EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 1202

Note: An appeal pursuant to s.604 (C2013/3258) was lodged against this decision - refer to Full Bench decision dated 17 June 2013 [[2013] FWCFB 3793] for result of appeal.

[2013] FWC 1202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

EnergyAustralia Yallourn Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/3194)

COMMISSIONER BISSETT MELBOURNE, 21 FEBRUARY 2013

Section 418 - application for an order that industrial action by employees stop etc. - application dismissed

[1] This is an application under s.418 of the Fair Work Act 2009 (the Act) by EnergyAustralia Yallourn Pty Ltd (EnergyAustralia or the Applicant) for the Commission to make orders to stop that industrial action which is not protected action being organised by the Construction, Forestry, Mining and Energy Union (CFMEU) and that is threatened, impending or probable.

[2] The application was made by EnergyAustralia on 18 February 2013. The application was heard at 4.30pm on 19 February 2013. At the conclusion of the hearing I advised the parties that it was my view that the matter would not be determined within two days after the application was made. I therefore issued an interim order pursuant to s.420 of the Act ordering that the industrial action not occur or be organised. That order came into effect at 1.00am on 20 February 2013 and will remain in force until I determine the application in full. This is my decision with respect to the application.

Background

[3] On 22 January 2013 Jones C issued an order 1 for a protected action ballot of members of the CFMEU who would be covered by the proposed enterprise agreement, namely those employees employed at Yallourn W Power Station.

[4] The ballot order specified that the following questions be put to the voters:

For the purposes of supporting or advancing claims in support of the proposed Enterprise Agreement with your employer EnergyAustralia Yallourn Pty Ltd, do you authorise the following types of protected industrial action to be taken against your employer, which may involve you and/or other employees engaging in any and all of the following forms of action separately, concurrently and/or consecutively:

1. An unlimited number of stoppages of work, including consecutive stoppages of work, of between one (1) and twenty-four (24) hours in duration?

2. An unlimited number of bans on the working of higher duties?

3. An unlimited number of bans on the working of overtime?

4. An unlimited number of bans limiting the output of individual generators?

5. An unlimited number of bans on the issue and/or restoration of permits to work on plant or apparatus?

[5] The ballot was conducted in accordance with the order and the voters supported each of the forms of industrial action indicated in the questions.

[6] On 14 February 2013 the CFMEU gave notice to the Applicant of employee claim action for a proposed enterprise agreement pursuant to s.414 of the Act (the notice). That notice said:

We hereby notify you of the intention of members of the Construction, Forestry, Mining and Energy Union (‘CFMEU’), for whom the CFMEU is the bargaining representative, and who will be covered by the proposed replacement enterprise agreement to the TRUenergy Yallourn Proprietary Limited Workplace Agreement 2008, to take protected action as follows:

1. Bans limiting the output of individual generators to two hundred and forty megawatts (240 MW) between the hours of 7:00am and 9:00am commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period.

2. Bans limiting the output of individual generators to two hundred and forty megawatts (240MW) between the hours of 4:00pm and 6:00pm commencing on Wednesday, 20 February 2013 and continuing on a daily basis thereafter between the same times specified for an indefinite period. 2

[7] The Applicant says that this notice is deficient in that it does not comply with the requirements of s.414 of the Act. As such any industrial action taken in accordance with the notice will not be protected industrial action. The Applicant therefore seeks an order pursuant to s.418 of the Act.

Representation and witnesses

[8] The Applicant is represented by Mr Forbes of Counsel. The CFMEU is represented by Mr Bukarica.

[9] Mr Dale Hogarth, the Operations Manager of EnergyAustralia, has produced an affidavit and gave evidence for the Applicant.

Submissions and evidence

EnergyAustralia

[10] Mr Forbes submits that the notice of proposed industrial action does not meet the requirements of s.414(6) of the Act.

[11] Section 414(6) of the Act provides that:

A notice given under this section must specify the nature of the action and the day on which it will start.

[12] Mr Forbes says that the notice is ‘hopelessly ambiguous’ 3 and leaves the employer in a position of not knowing:

• The nature or form of the proposed industrial action;



• When the industrial action will commence or when it will finish;



• The identity of the persons who will engage in the action;



• What steps the employer can take to arrange its affairs and its business to meet the inconvenience, risks and financial losses posed by the proposed action.

[13] The evidence of Mr Hogarth is that the Yallourn Power Station operated by EnergyAustralia supplies about 22 per cent of Victoria’s electricity needs and eight per cent of the national electricity market. Two of the generators at Yallorn have a maximum rating of 360 megawatts (MW) and two have a maximum rating of 392 MW. The output of the generators varies during a day based on the contracts EnergyAustralia has entered into and the demand in the market.

[14] His evidence is that the output of the generators can be varied automatically by the operator inputting the generation target to which the generator is to be set and the rate at which the change is to be made or the output can be adjusted manually by the operators. One of the generators currently has a fault and can only be adjusted manually.

[15] Mr Hogarth’s evidence is that the output of the generators is increased or decreased as required to meet dispatch targets at the rate of between three and five megawatts per minute. If the output is adjusted more quickly there is a risk that the generator will be tripped with potential damage to the unit.

[16] Mr Hogarth gave evidence that he is not sure, based on the notice provided by the CFMEU, if the planned action would result in the output of the generators being limited for two hours or for longer periods. This is because he is not aware if the operators would impose bans such that the output was at 240 MW between the times specified in the notice or if the bans would result in a reduction in output starting at the commencement time of the action and at some point during the specified time reach 240 MW and then be ramped up to the required output by the end of the specified period.

[17] Mr Hogarth indicates that this knowledge is essential so that Applicant’s energy market team can assess the risk and determine what action they should take to mitigate the consequence of a potential shortfall in supply during the period of the proposed action. The consequences of the Applicant not generating sufficient energy supply to its customers can result in significant cost to the business. When asked if this was the key area of deficiency Mr Hogarth said no, that he would also need to know the rate at which the generators would be ramped down or up.

[18] Mr Hogarth also says that the notice provided by the CFMEU does not make it clear if the times that the proposed action is to be taken refers to Australian Eastern Daylight Savings Time (AEDST) or ‘Market Time’ (which is one hour earlier than AEDST).

[19] Furthermore Mr Hogarth says that the notice does not make clear which of the employees’ ordinary tasks or functions of the relevant operators will be limited or not perform to achieve the reduced output. He has however provided evidence as to how the operators control output from generators. He accepts that operators adjust the output of the generators for reasons including management direction for the purpose of supply to the grid as part of their day to day activities. Mr Hogarth also agrees that the CFMEU is the bargaining representative for employees at EnergyAustralia and that those employees would generally be characterised as operators.

[20] Mr Forbes submits that it is well established that the notice of industrial action must be capable of shedding light on the nature of the action to be taken and therefore enable the employer to take appropriate defensive action. 4 In making such a determination as to the adequacy of the notice the appropriate starting point to consider is the nature of the enterprise.5

[21] Mr Forbes submits that the notice of the proposed industrial action is limited to the imposition of bans. The definition of a ban, he says, is to prohibit or interdict. 6 A ban is about refraining from doing something as it would ordinarily be done. The notice however is framed as an outcome of the bans (a reduction to 240 MW). He says that to reduce the output of the generators the operators have to do something differently to how they would normally do it. He says that whilst the proposed action is industrial action as defined in the Act it is not evident from the notice that a ban is to be imposed.

[22] The nature of the industrial action can only be known by the notice given by the CFMEU in accordance with s.414 of the Act. Based on the notice given Mr Forbes says that the Applicant cannot know what it is employees will not be doing or what they will be restricting or limiting.

CFMEU

[23] Mr Bukarica submits that there is no ambiguity in the notice, that the nature of the action has been clearly specified and that the time of bans is clear. Further, he says that it is clear who will impose the bans.

Mr Bukarica submits that the nature of the bans is a limitation on the performance of work. In this respect he says that the operators will not be subject to the direction of management as to the output of the generators during the time periods specified in the notice.

[24] Mr Bukarica says that the degree of particulars required in a notice necessary to satisfy the ‘defensive action principles’ in Davids Distribution and Telstra v CEPU will vary depending on the nature of the enterprise in question. In this respect Mr Bukarica distinguishes the circumstances of the Applicant from those that were outlined in the Telstra v CEPU where the notice was couched in general terms and was intended to apply to ‘34,000 employees in hundreds of worksites across Australia.’ 7 The action proposed in this instance is at one work location where the nature of the action to be taken is known, the employees who will engage in the action in known, and the duration of the action is known.

[25] In these circumstances the notice is such that the Applicant can engage in appropriate defensive strategies.

[26] Mr Bukarica submits that it is clear from the notice when the action will commence and when it will finish. The concerns expressed by the Applicant about winding down or winding up of output are therefore not relevant.

[27] Mr Bukarica submits that the only question to be determined is if the notices provided by the CFMEU meet the requirements of s.414(6) of the Act.

Consideration

[28] Section 418 of the Act provides:

418 FWA must order that industrial action by employees or employers stop etc.

(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[29] Industrial action will be protected industrial action if it is employee claim action. Employee claim action requires that the industrial action also meet the common requirements of the Act in Subdivision B of Division 2 of Part 3-3 of the Act.

[30] The common requirements set out the notice requirements at s.414 of the Act. Section 414 of the Act provides, in part:

414 Notice requirements for industrial action

Notice requirements—employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

...

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.

[31] There is no dispute that, save for the matter of the requirements of s.414(6) of the Act, the notice given by the CFMEU meets the requirements for employee claim action. Rather the dispute goes to whether the notice is a notice of bans (as opposed to the result of some unspecified bans) and whether the notice specifies the nature of the action taken with the required degree of particularity.

[32] In this respect it is appropriate to deal with each of the complaints the Applicant makes against the notice provided by the CFMEU.

[33] Before doing so it is appropriate to briefly consider matters associated with the purpose of the notice and the role of industrial action within the bargaining framework of the Act.

[34] In Alcoa of Australia Limited v Australian Workers Union 8 Barker J observed that:

I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be.

[35] I adopted this observation in the decision in Berkley Challenge Pty Ltd t/as Spotless v United Voice 9 (Berkley):

The Act gives employees the right, under certain circumstances to take industrial action with protection. Davids Distribution places some requirements on the content of the notice for a particular reason and that is to enable the employer to put in place proper defensive action. This must be balanced, however, against the rights given to employees. Of course the industrial action will cause inconvenience. This is the reality of bargaining under the current legislative framework. It would be wrong, however, to suggest that the purpose of the notice of industrial action is to enable the employer to offset all of the inconvenience of such action. 10

[36] The level specificity required in the notice such that an employer may take defensive action must be balanced against the right of employees to take industrial action that is protected in the context of bargaining for an agreement.

[37] In Davids Distribution Wilcox and Cooper JJ found:

We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lock out some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees’ notice of bans by giving notice of a lockout of some or all employees. 11

[38] It is well settled that the level of specificity required in the notice will depend on the nature of the enterprise. It must be considered ‘having regard to all of the relevant considerations.’ 12

The nature or form of the industrial action

[39] In Davids Distribution Wilcox and Cooper JJ found that:

Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s 170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s 170MO(5) would seriously compromise the scheme of Div 8 of Pt VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division. 13

[40] Further, their Honours found that:

It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles”. 14

[41] I accept the submissions of the CFMEU that the proposed action will apply to a single enterprise at a single location. In this respect the caution exercised by the Full Bench in Telstra v CEPU in finding the notice deficient provides little assistance in this case, reaffirming the view expressed in that decision and other authorities that the particular circumstances of the enterprise must be considered.

[42] The evidence of Mr Hogarth is, and I accept that, the capacity of a generator is altered by an operator inputting a specific generation target or by the operator manually varying the target. The required output of the generators is set depending on contracts entered by the Applicant and by demand at any particular time. Operators are advised of the required output levels by management and, in the normal course, are expected to comply with the direction of management.

[43] He did not give evidence of any other mechanism of adjusting the output of the generators such that he was confused as to how bans limiting output might be put into effect. I do not accept that the manual or automatic methods of adjusting output will create confusion. In either case the evidence is that the change is caused by the operator doing something as required by the employer.

[44] This evidence indicates the Applicant is aware of how output will be limited such as to satisfy the Applicant’s desire to understand the bans. It seems to me apparent that, despite the unusual way in which the notice is formed, the bans limiting output will result in the operators not adjusting the generators to the target output required of management such that the generators will operate at 240 MW and that the Applicant is aware of this.

[45] Such a conclusion was confirmed in the oral submissions of the CFMEU.

[46] It is also clear to me that, by his own evidence, the Operation Manager for EnergyAustralia is aware of the bans that the CFMEU intends to put in place and how they will be put into effect.

[47] I am therefore satisfied that the Applicant is aware by the notice and its knowledge of the business, the nature and form of the industrial action.

[48] Ancillary to this is a question as to whether what has been notified by the CFMEU is a ‘ban’ as opposed to the result of a ban. This is important as, if the action is not a ban, a question arises as to whether or not the action falls within the action authorised by the protected action ballot conducted in accordance with the Order issued on 22 January 2013.

[49] When the action that is proposed to be taken is understood in context (as set out above) it is clear to me that the action proposed by the CFMEU is a ‘ban’ in the generally accepted use of the word.

[50] The operators will not do some work that they would otherwise normally do - that is respond to management direction to alter the output of the generators to meet the output requirement of management.

[51] This is, in essence, no different to a ban on overtime or a partial ban on overtime. When such a ban is imposed workers refuse to accede to a request of management that they perform some specific work. The implementation of the ban results in the employees not doing something as requested or normally performed. That a notice of proposed action indicating a ban on overtime does not specify exactly how that ban will be implemented - by not responding to requests to work or by not indicating availability to work the overtime - does not make such a notice deficient per se.

[52] In this instance the employees, when implementing the bans, will not respond to management requests to alter the output of the generators. They will have imposed a ban in every sense of the word. The bans limiting the output of the generator will be implemented in this way.

[53] To me this is a ‘prohibition which is absolute and categorical, and not merely a matter of inclination of preference’. 15 The bans relate to a refusal of acceptance of communication from management such that, regardless of that communication, the output of the generators will be taken down to 240 MW and, at the conclusion of the bans be back at required levels. The prohibition is with respect to the work that is banned. That the bans do not extend to all of the output of the generators is not the issue. The bans have been identified and involves a prohibition by those who engage in the proposed action.

[54] Following the conclusion of the hearing the CFMEU provided to me a copy of the notice of proportionate deductions under s.471(1)(c) of the Act issued to employees. That notice in part states that:

The Partial Work Bans will amount to a refusal to operate the generators as directed during the periods in which the bans are applied (Ban Periods). EnergyAustralia estimates that you would usually spend approximately sixty minutes during each of the Ban Periods operating the generators as directed. This constitutes 50% of each of the Ban Periods during which you would ordinarily work.

[55] Mr Bukarica says that this notice indicates that the Applicant well understands the nature of the work bans proposed to be undertaken by employees.

[56] Solicitors for the Applicant state in reply that, notwithstanding the uncertainty expressed by Mr Hogarth in his evidence, to comply with the content requirements of a notice pursuant to section 471(1)(c) of the FW Act, EnergyAustralia was required to draw conclusions about what the planned industrial action might involve based on the information in the CFMEU’s notice regarding the intended impact of the action (rather than any information about the nature of the action that is intended to be taken). EnergyAustralia says that the conclusion drawn by it based on the information it has is not and cannot be taken to be a concession that the CFMEU’s notice provides sufficient details regarding the nature of the industrial action as required by section 414(6) of the FW Act.

[57] Whilst I accept the conclusion drawn by the Applicant that the s.471(1)(c) notice cannot be taken as a concession as to the sufficiency of the CFMEU’s notice, it does support the conclusion I have drawn above. Specifically that the Applicant is aware of the action the operators will take to reduce the output and that there is no other alternative means of implementing the bans such that there could be some source of confusion for the Applicant. Were there some other means of implementing the bans I am confident the Applicant would have ensured this was recognised in the s.471(1)(c) notice.

[58] In the context of this enterprise and the notification given I am satisfied that the action notified by the CFMEU is a ban and the notice is sufficient to enable the Applicant to know what action will be taken by the employees in implementing the ban.

The time the action will commence and finish

[59] On its face the notice provided by the CFMEU is clear. The bans to which the notice apply will commence on Wednesday 20 February 2013 and will be in place between the hours of 7:00am and 9:00am and 4:00pm and 6:00pm.

[60] I take from the evidence of Mr Hogarth that he wants to be aware at all times the exact amount of output from each of the generators. He says it is not clear at what rate the output will be taken down to 240 MW or returned to normal. Mr Hogarth says that greater detail is needed so that he can provide appropriate information to the energy markets team. This, it appears, is required to enable the Applicant to mitigate any potential losses.

[61] I am not convinced that the level of specificity that Mr Hogarth seeks is necessary. It is my opinion that he seeks a greater level of detail so that the Applicant can ameliorate the effect of the industrial action.

[62] Were it the intention that an employer should know the effects of industrial action to the level requested by the Applicant in this case then the utility for the union of taking industrial action in the context of bargaining would be lost.

[63] I am satisfied that the notice of proposed action does adequately specify the times within which the bans will be in place.

[64] That the Applicant is not aware of the rate at which the operator/s may reduce or increase output is not a basis on which to find that the notice does not comply with the requirements of s.414(6) of the Act.

[65] As was observed in Davids Distribution requiring absolute precision in a notice would impose an obligation almost impossible to fulfil and fails to recognise the dynamic nature of an industrial dispute. 16

[66] I agree. To impose on the CFMEU what the Applicant seeks would be a major and unrealistic constraint on legitimate industrial activity.

[67] As to Mr Hogarth’s mischievous complaint that he is not aware if the times given are AEDST or ‘Market Time’ it is apparent that, when times are mentioned, unless there is evidence to the contrary the time is the local time. There is no substance to this complaint.

[68] I am satisfied that the notice adequately conveys the time the proposed action will commence and finish each day. Nothing has been put to me to suggest that a greater level of particularity is necessary beyond mere convenience to the Applicant.

The identity of the persons who will engage in the industrial activity

[69] The Applicant is clearly aware of the identity of the class of employees who will engage in the proposed action. Mr Hogarth, in his witness statement, identifies operators as those who have some control over the output of the generators. He does not identify any other class of employees who may be engaged in the action such that there is some confusion in his mind as to who will engage in the activity.

[70] If it is that the Applicant does not know which of the operators are union members and who are not, there is nothing in the scheme of the Act which suggests to me that this information should be supplied to the employer in the context of industrial action.

[71] If the complaint is that employees who are not represented by the CFMEU as a bargaining representative may participate in the action then that is not a matter on which any argument was presented such that I could base a decision on.

[72] This is not a ground on which I could find that the notice does not meet the requirements of s.414(6) of the Act.

What steps the employer can take to rearrange its affairs to meet the inconvenience, risk and financial losses

[73] The purpose of the information contained in the notice, while designed to enable the employer to take defensive action, is not such that the employer should know all actions the union and its members may take for the duration of the notice.

[74] It is not the purpose of the notice to enable the employer to ‘meet the inconvenience, risk and financial loss’ as is put by Mr Forbes. If this were the purpose of the notice there would be little utility in the taking of industrial action. It cannot be ignored that industrial action is a tool used by workers to encourage the employer to meet their demands, normally for improved wages and conditions. All parties to bargaining will weigh up the costs and benefits of conceding some matters or being prepared to test conviction through industrial action.

[75] No decision referred to me stands for the proposition that the purpose of the notice is to enable the employer to meet the inconvenience, risk and financial losses.

Conclusion

[76] The decision here is finely balanced. I acknowledge the view of the Applicant that it considers the notice of proposed action is ‘hopelessly ambiguous.’ However, by its own evidence it has demonstrated that it does fully comprehend what is intended by the notice and how the proposed action will manifest.

[77] It should be noted that the authorities stand for the proposition that the notice under s.414 of the Act should specify the nature of the action. I find that the notice does in that it specifies a bans limiting output of the generators. One purpose of the notice is that the employer should have enough notice and information to enable it to take defensive measures. The Applicant has indicated that it is well aware of what will occur such that it can take defensive measures. That it cannot offset all of the inconvenience does not mean the nature of the action is not clear.

[78] Whilst I do not rely on it I note that the notice to employees pursuant to s.471(1)(c) supports the view that the Applicant does comprehend the intent of the notice.

[79] I find that the action proposed by the CFMEU is a ban in that it will require employees to cease taking direction as to the output required of generators and instead limit the output to 240 MW. That some output will still occur does not mean that there is not a ban in place for the specified periods.

[80] I find that the notice of proposed action does indicate the time that bans will commence and conclude each day.

[81] I therefore find that the notice given pursuant to s.414 of the Act satisfies the requirements of s.414, in particular, s.414(6) of the Act.

[82] The proposed action is therefore protected industrial action. The application for an order pursuant to s.418 of the Act is therefore dismissed.

[83] An order setting aside the interim order [PR534233] will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

J. Forbes of Counsel with D. Woodman and K. Lehane for the Applicant

A. Bukarica and G. Hardy for the Respondent

Hearing details:

2013.

Melbourne:

February 19

 1   PR533392

 2   Exhibit A1, annexure DH1.

 3   Applicant’s outline of submissions, [13].

 4  See Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia(Telstra v CEPU)[2009] FWAFB 1698 at [12]; Davids Distribution Pty Ltd v National Union of Workers (Davids Distribution) (1999) 165 ALR 550, 578 [87]-[89]; Adelaide Brighton Cement v Australian Workers Union & Ors (2002) 113 IR 104, [22]; CSBP Ltd v Liquor, Hospitality and Miscellaneous Union (2007) 162 IR 81 99, 100 [93] and [94]; Alcoa of Australia Limited v Australian Workers Union [2010] FCA 278.

 5   Adelaide Brighton Cement v Australian Workers Union (2002) 113 IR 104, [18]; Davids Distribution, [87]; Telstra v CEPU [12]; Berkeley Challenge Pty Ltd t/as Spotless v United Voice[2011] FWA 6421.

 6   Macquarie Dictionary. See also CEPU v Laing (1998) 89 FCR 17, 30-31; Williams v CFMEU (2009) 179 IR 441, 473, [89]-[91].

 7   Telstra v CEPU, [5].

 8 [2010] FCA 278.

 9   [2011] FWA 6421.

 10   [2011] FWA 6421, [46].

 11 (1999) 91 IR 198, [87].

 12   Telstra v CEPU, [18].

 13 (1999) 91 IR 198, [84].

 14 (1999) 91 IR 198, [88].

 15   Williams v CFMEU (2009) 179 IR 441, 473.

 16   Davids Distribution, [84].

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