John Rolph v Dongwha Australia Pty Ltd
[2020] FWCFB 327
•21 JANUARY 2020
| [2020] FWCFB 327 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Rolph
v
Dongwha Australia Pty Ltd
(C2019/5736)
VICE PRESIDENT HATCHER | SYDNEY, 21 JANUARY 2020 |
Appeal against decision [2019] FWCA 5994 of Commissioner Bissett at Melbourne on 29 August 2019 in matter number AG2019/2405.
Introduction and background
[1] Mr John Rolph has applied for permission to appeal and has appealed against a decision made by Commissioner Bissett on 29 August 2019 1 (decision), in which the Commissioner approved the Dongwha Australia Enterprise Agreement 2019 (the Agreement). The background to these proceedings may be shortly stated as follows.
[2] Dongwha Australia Pty Ltd (Dongwha) agreed to commence bargaining in respect of the Agreement on 2 November 2017, and issued notices of employee representational rights to employees pursuant to s 173 of the Fair Work Act 2009 (FW Act) on 14 November 2017. Mr Rolph was subsequently nominated as an employee bargaining representative by a number of the relevant employees.
[3] Pursuant to s 240 of the FW Act, Mr Rolph lodged an application for the Commission to deal with a bargaining dispute on 17 December 2018 in relation to bargaining for the Agreement 2 (bargaining dispute). The bargaining dispute was allocated to Deputy President Kovacic and was initially listed for a conference before the Deputy President on 31 January 2019 but was adjourned at the request of Mr Rolph. The bargaining dispute was subsequently relisted for a conference at Mr Rolph’s request, and proceeded before the Deputy President on 20 May 2019 in Canberra. A further telephone conference was conducted on 7 June 2019. The two conferences conducted by the Deputy President failed to resolve the bargaining dispute.
[4] On 19 June 2019 Dongwha advised the employee bargaining representatives (including Mr Rolph) that it regarded bargaining at an impasse and therefore intended to proceed to a ballot for approval of the Agreement. Employees were advised on 20 June 2019 of the ballot details and that the 7-day access period would commence on 21 June 2019. The ballot was conducted on 28 June 2019 and a majority of employees who cast a valid vote approved the Agreement.
[5] Dongwha filed an application for approval of the Agreement pursuant to s 185 of the FW Act on 5 July 2019. The application was allocated to the Commissioner for determination. The modern award identified in the Form F17 statutory declaration supporting the application as covering Dongwha’s employees was the Timber Industry Award 2010 3 (Timber Award). Mr Rolph objected to approval of the Agreement and filed various materials prior to a conference conducted on 8 August 2019, during which the Commissioner heard from the parties in relation to Mr Rolph’s objections and in relation to the Commissioner’s own concerns regarding approval of the Agreement. The Commissioner, after receiving further written submissions from the Appellant on 16 August 2019, issued the decision approving the Agreement on 29 August 2019.
The decision
[6] The Commissioner in the decision set out the statutory requirements for approval of the Agreement and identified the concerns she held in relation to approval of the Agreement, these being: how the Agreement had been explained to employees; the length of the access period prior to the conduct of the ballot; access to voting; a deduction of wages clause; and the definition of a “shiftworker” for the purposes of the National Employment Standards (NES). 4 The Commissioner also detailed the grounds of Mr Rolph’s objection to approval of the Agreement as follows;
“[15] Mr Rolph objects to the approval of the Agreement on the grounds that he says Dongwha failed to bargain in good faith and that therefore the approving the Agreement would be inconsistent with or would undermine the good faith requirements of the FW Act. These appears to go to the requirements of s 187(2) of the FW Act.
[16] Mr Rolph put this on two main grounds. Firstly, Mr Rolph submits that, in the bargaining for the Agreement, Dongwha failed to give genuine consideration to claims made in relation to:
• The claimed rates of pay;
• The Agreement applying to all employees;
• The inclusion in the dispute resolution procedure of the Agreement principles relating to natural justice or timelines for completion of the procedure;
• Allowance provisions which maintained relativity with wages;
• Limitation of the use of information from surveillance cameras;
• The inclusion of provisions which preference Australian citizens and residents in employment;
• An allowance for general meetings of employees during the bargaining process;
• The payment of employee licensing costs;
• Additional levels for trades employees and maintenance of trades award relativities in the Agreement.
[17] Secondly, Mr Rolph says that bargaining in relation to the above matters was terminated by Dongwha on 19 June 2019 without notice and without agreement with the bargaining representatives that bargaining had ended and despite a request that a further conference in relation to an application pursuant to s 240 of the FW Act be scheduled. In unilaterally terminating the bargaining Mr Rolph says that Dongwha acted capriciously and in a manner likely to undermine the freedom of association of employees. Mr Rolph submits that Dongwha further acted capriciously and in a manner to undermine the freedom of association of employees in that Dongwha:
• Failed to provide employees and employee bargaining representatives with an opportunity to consider specific wording of the Agreement;
• Failed to invite the bargaining representatives to address meetings of employees;
• Failed to inform employees of false or misleading information;
• Failed to provide an “equitable balloting system” in that it failed to consult on the balloting process;
• Failed to provide the “prescribed minimum period between the conclusion of the Employees access period” and voting;
• Failed to provide a reasonable opportunity for casting of absentee votes.
[18]Mr Rolph also submits that Dongwha acted to stall and delay reaching a fair and equitable agreement to put financial pressure on employees to agree to its preferred terms and conditions.” 5
[7] The Commissioner variously found in relation to Mr Rolph’s objections that:
• his submissions were general in nature with little detail and no reference to the relevant provisions of the FW Act; 6
• beyond dissatisfaction with the outcome of bargaining there was little evidence that Dongwha had not met good faith bargaining requirements; 7
• the specific wages and conditions concerns raised by the Appellant did not demonstrate that Dongwha had failed to give genuine consideration to proposals advanced by employee bargaining representatives during bargaining; 8 and
• Dongwha’s actions in proceeding to ballot without agreement of the bargaining representatives or in not inviting the bargaining representatives to address employee meetings were not such as to satisfy the Commissioner that Dongwha had engaged in capricious conduct or that those actions undermined freedom of association. 9
[8] In approving the Agreement, the Commissioner also variously found in relation to concerns she held that:
• while Dongwha did not comply with the s 180(3) 7-day access period requirement, 10 this failure was a minor procedural error capable of being addressed under s188(2) of the FW Act;11
• only those employees covered by the Agreement were allowed to vote and there was no evidence that employees who wished to exercise their right to vote were unable to do so; 12
• based on additional information provided by Dongwha in a revised Form F17 statutory declaration, the Commissioner was satisfied that the requirements of s 180(5) of the Act had been met; 13 and
• employees were not requested to approve the Agreement until 21 days after the last notice of employee representational rights had been issued. 14
Grounds of appeal
[9] Mr Rolph’s notice of appeal raises 6 grounds which, as best we can understand them, are summarised below:
1. The Commissioner was unreasonable and unjust in approving the Agreement by failing to take into account proceedings in the bargaining dispute that were before Deputy President Kovacic at the time of the Agreement ballot.
2. The Commissioner’s approval of the Agreement which endorsed Dongwha’s unilateral withdrawal from negotiations establishes a precedent that may act to limit or prevent effective conciliation and negotiations for enterprise agreements.
3. The Commissioner’s approval of the Agreement which supported Dongwha’s unliteral withdrawal from negotiations prevented the conciliation or arbitration of outstanding differences between the parties.
4. The Commissioner relied on false and misleading information contained within Dongwha’s Form F17 statutory declaration.
5. The Commissioner was mistaken or failed to consider material facts relating to s 228(d) of the Act in that Dongwha wilfully or otherwise unreasonably or unjustly failed to bargain in good faith.
6. That matters raised during a private conference before the Commission were recorded by the Commission and relied on in subsequent proceedings.
[10] Mr Rolph submitted that the grant of permission to appeal would be in the public interest because:
1. The circumstances surrounding approval of the Agreement undermined the role and independence of the Commission and the objects of the FW Act in terms of its agreement approval function.
2. There was a need to maintain common law freedom of association and representation.
3. There was a need to protect and promote the common law right and liberty of and for the general freedom of association, representation and records of public administration of and for Australia.
Consideration
[11] An appeal under s 604 of the FW 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. 15 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 of the FW Act provides as follows:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[12] Section 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. 16 The public interest is not satisfied simply by the identification of error,17 or a preference for a different result.18
[13] The public interest may for example be attracted if an appeal 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 or tribunal is required, or where the decision the subject of appeal manifests an injustice, or the result in that decision is counterintuitive or if the legal principles applied in the decision appear disharmonious compared with other recent decisions dealing with similar matters. 19
[14] Considerations which have traditionally been adopted in granting leave, and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 20 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.21 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.22
[15] As we are dealing in this decision only with permission to appeal, it is not appropriate to conduct a detailed examination of the Appellant’s grounds of appeal 23 although it is necessary to examine the grounds to ascertain whether they raise an arguable case of appealable error.
[16] We are not satisfied that it would be in the public interest to grant permission to appeal, for the following reasons.
Ground 1, 2, 3 & 5
[17] It is convenient for us to deal with these grounds of appeal together. The gravamen of grounds 1, 2, 3 and 5 is that the Commissioner failed to take into account and/or by her decision supported the conduct of Dongwha in withdrawing unilaterally from bargaining and proceeding to a ballot for the Agreement in spite of there being an extant s 240 application and a significant number of outstanding claims. The effect of Dongwha’s conduct was, according to Mr Rolph, to breach good faith bargaining obligations, to forestall further negotiations and negate the possibility of resolution of outstanding matters through conciliation and/or arbitration, matters the Commissioner ought to have considered.
[18] Turning first to the alleged error of the Commissioner in failing to take into account the extant bargaining dispute, the ground is misconceived. It is clear enough from paragraph [17] of the decision that the Commissioner was alive to the bargaining dispute proceedings before the Deputy President. The fact that there was an extant bargaining dispute at the time Dongwha decided to proceed to a ballot for the Agreement could not act as a barrier to the ballot for approval of the Agreement proceeding in the absence of a bargaining order barring this from occurring. There is nothing in the terms of the FW Act that evince an intention that resolution or withdrawal of an extant s 240 application is a pre-requisite for a ballot proceeding for approval of an enterprise agreement.
[19] We also add that Mr Rolph’s contention that Dongwha’s decision to proceed to a ballot was “contrary to and in contempt of a direction granted” by the Deputy President is patently without merit. At the conclusion of the second conference conducted by the Deputy President on 7 June 2019 it is apparent that the conference was concluded on the basis that liberty to apply was available to either party. Such a position does not constitute a direction of the Commission that prevents either party exercising rights otherwise available under the FW Act. It is unsurprising therefore that the Commissioner did not entertain the submission that Dongwha’s decision to proceed to a ballot of the Agreement was in breach of a direction of the Deputy President.
[20] As regards the number of outstanding claims at the time of the ballot which the Appellant took us to, it is entirely unremarkable that bargaining representatives may aspire to a better outcome from bargaining than is ultimately realised. The present matter is a case in point, and the Commissioner at paragraph [20] of the decision pointed to the dissatisfaction of Mr Rolph and other bargaining representatives with the outcome of the negotiations for the new agreement. As the Commissioner correctly pointed out at paragraph [20] of the Decision, mere dissatisfaction with the outcome is not a basis for finding that Dongwha had not bargained in good faith. We agree with the Commissioner’s observation. In truth, it appears on the material before us that the Appellant’s complaint of error on the part of the Commissioner is really a complaint that he and other employee bargaining representatives were unable to achieve a better outcome for employees in bargaining than was ultimately realised.
[21] Although it is doubtful that this issue was properly raised in Mr Rolph’s grounds of appeal, we also briefly deal with his allegation that Dongwha coerced the workforce to approve the Agreement by denying the workforce a pay rise that they were entitled to under the previous agreement. During bargaining for the Agreement, a dispute arose between the parties as to the proper application of clause 20.3 of the then-applicable Dongwha Timbers Enterprise Agreement 2015 24 (2015 Agreement). The 2015 Agreement reached its nominal expiry date on 1 March 2018. Clause 20.3 relevantly provided as follows:
20.3 Nominal expiry date of the Enterprise Agreement would be 1st March 2018 with bargaining for a replacement agreement commences three (3) months prior to the nominal expiry date. With an undertaking, that if no agreement is reached in respect of wage rates on or before the nominal date of expiry, an interim wage adjustment to the then prescribed wage rates shall be made and applied in accordance with the then standing FWC minimum wage determination.
[22] It was not in dispute that Dongwha passed on a wage increase on 1 March 2018, it says in compliance with clause 20.3 of the 2015 Agreement. Mr Rolph asserts that Dongwha was also obliged by clause 20.3 to pass on an increase on 1 March 2019, a claim denied by Dongwha. An application made by an employee of Dongwha (represented by Mr Rolph) for the Commission to resolve a dispute about this matter was filed in the Commission pursuant to s 739 of the Act on 18 March 2019 and was dealt with by Commissioner McKenna. 25 The Commission’s records show that this proceeding was discontinued on 26 March 2019. Mr Rolph conceded before us that avenues were available to employees to pursue any claim of wages underpayment, either by referral to the Fair Work Ombudsman or via enforcement proceedings in a relevant court. It does not appear to us that there was any evidentiary basis for Mr Rolph’s contention that a wage increase allegedly due on 1 March 2019 was withheld in order to coerce employees to approve the Agreement. Rather, it is apparent that Dongwha proceeded on the basis of a bona fide belief that there was no obligation under clause 20.3 of the 2015 Agreement for it to pay a further wage increase on 1 March 2019, and its position in that respect appears to us to be (at the least) reasonably arguable.
[23] As regards the Appellant’s complaint that the Commissioner erred in finding that good faith bargaining requirements were met, we observe the following. Bargaining for the Agreement had been ongoing for over 18 months, there had been several meetings over that period and, in the wake of the s 240 conferences conducted by the Deputy President on 20 May and 7 June 2019, correspondence was exchanged between the parties in relation to the outstanding claims. Dongwha moved from the position it held at the commencement of bargaining in a number of respects and, in respect of a number of somewhat unusual claims advanced Mr Rolph, explained why it rejected those claims. In our view, neither the prior conduct of the parties that we were taken to by Mr Rolph nor the contents of the correspondence from Dongwha dated 4 June 2019 and 14 June 2019 disclose capricious conduct or conduct likely to undermine good faith bargaining.
[24] We also note that a further bargaining meeting was held on 19 June 2019. At the end of that meeting Dongwha declared an impasse in bargaining which was confirmed in correspondence from Dongwha to the Appellant on 19 June 2019 in which it stated as follows:
“…I would like to confirm that at our enterprise agreement negotiation meeting held this morning, being Wednesday, 19 June 2019, at the company’s premises, at the end of the meeting, the company declared an impasse on the enterprise agreement negotiation. The company would like to give the employees an opportunity to vote on the proposed enterprise agreement, especially given the amount of time that has passed since the negotiation commenced…”
[25] The Commissioner dealt with Mr Rolph’s objections to approval of the Agreement in paragraphs [20]-[24] of the decision including in respect of Dongwha’s decision to withdraw from bargaining and proceed to a ballot. The Commissioner considered Mr Rolph’s grounds for opposing approval of the Agreement and provided her reasoning as to why she was not persuaded on the material before her that Dongwha’s conduct was capricious, unfair or breached good faith bargaining obligations. The findings made by the Commissioner were open on the material before her and we discern no error in her approach or conclusions reached.
[26] We are not persuaded that the Commissioner was in error by finding at paragraph [24] of the Decision that the requirements of 187(2) of the FW Act had been met. Accordingly, permission to appeal in respect of grounds 1, 2, 3 & 5 is refused.
Ground 4
[27] Mr Rolph contends pursuant to this appeal ground that the Commissioner failed to have regard to false and misleading information provided by Dongwha including: a misleading statement contained in question and answer material to employees; an inaccurate declaration as to the voting cohort of employees; an inadequate absentee voting process; the failure of Dongwha to advise employees of their right to consult their bargaining representative over the terms of the Agreement terms; and the failure of Dongwha to declare the correct number of modern awards covering the work within Dongwha’s enterprise.
[28] Turning firstly to the “Dongwha EA Question and Answer Sheet” which was provided to employees during the access period, it is alleged by Mr Rolph that it contained a false and misleading statement which is allegedly found in response to the final question, “What happens if the vote is a no?” and relevantly states as follows:
“…As we have previously stated, the Deputy President has already, on two occasions, advised that there is no room for arbitration…”
[29] We do not consider that it is reasonably arguable that this statement was misleading. It was not contended that the Deputy President did not give the advice referred to in the course of the bargaining dispute proceedings. Moreover that advice, understood in context, was clearly correct. Section 204(4) of the FW Act provides that arbitration in connection with a s 204 proceeding may only occur with the agreement of the bargaining representatives. It was uncontroversial that Dongwha had consistently refused to agree to the arbitration of outstanding matters by the Deputy President as a means of resolving the bargaining dispute. This was made clear in Dongwha’s correspondence of 4 June 2019, in which it stated: “The Company does not agree to this matter being referred to independent arbitration by the Fair Work Commission”. This position was reiterated in correspondence to Mr Dongwha dated 14 June 2019. Accordingly, there was indeed “no room for arbitration” of the remaining matters in issue under the FW Act.
[30] As regards the alleged error of the Commissioner in respect of the voting cohort of employees, Mr Rolph raised a concern in correspondence to the Commissioner on 1 August 2019 about the number of employees that would be covered by the Agreement, that number having been identified in Dongwha’s Form F17 as 90. Mr Rolph attached in support of his concern a copy of Dongwha’s Workplace Gender Report dated 4 October 2017, which identified non-managerial staff numbers of 122 at that time. Dongwha in subsequent correspondence to the Commissioner dated 8 August 2019 provided a list of Dongwha’s employees employed as at 28 June 2019 and a more recent Workplace Gender Report dated 21 June 2019. That latter report identified non-managerial staff numbers of 97.
[31] There were 8 professional staff not covered by the Agreement included in the non-managerial staff number of 97 in the 2019 Workplace Gender Report. Taking that number into account, it appears to us that the number of 90 employees stated to be covered by the Agreement in the Form F17 is reconcilable with the most recent 2019 Workplace Gender Report. The finding made by the Commissioner that only employees covered by the Agreement were allowed to vote 26 was open on the material before her and we discern no error.
[32] We now turn to the absentee voting process and non-participation of employee bargaining representatives in meetings with employees over the Agreement. The Commissioner considered those matters and made the following findings:
• • The Appellant had failed to produce any evidence that employees who wished to vote were prevented from doing so. 27
• • The material before the Commissioner in relation to the voting process was not sufficient to establish the Agreement was not genuinely agreed. 28
• • The actions of Dongwha in proceeding to a ballot without agreement of bargaining representatives or in not inviting the bargaining representatives to address employee meetings was not explained so as to convince the Commissioner that Dongwha’s conduct was capricious or undermined freedom of association. 29
[33] The Appellant has failed to advance any arguable case that the above findings were attended by appealable error.
[34] We now deal with the Appellant’s contention that Dongwha’s Form F17 incorrectly stated that there was only one underpinning award, that being the Timber Award. The Appellant contends that there are other modern awards that would otherwise apply to certain employees, those being the Manufacturing and Associated Industries and Occupations Award 2010 30 (Manufacturing Award), the Electrical, Electronic and Communications Contracting Award 201031 (Electrical Award) and the Clerks—Private Sector Award 201032 (Clerks Award).
[35] The submission appeared to be pressed by Mr Rolph more out of concern that there had been voting irregularities in the ballot rather than that the existence or impact of a false statement in the Form F17 as to what were the relevant modern award/s for the purpose of the BOOT assessment. While the point of the Form F17’s accuracy is raised on appeal it does not appear to have been raised before the Commissioner. Rather the issue raised at first instance by Mr Rolph was that of the proportion of the workforce that were in small cohort groupings, such as tradespersons, and the ability of the larger cohorts within the workforce to ‘outvote’ them on issues of interest to the smaller cohorts.
[36] Notwithstanding the Form F17 issue may not have been pressed at first instance by the Appellant we will briefly deal with it. We note that the Timber Award contains a classification of “millwright” which is defined as a “tradesperson engaged in installing and/or maintaining machinery”. 33 No submission or material was advanced by the Appellant as to whether the classification of millwright includes or excludes mechanical and/or electrical tradespersons working for Dongwha. We are not in a position on the material before us to determine that point and/or conclude that the Form F17 incorrectly omitted reference to the Manufacturing Award and/or the Electrical Award.
[37] As regards the coverage of Clerks Award, there are a small number of clerical staff who according to Dongwha work in the “yard”, are covered by the Agreement and participated in the ballot. There is some doubt as to whether the Award would cover those employees although we were again not taken to any material that would allow us to draw a conclusion.
[38] In any event little appears to turn on the Form F17 accuracy point. Pay rates in the Agreement are comfortably above Timber Award rates, with margins between 20% - 50% higher. They are also higher than any relevant rates of pay in the Manufacturing Award, the Electrical Award and the Clerical Award. Any remaining question as to relevant awards otherwise applying is effectively resolved through the incorporation of modern awards into the Agreement. This is not limited to the Timber Award, since clause 3.1 of the Agreement states that the Agreement incorporates:
…such modern Awards determined pursuant to the Fair Work Act 2009 that would, but for this Agreement, cover the particular work capacity and duties of any particular employee or work group of employees engaged at any time under this Agreement, inclusive of, but not limited to, the “Timber Industry Award 2010” as may be amended or substituted from time to time (hereinafter referred to as “a relevant Award”).
[39] For the reasons outlined above we are not persuaded that the Commissioner was led into error by false or misleading information. Accordingly, permission to appeal in respect of ground 4 is refused.
Ground 6
[40] We infer from Mr Rolph’s notice of appeal that it is contended that the Commissioner was in error by considering irrelevant information, that being information obtained during a confidential conference of the parties. The ground was not elaborated on in written or oral submissions. We were not taken to any alleged finding that was reached by the Commissioner by reliance on irrelevant information or material obtained during a private conference. On that basis we can discern no arguable case of error and permission to appeal in respect of ground 6 is refused.
Conclusion
[41] On the material before us we are not persuaded that the matters set out in the grounds of appeal raise any arguable case of material error in the exercise of the Commissioner’s statutory functions. Nor are we persuaded that the appeal otherwise raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised.
[42] For the reasons stated above, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr J Rolph on his own behalf.
Ms J Gilbert on behalf of Dongwha Australia Pty Ltd.
Hearing details:
2019.
Melbourne:
9 December.
Printed by authority of the Commonwealth Government Printer
<PR716083>
1 [2019] FWCA 5994
2 B2018/1204
3 MA000071
4 Ibid at [3]
5 Ibid at [15]-[18]
6 Ibid at [20]
7 Ibid
8 Ibid at [21]
9 Ibid at [22]
10 Ibid at [29]
11 Ibid at [35]
12 Ibid at [39]-[40]
13 Ibid at [42]
14 Ibid at [43]
15 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
16 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
17 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
18 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
19 See GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24] - [27]
20 Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]
21 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
22 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
23 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
24 PR571248
25 C2019/1696
26 [2019] FWCA 5994 at [40]
27 Ibid at [39]
28 Ibid
29 Ibid at [23]
30 MA000010
31 MA000025
32 MA000002
33 Award at Clause 3 Definitions and interpretations
0
9
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