Melian Transport Pty Ltd
[2012] FWA 8975
•19 OCTOBER 2012
[2012] FWA 8975 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Melian Transport Pty Ltd
(AG2012/10992)
MELIAN TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2012
Road transport industry | |
COMMISSIONER ASBURY | BRISBANE, 19 OCTOBER 2012 |
Notice of employee representational rights under s.173 of Fair Work Act 2009 - Omission of default representative provision - Tribunal not satisfied that employees genuinely approved the agreement - application for approval of agreement refused.
Introduction
[1] Melian Transport Pty Ltd has made an application under s.185 of the Fair Work Act 2009 (the Act) for the approval of the Melian Transport Pty Ltd Enterprise Agreement 2012 (the Agreement).
[2] The Application for Approval of the Enterprise Agreement indicates that the Applicant’s representative is Hemming + Hart Solicitors and that the contact person is Mr Jonathan Hadley. The Application also indicates that Hemming + Hart Solicitors is a bargaining representative for the employer. As required by s.185(2) of the Act and the Fair Work Australia Rules 2010,the application is accompanied by Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement. That form has been completed by Mr Ian Hawes, a Director of Melian Transport Pty Ltd.
[3] Question 2.4 of the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17) relevantly asks:
“2.4 Did the employer take all reasonable steps to give notice of the rights to be represented by a bargaining representative to each employee who will be covered by the Agreement as required by s.173?
[ ] Yes
[ ] No - see note below
If “Yes”, please attach a copy of the notice given to employees and explain the steps taken:”
Note The notice required by s.173 must meet the relevant requirements of s.174. A form of notice has been prescribed and can be found in Schedule 2.1 to the Fair Work Regulations 2009 at In the box under question 2.4 an “X” has been placed indicating that the answer is “Yes”. There is also a statement that the Notice of Representational Rights provided to employees of Melian Transport Pty Ltd dated 13 August 2012, is annexed to the declaration. The Notice appended to the declaration does not contain the information set out in s.174(3) of the Act in relation to default representation.
[5] The Form F17 filed by Melian Transport states that there are six employees who will be covered by the Agreement and who cast a valid vote. It is also stated that five employees voted to approve the Agreement.
[6] On 28 September 2012, correspondence was forwarded by my Associate to the Bargaining Representative for Melian Transport Pty Ltd, indicating my concerns that the Notice of Employee Representational Rights appended to the application for approval of the Agreement did not contain the provision set out in s.174(3) of the Act, and requiring confirmation that the notice appended to the application for approval of the Agreement was the actual notice given to employees. The correspondence also requested that the employer provide further submissions in relation to why, notwithstanding an apparent failure to comply with the provisions of the Act in relation to the notice, the Agreement should be approved.
[7] On 5 October 2012, a response was received from the Bargaining Representative for Melian Transport Pty Ltd in the form of submissions in response to the matters raised in the email of 28 September 2012, and indicating that the employer relied on those submissions and did not seek recourse to a hearing.
Submissions
[8] The submissions on behalf of Melian Transport Pty Ltd are as follows:
1. Notice of Employee Representational Rights
(a) We confirm that the ‘Notice of Employee Representational Rights’ (‘Notice‘) which was attached to the ‘Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement’ (‘Form F17’) at Annexure A was that which was provided to employees. We note that this was provided to the employees on 13 August 2012.
(b) The Notice as provided to the employees of Melian substantially complies with the requirements of section 174 of the Fair Work Act 2009 (Cth) (‘FW Act’), but for the absence of the paragraph prescribed at Schedule 2.1 of the Fair Work Regulations 2009 (Cth) (‘FW Regulations’) regarding the rights of a union to be a bargaining representative for the Agreement.
(c) We note that the Notice does contain a statement to employees of Melian that they may be represented. Whilst conceding that this does not expressly state that the union of which any employee is a member will be the bargaining representative, it does make reference to the fact that a bargaining representative may be appointed.
(d) As is discussed below, there are no employees of Melian who are members of a union. Whilst not remedying the absence of the phrase prescribed by the FW Regulations, this is relevant to the fact that the employees have been notified of their rights and have genuinely approved the Agreement.
(e) Distinguishable from the circumstances in Volvo Group Australia Retail Enterprise Agreement 2011 1where there was no notice provided to the employees at all, Melian has provided notice to its employees and done so within the timeline which is mandated by the FW Act. There has been a genuine attempt at compliance with the Act as opposed to The Australian Ballet Technical Staff Enterprise Agreement 2010-20132again where no notice was provided.
2. Bargaining Representatives
(a) We have been instructed that no employee of Melian is a member of an employee organisation that may have been the employees’ bargaining representative for the Agreement by virtue of section 176(1)(b) of the FW Act.
(b) Given the number of employees that Melian engages (6 in total), the employer has the benefit of personal acquaintance with each of his employees.
(c) As there are no members of the union, there was union to assume the role of default bargaining representative for the Agreement. The absence of the paragraph regarding a union being the default bargaining representative was not to ensure that employees were not advised of their rights in relation to when a union would be their default bargaining representative and that if an employee wanted to be represented that the employee would be directed towards appointing a specific bargaining representative in lieu of a union being the default bargaining representative as was the case in Melsteel Constructions P/L, on site Enterprise Agreement 2010. 3
3. Reasons for Approval
(a) The Employer has taken all reasonable steps to notify the employees of their right to representation, and substantially complied with the requirements of the FW Act and FW Regulations.
(b) Employees have genuinely approved this agreement by a majority vote in favour after bargaining directly with [sic].
(c) There has been no disadvantage in bargaining representation as the employees were not members of a union that may have been appointed bargaining representatives in accordance with section 176(1)(b) of the FW Act.
(d) There has been no involvement from any union who might seek to be covered by the Agreement as there are no employees who would be covered by the Agreement are union members.
(e) Given that none of Melian‘s employees are union members, and this was know to the employer, there is no surreptitious intention in the absence of the prescribed notice to employees.
4. Conclusion
(a) Melian does not seek recourse to a hearing on this matter and trusts the above has sufficiently detailed why the Agreement may still be approved in spite of the imperfection in the Notice.
(b) Should it be necessary, the employer may provide undertakings to Fair Work Australia so that the agreement may be approved in accordance with section 190 of the FW Act.
Legislative provisions
[9] Section 173(1) of the Act provides that an employer who will be covered by a proposed enterprise agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative, to each employee who will be covered by the agreement and is who is employed at the notification time. In the present case, the notification time was the time when the employer agreed to bargain or initiated bargaining for the Agreement. The notice must be given as soon as practicable, and not later than 14 days after the notification time for the agreement, and is not required to be given if the employer has already given a notice within a reasonable period before the notification time. The various ways in which the notice may be given are provided in Regulation 2.04 of the Fair Work Regulations 2009 (the Regulations).
[10] The content of the notice is prescribed in s.174 of the Act, and by virtue of s.174(6) the regulations may prescribe other matters relating to the content or form of the notice and the manner in which it may be given. Section 174 of the Act provides as follows:
174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.
[11] By virtue of s.176(1)(b) of the Act, an employee organisation of which an employee is a member, is a bargaining representative for the agreement unless the employee has appointed another person or has revoked the appointment. Regulation 2.05 prescribes the form of notice of employee representational rights as set out in Schedule 2.1, as follows:
Schedule 2.1 Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174 (6)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies — include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement — include:]
Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument — include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
● the nominal expiry date of your existing agreement has passed; or
● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Australia Infoline on [insert number].
[12] Section 181(1) of the Act provides that an employer that will be covered by a proposed enterprise agreement may request employees employed at the time who will be covered, to approve the agreement by voting for it. Section 181(2) provides that such a request must not be made until at least 21 days after the day on which the last notice of employee representational rights under s.173(1) was given.
[13] The provisions of the Act relevant to the question of when Fair Work Australia must approve an enterprise agreement are found in sections 186 to 188 of the Act. Those sections provide as follows:
186 When FWA 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, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA 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, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) FWA must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which FWA approves the agreement.
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).
187 When FWA must approve an enterprise agreement—additional requirements
Additional requirements
(1) This section sets out additional requirements that must be met before FWA approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), FWA must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) FWA must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.
Requirements relating to greenfields agreements
(5) If the agreement is a greenfields agreement, FWA must be satisfied that:
(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and
(b) it is in the public interest to approve the agreement.
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
Case Law
[14] In Somerville Maintenance Enterprise Agreement 4a Full Bench of Fair Work Australia considered whether an omission from a notice of representational rights resulted in the notice being invalid, or was of any consequence for the making or approval of an enterprise agreement. The Full Bench applied the test for validity of an act done in breach of a statute laid down by the High Court in Project Blue Sky Inc. and others v Australian Broadcasting Authority5, as follows:
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to the ‘language of the relevant provision and the scope and object of the whole statute’.” (Footnotes omitted)
[15] The paragraph that was omitted from the notice in the Somerville Maintenance Enterprise Agreement case, informed employees covered by individual agreement-basedtransitional instruments that their right to appoint a bargaining representative did not arise until the nominal expiry date of such an agreement had passed or it had been conditionally terminated. The Full Bench held that a notice of the type provided by the employer in that case still informed employees that they had a right to appoint a bargaining representative, and the omission merely meant that employees who were covered by individual agreement-based transitional instruments were not notified that their right was qualified.
[16] The Full Bench was satisfied, in that case, that the legislature did not intend that the notice of representational rights in the form provided by the employer, would be rendered invalid because of an omission of that type.
[17] There a number of decisions where the effect of a failure by an employer to give the notice of employee representational rights in the manner and/or the form prescribed in the Act and the Regulations has been considered. The cases have focused on whether all reasonable steps have been taken to provide the notice to employees 6, and additions7 or omissions8 with respect to the terms to the prescribed form of the notice. The following principles have been established:
● The objects and the scheme of the Act imply that the requirements for approval of enterprise agreements are to be applied in a practical manner without unnecessary technicalities; 9
● There is a general duty on Fair Work Australia to approve agreements and s.186 establishes a mandatory obligation to do so subject to the requirements in that section and s.187 being met; 10
● There is no general discretion by reference to public interest considerations, the objects of the Act or general equity considerations to consider whether to approve an agreement that otherwise satisfies the statutory tests; 11
● In considering whether a failure or omission on the part of a bargaining representative with respect to a step in the making of an enterprise agreement renders the agreement incapable of approval, the test is whether it was a purpose of the legislation that an act done in breach of the relevant legislative provision should be invalid; 12
● The context and purpose of provisions in ss. 173 and 181 is important and seen by the legislature as an essential ingredient of fair bargaining and agreement making under the Act as is the notion of employees being free to exercise their choice of representation. 13
[18] In National Tertiary Industry Union v University of New South Wales a Full Bench of Fair Work Australia noted a submission that nowhere in s.188 of the Act is there a requirement for Fair Work Australia to be satisfied that the employer has taken all reasonable steps to give notice of representational rights under s.173 of the Act, and that this requirement arises in an indirect way through the reference in s.188(a)(ii) to s.181(2) having been complied with. In relation to this submission the Full Bench observed:
“[18] Although we have decided this ground of appeal on the basis of the correct construction of s.173 and its application to the facts, we think it appropriate to observe that the ... submission that it was not strictly necessary ... to consider whether s.173 had been complied with is arguable. One important consideration weighing against this submission however is the key role of the bargaining representatives in the enterprise bargaining regime in the Act and the rights and obligations employee organisations have in that regime. In this context, informing an employee at the start of bargaining about how they may be represented is an essential component. So, a construction of the Act which may deprive a party from informing FWA, when called upon to approve an agreement, that in fact all reasonable steps had not been taken as required by s.173 would not be one readily adopted. ...” 14
[19] There is further Full Bench authority in Bland v CEVA Logistics (Australia) Pty Ltd 15 for the proposition that the requirements in s.173 are not mandatory. In that case a Full Bench was considering an appeal by an employee covered by an enterprise agreement in circumstances where that employee maintained that the employer had not provided him or any employee in his work area (one of a number of work sites to be covered by the relevant enterprise agreement) with the notice of representational rights under s.173(1) of the Act. In dismissing the appeal, the majority of the Full Bench said:
“[42] Having regard to the scheme of the Act, the context in which s.173(1) is found and the terms of s.188, we doubt that compliance with the provisions of s.173(1) is mandatory, such that a breach of it necessarily renders an enterprise agreement void and incapable of approval.
[43] There might be circumstances where a failure to comply with the requirements of s.173(1) could lead to Fair Work Australia not being satisfied that an agreement was genuinely agreed to. We could envisage a situation where a failure by an employer to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee might lead to a conclusion that the employees who did not receive such a notice and nevertheless voted to approve the agreement did not genuinely agree to it because they had been deprived of the opportunity to appoint a bargaining agent and were thereby prejudiced in the decision-making process. In such a case there would be reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees under s.188(c). However, that is not the case here.”
[20] Further, in CJ Manfield Pty Ltd v CEPU 16a Full Bench of Fair Work Australia observed that the requirement to provide a notice in s.173 is not an absolute requirement. The requirement is to take “all reasonable steps to give notice.17
[21] These cases indicate that while non-compliance with the provisions of s.173(1) does not necessarily render an agreement void and incapable of approval, the notice of representational rights is directed to ensuring that employees are informed about how they may be represented, and that their approval of an enterprise agreement is genuine in that it is given in circumstances where they have had the opportunity to exercise all of their rights with respect to representation. This is a significant matter about which the Tribunal must be positively satisfied, before approving an agreement.
Conclusions
[22] I accept that there may be cases where it can be said that notwithstanding a deficiency in the form or provision of the notice, employees have genuinely approved an agreement. In Racing Queensland Limited 18I approved an agreement where the notice was not provided, in highly unusual circumstances where there was evidence that all of the employees covered by the Agreement had provided a written notice to the employer appointing a union as their bargaining representative, prior to the date on which the notice was required to be given, and the employees stated that they would not have exercised their right of representation in any other way. In that case, the Agreement was unanimously approved by the employees. It was also apparent in that case that employees had exercised any right they may have been notified of had a valid notice of representational rights been provided to them.
[23] The present case is not one where it can be said that the non-compliance is a minor oversight such that the legislature would have intended that notice was valid and the Agreement could still be approved. The omission of the default bargaining representative provision from the notice of representational rights provided by Melian Transport Pty Ltd to its employees means that they were not informed that if they were members of a union, that union was automatically a bargaining representative. This information may be significant in circumstances where an employee wishes to be represented in bargaining for an agreement, but does not wish to reveal to the employer that he or she is a union member. This situation can be contrasted with the Somerville Maintenance case where all rights employees may have had were set out in the notice, and the omission was a qualification of those rights.
[24] By virtue of s.186(2) of the Act, I must be satisfied that the agreement has been genuinely agreed to by the employees. There is no evidence upon which I could be satisfied about this matter. I am not prepared to accept that employees are not union members on the basis of a submission made by a bargaining representative for the employer, based on instructions given by the employer. It is equally probable that there is an employee who may have wished to avail himself or herself of default representation, and accordingly the applicant has not met the onus of establishing a basis upon which I could be satisfied that the agreement has been genuinely agreed to by employees.
[25] This is not a matter that can be remedied by the provision of an undertaking. If I am unable to be satisfied in relation to all of the matters in s.186 of the Act, I must not approve the agreement. Accordingly, the application for approval of the Agreement is refused.
COMMISSIONER
1 [2011] FWA 4050
2 [2011] FWA 1125
3 [2010] FWA 7731
4 [2011] FWAFB 6106
5 [1998] 194 CLR 355
6 Stephen Bland v CEVA Logistics (Australia) Pty Ltd
7 Galintel Rolling Mills Pty Ltd T/A The Graham Group [2011] FWAFB 6772.
8 “Automotive Food Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd [2011] FWAFB 6106.
9 McDonald’s Australia Pty Ltd & anor [2010] FWAFB 4602; CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FWAFB 3534.
10 CJ Manfield Pty Ltd v CEPU op.cit. at [28] - [29].
11 Ibid at [29].
12 AMWU v Inghams op.cit. at [48] citing the decision of the High Court in Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355.
13 Galintel Rolling Mills T/A the Graham Group [2011] FWAFB 6772.
14 National Tertiary Industry Union v University of New South Wales [2011] FWAFB 5163 at [16] - [18].
15 [2011] FWAFB 7453.
16 [2012] FWAFB 3534.
17 Ibid at [44].
18 [2012] FWA 6290
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