In the matter of the entry permit of Mr Douglas Charles Heath

[2021] FWC 4242

[2021] FWC 4242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603—Application to vary or revoke a FWC decision

In the matter of the entry permit of Mr Douglas Charles Heath
(RE2020/866)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 26 JULY 2021

Failure to disclose a permit qualification matter – whether to revoke entry permit issued to Mr Heath – whether fit and proper person to hold an entry permit under the Act – satisfied Mr Heath is a fit and proper person to hold a conditional permit – order varying decision pursuant to s 603 – permit amended to reflect conditions.

[1] On 12 November 2020 I decided to issue an entry permit to Mr Douglas Charles Heath, an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Mr Heath had earlier been issued an entry permit which was due to expire on 22 November 2021.¹ In correspondence to the Commission dated 2 October 2020, the CFMMEU indicated that Mr Heath has misplaced this permit and after taking reasonable steps to locate it has been unable to do so. On application by the CFMMEU, that permit was revoked and after taking into account the permit qualification matters in relation to which declarations filed by Mr Heath and Mr William Warren Tracey, CFMMEU Divisional Deputy National Secretary (the Declarations) in support of the CFMMEU’s application for the issuing of a new permit were made, a permit was issued.²

[2] The assessment under s 512 of the Fair Work Act 2019 (Act) of the fitness and propriety of a proposed permit holder the subject of an application for a permit requires taking into account the permit qualification matters set out in s 513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. One such permit qualification matter is set out in s 513(1)(d) of the Act in relation to which the Declarations filed disclosed that neither Mr Heath nor any other person has been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him.

[3] This was incorrect. The CFMMEU and Mr Health both accept that this was so. In the result a mandatory relevant consideration was not properly taken into account, or more accurately, was weighed incorrectly in assessing whether Mr Health is a fit and proper person to hold an entry permit.

[4] The issue that arises now, brought about because the Australian Mines and Metals Association (AMMA) raised concerns about the failure to disclose a permit qualification matter in the application leading to my decision on 12 November 2020 to issue a permit to Mr Heath, is whether that permit should be revoked and if so, whether a new permit should be issued.

[5] A convenient starting point is to consider the permit qualification matters afresh in light of the disclosure of a matter relevant to s 513(1)(d) of the Act and the failure to make the disclosure in the proceedings the subject of my earlier decision. That matter becomes relevant under s 513(1)(g).

[6] The applicable principles for determining right of entry permit applications under s 512 are well settled and not controversial. Shortly stated, the fitness and propriety of a proposed permit holder the subject of an application for a permit is assessed taking into account the permit qualification matters set out in s 513(1) having regard to the rights a permit holder can exercise under Part 3-4 of the Act, the limitations on and conditions attaching to the exercise of those rights, and responsibilities that are exercised in relation to those rights. The focus of the Commission’s inquiry is not whether the proposed permit holder is a fit and proper person in some abstract sense. The inquiry is whether a proposed permit holder is a fit and proper person to hold an entry permit, and to exercise the powers, functions and responsibilities attached to holding a permit.³ The Commission is required to ascertain, at the time the application is determined, whether the proposed permit holder is a fit and proper person to hold an entry permit.

[7] In the context of an application for a permit under s 512 the permit qualification matters contained in s 513(1) are mandatory considerations which must be taken into account and each given appropriate weight. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.⁴ To take into account the matters set out at s 513 means that each of the matters must be treated as a matter of significance in the decision-making process⁵ and to evaluate it and give it due weight, having regard to all other relevant factors.⁶ All of the permit qualification matters identified in s 513(1) of the Act must be taken into account and the absence of, for example, a conviction of an official of an offence against a law of the Commonwealth relating to or involving fraud or dishonesty, is relevant in the assessment, just as a conviction of the official for such an offence would be. The absence of such a conviction must be accorded appropriate weight, and such an absence of such a matter must not be merely noticed and disregarded.⁷ In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualification, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁸

[8] Declarations addressing the permit qualification matters have been made by Mr Heath⁹ and Mr Warren Smith, the Division Deputy National Secretary of the Maritime Union Division of the CFMMEU.¹⁰ Mr Heath also prepare a witness statement¹¹ and gave evidence at the hearing. There is no dispute and I accept that the declarations read as a whole and Mr Health’s witness statement now disclose all matters relevant to the permit qualification matters. On the material Mr Heath:

➣  has received appropriate training about the rights and responsibilities of a permit holder by undertaking a course of training on the subject of a federal right of entry completed on 14 April 2021 (s 513(1)(a) of the Act));¹²

➣  has never been convicted of an offence against an industrial law (s 513(1)(b) of the Act);

➣  has never been convicted of an offence against a law of the Commonwealth, State, Territory or a foreign country, involving conduct described in s 513(1)(c) of the Act;

➣  has not had cancelled or suspended or imposed conditions on any right of entry permit for industrial or occupational health and safety purposes that Mr Heath held under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(i) of the Act);

➣  has not been disqualified from exercising or applying for a right of entry permit for industrial or occupational health and safety purposes under a State or Territory industrial law or a State or Territory occupational health and safety law (s 513(1)(f)(ii) of the Act);

➣  has not himself been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by him (s 513(1)(d) of the Act) and

➣  has not had any entry permit issued under Part 3-4 of the Act or a similar law of the Commonwealth revoked or suspended (s 513(1)(e) of the Act).

[9] The fact that Mr Heath has received appropriate training about the rights and responsibilities of a permit holder and that there are no adverse matters relating to the abovementioned permit qualification matters all weigh in favour of a conclusion that Mr Heath is a fit and proper person to hold a right of entry permit.

[10] Adverse matters relating to the permit qualification matters are as follows.

[11] First, Mr Heath has had reporting conditions in relation to then extant Federal Court proceedings imposed on entry permits issued to him under Part 3-4 of the Act. A reporting condition was imposed on right of entry permit RE2018/458, issued to him in his capacity as an official of the CFMMEU’s Construction and General Division, Western Australian Branch. Permit RE2018/458 was returned on 14 September 2018. Entry permit RE2018/1127, issued to Mr Heath in his capacity as an official of the CFMMEU’s Maritime Union of Australia Division, was issued subject to the same reporting condition as right of entry permit RE2018/458.

[12] Mr Heath had a differently constructed reporting condition imposed on right of entry permit RE2018/1350, issued to him in his capacity as an official of the Australian Workers’ Union. To the extent that the reporting conditions imposed remained operative, it is uncontroversial that there has been compliance. It is of no moment that compliance was in the form of correspondence from another official, rather than from Mr Heath.¹³

[13] That Mr Heath has previously had a condition imposed on his permit ordinarily would weigh against a finding that he is a fit and proper person to hold an entry permit. However, two things are relevant.

[14] The reporting conditions were each imposed on permits at the time of their issue rather than as a consequence of any conduct after the permits were issued. The imposition of the condition was an exercise by the Commission, taking into account the permit qualification matters,¹⁴ of facilitating the balancing of matters to which s 480 of the Act refers.¹⁵ In addition, there has been compliance with the operative condition. Both these matters result in no real negative weight being ascribed to these matters.

[15] Second, the materials disclose that Mr Heath was a respondent in Radisich v Buchan & Ors [2008] AIRC 896 and consequential consent orders. As I have noted previously this matter has been considered in decisions in relation to the granting of Mr Heath a right of entry permit.¹⁶ It was not then assessed as weighing so heavily as to determine that Mr Heath was not a fit and proper person to hold an entry permit and whilst it is plainly relevant, I am satisfied that significant negative weight should not be given to it. The conduct occurred a considerable time ago and there has been no reoccurrence of this conduct.

[16] Third, the materials now disclose that in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2)¹⁷ the then Maritime Union of Australia (MUA) was found to have breached s 417 of the Act “as part of its industrial campaign against Chevron's use of foreign labour, particularly in relation to the foreign-crewed RDS, the MUA organised for the stevedoring employees of Patrick assigned to LOLO operations on the RDS, including the individual respondents, to engage in unlawful industrial action during the nominal term of the Enterprise Agreement on 28 June 2012 and 29 June 2012.”¹⁸ The conduct the subject of the contravention was undertaken by officials of the MUA including Mr Heath. In this regard Gilmour J concluded in Chevron No 2 that:

The organisation of the industrial action was primarily carried out by Chris Cain, Doug Heath and Wade Eaton. It was done with the knowledge and consent of the most senior officials of the MUA, including Paddy Crumlin and Mick Doleman.

Accordingly, the MUA has committed contraventions of s 417 of the FW Act by organising the following industrial action during the nominal term of the Enterprise Agreement:

(a) on day shift 28 June 2012, the initial delays to work and subsequent refusal or failure to work by the individual respondents;

(b) on day shift 29 June 2012, the refusal or failure to work by the individual respondents.¹⁹

[17] Following the amalgamation of the Construction, Forestry, Mining and Energy Union, the MUA and the Textile, Clothing and Footwear Union of Australia, and the alteration to the name of the amalgamated organisation, the CFMMEU was substituted as the respondent in the Chevron proceeding. In Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3)²⁰ the Court ordered the CFMMEU to pay a penalty of $30,000 in respect of the contraventions found in Chevron No. 2 described above.

[18] The imposition of the penalty on the CFMMEU because of conduct engaged in by, inter alia, Mr Health plainly engages the permit qualification matter in s 513(1)(d) which requires consideration “whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official”. The reference to “any other person” is a reference to both a natural person and a juristic person. So much is clear from s 22(a) of the Acts Interpretation Act 1901²¹ which relevantly provides that in an Act, unless the contrary intention appears, “expressions used to denote persons generally (such as “person” . . . ), include a body politic or corporate as well as an individual”. No relevant contrary intention appears in the Act.

[19] The conduct in which Mr Health and other officials engaged and which was conduct attributable to the MUA was found to have been “deliberate and that the safety issues, said at the material time to justify the industrial action on each day, were just a pretext. The real reason for the unprotected industrial action was to promote the MUA’s otherwise lawful campaign against Chevron’s use of foreign crew on vessels.”²² The deliberate nature of the contravening conduct was also relevant in assessing the penalty that ought be imposed. In Chevron No. 3 Banks-Smith J concluded that:

Of particular importance in this matter is the cynical nature of the industrial action embarked upon. It was deliberate, involved some planning and was aimed at causing interruption to Chevron. So much is readily apparent from the exchanges of emails reported in the liability reasons at [38], [43], [55]-[56], [77]-[78] and [104]. The conduct was highly improper. I do not accept the CFMMEU's submission that any penalty should be mid-range. However, I accept that although the wrongdoing was at a high level of gravity, it is not at the highest level, having regard to the relatively confined time period of the action and that the action was largely peaceful. Considering all of the circumstances, and the fact that the contraventions arose in the same course of conduct, I consider that the appropriate penalty is a single fine of $30,000.²³

➣  consideration of the matter under s 513(1)(d) of the Act requires a consideration of the nature of the contravening conduct;

[20] As to the significance of this to the question whether Mr Heath is a fit and proper person to hold and entry permit, AMMA contends that:

➣  the penalty imposed on the CFMMEU in relation to the conduct was at the upper limit of available penalties;

➣  the contravening conduct was found to be highly improper, and Mr Heath was one of the primary organisers of the unprotected industrial action;

➣  Mr Heath’s conduct involved raising asserted safety issues as a pretext for unprotected industrial action in pursuit of an ulterior industrial motive; and

➣  overall, the findings and penalties imposed, including the findings about Mr Heath’s conduct, weigh heavily against Mr Heath being found to be a fit and proper person to hold a right of entry permit.

[21] Save for the nature of the weight to be assigned, I otherwise agree with these contentions. The conduct engaged in was deliberate, serious and was undertaken for an improper purpose. However, into the balance must be placed the fact that the conduct engaged in occurred some time ago, now over 9 years and that there has not been any finding of any breach of an industrial law involving Mr Heath, since the conduct in which he engaged. I therefore consider the matter to weigh against a conclusion that Mr Health is a fit and proper person but, subject to what follows further below, not so heavily as to by itself tip the balance, having regard to the other permit qualification matters.

[22] I am concerned however, that Mr Heath does not appear to accept that his involvement in the contravening conduct was properly characterised by the Court as organising unprotected industrial action, nor appreciates why it is that an adverse finding was made in relation to his conduct and a penalty imposed on the CFMMEU because of the contravening conduct in which he was involved. Mr Heath’s evidence before me was as follows:

I understand those findings were made, at least in part, in reliance upon certain concessions made by the MUA as to the characterisation that could be placed upon the MUA’s conduct. I was not a Respondent in that matter and was not an employee of the MUA when these concessions were made. I do not concede that characterisation could be made about my conduct but concede the Commission is bound to consider the findings of the Court when considering any application for an entry permit for me.²⁴ [Underlining added]

[23] Mr Heath’s failure to understand or his failure to accept that his conduct, along with those of his then two colleagues, amounted to organisation of the industrial action, which was not protected action, is concerning and is in my view a relevant matter under s 513(1)(g) of the Act. I consider that it weighs against a conclusion that he is a fit and proper person to hold an unconditional entry permit having regard to the permit qualification matters. The conclusions reached by the Court were based on agreed facts, largely the result of written communications to which Mr Health was a party, and sometimes the author. I will return to the consequence of this later.

[24] Fourth, the materials disclose that not for the first time, Mr Heath has shown a lack of diligence in completing declarations in relation to an entry permit application. In Applications by The Australian Workers’ Union²⁵ I noted that Mr Heath had failed to disclose that an existing permit held by him was the subject of a reporting condition. I said:

[70] The existence of the condition was not disclosed in the original declarations filed with the application . . .

[71] . . . The Commission relies upon the declarations filed in support of applications for the issuing of right of entry permits. It is entitled to expect that officials completing declarations take more steps than to simply rely upon statements uttered by proposed permit holders as to the permit qualification matters. The permit holder in this case plainly did not see the need to look at his own permit on which the condition imposed is clear. The barest of enquiry that was made in this case by Mr Walton is simply not good enough.

[72] Mr Heath said that his first declaration in which he failed to disclose the condition was an error. I accept his evidence, in the sense that Mr Heath did not set out to deliberately make a false declaration, but I observe that the error was very careless in circumstances where the decision to issue the permit with the condition was made on 22 November 2018 and the permit containing the condition was issued on 3 December 2018, the day before Mr Heath sent his email to Mr Walton and two days before he made the declaration on 5 December 2018. One would have thought that the imposition of a condition on an entry permit so recently issued would have been burned into his memory and in any event he ought to have looked at the permit before making the declaration. A proposed permit holder who makes a declaration ought to take the making of the declaration much more seriously than Mr Heath appears to have done in this case. This is a matter that I take into account and weigh it against the assessment whether Mr Heath is a fit and proper person to hold an entry permit.

[25] As to the failure to disclose the imposition of a penalty on the CFMMEU in Chevron No 3, in his application for a permit made in in September 2020, Mr Heath gave the following explanation:

I have reviewed that application and accept that I ought to have declared the penalty ordered by Justice Banks-Smith in the matter set out above at part “d” of my declaration. I have reached that view because I now understand that when the declaration and section 513 of the Act refer to “any other person” being ordered to pay a penalty in relation to my actions, that also includes a reference to any organisation being ordered to pay a penalty. I had not realised that the CFMMEU was a “person” for the purposes of the declaration and the Act.

I did not deliberately set out to mislead the Commission in relation to this matter. I knew the Commission needed to be informed that a penalty had been ordered by the Federal Court. I took care to ensure the Commission was aware of this matter when I set it out in part “e” of my declaration. I was not attempting to hide this matter from the Commission, I just didn’t declare it in all the relevant places.

[26] Although I accept that Mr Heath did not set out, nor intend, to deliberately mislead, the failure underscores the lack of diligence on his part in completing important declarations, the substance of which will be relied upon to assess his fitness and propriety to hold an entry permit. It appears to me that nothing was learned by Mr Heath from my warning to him about the need to exercise diligence in completing declarations in the passages reproduced above. The fact that inaccurate declarations have been made by Mr Health on two occasions separated by a short time period, and that the second occasion is preceded by a warning from the Commission about the need for diligence, raises serious questions about Mr Heath’s fitness and propriety to hold an unconditional entry permit having regard to the permit qualification matters. While I accept that to a lay person the use of the description “person” in a statute might be understood as applying only to a natural person, Mr Heath is not an ordinary lay person. He is a person who wants to be able to exercise statutory rights of entry. In order to be able to do so, he must be assessed as a fit and proper person to hold an entry permit. This assessment requires him to disclose matters relevant to the consideration of the permit qualification matters. It is incumbent on him to understand what that involves and to seek advice and assistance from the applicant organisation to ensure that the declaration he makes is accurate. There is no evidence that he did any of this. He relied, on his own evidence, on his erroneous understanding of the meaning of “a person” in s 513(1)(d) of the Act. This, in the circumstances was not good enough.

[27] In the circumstances described above taking into account the permit qualification matters, I do not consider that Mr Heath is a fit and proper person to hold an unconditional entry permit. His failure to understand and accept the nature of his earlier conduct which in the Chevron proceedings resulted in the imposition of a penalty on the CFMMEU and his lack of diligence in accurately disclosing matters relevant to his fitness and propriety to hold an entry permit are not matters which may be said to be insignificant and weigh strongly against such a conclusion. Although the CFMMEU proposed a training condition, I do not consider that it satisfactorily addresses my concerns. However, I consider that my concerns about his fitness and propriety would be addressed by the following conditions imposed under s 515:

1. Mr Heath must not use this entry permit to enter premises until he has completed training provided by Mr Brian Lacy as to the decisions of the Federal Court of Australia and the findings about his conduct in the following matters:

a. Chevron Australia Pty Ltd v The Maritime Union of Australia (No. 2) [2016] FCA 768; and

b. Chevron Australia Pty Ltd v The Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451

2. Mr Heath must also complete training from Mr Brian Lacy about the steps he must take to make proper inquiries and to seek advice, about the existence of permit qualification matters in connection with any further application for an entry permit under the Fair Work Act 2019 (Act).

3. At all times after completing the training in 1 above, and until this permit expires, Mr Heath must:

a. carry a certificate of completion signed by Mr Lacy as evidence of satisfactory completion of the training whenever he is exercising entry rights under the Act; and

b. produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.

[28] I have taken the trouble of first assessing Mr Heath’s fitness and propriety to hold an entry permit, as though this were an application under s 512 of the Act for a permit, because it will inform the exercise of any discretion to vary or revoke my earlier decision to issue a permit to Mr Heath.

[29] As is now apparent Mr Heath would be granted a conditional entry permit by me. The revocation of my earlier decision and a consideration anew of an application would have the result that conditional though it be, an entry permit would operate for a period longer that the current permit which will expiry on 20 November 2023. In the circumstances I consider this to be undesirable. I consider the better course is to vary my earlier decision by concluding, for the reasons given earlier, that Mr Health is a fit and proper person to hold and entry permit with the conditions stipulated above. This would have the effect that the current permit is issued on the basis accurately reflecting Mr Heath’s fitness and propriety, as ought to have been done in November 2020. It also has the effect of placing a restriction on Mr Heath’s capacity to use his permit prior to completing the training contemplated by the conditions to be imposed.

[30] Consequently, I order pursuant to s 603 of the Act that my decision in Re Construction, Forestry, Maritime, Mining and Energy Union[2020] FWC 5943 to issue Mr Heath with an unconditional entry permit is varied so that taking into account the permit qualification matters, I concluded that Mr Heath is a fit and proper person to hold an entry permit with the following conditions:

1. Mr Heath must not use this entry permit to enter premises until he has completed training provided by Mr Brian Lacy as to the decisions of the Federal Court of Australia and the findings about his conduct in the following matters:

a. Chevron Australia Pty Ltd v The Maritime Union of Australia (No. 2) [2016] FCA 768; and

b. Chevron Australia Pty Ltd v The Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451

2. Mr Heath must also complete training from Mr Brian Lacy about the steps he must take to make proper inquiries and to seek advice, about the existence of permit qualification matters in connection with any further application for an entry permit under the Fair Work Act 2019 (Act).

3. At all times after completing the training in 1 above, and until this permit expires, Mr Heath must:

a. carry a certificate of completion signed by Mr Lacy as evidence of satisfactory completion of the training whenever he is exercising entry rights under the Act; and

b. produce the certificate whenever he is asked to produce his entry permit for inspection under ss 489 or 497 of the Act.

[31] I note that Mr Heath has also undertaken that once he has completed the training in condition 1, he will write to the Commission advising whether in light of the training received he now accepts that the factual matters to which the MUA (CFMMEU) agreed in the Chevron proceedings as constituting his conduct was properly characterised as the organisation of the industrial action in which he was involved. I do not propose to attach a condition requiring him to do so but expect that the undertaking will be fulfilled. The entry permit issued to Mr Heath will be amended to reflect the conditions imposed. Pursuant to s 517(1) of the Act, Mr Health must return his entry permit to the Commission within 7 days.

DEPUTY PRESIDENT

Appearances:

Mr L Edmonds for the CFMMEU
Mr D Parker for AMMA

Hearing details:

2021
Melbourne (via video link)
17 June 2021 and 23 July 2021

Written submissions:

Applicant, 14 June and 1 July 2021
Respondent, 3 June and 1 July 2021

Printed by authority of the Commonwealth Government Printer

<PR731814>

1 RE2018/1127

2 Re Construction, Forestry, Maritime, Mining and Energy Union [2020] FWC 5943

3 Maritime Union of Australia [2014] FWCFB 1973 at [23]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2015] FWC 1522 at [32]

4 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

5 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

6 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

7 Ibid

8 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

9 Exhibit 2

10 Exhibit 3

11 Exhibit 1

12

13 On 15 April 2020, Mr Zach Duncalfe, the National Legal Officer of the AWU, wrote to the Commission notifying that on 9 April 2020 the Federal Court of Australia imposed a penalty on the CFMMEU for the contravening conduct set out in Chevron Australia Pty Ltd v The Maritime Union of Australia (No.2) [2016] FCA 768 at [109] – [110] in Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451.

14 Fair Work Act 2009, s 515(1) and (2)

15 See Maritime Union of Australia v Fair Work Commission [2015] FCACF 56, 230 FCR 15 at [35]-[36]

16 [2018] FWC 3525 and [2019] FWC 4733

17 [2016] FCA 768

18 Ibid at [108]

19 Ibid at [109]-[110]

20 [2020] FCA 451

21 As in force on 25 June 2009, see s 40A of the Fair Work Act 2009

22 Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 at [112]

23 Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No. 3) [2020] FCA 451 at [116]

24 Exhibit 1 at [7]

25 [2019] FWC 4733