Mr Zheng Li v JD.com Australia Pty Ltd
[2024] FWC 1066
•24 APRIL 2024
| [2024] FWC 1066 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Zheng Li
v
JD.COM AUSTRALIA Pty Ltd
(C2023/5710)
| COMMISSIONER THORNTON | ADELAIDE, 24 APRIL 2024 |
Application to deal with contraventions of the General Protections provisions involving a dismissal - whether application prohibited by section 725 - whether applicant employed by respondent and capable of being dismissed.
Mr Zheng Li (Mr Li or the Applicant) has applied pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act), alleging that JD.COM AUSTRALIA Pty Ltd (JD.Com or the Respondent) contravened Part 3-1 of the Act in dismissing him from his employment.
The Respondent has objected to the application on the grounds that they were not the employer of the Applicant, but rather a host employer pursuant to a labour hire agreement and as such, could not have dismissed the Applicant. The Respondent has raised a jurisdictional objection on the basis that Mr Li was not dismissed within the meaning of s.386 of the Act, because he was not an employee of JD.com. The Respondent argues that the Applicant was instead an employee of EPG Payroll & HR Pty Ltd (EPG) and was supplied via a labour hire arrangement to perform work for JD.com.
A hearing was conducted to consider the Respondent’s jurisdictional objection in this matter that the Applicant was not dismissed because he was never employed by them. It is uncontroversial that for the matter to be within jurisdiction, Mr Li needs to have been dismissed. In Coles Supply Chain Pty Ltd v Milford[1], the Full Court of the Federal Court held that where a Respondent submits that the Applicant to a s.365 application was not dismissed, as is the case here, the FWC must determine that issue before exercising its powers under s.368 of the Act.
For the Applicant to have been dismissed, he must have been employed by the Respondent.
During the course of the hearing, the Applicant disclosed that he had filed another claim in the Commission against EPG Payroll & HR Pty Ltd (EPG). This is the entity that the Respondent asserts was the employer of the Applicant. No further evidence was adduced at the hearing in respect of the other application.
The Commission’s case management system shows that the Applicant filed a general protections application involving dismissal naming EPG as the Respondent on 5 September 2023. That matter was given matter number C2023/5419. This application naming JD.com as the Respondent was filed on 18 September 2023.
The application against EPG was settled and the terms were recorded in a deed of settlement. The Commission’s file was closed on 31 October 2023.
It is probable that the Applicant is barred from making this application because section 725 of the Act prevents multiple claims being made arising from the same dismissal. In any event, I find that the Applicant was not an employee of the Respondent and as such was not dismissed by the Respondent.
Background
Mr Li gave evidence on his own behalf as the Applicant. Ms Jingting Wang, who is employed in Human Resource Operations for JD.com, gave evidence for the Respondent.
The Respondent is an e-commerce business with headquarters in Beijing. The Respondent commenced trading in Australia approximately 8 years ago when JD.com Australia Pty Ltd was first established in 2015. Ms Wang gave evidence that she commenced in the position of “HR Operations” for JD.com in September 2023. Prior to that she worked for CDP Group, a global labour hire provider, from 2018. JD.com is a client of CDP Group and Ms Wang managed the relationship with JD.com prior to moving into a role within the company.
Mr Li asserts that he was approached on the professional networking platform of ‘LinkedIn’ about a role with JD.com. He annexed to his statement and submissions a screen shot of contact made with him by Linfik Liang, ‘Global Talent Expert’ where Mr Liang asks when the Applicant is available to have a discussion. Mr Li refers in his evidence to Mr Liang being a recruiter for JD.com, but the information from the screen shot does not confirm Mr Liang’s relationship with JD.com nor make it clear that he was contacting Mr Li about a role with JD.com in particular.
However, Mr Li says that he was later offered an interview with Mr Cao, the Country Manager of JD.com and then a second interview with Mr Le Shi a “superior manager of JD.com China”[2] who was based in Beijing.
Mr Li says that on 7 December 2021, Mr Cao notified the Applicant that he was being offered the role and annexed text messages that he asserts were exchanged between him and Mr Cao. The text messages provided as evidence were predominantly in Mandarin and not translated into English.
Mr Li’s evidence is that throughout the recruitment process “no third party was involved or mentioned to be the future employer. Therefore, JD.com is defined as the default future employer.”[3]
Ms Wang, at the time employed by CDP, sent a letter of offer to the Applicant by email on 8 December 2021. Rather confusingly, the letter of offer said: “We are pleased to confirm this Offer Letter of employment by Easy Payroll Global Pty Ltd” and had the full name of EPG typed at the bottom. This was the first mention of EPG in the recruitment process.
The email sent with the letter of offer attached said: “I am Jingtang, the contact person of the 3rd party employment agency designated by JD Company, with whom I work closely … On behalf of JD, I would like to first extend to you my warmest welcome to join the Company as Warehouse Supervisor in Australia. … Your employment contract will be issued once we received your signed offer. CDP and its Operation arm in Australia will be fully responsible for calculating and collecting all relevant employment cost and guarantees your monthly payroll and statutory benefits contribution on time in the country.”
Mr Li responded enclosing a signed copy of the letter.
No evidence was presented of any instance throughout the recruitment process where the arrangements between JD.com, CDP and EPG or the basis of his employment were explained to the Applicant.
Mr Li commenced work as a Warehouse Supervisor on 10 December 2021 at a warehouse operated by JD.com in Melbourne and says he was under the instruction of Mr Cao.
Mr Li gave evidence that it was not until 13 December 2021 that he was provided a written contract of employment which “surprisingly” showed EPG as the employer and that “was the first time EPG appeared in this event”. The contract was put into evidence and reflected an offer of work for a twelve month, fixed-term period commencing on 17 January 2022.
The contract of December 2021 relevantly provided, inter alia:
(a)That EPG Payroll & HR Pty Ltd was the employer;
(b)The client will “initially be JD Logistics”;
(c)The employer may change the client by advising the Applicant in writing and substitute the name of the client in the contract;
(d)The Employer will make superannuation entitlements;
(e)The Applicant has an entitlement to a bonus if he achieves targets payable by EPG;
(f)The contract gives rise to a relationship of employer and employee; and
(g)There will be no legal relationship between the employee and the client.
Mr Li says that in approximately April or May 2022, he realised that the start date of 17 January 2022 included in the contract was incorrect, and he advised EPG of the error.
Mr Li says that, on his request EPG sent him a corrected copy of his contract, backdating his start date to the date of commencement, being 10 December 2021. That contract appeared to have the same terms but for the commencement date. The amended contract was electronically signed by Mr Li on 16 May 2022.
No payslips were in evidence for the period of the commencement of employment until the pay period commencing 1 January 2023. There was no evidence that EPG paid salary payments to the Applicant in December 2022. However, pay slips were provided by the Applicant that showed he was paid his salary monthly from EPG from 1 January 2022 to 31 August 2023.
On 20 December 2022 Mr Li signed an amendment to his contract that extended the period of his employment from 16 January 2023 until 12 January 2024. This amendment named EPG Payroll as Mr Li’s employer and was also signed by a representative of EPG.
On 1 September 2023, Mr Li was given correspondence from EPG confirming that his employment was terminated on account of redundancy as “JD Logistics no longer wishes for us to supply your services to them.” He was paid two weeks’ in lieu of notice and his employment was brought to an end on the same day.
Ms Wang gave evidence that when the Respondent commences trading in a new country they engage the services of a labour hire provider to employ employees while the business is being established. Once the business is established, JD.com usually commence direct employment of employees.
CDP is one of the labour hire providers used by JD.com globally. When JD.com commenced operations in Australia they contracted CDP to provide labour to the business. However, CDP does not have an Australian entity that can engage employees in Australia so CDP entered into a contract with an Australian partner, EPG, to recruit and engage employees to provide to JD.com.
With respect to EPG, Ms Wang said: “EPG is a global company that provides staffing solutions to a range of companies. One of the services offered is being the employer of record whereby they employ employees on behalf of clients and manage the end-to-end workers life-cycle in line with local legal compliance requirements.”[4]
Ms Wang confirmed that between September 2020 and September 2023, EPG employed approximately 11 employees to work for JD.com using the same arrangements as they did for Mr Li.
Ms Wang said that in her role at CDP, she provided information to EPG necessary to employ Mr Li, including his personal details and the nature, location and hours of his work. When EPG provided her with a copy of the Applicant’s contract of employment, Ms Wang says she provided it to JD.com.
Ms Wang’s evidence is that EPG was responsible for “all matters relating to Mr Li’s employment”[5] including drafting and issuing the employment contract, withholding taxation, paying superannuation contributions, paying wages, issuing payslips, managing leave through the EPG portal, paying reimbursements for work related expenses, handling complaints from Mr Li and ultimately terminating the Applicant’s employment.
Submissions
The Applicant submits that he was in fact employed by JD.com and therefore, capable of being dismissed by the Respondent. He argues that the Commission should find that JD.com was his employer because:
(a)The entire recruitment process was directly with JD.com and did not identify the intended relationship between the Applicant and Respondent as one of labour hire employee and host employer, implying a direct employment relationship.
(b)His employment relationship was “handed over”[6] to EPG after the Applicant had been performing work directly with JD.com for over a month and the initial contract of employment was formed with JD.com.
(c)He was “fully supervised” by the Country Manager of JD.com, Mr Zhang, who in turn was directly employed by JD.com in China.
(d)As a part of his role, Mr Li participated in daily meetings with JD.com employees, and submitted weekly reports to Mr Zhang.
(e)The Applicant was required to submit leave applications to the internal JD.com “Bamboo” system and not the EPG portal.
(f)The Applicant was asked to relocate to Sydney by JD.com and EPG was not made aware of the relocation until some months after the request was made.
(g)The Applicant was asked to change job titles from Warehouse Manager to Account Manager by Mr Zhang on behalf of JD.com. The Applicant says that EPG was not made aware of the change of job title until the Applicant was later made redundant.
(h)The Applicant was “fully integrated into JD.com’s culture”[7] and he represented their brand and interests in Australia.
The Applicant had business cards made for him with JD.com named on the cards, had a JD.com email address and email signature.
(j)The Applicant was named as an employee of the Respondent in the employee development annual report.[8]
(k)The Respondent provided the Applicant with a laptop to perform his work.
(l)The Applicant wore a vest with the JD.com logo on it as his work uniform.
(m)The Respondent afforded the Applicant other benefits, including sending his family in China Festival Gift Packs on significant Chinese holidays.
(n)The Respondent reimbursed work-related expenses to the Applicant when incurred.
(o)The Applicant was required to participate in the Respondent’s assessment of his performance against key performance indicators.
(p)The Respondent discussed the Applicant’s entitlement to a bonus, before determining his entitlement to a bonus.
(q)The Applicant worked exclusively for the Respondent during his employment.
(r)The role of EPG in his employment was limited to “administrative functions related to payroll and HR” and this is distinct from the operational control exercised by the Respondent over the Applicant’s employment.
The Respondent argues that a claim made under section 365 of the Act can only be made by an employee against their employer. As EPG was “at all times”[9] the Applicant’s employer, the Respondent could not have dismissed him and the Commission does not have jurisdiction to deal with this application.
The Respondent says that the Applicant provided services to the Respondent pursuant to a labour hire agreement. In support of their argument, the Respondent cites the matter of FP Group v Tooheys Pty Ltd[10] (Tooheys), where the Full Bench found:
“The mere existence of an arrangement under which a first company provides labour to a second company does not point the second company being the employer of the labour so provided.”[11]
The Respondent argues that in order to correctly identify the Applicant’s employer it is necessary to consider how the relationship was created, what was put in writing between the parties and the nature of the arrangement in practice.
The Respondent sets out the matters they say determine that EPG is the employer of the Applicant. The Respondent places emphasis on the existence of a written contract between the Applicant and EPG, which the Respondent says includes the following terms, indicative of an employment relationship:
(a)EPG and the Applicant are the only parties to the contract;
(b)EPG is specifically named as the employer in the contract;
(c)The contract contains a warranty that the Applicant, in entering into the contract, had “not relied on any direct or indirect conduct or representation by the Employer or the Client or any of their directors, servants, agents (or anyone authorised by any of them), other than the terms expressed in this Contract”;[12]
(d)The contents of the employment contract was the entire agreement between the parties;
(e)The contract expressly confirmed that it gave rise to a relationship of employer and employee between the Applicant and EPG;
(f)The contract contains an express term that there will be no legal relationship between Mr Li and the client, specified in the contract as JD.com;[13]
(g)EPG processed the Applicant’s payroll, made superannuation contributions and withheld relevant income tax on his behalf.
Further, the Respondent asserts that EPG assumed liabilities for other entitlements afforded to employees, including the payment of workers compensation levies and other insurance, as well as managing other employee relations issues including complaints, leave requests and the termination of employment.
Again citing Tooheys, the Respondent noted:
“[I]t is necessarily a fundamental feature of any labour hire arrangement that the hirer of the labour is able to exercise a large degree of management control over the performance of the work of the hired workers it is also able to integrate them to a significant degree into its existing work systems. Without this, the arrangement would become unworkable. In our experience, labour hire arrangements almost invariably involve the hirer being able to communicate directly to the hired worker instructions concerning the performance of work without the interposition of the labour hire company. That, without more, cannot operate to render the hirer the employer of the hired worker.”[14]
The Respondent’s position is that the indicia relied on by the Applicant to establish an employment relationship with the Respondent are not relevant because “there is a clear and documented labour hire agreement in place and a valid contract between the Applicant and EPG.”[15]
Relevant Legislation
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. ‘Dismissal’ for these purposes (and other purposes of the Act) is defined in s.386(1), which provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Dismissal of a person on an employers’ initiative requires that person to have been employed by that employer.
Division 3 of the Act, ‘Preventing Multiple Actions’ says at s. 725: ‘A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.’
Section 727 refers to general protections applications. Sections 726, and 728 to 732 have no application to this matter.
“727 General protections FWC applications
(1)This section applies if:
(a)a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b)the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or(iii)resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
…
(2)A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”
Consideration
Prevention on multiple actions
The Full Bench of the Commission considered the application of section 725 of the Act in the matter of Hazledine v Wakerly & Giddings[16] (Hazledine). The Full Bench found:
“The expression “must not make an application” in s. 725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss.726 – 732 of the Act apply. It follows that if an applicant is prohibited by s. 725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s. 368 of the Act.”[17] (foot note omitted)
The Full Bench in Hazledine, referencing the Full Bench decision in the matter of Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital[18] noted that “[t]he statutory purpose of section 725 of the Act is to limit an applicant to a single remedy.”[19]
As to whether the first application made by Mr Li against EPG was one “in relation to the dismissal”, the Full Bench in Hazledine makes clear that such a finding by the Commission does “not require the making of a determination requiring findings of fact. The issue under s. 725 is one of the proper characterisation or classification of an application or complaint.”[20]
The general protections matter filed by Mr Li against EPG and given matter number C2023/5419 was a general protections application involving dismissal. In the application, Mr Li completed the section titled “The Respondent (the employer)” and “Legal name of employer” as “EPG Payroll & HR Pty Ltd”. Mr Li stated in the application that he was seeking “compensation for unfair dismissal” and referred to EPG has his “main employer”.
It is evident from the respective applications filed that the Applicant made two applications relating to the same dismissal. They both seek remedies for the dismissal. Mr Li made an application relating to the dismissal firstly against EPG, identifying them as his employer, before he lodged an application against JD.com also identifying them as his employer. In filing his first application against EPG, Mr Li indicated that EPG was his employer.
In the matter of Alex v Costco Wholesale Australia[21] (Alex), the Applicant had made an application to the Australian Human Rights Commission before filing an unfair dismissal claim, Deputy President Gostencnik considered the same provisions of the Act and observed:
“These provisions recognise that persons aggrieved by a decision to dismiss may have multiple avenues of redress and in so doing, they operate to prevent multiple actions being maintained in relation to the same dismissal. Put simply, a person aggrieved by a dismissal may choose to seek a remedy in relation to his or her dismissal by following one of a number of avenues. Having made a choice, that person is prevented from making a second application or complaint for redress before the application or complaint first made has not been withdrawn or failed for want of jurisdiction.”[22]
The Deputy President also observed that when the Applicant made a second application, relying on the same dismissal, in “purporting to make that second application, s.725 was invoked. That section prevents the Applicant from making the application under s.365.”[23] Ultimately, the Deputy President held that “the prohibition on making this application operated at the time that the application was made to the Commission.”[24] The Deputy President found that s. 725 prohibited the application being made and in fact “operated as a bar to this application being made”.[25]
As the Full Bench noted in Corrie v Loddon Mallee Housing Services Ltd, [26] when concurring with views expressed by the Commission in the first instance decision: “a general protections dismissal dispute application cannot be made if another application or complaint dealing with the dismissal (such as an unfair dismissal application) has also been made”.[27]
On the face of the words of section 725 it is not clear that it applies in circumstances where two applications of the same kind have been made against different respondents in relation to the dismissal, as is the case here. However, it is likely, in my view, that it does apply to the general protections applications filed in relation to Mr Li’s dismissal. If that view is correct, it follows that Mr Li could not make this application because he had already made another application in relation to the same dismissal which was not withdrawn or dismissed as being outside jurisdiction on the date this general protections claim was made.
I consider it likely that the Applicant is barred from making this application by the operation of section 725 of the Act, however, given my findings below that the Applicant was not employed by JD.com, it is not necessary for me to make a determination in respect of the application of section 725 to this matter.
Whether the Applicant was an employee of the employer
I have determined that the Respondent was not the Applicant’s employer and therefore, could not have dismissed him in contravention of the general protections provisions of the Act.
A written offer of employment was put to the Applicant that he accepted. Despite the reference to EPG in the offer was not explained to the Applicant, there was no evidence that he enquired about it. Mr Li signed the letter of offer, accepting its terms. His employment was not commenced in the absence of any agreement with EPG and therefore “handed over” from JD.com to EPG as Mr Li submits; the letter of offer was executed before his employment commenced.
Approximately six weeks after he commenced work, the Applicant was provided with a comprehensive contract with the employer being clearly identified as EPG, and JD.com as the client. The Applicant accepted the terms of the contract and returned a signed copy to the employer.
Further to the acceptance of the contract in January 2021, Mr Li sought to amend its terms to correct the date he commenced employment in about May 2021. He did not seek to clarify or amend the identity of the employer. Mr Li made EPG aware of the error in his commencement date and negotiated an amendment with EPG. Further, Mr Li was later offered by EPG, and accepted in writing, an amendment to his contract in December 2022 extending the period of his employment from January 2023 until January 2024.
I am sympathetic towards Mr Li and the confusion that was created by the conduct of the Respondent in the process of engaging Mr Li. There is no evidence that JD.com, after initially representing to Mr Li that he would be engaged by them, ever expressly set out the alternative basis of employment to Mr Li such that he could have made a decision to accept or reject a labour hire arrangement.
However, in negotiating the contracts and amendments with EPG, Mr Li, by his conduct, accepted his contract of employment was with EPG and expressly agreed to the terms of that contract.
The Applicant raised a number of factual matters, or indicia, as set out above, that he argued were indicative of an employment relationship.
I am not persuaded that these matters are relevant to the determination of an employment relationship in a circumstance where there are clear written contracts between EPG and CDP and, in turn, CDP and JD.com for the provision of labour and a contract of employment between the Applicant and EPG.
The High Court in the matters of CFMEU v Personnel Contracting Pty Ltd[28] and ZG Operations Australia Pty Ltd v Jamsek & Ors[29] confirmed that in determining the nature of a relationship as one of employment or otherwise, where a written contract exists to make clear the terms of the relationship, the rights and duties established by the contract must be given primacy.
A written contract of employment exists between the Applicant and EPG that was submitted into evidence. The contract contains the matters set out above, including terms that clearly establish an employment relationship between Mr Li and EPG.
In particular I note clause 29.2 of the contract, which says: “You acknowledge and agree this Contract gives rise to a relationship of employer and employee between you and the Employer, and that there will be no legal relationship between you and the client, or any of the employer’s other clients.” The Employer is defined in the contract as EPG and the client as JD.com.
I find that there is no contract of employment, or employment relationship between the Applicant and the Respondent, express or implied. There is however, a contract between the Applicant and EPG which expressly sets out the terms of an employment relationship.
With respect to the argument of the Applicant that an employment relationship between the Applicant and the Respondent exists because the Respondent exercised control over the work of the Applicant on a day to day basis, there are a number of authorities that stand for the principle that control may be exercised by a host employer or client, but the nature of the relationship between the employee and host employer is not necessarily one of employment.[30]
In the matter of Fair Work Ombudsman v Ramsey Food Processing Pty Ltd, [31] Buchanan J noted:
“[T]he common law has long recognised the possibility that an employee of one business entity might be hired, loaned or seconded to another person or business, without any change in employment relationship occurring. That is so even if a good measure of practical control is exercised over the work of the employee by the person to whom the employee’s services are supplied”.[32]
JD.com may have exercised control over Mr Li’s employment on a day to day basis but Mr Li has an express contractual relationship of employment with EPG. The level of control over Mr Li’s work exercised by the Respondent, or other indicia identified by the Applicant, are not relevant in these circumstances to determining the identity of the Applicant’s employer.
EPG was the employer of Mr Li and Mr Li was engaged in a labour hire arrangement and placed at JD.com to perform work for JD.com.
As the Respondent was not the Applicant’s employer, the Applicant could not have been dismissed in accordance with sections 365 and 386 of the Act. Therefore, the Commission does not have jurisdiction to deal with the application.
Dismissal
For the reasons set out above, the application is dismissed.
COMMISSIONER
Appearances:
Z Li, Applicant on his own behalf.
G Williams and J Lennon of MinterEllison with permission, with Y Qiong, J Shao-Jun and J Wang on behalf of the Respondent.
Hearing details:
Adelaide (Video via MS Teams)
2023
23 November.
[1] [2020] FCAFC 152.
[2] Statement of Zheng Li dated 10 November 2023 at paragraph 10.
[3] Ibid at paragraph 11.
[4] Statement of Jingting Wang dated 3 November 2023 at paragraph 11.
[5] Statement of Jingting Wang dated 3 November 2023 at paragraph 17.
[6] Statement of Zheng Li dated 10 November 2023 at paragraph 24.
[7] Statement of Zheng Li dated 10 November 2023 at paragraph 27.
[8] The Applicant asserts a copy of that report was submitted into evidence but it is entirely in Mandarin and was not translated.
[9] Submissions of Respondent dated 3 November 2023 at paragraph 22.
[10] [2013] FWCFB 9605.
[11] Ibid at [19].
[12] Employment contract at clause 2.8.
[13] Ibid at clause 29.2.
[14] Above note 10 at [29].
[15] Submissions of Respondent dated 17 November 2023 at paragraph 16.
[16] [2017] FWCFB 500.
[17] Footnote omitted but referenced Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [61].
[18] [2013] FWCFB 6321.
[19] Above note 16 at [8].
[20] Above note 16 at [15].
[21] [2014] FWC 1904.
[22] Ibid at [7].
[23] Ibid at [8].
[24] Ibid at [12].
[25] Ibid at [16].
[26] [2023] FWCFB 84.
[27] Ibid at [29].
[28] [2022] HCA 1.
[29] [2022] HCA 2.
[30] See Blunt v ITW Proline[2014] FWC 750, Accident and Compensation Commission v Odco Pty Ltd (1990) 34 IR 297, FP Group v Tooheys Pty Ltd[2013] FWCFB 9605.
[31] (2011) 198 FCR 174.
[32] Above note 31 at [47].
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