McMah Pty Ltd T/A Men at Work Labour Hire

[2015] FWCA 253

[2015] FWCA 253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

McMah Pty Ltd T/A Men at Work Labour Hire
(AG2014/7537)

MCMAH PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Miscellaneous
COMMISSIONER BULL	SYDNEY, 12 JANUARY 2015

Application for approval of the McMah Pty Ltd Enterprise Agreement 2014-2018.

First Application

[1] On 25 July 2014, an application was made by McMah Pty Ltd t/a Men at Work Labour Hire (the applicant) for the approval of an enterprise agreement. The application was filed in the Fair Work Commission’s (FWC) Brisbane registry. The applicant is in the labour hire industry and identified a number of similar agreements approved by the Commission.

[2] The Agreement titled the McMah Pty Ltd Enterprise Agreement 2014 - 2018 (the Agreement) had a nominal expiry date of four years from date of operation. The Form F17 Employer’s Statutory Declaration completed by a Mr Neil McIntyre Managing Director of the applicant indicated at question 2.10 that 118 employees would be covered by the Agreement of whom 38 out of 45 employees who cast a valid vote, voted to approve the Agreement. The Applicant at question 4.3 when asked to provide details on the vote states that 119 casual employees were involved in the vote. The Agreement applied to all of the applicant’s on-hire employees employed in “all of its operations within Australia”. 1

[3] Employees were not represented by any union or employee bargaining representatives.

[4] On 28 August 2013, the Commission conducted a telephone conference with the Applicant and their representative for the Commission to understand how the Agreement could satisfy the various statutory approval requirements. At the end of the telephone conference the applicant agreed to further clarify some unresolved issues. On 1 September 2014, further information was received together with a notice of discontinuance.

Second Application

[5] On 16 September 2014, a second application, the subject of this approval application was filed in the Brisbane registry. The Agreement did not appear in substance to be any different from that previously filed and withdrawn, including some previously identified typographical errors. 2 On this occasion the applicant states that 85 employees will be covered by the Agreement, with 43 employees voting on the Agreement and 38 voting in favour of the Agreement. At question 4.3 of the employer’s statutory declaration it is stated by Mr McIntyre that 87 casual employees were involved in the vote.

[6] A telephone conference was conducted by the Commission on 7 October 2014 with the Applicant and their representative and upon conclusion the Applicant undertook to provide the Commission with additional information which was provided. On December 10 2014, a further telephone conference was held 3 with the applicant’s representative, the applicant was unable to participate.

[7] The Agreement is unorthodox in a number of ways. The Agreement does not contain any specified classifications or wage rates but rather refers to other industrial instruments. This is demonstrated at clause 5 - Scope and Intent which states:

“a. This Agreement incorporates all relevant Modern Awards 4 (and any other prior relevant Award) that would otherwise apply to Employees “Relevant Award”. The Relevant Award (and any other prior RRelevant (sic) Award) is to be read and applied in conjunction with the terms and conditions in this Agreement. To the extent that there is any inconsistency, the Agreement shall prevail.

b. In the event that no relevant Modern Award (or any other prior Relevant Award) exists to cover a particular assignment, the terms and conditions of employment will be governed by this Agreement, together with the relevant legislation (inclusive of the National Employment Standards) that would otherwise apply.

c. The rates of pay, terms and conditions in this Agreement represent the minimum that will be paid to Employees. The Company will assess the market conditions and may pay Employees a higher rate of pay or altered terms 5, in accordance with clause 16 b.,where it is able to negotiate this with the client. Given the nature of on-hire work, any increases above the minimum wages may vary from assignment and will be entirely at the discretion of the Company.”

(My underline)

[8] Under the heading Additional Claims at clause 8, employees are proscribed during the term of the Agreement from pursuing any further claims about any matter which pertains to the employment relationship.

[9] It is apparent that employees engaged in making the Agreement 6 could not have included at the time of voting, employees who were otherwise covered by all 122 modern awards of the Commission, despite the Agreement incorporating all modern awards.

[10] Section 186 of the Fair Work Act 2009 (the Act) provides when the Commission must approve an enterprise agreement. The relevant parts of s.186 are in the following terms:

“When FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

...

(2)(d) the agreement passes the better off overall test.

Requirement that the group of employees covered by the agreement is fairly chosen

(3) FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct...”

[11] The employer’s statutory declaration states that the Agreement does not cover all of the employees of the employer (other than senior executives), but covers all on-hire employees who perform work that is operationally distinct from all other areas of the business.

[12] It is self evident that the 85 employees eligible to vote on the Agreement cannot be engaged in each industry of the 122 modern awards covered by the Agreement.

[13] As a stark example of this the Agreement covers employees engaged under the Medical Practitioners Award 2010 which contains the classifications of Senior Specialist and Deputy Director of Medical Services furtherunder the Legal Services Award 2010, is the classification of Law Graduate. The applicant’s written submissions of 10 October 2014 indicate that at the time of voting there were no employees who would have been covered by the Medical Practitioners Award 2010 or the Legal Services Award 2010. The Agreement was voted on by exclusively casual employees in what appears to be predominately blue collar occupations.

[14] Further at clause 15 - Disputes at Work, it provides that where a matter is referred to a third party (which includes the FWC) for arbitration, any settlement decision must be consistent with the Building and Construction Industry Code. Although not a statutory barrier in the Agreement approval process it is unclear why reference to the Building and Construction Industry Code would be required for a dispute concerning medical practitioners or any employee covered by the 122 modern awards not employed in the building and construction industry. This was never satisfactorily explained at the telephone conferences.

[15] Having employees vote on an Agreement covering classifications they themselves are not employed in does not, on the relevant authorities, result in a failure of the requirement under s.186(3) of the Act for the employees covered by the Agreement to be “fairly chosen”.

[16] In the 2012 Full Bench decision of Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others 7 it was held:

“[38] ... an agreement can only be made by a vote of the employees who will be covered by it. A ‘much more represented group of existing employees’ cannot vote to make a geographically distinct agreement unless at the time of the vote they will be covered by that agreement.”

[17] In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union 8 Siopis J of the Federal Court stated:

“[34] In my view, there is nothing in the language of s 186(3) and s 186(3A) of the Fair Work Act which conditions the exercise by Fair Work Australia of the power under s 186(3) to approve an agreement, upon Fair Work Australia being satisfied as to the number of employees who will, or may, during the term of the agreement, be covered by the agreement.

[37] Further, in my view, the words “was fairly chosen” in s 186(3) are not to be construed as “was chosen in a manner which would not undermine collective bargaining”. ...

[40] Plainly, the Full Bench was of the view that there was something wrong with three employees being able to make an agreement which covered work classifications other than their own. However, if there is a lacuna in the Fair Work Act, on which I express no view, then the remedy would appear to lie in legislative amendment.”

[18] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch v Main People Pty Ltd 9 the Full Bench stated:

“[17] FWC must be satisfied that group covered by the agreement was fairly chosen. In determining that matter in a situation where not all employees of the employer are covered by the agreement, FWC must take into account whether the group is geographically, operationally or organisationally distinct.

[18]It is in the nature of the scheme established by the FW Act that (a majority of) the employees employed at the time an enterprise agreement is made can agree to terms and conditions of employment that will then bind future employees employed under the terms of that agreement. Nor is there anything in the FW Act to prevent employees voting to approve an agreement that will affect employees in classifications or geographic locations other than their own (unless a relevant scope order has been made).”

[19] The Applicant pointed to a number of enterprise agreements approved by the Commission in circumstances where a limited group of employees had voted on agreements with wide ranging coverage outside the industries and occupations of those involved in the voting process. 10

[20] On the above authorities there is no reason to conclude that the group of employees covered by the Agreement was not fairly chosen on the basis of employees voting for an Agreement which covers classifications (as opposed to industries) they are not engaged in. All employees eligible to vote at the time were provided with the opportunity to do so.

[21] The employees covered by the Agreement are organisationally distinct in that they are the applicant’s on-hire employees.

Genuinely Agreed

[22] Section 186(2) of the Act requires that an enterprise agreement must be “genuinely agreed” to by employees covered by the agreement. (Note 1 in s186(2) states that reference should be made to s.188 for the meaning of “genuinely agreed”).

[23] Section 188 sets out a “non exhaustive” 11 list of the matters for the Commission to consider when determining whether an enterprise agreement has been genuinely agreed to by employees covered by the agreement. Sub section 188(c) refers to there being “no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[24] The Explanatory Memorandum to the Fair Work Bill 2008 (EM) states at Item 824:

“... Note that where an agreement covers a large number of classifications of employees in which no employees are actually engaged there may be a question as to whether the agreement has been genuinely agreed – see clause 188.”

[25] This is a consideration only, it is not decisive and is to be given due weight having regard for all the relevant circumstances.

[26] An enterprise agreement imposes obligations on employers and employees covered by the agreement. 12 An enterprise agreement applies to the employees described in the coverage clause of the agreement, irrespective of whether they voted in the ballot for the agreement, whether they supported the making of the agreement, or whether they were employed at the time the agreement was made.

[27] In response to a Commission query the applicant has advised that employees in 15 industries were involved in the vote for the Agreement, since the vote was taken. Employees in another eight industries have been engaged. The modern award coverage of these “areas” is not specified. What is clear is that the employees voting for the Agreement were employed in industries that do not cover the full spectrum of the 122 modern awards the Agreement incorporates. In my view this in itself is sufficient to provide “reasonable grounds for believing that the agreement has not been genuinely agreed to ...”

[28] None of the decisions mentioned above in relation to “fairly chosen” address or refer to the question of “genuinely agreed” or the context of Item 824 in the EM or traverse situations where whole industries have been covered by an agreement where no employee in any classification of a particular industry was engaged at the time of making the agreement.

[29] In the majority decision of Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission 13 Wilcox and Madgwick JJ stated at 126 of the decision in respect of “genuinely made”:14

“Section 170LT(6) requires that a "valid majority of persons employed at the time whose employment would be subject to the agreement must have genuinely made the agreement". This plainly betokens a concern with the authenticity and, as it were, the moral authority of the agreement. It is perfectly understandable - indeed, one might reasonably think, plainly necessary - this be so. ...

There can hardly be fair agreement-making between employer and employees about wages and employment conditions in a workplace (a mine is a good example) before both sets of parties have actual experience of the work and its place of performance.”

(My underline)

[30] As discussed above, the Agreement incorporates industries that no voting employee was engaged in at the time. Adopting the principle of “the moral authority of the agreement” it is hard to see where the moral authority of the Agreement exists, for example, in respect of medical practitioners or law graduates.

[31] It is understandable and unremarkable that employees voting on an agreement will not always cover the full range of classifications in a modern award that the agreement is to either supplant or as in this Agreement, incorporate, subject to the terms of the Agreement. It is another matter for employees to make an enterprise agreement covering industries where no employees in any classification are engaged when the agreement is made and may possibly never be engaged. The Act provides the ability for employers to enter into Greenfield agreements in situations that relate to new enterprises that employers are establishing or propose to establish but have not yet employed any persons necessary for the conduct of that enterprise who will be covered by the agreement. 15

[32] A further example of the difficulty is found at clause Clause 12 of the Agreement Hours of Work. This clauseprovides that where the relevant award stipulates the days on which ordinary hours can be worked and/or the span of ordinary hours and the relevant award allows for a variation by agreement between the employer and employee, it is taken that agreement has been reached to the extent permitted by the relevant award. It is difficult to accept how agreement could be reached on the span of hours or days worked where no employees in a particular industry have voted on the Agreement.

[33] Following concerns expressed by the Commission, the applicant stated that it was prepared to provide an undertaking that the Agreement only incorporate 93 of the 122 modern awards. Section 190 of the Act allows the Commission to accept an undertaking from an employer when the Commission has a concern that the agreement does not meet the requirements set out in sections 186 and 187. I was not satisfied that this undertaking would satisfy the “genuinely agreed” requirement. Following a further request from the Commission the employer has provided an undertaking that further reduces the Agreement coverage, for example the Medical Practitioners and the Legal Services Awards are no longer part of the Agreement coverage. The Agreement coverage is reflected in Appendix 1.

[34] Based on the further undertaking to reduce the Agreement’s coverage to industries of the type and nature the employees covered by the Agreement are engaged in, I am satisfied that the Agreement has been genuinely agreed to by the employees.

Better off overall test

[35] Section 186 of the Act provides that the Commission must approve an enterprise agreement if the requirements of the ss. 186 and 187 are met. Section 186(2)(d) provides that the Commission must be satisfied the enterprise agreement passes the better off overall test (BOOT). The nature of the BOOT is set out in s.193 of the Act. Section 193 provides that:

“When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by FWC was made under section 185.

FWA may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[36] In Armacell Australia Pty and Others 16a Full Bench of Fair Work Australia said:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”

[37] The role of the Commission in approving agreements was considered in Re McDonald’s Australia Enterprise Agreement 2009 17. The Full Bench determined that the role of the Commission includes facilitating enterprise agreements:

“[13] The appellants emphasised the facilitative aspects of these objectives. We agree that these objectives place the primary role for making enterprise agreements on the parties to those agreements and their representatives and that the role of Fair Work Australia (FWA) includes facilitating the making of enterprise agreements. In general we believe that the requirements for approval should be considered in a practical, non-technical manner and that reasonable efforts should be made to clarify matters with the parties and consider undertakings to clarify or remedy concerns to the extent that these may be available under s.190 of the Act.” 18

[38] I have applied this approach in the determination of this application. The applicant is a labour hire business and engages employees to suit the needs of its clients, which no doubt presents particular employment challenges. The applicant submitted that in its labour hire business it does not supply labour to any one industry or employer but supplies labour to the local businesses in the Sunshine Coast Queensland and further afield. The Agreement would provide it with the flexibility to “fill any order that a client may give it for the hiring of labour”.

[39] The relevant awards for the purposes of assessing whether the Agreement passes the BOOT are the modern awards now referred to in the applicant’s undertaking. While the task of comparing the terms and conditions of the Agreement with these modern awards would be monumental, this is avoided for the most part as the Agreement incorporates the modern awards except where there is any inconsistency, in which case the Agreement applies. 19

More beneficial terms and conditions

[40] In respect of terms or conditions of employment that are more beneficial under the Agreement that are not provided for under the reference instruments, the Applicant refers to sub clause 16 b. Market Arrangements which is in the following terms:

“Where an employee is placed on an assignment where it is necessary for the Company to pay the Employee higher wages than those that are contained within this Agreement, this arrangement will be received by the Employee in satisfaction of any and/all entitlements, terms conditions, penalties and allowances which might otherwise apply to the Employee under this Agreement. This may include flat or rolled up hourly rates provided that the total payment top an Employee will not be less than an Employee would have received under this Agreement.”

[41] This sub clause is to be read in conjunction with sub clause 5 c. of the Agreement:

The rates of pay, terms and conditions in this agreement represent the minimum that will be paid to employees. The Company will assess the market conditions and may pay Employees a higher rate of pay or altered terms 20 in accordance with clause 16 b., where it is able to negotiate this with the client. Given the nature of on-hire work, any increases above the minimums may vary from assignment and will be entirely at the discretion of the Company.”

(My underline)

[42] As can been seen from both sub clauses there is no guaranteed increase over and above the relevant modern awards, only a discretionary market arrangement “where it is necessary for the Company to pay the Employee higher wages than those that are contained within this Agreement.” As such, if the applicant does not deem it necessary to pay higher wages than the modern awards, only the award wage will be paid.

[43] The Applicant also points to clause 7 - Casual Employment as being a more beneficial condition than the modern awards, which states:

“Where a Relevant Award, contains Casual conversion provisions that require conversion of Casual employees to Permanent Full or Part-time Employees, regardless of the circumstances, for the purposes of this Agreement those provisions will have no effect on Employees.

In order to compensate employees for the loss of casual conversation (sic) rights, an additional 1% Casual Loading will be paid at such time as the Casual conversion (if any) would have otherwise applied but for this Agreement.”

[44] The Agreements provides for all types of employment as it incorporates a number of modern awards. 21²² The casual conversion clause has no application to other types of employment. As the clause states, the payment of a 1% loading is in compensation for the loss of the casual conversion to full-time or part-time status where the modern award provides such an entitlement. The difficulty with the casual conversion clause in the Agreement is that it removes the election that employees have to convert to permanent employment after 12 months.23 While a 1% wage increase may be adequate to compensate for the loss of a permanent conversion and the benefits permanency brings an employee, no evidence was presented to demonstrate this would make employees “better off”.

[45] Following the telephone conference conducted by the Commission and at the request of the Commission, the applicant forwarded five employee statements from casual employees all of which stated that they would prefer to remain as casual employees. From the statements received they did not indicate whether any of the employees had actually accrued a right to elect whether to be made permanent under a particular modern award, hence whether they would be entitled to the additional 1% loading under the Agreement.

[46] Section 180(5) of the Act requires the employer to take all reasonable steps to ensure that the terms of the Agreement and the effect of the terms are explained to employees. The document provided by the applicant to employees explaining the Agreement states that the additional 1% is provided “as we cannot always guarantee permanent employment for you.”

[47] It is also submitted that the Agreement will allow for casuals to be engaged under awards that do not contain casual provisions.

Less Beneficial Terms and Conditions

[48] The applicant states that the Agreement’s only less beneficial term is contained in clause 21 - Termination of Employment where casual employees at sub clause 21 b. are required to provide a minimum of four hours’ notice to terminate their employment contract.

[49] The applicant has not referred to sub clause 21 d. of the Agreement which purports to allow the Company to retain in ordinary wages an amount equivalent to the required period of notice not provided by the employee either under the National Employment Standards or the Agreement.

[50] The Agreement contains a number of provisions which place lawful obligations on employees that are not found in the modern awards. These clauses include:

● 9 - Lawful Directions
● 14 - Safety Matters
● 24 - Company Policy and Procedures
● 25 - Social Networking Media
● 26 - Confidential Information
● 27 - Conflict of Interest

[51] The difficulty with satisfying the BOOT is that other than a potential discretionary wage increase for casuals, in certain circumstances over the award minimum and a compensatory 1% wage increase where a right to elect to become a permanent employee arises, the Agreement provides no other terms or conditions more favourable that the modern awards. The statutory test is for all employees to be better off overall, simply being guaranteed the award minimums does not advance an employee’s terms and conditions.

Undertakings

[52] Where the Commission has a concern that an agreement does not meet the requirements set out in s.186 and s.187 of the Act including that the agreement does not pass the BOOT, it has been held that s.190 requires the Commission provide the employer an opportunity to provide a written undertaking aimed at meeting those concerns see Re BUPA Care Services. 24

[53] The applicant stated that it would be prepared to provide an undertaking that casual employees working under an award that does not contain a casual conversion provision would be paid an additional 1% wage increase after 12 months service in that award role. 25 That undertaking has now been provided.

[54] While I accept that casual employees under the Agreement are better off overall when compared to the relevant modern awards, there is nothing in the Agreement that provides employees (other than casuals) any terms or conditions which have been identified as superior to the modern awards, while there are identified inferior terms and conditions.

[55] On this basis, I requested an undertaking from the employer that non casual employees would be better off overall under the Agreement. Although it would appear that that the employment of non casuals is not common practice the employer has provided an undertaking the all permanent employees “will be paid at least an additional 5 cents per hour above the relevant Award rate that might otherwise apply”. While 5 cents per hour would seem to be a token increase it provides the relevant employees an increase above the award rate making them better off overall. The undertaking is accepted.

[56] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[57] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[58] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[59] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 19 January 2015. The nominal expiry date of the Agreement is four years from the date of approval.

COMMISSIONER

Annexure A

 1   Clause 4 of Agreement.

 2   For example see reference to “conversation rights” as opposed to “conversion rights” in subclause 7a, and reference to “RRelevant” in clause 5a. of both Agreements. A further copy of the Agreement was sent to the Commission on 10 October 2014 stating that the typographical errors had been removed.

 3   The Applicant’s representative was not available at an earlier proposed date.

 4   s.57 of the Act provides that a modern award does not apply to an employee where an enterprise agreement operates.

 5   The first Agreement used the words “or more attractive terms”.

 6   85 employees were eligible to vote on the Agreement.

 7   [2012] FWAFB 2206.

 8 [2014] FCA 286.

 9   [2014] FWCFB 8429.

 10   See paragraph 17 of Applicant’s written submissions dated 10 October 2014.

 11   See Item 793 of the Fair Work Bill 2008 Explanatory Memorandum.

 12   s.51 of the Act.

 13 (1999) 93 FCR 317 at 357 see also Grocon Pty Ltd Enterprise Agreement (Victoria) 2003) VP Ross 127 IR 13 at 45 these decisions are given as examples in the EM at Item 797.

 14   The current legislation uses the term “genuinely agreed”

 15   S.172(3)

 16   [2010] FWAFB 9985 at [41].

 17   [2010] FWAFB 4602.

 18   Re McDonald’s Australia Enterprise Agreement 2009[2010] FWAFB 4602 at [13].

 19   Clause 5 of the Agreement.

 20   The first Agreement used the words “or more attractive terms”.

 21   See reference to Annual Leave and Leave Loading at clauses 18 and 23 that have application to permanent or part-time employees.

22 The applicant’s Explanation document to employees states “As you may be aware, most On-Hire Employees are casual.”

 23   See clause 14.8 of the Building and Construction General On-Site Award 2010 and clause 14.4 of the Manufacturing and Associated Industries and Occupations Award 2010.

 24   BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and others[2010] FWAFB 2762 at (49).

 25   Paragraph 23 written submissions of 10 October 2014.

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