Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Ltd

[2014] FWC 3349

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Maritime Union of Australia, The
v
Patrick Stevedores Holdings Pty Ltd
(C2014/3370 and C2013/7789)

Stevedoring industry
COMMISSIONER CRIBB	MELBOURNE, 27 MAY 2014

Alleged dispute concerning the respondent’s intention to implement significant change including a reduction in workforce numbers; alleged dispute concerning the respondent’s intention to employ an additional 20 supplementary employees.

[1] This is the second Reasons for Decision in respect of these two disputes. The first decision 1 was issued on Tuesday 20 May 2014 in which the Commission set out its reasons for finding that it has jurisdiction to deal with these disputes.

[2] Having found that the Commission has jurisdiction, the next step in the process was determination of whether the Commission should exercise its discretion and issue the interim orders sought by the Maritime Union of Australia (MUA, the union). This involved two questions - is there is serious issue to be tried? and where the balance of convenience lies.

[3] The hearing in regard to whether the Commission should exercise its discretion and issue the interim orders was held on Thursday, 10 April 2014. As time was, once again, of the essence, at the end of the hearing, following a short adjournment, the Commission issued the following decision in transcript:

“Basically the submissions of the parties over the course of today have gone to the two traditional tests about whether the Commission should exercise its discretion and issue interim orders. Those two issues are the serious issue to be tried and then the balance of convenience and where that lies. In terms of the serious issue to be tried I have formed the view that there is a serious issue to be tried and that is whether clause 15.5 of the enterprise agreement fetters the absolute discretion provided for the company in clause 10.3 of the enterprise agreement. So therefore it's arguable on the part of the union. In terms of the balance of convenience criteria, my view on that one is that the balance of convenience lies with the company on the grounds that it outlined and that is having weighed up the issues raised by the union in terms of the cost to the employees and balancing up that with the issues raised by the company in terms of the loss and the other issues.

So then balancing up both of those, because that's what's necessary, and that's serious issue to be tried on the one hand which has been found and in terms of a balance of convenience which is in the company's favour, on very fine balance and I want to make that absolutely clear, my view is that the balance of convenience in the company's favour outweighs the serious issue to be tried and so therefore I decline to issue the interim orders that have been sought by the union. I will adjourn therefore. It is up to the union as to what it wishes to do based on that, I don't need to know this minute. Therefore I don't think there's anything more to be said tonight. On that basis the Commission stands adjourned.” 2

[4] In addition to the ex tempore decision issued at the end of the hearing (as set out above), another ex tempore decision was given earlier in the hearing. This concerned the issue of whether the Commission has the power to issue interim orders. It was in the following terms:

“I’ve taken the opportunity to consider all of the submissions and in terms of the interim order issue and for reasons that will be published later I accept the union’s submissions that the Commission has the power to issue interim orders to preserve the dispute whilst the arbitral process takes place.” 3

[5] It is not proposed to deal further with this issue in this decision. The disputes, and consequently the hearings, are complex and the issues intertwined. The issue of the Commission’s power to make interim orders has already been dealt with in the previous Reasons for Decision 4 issued in respect of these disputes on 20 May 2014. In that decision, the Commission dealt with this issue5 and, in reaching those conclusions, took into account, and considered, the submissions of the parties during the hearing6 on Thursday 10 April 2014. It is therefore not necessary to consider this issue further in these Reasons for Decision.

[6] In terms of these dispute, the union sought the following:

“1. Until the determination of these applications or until further order, the Respondent must not give effect to any redundancies (whether voluntary or compulsory) or redeploy any employees covered by the Patrick Bulk and General Melbourne Enterprise Agreement 2012 who work at Webb Dock in Melbourne.” 7

1. WITNESS EVIDENCE

(a) The union

Mr Bracken

[7] Mr Bracken is the Victorian State Secretary of the MUA. 8

[8] Mr Bracken gave the following evidence:

He has been involved with this dispute since the previous December and is responsible for overseeing and managing the process. He has attended about 75% of the meetings. 9

The union’s labour model is 25 full-time employees; 45 PGE’s; 45 A Supplementaries and 45 B Supplementaries. 10

The company’s labour model is 15 full-time employees; 25 PGE’s; 60 Supplementaries. 11

The company has advised that it expects 17 full-time and 18 PGE positions will need to be made compulsorily redundant. 12

He confirmed that the voluntary redundancies will be affected on 11 April 2014 rather than 14 April 2014 (which was the date the union was first advised, in mid March 2014). 13 Mr Bracken was not sure whether the employees were notified individually in mid March 2014.14

During the consultation, the company stated that everyone who applied for voluntary redundancy would be accepted. It was confirmed that everyone who volunteered at Webb Dock has been accepted but not at East Swanson Dock (ESD). 15

Reciprocal redundancies were offered to Geelong and East Swanson Dock. 16 He has been advised that 14 permanents and 13 PGE’s have put in for redundancy at East Swanson Dock.17 However, it is not yet clear how many Webb Dock employees will be able to transfer on the basis of reciprocal redundancies. There is no guarantee that they will be accepted.18

All of the employees who have been advised that they can transfer to Geelong are happy with that and all of those who have been advised that they can transfer to East Swanson Dock, are also happy with that. There is one exception which is the employee who put in for Geelong and has been offered Geelong but would prefer to go to East Swanson Dock. It was noted by Mr Bracken that these employees’ first choice may have been to stay at Webb Dock. 19

A union member’s letter from the company was tendered as an example of a reciprocal redundancy. 20 The letter indicated that he would carry over his entitlements.21

Non-binding expressions of interest were provided to permanent employees in the ports of Geelong and East Swanson Dock. 22

Some of the union's members are happy to take redundancy but others would not have taken one as they want to keep working but they are worried about the changes. No one knows if they will be able to stay at Webb Dock. 23

Some of the employees who have put in for redundancy would prefer to stay but, because they are worried about it, they have gone the redundancy route. 24 Of the 10 people who have put in for redundancy, it was thought that four of them preferred to stay or at least work a bit longer rather than finishing up on Friday.25

Some employees would prefer to stay at Webb Dock but they do not want to lose their job so they have put in for other positions. He said it was still all up in the air and people would like a bit more time to make the right decision. 26

In terms of the selection criteria for redundancy, the union’s position is that 50% should be measurable (length of service, skills) and the other 50% - management scores. The company's position was 75% then 60% for management scores. 27

Another issue is that this information (employee ratings) was given to East Swanson Dock management with the result that some employees who wanted to transfer there were not given interviews because of their rating. This was said to be biased against the employees. 28

All interviews except one have been conducted for East Swanson Dock. The union had been advised that everyone who had a first or second preference to transfer to East Swanson would get an interview. Then the company only interviewed people who had above average scores. However, subsequently, everyone who put first or second preference for East Swanson Dock was interviewed. The union is concerned that people's opportunity to be transferred has been tainted by the scores. 29

Of the 11 employees interviewed by East Swanson Dock, three have been told they are unsuccessful and so at least one of them has complained. 30

The union is also in dispute with the company about who should do the scoring - the foremen rather than the shift managers (Patrick’s position). A number of employees have put in grievances and sought reviews of their scores. The employees were told their scores but not which shift manager had given a particular score. 31

Because the scoring is a bit subjective, employees are worried that if they had spoken up about union issues, they would have been scored low. 32

The union’s preference for the foremen to do the scoring is based on the fact that they are the people who actually work, hands-on, beside their members. The shift supervisor might have 70 people on shift at a time. 33

He had been advised by Mr Tobin that Geelong has advertised for more Supplementaries. 34

The union had requested that the scheduled six-month review at Geelong be held off until the labour numbers at Webb Dock have settled. 35

There is ample labour available at Webb Dock to do the Geelong work through the current transfer provisions in the Patrick Bulk and General Melbourne Enterprise Agreement 2012 (the Agreement). Therefore, it was unnecessary for the company to advertise for more Supplementaries. 36

If the Commission restrains the company from terminating anyone for four weeks, he believed there would be work for people to do (Westernport windmill work and the Swire contract at Geelong). 37

Work available for employees to do at Webb Dock over the next four - six weeks was said to no longer include any container ships with only car ships coming. However, Webb Dock employees have been working at Westernport (about twenty shifts for 10 - 12 people) with another four - five ships of project cargo (windmills) over the next four months. In addition, the union believes that the Swire contract has been awarded to the company (about 40,000 man hours for the year) at Geelong. As well, there is an oil and gas construction project starting in Bass Strait and a pipe ship into Westernport. 38

People do not want to finish now as there is plenty of work still there for them and the company would not pay anything extra for them to do the work. 39

People have worked at Geelong (daily transfers) and at Westernport in the past. 40 A text message calling for volunteers to work at Geelong was referred to. It was stated that they need labour at Geelong.41 Mr Bracken explained that the union is in the process of discussing with management compiling a list of volunteers to work at Westernport and Geelong in the interim.42

None of the PGE’s have expressed concern that, if they continued to work past Friday, they would have to pay back their top up payments. He had not heard that people were not making their guarantees. 43

(b) The company

Mr Meek

[9] Mr Meek is the Human Resources Manager for the Southern Region for Patrick’s Ports and Stevedoring Division.

[10] It was Mr Meek’s evidence that:

He has been involved right through the process to reduce numbers at Webb Dock including the consultation process with the union, development of the selection process, voluntary redundancies and transfers. 44

The company put out an expression of interest document to all affected permanent employees. The options were to remain at Webb Dock; voluntary redundancy; transfer to Geelong; transfer to East Swanson Dock or a reciprocal transfer to either Geelong or East Swanson Dock. The document was first issued in November 2013 and again in February 2014 (to affirm that people were comfortable with what they had put down in their expressions of interest). 45 About half of the employees marked the option of staying at Webb Dock as their first preference. This is more than the number of employees the company wants to retain.46

For employees who had confirmed their expression of interest in voluntary redundancy, they received a letter dated 4 March 2014 asking them to confirm in writing that they were happy to proceed with it. If so, it would be effective on 11 April 2014. In March 2014, 9 employees confirmed their desire for voluntary redundancy with another 8 employees since. Of the 17 employees, 15 employees had confirmed in writing with the other two to do so shortly. 47

Mr Meek did not accept that, because the company did not have all 17 employees volunteer in the initial round, it meant that some people are uncertain about their future. Some people maybe needed more time to weigh up their future. It was not accepted that employees are unlikely to tell him their concerns. Rather, a number of people have told him that they are frustrated because they do not know what is happening. It was accepted that some union members are likely to tell things to the union that they will not say to the company. 48

It was acknowledged that it was a challenging decision for people as they have to decide whether to put their hand up for voluntary redundancy or a transfer or take the gamble that they will keep their jobs at Webb Dock. 49 However, no one was said to have expressed that concern.50

It was confirmed that employees have to make a decision without knowing the outcome of the arbitration but it was said that employees know that the business is shrinking by two thirds. Melbourne Ports and Stevedoring’s revenue will drop from $40M to less than $14M. 51

The views expressed by the employees who have volunteered for redundancy was said to be that they do want voluntary redundancy but that they would have preferred more time. 52 One employee had changed his mind twice about whether he wanted to volunteer for redundancy.53

Four PGE’s have expressed concern about when their date is being finalised because they have a worry about their back pay. Also, about half of the permanents have indicated that, having made their decision, they just want to leave. The remaining employees have accepted the date. 54

In terms of voluntary transfers to Geelong, as Geelong’s workload has increased in the last six months, another four PGE and one permanent position have been created. 55 Geelong has recently advertised for an extra 10 Supplementaries but the interviews have not yet been conducted. Webb Dock employees can apply for those positions. Webb Dock employees can transfer to work temporarily at Geelong but only if they are not required to work at Webb Dock. Work at Webb Dock takes priority over Geelong work.56

In addition, the reciprocal process has been offered for Geelong permanents and PGE’s. They were sent a letter asking if they were interested in volunteering (a non-binding expression of interest) to be made redundant to open up the position for a Webb Dock employee to transfer into. 57

Four PGE’s and one permanent (5 in total) have been selected for transfer to Geelong plus 1 PGE for a reciprocal redundancy. None of these employees has expressed concern about ultimately going. 58

One employee (referred to by Mr Bracken) had a preference to transfer to East Swanson Dock but had been offered a Geelong transfer. He was unsuccessful in being accepted for transfer to East Swanson Dock and so was given a couple of days to decide whether he wanted to transfer to Geelong or remain at Webb Dock. 59

In terms of East Swanson Dock, the process was similar except that East Swanson Dock ran their own expression of interest process. 16 permanents and 15 PGE’s had expressed an interest in transferring to East Swanson Dock (either as their first or second preference). These employees were afforded the opportunity for an interview. Not all have been interviewed because a couple of employees rejected an interview because they did not want to go on and work at East Swanson Dock and one employee has yet to be interviewed. 60

Initially, some employees with a first or second preference for East Swanson Dock were not interviewed but now, all have been interviewed. At least two of the permanent employees interviewed are being offered employment. None of the employees who have been offered employment have expressed concerns about going. 61

There is a need to ascertain who has accepted voluntary redundancy or transfer to either Geelong or East Swanson Dock before the company will have a final number of compulsory redundancies. 62 If the Commission stops the voluntary redundancies going ahead, the company would need a minimum of 2.5 weeks between then and making a final decision about the number of compulsory redundancies required. To finalise the compulsory redundancies, the nine Shift Managers have to review all of their ratings (most of the 98) and then confirm them. They do this by reading the feedback from employees. The Shift Managers undertake the reviews individually and then generate the lists/rankings etc. Following this, senior management is advised again of the outcomes of the process and gives approval to the compulsory redundancies. The difficulty in all of this was said to be the transfers to ESD as people needed time to consider the contracts etc. Going to ESD on a daily transfer basis was not an option as ESD is part of a different company.63

Employees who have volunteered for redundancy or transfer are aware that they might be restrained from doing either of these things. The PGE’s and some of the permanents have had their last day at work and have cleaned out their lockers and are concerned that they might be asked to come back into work next week because the company is unable to let them go on 11 April 2014. This was said to be a significant number of people. Of the seven PGE’s who have put in for voluntary redundancy, at least four have asked about their guarantee and are concerned that they are going to have to pay make up pay out of their redundancy pay on this week as there is not much work anymore. As the tax on the make-up pay is greater than the tax on their redundancy, they will lose financially if this is the situation (about 15 - 20%). 64

None of the voluntary redundancies has said that they do not really want to be made redundant. They do but the issue for them is getting their head around the fact that they are going to finish working (because they are older). 65

Confirmed that there are currently 45 full-time employees at Webb Dock which the company is seeking to reduce to 15. There are 53 PGE’s currently which will reduce to 24. At the commencement of the Agreement, there were 66 A Supplementaries which have since reduced to 45 through attrition and the number will remain at this level. 66

In terms of B Supplementary employees, in March 2013, 23 B Supplementaries were removed from the business as they had not worked for 12 months. A further 20 were recruited to replace them during October/November 2013 and, in early 2014, another 20 were removed as they had not worked for the last 12 months. The company wishes to end up with about 66 B Supplementaries. 67

The employees have been scored by the Shift Managers based on performance criteria which are in line with the company’s four values, which includes performance. It was accepted that there is always an element of subjectivity in a performance rating and that an employee with a bad personal relationship may reasonably worry about that. In any performance appraisal employees were said to worry about who was doing the appraisal. The company was said to have taken steps to try and mitigate that. 68 This included removing the highest and lowest scores for each person and Shift Managers have deselected where they have not worked with an individual very often.69

Shift Managers are not distanced from employees’ work performance because they get out into the operation albeit not all of the time. 70 They are the appropriate people to do the performance scoring.71

It was thought that people are worried about the number of positions that will be left rather than Shift Managers doing their appraisals. 72

It was confirmed that people had complained about their ranking. A couple of people have said it was not fair. Once such a concern is raised, feedback is given by the concerned employees to the company as to why they think they are performing better than their scores. This is then given to all of the Shift Managers who then review their final scores. If an employee has been rated as less than acceptable, they would be concerned that this would negatively impact on their chances of keeping their position. 73

Mr Meek completely disagreed that there is not an imminent drop-off in work at Webb Dock East. The ongoing work schedules were said to show a fairly substantial drop-off in work with a number of days where no employees are required. Container ships have stopped including the extra work they generated in receivables and deliveries. Work at Webb Dock West (where the company uses other operator’s facilities) was remaining about the same. 74

It was confirmed that, at Westernport, there is a contract whereby, over the next four - five months, ships carrying windmills will be arriving. There is one ship currently at Westernport with a further 4 to come. The next one is due in early May. Anyone working within the Melbourne operation (not East Swanson Dock) can volunteer to work at Westernport. 75

If the company is permitted to proceed with the voluntary redundancies, the company will give those employees the termination notices the next day (11 April 2014). Employees are being paid out their notice period. If the Commission stalls the process, there would be some constructive work to do but employees would not be fully occupied. If this was the situation, in terms of the PGE’s, where there is none or not enough work and they earn below their guarantee, there is then the make-up pay issue. 76

Daily transfers to Geelong are available to those employees who have nominated for that work - 39 permanents, PGE’s and Supplementaries. They are advised by text message when work is available. The company called for volunteers for Geelong earlier in the year. Around 30 employees have volunteered for daily transfers to Westernport. 77

The permanent workforce is probably an older workforce with no-one under 30 and a few employees under 35. There are employees in their 50s and 60s and getting close to their 70s. It was accepted, anecdotally, that the employees in their 50s and 60s would have limited prospects of finding another job. It was confirmed that some employees were concerned about going because of their age. Some of them were said to have been working on the waterfront for 30 or 40 years. 78

Mr Tobin

[11] Mr Tobin is the Southern Regional Manager for Patrick Stevedoring.

[12] Mr Tobin gave evidence as follows:

Patrick Stevedore Holdings is a member of the Asciano Corporate Group with a Bulk and General Division primarily at Webb Dock East with an occasional vessel (once a month) at Webb Dock West. Both Geelong and ESD are each separate businesses. He is responsible for the Melbourne, Geelong, Adelaide and Whyalla Bulk and General businesses and for the profit and loss for each of these ports, from an operational perspective. 79

The budget for the Southern Region is set port by port. The current year operating revenue budget for Webb Dock is $39.5M (a projection of earnings at the commencement of the year). The figure, by the end of the year, will probably come in at $28M - $30M. At the time the 2013/2014 budget figure of $39.5M was set, the Company did not know for sure that it was vacating Webb Dock. It was therefore predicated on doing PCC’s and containers for the whole 12 months. For 2014/2015, it is projected that Webb Dock will earn $13.5M in revenue. It is currently forecast to lose $500,000 per month as, through the remainder of the year, there are labour costs, overheads etc which will need to be paid. This means that the company loses money when there is no incoming cargo. 80

In terms of the 2014/2015 projection of $13.5M, about $1M of that amount is from additional work that has to be found because it is needed to sustain the business. Otherwise, the business will lose money and no longer be viable. If a particular port is losing money, the port has to rectify it or close down as there is no cross subsidy available from other ports. 81

There will not be Webb Dock in the future, in that the business will be a common usage stevedore without a home. 82 The business will be using other people’s equipment to do PCC work.83

The outlook for the business is not good. It was not accepted that, if there is an increase in car imports into Australia, the business will prosper. This is because Patrick may not win the work and also, it may go to other states. In theory, it was accepted that, with the demise of Australian car manufacturing, car imports are likely to increase. It was also agreed, in theory, that the more car imports, the more work the company was likely to pick up. 84

A downturn in business revenue is expected from $40M this year to $13.5M and was said to have started at the end of March. The downturn will increase as break bulk container vessels are no longer going to come to Webb Dock and the cranes are about to be dismantled. It will therefore be predominately PCC cargoes (car vessels) only with the occasional project cargo vessel (e.g. ships cranes). The number of car vessels (based on fiscal year 2013 figures) was said to be between 16 - 18 vessels per week. Japanese car vessels (the majority) were described as currently in a downturn which would continue for the rest of the year. It was anticipated that the 16 - 18 car vessels number will go down slightly. 85

There is not enough work for the current workforce with about six PCC vessels in the next two – three weeks. This was because the full-time employees need to reach their hours and the company has to maintain the status quo for PGE’s (so they can reach their guarantee - salary). 86

On current budget forecasts, the projected loss is in excess of $500,000.00 per month starting now. With the current workload expected to decline, the losses will increase - hundreds of thousands of dollars. The business was said to not be sustainable in its current model. 87

Those employees who selected to transfer to Geelong as their first and second preference were basically successful. In terms of ESD, about 33 people expressed an interest and have been interviewed. His latest understanding is that nine full-time positions and three PGE positions may be offered. These transfers have been offered on the basis of the expected work moving forward. 88

In terms of consultation meetings with the union, Mr Bracken was said to have attended about 55/60% of them with either he or Mr Patchett representing the union in Victoria. The comment was made that it seemed that neither Mr Bracken nor Mr Patchett briefed each other on the outcomes of the previous meeting. The National Office had not attended a meeting until January 2014 (having been briefed in September 2013). 89

The company proposes to make a number of people redundant tomorrow based on their expressions of interest. The notice period, as set out in the Agreement, will be paid out. It was agreed that this is a sunk cost as it has to be paid regardless. If the Commission delays the voluntary redundancies, it will push out the timing of this payment at a time when the business continues to lose money. The cost of employing a full-time employee per week was roughly estimated to be $2000 +33% on-costs. This is the cost per week per were employee if the voluntary redundancies are restrained plus the losses associated with the business. 90

If these voluntary redundancies do not occur and the employees are required to work, there will be times when they will be very much idle. The full-time employees would struggle to/will not make their hours and PGE’s will struggle to make their guarantee. If they are allocated work, this may result in work being taken away from other employees who have not elected voluntary redundancy or transfer. This would result in a significant impact in terms of PGE’s meeting their hours and guarantee. 91

It is not, in reality, possible to approach Asciano for funds to cover the cost of keeping people on. If the Commission did restrain the terminations, Mr Tobin would not approach Asciano for funds to cover the situation. 92

2. SUBMISSIONS

(a) The union

[13] Mr Fetter stated that the broad interim restraining orders sought by the union concern any redundancies (voluntary, reciprocal or compulsory) and the permanent redeployments (transfers to Geelong and East Swanston Dock). Daily transfers to Geelong or Westernport are not covered by the proposed orders. It was explained that compulsory redundancies have been included in case the arbitration runs over 30 April 2014. 93

[14] It was submitted that, in the exercise of its discretion, the Commission has to be satisfied, according to the traditional tests, of two things: is there a serious question to be tried and where the balance of convenience lies in favour of granting the relief. 94

Serious question to be tried?

[15] In other contexts, this test was said to be described as a reasonable prospect of success, for example, commercial arbitrations. At the interim stage, it was argued that the Commission does not have to be convinced that the union will succeed. Rather, it is that there is a reasonable or sufficient chance that the union will. This test was stated to be a filter for hopeless cases as the Commission should not restrain a case that is doomed to fail. 95

[16] The union contended that the Commission cannot be convinced that the union will fail. It was indicated that debates remain about what relief the union can get in the end. However, it was said that the union is on the right side of the line here and that it is hoped that the Commission has been persuaded that there is enough of a prospect that the union will succeed. 96

[17] The union explained that this involved convincing the Commission about clause 10.3 and 15.2 of the Agreement and the relevant sections of the Fair Work Act 2009 (the Act). It was argued that the Commission can decide a labour model and that it is not blocked by clause 10.3 of the Agreement. The union submitted that there is a whole argument to be had on this issue but that the Commission can be satisfied that there is a sufficient chance of success. It was contended that the company cannot show the Commission that the union’s case is hopeless as it has particularly good chances, at least in terms of the process issue. 97

Balance of convenience

[18] The Commission was referred to the High Court decision in the Patrick Stevedores v MUA 98 where the majority found that the court has the power to make orders to prevent irremediable prejudice or damage to the employees pending the trial of the action.99 It was submitted, therefore, that the exercise is to balance the harm to the employees and the union with the harm to Patrick.100

[19] In terms of the harm to employees, Mr Bracken’s evidence was referred to where he said that employees had told him that they were applying for transfers when their real first preference was to stay in their jobs at Webb Dock. The relevance of this was stated to be that, at the end, the Commission is being asked to arbitrate on the union’s labour model versus the company’s labour model. If the Commission chooses the union’s labour model, then a number of employees may well be in the situation where they have already elected to go (either via a transfer or redundancy), which would no longer be necessary, if the union wins its case. 101

[20] Therefore, the prejudice to the employees was explained as being forced to make decision on a short timetable in a high pressure environment without knowing the outcome of the arbitration. If the arbitration goes one way and not the other, it may well affect the choices the employees make. Further, it was stated that the applications for voluntary redundancy had come in in dribs and drabs. The union asserted that, if voluntary redundancy really was an option for employees, the company would have had its full quota very early on. Mr Meek’s evidence of receiving nine expressions of interest in the first round and eight later on was highlighted. This was said to be due to the deadline. 102

[21] It was submitted that the Commission should accept that the employees have been in a position where they are making decisions on the assumption that Patrick is going to prevail. However, as that might not be the case, the Commission needed to preserve its jurisdiction and, in doing so, preserve the employees’ freedom of choice. This is because, if the employees knew that the union’s labour model was going to succeed, they might have decided to take their chances and not apply for a transfer. 103

[22] There was said to be a similar problem with the selection process in terms of the selection criteria and who is doing the assessing. Employees who have been given a bad score have to make a decision about what to do with that score. If the process is not stopped, it was argued that employees are in a position of having to say - I have a bad score and therefore I am likely to go. However, it was contended that, if the union is successful about who should do the assessing and the weighting of the criteria, there would have to be new assessments and people might have very different outcomes if assessed by their forepersons. If they have different ratings, the employees may well make different decisions. 104

[23] The union submitted that Mr Meek’s evidence that some employees had raised various concerns with him about the selection process was consistent with their proposition. However, it was argued that employees would not necessarily confide in an HR Manager as people worry about how what they say might be perceived by the company. Employees were said to therefore be unlikely to say to Mr Meek that they want the process stopped until the Commission arbitrates because, if the union succeeds, they might have a chance of keeping their job. It was the union’s view that it is much more likely that Mr Bracken has the whole picture. 105

[24] Further, the union highlighted the evidence that this is an older workforce with employees in their 50’s and 60’s who are unlikely to work again. In a different industry, it was said that this decision may not be so serious as the employees could pick up another job. However, in this case, it is about people’s livelihoods. Therefore, the Commission needed to be very sure/have a high level of satisfaction that if people have put up their hands for voluntary redundancies or transfers, it is because that is really what they want rather than worrying that, if the company gets its labour model up, they will not keep their jobs. 106

[25] On Patrick’s side of the ledger, it was submitted that, if the voluntary redundancies are restrained, it was simply the case that the company is going to have to pay wages for the period of delay. The company has already booked and budgeted for the wages for the notice period. It was said that Patrick has committed to paying that money in return for no work for a period of four or five weeks. The union acknowledged that it would be open to the company to ask employees to work for the four or five weeks. The Commission is required to assess the prejudice to Patrick’s which involves comparing what will happen without the restraint and what will happen with the restraint. It was argued that, without the restraint, the company will pay people four or five weeks in return for no work. 107

[26] If the company is restrained, it was submitted that they can ask the people to work. It was accepted that there may not be full time work for everybody but something was better than nothing. Reference was made to work being available at the different ports eg Westernport. Therefore, the union argued that, for the next four to five weeks, the company might be in a better position because they will have the opportunity to get some work out of people. 108

[27] It was argued by the union that the evidence seemed to be that there is currently not enough work for the full timers. The company is required under the Agreement, to give 21 days’ notice and so the fact that the company has the full timers still there is due to the requirements of the Agreement and not an order from the Commission. 109 However, it was argued that there was no evidence about whether there was sufficient work to keep all the PGE’s full engaged. This would mean less work for the permanents but the company was said to have already committed to paying the permanents, even if there is no work for them.110

[28] In terms of the wages cost to the company, if the arbitration took three weeks, this would result in a cost of $135,000.00 (based on 17 people x $43,322.00 a week), for keeping people on, less any productive work they can do. The union argued that it is not a situation where it is all loss to the company and that there is nothing that can be gained to offset it. This is because, if the voluntaries are restrained, the company will get productive work. 111

[29] The context for the discussion of company losses was described as being that of a large company. Revenue for 2013/14 is projected to be $28M to $30M. A loss of $135,000.00 outweighs the prejudice to the employees when considered in the context of the projected revenue. Because of the closure of Webb Dock, the company’s revenue is expected to be $13.5M. A payment of $135,000.00 was said to not result in a crippling of the company as it would if it is a small business. 112

[30] Finally, it was submitted that there is a risk of very serious outcomes in terms of the employees who have volunteered because they may not have volunteered if the union’s labour model and selection criteria are accepted. 113

[31] Mr Fetter made three final points. The first one was in respect of Mr Bracken’s evidence and it was argued that Mr Bracken had given clear evidence that some people did not know whether to put in for redundancy. Further, Mr Bracken was said to have indicated that not everyone who had applied for voluntary redundancy wants to go. He had explained that six of the 10 were happy to go because of their age. The corollary therefore is that four people were not in that position. It was submitted that there is evidence to justify the union’s position that some employees are concerned because they do not know whether or not to put in for redundancy. 114 In terms of the four people who have expressed concern, the union referred to the gravity of their situation and stated that it has to be weighed very seriously in the balance.115

[32] With respect to the choice the employees face, the union explained that, if people do not put up their hand for voluntary redundancy, they remain in the pool for compulsory redundancy. For full timers, on Patrick’s model, in order to keep their job, they have to be in the top 15 out of 45. This was said to mean that there is a 33% (one in three) chance of keeping their job. On the union’s model, it is the top 25 out of 45 which is a 56% chance of keeping their job. Therefore, unless you are really confident that you are in the top third, then the chances are that you are going to go. However, if the union wins its case, there is a better than even chance of keeping your job. 116

[33] In regard to the PGE’s, on the company’s model, they are going to take 24 out of the 53 which is a 45% chance of keeping your job. On the union’s model, 45 out of 53 will be retained (85%). So, for a PGE, if the union is successful, they have a very good chance of keeping their job despite the redundancies. However, on Patrick’s model, they do not. 117

[34] The third point concerned financials in that, although formally, it is the union’s burden of proof, it was said that it is normally incumbent on the employer to bring forward evidence of their financial position. Although Mr Tobin provided some such evidence, it was argued that the three numbers he gave falls a long way short of the normal evidence brought to justify its prejudicial argument. The company could have been expected to provide evidence of its asset position. As it has not done this, the union submitted that Jones v Dunkel says that the Commission can draw the inference that nothing would have assisted it. It was said to be incumbent on the company to say that it cannot afford $135,000.00 and satisfy the Commission that it has no means of doing that. Therefore, there is an absence of evidence that would be expected to be called in a case like this. As Mr Tobin had not brought with him the normal usual financial information, the Commission needs to be circumspect about any suggestion that the company cannot afford the wages. This is because it is on their power to show the Commission their accounts including their assets. In the alternative, it was submitted that the Commission can take it that the company can afford it. 118

(b) The company

Serious question to be tried?

[35] It was submitted by Ms Millen that there is no serious question to be tried. This is because the issue is the power of the Commission to arbitrate when, under s.739(5) of the Act, the Commission cannot issue a decision which is inconsistent with the Agreement. It was stated that this is due to the Agreement providing Patrick with the absolute discretion to determine its own manning levels (clause 10.3). The Commission may, at the end of the day, agree with the union’s position in that their model is fairer than the company’s model. However, it was argued that the Commission could not make a decision changing the company’s labour model going forward. 119

[36] In effect, the company’s proposition was that the Commission was being asked to restrain something that ultimately cannot be stopped. The union was said to be requesting to conduct an arbitration that has no utility because, ultimately, it is beyond power to change the company’s labour model. It was argued that there is actually no dispute which the Commission can resolve because it necessarily requires the Commission to fetter or abrogate the company’s absolute discretion. 120

Balance of convenience

[37] The company contended that the burden of proof lies with the union and that it has discharged this onus by making very broad brush statements about how the employees feel - in the absence of any evidence. It was indicated that, at best, Mr Bracken’s evidence suggests that some employees may have been anxious about the ratings and selection criteria. However, there was no detail provided about how many or what specifically they said. 121

[38] Mr Bracken’s evidence was contrasted with that of Mr Meek who said that the majority of employees who have put their hand up for voluntary redundancy or transfer want to get it over and done with and to exit the business. The overwhelming evidence, therefore, is that employees who have volunteered for a redundancy or transfer want to be able to proceed with that decision. To restrain the company and employees from doing that was said to be at odds with the balance of convenience test. 122

[39] It was argued by the company that, as it is the union’s case, direct evidence needed to be provided in support of the union’s contentions. The evidence before the Commission was said to be of a very lengthy expressions of interest process rather than the suggestion that there is a level of anxiousness tied up in the arbitration. The company submitted that the Commission must accept that the balance of convenience favours non restraint because it supports the position of the vast majority of employees who have elected a redundancy or a transfer. 123

[40] At its highest, the company argued that the best that the restraint does is to provide some level of comfort for a very small group of employees. These employees were said to have had the opportunity to opt out at any point in time and that they were asked to confirm their initial expression of interest. As late as the last couple of days, no employee has told the company that they want to opt out. The suggestion that employees are anxious and therefore better off electing now rather than later was said to make no sense. 124

[41] The other issues raised by the union were described as other work and the notice period issue. In terms of the other work contention by the union, the company argued that, at its highest, it was the proposition that the employees can be farmed off to various other ports which means they will be usefully occupied. Mr Tobin’s evidence was recalled to be that the transfers are voluntary on a day to day basis. He was also recalled to have said that the number of transfer opportunities has been set on the basis of anticipated future work at the other ports. The union’s argument that these employees could be allocated to work at other ports was said to not be evidence that there is actually work available there. Again, it was contended by the company that there is no direct evidence of the available work or that the employees will be gainfully employed. 125

[42] In terms of the notice period issue raised by the union, it was explained that Mr Tobin gave clear evidence that, if these employees are given work, it would take work away from the other employees. 126

[43] Further, the company argued that, if the orders are made, it is restrained from giving effect to the redundancies which means the termination notices cannot be issued. The company would be unable to give the notices until the restraint is lifted. It was said to be clear that, if the company is restrained, the employees concerned will be paid an additional amount which neither the employees or the company had signed up to. If there is a restraint that gives the employees an additional week’s pay, this cannot be offset by the company. 127

[44] With respect to the projected business revenue of $13.5M, it was submitted that this was 60 - 65% lower than previous years. As a percentage of $13.5M, it was argued that a loss of $500,000.00 a month is quite a significant percentage. As revenue of $13.5M is just over $1M a month, a loss of $500,000.00 equates to half (50%) of that revenue a month. This was said to be the cost of the restraint and was described as substantial rather than small or inconsequential. 128

[45] It was argued that the union has not been able to establish or substantiate justification for the order beyond hypotheticals and assertions. Further, there was said to be no evidence that employees are being forced to make decisions in high pressure environments. Rather, Mr Meek’s evidence demonstrated a very long process of consultation and opportunity for employees to volunteer for redundancy or a transfer. 129

[46] Finally, the company submitted that, if the union’s case is doomed to fail, as it is, this feeds into the balance of convenience. 130

3. CONSIDERATIONS AND CONCLUSIONS

[47] It is well established that, in determining applications for interim orders, the Commission applies principles similar to those applied by courts in applications for interlocutory relief. These principles involve the exercise of a discretion after consideration of two matters - is there a serious issue to be tried? and does the balance of convenience favour the making of the order. These were the matters which the parties also viewed as requiring consideration by the Commission in deciding whether to exercise a discretion and issue the orders sought.

[48] As the Commission had found that it has the power to issue interim orders to preserve its jurisdiction, the matter to be determined, therefore, is whether the Commission should exercise its discretion. This necessitates reaching conclusions about whether there is a serious issue to be tried and does the balance of convenience favour making the order?

Serious question to be tried?

[49] It was submitted by the union that its case has a reasonable or sufficient chance that it will succeed and that, as long as the Commission views the union as 10% right, the union was over the first hurdle. This was on the basis that the Commission can decide a labour model because clause 10.3 is blocked by clause 15.5 of the Agreement. It was argued that, if clause 15.5 did not exist, the union would have a big problem as clause 10.3 seems to say that the company will have absolute discretion in the matter. However, it was asserted that the parties did not include clause 15.5 for nothing and that it deliberately gives the Commission power to arbitrate a dispute that arises from a disagreement. Clause 10.3 was said to give way to clause 15.5, in the special case of a dispute over significant change in the workplace, rather than a dispute about the day to day running of the company’s operations. Further, the union submitted that, if clause 15.5 is not read in this way, access to arbitration under the Agreement is a completely futile exercise. This clause was said to mean that the parties had agreed on a substantive role for the Commission where there is a dispute over the substance of major change at work. 131

[50] On the other hand, the company contended that there is no serious question to be tried as the Commission does not have power to make orders changing Patrick’s labour model. This is because clause 10.3 gives the company absolute discretion to determine the labour model and s.739(5) of the Act prevents the Commission from making an order which is inconsistent with the Agreement ie. clause 10.3. 132

[51] If there is no utility in the Commission arbitrating then there is no point in the Commission doing so. 133 In addition, the company contended that there is actually no dispute which the Commission can resolve because it necessarily requires the Commission to fetter the company’s absolute discretion to determine the size and composition of its workforce.

[52] It was further submitted that clause 15.5 is a more general provision that encapsulates a wide variety of potential issues, compared with clause 10.3. The latter clause was said to deal with the very specific issue of manning levels and the absolute discretion of the company - which prevails over the more general clause 15.5. 134 The role of clause 15.5 was described as simply giving access to the dispute settlement procedure which leads to a consideration of the Commission’s powers in that context and to section 739(5) of the Act. Add in the decision in CEPU v Thiess Pty Ltd135(Thiess) and the outcome is that, even if the Commission finds that it can arbitrate, it serves no utility.136

[53] I have considered the submissions of the parties carefully and I have formed the view that there is a serious question to be tried. This question is whether clause 15.5 of the Agreement fetters the absolute discretion given to the company in respect of the size and composition of the workforce by clause 10.3. In expressing this view, I have been persuaded that the union has an arguable case in that, it is not devoid of merit.

Balance of convenience

[54] It was argued by the union that the harm to the employees outweighs the harm to Patrick if the interim orders are not made. This was on the basis of the employees having to make decisions about their future without knowing the outcome of the arbitration. If the company’s labour model prevails, employees would have a smaller chance of being retained than if the union succeeds in terms of its labour model. Therefore, employees were having to make serious decisions about whether to volunteer for redundancy or transfer without the knowledge as to their precise chances of keeping their jobs, if they do not opt for redundancy or transfer. The prejudice to the employees was said to be that they are being forced to make decisions when they do not know the outcome of the arbitration. Mr Bracken’s evidence was highlighted in support of these contentions together with the submission that there are four employees who do not know whether to put in for redundancy. The gravity of the situation for these employees must be taken into account by the Commission.

[55] A similar situation was said to apply regarding the selection criteria for redundancy and who was doing the assessment. If the union is successful in its arguments, employees’ ratings may well be different following new assessments, leading to possibly different decisions.

[56] In addition, it was argued that the notice payments for the employees is a sunk cost, regardless of when it is paid. It was estimated that the cost to the company of being restrained was $135,000.00. This was said to be an insignificant amount in the context of the company’s projected revenue. Further, the union submitted that work is available at the other ports so that, if the company is restrained, it can utilize the unexpected additional labour to undertake work elsewhere, as well as at Webb Dock.

[57] For its part, the company refuted the union’s contentions regarding employees being anxious and concerned and not wanting to leave. This was even though they had expressed an interest in doing so which had been subsequently confirmed by the company. This was on the basis of the union having made broad brush statements without any direct evidence. It was stated that employees were able to opt out of a redundancy or transfer at any time. Mr Meek’s evidence was highlighted in this regard. It was stated that the overwhelming number of employees who have volunteered for redundancy or transfer simply want to do just that - proceed with the decision they have already made and exit the business. To restrain the company and the employees from doing this was described as being at odds with the balance of convenience issue. It was argued that the balance of convenience favours non restraint as it supports the position of the vast majority of employees who have elected to transfer or accept voluntary redundancies and also the position of the company.

[58] With respect to the union’s contention that, if the company is restrained, they could utilize the employees at other ports, it was contended that this was not possible as employees have to volunteer for daily transfers. The company, under the Agreement, is unable to simply allocate employees to work at other ports. In addition, the company stated that, in any event, there was not enough work available to fully utilize these employees. As well, it was indicated that, if work was allocated to these employees, it would be work that would otherwise have gone to the remaining employees. It was stated that this could cause issues for PGE’s in terms of their guarantees.

[59] In terms of the argument that the notice period payments were sunk funds as these amounts would need to be paid, regardless of when, the company agreed that the notice payments were committed funds. However, it was contended that the bigger issue was the additional wages cost to having to employ and pay these employees together with a continuing loss of revenue of $500,000.00 per month.

[60] Taking all of this into account, I have formed the view that the balance of convenience favours the company. This view results from a balancing of the union’s contentions with those of the company.

[61] It is acknowledged that a small number of employees who volunteered for redundancy are not happy to go. It is also acknowledged that, for all of the employees, these are difficult life decisions. The difficulty has been increased by the necessity to make decisions about whether to apply for a redundancy or transfer when the outcomes of the arbitration are not known. This is because, if the union is successful, it is possible that some of the employees who wanted to stay but who opted for redundancy or transfer rather than take the risk, may not have needed to do that. This is due to the union’s labour model retaining higher numbers of permanent employees than the company’s model. It is further acknowledged that it is an older workforce and that, for some employees taking a redundancy, realistically, this means the end of their working life. On the other hand, it is accepted that the majority of employees, having made the decision to accept a voluntary redundancy or a transfer, now want to go. The evidence was that lockers had been cleared out with the expectation that they will be leaving the company on 11 April 2014 and, therefore, not be working there the following week. It should also be remembered that the employees concerned have volunteered to go. Their initial expression of interest in doing this was confirmed by the company and these employees have had the option to change their minds throughout the process. It is also accepted that the majority of the employees concerned are happy with their decision to go.

[62] In terms of the availability of work for these employees if the company is restrained, I accept the company’s assessment that there is insufficient work to fully utilize these employees and that, if work is allocated to them, it will reduce the amount of work available for the remaining employees. This could potentially lead to a negative financial impact on PGE’s in terms of not meeting their guarantee. It is clear that there will be some work available at Westernport (windmills) and additional work at Geelong. However, Mr Tobin’s evidence is accepted where he acknowledged that there is some work but said that it would be insufficient to fully utilize these employees if they were not allowed to exit Webb Dock on 11 April 2014.

[63] It is accepted that the notice payments are a sunk cost for the company regardless of when they are paid. Therefore, in that sense, it makes little difference to the company as to when the employees concerned transfer or are made voluntarily redundant. It was acknowledged by the union that, if the company is restrained, there will be the additional cost of wages for the period until the end of the arbitration. This was estimated by the union to be about $135,000.000. It was said that this amount was small in the context of a big company with projected revenue of $13.5M. If this was the only cost of restraining the company, the Commission may have a different view. However, it is accepted that the company is currently losing $500,000.00 a month of revenue and it would appear that the further wages cost, if the company is restrained, is in addition to the $500,000.00 a month revenue loss. It also seems that a restraint on the company will continue this level of loss. Further, the context in which this loss is occurring needs to also be taken into account. The projected revenue for 2014/15 was said to be $13.5M or about $1M a month. A revenue loss of $500,000.00 a month is about half of the projected income per month.

[64] Therefore, it is my view that the balance of convenience favours the company.

[65] Finally, balancing the view that there is a serious question to be tried with the balance of convenience favouring the company, on very fine balance, I find that the latter outweighs the former. There is a serious question to be tried as it is not possible to say that the union has a hopeless case. Rather, I am satisfied that the union has a reasonable and sufficient chance of success. On the other hand, the balance of convenience favours the company in respect of there being more harm or prejudice to the majority of the employees who are happy to exit the business and also to the company. By a very slim margin, in terms of weighing up the serious question to be tried with the greater prejudice to the company, I find that the greater human and financial prejudice resulting from a decision to restrain the company, outweighs the serious question to be tried.

[66] Accordingly, I decline to exercise my discretion to issue the interim orders sought by the union.

Appearances:

Mr J Fetter, of counsel for the MUA

Ms S Millen, of Herbert Smith Freehills for the respondent

Hearing details:

2014.

Melbourne:

10 April.

1 [2014] FWC 2962

2 Transcript PN 1466 - 1467

3 Ibid PN 432

4 [2014] FWC 2962

5 Ibid at [77] - [80]

6 Transcript PN 350 - 428

7 Extract from “Applicant’s Proposed Orders” attached to an email from Maurice Blackburn dated 2 April 2014

8 Transcript PN 461

9 Ibid PN 462 and 561 - 564

10 Ibid PN 491

11 Ibid PN 492

12 Ibid PN 492

13 Ibid PN 463 - 467

14 Ibid PN 609

15 Ibid PN 604 - 606

16 Ibid PN 466

17 Ibid PN 498 - 501 and 610

18 Ibid PN 501 - 502

19 Ibid PN 611 - 624

20 Exhibit A3

21 Transcript PN 522

22 Ibid PN 466

23 Ibid PN 470

24 Ibid PN 624 - 626

25 Ibid PN 627 - 631 and 637 - 638

26 Ibid PN 524 - 525

27 Ibid PN 526

28 Ibid

29 Ibid PN 529, 535 and 650

30 Ibid PN 653 - 656

31 Ibid PN 536 - 537

32 Ibid PN 538

33 Ibid PN 539

34 Ibid PN 542 - 543

35 Ibid PN 544

36 Ibid

37 Ibid PN 545 and 559

38 Ibid PN 540 - 541, 658 - 661 and 679 - 694

39 Ibid PN 634

40 Ibid PN 558

41 Ibid PN 664 - 667

42 Ibid PN 695 - 700

43 Ibid PN 644 - 649

44 Ibid PN 730 - 731

45 Ibid PN 732 - 736

46 Ibid PN 852 - 856

47 Ibid PN 739 - 745 and 842

48 Ibid PN 843 - 848

49 Ibid PN 850 - 851

50 Ibid PN 1020 - 1022

51 Ibid PN 862 - 864

52 Ibid PN 746

53 Ibid PN 747

54 Ibid PN 749 - 752

55 Ibid PN 753

56 Ibid PN 944 - 953

57 Ibid PN 755

58 Ibid PN 756 - 759

59 Ibid PN 760

60 Ibid PN 762 - 764 and 857 - 860

61 Ibid PN 765 - 771

62 Ibid PN 772 and 977

63 Ibid PN 982 - 1008

64 Ibid PN 774 - 779

65 Ibid PN 780

66 Ibid PN 813 - 826

67 Ibid PN 837 - 841

68 Ibid PN 870 - 880

69 Ibid PN 1023 - 1026

70 Ibid PN 878

71 Ibid PN 885

72 Ibid PN 881

73 Ibid PN 882 - 888

74 Ibid PN 896 - 917

75 Ibid PN 923 - 930

76 Ibid PN 959 - 967

77 Ibid PN 968 - 975

78 Ibid PN 1010 - 1018

79 Ibid PN 1053 - 1068

80 Ibid PN 1069 - 1092

81 Ibid PN 1099 - 1103

82 Ibid PN 1104 - 1105

83 Ibid PN 1136

84 Ibid PN 1130 - 1133

85 Ibid PN 1035 - 1040

86 Ibid PN 1041 - 1043

87 Ibid PN 1044 - 1049

88 Ibid PN 1050 - 1051

89 Ibid PN 1052

90 Ibid PN 1137 - 1146

91 Ibid PN 1147 - 1148 and 1165 - 1168

92 Ibid PN 1159 - 1163

93 Ibid PN 1174 and 1184 - 1186

94 Ibid PN 580 and 1190

95 Ibid PN 1191

96 Ibid PN 1191 - 1192

97 Ibid PN 1192 - 1192

98 (1988) 195 CLR 1

99 Ibid at 38

100 Transcript PN 1198

101 Ibid PN 1199

102 Ibid PN 1200 - 1201

103 Ibid PN 1201

104 Ibid PN 1201 - 1202

105 Ibid PN 1203 - 1204

106 Ibid PN 1205

107 Ibid PN 1206 - 1211

108 Ibid PN 1211

109 Ibid PN 1221

110 Ibid PN 1213 - 1237

111 Ibid PN 1257 - 1281

112 Ibid PN 1295

113 Ibid PN 1298

114 Ibid PN 1335 - 1350

115 Ibid PN 1350 - 1352

116 Ibid PN 1352 - 1353

117 Ibid PN 1353

118 Ibid PN 1359 - 1366

119 Ibid PN 1311 - 1312

120 Ibid PN 1313

121 Ibid PN 1313 - 1314

122 Ibid PN 1315

123 Ibid PN 1316

124 Ibid PN 1317

125 Ibid PN 1318 - 1319

126 Ibid PN 1319

127 Ibid PN 1320 - 1329

128 Ibid PN 1331

129 Ibid PN 1332 - 1333

130 Ibid PN 1333

131 Ibid PN1400 - 1407

132 Ibid PN 1311 - 1312 and Outline of Submissions on the Commission’s Powers Exercisable under the Dispute Settlement Procedure, dated 9 April 2014, at paragraph 16

133 Ibid PN 1419 - 1427

134 Ibid PN 1428

135 212 IR 327

136 Transcript PN 1445

Printed by authority of the Commonwealth Government Printer

[2014] FWC 3349

27 MAY 2014