Maritime Union of Australia, The v Farstad Shipping (Indian Pacific) Pty Ltd
[2014] FWC 4546
•1 SEPTEMBER 2014
| [2014] FWC 4546 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Maritime Union of Australia, The
v
Farstad Shipping (Indian Pacific) Pty Ltd
(B2014/146)
COMMISSIONER JOHNS | MELBOURNE, 1 SEPTEMBER 2014 |
Proposed protected action ballot by employees of Farstad Shipping (Indian Pacific) Pty Ltd.
[1] This decision arises out of an application made by the Maritime Union of Australia (MUA) for a protected action ballot order (PABO) in relation to a group of employees of Farstad Shipping (Indian Pacific) Pty Ltd (Farstad).
[2] The PABO application was made on Friday, 4 July 2014 pursuant to s.437 of the Fair Work Act 2009 (FW Act).
[3] Farstad was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission). The ballot is to be conducted by the Australian Electoral Commission.
[4] The employees to be balloted are presently covered by the Farstad Shipping (Indian Pacific) Pty Ltd Integrated ratings, Cooks, Caterers and Seafarers Agreement (Offshore Oil and Gas) Enterprise Agreement 2010 (Current Agreement). The Current Agreement passed its nominal expiry date on 31 July 2013. Accordingly, the application has been made after the nominal expiry date.
[5] On Sunday 6 July 2014, Farstad advised the Commission it opposed the PABO application. Accordingly, it was necessary to conduct a hearing. However, by virtue of the fact that the Commission, as presently constituted, was already presiding over matters on 7 and 8 July 2014 it was not practicable to determine the PABO application within 2 working days after the application was made. The first available opportunity to list the PABO application for hearing was at 9.30 am on Wednesday, 9 July 2014 (via video link between Brisbane, Melbourne and Sydney). There was then a program for the filing of written closing submissions.
[6] At the hearing on 9 July 2014 the MUA was represented by Kristian Bolwell, its Senior National Legal Officer who called David Cushion, the Assistant Secretary of the MUA’s Victorian Branch to give evidence on behalf of the applicant. Farstad was represented (with permission pursuant to section 596(2)(a) of the FW Act) by Nicholas Harrington of counsel who called Peter Barrow, Farstad’s General Manager of Human Resources to give evidence on behalf of the respondent.
[7] In support of its opposition to the PABO application Farstad filed an outline of submissions (Exhibit R2).
[8] On Monday, 14 July 2014 Farstad filed closing written submissions in opposition to the making of the PABO (Farstad Closing Submissions). In summary Farstad submit that the PABO application should be dismissed because the MUA has not been and is not genuinely trying to reach agreement. Consequently, it was submitted, the Commission cannot be satisfied that section 443(1)(b) of the FW Act has been met.
[9] Farstad submitted that,
There are four (4) bases upon which Farstad opposes the application and alleges a failure to genuinely try to reach agreement. In summary, those bases arise out of terms that are being sought by the MUA that cannot be included in any proposed agreement. They are:
a) the foreign labour clause, now known as the job security clause in the draft Tidewater Agreement, is unlawful by reason that it is discriminatory;
b) the recruitment and redundancy clauses in the draft Tidewater Agreement and each clause’s weighted selection criteria is unlawful by reason that it is discriminatory;
c) the back pay claim, as put, is unlawful because it seeks to impose a retrospective payment obligation at a time pre-dating the approval of the agreement; and
d) the MUA is seeking certain industry template terms for an ulterior purpose – the establishment and maintenance of an industry standard. 1
Satisfaction requirements under the FW Act
[10] In deciding whether to make the order sought, it is only necessary that the Commission be satisfied that the statutory requirements in section 443(1) of the FW Act are met.
[11] The applications are made pursuant to s.437 of the FW Act. Accordingly, the first limb of s.443(1) of the FW Act has been met.
[12] The second limb of s.443(2) of the FW Act requires the Commission to be,
“satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted”.
The history of bargaining between the parties
[13] The MUA says that it has genuinely been trying to reach agreement with Farstad. It relies on a witness statement from Mr Cushion which sets out the negotiations between the parties.
[14] In his witness statement Mr Barrow also set out the history of the negotiations between the parties.
[15] The uncontested evidence is that:
a) On 7 February 2013 there was a preliminary meeting between Farstad and the MUA to discuss the business context in which an enterprise agreement to replace the Farstad Shipping (Indian Pacific) Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (Current Agreement) would be negotiated; 2
b) On 21 February 2013 Farstad formally commenced bargaining by issuing a Notice of Employee Representational Rights; 3
c) Negotiations commenced on 13 March 2013; 4
d) There were further meetings (24 in total) in May 2013, June 2013, July 2013, August 2013, September 2013, October 2013, January 2014, February 2014 and March 2014; 5
e) In April 2014 Farstad made application to the Commission for assistance in relation to the bargaining dispute under section 240 of the FW Act; 6 and
f) By the time of the PABO hearing the Commission had facilitated meetings (5 in total) between the MUA and Farstad in May and June 2014. 7
[16] Despite the number of meetings and the time, energy and effort put into the bargaining process by the MUA, Farstad and the Commission, it is still submitted by Farstad that the MUA are not genuinely seeking to reach an agreement because, it is said “the MUA is improperly pursuing:
a) claims that include non-permitted and unlawful content; and
b) industry template clauses.” 8
[17] Accordingly, it is necessary to consider each of the terms (that the MUA is pursuing in bargaining) and about which Farstad complains. In doing so, the onus is on the MUA to demonstrate that it is meeting the second limb of s.443(2) of the FW Act (i.e. that it is genuinely trying to reach an agreement). 9
Genuinely trying to reach an agreement - relevant legal principles
[18] However, it is first necessary to cite the relevant legal principles.
Non-permitted or unlawful matters
[19] The decision of the Full Bench in Australian Postal Corporation v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Communications Division 10 states the legal position to be as follows:
a) “it is appropriate to take into account the entire history of the negotiations” 11 in determining if a party is genuinely trying to reach an agreement;
b) “The genesis of the jurisprudence is to be found in Electrolux Home Products Pty Ltd v the Australian Workers’ Union and Others where the High Court held that industrial action taken in relation to a proposed agreement which is not capable of certification was not protected under the provisions of the WR Act”; 12
c) “given that industrial action in relation to a non-pertaining agreement cannot be protected, ... a union that [is] seeking to make such an agreement [(i.e. containing non-pertaining matters) cannot] be genuinely said to be trying to reach an agreement”; 13
d) “... where protected action ballot orders have been sought in relation to proposed agreements containing non-pertaining order non-permissible matters, those orders have been refused on the basis of the union was not genuinely trying to reach an agreement.” 14
e) “Given the wording of s.409(1)(a) the jurisprudence prior to the enactment of the FW Act must be viewed cautiously. The first Full Bench adverted to this at paragraph 39 of its reasons. Employee claimed action may be engaged in for the purpose of advancing claims that are reasonably believed to be only about permitted matters. It seems to us to follow that if a bargaining agent that reasonably believed that the claims it was advancing at the time it sought a protected action ballot order were only about permitted matters, it could not, for that reason alone, be said that the bargaining agent was not genuinely trying to reach agreement.” 15
f) “It is self-evident that if a union is proposing an agreement containing clearly non-pertaining clauses it cannot be genuinely trying to reach an agreement that may be approved ... under s.186 of the FW Act.” 16 (emphasis added)
[20] The decision of the Full Bench in Alcoa of Australia Limited v Australian Workers’ Union - Western Australia Branch 17 is also relevant. In that decision the Full Bench addressed implication arising out of the wording of s.409 in more detail as follows:
“Section 409 deals employee claimed action, and provides that industrial action taken to advance claims in relation to the agreement that are only about, or reasonably believed to only be about, permitted matter is protected industrial action. Although s.409 refers to a reasonable belief at the time that protected industrial action is taken, not at the time that an application is made for a protected action ballot, as Australia Post identified, it seems to us that if a reasonable belief that claims are about permitted matters renders industrial action lawful, it must also be a fortiori at the earlier point in time when application is made for a protected action ballot to authorise the taking of industrial action. Almost invariably the claims and the belief will be identical at the two points in time. Paragraph 1640 to 1644 of the Explanatory Memorandum seem to us to lend weight to this conclusion.” 18
[21] The Full Bench in Alcoa also made the observations that:
a) “It is readily apparent that s.443(1), on its face, does not contain any requirement relating to permitted matters.... the issue of permitted matters is but one of the factors to be taken into account in determining whether an applicant has been genuinely trying to reach an agreement.” 19
b) “It is not only satisfaction that a proposed agreement does not contain claims about, or reasonably believed to be about, permitted matters that informed judgement as to whether an applicant has been genuinely trying to reach agreement.” 20
[22] The Commission, as presently constituted, has had regard to these authorities in coming to its decision.
Pattern bargaining
[23] In relation to the argument that the MUA is seeking certain industry template terms (i.e. engaging in pattern bargaining), the Commission, as presently constituted, has had regard to be Full Bench decision in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and The Australian Workers’ Union (AWU). 21 In that decision it was held that:
We ... find no implication in the terms of s.443(1)(b) the bargaining representative engaged in pattern bargaining is thereby not genuinely trying to reach an agreement. There is no fundamental reason why a bargaining representative engaged in pattern bargaining would not be genuinely trying to reach an agreement. ... While there might be circumstances in which the terms of the pattern agreements sought are so much in conflict with the employer's operations that the conclusion can be reached that the bargaining representative is not genuinely trying to reach an agreement, that conclusion will be reached without reference to or reliance on the terms of s.412. 22 (emphasis added)
[24] Having regard to the legal principles above the Commission will now consider whether any of the terms being pursued by the MUA (and complained about by Farstad) demonstrate that the MUA is not genuinely trying to reach an agreement.
The preference for local labour claim
[25] It was the evidence of Mr Barrow that,
“Until recently, the MUA had sought to include in the agreement a stand-alone clause that prohibited Farstad engaging foreign nationals or foreign-born labour. Farstad has been prepared to negotiate (and made to formal offers to incorporate) a preference for local labour but rejected this claim to the extent that parts of it Farstad believed to be both unnecessary and discriminatory.” 23
[26] Further that,
“On 27 June 2014, Will Tracey e-mailed the FWC and [Farstad bargaining agent] a copy of the “Tidewater draft agreement” and highlighted, with reference to a discussion about the MUA’s foreign labour claim, that clauses 7 and 15 are the relevant parts of that agreement.” 24
[27] Clause 7 in the “Tidewater draft agreement” is as follows:
Objects of Agreement
7.1 This Agreement represents a commitment between the Employer and its Employees to operate their vessels to a high level of professionalism in a viable and competitive manner; ensuring a high level of customer service whilst ensuring that all Employees are provided with rewarding and satisfying careers.
7.2 In developing this Agreement, the Employer and its Employees recognise and adopt the following objectives:
(a) An ongoing process to achieve overall cost reductions and improvement in the viability of the business;
(b) The Employer and its Employees agree to continually review the operation of this Agreement and workplace practices in order to develop and adopt a culture of continuous improvement;
(c) The development of a collective and consultative approach between the Employer and its Employees to foster an environment of trust and open communication;
(d) To create an environment which reflects the needs of a modern industrial society where management and all seafarers work together with respect and cooperation for the benefit of the enterprise;
(e) To implement a cost effective training regime for the enterprise;
(f) To utilise the Dispute Settlement Procedure to resolve grievances or disputes; and
(g) To utilise the Consultative Committee in pursuit of these endeavours.
7.3 The Employer and Employees are committed to ensuring the on-going viability of the employment of local seafarers in the Maritime Offshore Oil and Gas Industry.(emphasis added)
[28] The relevant part of clause 15 in the “Tidewater draft agreement” is as follows:
Recruitment and Selection
15.1 Job Security
(a) The Employer will give local seafarers full, fair and reasonable opportunity to be employed in preference to non - local seafarers, subject to applicable laws.
(b) The Employer will not engage a contractor to supply personnel to fill any of the classifications covered by this Agreement with the intent of pursuing a reduction in wages and conditions of Employees or to erode permanency of employment.
(c) In the event that the Employer engages a contractor to supply personnel to fill any of the classifications covered by this Agreement, it will ensure they are paid wages and conditions no less favourable than those provided in this Agreement.
The Employer may only employ persons in the classification of Rating on vessels under 500gt operating within 100nm off the coast (Schedule 7) and shallow water seismic vessels under 500gt (Schedule 10).
(emphasis added)
[29] In his witness statement Mr Barrrow, highlighted Farstad’s concern with:
a) clause 7.3 which he said “seeks to commit Farstad to the employment of local seafarers”; 25 and
b) clause 15.1(c) which he said “seeks to confine Farstad to only employing persons in the classification of ‘Rating’ on certain vessels. This is a reference to an Australian qualification. The effect of this clause would be to restrict the engagement of foreign labour.” 26
[30] It is difficult to see how clause 7 in the Tidewater draft agreement can be complained about. It is a general statement of intent that does not commit the parties to do anything of substance.
[31] Therefore, in the Respondent’s Outline of Submissions in opposition to the making of the PABO, Farstad confined its complaint to that part of the clause 15.1 dealing with the Rating provision (i.e the paragraph after 15.1(c)). It is submitted:
“This new proposed term at clause 15.1 of the Draft Tidewater Agreement sought to impose a condition or requirement on the hiring of labour to the effect that Farstad only employ persons in the classification of “Rating”. This requirement for an Australian qualification operates to exclude foreign nationals who wish to work for Farstad in Australian [waters]. 27
The imposition of the condition that the person carries the classification of Integrated Rating (IR) is unlawful in that it is indirectly [discriminatory]: it imposes a condition or requirement that a person have an Australian qualification. That condition is neither lawful nor reasonable where it is premised upon race or national extraction: see s.195. of the FW Act. 28
The proposed term offends against race discrimination laws. The proposed term, if it were to be included in the Agreement, would be unlawful. The Agreement could not be approved under the FW Act: see s.186 of the FW Act. 29
[32] Farstad amplified the submissions above in its Closing Written Submissions dated 14 July 2014. 30
In his evidence before the Commission Mr Barrow said:
a) “the note for the shifts that generally operated offshore on gas vessels ... have a safe manning certificate. The safe manning certificate normally refers to able seamen or cooks and cooks and (indistinct) and that's to a STCW international standard.” 31
b) “... there's an international standard that says an able seaman needs a minimum of six months sea time which is longer in Australia for the IR and there needs to be specific training that's required which goes with that qualification. The IR qualification which is ... something that was developed in Australia. It came out of ... the maritime industry reforms back in the early 90s, the 80s, where they wanted dual purpose ratings, it was an efficiency to reduce the number of people on board ships, and that's since divided into the offshore industry.” 32
c) “I think there's a similar ... qualification which may exist in other parts of the world ... generally speaking the international standard on safe manning on vessels around the world would reflect an AB qualification. Similarly, an AB qualification is not uncommon in Australia because a lot of guys went to sea and got their AB qualification and didn't do retraining” 33
d) The integrated rating is a “pretty unique qualification” 34
[33] For its part the MUA submitted that:
a) “The imposition of the condition is not unlawful and is not indirectly discriminatory. Many other professions will not employ persons with foreign qualifications until such time as they have converted their foreign qualification to the Australian equivalent.” 35
b) “There is nothing in the proposed agreement to suggest that once foreign nationals have converted their qualification to that of the equivalent Australian qualification that Farstad would then be unable to employ such persons.” 36
c) “Clause 15.1 of the draft agreement specifically states that the preference should be “subject to applicable laws” therefore the term, if interpreted in line with discrimination laws, would not breach such laws.” 37
[34] In his evidence before the Commission Mr Cushion said:
a) “All I can say that the foreign labour claimed is, this was negotiated in front of Commissioner Cloghan over a period of months. We also talked to the vessel operators. From memory it was Offshore Marine, Total Marine, Mermaid Marine, Tidewater, and they were represented by AMMA, so we have spent considerable time dealing with this matter and we believe that we have reached agreement on this matter...” 38
b) “... we’ve had some issues over the past two years with what we say is foreign labour doing work that we believe was - should have been done by Australian workers. It is not to say that we oppose foreign workers, in fact, with Farstad themselves. We actually had a situation where we had workers from both the UK and New Zealand working on the Australian coast in the offshore oil and gas industry and also in the blue water industry.” 39
c) “... there’s nothing to stop [foreign labour] if they had the qualifications to work for a company within Australia. Qualifications would be the standard there not so much for Stewart but certainly for cooks and ABs or IRs, they would have to be qualified before they can work on vessels which Farstad, in particular, they don't have the STCW 40 jobs as such.”41
[35] The Commission, as presently constituted, takes judicial notice of the following in relation to the Integrated Rating: 42
a) The Integrated Rating Certificate of Proficiency is issued under Marine Order 70 (Seafarer certification) 2014 and Marine Order 73 (Ratings) 2014, made under the Navigation Act 2012;
b) Persons holding the Rating certificate are able to perform duties on ships of any size in any operating area. They are a general crew member on a ship (i.e. not specifically allocated to engine or deck duties). It is a skilled occupation.
c) In order to obtain the Rating certificate applicants need to:
i. Complete one of the following:
- at least 9 months sea service, of which at least 5 months as a Rating forming part of a navigational watch and engine-room watch on an appropriate ship, or
- at least 6 months sea service while holding a Certificate of Proficiency as an Able Seafarer – Deck on an appropriate ship as an Engine Room Rating trainee, or
- at least 6 months sea service while holding a Certificate of Proficiency as an Able Seafarer – Engine on an appropriate ship as a Deck Rating trainee and with a Steering Certificate.
ii. Complete an Australian Maritime Safety Authority (AMSA) approved course of study that includes vocational training from an AMSA approved seafarer training organisation for an AMSA Integrated Rating.
iii. Complete the approved STCW short course in Basic Safety Training, which includes Security Awareness Training.
iv. Hold the following valid certificates:
- Certificate in Proficiency in Survival Craft and Rescue Boats other than Fast Rescue Boats,
- An approved Steering Certificate, and
- AMSA Certificate of Medical Fitness.
v. With an additional 7 months sea service applicants are eligible for a Certificate of Proficiency as an Integrated Rating (STCW regulation II/5 and III/5).
d) The relevant courses can be undertaken at:
- the Australian Maritime College;
- the Challenger Institute of Technology (Fremantle); and
- TAFE NSW Hunter Institute.
e) Successful completion of the course results in a Certificate III in Maritime Operations (Integrated Rating);
f) Courses are open to foreign students;
g) The Integrated Rating Certificate of Proficiency has an international equivalent in that it meets the standard of the International Convention on Standards of Training, Certification and Watch-keeping for Seafarers 1978, namely regulations STCW II/4 & III/4.
h) Where a person does not hold an Integrated Rating Certificate of Proficiency, AMSA, upon application, can issue a Certificate of Equivalence after authenticating the seafarer’s primary qualifications.
Is the Rating provision discriminatory?
[36] The basis upon which it is asserted that the Rating provision is discriminatory is that it is said it will indirectly discriminate against foreign labour. In Australian Catholic University Ltd T/A Australian Catholic University 43his Honour Vice President Lawler discussed whether the definition of “discriminatory term” in s.195 is confined to direct discrimination or extends to indirect discrimination. In his reasons for decision the learned Vice President opined that he was “inclined to the view that the notion of discrimination in s.195 extends to indirect discrimination because that construction would seem to be a construction that benefit as the objects of the FW Act.”44 The Commission, as presently constituted, also holds to that view.
[37] In Australian Catholic University Ltd Lawler VP illustrated the way in which indirect discrimination can arise:
The way in which indirect discrimination can arise is well illustrated in the landmark decision of the High Court in Australian Iron & Steel Pty Ltd v Banovic. In that case the High Court held that a decision to select employees for redundancy on a “last on, first off” basis involved indirect discrimination contrary to the prohibition on indirect discrimination in s.24(3) of the Anti-Discrimination Act 1977 (NSW) because past hiring practices that were directly discriminatory against women meant that a disproportionate number of female employees were among the recently hired and would therefore be disproportionately selected by the “last on, first off” criterion: the criterion perpetuated the previous direct sexual discrimination. 45
[38] To determine whether the Rating provision discriminates indirectly against foreign labour it is necessary to apply the criteria for indirect discrimination.
Criterion 1:
[39] Is there sought to be imposed a requirement or condition that potential employees of Farstad must comply with in order to be employed under the Proposed Agreement?
[40] In the present matter, the question above is to be answered in the affirmative. It is common ground between the parties that the requirement or condition sought to be imposed by the MUA on Farstad (such that it would be imposed on employees of Farstad employed under the Proposed Agreement) is that they have the classification of ‘Rating’.
Criterion 2:
[41] The second criterion concerns the impact of the requirement or condition. In short, it must be demonstrated that the requirement or condition is more easily satisfied by potential employees of Farstad who are not foreign labour.
[42] Rees, Lindsay and Rice write that,
“In most instances it is necessary to provide statistical evidence in order to establish that when an apparently neutral requirement or condition is applied to a group of people, some subgroups drawn upon lines which fall within the coverage of anti-discrimination legislation, such as racial or gender groups, find it more difficult to satisfy the conditional requirement than other groups. 46
[43] In the present matter no statistical evidence was led before the Commission. None of the evidence of Mr Barrow nor the submissions of Farstad go to establish that foreign labour cannot satisfy the requirement or condition sought to be imposed by the MUA.
[44] In the absence of evidence about the said disparate impact of the Rating qualification, the Commission notes that:
a) a Seafarer does not have to be an Australian citizen to obtain the “Rating”;
b) relevant courses are open to foreign students; and, in any case,
c) if a foreign Seafarer has obtained a qualification in their home country that, like the Rating qualification, meets the international standard under regulations STCW II/4 & III/4, AMSA will issue them with a Certificate of Equivalence.
[45] Consequently, absent further evidence, the Commission is not satisfied that foreign labour is less able to comply with the Rating requirement. The Rating requirement does not exclude foreign labour.
[46] The second criterion of indirect discrimination having not been met, the Rating requirement is not discriminatory.
Criterion 3
[47] The third element in a assessing whether there is indirect discrimination is to establish that the requirement or condition lacks justification or is unreasonable under the circumstances.
[48] In the present matter none of the evidence of Mr Barrow or the submissions of Farstad addressed why it is said the Rating requirement is not reasonable having regard to the circumstances of this case.
[49] Mr Cushion’s evidence is that the MUA is not opposed to foreign workers. The Commission accepts Mr Cushion’s evidence. It follows from his evidence that the intent of the Rating qualification is not to exclude foreign workers, but rather to ensure the application of an Australian qualification (which is also open to be obtained by foreign workers) in Australian waters.
[50] The Rating qualification is uniquely Australian and is governed by the Australian Maritime Safety Authority. It is not unreasonable for parties to agree upon a particular standard to be applied in Australian waters. It is not unreasonable to choose to adopt a standard set by a federal government agency.
[51] Consequently, the Commission is not satisfied that the third criterion of indirect discrimination has been established in relation to the Rating requirement.
[52] For all of the reasons above the Commission does not find that the Rating requirement contained in clause 15.2(c) of the Tidewater draft agreement and which the MUA seeks to advance in its enterprise bargaining negotiations with Farstad is discriminatory. It therefore follows that in pressing for the clause it cannot be said that the MUA is not genuinely trying to reach agreement.
[53] Having made the findings above in relation to the Rating requirement the Commission, as presently constituted, emphasises that the findings are not to be interpreted as the Commission’s endorsement of the MUA’s claims. Nor should it be assumed that any concluded agreement containing like terms will be approved by the Commission. The findings made in this decision are only relevant to the question presently before the Commission concerning the PABO.
[54] Even if the Commission is wrong about whether the Rating requirement is indirectly discriminatory, the Commission finds that it does not so clearly involve non-permitted matters.
[55] Further, the Commission finds that the MUA (through the evidence of Mr Cushion 47) reasonably believes that the claim it is advancing in relation the Rating requirement is a permitted matter. Mr Cushion emphasised that it had been negotiated before Cloghan C and that has led him to the belief that the clause is not, not permitted. The Commission, as presently constituted, accepts that evidence.
The weighted selection criteria claim
[56] The proposed clauses complained about are as follows:
15.2 Recruitment
The recruitment of Employees by the Employer will involve the following:
(a) All Employees must be appropriately qualified and licensed, or in training to be appropriately qualified and licensed, prior to commencing work in any classification covered by this Agreement;
(a) PIRs who complete all of their training with the Employer will be offered a casual or permanent contract once qualified as an integrated rating;
(b) Preference will be given to the Employer’s pool of currently working casual Employees for vacant and/or new permanent positions;
(c) The Employer will consider former Employees who have expressed an interest in employment, provided they had not been disciplined or dismissed for misconduct or unsatisfactory performance;
subject at all times to the Employer retaining the ability to recruit and give preference of employment on the basis of the Employer’s the following weighted selection criteria (such that the employee with the highest score shall be preferenced for recruitment):, which means:
(i) Skills: | Any additional training or qualifications relevant to the role | Plus 5 points per item |
(ii) Experience: | (a) Months of service with the Employer (b) Months of service in the industry | Plus 1 point per month capped at 24 Plus 1 point per month capped at 24 |
(iii) Behaviour, performance & attitude: | (a) Disciplinary record with the Employer: ● Formal counselling notice (b) Most recent vessel Master score (c) Interview score | Deduct 5 points Deduct 10 points Deduct 20 points Plus points to a maximum of 20 Plus points to a maximum of 15 |
Provided that where two employees have the same score, the employee with the longest length of service will be given the job.
18. Redundancy
18.1 Definition of Redundancy
(a) A redundancy situation arises where the Employer decides that it no longer requires an Employee’s job to be done by anyone (except where this is due to the ordinary and customary turnover of labour).
(a) Casual Employees, PIRs and TIRs are not entitled to any redundancy benefits under this provision.
18.2 Redundancy Payment
(a) Where employment is terminated because of redundancy, an Employee will be entitled to redundancy pay in accordance with the NES for the first two (2) years of service and then, three (3) weeks per year of service thereafter, at the Permanent Employee’s current salary and pro rata for completed months.
(a) A redundancy payment will not exceed 78 weeks.
(b) “Year of service” includes any service as a casual Employee, PIR and TIR consecutive with service as a permanent Employee.
18.3 Redundancy Process
Where the number of permanent Employees in a classification exceeds the number of positions available the following process will be applied:
(a) The Employer will inform the Union of the redundancy situation;
(a) The Employer will determine the number of redundancy packages to apply;
(b) Prior to any redundancies, casual Employees will be replaced by permanent Employees of the same classification, where practicable;
(c) Prior to any redundancies, excess leave balances will be taken;
(d) Prior to effecting any redundancies, the Employer will request expressions of interest from Employees seeking redundancy on a voluntary basis. Volunteers will only be refused selection on exceptional grounds;
The Employer will effect involuntary redundancies on the following weighted selection criteria (such that the employee with the lowest score shall be preferenced for redundancy):
(i) Skills: | Any additional training or qualifications relevant to the role | Plus 5 points per item |
(ii) Experience: | (a) Months of service with the Employer (b) Months of service in the industry | Plus 1 point per month capped at 24 Plus 1 point per month capped at 24 |
(iii) Behaviour, performance & attitude: | (a) Disciplinary record with the Employer: ● Formal counselling notice (b) Most recent vessel Master score (c) Interview score | Deduct 5 points Deduct 10 points Deduct 20 points Plus points to a maximum of 20 Plus points to a maximum of 15 |
Provided that where two employees have the same score, the employee with the shortest length of service will be made redundant.
[57] Farstad submits that:
a) The proposed terms are discriminatory on the attribute of age.
b) The operation of the weighting in proposed clauses 15.2 and 18 has the effect that “an older employee with many years service obtains an advantage over a younger employee who does not have such duration of service”; 48
c) “The MUA cannot, on the evidence, maintain a reasonable belief in the lawfulness of the relevant terms that include the weighting. It may have a belief, but the belief is not reasonable in the absence of timely action to obtain legal advice”; 49
d) “It is irrelevant that the MUA says its intention is not to seek the terms if at some future time it receives advice that the terms are not lawful ... the test is whether in the context of a real question of unlawfulness, the MUA has continued to bargain for such terms.” 50
e) “... the terms are prima facie not permitted and the MUA has been placed on notice about this. It ought to have put its bargaining house in order before issuing the PABO application. It did not. It is not genuinely trying to reach agreement.” 51
[58] In his witness statement 52 Mr Barrow stated:
a) The claim for the weighted selection criteria was first raised by the MUA on 16 and 17 June. 53
b) On 17 June Farstad had an initial discussion with the MUA in which it queried the lawfulness of such criteria. 54
c) On 4 July 2014, the MUA confirmed it pressed the claim in full. 55
d) He is not comfortable with the proposed weighted selection criteria. 56
[59] In his evidence before the Commission Mr Barrow said:
a) The first time he had seen the weighted selection criteria was on 4 July 2014 when he was sent a copy of the draft Tidewater agreement; 57
b) “There’s been ... some discussion before the Commission [about the weighted selection criteria] ... but we didn’t get into specifics.” 58 “I'm very uncomfortable with them because we've got a pretty robust process written into our EA now and I think the process ... quite transparent, and historically the union made a quantum leap when the engagement system left ... we were quite specific in our drafting of that first enterprise agreement after the engagement system shut down as to detailing what happens in ... how employment takes place, which would reflect normal community standards. In other words ... you identify a vacancy, you select candidates, and an agreement where some of those candidates come from, you have an interview process, you look at certain criteria about suitability for people, and inductions into the organisation et cetera, and we were quite specific in nailing that down because this was a new territory for (indistinct) seafarers working in Australia.”59
c) “We have to operate ethically ... the law is the law” 60
[60] For its part the MUA submitted that:
a) The weighted selection criteria “cannot be said to be discriminatory or unlawful on the basis of age and cannot be said to be in some way favouring older employees as alleged by the Respondent.” 61
b) “The table at clause 18.3 states that employees will receive 1 point for each month of service, however this is capped at a maximum of 24 points, i.e. 2 years of service. On that basis, an employee who started work with the Respondent at age 20 and is now 60 years old and has 40 years’ service will obtain a maximum of 24 points. Similarly, an employee who started work with the Respondent at the age of 20 and is now 22 years old and has 2 years’ service will also obtain the maximum of 24 points.” 62
[61] In his evidence before the Commission Mr Cushion said:
a) Similar tables are included in other agreement which have been approved by the Commission; 63
b) “Commissioner Johns raised [this issue] with us at some of the meetings that we've had, he believed that they might be discriminatory. We didn't think that was the case because we already had them in documents but we picked up the Commissioner's ... inference that we might have a problem with it, and we've now gone back to our legal team about that to get some more direction from them about whether they think it's discriminatory or not.” 64
c) The application of the clause “doesn’t vary on age, it’s really time within the company” 65
d) If “(t)he advice is that this won't stand, (then) it will have to go.” 66
Consideration
[62] To determine whether the weighted selection criteria claim discriminates indirectly against workers on the basis of age it is necessary to apply the criteria for indirect discrimination discussed above.
Criterion 1:
[63] Is there sought to be imposed a requirement or condition that potential employees of Farstad must comply with in order that they receive a capped 24 points for experience under the selection criteria to be included in the Proposed Agreement?
[64] In the present matter, the question above is to be answered in the affirmative. It is common ground between the parties that the requirement or condition sought to be imposed by the MUA on Farstad (such that it would be imposed on employees of Farstad employed under the Proposed Agreement) is that in order to receive a capped 24 points for experience under the selection criteria employees must have worked for 2 years.
Criterion 2:
[65] The second criterion concerns the impact of the requirement or condition. In short, to satisfy Farstad’s complaint about the clause, it must be demonstrated that the requirement or condition is more easily satisfied by older workers than by younger workers.
[66] Again, in the present matter no statistical evidence was led before the Commission.
[67] Notwithstanding the absence of statistical evidence is difficult to understand how the weighted selection criteria claim is more readily able to be complied with by older workers.
[68] The MUA quite correctly point out that:
● The table at clause 18.3 states that employees will receive 1 point for each month of service, however this is capped at a maximum of 24 points, i.e. 2 years of service.
● On that basis, an employee who started work with the Respondent at age 20 and is now 60 years old and has 40 years’ service will obtain a maximum of 24 points.
● Similarly, an employee who started work with the Respondent at the age of 20 and is now 22 years old and has 2 years’ service will also obtain the maximum of 24 points.” 67
[69] The advantage of obtaining the maximum of 24 points (by reason of 2 years of service) is obtained by having worked for 2 years. It is not dependent on the age of the worker. There is no basis for assuming that a younger person is less able to work for two years than an older worker.
[70] Consequently, absent further evidence, the Commission is not satisfied that younger workers are less able to comply with the weighted selection criteria claim when compared to older workers. The second criterion of indirect discrimination having not been met, the weighted selection criteria claim is not discriminatory.
Criterion 3
[71] The third element in a assessing whether there is indirect discrimination is to establish that the requirement or condition lacks justification or is unreasonable under the circumstances.
[72] In the present matter none of the evidence of Mr Barrow nor the submissions of Farstad addressed why it is said that the weighted selection criteria claim is not reasonable having regard to the circumstances of this case.
[73] Consequently, the Commission is not satisfied that the third criterion of indirect discrimination has been established in relation to the weighted selection criteria claim.
[74] For all of the reasons above the Commission does not find that the weighted selection criteria claim contained in the Tidewater Agreement and which the MUA seeks to advance in its enterprise bargaining negotiations with Farstad is discriminatory. It therefore follows that in pressing for the clause it cannot be said that the MUA is not genuinely trying to reach agreement.
[75] Having made the findings above in relation to the weighted selection criteria claim the Commission, as presently constituted, emphasises that the findings are not to be interpreted as the Commission’s endorsement of the MUA’s claims. Nor should it be assumed that any concluded agreement containing like terms will be approved by the Commission. The findings made in this decision are only relevant to the question presently before the Commission concerning the PABO.
The alleged backpayment claim
[76] On 4 July 2014, the MUA wrote to Farstad confirming its position with regard to wages and term as follows:
“EBA start 31 Oct 2014 for a 4 year period
1. Salary
1 Jan 2014 4%
1 Nov 2015 3.5%
1 Nov 2016 3.5%
1 Nov 2017 3.5%” 68
[77] Farstad submits that:
a) “... at the time the MUA issued the PABO application ... it was seeking the payment of a wage increment on a retrospective basis”; 69
b) The term “sign on bonus” “does not appear in any documentary evidence tendered in the application” 70
c) “There is no documentary evidence of formulas and the like for payment of a sign on bonus” 71
[78] In his evidence before the Commission Mr Barrow said:
a) “... the word "retrospectivity" has been used and it's almost - it's been a bit of an elephant in the room ... in a lot of discussions ... in our discussions before Johns C ... I do recall hearing the word "sign-on bonus".” 72
b) “our view ... is we would not be keen on retrospectivity until from a date when everything is agreed ... we've been quite specific in the context that it's what we would call a buyer's market. With our clients, our clients don't have an appetite for any costs breakouts at all and we have to keep our clients appraised of where we are with our discussions ... it's been made pretty clear to us about the issue of retrospectivity and people do not have a great appetite for it.” 73
c) “I've heard the word "sign-on bonus" used and I would assume that that may well be [the MUA’s] intent.” 74
[79] Also relevant is the following exchange between the Commissioner and Mr Barrow:
The Commissioner: ... Mr Barrow, if agreement was reached on quantum having regard to the date of 1 January and a percentage of 4 per cent, is it your understanding that, as a practical matter, it would be dealt with in the agreement as a sign-on bonus?
Mr Barrow: What, we're talking - if we're talking hypothetically, if that formed part of an agreement, we would - I mean, clearly we would have to finalise [it] within what's legally applicable, what we could do within the constraints of the Act at the moment. 75
The Commissioner: And it's your understanding that it's the MUA's position that, as a practical matter, it would be dealt with as a sign-on bonus, isn't it?
Mr Barrow: I've certainly heard the word - I can recall the word "sign-on bonus" being used in our discussions which had taken place over the last month. 76
[80] In his evidence before the Commission Mr Cushion said:
a) The MUA wants employees to be paid the 4% increase commencing from 1 January 2014 to the point at which the Agreement is approved. He describes it as a “sign-on bonus”. 77
b) The MUA had not used the “back pay” to describe the proposed payment in its negotiations with Farstad. 78
Consideration
[81] Having regard to the evidence of Mr Barrow and Mr Cushion the Commission finds that the alleged backpayment claim is, in reality, a claim for a sign on bonus. True it is that it might be that the quantum of the sign-on bonus is to be calculated with reference to some prior date, but that does not deprive it of its true character.
[82] The Commission further finds that both the MUA and Farstad are conscious of the need to ensure that whatever clauses ultimately end up in the final form the Proposed Agreement that they agree upon, that the Agreement is capable of being approved by the Commission. As mature negotiating parties both the MUA and Farstad understand that the negotiating process is a fluid one and that the latest attempt to formulate a particular clause may not be how it appears in its final form.
[83] What is further clear from the evidence of Mr Cushion, about the MUA’s attempts to seek legal advice about proposed clauses 79, (and the Commission, as presently constituted, so finds) is that there is an intention on behalf of the MUA to not insist upon impermissible clauses.
For all of the reasons above the Commission does not find that the alleged backpayment claim which the MUA seeks to advance in its enterprise bargaining negotiations with Farstad is unlawful. It therefore follows that in pressing for the clause it cannot be said that the MUA is not genuinely trying to reach agreement.
The industry template claims
[84] In his witness statement Mr Barrow set out the terms and conditions sought by the MUA which, in his view, were industry wide or template terms:
Claim | Background to negotiation |
MUA’s permanency ratio claim is an industry template claim | Farstad understood that this claim was withdrawn as at 17 April 2014. |
However, on 27 June 2014, the MUA stated its permanency claim as part of its ‘proposal’. | |
In any event, Farstad has responded to the MUA’s claim many times that a permanency ratio is not applicable or relevant to its business, essentially because Farstad has much higher levels of permanency than the MUA is seeking for inclusion. | |
Even prior to withdrawing its claim (and reintroducing it again), the MUA has admitted that this is no issue for Farstad. | |
The MUA even acknowledges in its clarification of claims sent on 4 July 2014 that the permanency benchmark it is seeking is not “real”. | |
MUA’s claim for IR as base qualification is an industry template claim | The schedules which apply to Farstad already have IR as base qualification - therefore this is not a claim applicable to Farstad or its business. |
As recently as 17 June 2014, Farstad entertained a discussion with the MUA about this claim and how it could be resolved to the extent that Farstad is able to do so having regard to our business. It was apparent to me that Farstad’s ability to resolve this claim is restricted by the MUA’s desire to reach agreement on terms that would provide an industry template. | |
MUA’s claim for agreement term is an industry template claim | The MUA has stated in negotiations, specifically in its 18 March 2014 response to Farstad’s 27 February 2014 offer, that it “expects an industry outcome on term”. |
[85] Farstad submits that:
a) “... the pursuit of industry template claims amount to pattern bargaining (s.412) which does not fall within the “genuinely trying to reach agreement” exemption provided for in s.412(3)” 80
b) “None of these matters are specific to the Farstad enterprise. The MUA pursues them to maintain an industry standard or consistency. That grounds a finding that the claim is inauthentic or non-responsive to the Farstad enterprise... That creates a conflict with the employer’s operation in that it bears no relationship to the terms and conditions applying to the specific operation” 81
In his evidence before the Commission Mr Barrow said:
a) With regard to the permanency ratio:
a. “[the MUA] wanted to formalise 70 per cent casual/permanency in our agreement and that that should not cause us any grief "because you operate, you know, in excess of that as a rule anyway", and basically it's part of our company philosophy that we operate with a high level of permanency.” 82
b. “it's something that [the MUA] would like to broaden out for the rest of the industry. That's the impression that I've picked up in our discussions.” 83
b) With regard to the IR base qualification:
a. “...that ... shouldn't cause us any concern, because on the two main schedules we operate under we basically employ IRs. We've raised the issue with them that ... we want to be able to have able seamen as well, because we do train able seamen to become IRs as part of what we do, and clearly there are people who may be Australian residents who might have a UK AB certificate or they might be guys out of the navy or they might be guys from wherever who've picked up an AMSA-recognised AB certificate” 84
b. If the integrated rating qualification minimum criteria were adopted as part of the agreement, as presently proposed by the MUA, Farstad would not be able to do this. 85
[86] For its part the MUA submitted that:
a) “It is assumed by [Farstad] that because the MUA is currently in negotiation with 18 employers in Western Australia that the MUA is trying to apply such terms to the agreement it seeks to achieve with Farstad.”; 86
b) “The Applicant is not engaging in pattern bargaining ... (h)owever, even if it could be proven ... the Act also provides an exception to such conduct ... if it can be shown that the bargaining representative is genuinely trying to reach agreement” 87
c) “...bargaining thus far has been characterised [as] “hard bargaining” on part of both the MUA and Farstad” 88
[87] In his evidence before the Commission Mr Cushion said:
a) With regard to the permanency ratio in the draft Tidewater Agreement “this is the first time there's ever been a quota in this document. Now, if that goes to one of the companies - I know, for example, that Mermaid Marine, Offshore Marine, Taylor Marine won't have anywhere near 70 per cent. So it's not going to be patterned across the industry. We want quotas in the industry. 70 per cent for Farstad, which they do well exceed, but we will not be able to achieve those in the other companies. It's an impossibility.” 89
b) “Farstad are what's called a boat operator. Tidewater are also what's called a boat operator. That means they own the boats. OMS, TMS are basically labour hire companies ... So we believe that Farstad Swires would probably fit into this category again, and if you went to Swires you might even see a 70 per cent one there too. So for the boat operators we are looking at 70 per cent. Farstad is over it; the others probably aren't. But for the other companies we're not anywhere near, and I don't know if that has been what's been asked for, but I know that in Tidewater, because they are a boat operator, that's what we would be looking for. What our members have asked for is for the level of permanency in this industry, which is very casualised, to be strengthened. So we make no apology for it.” 90
c) With regard to the Integrated Rating base qualification, “Our preference is for the highest standard. The IR is the highest standard. An IR means - is an integrated rating. An integrated rating is able - and it would be Farstad's viewpoint, I'm sure, as well - integrated rating is able to work both in the engine room and on the deck. An AB can only work on the deck, so he doesn't have a dual role. A greaser can only work in the engine room. He doesn't have a dual role either. Now, we understand that Farstad employ ABs, and in general what they - once they've employed them, is they train them through to IR.”
d) With regard to the agreement term, “(n)o one asked for anything but a four year agreement.” 91
Consideration
[88] In the present matter the permanency ratio and the IR base qualification have little relevance to Farstad’s current operations because they substantially already comply with these provisions.
[89] However, while these industry provisions may not presently be relevant to Farstad because of the way it presently conducts its operations that is not to say that they are in conflict with Farstad’s operations: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and The Australian Workers’ Union (AWU) 92.
If the MUA did not press these matters to be included in the Proposed Agreement then, at any time during the life of the Proposed Agreement Farstad, could alter or cease its current practices in relation to the permanency ratio and the IR base qualification. In those circumstances the MUA would be prevented from lawfully agitating those matters with Farstad. The only way that the MUA can safeguard against Farstad altering or ceasing its current practices in relation to the permanency ratio and the IR base qualification is to have these provisions included in the Proposed Agreement.
Consequently, the Commission, as presently constituted, does not reach a conclusion that in pursuing the permanency ratio and the IR base qualification terms the MUA is not genuinely trying to reach an agreement. In pursuing the permanency ratio and the IR base qualification terms the MUA is safeguarding its position against Farstad changing its present operations in the future. Noting that the proposed life of the Proposed Agreement safeguarding against future changes in operations is a prudent thing for the MUA to do. It is not unlawful or unreasonable conduct.
In so far as Farstad complains about the agreement term, it is not understood how the agreement term is in conflict with Farstad’s operations. Mr Barrow’s evidence does not go to this issue. Farstad’s submissions do not address this issue in any detail.
All enterprise agreements must have a nominal expiry date. What date is chosen is a matter for the parties to agree upon. Presently the MUA want a common end date. That is pattern bargaining. However, it is not evidence of the MUA not genuinely seeking to reach agreement. The Commission, as presently constituted, so finds.
For all of the reasons above the Commission does not find that the industry template claims which the MUA seeks to advance in its enterprise bargaining negotiations with Farstad are for an ulterior purpose. It therefore follows that in pressing for the clauses it cannot be said that the MUA is not genuinely trying to reach agreement.
Conclusion
[90] For the reasons set about above and having regard to the authorities referred to, the Commission is satisfied the MUA is genuinely trying to reach agreement with Farstad.
[91] Consequently, the Commission is satisfied that all of the requirements of subsection 443(1) of the FW Act have been met. Accordingly, an Order must be made.
[92] Farstad also sought an extension of the notice period for taking industrial action. The Commission notes that the draft order does not specify a notice period. Section 414(2)(a) of the Act provides that the notice period must be at least three working days. Following a conference between the parties it was agreed that the notice period should be extended to 7 working days. The Order will reflect that agreement between the parties.
[93] The parties also agreed that paragraph 4 in the draft Order should be amended such that the date by which voting in the protected action ballot is to close be 7 weeks from the opening of the ballot and not 6 weeks. The Order will also reflect that agreement between the parties.
[94] Finally, the MUA indicated that it wanted to ballot,
All employees of the Respondent to whom the Farstad Shipping (Indian Pacific) Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 applies and who are members of the Applicant.
[95] That description of the group of employees to be balloted goes beyond what is necessary under s.437(5) of the Act. The Order will reflect the statutory prescription.
[96] The Order [PR552870] will be issued concurrently with this decision.
COMMISSIONER
1 Respondent’s closing written submissions, 14 July 2014, [5].
2 Exhibit R1, [12].
3 Exhibit R1, [13].
4 Exhibit A1, [5].
5 Exhibit A1, [6] - [17] and Exhibit R1, [14].
6 Exhibit A1, [18].
7 Exhibit A1, [19] - [22] and Exhibit R1, [15].
8 Exhibit R2, [7].
9 Exhibit R2, [9] - [10] citing NUW v ACCO Australia Pty Ltd [2009] FWA 226, 7 September 2009, Thatcher C at [7] and citing CEPU v Tyco Australia Pty Ltd t/a Wormald, [2009] FWA 83 per O’Callaghan SDP.
10 [2010] FWAFB 344.
11 [2010] FWAFB 344, [49].
12 [2010] FWAFB 344, [50].
13 [2010] FWAFB 344, [52].
14 [2010] FWAFB 344, [55].
15 [2010] FWAFB 344, [56].
16 [2010] FWAFB 344, [60].
17 [2010] FWAFB 4889.
18 [2010] FWAFB 4889, [17].
19 [2010] FWAFB 4889, [23].
20 [2010] FWAFB 4889, [24].
21 [2010] FWAFB 526.
22 [2010] FWAFB 526, [39].
23 Exhibit “R1”, para 38.
24 Exhibit “R1”, para 40.
25 Exhibit “R1”, para 43.
26 Exhibit “R1”, para 44.
27 Exhibit “R2”, para 20.
28 Exhibit “R2”, para 21.
29 Exhibit “R2”, para 22.
30 Paragraphs 20 - 31.
31 PN319
32 PN320
33 PN321
34 PN322
35 Applicant’s Closing Submissions, para 20
36 Applicant’s Closing Submissions,, para 21
37 Applicant’s Closing Submissions, para 22
38 PN65.
39 PN77.
40 i.e. a job that requires a certificate in accordance with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, as amended.
41 PN79.
42 In this decision “Rating”, “Integrated Rating” and “IR” are used inter-changeably. Information about the Rating qualification system was obtained from the AMSA website: [2011] FWA 3693.
44 [2011] FWA 3693, [14].
45 [2011] FWA 3693, [13].
46 Rees, Lindsay, Rice “Australian anti-discrimination law: text, cases and materials” (The Federation Press 2008), [4.3.23].
47 PN65
48 Exhibit “R2”, para 25
49 Respondent Closing Submissions, para 37
50 Respondent’s Closing Submissions para 39
51 Respondent’s Closing Submissions, para 40
52 Exhibit “R1”
53 Exhibit “R1”, para 50
54 Exhibit “R1”, para 51
55 Exhibit “R1”, para 52
56 Exhibit “R1”, para 53
57 PN324-325
58 PN326
59 PN327
60 PN328
61 Applicant’s Final Submissions, para 28
62 Applicant’s Final Submissions, para 27
63 PN87-88
64 PN87
65 PN89
66 PN150
67 Applicant’s Final Submissions, para 27
68 Exhibit “R4”
69 Respondent’s Closing Submissions, para 41
70 Respondent’s Closing Submissions, para 41
71 Respondent’s Closing Submissions, para 42
72 PN329
73 PN331
74 PN335
75 PN332.
76 PN333.
77 PN175
78 PN180
79 PN146, PN368.
80 Respondent’s Closing Submissions, para 45
81 Respondent’s Closing Submissions, para 47
82 PN341
83 PN342
84 PN346
85 PN347
86 Applicant’s Closing Submissions, para 31
87 Applicant’s Closing Submissions, para 33 and 34
88 Applicant’s Closing Submissions, para 35
89 PN212
90 PN251
91 PN258
92 [2010] FWAFB 526.
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