Gladstone Ports Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Trades Union Division and Australian Worker's Union
[2024] FWC 3511
•17 DECEMBER 2024
| [2024] FWC 3511 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
Gladstone Ports Corporation Limited
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Trades Union Division and Australian Worker’s Union
(C2024/9026)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 17 DECEMBER 2024 |
Application for an order to stop alleged unprotected industrial action at the Port of Gladstone, Port of Rockhampton, Port of Bundaberg, and the non-trading Port of Maryborough – s.414(6) – whether notice requirements have been met - industrial action not unprotected – application dismissed.
An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) at 8.30pm on Sunday, 15 December 2024 by Gladstone Ports Corporation Limited (GPC/the Employer) who are responsible for managing and operating four port precincts which include the trading Ports of Gladstone, Rockhampton and Bundaberg and the non-trading Port of Maryborough.[1] These ports are very busy ports who support and facilitate key parts of the Queensland economy including, inter alia, its mining and sugar industries. GPC has been bargaining with four unions to replace its current Enterprise Agreement since 29 May 2024 during which time it has held 22 bargaining meetings.
It was alleged that commencing on 17 December 2024, members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Trades Union Division, Electrical Trades Union Division (ETU) and Australian Worker’s Union (AWU) (collectively, the Unions) employed by the Employer would undertake industrial action organised following notice given by the Unions on 11, 12 and 13 December 2024, and that the industrial action notified allegedly constituted unprotected industrial action due to deficiencies in the notice.
Hearing
This matter was allocated to my chambers on the morning of 16 December 2024. Given the application was lodged on Sunday 15 December and the statutory requirement that the matter must be determined within 2 days as far as practicable,[2] I was required to do all things reasonable to have the matter heard and decided by midnight on 16 December 2024. My Chambers immediately issued directions for the filing of submissions and evidence and the matter was listed for hearing at 4.00pm. Given the very tight timeframe to turn around the matter and finalise it, it was simply not possible to take the same approach that might be taken where more time was available to do so.
At the hearing GPC relied on the evidence of Mr Benjamin Hayden, Executive General Manager, Asset Management from GPC and the AWU relied on the evidence of Mr Kris Adams, Organiser, Gladstone.
Permission to appear
GPC sought to be represented before the Commission by Counsel instructed by a paid agent. The ETU sought to be represented by a lawyer from Hall Payne and the AWU represented themselves. None of the parties objected to the leave sought.
The Act provides that a party may be represented in a matter before the Commission only with the permission of the Commission.[3] It also provides the reasons that permission may be granted.[4] Previous cases determined by the Commission or superior courts, give guidance as to how these reasons should be considered.[5]
I provided the parties with an opportunity to make submissions about these issues. I was satisfied, particularly given the urgency with which these proceedings were brought and were required to be finalised, that it would assist the Commission to deal with the matters more efficiently with the granting of the leave sought and on that basis leave was given to GPC and the ETU to be legally represented.
Procedural matters
The application sought orders be made by the Commission against:
(a) the ETU;
(b) Employees of GPC who are members of the ETU and are covered by the proposed Gladstone Ports Corporation Enterprise agreement 2024;
(c) The AWU; and
(d) Employees of GPC who are members of the AWU and are covered by the proposed Gladstone Ports Corporation Enterprise agreement 2024.
The Legislative context
The application has been made pursuant to s.418 of the Act.[6] It alleges that the industrial action notified fails to comply with s.413(4) which says that where the notice requirements set out at s.414(6) of the Act are not met, the industrial action will not be protected. The notice requirements at s.414(6) of the Act simply require that any notice given “must specify the nature of the action and the day on which it will start”.
The meaning of industrial action is contained at s.419 of the Act.[7]
The Applicant’s Case
GPC’s case is detailed in its submissions and evidence which I don’t intend to repeat in their entirety, however briefly, GPC submits that industrial action the Unions notified should be stopped, and the Commission should make an order to that effect. The Employer submits that the industrial action is not protected due to the notices provided by the Unions failing to meet the requirements of s414(6) of the Act, and the Commission must make an order stopping the industrial action.
The Employer submits that the notices provided by the Unions are ambiguous and do not specify the nature of the industrial action in such a manner as to enable GPC to understand the proposed industrial action and to make reasonable preparations to deal with the effect of that action and/or to organise itself to take appropriate defensive action.
The Employer specifically alleged that proposed work stoppages by the AWU prevented the employer from making reasonable preparations to deal with the effect of that action. The notice from the AWU relevantly provided that work bans may be one (1), two (2), four (4), eight (8) or twelve (12) hour duration at times starting between 8.00am and 1.00pm on Wednesday, 18 December 2024 and ending at times between 8.00am and 1.00pm on Friday, 20 December 2024 which provided over 750 potential combinations of work bans. The Employer submits that this created too significant an ambiguity for it to reasonably prepare.
The Employer also alleged that where stoppages covered time where the Unions’ members may undertake partial work bans and these are inconsistent forms of industrial action, this creates significant ambiguity as to which will be in place. The Employer submits that this ambiguity creates further difficulties and puts the Employer in a state of confusion as to what functions the AWU’s members will perform.[8]
The Employer further raised concerns that the Unions’ bans on the use or utilisation of high-risk tickets was unclear. The Employer submitted that they did not have high-risk tickets, and as such this expression was ambiguous. Under cross-examination, Mr Hayden provided ticket was used quite often to mean any authorisation to perform high voltage switching. The Employer submits that the term is not adequate as a description of the industrial action to take place, and that the notice did not give the employer an understanding of what is contemplated.[9]
The Employer submitted that comply with s414(6), notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action.[10] The Employer submits that the proposed stoppages may occur at any time, and as such the Employer is left with no ability to act other than to assume no employees who are members of the Unions will attend work on 17 December 2024.[11] The construction given to the notice should be that which a reasonable person in the position of the employer would understand the notice to mean.
The Employer relies on Tidewater to assert that the subsequent withdrawal of notice of some industrial action cannot cure the defect in the notice as issued.[12] The Employer submits the Commission must make an order stopping the industrial action.
The ETU’s case
The ETU’s case is detailed in its submissions and evidence which I don’t intend to repeat in their entirety, however briefly, the ETU opposes the application for orders. The ETU notes that s414(6) only requires that the notice of industrial action specify the day on which industrial action is to start, and does not require that any further specification of time need be provided.
The ETU gave notice on 11 December 2024 that it would take the following industrial action:
· An unlimited number of stoppages of work for twelve (12) hours in duration between 12.01am and 11.59pm on Tuesday 17 December 2024.
· An unlimited number of bans on working additional hours, overtime, call out, on call and recall work between 12.01am and 11.59pm on Tuesday 17 December 2024.
· An unlimited number of bans on the use of high-risk tickets including, but not limited to EWP, HV switching and confined spaces between 12.01am and 11.59pm on Tuesday 17 December 2024.
· An unlimited number of bans on the completion of paperwork, including but not limited to preparation of correspondence, QA paperwork, completing work orders and HV switching sheets between 12.01am and 11.59pm on Tuesday 17 December 2024.
· An unlimited number of bans on issuing, accepting and/or working with permits between 12.01am and 11.59pm on Tuesday 17 December 2024.
· An unlimited number of bans on the use of technology such as computers, mobile phones, cliq keys, swipe cards, radios, tablets or similar devices including on the way in which such technology is used between 12.01am and 11.59pm on Tuesday 17 December 2024.
The ETU gave notice on 12 December 2024 that it would take the following industrial action:
· An unlimited number of stoppages of work for one (1) hour in duration between 12.01am and 11.59pm on Wednesday 18 December 2024.
· An unlimited number of bans on lock-out-tag-out, de-isolating/re-energizing between 12.01am and 11.59pm on Wednesday 18 December 2024.
· An unlimited number of bans on the use of technology such as computers, mobile phones, cliq keys, swipe cards, radios, tablets or similar devices including on the way in which such technology is used between 12.01am and 11.59pm on Wednesday 18 December 2024.
On 16 December 2024 at 9.36am, the ETU wrote to GPC and withdrew its notice relating to the following industrial action on 17 December 2024:
· working additional hours, overtime, call out, on call and recall work;
· the use of high-risk tickets including, but not limited to EWP, HV, switching and confined spaces;
· the completion of paperwork, including but not limited to preparation of correspondence, QA paperwork, completing work orders and HV switching sheets;
· issuing, accepting and/or working with permits; and
· the use of technology such as computers, mobile phones, cliq keys, swipe cards, radios, tablets or similar devices including on the way in which such technology is used.
I note the notified industrial action that remains in place from the ETU are:
· An unlimited number of stoppages of work for twelve (12) hours in duration between 12.01am and 11.59pm on Tuesday 17 December 2024;[13]
· An unlimited number of stoppages of work for one (1) hour in duration between 12.01am and 11.59pm on Wednesday 18 December 2024.[14]
· An unlimited number of bans on lock-out-tag-out, de-isolating/re-energizing between 12.01am and 11.59pm on Wednesday 18 December 2024. [15]
· An unlimited number of bans on the use of technology such as computers, mobile phones, cliq keys, swipe cards, radios, tablets or similar devices including on the way in which such technology is used between 12.01am and 11.59pm on Wednesday 18 December 2024. [16]
The ETU submits that the Applicant had an opportunity to object to the bans sought when the PABO application was made and it did not do so.
The ETU further submits that the Applicant is a sophisticated party and the information they have been provided in the notices is sufficient for them to determine what defensive action they need to take to prepare for the industrial action. Further they submit that the evidence of Mr Hayden demonstrates that.[17]
The ETU submit that the words used in the PABO questions and the notices provided to the Applicant are widely used.
The AWU’s case
The AWU’s case is detailed in its submissions and evidence which I don’t intend to repeat in their entirety, however briefly, the AWU submits that the Employer’s request to stop industrial action should be rejected, as there remains no ambiguity which could cause the industrial action to be unprotected industrial action.
On 12 December 2024, the AWU gave notice to the Employer that it would take the following industrial action:
a. stoppages of work, of one (1) hour duration commencing at 8.00am on Wednesday, 18 December 2024 and concluding at 8.00am on Thursday, 19 December 2024;
b. stoppages of work, of two (2) hour duration commencing at 9.00am on Wednesday, 18 December 2024 and concluding at 9.00am on Thursday, 19 December 2024;
c. stoppages of work, of four (4) hour duration commencing at 11.00am on Wednesday, 18 December 2024 and concluding at 11.00am on Thursday, 19 December 2024;
d. stoppages of work, of eight (8) hour duration commencing at 1.00pm on Wednesday, 18 December 2024 and concluding at 1.00pm on Thursday, 19 December 2024;
e. stoppages of work, of twelve (12) hour duration commencing at 8.00am on Wednesday, 18 December 2024 and concluding at 8.00am, Thursday, 19 December 2024;
f. periodic bans on overtime commencing at 6.00am on Wednesday, 18 December 2024
and concluding at 6.00am on Thursday, 19 December 2024;g. periodic bans on performing call outs commencing at 6.00am on Wednesday, 18
December 2024 and concluding at 6.00am on Thursday, 19 December 2024;h. periodic bans on the utilisation of high-risk tickets 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Thursday, 19 December 2024;
i. periodic bans on the performance of working additional shifts outside the normal roster commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am on 19 December 2024;
j. periodic bans on the use of electronic devices to document work commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Thursday, 19 December 2024;
k. periodic bans on the use of keys (including locks for doors, vehicles, personal isolation locks and electronic swipe keys) commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Thursday, 19 December 2024; and
l. periodic bans on working with contractors commencing at 6.00am on Wednesday, 18
December 2024 and concluding at 6.00am, Thursday, 19 December 2024
On 13 December 2024, the AWU gave notice to the Employer that it would take the following industrial action:
a. stoppages of work, of one (1) hour duration commencing at 8.00am on Thursday, 19 December 2024 and concluding at 8.00am on Friday, 20 December 2024;
b. stoppages of work, of two (2) hour duration commencing at 9.00am on Thursday, 19 December 2024 and concluding at 9.00am on Friday, 20 December 2024;
c. stoppages of work, of four (4) hour duration commencing at 11.00am on Thursday, 19 December 2024 and concluding at 11.00am on Friday, 20 December 2024;
d. stoppages of work, of eight (8) hour duration commencing at 1.00pm on Thursday, 19 December 2024 and concluding at 1.00pm on Friday, 20 December 2024;
e. stoppages of work, of twelve (12) hour duration commencing at 8.00am on Thursday, 19 December 2024 and concluding at 8.00am, Friday, 20 December 2024;
f. periodic bans on overtime commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am on Friday, 20 December 2024;
g. periodic bans on performing call outs commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am on Friday, 20 December 2024;
h. periodic bans on the utilisation of high-risk tickets 6.00am on Thursday, 19 December 2024 and concluding at 6.00am, Friday, 20 December 2024;
i. periodic bans on the performance of working additional shifts outside the normal roster commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am on Friday, 20 December 2024;
j. periodic bans on the use of electronic devices to document work commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am, Friday, 20 December 2024;
k. periodic bans on the use of keys (including locks for doors, vehicles, personal isolation locks and electronic swipe keys) commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am, Friday, 20 December 2024; and
l. periodic bans on working with contractors commencing at 6.00am on Thursday, 19 December 2024 and concluding at 6.00am, Friday, 20 December 2024.
On 16 December 2024 at 10.18am, the ETU wrote to GPC and withdrew its notice relating to the following industrial action:
a. stoppages of work, of one (1) hour duration commencing at 8.00am on Wednesday, 18 December 2024 and concluding at 8.00am on Thursday, 19 December 2024;
b. stoppages of work, of two (2) hour duration commencing at 9.00am on Wednesday, 18 December 2024 and concluding at 9.00am on Thursday, 19 December 2024;
c. stoppages of work, of four (4) hour duration commencing at 11.00am on Wednesday, 18 December 2024 and concluding at 11.00am on Thursday, 19 December 2024;
d. stoppages of work, of eight (8) hour duration commencing at 1.00pm on Wednesday, 18 December 2024 and concluding at 1.00pm on Thursday, 19 December 2024;
a. stoppages of work, of one (1) hour duration commencing at 8.00am on Thursday, 19 December 2024 and concluding at 8.00am on Friday, 20 December 2024;
b. stoppages of work, of two (2) hour duration commencing at 9.00am on Thursday, 19 December 2024 and concluding at 9.00am on Friday, 20 December 2024;
c. stoppages of work, of four (4) hour duration commencing at 11.00am on Thursday, 19 December 2024 and concluding at 11.00am on Friday, 20 December 2024;
d. stoppages of work, of eight (8) hour duration commencing at 1.00pm on Thursday, 19 December 2024 and concluding at 1.00pm on Friday, 20 December 2024;
The AWU submits that its withdrawal of the proposed stoppages aside from the 12-hour stoppages served to effectively resolve any concern the Employer had resulting from a potential ambiguity as to the length of stoppages its employees may undertake. As the actions from (a) to (d) in its two notices are withdrawn, and there is no ambiguity in (e) taken alone, there are no grounds to make an order restraining the AWU’s members from taking the industrial action notified in (e).
The AWU submits that the Employer’s assertion that items (g) and (h) are in substantially identical terms is false. Items (g) refer to bans on performing call outs, understood by employees of the Employer to refer to being called to work outside of normal hours, or being called back to work to perform overtime. Items (h) refer to bans on work utilising high-risk tickets, which is not limited to performing that work in circumstances when the employee is on call out due to a high-risk ticket. The AWU submits that the employer also had opportunity to raise this concern prior to the protected action ballot order being made.
As such, the AWU submits that no order should be made restraining its members from taking the notified industrial action which was not withdrawn.
At hearing the AWU repeated the submissions made by the ETU.
I note the notified industrial action that remains in place from the AWU are:
e. stoppages of work, of twelve (12) hour duration commencing at 8.00am on Wednesday, 18 December 2024 and concluding at 8.00am, Friday, 20 December 2024;
f. periodic bans on overtime commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am on Friday, 20 December 2024;
g. periodic bans on performing call outs commencing at 6.00am Wednesday, 18 December 024 and concluding at 6.00am on Friday, 20 December 2024;
h. periodic bans on the utilisation of high-risk tickets 6.00am on Wednesday, 18 2024 and concluding at 6.00am, Friday, 20 December 2024;
i. periodic bans on the performance of working additional shifts outside the normal roster commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am on Friday, 20 December 2024;
j. periodic bans on the use of electronic devices to document work commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Friday, 20 December 2024;
k. periodic bans on the use of keys (including locks for doors, vehicles, personal isolation locks and electronic swipe keys) commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Friday, 20 December 2024; and
l. periodic bans on working with contractors commencing at 6.00am on Wednesday, 18 December 2024 and concluding at 6.00am, Friday, 20 December 2024.
Consideration
In setting out my consideration of the issues raised by the parties, I do not intend to list each and every issue raised in detail however that is not indicative of any failure to consider each of those issues. I have indeed carefully considered each, and every issue raised by the parties and I seek only to highlight the more notable arguments that demonstrate the reasons for my findings.
First, I am required to make a finding as to whether the proposed industrial action would be protected or unprotected.[18] To determine this I must find whether the notice give under s.414(6) specifies the nature of the action and the day on which it will start. The authorities are clear that the purpose of this section of the Act is to provide the Employer with an opportunity to the action proposed by making preparations.[19] The authorities also note the need to take into account the specific circumstances, context and nature of the organisation and action being taken.
Having considered the remaining bans for which notices remain, I do not find they are ambiguous to the point of rendering GPC unable to understand what actions might be taken and to make arrangements to take defensive action in the period of notice provided. I accept that they could cause a great deal of disruption to GPC’s operations in having to cater for different scenarios however that is a legitimate part of taking protected industrial action. Even when bans have no overlap they will more often than not give rise to multiple potential problems that must be addressed by the employer. This does not mean that the employer is unable to understand the actions that might be taken and to make adequate plans to mitigate against the negative impact of those actions. In these circumstances, in light of the context, the business of GPC and the bans for which notice remains, I am satisfied that whilst there are legitimate challenges, GPC has sufficient particulars in the nature and timing of the proposed actions provided in the notices, combined with its own knowledge of its business operations, in which to consider and put in place appropriate defensive actions.
Where I have determined that the industrial action is protected then I do not need to turn my mind to whether s.418 requires me to make an order. I will however address the submissions of GPC in respect of their submissions that the subsequent withdrawals of action cannot be considered in determining the matters before me. In this respect I note the Applicant relied on the authority in Tidewater.[20] In my view, Tidewater can be distinguished from the present matter in that in Tidewater, the subsequent communication sought to further clarify the industrial action for which notice had been given. In the present case, the Respondents have withdrawn a number of the notices given in their entirety. In those circumstances, I find that the industrial action for which notices have been withdrawn cannot be found to be happening,[21] threatened, impending or probable,[22] or is/are being organised.[23] This is in my view consistent with the High Court in Esso[24] where the High Court referred to the assessment of the contravention being concerned with “what is happening at the point of inquiry.”[25]
Conclusion
I am satisfied on the evidence before me that the remaining notices issued by the ETU and the AWU satisfy the requirements of s.413(4) and s.414(6) of the Act. On that basis I find that the industrial action foreshadowed is protected. The Application is dismissed. I so order.
DEPUTY PRESIDENT
Appearances:
Mr Charles Martin of Counsel instructed by Ms Bridget O’Connor of Mapien for Gladstone Ports Corporation Limited.
Mr Sunil Kemppi of Hall Payne Lawyers instructed by Ms Margarita Cerrato for the ETU.
Mr Aaron Santelises of the AWU for the AWU.
Hearing details:
By Video
Brisbane
16 December 2024.
<PR782529>
[1] Digital Court Book (DCB) p.6.
[2] Fair Work Act 2009 (Cth) s.420.
[3] Section 596(1) of the Act.
[4] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[5] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act (see the decision in Warrell v Fair Work Australia [2013] FCA 291). The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted (see the decision in Warrell v Fair Work Australia [2013] FCA 291).
[6] “418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC 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;
the FWC 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.
Note: For interim orders, see section 420.(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
[7] “(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform..’
[8] Tidewater Marine Australia Pty Ltd v Maritime Union of Australia [2014] FCA 172 (“Tidewater”).
[9] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd [2010] FCA 1350 at [58].
[10] Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 1698.
[11] Ibid [16].
[12] Tidewater at [28].
[13] DCB p.94 Exhibit R1, BH5.
[14] DCB p.100 Exhibit R1, BH11.
[15] DCB p.101 Exhibit R1, BH12.
[16] DCB p.102 Exhibit R1, BH13.
[17] DCB pp.62-63.
[18] Fair Work Act 2009 (Cth) s.414(6).
[19] Telstra Corporation Ltd v CEPU (2009) 190 IR 342; [2009] FWAFB 1698 at [12], [13], [14] to [18]; see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd (2010) 190 FCR 581; [2010] FCA 1350 at [58]
[20] Tidewater Marine Australia Pty Ltd v Maritime Union of Australia [2014] of FAC 172 at [28] (Tidewater).
[21] Fair Work Act 2009 (Cth) s.418(1)(a).
[22] Ibid s.418(1)(b).
[23] Ibid s.418(1)(c).
[24] Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at [36].
[25] Ibid.
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