Five Pillar Holdings Pty Ltd

[2019] FWC 3248

[2019] FWC 3248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Five Pillar Holdings Pty Ltd
(AG2018/3476)

DEPUTY PRESIDENT BEAUMONT PERTH, 15 MAY 2019

Application for approval of the Five Pillar Holdings Pty Ltd Linehaul Drivers and Local Drivers Enterprise Agreement 2018 - 2021.

[1] Five Pillar Holdings Pty Ltd (Five Pillars) made an application for the approval of an enterprise agreement known as the Five Pillar Holdings Pty Ltd Linehaul and Local Drivers Enterprise Agreement 2018-2021 (the Agreement).

[2] I informed Five Pillars that there were issues regarding its process for making the Agreement which may preclude it from being approved. In response, Five Pillars requested to be heard in respect of those issues.

[3] In the Form F17 Statutory Declaration of Mr Wade Jolly, Managing Director of Five Pillars (Form F17), 1 the date for the ‘notification time’ and the issuance of the last Notice of Employee Representational Rights (Notice) was 15 June 2018. This date aligns with Mr Jolly’s evidence.2 However, the date concerning the ‘notification time’ is not so clear. While it is advanced that the notification time was 15 June 2018, the evidence of Mr Jolly in his witness statement and at hearing, may not support such a finding. That evidence suggests that the notification time was when Mr Jolly formally requested that employees nominate a representative on 1 September 2017. If this was the notification time then the Notice was not provided as soon as practicable, and not later than 14 days after the notification time for the Agreement.3

[4] Even if the stated notification time was 15 June 2018, this may also have implications for Five Pillars. By 15 June 2018, Five Pillars had arrived at what it considered to be a final draft position for the Agreement. Five Pillars had distributed the draft Agreement to relevant employees, absent pay rates, on 11 June 2018. Over the course of 5, 11, 12, 13, and 14 June 2018, Mr Jolly held meetings with spokespersons of each department. This occurred before the last Notice was issued.

[5] Mr Jolly gave evidence that on 15 June 2018 he sent an email to employees that explained the terms of the draft Agreement, attached the Notice, and notified employees of the voting method, date, time, and place.

[6] A meeting thereafter took place on 18 June 2018 with an Industrial Officer of the Transport Workers’ Union WA (TWU).

[7] The issues that arise are set out below.

a) It is contended the notification time was 15 June 2018. However, the evidence may not support such a finding.

b) If the notification time was 15 June 2018, it is apparent that bargaining meetings were held before this date with ‘spokespersons’ to discuss the content of the proposed Agreement. It therefore appears that bargaining had commenced, and bargaining meetings had been held, before the Notice was distributed.

c) If the notification time was 1 September 2017, when Mr Jolly asked drivers to formally nominate representatives for enterprise agreement discussions, then it is apparent the Notice was given to the employees later than the 14 days required by s 173(3) of the Act.

d) Whether the Agreement was genuinely agreed to within the meaning of s 188(1).

e) If I am not satisfied that the Agreement has been genuinely agreed to within the meaning of s 188(1):

i. is it because of a result of an error, or errors made in relation to the requirements of section 173(3) relating to the Notice; 4

ii. is the error a minor procedural or technical error as referred to in s 188(2)(a);

iii. were employees covered by the agreement not likely to have been disadvantaged by the error or errors.

f) Whether Five Pillars complied with s 180(5), and took all reasonable steps to explain the terms of the Agreement and their effect in light of the circumstances and needs of the employees.

[8] Having considered the submissions and evidence of Five Pillars, I have concluded that the Agreement was not genuinely agreed to because of non-compliance with s 173(3). The non-compliance did not constitute a minor error as that term is understood in s 188(2), and I could not conclude that the relevant employees covered by the Agreement were not likely to have been disadvantaged by the error.

[9] The requirements set out in s 186(2)(a) of the Act have not been met, and the application to approve the Agreement is therefore dismissed. An Order to that effect is published concurrently with this Decision. 5

[10] With regard to whether Five Pillars took all reasonable steps as referred to in s 180(5), I have concluded that it did not. However, because of the conclusion reached regarding s 173(3), it is unnecessary to consider the applicability of s 188(2) in the circumstances of the s 180(5) issue.

Agreement negotiations and the restructure of Five Pillars

[11] Five Pillars is a transport company consisting of five different departments. These are the Linehaul Express Driver Team, Cleanaway Driver Team, Local Driver Team, Linehaul Drive Team, and the Container Driver Team. Each department was said to have an ‘unofficial spokesperson’, or ‘spokespersons’.

[12] The Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010 are the relevant reference instruments.

[13] In late 2017, Mr Jolly commenced discussions with employees on a restructure of the company and a new enterprise agreement. 6 He said that he met with local drivers on 1 September 2017 to discuss the proposed agreement, and asked them to formally nominate representatives for enterprise agreement discussions.7 No employees volunteered.8

[14] Come 11 June 2018, Mr Jolly provided employees with a copy of a proposed Agreement. 9 The copy provided did not contain wage rates.10

[15] Mr Jolly said that he met with employees who were the usual spokesperson for their groups to discuss and explain the proposed Agreement. 11 His evidence was that the spokespersons for each of the groups were generally long serving employees, who were both vocal and articulate.12 Mr Jolly said that some had previously held union positions.13 The meetings took place over a series of dates in June with spokesperson(s) of the:

a) Express Linehaul Drivers on 5 June 2018;

b) Express Linehaul Drivers North West on 11 June 2018;

c) Cleanaway Linehaul Drivers on 12 June 2018 and 19 June 2018;

d) General Linehaul Drivers on 13 June 2018; and

e) Container Drivers on 14 June 2018. 14

[16] Mr Jolly said that on 15 June 2018 he sent an email to employees in each of the five departments. The contents of the email were said to have explained the terms of the Agreement and its impact. 15 The email dated 15 June 2018 commenced with:

Good Afternoon Linehaul Express Driver Team

As discussed earlier in the week we have now got to a final draft position for the proposed Enterprise Agreement for Five Pillar Holdings Pty Ltd.

Please find a copy attached as well as a summary letter and the notice of representational rights form. As we are required to give the employees 21 days to review the attached before voting we will be voting on Saturday 7^th July…..

[17] Mr Jolly’s evidence regarding information about the vote was that on 15 June 2018, the employees were given by hand or email, a letter explaining the voting process and notifying them of the voting method, date, time, and place at which the vote was to occur.

[18] Mr Jolly added that after 15 June 2018 he met with individual employees on an adhoc basis to explain and discuss the Agreement. 16 A further meeting was held on 20 June 2018 to discuss the Agreement with drivers at the ‘Daddow Road’ site.17

[19] According to Mr Jolly, and Mr Ernest Webb, an employee of Five Pillars, a meeting to discuss the Agreement took place with Mr Joel Clarke, Industrial Officer of the TWU, on 18 June 2018. 18

[20] Evidence was given by Mr Jolly about the restructure of the business. Mr Jolly explained that Five Pillars was owned by Allpoint Nominees Pty Ltd (Allpoint). Allpoint also owned KTrans WA, and all of the assets of the group.

[21] Mr Jolly said that he informed the employees that Five Pillars would be the ‘employee company’ for ‘our future businesses’. As it was, Mr Jolly said there were apparently eight different pay structures across the business, and each pay structure had different superannuation calculations, annual leave calculations, base rates and driving rates. In the email dated 15 June 2018, Mr Jolly had set out that the purpose of the Agreement was to have a clear and consistent set of working conditions for all employees.

[22] On 7 July 2017, the vote commenced and concluded. While there were 67 employees covered by the Agreement, only 22 voted, with 16 voting to approve the Agreement. 19

Legislation

[23] For present purposes, it is only necessary to outline the statutory framework in so far as it deals with the process for the making of a single enterprise agreement made between an employer and its employees.

[24] Section 186(1) requires the Commission to approve an enterprise agreement if the requirements set out in ss 186 and 187 are met. If the agreement is not a greenfields agreement, the approval requirements include that the Commission ‘must be satisfied that … the agreement has been genuinely agreed to by the employees covered by the agreement’. 20

[25] Section 188(1) provides that an enterprise agreement has been ‘genuinely agreed’ to by the employees covered by the agreement if the Commission is satisfied that the employer, or each of the employers, covered by the agreement complied with:

a) the pre-approval steps in ss 180(2), (3) and (5) — being that the employer must take all reasonable steps to:

i. ensure that during the ‘access period’, the ‘relevant employees’ are given a copy of the text of the agreement and any material incorporated by reference into it, or have access throughout the access period to a copy of those materials;

ii. notify the relevant employees by the start of the access period of the time and place at which the vote will occur and of the voting method; and

iii. ensure that the terms of the agreement and their effect are explained to the employees in an appropriate manner taking into account their particular circumstances and needs; and

b) the ‘notice of employee representational rights’ (notice) requirement in s 181(2) — being that employees not be asked to approve the agreement by voting on it until at least 21 days after the day on which the last notice under s 173(1) is given; 21

c) the agreement was made by an employee vote in accordance with ss 182(1) or 182(2); 22 and

d) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. 23

[26] Section 173 sets out the requirements for giving the notice to employees:

a) the employer must take all reasonable steps to give the notice to each employee who will be covered by the agreement and is employed at the ‘notification time’ (unless a notice was already given within a reasonable period before the notification time); 24

b) the employer must give the notice as soon as practicable, and not later than 14 days, after the notification time. 25

[27] The ‘notification time’ for a proposed enterprise agreement is defined in s 173, as the time when ‘the employer agrees to bargain, or initiates bargaining, for the agreement’.

[28] Section 188(2), was added to the Act by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth). It follows s 188(1) and provides:

(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174. 26

When was the notification time?

[29] There is an issue concerning the notification time for Agreement. What constitutes an agreement to bargain is not defined in the Act. In Transport Workers’ Union of Australia v Hunter Operations Pty Ltd (Hunter), 27 the Vice President considered that an employer may agree to bargain expressly in writing or orally, or that an employer may be inferred to have agreed to bargain through its conduct (such as by commencing to actually engage in bargaining in relation to a proposed enterprise agreement).28

[30] Further, having considered s 173, and the definition of ‘notification time’, the Vice President observed that the definition indicated that an employer’s agreement to bargain was a single event which happened at a particular time. 29 In Maritime Union of Australia v Maersk Crewing Australia Pty Ltd,30the Full Bench approved of the Vice President’s observations.

[31] Five Pillars submitted that it was open to the Commission to find that the notification time was either 11 June 2018 or 5 June 2018. On 11 June 2018 a draft Agreement was distributed to employees. On 5 June 2018, Mr Jolly commenced discussions with employee spokespersons. Either way, according to Five Pillars, if it was accepted that 5 June or 11 June 2018, then it was the case that the Notice was distributed within 14 days of bargaining commencing.

[32] Whether an employer has agreed to bargain or has initiated bargaining in relation to a proposed enterprise agreement is a question of fact. 31 A Notice is an indicator of employer intention – but not necessarily the determining factor.32

[33] In its submissions, Five Pillar acknowledged that discussions about a new enterprise agreement started in late 2017. Mr Jolly’s evidence goes as far as to say that he met with drivers to discuss a proposed enterprise agreement and asked them to formally nominate representatives for enterprise agreement discussions. 33 It is evident that at this point Mr Jolly had, on behalf of Five Pillars, unequivocally agreed to bargain. So much is clear from the request to ‘formally nominate representatives’. Therefore, based on this sworn evidence, I have found that the notification time was 1 September 2017.

Was the Notice given to the employees later than the 14 days required by s 173(3) of the Act?

[34] To be satisfied that an agreement was genuinely agreed, the Commission is required to be satisfied that there was compliance with the pre-approval steps, 34 and that employees were not requested to approve an enterprise agreement until at least 21 days after the last notice is given. Further, the Commission must be satisfied that the agreement was made in accordance with s 182(1),35 and there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the parties.36

[35] Having regard to the statutory context within which it appears, genuine agreement by employees in s 188(1)(a)(ii) requires that the last notice under s 173(1), which must be given at least 21 days in advance of a request to vote, is a notice of the type prescribed in s 173. In order for that notice to be valid, it must be issued in conformity with s 173(3). 37

[36] Given the notification time of 1 September 2017, it is apparent that Five Pillars was non-compliant with s 173(3). Having found this to be the case, it cannot be said that the Agreement was genuinely agreed to as that term is understood in s 188(1).

[37] The question that then arises is whether I would nevertheless have been satisfied that the Agreement was ‘genuinely agreed’ to under s 186(2)(a) and s 188(1),‘but for’ minor errors made in relation to the bargaining provision in s 173(3). 38

[38] To note, if it were the case that I was wrong concerning the notification time, and it was either 5 June 2018 or 11 June 2018, it remains the case that several bargaining meetings had been held prior to the issuance of the Notice on 15 June 2018. In those circumstances, it cannot be said that the Notice had been issued as soon as practicable notwithstanding that it had been provided ‘not later than 14 days’. Employees are to be informed at the earliest practicable time that bargaining is occurring, and of their representational rights in that process. 39

Was the Agreement genuinely agreed to, but for a minor error regarding the Notice?

[39] Section 188(2) provides a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s 186(2)(a), despite minor procedural or technical errors. 40

[40] In Huntsman, 41the Full Bench explained that a failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s 188(2)(a). A procedural requirement is one that requires an employer to follow a particular process or course of action e.g. providing employees with a notice as soon as practicable, and not later than 14 days after the notification time.42

[41] In Huntsman the Full Bench said that the determination of whether an error constitutes a ‘minor error’ within the meaning of s 188(2) calls for an evaluative judgment, having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with, and the relevant circumstances. 43

[42] The underlying purpose of issuing the notice is to ensure that employees understand their representational rights within a reasonable period before bargaining commences; thus allowing them to exercise those rights in a timely manner. 44

[43] While providing the Notice later than the 14 days stipulated by s 173(3) may constitute a ‘minor’ procedural error, in this case I am not persuaded it is. At the notification time, Mr Jolly asked employees to appoint representatives. He stated that no one volunteered. Perhaps this was unsurprising given none of the employees had been provided with the Notice in or around this time.

[44] It is said that the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. 45 Further, it may also be the case that what appears to be a more significant instance of non-compliance may still be categorised as a ‘minor error’, when considering the particular circumstances.46

[45] Five Pillars advanced that there was nothing within the confines of the Act that precluded discussions on a proposed enterprise agreement before a Notice is issued. However, clearly the legislature contemplated that the notification time and issuance of the Notice would have a close temporal association. When one considers the purpose of the Notice, so much is clear. Once the employer agrees to bargain it is important for employees to understand their representational rights. After all, they have a vested interest in the terms and conditions to be afforded to them; negotiated through that same bargaining process.

[46] Five Pillars advanced that the draft Agreement distributed on 11 June 2018, which was discussed with employees before the issuance of the Notice did not include wage rates, but was, in all other aspects, no different to the proposed Agreement distributed on 15 June 2018 with the Notice. Further, the meetings that took place before 15 June 2018 (five out of the seven bargaining meetings with spokespersons took place before the Notice was issued) involved the usual spokespersons for each department. Five Pillars submitted that once the Notice was issued, no one officially appointed an employee representative.

[47] Once the Notice was issued there were two further meetings with spokespersons. One with the spokespersons of Cleanaway Linehaul Drivers, and the other with drivers at the ‘Daddow Road’ site. A meeting was also held on 18 June 2018 with an industrial officer of the TWU. The evidence of Mr Jolly was that after 15 June 2018 he also met with individual employees on an adhoc basis to explain and discuss the Agreement.

[48] Five Pillars submitted that as a result of holding discussions with employees about the proposed Agreement after 15 June 2018, it agreed to a $60 per day allowance for oversize loads. This was, according to Five Pillars, to be included in the Agreement by the way of an undertaking, and demonstrated that there had been meaningful discussions with employees after the Notice was provided.

[49] It is evident from the account provided by Mr Jolly that while there were ad hoc meetings with individual employees after 15 June 2018, bargaining had essentially taken place prior to that date; and as a consequence, prior to the time that the Notice was issued.

[50] It might be suggested that the late provision of the Notice did not prevent employees from attending the initial bargaining meetings and therefore influencing the process in light of securing a $60 a day allowance. However, the evidence is indicative that this was a concession made late in the process and after the main content of the Agreement had been determined. At question 3.5 of the Form F17 it stated ‘Clause 5.7 Allowances No oversize allowance but the employer is prepared to provide an undertaking for a $60 per day allowance’.

[51] Bargaining meetings were held with employees who were the usual spokesperson for their groups to discuss and explain the proposed Agreement, and those employees were long serving, vocal and articulate. However, it does not follow that such spokespersons were appointed by the relevant employees, having exercised an informed choice after being notified of their representational rights. It may have been an accepted ‘informal’ practice, but patently it was not one endorsed by the Act.

[52] It was not until 15 June 2018, when several bargaining meetings had been held that the Notice was issued. By then the majority of bargaining meetings had taken place. The opportunity for employees to influence the bargaining process through the appointment of a bargaining representative of their choice had been lost. While Five Pillars took steps to perhaps address the adverse impact of the non-compliance in the form of ad hoc meetings post 15 June 2018, the concession achieved by the employees was a proposed undertaking noted in the Form F17 of a $60 per day allowance. This entitlement was absent from the body of the Agreement at clause 5.7.

[53] In Huntsman the Full Bench outlined a table of potential ways in which employees may be disadvantaged in relation to minor errors. One such minor error was the failure to issue the notice as soon as practicable, and no later than 14 days, after the notification time for the agreement. However, the inclusion of s 173(3) in Table 2 of the Huntsman decision does not suggest that non-compliance with s 173(3) will always constitute a minor procedural error. As observed, the determination of whether an error constitutes a ‘minor error’ within the meaning of s 188(2) calls for an evaluative judgment. 47

[54] The High Court in Aldi Foods Pty Limited v SDA, 48 observed when discussing ss 173 and 176 of the Act, that these provisions serve to ensure that employees referred to in s 172(2)(a) were able to call upon the negotiating skills and bargaining strength of employee organisations if they wanted. Such representation was said to minimise the inequalities of bargaining power that might otherwise adversely affect the outcome of their negotiations with their employer.49

[55] I found that the notification time was 1 September 2017. From that date, or no later than 14 days after that date, the relevant employees should have been provided with the Notice that provided requisite information about representation during the bargaining process. They were not. Bargaining meetings thereafter occurred in June 2018 at a time when the employees had not been provided with the requisite Notice.

[56] Given what has been written, it cannot be said that the procedural error was one that was minor. Employees were not informed until 15 June 2018 of their representational rights.
It is true that on 18 June 2018, Mr Jolly met with an Industrial Officer of the TWU, but by then a final draft of the Agreement had been arrived at. It is also true that at some point there was agreement to provide an oversize allowance, but this concession was presented not as an amendment to the substantive terms of the Agreement that went to the vote, but rather as an undertaking referred to in the body of the Form F17. These factors do not persuade me that the error was minor.

Were the employees covered by the Agreement were not likely to have been disadvantaged by the errors?

[57] It is said that the disadvantage that may arise from providing the notice later than 14 days after the notification time is that the employees may have been prevented from attending initial bargaining meetings, and thus effectively influencing the bargaining process even after they do participate. 50 The evidence before the Commission was that employees were represented by the usual spokesperson for their department. However, it is unclear on the sworn evidence whether these spokespersons were nominated by the relevant employees, and marked the employees’ exercise of an informed choice. As such, it cannot be assumed that the spokespersons represented the interests of the employees having not been nominated under the process provided for by the Act.

[58] Five Pillars submitted that there were no nominations received for bargaining representatives after the Notice was provided. Perhaps the inference that arises is that the issuing of the Notice on 15 June 2018 was inconsequential, because, in any event, no employee bargaining representatives were nominated following that date. However, the counter contention is that five bargaining meetings had been held with the usual spokespersons, a final draft of the Agreement had been arrived at, and one could, on an objective basis, perceive a lack of utility in appointing a bargaining representative at that stage.

[59] It appeared that the content of the final draft Agreement had, for all intents and purposes, been decided upon by Five Pillars with little input from the employees. Five Pillars submitted that discussions with employees after the proposed Agreement was issued on 15 June 2018 had resulted in Five Pillars ultimately agreeing to a $60 per day allowance for oversize loads which would be included in the Agreement by way of an undertaking. However, this submission is telling. The employees’ input into the Agreement was manifested in the form of the sentence in response to question 3.5 of the Form F17 as referred to in paragraph 51. Had this term been discussed during the course of the negotiations and agreed upon, surely it would have been inserted into the proposed Agreement to be voted upon. It was not.

[60] It has not been necessary to determine whether the employees covered by the Agreement were not likely to have been disadvantaged by the errors. This is because I have concluded that the error was not a minor procedural error. However, if obliged to determine whether the employees were not likely to have been disadvantaged, I cannot conclude that this would be the case.

Were all reasonable steps taken to ensure that the terms of the agreement were explained?

[61] As has been observed, on 15 June 2018 Mr Jolly sent out an email to the relevant 67 employees outlining the proposed business restructure, the purpose of pursuing an enterprise agreement, voting information, and an explanation ‘snapshot’ that detailed working conditions said to be ‘extremely good’.

[62] What is evident from the email of 15 June 2018 was that Mr Jolly was commendably transparent with the Five Pillars workforce, and provided a detailed explanation concerning what it is was they would be paid under the Agreement, and how it differed from their current pay.

[63] However, this explanation was provided at a time when bargaining meetings were still on-going. In the decision of Health Services Union v Clinpath Laboratories Pty Ltd; Strath, Jenny and Others the Full Bench stated: 

We note that in its F17 statutory declaration, the company adverted to information sessions, and meetings of the consultative committee during the bargaining process, as well as the provision of summary progress updates sent to staff.  However, these matters go to the negotiation of the Agreement rather than the explanation of the final terms of the Agreement and their effect, as contemplated by s 180(5). 51

[64] Mr Jolly gave evidence regarding ad hoc meetings held post 15 June 2018, as did Mr Sam Keene, another leader within the business. While these meetings were held with individuals, and at times with groups, it is not apparent on the sworn evidence that an explanation of the final terms of the Agreement was provided to all relevant employees.

[65] Section 186(2) requires that the Commission must be satisfied that the enterprise agreement has been genuinely agreed to and in that respect the term ‘genuinely agreed to’ is given meaning by s 188. Section 188(1) informs the reader that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the Commission, is, amongst other matters, satisfied that the employer has complied with s 180(5). No such state of satisfaction has been reached.

Conclusion

[66] In light of the my conclusion that the Agreement had not been genuinely agreed to because of the non-compliance with s 173(3), and that such non-compliance did not constitute a minor error (s 188(2)), it is the case that the application to approve the Agreement is dismissed. The requirements set out in s 186(2)(a) of the Act have not been met.

[67] Because of this conclusion it is unnecessary to consider the applicability of s 188(2) in the circumstances of non-compliance with s 180(5).

DEPUTY PRESIDENT

Appearances:

Mr J Uphill for the Applicant

Hearing details:

8 February 2019

Printed by authority of the Commonwealth Government Printer

<PR708197>

 1   Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) Wade Jolly dated 18 July 2018 (Form F17).

 2   Witness Statement of Mr Wade Jolly (Jolly Statement).

 3   Fair Work Act 2009 (Cth) s 173(3).

 4   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318, [117] (Huntsman).

 5   PR708196.

 6 Jolly Statement [2].

 7   Ibid.

 8   Ibid.

 9 Ibid [3].

 10   Ibid.

 11 Ibid [4].

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15 Ibid [5].

 16 Ibid [6].

 17 Ibid [7].

 18 Witness Statement of Ernest ‘Wally’ Webb dated 25 January 2019, [2] – [3].

 19   Form F17.

 20   Fair Work Act 2009 (Cth) s186(2)(a).

 21   Ibid s 188(a).

 22   Ibid s 188(b).

 23   Ibid s 188(c).

 24   Ibid ss 173(1), 173(4)

 25 Section 173(3).

 26   Fair Work Act 2009 (Cth) s 188(2) (emphasis in original).

 27   [2014] FWC 7469.

 28 Ibid [50].

 29   Ibid.

 30   [2016] FWCFB 1894 [34] – [35].

 31 Ibid [35].

 32   Ibid.

 33 Jolly Statement [2].

 34   Fair Work Act 2009 (Cth) s 188(1)(a)(i).

 35   Ibid s 188(1)(b)

 36   Ibid s 188(1)(c).

 37   [2014] FWC 7469 [79].

 38   Fair Work Act 2009 (Cth) s 188(2).

 39   [2014] FWC 7469 [78].

 40   [2019] FWCFB 318 [1].

 41   Huntsman[2019] FWCFB 318 [56].

 42   Ibid.

 43 Ibid [74].

 44   Ibid.

 45 Ibid [79].

 46 Ibid [80].

 47 Ibid [74].

 48 [2017] HCA 53

 49 Ibid [38].

 50   Huntsman [2019] FWCFB 318 [74].

 51   [2018] FWCFB 5694 [25].