Keith Austin v Future Generation Joint Venture
[2022] FWC 1180
•17 MAY 2022
| [2022] FWC 1180 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Keith Austin
v
Future Generation Joint Venture
(C2022/1402)
| DEPUTY PRESIDENT CROSS | SYDNEY, 17 MAY 2022 |
General protections dismissal dispute - application filed out of time – circumstances exceptional – application allowed. Application to allow an amendment to change the name of the Respondent – application allowed.
Mr Keith Austin (the Applicant) made an application to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute relating to the Applicant’s allegations that he had been dismissed from his employment with Future Generation Joint Venture (the Respondent/the Joint Venture) in contravention of Part 3-1 of the Act (the Application).
Clough Projects Australia Pty Ltd (Clough), Webuild S.p.A. (Webuild) and The Lane Construction Corporation, being members of the unincorporated joint venture SLC Snowy Hydro Joint Venture, also known as "Future Generation Joint Venture," having been the named Respondent, have objected to the Application on the grounds that:
(a) There was no valid application made against the employer of the Applicant; and
(b) The Application was filed out of time, and any application to extend the time to file the Application should be rejected because no "exceptional circumstances" have been made out.
This matter was previously allocated to Deputy President Mansini for determination. On 28 March 2022, Deputy President Mansini issued directions to program the manner in which the Application was to proceed to hearing.
Upon the resignation of Deputy President Mansini, this matter was reallocated to my Chambers for determination. Amended directions to program the manner in which the Application was to proceed to hearing (the Amended Directions) were issued. The Amended Directions were as follows:
1. Mr Keith Austin (the Applicant) is directed to file with the Fair Work Commission, and serve on Future Generation Joint Venture (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 11 April 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 20 April 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 26 April 2022
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 20 April 2022.
The parties complied with the Amended Directions. In particular:
(a) On 1 April 2022 the Applicant filed a statement that referenced five annexures; and
(b) On 20 April 2022, the Respondent filed an Outline of Submissions (the Respondent’s Submission);
The Applicant did not file any materials in reply despite the ability to do so being provided for in the Amended Directions.
The first day of hearing of the matter occurred on 29 April 2022. During the proceedings on that day, and at my suggestion,[1] the Applicant made an application under s 586 of the Act to amend the name of the Respondent in the Application to Salini Australia Pty Ltd (Salini). In order to allow Salini to fully respond to the application to amend the name of the Respondent, the matter was adjourned to 6 May 2022, to allow Salini to file any evidence and submissions opposing that application.
On 4 May 2022, Salini filed an Outline of Submissions and a Statement of Ms Aimy Thorne, Senior Human Resources Advisor of the Respondent, and an employee of Salini. Ms Thorne was cross-examined. The hearing of the matter concluded on 6 May 2022.
Relevant Facts
There were no factual disputes of substance between the parties. While the Applicant was cross-examined, I observed him to provide considered and honest answers to questions asked. I found Ms Thorne to be similarly considered and honest in her evidence and cross-examination.
Though the Applicant expressed some confusion at times, that confusion was understandable given that the Applicant, previously employed as a Conveyor Supervisor, was being asked questions regarding employer identity, in circumstances where his former employer was part of a joint venture in which that employer, and a number of other entities, provided professional employees on secondment to work in a department structure within the project managed by the Respondent.
The relevant facts of the matter, as disclosed by the materials filed and the evidence adduced at the hearing of the matter, are as follows:
(a) The Applicant was employed as a Conveyor Supervisor by Salini, a wholly owned subsidiary of Webuild pursuant to an Employment Agreement dated 30 July 2021, and signed on 3 August 2021 (the Contract). The Contract listed two commencement dates of 8 September and 13 October 2021, though the Applicant alleged his employment commenced on 14 October 2021. The Contract is remarkable for the lack of reference to the Respondent/Joint Venture.
(b) The employment of the Applicant was subject to a six-month probationary period. On 14 December 2021, the Applicant was advised he would receive a pay increase of $10,000.00 plus superannuation from 1 January 2022.
(c) On 2 February 2022, Mr Ritchie, an employee of Clough, and Ms Thorne held a meeting with the Applicant. Mr Ritchie and Ms Thorne had instructions from Mr Spana, an employee of Webuild, that Mr Austin's employment was to be terminated during the probationary period. The Applicant claimed he was terminated after being wrongfully blamed for signing in a workmate, when he had been given the permission to do so. Ms Thorne claimed Mr Ritchie said to the Applicant:
“Your employment has not been confirmed. Your employment is terminated effective immediately"
The Applicant’s recollection of what was said by Mr Ritchie in the 2 February 2022 meeting was:[2]
“I'll be standing you - terminating your employment as of today and you'll be paid one month.”
In further cross-examination of the Applicant regarding what was said by Mr Ritchie, his evidence was:[3]
“But you just gave evidence that Mr Ritchie said to you directly, 'We'll be terminating your employment today and you'll be paid a month.' Is that right?‑‑‑That word 'terminating you today', as I recall, he did not say 'terminated' but he did say something along 'standing you down'. Stand down with pay for four weeks. I don't recall him saying 'terminated'.
You just gave evidence a minute ago that he said 'terminated'?‑‑‑It was - sorry, I'll take that back. I remember that day that he did not say 'terminated', he said, 'You'll be stood down with pay for four weeks.'”
(d) On 7 February 2022, Ms Thorne sent an email to the Applicant that attached a termination letter from Salini dated 2 February 2022, signed by Mr Spana.
(e) The Applicant readily conceded that he was aware of the 21-day limit on commencing an application to challenge his dismissal, and that within that 21-day period he spoke to a number of lawyers and the Registry of the Commission, and did his own research.
(f) On the last day of the 21-day period, being 23 February 2022, the Applicant filed an unlawful termination application under s 773 of the Act which was allocated matter number C2022/1365. Thereafter, the Registry spoke to the Applicant and advised him that he had filled out an unlawful termination application and not a general protections application. The Registry apparently advised the Applicant:[4]
“Do it properly again and resubmit, because we can't take it.”
(g) Later on the night of 23 February 2022, the Applicant completed the Application, reviewed it, and then filed it on 24 February 2022.
(h) The Respondent filed the Form F8A Response on 7 March 2022 (the Response), and that document clearly put the Applicant on notice of the jurisdictional objection regarding the identity of the Applicant’s employer, as well as the jurisdictional objection that the Application was filed out of time.
Applicant to Amend Name of the Respondent
(a) Submissions of Salini
While Salini accepted that it was the employer of the Applicant, and that it terminated his employment on 2 February 2022, Salini opposed the application to amend the name of the Respondent.
Salini noted that the power under s 586 of the Act is broad and can be exercised by the Commission to amend the name of a respondent employer in an application.[5] Salini noted that this power is discretionary, and the Commission may determine to exercise the power based upon the evidence before it. Salini accepted that in Djula v Centurion Transport Co. Pty Ltd (Djula), [6] the Full Bench found that the exercise of the discretion will turn on the circumstances of the case, and that certain circumstances may lead to the refusal of such an application.
Salini submitted that circumstances of the Applicant naming "Future Generation Joint Venture" as the Respondent to the Application were not as the result of mistake, misdescription, misnomer or mis-identity, and he was clearly aware his employer was Salini Australia. In particular, Salini submitted:
(a) The Applicant knew that he was employed by a "Salini" entity. His statement makes this clear stating "I was employed by Salini…";
(b) Formal employment-related correspondence was directed to the Applicant by Salini Australia, including the salary review dated 14 December 2021, and the termination letter dated 2 February 2022;
(c) The Applicant clearly stated that he named "FGJV" knowing it not to be his employer. In his statement he said: "The reason I named FGJV is because they are the ones who put the advertisement out for the job I applied for". He further said: "If Future Generation Joint Venture isn't an employer then Salini would be responsible."
Salini stated that the Applicant was clearly on notice of the jurisdictional objection from the time of receipt of the Response on 7 March 2022, yet he continued to claim against the Joint Venture until making a late application to amend the identity of the Respondent during the course of the hearing on 29 April 2022, following cross-examination. Salini submitted that the merits of the case and prejudice to Salini were also relevant factors in the consideration of the exercise of the discretion.
Salini submitted that the circumstances of the present case are distinguishable from Djula and more closely resemble those of the decision in Miriam Stewart v Carer Solutions Australia Pty Ltd (Stewart).[7] In the present case, Salini submitted:
(a) There is no evidence that the Applicant was confused about his employer, or its legal identity, nor that the confusion was caused by the conduct of the proper employer as to its identity. To the contrary, the Applicant was clearly aware of his employer. He has instead consciously chosen to proceed against "Future Generation Joint Venture" as the Respondent to the Application.
(b) It is clear the Applicant knew of the distinction between the Joint Venture and Salini Australia, but made the conscious decision to name the Joint Venture for particular purposes, namely that he considered that employees of Clough had engaged in alleged contraventions of the general protections provisions of the Act.
(c) There has been no change in employer, such as in the event of a transfer of business or employment (as in, for example, T De Silva v EQ Life Pty Ltd[2013] FWC 9203). The Applicant has always been an employee of Salini Australia and was never an employee of the Joint Venture.
Salini concluded by submitting that what is being sought by the Applicant now is, in effect, the making of a new application against another legal entity. The proper course is, instead, for the Applicant to file a fresh application against his proper employer. Salini submitted that the fresh application would be clearly and substantially out of time, and the Applicant should establish exceptional circumstances for the delay in making the fresh application.
(b) Consideration as to Amendment of the Name of the Respondent
Contrary to the submission of Salini, I do not consider that the circumstances of the present case are distinguishable from Djula, or more aligned to the facts in Stewart.
Stewart involved a s 586 application described by Deputy President Clancy as being made “…at the latest possible stage and then, having only advanced [the s 586 application] in the alternative, Ms Stewart is seeking to have a bet each way.”[8] That was in the circumstance where the Applicant was legally represented from within around a week of the dismissal.[9]
In Stewart the Applicant confirmed that there was no written agreement between her and the party originally named as Respondent (CSA), and around the time she performed work for the actual employer she only contacted CSA twice, the second time being eight days after termination.[10]
However, a key point of distinction found in Stewart, and relied upon by Salini as being analogous to the present matter, was the absence of confusion as to the identity of the true employer. Deputy President Clancy found:[11]
“In both Djula and De Silva-McKay, the applicants relied on having been confused. In Djula, the Full Bench noted the range of documents naming different corporate entities leading up to the dismissal. In De Silva-McKay, the applicant asserted that her confusion was based on there having been no obvious indicators of a change of employer. However, Ms Stewart’s case has never been based on her having been confused. Ms Stewart has been adamant that CSA was her employer from the outset and has based her defence to the jurisdictional objection on the payslips, timesheets and PAYG statements, notwithstanding:
· the explicit text of both the written employment agreements and the Partner and Support Worker Guide was clear (noting that Ms Stewart says she had returned these documents at the commencement of her employment);
· the absence of any evidence of a contract between Ms Stewart and CSA;
· the fact Ms Stewart had virtually no contact with CSA during the period she performed work for the Hollingworths; and
· it was the Hollingworths, and not CSA, who exercised control over the place and hours of her work and the duties she was to perform at all times.”
I do not accept the submission of Salini that there was an absence of confusion in the mind of the Applicant as to the identity of his employer or the identity of those he may pursue in his Application. I particularly note that this matter involves a claim alleging contravention of Part 3-1 of the Act, and not unfair dismissal applications pursuant to s 394 of the Act as occurred in Djula, Stewart or T De Silva v EQ Life Pty Ltd.
Unlike unfair dismissal applications pursuant to s 394 of the Act, liability for contravention of Part 3-1 of the Act can flow past the actual employer to natural persons and bodies corporate accessorily liable for such contravention. Section 550 of the Act provides:
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
The evidence of the Applicant in proceedings was as follows:[12]
“MR SEBBENS: Thank you, your Honour. Mr Austin, I just had a series of questions, one, firstly, about your employer, and then secondly about the filing of your application. I'll ask you about your employer first. In your statement you say that you're aware that Salini was your employer. Is that correct? You're aware that Salini was your employer?‑‑‑Yes, Mr Evans [Sebbens]. I was aware Salini was my employer, but for some reason I've named Future Generation, because everything - the company sort of we were working for had Future Generation on it and that's what we called ourselves at work, because it was joint venture. All our cars were Future Generation, our sheds, the ad which I applied for was Future Generation, the guys that, like, recruited me were Future Generation. So it's a mixture of Clough, Salini and Lane, so they - the reason why I'm putting Future Generation Joint Venture, because the guys working - Keith Ritchie and the guys, some of the other guys working there, they all work for Clough, so I'm trying to take action on a couple of guys that work for Clough, you know, that sort of got involved in my wrongful dismissal.
But you weren't confused about who your employer is. It seems you're clear that Salini was the employer, but you were engaged on a project with a joint venture, Future Generation Joint Venture?‑‑‑Yes.
That seems to be what you're saying. Is that right?‑‑‑Yes. Future Generation Joint Venture. It was a bit confusing for myself as well. Like, when the job came up they advertised. It was Future Generation Joint Venture; I've sent evidence of that, I believe, and I applied for that and my contract came in as Salini, which I was - you know, I was confused. You know, the whole site said Future Generation Joint Venture.
And:[13]
Sure?‑‑‑I got taken off site by a bloke working for Clough, which is Future Generation. So there was no Salini guys sort of - there wasn't many of them involved in this dismissal, so this is why - why should I sue my company, like, Salini, if Keith Ritchie works for Clough and he's sort of in part of it, and Paul Roberts works for Clough. He's the manager, which - the guy sending me threatening messages, and I've got voice recordings of him here threatening to sack me.”
Unlike the applicant in Stewart, the Applicant did not have relatively consistent legal representation. He was understandably confused by the common nomenclature of the Future Generation Joint Venture and how persons involved in that joint venture, but not from Salini, could have been so involved in his dismissal.
The only factor that could have weighed against my exercising my discretion to amend the name of the Respondent was the delay for the period from receiving the Employers Response on 7 March 2022, to the making of the application on 29 April 2022. I attributed no weight to that factor however because, unlike in Stewart, the Applicant was confused and without legal representation. Once aware of the ability to seek amendment, the Applicant readily sought to amend the name of the Respondent.
I am persuaded to grant the s 586 application and amend the name of the Respondent in the Application to Salini Australia Pty Ltd.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[14]
It is agreed between the parties that the dismissal took effect on 2 February 2022. The final day of the 21-day period was therefore 23 February 2022 and ended at midnight on that day. The Application was made on 24 February 2022. The Application was made one day late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under s 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[15]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 23 February 2022. The delay is the period commencing immediately after that time until the Application was made on 24 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[16]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[17]
An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[18]
While the Application was only one day late, I note that such a small length of time does not obviate the need for acceptable explanation of the delay, and that numerous decisions of the Commission have refused to allow a one-day extension in time to file an application.[19]
Submissions and evidence
The Applicant noted that the delay was because he filed an unlawful termination application under s 773 of the Act on the last day of the 21-day period, being 23 February 2022. Thereafter, the Commission Registry spoke to the Applicant and advised him that he had filled out an unlawful termination application and not a general protections application. Later, on the night of 23 February 2022, the Applicant completed the Application, reviewed it, and then filed it on 24 February 2022.
In relation to the reason for the delay, the Respondent submitted in their Outline of Submissions as follows:
“The Applicant does not explain why he had taken until the 21st day after his dismissal to attempt to complete the application form online, nor why he failed to take any contingency measures in the event of error, delay or other unforeseen events. The circumstances in the time leading up to the delay are relevant in respect of explaining and considering the delay and any extension of time: see Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31].
While it may be accepted the Applicant made an attempt to dispute his dismissal, and did so within the 21 day time period by filing an unlawful termination application, there are fundamental differences between a general protections application under section 365, and an unlawful termination application made under section 773. The onus is on the Applicant to have ensured that the proper application was correctly lodged, particularly in circumstances where the Commission's website provides a range of information regarding dismissal and invites individuals to contact the Commission to inquire about the different types of applications that can be made to dispute a dismissal. Further, the Applicant could have sought advice from a legal or industrial advisor. Each of these steps could have been taken prior to the last day for filing. It would have been apparent from making such enquiries, that he was a "national system employee" and an unlawful termination application was not available to him: Cf Mr Gery Lane v Kangaroo Island Dive & Adventures Pty Ltd [2010] FWA 3939. None of these matters gives rise to circumstances that are unusual, special or uncommon.”
Findings
The Applicant was aware of the 21-day limit on commencing an application to challenge his dismissal. This is not a matter where the Applicant was tardy in the 21-day period after dismissal. I accept the Applicant’s evidence that within that 21-day period he spoke to a number of lawyers and the Registry of the Commission, and did his own research.
I do not accept the Respondent’s submission that the fundamental differences between a general protections and an unlawful termination application would be readily apparent to a self-represented applicant such as the Applicant. It is not unknown for Legal Practitioners to have difficulty in understanding whether a person is, or is not, a "national system employee."
It is clear that the Applicant took action to contest his dismissal within time but with the wrong application. Had the correct form of general protections application been initially lodged, it would have been within the time allowed by the Act.[20]
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs in favour of the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
Apart from various email messages regarding his dismissal on the day following that dismissal, the Applicant did not take any action to dispute his dismissal prior to making the Application.
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal. I consider this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent does not assert any prejudice except the ordinary prejudice of making this jurisdictional objection to the Application regarding the identity of the employer. The Respondent noted that the “lack of prejudice is a positive factor but not a major factor in considering exceptional circumstances”[21] and submitted that this factor should be treated as neutral.
I find that, in the circumstances there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice, significant or otherwise, is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is a neutral consideration.
What are the merits of the Application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[22]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the Application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[23] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[24]
It is clear that the factor that has been accorded any weight in this matter is the presence of an acceptable reason for the delay. No factors weighed in the Respondent’s favour.
Having regard to all of the matters listed at s 366(2) of the FW Act, I am satisfied that there are exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the Application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[25] I am satisfied that it is appropriate to extend the period for the Application to be made to 24 February 2022.
As noted above, I am persuaded to grant the s 586 application and amend the name of the Respondent in the Application to Salini Australia Pty Ltd.
DEPUTY PRESIDENT
Appearances:
K Austin, Applicant.
T Sebbens for the Respondent.
Hearing details:
2022.
Sydney (by Video):
April 29, May 6.
[1] Transcript PN 69.
[2] Transcript PN 81.
[3] Transcript PN 84 and 85.
[4] Transcript PN 58.
[5] Djula v Centurion Transport Co. Pty Ltd[2015] FWCFB 2371.
[6] [2015] FWCFB 2371 at [34].
[7] [2020] FWC 6551 at [55]-[60].
[8] Stewart at [61].
[9] Stewart at [25] and [54].
[10] Stewart at [17].
[11] Stewart at [57].
[12] Transcript PN 36 to 38.
[13] Transcript PN 44.
[14] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[16] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[19] See for example. Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd [2021] FWC 530.
[20] Matthew Palmer v RCR Engineering Pty Ltd [2009] FWA 1431.
[21] Raoul Caire v Imscan Technologies[2013] FWC 3154 at [16]
[22] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[23] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[24] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[25] Fair Work Act 2009 (Cth) s 577.
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