Maas Administration Pty Ltd

[2018] FWC 4938

[2018] FWC 4938

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Maas Administration Pty Ltd
(AG2018/658)

COMMISSIONER LEE MELBOURNE, 24 AUGUST 2018

Application for approval of the MAAS Administration Pty Ltd Enterprise Agreement 2017 - 2021.

Introduction

[1] The decision concerns an application by Maas Administration Pty Ltd (the Applicant) for approval of an enterprise agreement known as the MAAS Administration Pty Ltd Enterprise Agreement 2017 – 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and relates to a single enterprise agreement.

[2] At a hearing on 26 July 2018 I dismissed the application as I was not satisfied that the Applicant had met the requirements of s.180(3) of the Act. These are my reasons for making that decision.

Background

[3] The Fair Work Commission (the Commission) wrote to the Applicant on 6 June 2018 setting out a range of concerns in relation to the application as follows:

•  Pre-approval requirements including information provided in the Form F17 employer’s statutory declaration(Form F17) in relation to the scope of the Agreement, notification of time, place and method of voting and explanation of the Agreement;

•  Termination of employment;

•  Definition of a shiftworker for the purposes of the National Employment Standards (NES); and

•  Better off Overall Test concerns including incorporation of terms in the Building and Construction General On-site Award 2010 and penalties for weekend work.

[4] The issue raised with the Applicant in relation to the notification of time, place and method of voting was a threshold concern relating to whether the requirements in s.180(3) of the Act had been met. Specifically, that at question 2.5 of the Form F17 the Applicant stated that on 22 January 2018 the employer mailed all employees a letter explaining that they were voting along with a ballot paper and the cut-off date for the votes to be returned. This notification appeared to have been provided the same day that voting commenced, being 22 January 2018. Further, a copy of the Agreement was mailed to employees with a letter dated 11 January 2018 which referred to voting commencing “in the coming weeks”. The Applicant responded to the Commission on 14 June 2018 indicating, among other things, that the vote for the Agreement was conducted via postal ballot and the notice of vote was posted out on 11 January 2018, the ballot papers were posted to employees on 22 January 2018 and voting closed on 14 February 2018. The Applicant stated that it mailed a letter to all employees on 11 January 2018 that contained the notice of vote and that “this letter contained the time (over the coming weeks) the method (ballot paper) and the place (via mail) that the vote would take place”.

[5] Following an exchange of correspondence between the Applicant and the Commission, the Applicant sought to be heard in relation to the matter of whether the requirements in s.180(3) of the Act had been met. The matter was listed for hearing, by telephone before me on 6 July 2018.

[6] Prior to these concerns being raised with the Applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought and were provided with copies of the Form F16, Form F17 and Notice of Employee Representational Rights (NERR). The CFMMEU also sought to be heard in relation to the matter. After hearing from both parties at the hearing on 6 July 2018 in relation to the request to be heard, I allowed the CFMMEU to be heard and to participate in further proceedings.

[7] At the hearing on 6 July 2018 it was agreed that any concern about s.180(3) of the Act was a threshold matter and that I should determine that issue before considering whether I could be satisfied as to other concerns raised in relation to the Agreement. 1 The Applicant made oral submissions at the hearing. Subsequent to the hearing, the CFMMEU filed written submissions and the Applicant filed further written submissions in reply. The matter was listed for a further hearing, by telephone on 26 July 2018.

Relevant facts

[8] The Agreement is expressed at clause 2 to apply to “all wage Construction Worker employees employed by the Company regardless of location or the scope of work”. According to the Form F17, 72 employees would be covered by the Agreement. The Applicant is based and operates in central-west NSW and elected to conduct the vote via postal ballot.

[9] On 11 January 2018, the Applicant mailed employees a copy of the proposed Agreement with a letter explaining that they will be receiving a ballot to vote on the Agreement. The letter from Mr Nathan Finlay, HR Manager was in the following terms, omitting formal parts:

“Maas Administration Employee’s,

Bargaining has been completed for the Maas Administration Pty Ltd Enterprise Agreement 2017 – 2021. Enclosed is a copy of the agreement post bargaining.

In the coming weeks we will be voting on this agreement, you will receive a ballot paper in the mail that will have a stamped return addressed envelope with it for you to return your vote to us in the mail.

If you have any queries with the above don’t hesitate to get in contact with me.”

[10] On 22 January 2018, a further letter was mailed to employees in the following terms, omitting formal parts:

“Maas Administration Employee’s,

Recently you received a copy of the Maas Administration Pty Ltd Enterprise Agreement 2017 – 2021.

We are now completing the ballot to vote on the proposed agreement, can you please fill in the enclosed Ballot Paper and send it back to us using the stamped return envelope we have enclosed.

The voting will close on Wednesday 14^th February 2018 and any votes received after this date will not be valid and will not be counted in the vote.

If you have any queries with the above please let me know.”

[11] The Agreement was “made” on 14 February 2018 with 15 of the 72 employees covered casting a valid vote and 13 of those employees voting to approve the Agreement.

Law to be applied

[12]  Section 186 prescribes a number of criteria about which the Commission must be satisfied in order for it to approve an enterprise agreement. In respect of agreements that are not greenfields agreements, s.186(2)(a) provides that the Commission must be satisfied that “…the agreement has been genuinely agreed to by the employees covered by the agreement”. Section 188 defines when, for the purpose of s.186(2)(a), employees can be said to have genuinely agreed to an agreement. It provides:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[13] Section 180(3), compliance with which is required by s.188(a)(i) in order for the “genuinely agreed” approval requirement in s.186(2)(a)to be capable of satisfaction, provides:

“(3)  The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.”

[14] Section 180(4) defines the expression “access period” as follows:

“(4)  The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).”

[15] Section 181 deals with voting to approve enterprise agreements in the following terms:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[16] During the hearing the Applicant agreed that a failure to comply with s.180(3) of the Act meant that the enterprise agreement subsequently voted on by employees was incapable of approval under the Act.

Submissions

[17] In objecting to the approval of the Agreement, the CFMMEU submitted:

“The CFMMEU opposes the approval of the proposed agreement on the basis that it does [sic] meet the requirement set out in ss.180(3)(a) of the Act. For the following reasons the Applicant has not taken reasonable steps to notify the relevant employees of ‘…the time…the vote will occur…’:

a. The letter dated 11 January 2018 does not specify the exact date that the vote will commence.

b. By not specifying a date for the voting to commence the Applicant has created uncertainty as to when voting will commence…

Although, s.180(3)(a) refers to ‘time’ it can be assumed that it actually refers to a date. As relevantly stated by the Full Bench in Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc.:

“[26] Section 180(3) of the Act requires an employer to take all reasonable steps to notify the relevant employees of the date and place at which the vote will occur and of the voting method to be used “by the start of the access period”…

The letter dated 11 January 2018 (letter 1) does not definitively state a date of when the vote for the proposed agreement with commence. The only indication that is given to the relevant employees covered by the proposed agreement is simply “…in the coming weeks…”. With respect, “…in the coming weeks…” is ambiguous as to when voting will commence for the propose [sic] agreement. As, it is only an indication of a period of time, which the relevant employees will receive ballot paper to vote for the proposed agreement. Moreover, there is nothing contained in the letter that gives any indication whatsoever as to how long “…in the coming weeks…” actually is.

Subsequently, it raises concerns for the relevant employees covered by the proposed agreement about whether they were confused by letter. As, they were left with no understanding as to when voting would commence. The relevant employees simply received a letter dated 22 January 2018 (letter 2), which alerted them that voting had commenced. Furthermore, letter 1 cannot be considered a reasonable step in notifying the relevant employees of the time that the vote will occur.” 2

[18] The Applicant submitted that:

“… It is reasonable in a postal ballot notice to vote to eschew naming particular dates, or a range of dates when the vote would occur if there is a known discrepancy as to when the mail may arrive at a regional location, such discrepancy which may render any dates so named in the notice to vote as incorrect and/or redundant.

Moreover, a notice to vote which incorrectly specified dates for voting to commence in a postal ballot because said dates came and went without the ballot enabling the vote actually arriving in the mail, would certainly give rise genuine ambiguity and confusion in the mind of the employees. Such a requirement (to name dates) would be counterproductive.

Australia Post estimates a delivery time of 3-4 days between country locations in the same state, but only 2-3 days within metropolitan areas of capital cities, or within the same city or town or an adjacent city or town in the same state. The Applicant turned their mind to this question of delivery time and this was the key factor in their deciding to use the words, “in the coming weeks” as they could not with accuracy name the precise date the ballot in the letter of 22 January 2018 would arrive to a number of employees spread out in central-west NSW.

The Applicant submits that due to this evident and known uncertainty concerning the precise dates letters may arrive in regional NSW it is not reasonable, practical or desirable for the Commission to so interpret the FW Act to require the Applicant to send a notice which names dates that the Applicant knows beforehand may be incorrect, or difficult to determine with accuracy. The Applicant submits that an interpretation of ss.180(3) that required such inflexibility is not in keeping with the purposes of the FW Act as will be expanded on below.

Under such circumstances as described above, the most reasonable thing for the Applicant to do was to inform the employees via mail that in the coming weeks the voting ballot would also arrive via mail and that they could then vote via the ballot and the return envelope, which is what the Applicant did in fact do…” 3

[19] The Applicant referred to the Full Bench decision National Tertiary Education Industry Union v University of New South Wales 4in support of this submission.

[20] The Applicant raised the question as to whether the words “the next few weeks…” constitute a notification of time for the purposes of s.180(3) of the Act. 5 I note that this is not the wording used in the 11 January 2018 letter, the wording used was “in the coming weeks…”. In any case, in support of the proposition that the words used in the 11 January 2018 letter met the requirements of the Act, the Applicant submitted that their interpretation is consistent with the decision of Commissioner McKenna in McDonald’s Australia Pty Ltd on behalf of Operators of McDonald’s outlets (McDonald’s Australia).6 In that matter employees had been informed via a poster that they could vote between 17 – 21 December 2009. The Applicant submitted it is clear from this decision that voting need not be restricted to a date which is a single day and therefore “time” in respect to s.180(3) cannot simply refer to a date.7

[21] In relation to any alleged confusion resulting from the 11 January 2018 letter, the Applicant submitted:

“… in the matter currently before the Commission, there is substantially less ambiguity in our letter of 11 January 2018 than in the notice in the McDonald’s Australia matter. There is no substantial ambiguity or confusion in the term ‘the coming weeks’. It clearly refers to a period of time which is greater than the next few days or week but less than the coming month or months.” 8

[22] The Applicant submitted that the task of statutory interpretation is best laid out in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (Project Blue Sky) 9 and that the context of the provision in question relates to the making of an enterprise agreement and in light of their Honours comments in Project Blue Sky the best and most pertinent definition of ‘time’ in s.180(3) is found at s.173(2)(a) of the Act which determines the notification time for a proposed enterprise agreement.10 The Applicant submitted that:

“Whilst subsections 173(2)(b)(c) and (d) could usually be ascertained with accuracy as to the precise date or dates, it is particularly relevant that the notification time as it is defined in section 172(a) [sic] does specify a date or a range of dates. It instead defines time in relation to events that have taken place. This is a critical point for the Commission to consider in its statutory interpretation exercise as we submit that correct interpretation of the words ‘time… at which the vote will occur’ should, in light of the comments in [Project] Blue Sky, properly be interpreted in the same fashion as “notification time” per ss.173(2)(a), that is, it should be defined in relation to events not dates. An employer agreeing to bargain may take place over a range of dates that are essentially unascertainable either with foresight or hindsight. Nonetheless this is still a sufficient definition of time for the purpose of section 173(2)(a). In the present case the event of a postal ballot arriving in the mail is more certain and easier to ascertain that the precise date an employer agreed to bargain or initiated bargaining.” 11

[23] The Applicant also submitted that where the Act intends to be inflexible it is clearly inflexible which is relevant to the interpretation of s.180(3) as the inflexibility in this subsection is in relation to the time for the provision of the Agreement and the notification of vote, but not for the vote itself. Further, the Applicant submits that it is notable that such an important time, being the notification time in s.173(2)(a), is not fixed to a date or range of dates which infers that the Act “envisages times can be important but not necessarily be fixed to a specific date or range of dates”. The Applicant submitted that “the notification time at section 172(2)(a) [sic] is the catalyst for an absolutely inflexible requirement” and that the time which an employer agrees to barging or initiates bargaining could potentially be subjective and difficult to fix with certainty, submitting that the fact that the Act relies on the notification time as the catalyst for an inflexible requirement is relevant to the question currently before the Commission. 12

[24] The Applicant submitted that the “time… at which the vote will occur” per s.180(3) is certainly a flexible time and should be interpreted in such a way as to enable flexibility. The Applicant referred to s.15AA of the Acts Interpretation Act 1901 which provides that “in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation”. The Applicant submitted that for the Commission to hold a rigid interpretation of time for voting so as to require the naming of a date or dates for the purpose of s.180(3) is contrary to s.3(a) of the Act which provides that the object of the Act is to provide workplace relations laws that are flexible for businesses. 13

Consideration

[25] Firstly, there is a question as to when the access period commenced for the proposed enterprise agreement. The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1) of the Act. In Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc. 14 the Full Bench made the following observations:

“[16] Although we accept that in some circumstances the distribution of the voting material to employees before the date on which votes are to be cast might result in the access period ending at some stage other than the day before the publicised date on which voting to approve an agreement begins, we do not accept that this will be the result in every case. Much will depend on the circumstances. Thus, for example, if an employer distributes voting material before the date on which voting is to take place or begin, accepts a vote or votes from employees which have been cast before voting for the agreement is to begin and counts the vote or votes as valid, then it might be said that the voting process began on the day the first of those employees cast a vote. Consequently, the access period will have ended on the day before that date. However, if the employer has advised the employees who will be covered by an agreement of the date, method and place of voting and without more merely distributes ballot papers to employees before the date on which the voting is to commence or take place, in our view it cannot be said that the “voting process” commenced at the time the employer distributed the ballot papers.

[17] This conclusion is consistent with both the text of s.180(4) of the Act and the legislative context in which that section appears. To begin with, an object of Part 2 – 4 of the Act is “to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements to deliver productivity benefits”. [Our underlining]

[18] For the purposes of s. 180(4) of the Act, the “voting process” is the process referred to in s.181(1). The “voting process” described in s.181(1) of the Act is the process that is characterised by an employer that will be covered by a proposed enterprise agreement requesting “the employees employed at that time who will be covered by the agreement to approve the agreement by voting for it”. The request made by the employer is to approve the agreement by voting for it.

[19] Section 182(1) of the Act provides that if employees have been asked to approve an agreement under s.181(1) of the Act, the agreement is made when a majority of those employees who cast a valid vote approve the agreement. Section 181(2) of the Act provides that a request to approve an agreement by voting on it must not be made until at least 21 days after the day on which the last notice of employee representational rights in relation to the agreement was given.

[20] It seems to us, therefore, that an agreement may only be approved through a vote of employees employed at the time of the vote who will be covered by the agreement. The request to approve the agreement and the vote are not separate stages of the voting process. Thus, we consider that the voting process starts when an employee is first able to cast a valid vote to approve the agreement and not at some earlier time when an employer may provide to employees the ballot paper.

[21] This construction is also consistent with the explanation given in the Explanatory Memorandum to the Fair Work Bill 2008 which provides:

The access period can run concurrently with the 21-day period referred to in subclause 181(2), so that the shortest period between the day on which an employer gives the last notice of employee representational rights to its employees and the day that the employer requests the employees to vote on the agreement is 21 days.” 15

[26] In this matter, there was no date specified as to when voting would begin, only the date beyond which votes received would not be accepted. In these circumstances, and consistent with the views in Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc., the process began on the day the first of those employees cast a vote. It is not apparent when that occurred. Alternatively, given there was no specified period the voting would commence, it could be said the voting period commenced with the mailing out of the ballot on 22 January 2018. Even if this was so, the letter mailed out on 11 January 2018 was clearly more than 7 days prior to 22 January 2018, and therefore it is apparent the notification was provided within the period required.

[27] The key question is whether the notification provided on 11 January 2018 complies with s.180(3) and in particular s.180(3)(a) of the Act.

[28] Section 180(3) of the Act provides employees are to be notified of the “time and place” at which the vote will occur.

[29] This does give rise to a consideration of what is meant by the word “time” in the context of s.180(3) of the Act.

[30] The submissions of Applicant as to the preferred construction applies the approach in Project Blue Sky in particular reference to “…in Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. 16 By way of context, the Applicant points to s.173(2)(a) of the Act as the most pertinent definition of “time” for this purpose.

[31] This is based on the proposition that while s.173(2)(b)-(d) could usually be ascertained with accuracy, s.173(2)(a) does not specify a date or range or range of dates but “it instead defines time in relation to events that have taken place”. 17 This approach to construction culminates in the following submission:

“We submit that the Commission can and should interpret from this, that some time periods are clearly not flexible under the FW Act, such as the 21-day period between the issue of the notice of repetitional [sic] rights and the vote, or the requirement to have the agreement and notification of the vote for 7 days prior to voting, (the access period) but critically these inflexible periods are clearly defined under the FW Act. It follows and is equally evident that the FW Act envisages important times such as the notification time that are not to be defined in relation to dates of [sic] a range of dates and we submit that the “time... at which the vote will occur” per subsection 180(3) is certainly such a flexible time and should be interpreted in such a way as to enable that flexibility. The proof of this is the alternative, that employers would be forced to name a date or range of dates for the vote, such an outcome would not promote flexibility as is a purpose of the FW Act.” 18 (Emphasis added)

[32] The central problem with this submission is that the “event” of the employer agreeing to bargain or initiating bargaining will have taken place at a point in time. In that sense, it is no different to the event of the making of a majority support determination, a scope order or low paid authorisation. There is no certainty as to when an employer agrees to or initiates bargaining, however, there must ultimately be an objective determination of when that event occurred at a point in time. If that were not so, it would not be possible to determine if s.173(3) had been complied with.

[33] In the Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum), the requirements of s.180(3) are set out at Item 734. Item 735 states “this ensures that the relevant employees are informed at least seven days prior to the vote for the agreement about how and when the vote will occur” (Emphasis added).

[34] In this case, the employees were told the vote would occur “in the coming weeks”. This did not indicate with any specificity when the vote would be. Moreover, if the Applicant’s preferred construction was to be accepted, describing something in any respect as a time period is notification of the time. This would be an absurd construction of the statute. To illustrate, the Applicant’s representative asserted at the hearing on 6 July 2018 that a notification of time such as “in the coming months” would be sufficient but thought that “in the next year” would be ludicrous. 19 How the Applicant’s representative differentiates the former acceptable and the latter ludicrous is not apparent.

[35] The reference to the decision of Commissioner McKenna in McDonald’s Australia does not assist the Applicant’s preferred construction. I agree that the decision is consistent with a view that voting need not be restricted to a date which is a single day. That is not what is at issue here. There is no doubt that a vote can take place over a number of days. The day or days the vote can take place could be one or several. In McDonald’s Australia, the employer advised employees of a specific time period in which they could vote. That did not happen here.

[36] I see little difference between the notification provided in this matter and a notice that says the vote will be “sometime in the not too distant future” or “soon”. The vote cannot be in the past, it has to be in the coming weeks or months. In that sense, the notice tells the employees next to nothing, it does not say when the coming vote will take place. The effect of the Applicant’s preferred construction is that the word “time” in s.180(3)(a) has no work to do. This cannot be the correct construction.

[37] In The Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd 20 the Full Bench considered the application of s.180(3) of the Act. On appeal the AMOU contended that the Commissioner erred in concluding s.180(3) of the Act had been complied with in circumstances where employees had been told the time and date a stop work meeting would occur, but not the time during the stop work meeting that the vote would occur.21 The Full Bench dismissed this ground of appeal finding that:

“… Given that the vote was to take place at the meeting once the briefings and debate had run their course, it is clear that a precise time could not be assigned in advance to the conduct of the vote. In that context a reasonable person would consider that the reasonable step to be taken was to notify employees of the commencement time of the meeting during which the vote was to take place. That was a step sufficient to serve the evident policy objective of s.180(3)(a), namely to ensure that employees had the information necessary to enable them to exercise their right to vote upon the proposed agreement if they wished to do so. For these reasons we consider that the Commissioner’s conclusion about this issue was clearly correct.” 22

[38] Applying that approach to the circumstances of this case, the Applicant could have, for example, advised employees by the start of the access period that the mail out of the ballot would occur on a particular date and set out the dates between which employees could cast their vote in a similar manner to the McDonald’s Australia case referred to by the Applicant. A step such as this or similar would have been sufficient to serve the policy objective of s.180(3)(a) to ensure employees had the information necessary to enable them to exercise their right to vote upon the proposed agreement if they wished to do so. The letter that was sent advising a vote would occur “in the coming weeks” does not meet the policy objective and does not meet the requirements of s.180(3)(a) of the Act.

Conclusion

[39] For these reasons, I am not satisfied that the Applicant has complied with s.180(3) of the Act. Therefore, I cannot be satisfied the Agreement has been genuinely agreed (within the meaning of s.188) to by the employees covered by the Agreement for the purposes of s.186(2). It is for these reasons that I could not approve the Agreement and I dismissed the application.

COMMISSIONER

Appearances:

C Spence for the Applicant

D Syron and B Kruse for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

2018

Melbourne (By Telephone):

6, 26 July.

Final written submissions:

20 July 2018

Printed by authority of the Commonwealth Government Printer

<PR620115>

 1   PN51 – PN52, PN99 and Applicant’s Outline of Submissions, filed 20 July 2018 at [5]

 2   CFMMEU Outline of Submissions, filed 13 July 2018 at [3], [6] and [8] – [9]

 3   Applicant’s Outline of Submissions, filed 20 July 2018 at [11] – [15]

 4   National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163

 5   Applicant’s Outline of Submissions, filed 20 July 2018 at [18]

 6   McDonald’s Australia Pty Ltd on behalf of Operators of McDonald’s outlets [2010] FWA 1347

 7   Applicant’s Outline of Submissions, filed 20 July 2018 at [19] – [22]

 8   Applicant’s Outline of Submissions, filed 20 July 2018 at [23]

 9   Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]

 10   Applicant’s Outline of Submissions, filed 20 July 2018 at [24] – [25]

 11   Applicant’s Outline of Submissions, filed 20 July 2018 at [28]

 12   Applicant’s Outline of Submissions, filed 20 July 2018 at [29] – [31]

 13   Applicant’s Outline of Submissions, filed 20 July 2018 at [32] – [34]

 14   Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc.[2015] FWCFB 3545

 15   [2015] FWCFB 3545 at [16] – [21]

 16 (1998) 194 CLR 355 at [69] and Applicant’s Outline of Submissions, filed 20 July 2018 at [24]

 17   Applicant’s Outline of Submissions, filed 20 July 2018 at [28]

 18   Applicant’s Outline of Submissions, filed 20 July 2018 at [32]

 19   PN130 – PN135

 20   The Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151

 21   [2016] FWCFB 1151 at [16]

 22   [2016] FWCFB 1151 at [37]