JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards
[2019] FWCFB 8373
•23 DECEMBER 2019
| [2019] FWCFB 8373 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards
(C2019/6558)
VICE PRESIDENT CATANZARITI | SYDNEY, 23 DECEMBER 2019 |
Appeal against decision [2019] FWC 7331 of Commissioner McKinnon at Melbourne on 23 October 2019 in matter number AG2018/6757.
Introduction and background
[1] JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards (the Appellant) has applied for permission to appeal and has appealed against a decision 1 made by Commissioner McKinnon on 23 October 2019 (the Decision), in which the Commissioner dismissed an application for approval of the Paradise Orchards Enterprise Agreement 2018 (the Agreement).
[2] The background to the proceedings is as follows. The Appellant filed an application for approval of the Agreement, pursuant to s 185 of the Fair Work Act 2009 (the Act) on 4 December 2018. The application was made at a time when changes to the Horticulture Award 2010 2 (the Award) were being considered as part of the 4-yearly review of modern awards3(the Award Review). The Award was subsequently varied resulting, in part, in the creation of new overtime entitlements for casual employees in certain circumstances. These changes to the Award had not been made at the time the application for approval of the Agreement was made.
[3] The Commissioner issued a decision on 15 February 2019 4 dismissing 10 similar applications to that of the Agreement application being considered on appeal in the present matter and provided an opportunity for undertakings in a further 31 applications then before her. That decision was dealt with on appeal in Australian Workers Union v Gray & Australia & Ors5(Gray). The Full Bench in its decision issued on 21 August 2019 dismissed 30 of the 31 remaining matters and remitted one matter to the Commissioner (the BTS Agreement) for rehearing. Relevantly, at issue in the applications considered by the Full Bench in Gray was the nature of the explanation provided to employees by the various employers of the terms of the agreements and the effect of those terms having particular regard to what were at the time impending changes to the Award in respect of casual employee overtime entitlements. The Full Bench stated as follows;
“[92] Therefore, in this appeal, to satisfy ourselves that the Agreements were genuinely agreed to in accordance with s 188 of the Act, the explanation provided to employees in respect of the forthcoming changes to the Award must reflect the actual nature of the forthcoming changes.
[93] We agree with the Appellant that in order to comply with s 180(5) of the Act in relation to the Agreements, the explanation to employees must have addressed, at the very least, the following:
• the details of the decisions already made by the Full Bench concerning the Award and specifically that the Award will be varied to prescribe a maximum of 12 ordinary hours per day for casual employees and that maximum weekly ordinary hours would also be prescribed for casual employees but an averaging period will apply to ensure overtime rates are not payable when large amounts of hours are worked in a short period. The Full Bench’s provisional view was that an averaging period of eight weeks would apply and this had been agreed by the AWU, NUW, NFF and AIG;
• the changes to the Award arise from an award review process whereby the Commission independently assesses what constitutes a fair and relevant safety net of minimum conditions for employers and employees working in the industry. The Commission received detailed evidence from employers and their representatives about the nature of the industry and potential responses to the imposition of casual overtime conditions and was taking this into account in assessing the appropriate award conditions; and
• the effect of approving the Agreements is that casual employees will receive less beneficial hours of work conditions than the minimum applying under the Award from when the award variations take effect until at least the end of the nominal four-year term of each Agreement.” 6
[4] Following the Full Bench decision in Gray the Commissioner then proceeded to consider, in a decision issued on 8 October 2019 (the Interim Decision), 7 the matter remitted to her by the Full Bench in Gray (the BTS Agreement) along with a number of other similar outstanding applications, including the Agreement application the dismissal of which is the subject of the appeal before us.
[5] Following the Interim Decision in which the Commissioner dealt with a number of concerns she held regarding the Agreement, the Appellant was afforded an opportunity to file further submissions and material in support of its application by no later than 4.00pm on 14 October 2019. Following receipt of additional submissions and material filed by the Appellant on 12 October 2019 the Commissioner proceeded to determine and dismiss the application for approval of the Agreement in the Decision on 23 October 2019.
The decisions
[6] While the present appeal is concerned with the Decision of 23 October 2019 it is firstly necessary to deal with the Interim Decision of 8 October 2019. In that decision the Commissioner dealt with a number of concerns she held in relation to the Agreement including; signature requirements, the nominal expiry date of the agreement, a potential opt out term in relation to annual salary arrangements, the individual flexibility agreement (IFA) term, the dispute settlement term and better off overall test concerns.
[7] The Commissioner also dealt with her concern as to whether the agreement had been genuinely agreed as required by section 188(1) of the Act. She considered this statutory requirement in the context of the guidance provided by the Full Bench in Gray as repeated at [3] above. In doing so the Commissioner observed that; the Agreement was made prior to peak season, was made four months before the Award was varied to introduce overtime entitlements for casual employees 8 and the Agreement expressly excluded the entitlement of casual employees to overtime.9 The Commissioner then went on to consider the nature of the explanation provided to employees when she stated as follows;
“[81] The statutory declarations attest to Mr Moreno explaining the imminent changes to the Award and that overtime for casuals would not apply to them if the Paradise Agreement was approved. Mr Moreno says as a member of industry body Growcom, he also “took a keen interest” in developments related to the introduction of overtime for casual employees. Mr Moreno says that he explained to the two employees “the terms of our Paradise Orchards Enterprise Agreement 2018, where those terms differed from the Award and what impact it would have on their employment conditions”. He also says he explained to employees that the Commission had conducted several hearings over the past year regarding overtime for casuals, that the unions and employer bodies had different views, but they had now agreed to proposed changes to the Award in a draft determination. Casual employees would be entitled to overtime under the Award but not the Paradise Agreement if it was approved.
[82] It is apparent that the statutory declarations provided by Mr Moreno are relied upon to establish that the explanation provided to employees for the purposes of section 180(5) of the Act was adequate. The first statutory declaration of 14 May 2019 was provided in response to a request from the Commission that further detail of the explanation under section 180(5) be provided. The second statutory declaration dated 23 September 2019 followed the decision one month earlier in Gray. The contents of the second statutory declaration seem to me to suffer from the deficiency identified in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (One Key No. 2) in that all it does is attest to the assertion that Paradise Orchards has complied with its obligation under the Act in the manner outlined in Gray.
[83] While it may be that the explanation given to employees was as Mr Moreno says, there was no mention of the detail of discussions about future award changes or casual overtime in the original Form F17 provided. The first supplementary statutory declaration was provided in response to a request from the Commission relating to whether the Agreement was genuinely agreed, and specifically whether changes to the Award regarding overtime for casual employees was discussed. It states that employees were told that “imminent changes to the Horticulture Award and the overtime provisions of overtime for casuals, will not apply to them if the agreement is approved.” It did not go into any more detail. It was only once the detail of the necessary explanation in Gray became known that further detail of the content of the explanation was provided in the form of the second statutory declaration.” 10
[8] The Commissioner then weighed the material before her in relation to whether the requirements of s 180(5) were met and stated as follows;
‘[84] Taken as a whole, and without more, the evidence is inadequate to persuade me that the explanation for the purposes of the section 180(5) of the Act was provided to employees as required by Gray. It can be distinguished from the evidence received in relation to the Mauro Agreement involving Ms Mauro’s account of her explanation during the hearing which was tested in cross-examination.” 11
[9] As regards compliance with s 180(5) and s 188(1) the Commissioner went on to conclude that;
“[87] It follows that I am not presently satisfied that the Paradise Agreement was genuinely agreed to by employees because I am not satisfied that it was explained to employees as required by sections 180(5) and 188(1)(a) of the Act to the standard established in Gray and I am not satisfied that there are no other reasonable grounds for believing that the Paradise Agreement was not genuinely agreed.” 12
[10] The Commissioner then provided the Appellant and other parties with an opportunity to file further submissions and undertakings to address remaining concerns she held in relation to the various applications considered by her in the Interim Decision.
“[200] For the reasons set out above, I am not presently satisfied that the remaining Agreements are capable of approval under the Act.
[201] The Applicants in those matters are directed to file any further submissions or undertakings in support of their applications by no later than 4.00pm on 14 October 2019. Where relevant, those submissions or undertakings should also address:
1. incorrect answers given on the Form F17 statutory declaration lodged with the application in relation to whether the enterprise agreement contains any terms or conditions of employment that are less beneficial than equivalent terms and conditions in the Award; and
2. whether the undertakings can be accepted under section 190.”
[11] In the Decision subsequently issued on 23 October 2019 the Commissioner, while accepting that the undertakings proffered by the Appellant following the Interim Decision addressed some of the concerns she had identified in that decision, concluded that the undertakings did not resolve her concerns about whether the Agreement was genuinely agreed. The Commissioner dismissed the application for approval of the Agreement and in doing so stated as follows:
“[5] The undertakings do not resolve concerns about whether the Agreement was genuinely agreed to by employees. I remain of the view that the explanation found necessary in analogous circumstances in Australian Workers’ Union v Gray Australia & Ors (Gray) was not given to employees of Paradise Orchards. In light of Gray, the deficiency cannot be regarded as a minor procedural error warranting the exercise of discretion under section 188(2).
[6] As I am not satisfied that the Agreement has been genuinely agreed to by employees, the Agreement cannot be approved.” 13
Grounds of appeal and submissions
[12] The Appellant’s notice of appeal raises three grounds of appeal:
1. In deciding at paragraph [5] of the Decision that the Agreement was not genuinely agreed, the Commissioner failed to take into account the further statutory declaration of Jose Moreno of 11 October 2019 and filed on 12 October 2019.
2. In the alternative, if this statutory declaration was taken into account, the Commissioner gave no reasons why the evidence contained in the further statutory declaration was not accepted.
3. In deciding at paragraph [5] of the Decision that “in light of Gray, the deficiency cannot be regarded as a minor procedural error warranting the exercise of discretion under section 188(2)”, the Commissioner failed to take into account that the ruling in Gray in relation to s 188(2) was based on a deficiency that did not occur in the instant case.
[13] Following the Interim Decision in which the Commissioner was not persuaded on the material before her that the requirements of s 180(5) of the Act had been met, the Appellant provided additional evidence by way of a statutory declaration of Mr Jose Moreno dated 11 October 2019 14 (the Third Statutory Declaration), further submissions and amended undertakings on 12 October 2019. According to the Appellant the additional evidence and submissions were not considered by the Commissioner or if they were considered no reasons were provided by her for not accepting that additional material.
[14] The Appellant also contends that the Commissioner confronted a similar set of factual circumstances in relation to the explanation of the Agreement when also considering an application for approval of the the JC & LM Mauro Enterprise Agreement 2018 15(the Mauro Agreement), which application was also dealt with in the Interim Decision and ultimately approved by the Commissioner in a separate decision.16 According to the Appellant, in dealing with the Mauro Agreement the Commissioner accepted the evidence of an additional statutory declaration which contained a similar explanation by that employer of how the terms of the Agreement and the effect of those terms were explained to their employees. In contrast to her dismissal of the Agreement application the Commissioner was satisfied that employees genuinely agreed to the Mauro Agreement and ultimately approved it.
[15] The Appellant further contends that, when explaining the terms of the Agreement to employees, both it and Mauro similarly relied on explanatory material relating to Award changes in respect of casual employee overtime provisions provided in newsletters by their industry body ‘Growcom’. The Appellant’s evidence of its reliance on the ‘Growcom’ material in its explanation of the terms of the Agreement to its employees was unpersuasive for the Commissioner as that and other evidence it adduced was untested in cross-examination. The Appellant contends that the absence of any challenge to their evidence or cross-examination ought to have led to its acceptance by the Commissioner.
[16] The Appellant also submits that the finding of the Commissioner that the deficient explanation of the terms of the Agreement were not capable of correction under s 188(2) was in error as the factual circumstances in the present matter were distinguishable from those dealt with by the Full Bench in Gray. Specifically, unlike the matters dealt with in Gray the explanation of the terms of the Agreement were comprehensive and any deficiency was capable of being addressed under s 188(2) of the Act.
[17] In relation to permission to appeal, the Appellant submits that:
• The matter raises issues of importance in general application regarding the correct approach to making an assessment under s 180(5) of the Act.
• The decision at first instance manifests an injustice in that the application for approval of the Agreement was dismissed, when the uncontested facts proved that the Agreement was genuinely agreed.
• The result is counter intuitive in circumstances where the uncontested evidence proves that the explanation satisfied the requirements in Gray.
• The legal principles appear disharmonious when compared with other recent decisions dealing with similar matters (i.e. the Mauro Agreement).
Permission to appeal
[18] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 17 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[19] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, 18 or a preference for a different result.19 In GlaxoSmithKline Australia Pty Ltd v Makin20 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...” 21
[20] It will rarely, if ever, be appropriate to grant permission unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error. 22 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.23
[21] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 24 However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
Consideration
[22] Section 180(5) of the Act requires that an employer must take all reasonable steps to ensure that the terms of an agreement, and the effect of those terms are explained to the relevant employees and that the explanation provided was appropriate having regard to the particular circumstances and needs of the relevant employees. All reasonable steps having been taken pursuant to s 180(5) is one of the necessary preconditions to the Commission being satisfied that an agreement has been genuinely agreed pursuant to s 188(1) of the Act. In the present matter before us the Appellant essentially contends that the Commissioner erred by not finding that the requirements of s 180(5) had been met.
[23] As outlined above at [2]-[3], the Commissioner’s consideration of the application for approval of the Agreement occurred in the context of Award changes to casual employee overtime conditions and in the wake of the Full Bench decision in Gray which dealt with a large number of similar applications. Those Award changes meant that were the Agreement approved casual employees of the Appellant would receive less beneficial hours of work conditions than the minimum applying under the Award from when the award variations took effect until at least the end of the nominal four-year term of the Agreement.
[24] Having regard to the implications of the Award change the Full Bench articulated in Gray the nature of the explanation of the terms of those agreements required to satisfy s 180(5) and s 188(1) requirements. Against this backdrop it was the explanation of the terms of the Agreement relative to the Award changes to casual employee overtime conditions that the Commissioner was particularly concerned with.
[25] The central point of the Appellant’s first ground of appeal of the Decision is that the Commissioner failed to take into account additional material provided to her by the Appellant following the Interim Decision in which the Commissioner was not satisfied that the Appellant had complied with the requirements of s 180(5) of the Act. Before dealing with that additional material it is necessary for us to say something about the conclusions that the Commissioner reached in the Interim Decision as those conclusions were directly relevant to her findings in the Decision regarding the Appellant’s compliance with s 180(5).
[26] In the Interim Decision the Commissioner considered the various material before her in relation to the explanation provided by the Appellant to its employees of the terms of the Agreement and the effect of those terms. In doing so the Commissioner referred at paragraph [83] of that decision to the original Form F17 (the F17) filed by the Appellant on 4 December 2018 and rightly observed that no specific detail was provided in the F17 by the Appellant of the explanation of the future Award changes.
[27] The Commissioner also considered the additional material provided by the Appellant in a statutory declaration of Mr Jose Moreno dated 14 May 2019 (the First Statutory Declaration) 25. As noted by the Commissioner at paragraph [83] of the Interim Decision, the First Statutory Declaration referred to an explanation provided to employees of “imminent changes to the Horticulture Award and the overtime provisions of casuals” and that those changes would not apply to employees covered by the Agreement were it approved. Significantly, the First Statutory Declaration was provided by the Appellant prior to the Gray decision, and the form of the Appellant’s explanation of the terms of the Agreement fell short of that the Full Bench subsequently stated must have been provided to employees in order to satisfy the s 180(5) requirements.
[28] Following the Full Bench decision in Gray the Commissioner wrote to the Appellant on 28 August 2019 drawing its attention to that decision and sought advice as to whether the Appellant wished to proceed with its application. The Appellant confirmed it did wish to proceed and subsequently filed a further statutory declaration of Mr Moreno dated 23 September 2019 (the Second Statutory Declaration) 26.
[29] The Second Statutory Declaration was dealt with at paragraph [82] of the Interim Decision. The Commissioner observed that further details of the explanation of the Agreement terms, as detailed by Mr Moreno in the Second Statutory Declaration, were only provided once Gray became known. The Commissioner rightly highlighted the evolving expansion of the Appellant’s evidence of its explanation of the terms of the Agreement, as seen in its F17, First Statutory Declaration and Second Statutory Declaration.
[30] In the above circumstances the Commissioner was not satisfied that there was sufficient evidence before her of the explanation of the terms of the Agreement, as would meet the standard detailed by the Full Bench in Gray, such as to allow her to conclude that the Agreement had been genuinely agreed.
[31] As regards the Appellant’s submission that it provided similar evidence of the explanation of the terms of the Agreement to employees to that relied on in the Mauro Agreement matter the Commissioner explicitly distinguished at [84] in the Interim Decision the evidence available to her in considering the Mauro Agreement. Critical to the Commissioner distinguishing the Mauro Agreement matter was the evidence that Ms Mauro gave during the proceedings before the Commissioner and which is dealt with at [47]-[57] of the Interim Decision. We see nothing remarkable in the fact that the Commissioner formed a view in respect of the explanation of the terms of the Mauro Agreement that was different to the view she formed in respect of the explanation of the terms of Agreement in circumstances where she had the benefit of observing Ms Mauro in the witness box.
[32] The findings of the Commissioner in the Interim Decision, on which she subsequently relied in the Decision, were clearly open to her. Furthermore, on the material before us we agree with the Commissioner’s conclusions in the Interim Decision that she could not be satisfied that genuine agreement of the relevant employees had been obtained as required by s 188(1) of the Act.
[33] We now turn to consider the additional evidence the Appellant sought to advance following the Interim Decision. Despite submissions from the Appellant in this appeal, the Commissioner in the Interim Decision did not invite further evidence from the Appellant. The Commissioner provided an opportunity to the Appellant to provide further submissions and undertakings 27 which they did, and which were considered by her.28
[34] Having clearly dealt with the Appellant’s evidentiary case on the explanation of the terms of the Agreement in the Interim Decision it was open to the Commissioner to proceed to determine the Agreement application on the basis of the submissions and undertakings, and not the further statutory declaration, subsequently filed by the Appellant on 12 October 2019. The Commissioner was not bound to consider that further statutory declaration and as such, to the extent that it is arguable that material was not considered or if so considered not referred to in the Decision, the absence of consideration or reference to it in the Decision was not in error.
[35] For the sake of completeness however, we will briefly deal with the Third Statutory Declaration 29. The Third Statutory Declaration sought to expand on the information provided in the First Statutory Declaration and Second Statutory Declaration going to the explanation provided by the Appellant to its employees of the Award changes to casual employee overtime provisions. It also sought to portray Mr Moreno’s less than comprehensive earlier explanations as due to a lack of his understanding or appreciation of the Commission’s requirements.
[36] In our view the Third Statutory Declaration offered little more in relation to the nature and content of the explanation of the Agreement terms and their effects than had been provided in the earlier statutory declarations of Mr Moreno, save for the explanation of why the earlier statutory declarations were not sufficiently comprehensive. The evidence of the explanation of the terms and effects of the terms of the Agreement were found by the Commissioner in the Interim Decision to be inadequate. Even were the Commissioner bound to consider the further evidence, there was nothing in that evidence in our view that would have led to a different conclusion.
[37] A fair reading of both the Interim Decision and the Decision establishes that the Commissioner considered the relevant evidence of the Appellant’s explanation of the terms and effects of the terms of the Agreement and in doing so distinguished that evidence before her from that considered in relation to the Mauro Agreement. In light of Gray she was not satisfied with the Appellants explanation to employees of the Agreement terms or their effects. For the reasons outlined above we discern no error in her approach or conclusion.
[38] As regards the Appellant’s third ground of appeal it appears to proceed on the premise that the Agreement terms explanation provided by the Appellant met or substantially met the requirements of s 180(5) and was therefore distinguishable from those applications dealt with and dismissed in Gray. That premise is plainly wrong considering our findings above. The Commissioner concluded that the explanation of the terms was inadequate on the authority of Gray and that the deficiency of the explanation in the circumstances was not capable of correction under s 188(2). The Commissioner’s approach was entirely consistent with that adopted by the Full Bench in Gray and we discern no error.
[39] We do not consider that this appeal raises issues of importance and general application as the requirements of s 180(5) are well established. The Decision at first instance is not counter intuitive, it does not manifest an injustice, nor is it attended with sufficient doubt to warrant its reconsideration. Furthermore, the legal principles applied by the Commissioner do not appear disharmonious when compared to other recent decisions dealing with similar matters, including the Mauro Agreement decision which was clearly distinguished by the Commissioner.
Conclusion
[40] For the above reasons, we order as follows:
• Permission to appeal is refused.
• The appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr P Copeland for the Appellant.
Hearing details:
28 November.
2019.
Melbourne with videolink to Brisbane.
Final written submissions:
Appellant’s written submissions dated 11 November 2019.
Printed by authority of the Commonwealth Government Printer
<PR715048>
1 [2019] FWC 7331
2 MA000028
3 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541; 4 yearly review of modern awards – Award stage – Group 3 [2018] FWCFB 1405 at [121] and [2018] FWCFB 6368.
4 [2019] FWC 1016
5 [2019] FWCFB 4253
6 Ibid at [92]-[93]
7 [2019] FWC 6905
8 [2019] FWC 7331 at [78]
9 Ibid at [79]
10 Ibid at [81]-[83]
11 Ibid at [84]
12 Ibid at [87]
13 [2019] FWC 7331 at [5]-[6]
14 Appeal Book at page 51
15 AE505846
16 [2019] FWC 7329
17 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
18 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
19 Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54;192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
20 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at 16.
21 Ibid at [24] - [27].
22 Wan v Australian Industrial Relations Commission [2001] FCA 1803, 116 FCR 481 at [30].
23 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
24 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
25 Appeal Book page 45
26 Appeal Book page 46
27 [2019] FWC 6905 at paragraph [201]
28 [2019] FWC 7331 at paragraph [3]
29 Appeal Book page 51
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