Independent Education Union of Australia
[2024] FWCD 1019
•9 SEPTEMBER 2024
| [2024] FWCD 1019 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Independent Education Union of Australia
(R2024/21)
| CHRIS ENRIGHT | MELBOURNE, 9 SEPTEMBER 2024 |
Alteration of other rules of organisation.
On 12 February 2024 the Queensland and Northern Territory Branch (the Branch) of the Independent Education Union of Australia lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further material in support of the alterations was lodged on 19 March 2024 and 3 and 4 July 2024.
The Branch seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice and declarations, I am satisfied the alterations have been made under the rules of the organisation.
The particulars insert a new Branch rule 21 – Chapters, and renumber existing Branch rule 21 – Inconsistency, to Branch rule 22.
Proposed Branch Rule 21 – Chapters
Proposed Branch rule 21 introduces Chapters within the Branch, as well as provisions relating to the duties and protections of union delegates.
The proposed rule states that:
“(a) A Chapter is defined as the members, unspecified in number, who work together in the same school or site or grouping as defined by the Committee of Management.
(b) Each school or site will have only one Chapter except where the Branch Secretary approves:
(i) separate Chapters where there are separate and distinct campuses; or
(ii) separate primary and secondary Chapters in a P-12 school; or
(iii) a separate Chapter of School Officers or Services staff; or
(iv) separate Chapters for groups as otherwise defined by the Committee of Management.
(c) Chapters of union members, who are Principals or Heads of School, howsoever called, may be formed based on a geographic region as determined by the Branch Executive.
A Principal or Head of School, howsoever called, of a school or site, who is a union member, can only be joined to a Chapter of Principals or Heads of School and cannot be joined to a school or site Chapter of members.
(d) Each Chapter will have a Chapter Executive.
(e) The Chapter Executive positions are determined by the Branch Executive from time to time.
(f) A member of the Chapter Executive, howsoever appointed, is a union delegate.
(g) A union member appointed by the Chapter to represent the Chapter members in any school or site based body, is a union delegate.
(h) A union delegate, undertakes a range of matters which include acting with:
(i) the rights provided to union delegates by law including the right to represent the industrial interest of members, and any other persons eligible to be a member, including in a dispute with their employer; and
(ii) the protections in law, including to:
(a) reasonably communicate with members and potential members in relation to their industrial interests; and
(b) have access to the workplace and any facilities at the workplace.
(i) The functions and conduct of Chapters will be determined by the Branch Executive from time to time.”
The Branch provided the following explanation regarding the proposed alterations:
“The current Branch Rules contain no reference to delegates. The proposed amendment to the Branch Rules addresses that situation. It is important that our Branch (QNT) Rules recognises that there was a role as a workplace delegate and set out their rights and protections to allow them to perform their role.”[1]
I note that proposed Branch rule 21 relates to the Fair Work Legislation Amendment (Closing Loopholes)Act 2023 (Cth) (Closing Loopholes Act) which, among other things, amends provisions of the Fair Work Act 2009 (Cth) (FW Act) to include rights and protections for workplace delegates.
As the amendments to the FW Act are a new area of law, the Branch was invited to lodge submissions regarding whether the proposed alterations are consistent with the amendments to the FW Act.
On 3 and 4 July 2024, the Branch lodged submissions in support of the application. It is not necessary to outline the submissions in full, however some of the issues require discussion. First, I will look to the Closing Loopholes Act and then consider the proposed alterations.
Fair Work Legislation Amendment (Closing Loopholes) Act 2023
The amendments to the FW Act introduce section 350C, which introduced specific protections for workplace delegates. Section 350C was further amended with effect from 26 August 2024 to extend those protections to regulated workers. Subsection (1) currently provides that:
“A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for either or both of the following:
(a)members of the organisation who work in a particular enterprise;
(b)members of the organisation who perform work for, or that has been arranged or facilitated by, a particular regulated business.”
Section 12 of the FW Act defines enterprise as:
“a business, activity, project or undertaking.”
Subsections (2) and (3) of section 350C set out a number of rights for workplace delegates:
“(2) The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with the employer or regulated business concerned.
Note: This section does not create any obligation on a person to be represented by a workplace delegate.
(3) The workplace delegate is entitled to:
(a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and
(b) for the purpose of representing those interests:
(i) in relation to employees – reasonable access to the workplace and workplace facilities where the enterprise concerned is being carried on; and
(ii) in relation to regulated workers – reasonable access to the workplace facilities provided by the regulated business concerned; and
(iii) if the workplace delegate is an employee – reasonable access to paid time, during normal working hours, for the purposes of related training, unless the workplace delegate is employed by a small business employer.”
Division 1 of Part 7 in Schedule 12 to the Closing Loopholes Act also amends provisions of the FW Act so that modern awards, enterprise agreements and workplace determinations are required to include a “delegates’ rights term”.[2] The note to the definition of “a delegates’ rights term” in section 12 of the FW Act states that such a term must provide at least for the exercise of the rights set out in section 350C.
On 28 June 2024, a majority of the Commission Full Bench issued a decision to vary all modern awards to include a delegates’ rights term.[3] The determination came into effect on 1 July 2024. A review of the term will be conducted after 12 months of operation.[4]
Proposed Branch Rule 21 and section 350C of the FW Act
As noted above, proposed Branch rule 21 provides for workplace delegates and includes rights and protections for delegates. Among other things, I am required to certify that, in my opinion, the alteration complies with and is not contrary to the Act, the FW Act, modern awards and enterprise agreements, and is not otherwise contrary to law.[5]
As this is a new section, I considered the similar situation where the Full Bench of the Australian Industrial Relations Commission [[1998] AIRC 1770] considered the rules of a registered organisation in the context of the statutory scheme under the Workplace Relations Act 1996 (WR Act) which provided for employee representation during bargaining.[6] The Full Bench concluded that the rule under question brought about a result inconsistent with the provisions of the WR Act and therefore undermined the statutory scheme and was contrary to the WR Act.
Section 350C of the FW Act grants statutory rights to workplace delegates that are enforceable against parties who are not bound by the organisation’s rules. It is therefore, in my view, important that any rule change seeking to take advantage of these new rights align closely with the scope of the statutory scheme. Rules should not purport to extend the rights and obligations of workplace delegates to persons who would not be entitled to the protections under section 350C of the FW Act.
A question therefore arises in the present matter as to whether the proposed rule conflicts with the workplace delegate provisions in the FW Act. In other words, does the proposed rule undermine the statutory scheme regarding workplace delegates provided for in the FW Act?
It seems to me, in respect of the proposed alterations, that it is necessary to consider the following questions:
· Does the proposed rule extend the definition of workplace delegates beyond what is contemplated by section 350C of the FW Act?
· If so, does the proposed rule extend entitlements, such as representation, communication and access to facilities as provided for in subsection 350C(2) and (3) of the FW Act, to persons that are not entitled?
If proposed rule 21 extends the rights and obligations of workplace delegates to persons outside the scope of the statutory scheme, then, in my view, the proposed rule would be contrary to section 350C of the FW Act.
I think it is important to note that a registered organisation has the right to determine who their delegates are and who they represent. It would not, in my view, undermine the statutory scheme for an organisation to appoint a workplace delegate who would not usually fall within the definition contemplated by the scheme in the FW Act. However, if the rule purported to extend the statutory rights and obligations to persons outside the scheme, that would bring about a result inconsistent with the statutory scheme regarding workplace delegates and therefore may be contrary to section 350C of the FW Act.
Section 350C of the FW Act – definition of workplace delegate
As outlined in paragraph [11] above, subsection 350C(1) of the FW Act provides that a delegate or representative (however described) represents members who work in a particular enterprise or regulated business. The common industrial use of the term ‘delegate’ suggests that the delegate is a person who works at the workplace. However, the word ‘representative’ could be interpreted more widely as including persons from outside the enterprise. For the reasons outlined below, I believe on a proper interpretation section 350C refers to workplace delegates and workplace representatives who are workers within the enterprise or regulated business.
Section 15AA of the Acts Interpretation Act 1901 provides that:
“In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
The Explanatory Memorandum of the Closing Loopholes Act provides additional context to the definition of ‘workplace delegate’.[7] I find the following paragraph informative:
“724. This new definition is intended to be sufficiently broad to capture workplace delegates across a range of employee organisations, regardless of the language used to describe the role in each organisation’s rules. The definition of ‘workplace delegate’ would recognise the role of workplace delegates in representing the interests of all workers, not just employees, who work at the relevant enterprise and who are eligible to be a member of the relevant employee organisation. The definition would not include employees of the employee organisations in workplaces generally, as a person can only be a workplace delegate in respect of the enterprise or part of an enterprise where they work, either as an employee or as a regulated worker…”[8] [my emphasis]
The Explanatory Memorandum confirms that Parliament’s intention is that workplace delegates and representatives work at the relevant enterprise.
The modern award delegates’ rights clause issued by the Commission Full Bench also supports this conclusion. Clause XA.2(a) defines ‘employer’ as employer of the workplace delegate.[9] Other provisions contained in the clause also indicate that a workplace delegate is someone who works within the enterprise, for instance clause XA.8 provides an entitlement for workplace delegates to reasonable access to training, which includes up to 5 days of paid time.[10] This could only have application to a person who is paid to work in the workplace.
I note that section 350C as set out in [11] and [13] above has been amended by the Fair Work Legislation Amendment (Closing Loopholes No. 2)Act 2024 since it was considered by the Commission Full Bench. Those changes took effect on 26 August 2024 and extend the definition of workplace delegates to include regulated workers. I am satisfied that the amendments do not materially alter the operation of section 350C, and act to reinforce how it should be interpreted for the purposes of determining whether the rule alteration complies with, and is not contrary to, the FW Act.
In particular, the introduction of regulated workers into the scheme of protections has necessitated the language of “if the workplace delegate is an employee” in subsection 350C(3)(b)(iii). This tends to reinforce that the previous scope of section 350 was directed only to a workplace delegate that was an employee working in the enterprise.
The protections for workplace delegates in the FW Act also support the conclusion that delegates and representatives are persons who work at the enterprise or regulated business. The protections are located within the General Protection provisions of the FW Act. Subsection 350A(1) provides that:
“(1)The employer of a workplace delegate must not:
(a)unreasonably fail or refuse to deal with the workplace delegate; or
(b)knowingly or recklessly make a false or misleading representation to the workplace delegate; or
(c)unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument.” [my emphasis]
Subsection 350B(1) extends similar protections to workplace delegates who are regulated workers, providing that:
“(1) The associated regulated business for a workplace delegate who is a regulated worker must not:
(a) unreasonably fail or refuse to deal with the workplace delegate; or
(b)knowingly or recklessly make a false or misleading representation to the workplace delegate; or
(c) unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument.”
In summary, the protections under the FW Act provide protections to employees and regulated workers from adverse action as a result of exercising a workplace right. It is important to note that the protections can only benefit delegates and representatives who work at the enterprise or regulated business.
In Bowling[11] the Australian Industrial Relations Court considered provisions in the Conciliation and Arbitration Act 1904 in relation to protecting delegates from dismissal (since repealed). Evatt and Smithers JJ observed that:
“Clearly the purposes of the Act will be frustrated unless employees are able to act as union representatives on the shop floor and elsewhere and negotiate with the representatives of employers without fear that on that account they will suffer in their employment.
The immediate object of Parliament in enacting [the relevant provision] can clearly be seen to remove fear of adverse action by an employer against an employee taking union office, and performing the functions of that office.…”[12]
Drawing from Bowling, the workplace delegate provisions in the FW Act should not be interpreted in such a way that would frustrate access to the protections from adverse actions. If the workplace delegate provisions in the FW Act were interpreted as including delegates and representatives who do not work at the enterprise or regulated business, the “external” delegates and representatives would be denied access to the protections. This seems at odds with Parliament’s intention of:
“improving access to representation for workers, and the ability of workplace delegates to provide such representation.”[13]
Consequently, the General Protections provisions for workplace delegates support the view that they are persons who work at the enterprise or regulated business.
The right of entry provisions in the FW Act[14] also suggest that workplace delegates provisions are confined to persons who work at the enterprise or regulated business. Part 3-4 of Chapter 3 of the FW Act provides for the circumstances in which a union official can enter a workplace pursuant to the right of entry provisions in the FW Act and represent members, subject to certain conditions. The right of entry provisions in the FW Act are not intended to codify all the ways that entry to premises can occur. For example, the occupier of premises may invite a union official to enter.[15] A right of entry permit grants representatives who do not work at the enterprise a legal right to enter premises, subject to express rights and obligations. I do not consider, properly characterised, that the workplace delegates provisions are intended to grant competing or inconsistent rights to a person who would otherwise require a permit to enter a workplace. The fact that there is a separate statutory scheme for representatives from outside the enterprise strongly supports the view that the workplace delegates provisions in the Closing Loopholes Act are confined to workplace delegates and workplace representatives who work in the enterprise or regulated business.
For the reasons discussed above, in my opinion, the scheme regarding workplace delegates established by the Closing Loopholes Act is limited to a worker in an enterprise or regulated business. In particular, the word “representative” in subsection 350C(1) of the FW Act properly construed means a workplace representative, that is a representative who works in the enterprise or regulated business.
Does proposed Branch rule 21 extend workplace delegate and representatives to include people who do not work at the enterprise?
I have outlined the proposed Branch rule 21 in paragraph [6] above. As explained above, if the proposed rule were to extend the definition of workplace delegates beyond what is provided by the FW Act, and also extend entitlements to persons not otherwise entitled, this would be contrary to the Act.[16]
In his submissions, Terry Burke, Branch Secretary, states that the structure of Chapters in the proposed rule
“…provides flexibility for the range of employers its members are engaged [by] but remains fixed to the requirement of “enterprise”.”[17]
The Branch requires this flexibility as the Branch has coverage of members who work at enterprises that have a range of different structures. As described in Mr Burke’s submissions:
“[t]he private sector educational institutions relevant to the QNT’s coverage include denominational schools with employing entities:
(a) that are the employer of staff in only one school;
(b) that employ staff across multiple schools within a geographically defined region (for example, one Diocese or the whole of Queensland or of the Northern Territory);
(c) that employ staff in one school only or across multiple schools operated by a single religious order.
QNT’s coverage also includes staff in:
(a) non-denominational private schools with employing entities unique to a single school or engage staff across multiple schools or sites;
(b) community based early learning centres that have an employing entity dedicated to one centre, but are affiliated with the C&K network;
(c) privately run early learning centres with employing entities that engage staff across single or multiple centres;
(d) private and non-for-profit registered training organisations and non-tertiary training or education enterprises with a single employee entity.
Within those organisational structures, staff can also be engaged in enterprises with multiple campuses that operate with varying degrees of autonomy, for example because of the distinct activities and organisation arrangements required of primary schools compared to secondary schools or because of geographic separation of campuses.
Also, individual schools within non-government school systems may operate as an enterprise or a distinct activity or undertaking in their own right, notwithstanding the ultimate authority of different Diocesan entities … as the ultimate decision maker.
In consideration of those complicated and myriad structures of the enterprises within which persons entitled to be members of the union are employed, R21(a) and R21(c) provide scope for Chapters to be established consistent with those different structures.
Two elements of the definition of workplace delegate and enterprise are particularly relevant to those issues. Firstly, a delegate is a representative of members who “work in a particular enterprise”, but s.350C does not require an individual delegate to be a representative of all members in an enterprise. Secondly, an “enterprise” in s.12 includes a business, but it also includes an activity, project or undertaking that may be part of a business. A delegate can be a representative “for members … in a particular enterprise” if they are drawn from a particular pool of members within the enterprise or have direct responsibility towards members … in a particular activity within an enterprise.
So, for example:
(a) An individual denominational school with a unique employing entity will be its own business and thus its own enterprise, and a Chapter would commonly be organised for that enterprise.
(b) An individual school within a Diocese that has a central employing authority for all its schools is part of that Diocesan business (and thus part of that enterprise) and can alternatively be characterised as a distinct activity within that enterprise; on either characterisation, a Chapter organised around an individual Diocesan school is a Chapter in an enterprise, and a delegate within that school is a representative of members who work in that activity which is both an enterprise itself, an undertaking itself and part of the larger enterprise and undertaking that is the Diocesan education system.
(c) An individual school that has physically and organisationally distinct campuses for its primary and secondary students and staff, may be characterise as a single business and thus a single enterprise, or can also be characterised as two distinct activities or undertakings and thus two enterprises within a single business, so that a Chapter for the entire school or for each campus would be consistent with the definition of enterprise.
(d) Principals for multiple schools within a Diocese that has a central employing authority who are organised into a Chapter are members within an enterprise or business and also engaged in a distinct activity within that enterprise, so that a delegate selected by that Chapter would be a representative of employees who work in that particular enterprise (whether characterised as an activity, an enterprise or as a distinct part of an enterprise).
(e) Members at a large school where the specific interests of teachers (including their professional and regulatory responsibilities, their distinct working hours and remuneration arrangements) may dominate the interests of a Chapter to the detriment of the less numerous non-teaching staff (who are covered by different Awards, and commonly have quite different working arrangements even when covered by the same enterprise agreements) might decide that to ensure proper representation of the interests of all the categories of employees who are entitled to be members of the union, they will organise into separate Chapters for those distinct categories of members. Each of those Chapters would be established within that enterprise and any member selected as a delegate for those Chapters is a representative of members of that enterprise, despite not being a representative of all members of that enterprise.
There is thus no inconsistency between the definition of enterprise in the Act and the range of potential representative structures for Chapters and the reflection of those structures in delegates selected from those various types of Chapters.”[18]
Notwithstanding the open definition of “enterprise” in the FW Act, in my view, the complicated and myriad range of structures that are covered by the Branch suggests a level of complexity such that it is not easy to discern whether a particular representative works at the enterprise. It may be, depending on the facts, that some delegates so appointed in accordance with the proposed alteration do not work at the enterprise. Furthermore, proposed subrule 21(b)(iv) allows the Branch Secretary to approve “separate Chapters for groups as otherwise defined by the Committee of Management”, which appears to allow for groups beyond the boundaries of an enterprise.
As a result of this lack of clarity, it is possible that the proposed alterations include a broader range of delegates or representatives than envisaged by section 350C of the FW Act. Therefore, my next consideration is if the range of delegates or representatives in the proposed alteration is broader than what is provided under the FW Act, does the proposed rule extend the entitlements to delegates or representatives who would not otherwise be entitled?
Does proposed Branch rule 21 extend workplace delegate rights and protections to people who do not work at the enterprise?
Proposed subrules 21(h)(i) and (ii) provide that a union delegate undertakes a range of matters which include acting with the rights provided to union delegates by law, and has the protections in law.
Mr Burke submits that:
“…the proposed rule is clearly drafted to operate as a signpost to the rights or protections provided “by law” and “in law” and is not identified and cannot reasonably be interpreted as itself being a source of rights or protections.”[19]
Mr Burke refers to the High Court’s discussion of the interplay between the Commonwealth and state law in Victoria v Commonwealth,[20] in which Dixon J stated:
“When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid”.[21]
The Branch submits that the subrules in Rule 21(h) in using the phases “by law” and “in law”:
“…do not, do not purport to, and cannot generate any rights, entitlements or obligations that can “alter, impair or detract from the operation of” the FW Act.”[22]
In my view, the words “the rights provided to union delegates by law” mean that the rights are not extended to delegates who do not come within the purview of section 350C, because they do not have these rights by law. Furthermore, the words “the protections in law” do not extend to delegates who do not come within section 350C because they do not have these protections in law. The words “by law” and “in law” limit the entitlements and protections to only those so entitled. In other words, proposed rule 21 does not undermine the statutory scheme relating to workplace delegates as it does not extend the rights and obligations of workplace delegates to persons outside the scope of section 350C of the FW Act.
Unintentional consequences, and a more preferrable, desirable or ideal rule are not considerations under section 159
I note that the legislative provisions regarding workplace delegates are new and untested. Therefore, it is possible that a delegate of the Branch not entitled to the rights and protections of section 350C of the FW Act may incorrectly believe that they are so entitled and seek to enforce such entitlements.
In his submissions, Mr Burke referred to a previous decision of mine in which I noted that concerns about potential misuse of rules are not grounds for me to refuse certification of proposed alterations.[23] Nor is it enough that a rule might give rise to an unintended, unreasonable consequence.[24] Mr Burke submitted that
“…if there is any ambiguity arising from infelicity of expression, the mere possibility of someone intentionally or unintentionally attempting to misuse the rule in that manner is not a relevant consideration for the assessment required to be undertaken by the Commission relying on s.159.”[25]
Drawing from another decision of mine, Mr Burke went on to state that[26]
“…it is an unimpeachable maxim that:
“[in the] absence of any general authority conferred upon a Court to supervise the content of the rules of an organisation to impose what it may perceive to be a more “preferrable, desirable or ideal” rule… it is not the function of the… Delegate under section 159 to put into effect its own opinions as to what is desirable in the way of union rules and union management.”[27]
As I have concluded above, the words “by law” and “in law” in the proposed alterations limits any potential uncertainty within the alterations regarding workplace delegates to the confines of the entitlements and protections as provided in the FW Act. My considerations are limited to whether the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I agree with the Branch that the potential unintentional consequences of an alteration, or whether an organisation could enact a more preferable, desirable or ideal rule are not relevant considerations under section 159.
Furthermore, the submissions made by Mr Burke confirm that it is not the intention of the Branch to extend workplace delegate rights and protections beyond what is provided for in the FW Act. Mr Burke submits that the Branch intends to educate its delegates regarding the new provisions arising from the FW Act and Award model clause and will address any uncertainty regarding the rules.[28] In these circumstances it may be considered unlikely that a Branch delegate will endeavour to access rights and protections to which they are not entitled.
Conclusion
Although proposed Branch rule 21 may provide for workplace delegates and representatives who do not work at the enterprise, it does not extend the rights and protections of the FW Act to such persons. The proposed rules reflect the rights of workplace delegates as set out in section 350C, but limits these rights to those delegates who are entitled to them in or by law. Consequently, in my view the alterations comply with the FW Act.
In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
[1] Supplementary declaration of Terence Burke, 19 March 2024 at paragraph 5.
[2] President’s Statement [2024] FWC 150 at [3].
[3] Asbury VP Statement [2024] FWC 1699.
[4] Ibid at [4] and [5].
[5] Subsection 159(1) of the Act provides that:
(1)An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
[6] Re Minister for Workplace Relations and Small Business [1998] AIRC 1770, Print Q6814.
[7] Acts Interpretation Act 1901, s 15AB(2)(e):
Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted.
[8] Explanatory Memorandum of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023
[9] Asbury VP Statement [2024] FWC 1699, Attachment A – Modern award delegates’ rights clause, XA.2(a)
[10] Ibid, Attachment A – Modern award delegates’ rights clause, XA.8
[11] Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 197.
[12] Ibid. at 210.
[13] Explanatory Memorandum of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 at 76.
[14] Fair Work Act 2009, Chapter 3, Part 3–4 Right of Entry
[15] Explanatory memorandum of the Fair Work Bill 2008 at 1919.
[16] Re Minister for Workplace Relations and Small Business [1998] AIRC 1770, Print Q6814.
[17] Submissions made by Terence Burke, 4 July 2024 at paragraph 21.
[18] Submissions made by Terence Burke, 4 July 2024 paragraph 22 – 29.
[19] Submissions made by Terence Burke, 4 July 2024 paragraph 48.
[20] Victoria v Commonwealth (1937) 58 CLR 618.
[21] Ibid, at 630.
[22] Submissions made by Terence Burke, 4 July 2024 paragraph 65.
[23] Construction, Forestry, Mining and Energy Union – Mining and Energy Division – Victorian District Branch [2015] FWCD 5073, [12] – [13].
[24] The Master Plumbers’ and Mechanical Services Association of Australia [2012] FWAD 6715 at [24].
[25] Submissions made by Terence Burke, 4 July 2024 paragraph 66.
[26] Submissions made by Terence Burke, 4 July 2024 paragraph 68.
[27] Health Services Union [2014] FWCD 3522, at [89] and the authorities cited therein.
[28] Submissions made by Terence Burke, 4 July 2024 paragraph 67.
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