Martin Paul Rudd v Titan Recruitment Pty Ltd
[2023] FWC 2218
•4 SEPTEMBER 2023
| [2023] FWC 2218 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Martin Paul Rudd
v
Titan Recruitment Pty Ltd
(C2023/4536)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 4 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal
Issues and outcome
On 26 July 2023, Mr Martin Paul Rudd (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Titan Recruitment Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act. Prior to the hearing, directions were issued to the parties concerning the application having been made out of time in addition to there being a dispute about the date of the Applicant’s dismissal.
The Respondent initially challenged the application on several additional grounds. First, the Applicant had not been dismissed and even if he had been dismissed, the date of dismissal was 9 June 2023, rendering his application well beyond the statutory period for making the application (26 days late). Second, the Applicant was precluded from bringing the application on the basis that he had commenced an unfair dismissal application, and third, the Applicant had not identified any relevant workplace right nor the relationship between any such right and the alleged dismissal.
Prior to hearing, the Respondent withdrew its jurisdictional objection that the Applicant had not been dismissed, submitting that it dismissed the Applicant on either 22 June 2023 or 28 June 2023. The Respondent identified that irrespective of which of the preceding dates were correct, the application under s 365 had been made out of time if one of the dates for dismissal was correct (13 days or 7 days outside of the statutory period, respectively). The Respondent also withdrew its objection under s 725 of the Act albeit it continued to press that the application did not disclose a relevant workplace right nor the relationship between any such right and the alleged dismissal.
It is further observed that when the Applicant initially made his application under s 365 of the Act, he did so against both the Respondent and Calibre Group Pty Ltd (Calibre), identifying the Respondent as ‘the agency’ and Calibre as the ‘host’. It is uncontroversial that the Applicant had worked on assignment (on-hire) to Calibre through the Respondent. Following a conference on 16 August 2023, the Applicant decided to discontinue his application under s 365 against Calibre.
I have found that the Applicant was dismissed on 28 June 2023. Whilst the Applicant’s application was made seven days outside of the statutory period, having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[3]
Background
The broader context and events leading to the conclusion of the employment were as follows.
The Applicant details having commenced work with the Respondent in or around April 2022 as a draftsperson and having been informed by the Respondent on 22 June 2023 that he had been dismissed from Calibre.
The parties to the Applicant’s employment contract were the Respondent and the Applicant. The employment contract was described at clause 1 of the contract as a ‘Casual Employment Agreement’, and set out at clause 2.1 that the Applicant was engaged on a ‘casual basis’, with clause 2.1(a)-(e) describing the factors which led to the basis being ‘casual’. At clause 3.2 of the employment contract, the parties agreed:
The employment relationship is and remains only between the Employee and Titan. No employment relationship exists or shall be created between the Employee and any Client to whom the Employee may be assigned to perform work.
The employment contract further stipulated, in respect of ‘Assignments’, a term that was defined in clause 2 of the employment contract as meaning, ‘the work to be done under this Agreement, as set out in the Schedule’, the following:
(a)If the Employee is engaged to work on subsequent Assignments, each occasion that the Employee works will be a separate contract of employment which ceases at the end of that Assignment.
(b)Titan may offer the Employee subsequent Assignments which would be set out as a replacement Schedule to this Agreement. In such a case,
(i)the replacement Schedule will supersede the former Schedule;
(ii)the Employee will be deemed to have agreed to the terms and conditions set out in the new Schedule by accepting an Assignment after having been given a copy of the new Schedule; and
(iii)the terms of this Agreement, other than the former Schedule, shall apply to work done on that subsequent Assignment, although the Assignment set out in the new Schedule will represent a separate and distinct engagement.
The Schedule to the employment contract provided that it was a ‘replacement’ schedule and set out the following:
Assignment Position Title Mechanical Designer
Client / Host Organisation Calibre Professional Services One Pty Ltd
Assignment Start Date Saturday, 28 January 2023
First Day Instructions N/A
Assignment End Date Saturday, 27 January 2024The Assignment end date is only Titan’s estimate, based on the Client’s currently advised timeframe for the Assignment. This is not a commitment that the Employee will be engaged for this duration nor does it represent any agreement or understanding that the Employment is for a fixed term or anything other than casual employment.
Place of Work Location: (Rio) Wesley Centre, 93 - 95 William Street, Perth WA 6000 Australia
Project: WTS2
Reporting to Mark BriggsRate of Pay$82.29 per Hour less the amount required to be paid as superannuation under the applicable legislation.
Applicable Modern Award Professional Employees Award 2010
Notice period 1 Workday
Allowances N/ASpecial Conditions Contractors to give permission for all still and moving images taken, or recorded by or on behalf of the Company, to be used in any or all promotional and advertising materials of the company
In respect to the working relationship with Calibre, a summary of the Applicant’s evidence is as follows:
a) at the commencement of the Applicant’s work with Calibre, Calibre did not provide adequate equipment, training, engineering, and supervisory support for him to perform his job;[4]
b) Calibre’s purported shortcomings included:
i.not providing a desk for the Applicant on his commencement at the workplace;
ii.not having provided the Applicant with a ‘CAD’ computer, software, dock and monitors;
iii.the provision of software that did not work properly; and
iv.inadequate training on the ‘Open Buildings” software package;
c) after six weeks of incredible stress working within an environment in which he was having to make up for Calibre’s shortcomings, he asked for assistance and was subsequently ‘sacked’ by Calibre; and
d) Calibre provided an ineffectual trainer.
The Respondent clarified that it employed the Applicant on an on-hire basis and placed him with Calibre.[5] However, the Applicant’s employment ended after Calibre refused the Applicant’s services, and the Respondent was unable to find him alternative work.[6]
The Applicant provided the following evidence regarding the end of his assignment with Calibre:
a) the last day the Applicant booked time at Calibre was 2 June 2023, but he had worked unpaid for the company up until 9 June 2023;
b) during the week of 2–9 June 2023, the Applicant was in discussions with Alec Lynas to try and resolve ‘the situation’;
c) on 9 June 2023, the Applicant said he held his final discussion with Alec Lynas, in which Alec Lynas advised the Applicant that he agreed with all the issues the Applicant had raised, he would try to find him work elsewhere in the company, but given purchase orders had not come in for other work, if the Applicant were to secure other work, he should take it;
d) the Applicant said he took Alec Lynas’ word and sat at home for two weeks awaiting his next assignment; and
e) according to the Applicant, some two weeks later the Respondent called him to ascertain what was going on as it had received a letter from Calibre dated 21 June 2023 setting out that the Applicant had been dismissed on 2 June 2023.
The Applicant submitted that regarding a date for his dismissal, he picked 9 June 2023 because that was when he had his final discussion with Alec Lynas.[7]
The Respondent clarified that Alec Lynas was not its employee but an employee of Calibre.
According to the Respondent, the Applicant’s dismissal was communicated to him on either 22 June 2023 or 28 June 2023:
a) on 22 June 2023, a staff member of the Respondent called the Applicant and advised him that his placement with Calibre had ended; and
b) on 28 June 2023, the Respondent sent an email to the Applicant attaching a copy of Calibre’s written notice that Calibre would no longer accept the Applicant’s services.
In response to the Respondent’s email, the Applicant emailed the Respondent on 28 June 2023, and replied:
…
now that I know I have been dismissed
its time to put the feelers out for gainful employment
what it the employment situation for SMP designers in Perth at the moment?
I will call you a little later to assess the situation with yourself
…[8]
In his submissions, the Applicant revisited the date of his dismissal from the Respondent, submitting that it was now 10 July 2023, and noting that he had revised his submission to the Commission (presumedly made his application under s 365) on 26 July 2023.
The Applicant stated that the Respondent was unaware that he had been dismissed by Calibre until they received the letter from Calibre dated 21 June 2023,[9] which was subsequently forwarded to the Applicant.
According to the Applicant, he had a phone meeting with Mr Daniel Rayner and Mr Paul Quinlivan, General Manager, Corporate Services, of the Respondent on 10 July 2023,
after the Respondent had learned he had filed a claim (presumedly the unfair dismissal application) against Calibre.[10] The Applicant stated that he informed the pair that his gripe was against Calibre and they assured him that it was all good and they were going to keep looking for work for him.[11]
The Commission records show that the Applicant made an unfair dismissal application (U2023/5563) on 21 June 2023 against Calibre only to later discontinue that application on 1 August 2023. The Applicant explained that he made his unfair dismissal application believing it was the correct claim form, and that it may still be the correct form, albeit he is unsure.[12]
It was the Applicant’s evidence that he obtained legal advice from Michael Law Group on 24 July 2023, and acting upon that advice, decided that a general protections application was more applicable to his circumstances. The Applicant stated that when tackling an industrial dispute he had no idea what he was getting himself into and to start with, he filed the best application that he could. The Applicant further noted that with regard to the period between 24 July 2023 (from when he received the legal advice) to the filing of his application, it took him a long time to write his application and his preference was not to file the application via the online portal, but to email it to the Commission.
The Applicant noted that having read the Commission’s web page regarding ‘General Protections’, he believed that his claim for unfair dismissal should be filed under the ‘General Protections’, because such ‘Protections’ extend to employees of recruitment agencies and labour hire companies. The Applicant further noted that whilst the Commission website provide information that ‘only the agency can dismiss you’, he held the view that Calibre had unfairly dismissed him and maintained that position throughout the hearing.
Consideration
3.1 Dismissal date
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent contends that the Applicant’s dismissal took effect on either 22 June 2023 or 28 June 2023.
For his part, the Applicant initially stated that it was 9 June 2023, but at a later point in his written submissions, changes his position and states it was 10 July 2023. It appears that the Applicant’s concluding view was that his dismissal from the Respondent took effect on 10 July 2023.
In Ayub v NSW Trains (Ayub), the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[13] The Full Bench explained at paragraph [42] of Ayub:
We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
It is uncontroversial that the Applicant’s last day of paid work at Calibre was on 2 June 2023. Further, it was the Applicant’s initial position that his assignment with Calibre had come to an end on 9 June 2023, given that was his last discussion with Alec Lynas. The Respondent correctly pointed out that Alec Lynas was not its employee and therefore was not positioned to notify the Applicant that he had been ‘dismissed’ as that term is properly understood in the context of s 386 of the Act.
It also evident from the terms of the Applicant’s employment contract that the conclusion of an ‘assignment’ brings with it the end of the employment contract. In this respect I refer to paragraph [9] of this decision. Further, the employment contract at clause 2.1 sets out that the Applicant was engaged on a casual basis, and clause 3.3(b)(ii) of the employment contract clarifies the following:
…the terms of this Agreement, other than the former Schedule, shall apply to work done on that subsequent Assignment, although the Assignment set out in the new Schedule will represent a separate and distinct engagement.[14]
By 22 June 2023, it had been communicated to the Applicant by the Respondent that his placement with Calibre had ended and by 28 June 2023, the Respondent had sent an email to the Applicant attaching a copy of Calibre’s written notice that Calibre would no longer accept the Applicant’s services. By that stage, that is as of 28 June 2023, the Respondent had not been forthcoming with any further ‘Assignment’. The Applicant’s own direct evidence shows that as of 28 June 2023, he had sent written acknowledgement to the Respondent that his assignment with Calibre had ended, and he was evidently aware that he had not yet been placed on a further assignment.
As of 28 June 2023, the Applicant, if he did not know, was nevertheless in the position of having had a reasonable opportunity to find out that he had been dismissed. The communication from the Respondent, which was unequivocable in its terms, was that the Applicant no longer had an ‘Assignment’ with Calibre. The Applicant’s employment contract is equally unequivocal, particularly at clause 3, which sets out the Applicant’s type of employment and the consequent of an ‘Assignment’ ending. There was no suggestion from either party that the employment contract was invalid or did not evince the objective intent of the parties. Whilst the Applicant spoke of Mr Quinlivan and Mr Rayner representing on 10 July 2023 that they were going to keep looking for work for him, such representation does not in turn mean that he remained an employee of the Respondent up until that time. Further, whilst the Applicant appears to claim that he never read his employment contract, the consideration is whether he had a reasonable opportunity to find out he had been dismissed. Having considered all the evidence, I find that as of 28 June 2023 he did, and as such the Applicant’s dismissal took effect on that date.
3.2 Extension of time
Having found that the Applicant’s dismissal took effect on 28 June 2023, his application was made seven days late. As observed, the Act requires the application to have been made within 21 days of the dismissal taking effect and s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. It has been said that proceedings not commenced in time should not be entertained.[15] However, the Commission may extend the period under s 366(1) if satisfied that there are exceptional circumstances that warrant doing so under s 366(2). This latter sub-section provides that the Commission is to take into account the following factors when determining whether there are exceptional circumstances:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[16] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[17] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[18] It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[19]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[20]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make further submissions in relation to the question of whether there were exceptional circumstances.
3.3 Reason for the delay
In Pottenger v Department of Caffeine,[21] it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[22] or a reasonable explanation.[23]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[24] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[25]
The Applicant attributes the delay in making the application on several factors.
First, the Applicant explained that during the period of 9 June 2023 and 21 June 2023, he was awaiting indication from Calibre as to a further engagement or assignment.
Second, the Applicant observes that he made his unfair dismissal application within the statutory period for such applications, notwithstanding that the application was brought against Calibre, whom he considered had dismissed him. In such circumstances, the Applicant presses for the Commission to observe continuity between the making of the unfair dismissal application against Calibre in matter number U2023/5563 on 21 June 2023, and the current application – such that the application was not made late. There are evident difficulties with this contention, the least of which is that the Applicant’s revised date of dismissal, that is 10 July 2023, is some three weeks after the unfair dismissal application was made.
Third, the Applicant went to some length to describe the challenges or difficulties he faced in making an application to the Commission that was relevant to his particular circumstances. The Applicant emphasised that at all material times it was unclear to him who his employer was. I have great difficulty with this argument given the express terms of the Applicant’s employment contract, in addition to the contract extensions and the ‘Schedules’, all of which were tendered into evidence by the Applicant (see pages 34–57 of the Digital Hearing Book). I expand upon this point further below.
The Respondent submitted that Lane v Kangaroo Island Dive & Adventures Pty Ltd[26] (Lane) is authority for allowing an extension of time when a claim is made under a wrong provision of the Act, for example, where an applicant mistakenly lodges an unfair dismissal claim instead of a general protections claim. I have considered the case of Lane and observe that the facts in Lane are distinguishable to those before me. In Lane, an application was brought under s 773 of the Act albeit the provision was not available to the applicant in the circumstances who subsequently brought an application under s 365 of the Act. Both applications were against the same employing entity, and the initial application was premised upon the receipt of advice from a community legal centre. The Senior Deputy President concluded that the initial application was made in error on the basis that the respondent employer was a national system employer rendering s 773 unavailable.
Regarding the matter before me now, on any objective level, it is abundantly clear that the Respondent was the Applicant’s employer. Whilst the Applicant purports that he never read his employment contract, he nevertheless, as observed, filed an ‘Assignment Extension’ of 28 October 2022 between the Respondent and him, another dated 29 November 2022 between the Respondent and him, in addition to several ‘Schedules’ that set out that Calibre was the ‘Client/Host Organisation’. Whilst I have considered the potential confusion that may have arisen by the Respondent providing to the Applicant the letter that Calibre had issued to it, of 21 June 2023, in which Calibre confirmed the termination of the Applicant’s services with it through the Respondent and noted that the reason for termination was ‘Dismissal’,[27] this does not detract from the aforementioned evidence that supports a finding that at all material times it was known, or ought to have been known, to the Applicant that he was not employed by Calibre and that the Respondent was his employer.
The Applicant sought legal advice on 24 July 2023, subsequently making his application under s 365 on 26 July 2023. Whilst explaining that it takes him time to write, particularly with regard to industrial or legal documents, and his preference was to email the application rather than utilise the Commission’s online portal, it was apparent that the Applicant was not seized with any sense of urgency to submit his application on receipt of the legal advice. Further, the Applicant proffered little by way of explanation as to the delay in obtaining the advice through the Workplace Advice Service.
Based on the evidence before me, the period of the delay commenced from 28 June 2023 and concluded on the filing of the Applicant’s application. In that period, the Applicant has not identified a reason or reasons that provide a plausible explanation for the period of the delay or part of the delay. If it is the case that the Applicant contends that his ignorance of the law, in part, delayed the making of his application, unfortunately such ignorance has not been found to be an exceptional circumstance under the Act in relation to the granting of an extension of time.[28]
On balance, and in the circumstances of this particular case, I find the reasons for the delay are not an acceptable ones. This weighs against a finding of there being exceptional circumstances.
3.4 Action taken to dispute the dismissal
There is no evidence before me to suggest that the Applicant took action to dispute his dismissal by the Respondent. Whilst the Applicant made an unfair dismissal application, he did so against Calibre. It follows that this factor does not weigh towards a finding of there having been exceptional circumstances.
3.5 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.
3.6 Merits of the application
In Telstra-Network Technology Group v Kornicki,[29] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[30]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[31] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
It was somewhat difficult to ascertain whether by its contention that the application did not disclose a relevant workplace right nor the relationship between any such right and the alleged dismissal, whether the Respondent was seeking to have the application dismissed under s 587(1)(c) or the contention was relevant to the merits. Having heard from the Respondent, I consider that the submission was targeted to this particular factor.
The Respondent’s contention is not absent merit. The application made under s 365 is open to be characterised as an unfair dismissal application against Calibre made under the guise of a general protections application. Based on the application filed, and in light of the supporting material relied upon by the Applicant, I am unpersuaded that the Applicant has established that his substantive application is not without merit.
3.7 Fairness as between the applicant and other persons in a similar position
Neither Applicant nor Respondent drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I note however my observations in respect of the case of Lane. I have considered this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There are in this case more factors which weigh against the granting an extension of time than not. Albeit, if I was incorrect regarding my evaluation as to the merits of the application, it is nevertheless the case that I would still find that the circumstances are not ‘exceptional’ given the other factors considered. Further, in light of all the evidence, I am not persuaded that it is fair and equitable to extend the time in which the Applicant could make his application.
DEPUTY PRESIDENT
Appearances:
M Rudd, Applicant
J Theodorsen for the Respondent
Hearing details:
2023.
Perth (by telephone):
31 August.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] PR765791.
[4] Form F8 General protections application involving dismissal, question 2.1 (Form F8).
[5] Respondent’s Outline of Submissions dated 29August 2023, [5].
[6] Ibid.
[7] Applicant’s Outline of Submissions and Statement dated 22 August 2023.
[8] Digital Hearing Book, 79–80 (DHB).
[9] Ibid 62.
[10] Ibid.
[11] Ibid.
[12] Form F8 (n 4) question 1.4.
[13] (2016) 262 IR 60, 79 [48].
[14] Form F8 (n 4) attachment F8-SD6; DHB (n 8) 39.
[15] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20] (Nulty First Instance).
[16] (2011) 203 IR 1, 6 [15].
[17] Ibid 5 [13].
[18] Ibid 5–6 [13].
[19] Nulty First Instance (n 15) [21].
[20] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[21] [2018] FWC 3403.
[22] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[23] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[24] Stogiannidis (n 20) 165 [39].
[25] Ibid.
[26] [2010] FWA 3939.
[27] Form F8 (n 4) attachment F8-SD-11; DHB (n 8) 59.
[28] Uhlhorn v P and J Mentiplay Investments Pty Ltd[2013] FWC 1353, [21].
[29] (1997) 140 IR 1.
[30] Ibid 11.
[31] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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