32] Section 396 of the Act provides that before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other initial matters. Section 396 is as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[33] The effect of s 396 of the Act is that if a dismissal was a case of genuine redundancy, the Commission does not need to consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

Genuine redundancy

[34] The term ‘genuine redundancy’ is defined in s 389 of the Act in the following terms:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[35] The abovementioned factors concerning ‘genuine redundancy’ are traversed, starting with whether Ms Klimcke’s job was no longer required to be performed.

Consideration

[36] Ms Klimcke appeared to press two main arguments. The first, her redundancy was not genuine because her duties and responsibilities were still required to be performed by the new role of Finance Controller. The second, she was not afforded procedural fairness. The second argument appeared to have been premised on the following factors:

a) no formal notice was given in writing about the redundancy;

b) no explanation was provided – such as providing Ms Klimcke with the strategic plan or organisation chart;

c) there was no offer of redeployment or training made in the first meeting even though three new positions had been created; and

d) it was the Respondent’s responsibility to advise of current or future positions that Ms Klimcke may be able to perform in the corporation.

[37] The Respondent contended that it did not deny that the tasks Ms Klimcke performed were still being done; however, the issue was not whether those duties still existed – the question was whether her job existed. The Respondent submitted that the job Ms Klimcke performed, which on her evidence was an accounts receivable and payable position, was no longer required by the corporation.

[38] The new position of Financial Controller incorporated many of the tasks of Ms Klimcke’s role, but the change was not simply a change in title or window dressing, submitted the Respondent. The position description for the new position reflected new and higher qualifications and duties. Consequently, said the Respondent, it had decided to select someone for the position with tertiary accounting qualifications and with membership of Certified Practising Accountants.

[39] The Respondent submitted that the genuineness of the redundancy could not be called into question on the evidence. This was particularly the case where out of a small office, three positions had been made redundant.

[40] Insofar as procedural fairness was concerned, the Respondent submitted that it had held a conversation with Ms Klimcke about what was potentially available. Albeit it had conceded there would not be much that would be available concerning positions, given what the organisation had been through. The Respondent denied having made an offer to Ms Klimcke for a data entry role and noted that the Respondent had resolved to put someone senior into the business.

No longer requires the person’s job to be performed

[41] To constitute a genuine redundancy, the Commission must be satisfied that the position was no longer required to be performed by anyone because of operational changes to the employer. 22

[42] The Act does not define the term ‘operational requirements’. However, the term ‘operational requirements’ appears to be of broad import. Changes to the operational requirements of the enterprise can arise from external events and internal events. It permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business. 23 For example, a downturn in trade that reduces the number of employees required and internal matters, such as decisions that result from a reassessment or reappraisal conducted by the business of its own needs,24 can constitute operational reasons. Ultimately, it is the enterprise that determines what its operational requirements are.

[43] Furthermore, an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 25 It is the ‘job’ that is no longer required to be performed, rather than the ‘duties’.26 While there appears to be varied opinion on whether there is a legal or evidential onus in matters before the Commission, the evidential onus is said to rest with the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.27

[44] In brief, I am satisfied that the Respondent has satisfied the evidential onus and shown there were operational reasons why Ms Klimcke’s position was no longer required.

[45] Clearly, it is open to infer that the appointment of Special Administrators was reflective that the Respondent had not been optimally managed regarding its finances. There was no evidence led to suggest otherwise, and while Ms Klimcke occupied the position of Finance Manager, she did not advance an argument to the contrary. In respect of the evidence of Ms Smith, she provided a cogent account of the tribulations of the Respondent and the steps taken under Special Administration, with a view to cutting costs and maximising the benefits of income that the Respondent received, primarily from mining companies.

[46] The engagement of an external consultant and review of the existing organisational structure, in concert with Mr Klug’s input into the matter, resulted in a decision to restructure the organisation. That restructure resulted not only in the redundancy of Ms Klimcke’s position, but that of two other positions. Such evidence was uncontroversial.

[47] The Respondent stated that the duties previously undertaken by the position of Finance Manager would be reassigned to the position of Financial Controller, but that position would assume greater responsibilities, with outsourced accounting work being brought back in-house. Further, Mr Klug considered that the position would be equivalent to a second-in-charge position – noting that the person would have finance skills and guide him on all things financial. Mr Klug gave evidence that what he wanted was a senior finance person, as well as them acting as a sounding board for him.

[48] Ms Klimcke contended that her position continued to exist because the Respondent continued to require the performance of her duties. However, while Ms Klimcke’s duties may have continued to persist, I have found on the evidence presented, the Finance Manger position was no longer required – there being a significant difference between the position of Finance Manager and Financial Controller.

[49] If an employer decides that its operational requirements have changed and, as a result, it no longer wants a particular role performed by anyone, this is plainly enough for the purpose of s 389(1)(a) of the Act. It follows from my analysis above that there has been a change in the operational requirements for the purposes of s 389, and the redundant position was no longer required to be performed by anyone because of this. While the duties of the position have persisted, the focus is on whether the job has survived – it has not. 28

Consultation

[50] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth)states the following in respect of consultation in s 389 of the Act:

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

[51] If an employer is obliged to consult and fails to do so it is said that there cannot be a genuine redundancy. 29 Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.30

[52] Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. 31

[53] Insofar as the obligation to consult in accordance with the relevant award was concerned, it appeared that neither party was aware whether Ms Klimcke was covered by a modern award in her employment. As a Finance and Trust Manager, it is not apparent that a modern award covered Ms Klimcke. However, there was evidence given that Ms Klimcke’s position may have been akin to that of a Bookkeeper or Accounts Payable /Receivable Officer notwithstanding she was employed as a Finance Manager. The Clerks—Private Sector Award 2020 would likely have covered Ms Klimcke, but it was not apparent from the evidence that she was a private sector employee, and I observe that the Miscellaneous Award 2020 does not cover managerial employees and professional employees. I am content to find that Ms Klimcke was not award covered in light of the evidence, but, have more to say on this point at paragraph 63. It followed that there was no such obligation to consult.

[54] If it were the case that Ms Klimcke was covered by a modern award, it is likely that the obligation to consult included providing Ms Klimcke with information in writing about the nature of the change, its expected effect and other matters likely to affect her concerning the change, in writing. This did not occur. However, I have found that the Respondent verbally consulted Ms Klimcke about the redundancy of her position.

Redeployment

[55] In Ulan Coal Mines Ltd v Honeysett (Honeysett), 32 the Full Bench observed that s 389(2) placed a limitation on an employer’s capacity to mount the defence that the dismissal was a case of a genuine redundancy. It expressed that the defence was not available, if it would have been reasonable to redeploy the employee; this, of course, is a hypothetical question answerable only by reference to all the relevant circumstances.33

[56] Whether it would have been reasonable to redeploy, the employee is anchored to the point of time of the dismissal. 34 Further, in answering the question, consideration turns to the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration offered.35

[57] The consideration of the reasonableness of redeployment also involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, that is, her or his conduct and approach to the redeployment.

[58] It was undisputed that at around the time Ms Klimcke’s position had been made redundant, two other positions faced the same fate. Further, there appeared to have been a limited number of employees in the Respondent’s organisation, and the newly established positions were ones, that I consider Ms Klimcke was not qualified to undertake.

[59] Ms Klimcke said that she informed Ms Smith that in the three years she had worked for the Respondent she had never been offered to be retrained. However, in the second meeting with Mr Klug and Ms Smith, Ms Klimcke said that she informed them she would be willing to ‘do a CPA’. Ms Klimcke said that she spoke of her willingness to undertake training to enable her to undertake the newly established position of Financial Controller.

[60] While Ms Klimcke demonstrated a willingness to undertaking training for the newly formed position, it was her evidence that she did not have a tertiary qualification in finance or accounting fields. The training that Ms Klimcke would need to undertake to meet the criteria of the new position would likely include the study at a tertiary institution and further professional training to become a ‘CPA’. Considering the size of the Respondent, its chequered financial history, and its newly appointed objectives, it is open to finding that it would not have been at all reasonable for the Respondent to have embarked on such a course.

Other considerations

[61] If I am wrong with respect to the case being one of genuine redundancy because of a failure to comply with the consultation provision under the Award, I would, notwithstanding, dismiss the application.

[62] The evidence established that the reasons for the Ms Klimcke’s dismissal by the Respondent was that the Respondent no longer required her job to be performed by anyone, because of changes in the operational requirements of its enterprise. Further, in all of the circumstances, it was not reasonable to redeploy Ms Klimcke in the Respondent’s organisation.

[63] I have had regard to s 387 of the Act and have adopted the approach of the Full Bench in its decision of UES (Int'l) Pty Ltd v Leevan Harvey 36 (UES) when considering the s 387 criteria in the circumstances akin to those now (including all factors under s 387 and their bearing on this case). However, unlike the circumstance of UES where a failure to comply with the relevant modern award’s consultation provisions resulted in the conclusion that such failure was unreasonable, I do not consider the Respondent’s failure, if there was such a failure to provide written materials detailing all relevant information, unreasonable. The Full Bench in UES highlighted that a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable.37 In the circumstances before me, it was evident that Ms Klimcke was well-aware of the Respondent’s financial situation and that it was under Special Administration. I am satisfied that in the meeting on 2 June 2020 and on 4 June 2020, the Respondent discussed the Special Administration, the organisational review and spoke of the need to make changes within its business due to operational requirements.

[64] While Ms Klimcke expressed scepticism about the soundness of the external review noting that she was interviewed for only a short period by the external consultant, and that Mr Klug had arrived at a decision to make her position redundant in circumstances where he had not long been appointed in the business, these factors do not dissuade me that procedural fairness had been afforded to Ms Klimcke throughout the process. In all of the circumstances, and if necessary, to do so, I would conclude that Ms Klimcke had not been unfairly dismissed in this respect.

Conclusion

[65] For the reasons traversed, I am satisfied that the termination of Ms Klimcke’s employment was a genuine redundancy within the meaning of s 389 of the Act. It follows from the foregoing, that the Respondent’s objection to the unfair dismissal application has been made out. As Ms Klimcke’s dismissal was a case of ‘genuine redundancy’ within the meaning of s 389 of the Act, her application for an unfair dismissal remedy must be dismissed. An order 38 to that effect will be published concurrently with this decision.

DEPUTY PRESIDENT

Appearances:

Ms. Deborah Klimcke, Applicant
Mr. Robert Glug for the Respondent
Mr Greg Smith of Wayland Legal Pty Ltd for the Respondent

Hearing details:

2020;
Perth;
September 23.

Final written submissions:

2020;
September 7.

Printed by authority of the Commonwealth Government Printer

<PR722976>

 1   Witness Statement of Ms Paula Smith [2] (‘Ms Smith’).

 2 Ibid [8].

 3 Ibid [9].

 4 Ibid [10].

 5 Ibid [11].

 6 Ibid [20].

 7   Witness Statement of Mr Robert Klug Annexure RK-2 (‘Mr Klug’).

 8   Ms Smith [28].

 9   Ibid, [29].

 10 Ibid [30].

 11   Ibid.

 12 Ibid [31].

 13   Mr Klug [30].

 14   Ms Smith [31].

 15   Ibid.

 16   Witness Statement of Ms Deborah Klimcke 54 (‘Ms Kilmcke’)

 17   Ms Smith [34].

 18   Mr Klug [38].

 19 Ibid [46].

 20 Ibid [51].

 21 Ibid [63].

 22   Fair Work Act 2009 (Cth), s 389(1)(a).

 23   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 373.

 24   Yitzhak Shachar v Electrical Home Aids Pty Ltd t/a Godfreys[2018] FWC 4892.

 25   Dibb v Federal Commissioner of Taxation (2004) 136 FCR 388, 404 - 405.

 26   Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32, [17].

 27   Keiselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864, [34].

 28   Kekeris v A. Hartrodt Australia[2010] FWA 674.

 29   See also UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

 30   Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202.

 31   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd [2001] AIRCPR911257, [25].

 32   [2010] FWAFB 7578.

 33 Ibid [26].

 34 Ibid [28].

 35   Ibid.

 36   [2012] FWAFB 5241.

 37   Ibid.

 38   PR723768.