National Tertiary Education Industry Union v Hawthorn Learning Pty Ltd

[2015] FWC 2765

[2015] FWC 2765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Hawthorn Learning Pty Ltd
(B2015/458)

COMMISSIONER WILSON MELBOURNE, 22 APRIL 2015

Proposed protected action ballot of employees of Hawthorn Learning Pty Ltd.

[1] These are my reasons for decision to grant an application for a protected action ballot order by members of the National Tertiary Industry Education Union (the NTEU) employed by Hawthorn Learning Pty Ltd (Hawthorn Learning) and whose employment is presently covered by the Hawthorn Learning Pty Ltd Enterprise Agreement 2013, the nominal expiry date of which was 30 June 2014.

[2] The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act) and was filed in the Fair Work Commission late on Friday, 17 April 2015. Consistent with the obligations on the Commission under s.441 that such applications must, as far as practicable, be determined within two working days after the application is made, the parties were required to file material in respect of the application on 20 April 2015 and a hearing of the matter was held on Tuesday, 21 April 2015. Later on 21 April 2015, after the hearing, the parties were advised that my determination was to grant the application, with my reasons for doing so to be issued as soon as possible afterwards.

[3] The Applicant seeks to ballot all employees of Hawthorn Learning who will be covered by the proposed enterprise agreement and for whom the NTEU is their bargaining representative. The submissions made in this application by the NTEU asserts that it has around 50 members employed by Hawthorn Learning and for whom the union is a bargaining representative in the manner set out in s.176 (1).

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

What is not in dispute

[5] It is not in contention that, subject to the objections outlined below, the NTEU:

● Is a bargaining representative and is entitled to make this application;

● Has made a proper application as required by the Act and has met the documentary and notice requirements for the application; and

● Is not prevented from bringing the application by virtue of s.438 of the Act given the nominal expiry of the current enterprise agreement applying to the parties.

[6] Hawthorn Learning has also accepted that the NTEU has been genuinely trying to reach an agreement as required by s.443(1)(b) of the Act.

[7] No party seeks an extended period of notice for the taking of industrial action as contemplated by s.443(5) of the Act.

Matters in dispute

[8] The Act requires, in s.437(3)(b), for an application for a protected action ballot order to specify the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[9] In this regard Hawthorn Learning has submitted that it does not in principle resist the making of a protected action ballot order but that it objects to one part of one of the eight questions to be put to balloted employees. In particular, Hawthorn Learning argues that the last words of question 2 propose action which is not within the Act’s definition of “industrial action”, and moreover to act in a manner inconsistent with their employment contract.

[10] The proposed question 2, together with the preamble to all questions in the Draft Order submitted by the NTEU, is set out as follows;

“QUESTIONS TO BE PUT TO THE RELEVANT EMPLOYEES
Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the National Tertiary Education Industry Union and Hawthorn Learning Proprietary Limited, authorise industrial action, to be taken separately, concurrently and/or consecutively, in the form of:

...

2. The inclusion of statements in support of the Union’s bargaining claims and/or explaining why the Union is taking industrial action in email signatures, phone messages, the delivery of lectures, seminars, tutorials, laboratory classes, practicum and clinical education including online delivery, and communications with any person?

...”

[11] Hawthorn Learning’s objection is to the inclusion of the last two words in the question, “any person”, arguing that the inclusion of statements in support of industrial action to any person is wider than the definition of industrial action in s.19 of the Act, and an invitation to persons who might take industrial action to act contrary to their contract of employment. They cite as authority for this proposition the decision of the Federal Court in Ambulance Victoria v United Voice 1 (Ambulance Victoria). That decision held that action endorsed in a protected action ballot order and notified in the required manner to the employer as action that would be taken would not be protected by s.415 of the Act. The action included the distribution to the media of ambulance response time data. Tracey J found that the relevant action was not protected industrial action within the meaning of the Act since the employees would be taking action that was in breach of their employment contracts and that the action was not a restriction or limitation to the performance of the employee’s normal duties.2

[12] The argument was advanced in this matter that the distribution of “...statements in support of the Union’s bargaining claims and/or explaining why the Union is taking industrial action ...” to “any person” is likely to place employees in breach of the terms of their employment contract. Hawthorn Learning proposes to resolve that potential breach through a limitation to Question 2 with the proposed substitution of the words “any person” in the question with the words “students, employees and stakeholders”.

[13] The NTEU opposes an amendment of this nature.

[14] Hawthorn Learning did not make extensive submissions on the matter, and did not bring forth any evidence, including about the nature of the contracts of employment of the employees concerned.

Consideration

[15] The question for consideration in this matter is whether the Court’s determination in Ambulance Victoria, causes the Commission in this matter to refuse the application as made by the NTEU for the reason that inclusion of the words “any person” in Question 2 are outside the scope of “industrial action” as defined by the Act.

[16] In order to be protected, industrial action must be authorised by a protected action ballot. 3 The principles to be followed by the Commission in determining whether the questions to be put to balloted employees are permissible are well settled. All that s.437 requires is that the questions in a proposed order should describe the industrial action in such a way that employees are capable of responding to them. 4

[17] The meaning of “industrial action” is defined by the Act in s.19. While I refer to that section, it is not necessary for the purposes of this decision to set it out in detail, other than to note, for the purposes of context, that the definition includes;

“(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;”

[18] The Full Bench has previously held that the definition of “industrial action” in s.19 is directed to both the work the employees do and the circumstances in which they offer to do it. 5

[19] The Federal Court’s decision in Ambulance Victoria was considered in detail by Commissioner Hampton in the context of an application for a protected action ballot order in the matter of Health Services Union v Clinical Laboratories Pty Ltd T/A Healthscope Pathology. 6 (Health Services Union)

[20] In Health Services Union, the Commission considered two categories of objections by the Respondent, Clinical Laboratories, to the issuing of a protected action ballot order. The first category went to what the Commission described as the “effect” of the proposed action on Clinical Laboratories, its clients and the community; and the second category was described by him as the “scope” of the proposed action. This latter category related to those aspects of the proposed industrial action said by Clinical Laboratories to be beyond what the Commission could make, or what it might be desirable to make. The Commission in that matter found as follows;

“[15]In relation to the scope of the proposed action, Clinical Laboratories contended as follows:

● Various forms of proposed action are outside the scope of “industrial action” pursuant to s.19 of the Act. These forms of proposed action, firstly cannot form part of a protected action ballot, and secondly, they could not subsequently be regarded as protected industrial action for the purposes of s.415 of the Act;

● In considering the scope of the definition of “industrial action” in the Act, the Federal Court in Ambulance Victoria v United Voice [2014] FCA 1119 (Ambulance Victoria) found in effect that where a contemplated action or activity is outside the scope of “…work normally performed by relevant employees…” then it cannot be regarded as “industrial action” for all purposes contemplated by the Act; and

● Although the Commission, as a non-judicial body, is not formally bound by the principles of stare decisis, it is understood that as a matter of policy and practice the Commission generally adopts practices in line with this legal concept (National Union of Workers[2012] FWA 7212).

[16]Clinical Laboratories also contended that as a result of s.443 and s.437 of the Act, the Commission is limited to ordering a protected action ballot with respect to action within the definition of “industrial action”.

[17]It further contended that various forms of proposed action in the HSU application are outside the definition of “industrial action” as conceived in Ambulance Victoria for either all categories of employees, or in some cases, some categories of the employees making up the group of employees to be balloted.

[18]Clinical Laboratories provided a table of the forms of proposed action in the HSU application that would fall outside of the scope of industrial action and this involved a challenge to questions 6, 7, 8, 9 and 24 for all employees and questions 3, 11, 12, 14, 15, 16, 21, 22, 24, 27, 28, 29, 30, 31 and 33 for various classes of employees.

[19]I understand that this table was prepared to reflect the view of Clinical Laboratories that the nature of the action would not fall within the scope of work normally performed by the relevant employees.

[20]In that light, Clinical Laboratories sought that those forms of proposed action that are outside the definition of “industrial action” for all categories of employees be removed from the PABO. In addition, Clinical Laboratories sought that in relation to those forms of proposed action that are only within the definition of “industrial action” for some categories of employees, the Commission should only make a PABO relevant to those particular employees.

[21]Finally, Clinical Laboratories contended that if the HSU wished to persist with the current ballot questions, then it would appear necessary for the HSU to make application for separate protected action ballots to ensure that the questions put to the various categories of employees were limited to actions within the definition of “industrial action” for each of the respective categories of employees.” 7

[21] Health Services Union extensively analysed these matters and their connection with the application made by the Union. After consideration of his reasoning I concur with what is set out in Commissioner Hampton’s decision in Health Services Union, and do not propose to repeat that analysis in this decision, save as to its essential and relevant parts.

[22] After noting that Ambulance Victoria was dealing with an application for an injunction and was considering whether the action was protected industrial action; and noting the Court’s analysis of this Commission’s past approach to the meaning of industrial action in the context of applications for protected action ballot orders, 8 Commissioner Hampton turned to consider the impact of the Court’s reasoning in Ambulance Victoria and how it might be applied to the protected action ballot order he was required to determine. The Commission found as follows, with which I also concur;

“[50] Tracey J in effect found that the approach of the majority in ANF v Mornington was stated too broadly. His Honour also recognised the different context created by a PABO application and, in effect, endorsed the minority view of Kaufman SDP in the following terms:

“18 Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.

19 It is, however, to be borne in mind that the term “industrial action” bears the same meaning in s 437 as it does in ss 409 and 415. That is the meaning prescribed by s 19(1). In some respects, in my respectful opinion, the constructions, placed on paragraphs 19(1)(a) and (b), by the Vice President and the Full Bench majority in the ANF case, are too broadly stated.

20 In the first place, the “work” referred to in the definition sections is not “work” generally. It is the “work” performed by an employee. The relevant employee is an employee who is taking the relevant action. So much was held by Wilcox and Cooper JJ (with whom Burchett J relevantly agreed) in David’s Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550. In dealing with the equivalent definition of “industrial action” under s 4 of the Workplace Relations Act 1996 (Cth), which, notably, omitted the words “by an employee” after the words “performance of work” in the relevant paragraphs, expressed the view (at 570) that:

“… consistently with the tentative view of the Full Court in [CFMEU v Giudice (1998) 159 ALR 1], we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuades us it is likely parliament intended to confine the paragraph in this way.”

21 In CFMEU v Giudice the Full Court’s tentative view was “that para (c) [the equivalent of s 19(1)(b)] in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.”

22 The addition of the words “by an employee” in the extant definition confirms, in my view, that the definition is so confined.

23 It is, therefore, necessary to identify work normally performed by the relevant employees and the manner in which it is customarily performed. The duties of the managers include the collection and analysis of information relating to response times of ambulances in their areas. It is not part of their duties to provide such information to persons outside Ambulance Victoria, including reporters and others engaged by media outlets. It cannot, in my opinion, be said that making response time data available to the media, in breach of their contracts of employment, involves the performance of their normal work in a manner different from that in which it is customarily performed. It may be different if their work involved the provision of material to the media through certain approved channels and the employees chose to distribute the information by other means. That is not this case. The fact that the proposed action is contrary to contractual terms which are binding on the employees does not, for that reason, amount to the performance of duty in a manner different from the norm. Rules, policies and contractual provisions which proscribe conduct of certain kinds by employees regulate the conduct of those employees in the course of their employment. They do not impinge directly on the manner in which work is performed. A breach of such a proscription cannot, in my opinion, be regarded as a departure from the customary manner of performance of an employee’s work. Were it otherwise, contraventions by employees of policies which prohibit sexual harassment or discrimination of various kinds could be regarded as departures from the customary manner of performance of work and thereby amount to industrial action.

24 In any event, the proposed action in this case cannot, in any relevant sense, be said to result in a restriction or limitation on or a delay in the performance of the employee’s normal duties. What is proposed is the taking of action above and beyond and outside the range of their normal work rather than the placing of a restriction on the performance of those duties. It should not be assumed or inferred that the proposed action will interfere in any way with the performance of the managers’ normal duties. In the course of any shift brief breaks can be and are taken for purposes such as informal conversations with colleagues, toileting and meals. Such breaks do not impinge on the performance of the employee’s normal duties. Communication could occur during such times without interference with normal work. It might also occur in the few seconds involved in the dispatch of an e-mail. Like Kaufman SDP, I accept that the position might be different were the proposed conduct to include express provision for a stoppage of work, even for a short period, in order for the managers to distribute data to the media. No such action has been proposed by the AEA. Section 19(1)(a) is, therefore, not engaged.

25 For the same reasons there is no relevant limitation or restriction for the purposes of s 19(1)(b). Furthermore, there is no “ban” for the purpose of that paragraph. As Hollingworth J held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 at [34] the word “contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result.” Action 12 does not include any prohibition on work.”

[51] The issue and scope of industrial action in similar contexts has been widely considered. It is evident that both the purpose and context is relevant to the proper characterisation of conduct for present purposes.

[52] The legislative note to the definition of industrial action in s.19(1) of the Act refers to the decision of a Full Bench of the Australian Industrial Relations Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited and says that in that case the Commission ‘considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining’.

[53] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Another v Laing, the Federal Court was dealing with the meaning of industrial action under former Workplace Relations Act 1996 in the context of an application to suspend or terminate industrial action. French J found:

“Notwithstanding these limitations, it has been said, and in my opinion correctly, that for the purposes of s 127 “industrial action” is widely defined Coal and Allied Operations Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industrial Union (1997) 73 IR 311 at 121 (AIRC Full Bench). It extends to conduct by way of communication. While para (a) of the definition relates to the “performance of work”, para (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work...”. The central meaning of the term “ban” in the industrial, as in its ordinary, usage is to “prohibit or interdict”: Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in para (a) of the definition. Under para (b) it extends to the communication of a limitation or restriction. Communication picked up under paras (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed.

In the ordinary course of such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work it is industrial action because of its instrumental character. Notwithstanding that it is communication it falls within the terms of the definition.

So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee’s perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 implies.”

[54] These observations remain apposite but must of course be considered within the particular statutory definition of industrial action applying at that time.

[55] In light of the decision of the Court in Ambulance Victoria some of the proposed action may not be industrial action as defined. However, as indicted in that decision, this would depend upon whether the proposed action involved the employees concerned undertaking that action in a manner that resulted in a restriction, limitation or delay in the performance of the employee’s normal duties. There is little material before the Commission that would enable detailed findings to be made.

[56] In any event, the questions stated in the ballot contemplate the action being (notified) and taken separately, concurrently and/or consecutively. If some of the proposed action was taken separately, it might well be problematic in terms of whether it would fall within the scope of industrial action, depending upon the circumstances of the employees concerned. However, if taken concurrently with the stoppage, delay or limitation of the normal performance of work, the result may well be different. The potential for “industrial action” to be taken in such a manner was specifically recognised in Ambulance Victoria at [24].

[57] As a result, there is potential, depending upon who, how and when the proposed action is taken, for the various forms of action contemplated in the PABO to fall within the scope of industrial action as contemplated in Ambulance Victoria.

[58] Given the present role of the Commission, the particular circumstances of this matter and the variables and considerations associated with whether the proposed action might ultimately fall within the scope of s.19 of the Act, it was not appropriate to hear evidence about these matters at this point.

[59] On that basis, I found on balance that the questions as proposed were capable of inclusion as part of a PABO in the present context.

[60] I also note that depending upon the variables and circumstances outlined above, some of the proposed action may be problematic in terms of being industrial action within the meaning of the Act. If it is supported by the ballot and notified, but ultimately found not to be industrial action when considered in context, it would not be protected industrial action within the meaning of the Act.

[61] That is a matter for later consideration if the circumstances arise and Clinical Laboratories has clearly put the HSU on notice about that prospect.” 9 (references omitted)

[23] The application made by the NTEU and resisted by Hawthorn Learning, at least in respect of Question 2, seeks balloted employees to vote on eight questions for the purposes of deciding whether industrial action might be taken at some later, indeterminate, date. The contention is advanced by Hawthorn Learning that distribution by employees “... of statements in support of the Union’s bargaining claims and/or explaining why the Union is taking industrial action ...” to “any person”, being a class of persons broader than the category preferred by Hawthorn Learning of “students, employees and stakeholders”, amounts to an invitation to employees to take action which is not industrial action as defined or is an action in breach terms of their employment. The possibility of a contractual breach is advanced, so I understand Hawthorn Learning’s position, in the same way that the Federal Court was invited to consider the action proposed in Ambulance Victoria;

“2 One of the actions approved in the ballot was identified as “Action 12”. It read:

“12. Members who are acting/appointed Team Managers and Senior Team Managers will make all response time data for available (sic) to the media without the approval of Ambulance Victoria’s Executive General Managers.”
The Secretary of the AEA subsequently advised Ambulance Victoria that it was only proposed that members would take such action during their “function time” which referred to normal hours of duty.

3 The “response time” is the time taken between the receipt of a call for ambulance assistance and the time at which the first responding unit arrives to treat the patient. The term is broad enough to encompass aggregate figures for response times on a State wide basis, on a district or branch basis, or in individual cases.

4 In the course of their duties the managers access response time data which relates to ambulances within the area that they manage. The data is used by the managers in order to inform their decision making.

5 It was common ground that, were the managers to release response time data to the media without the approval of more senior managers, they would breach terms of their employment contract which proscribed the disclosure of such information without authority. In particular, the terms of Action 12 pick up a provision of Ambulance Victoria’s media comment policy which stipulates that “operational staff must not … release AV data without the authority of the Executive General Managers–Operations.”“ 10

[24] I understand Hawthorn Learning’s argument to be not dissimilar; that an employee who distributes “...statements in support of the Union’s bargaining claims and/or explaining why the Union is taking industrial action ...” to “any person” is likely to be in breach of the terms of their employment contract which might otherwise limit their distribution of statements merely to “students, employees and stakeholders”.

[25] In considering these arguments by Hawthorn Learning, I echo the findings of Commissioner Hampton that whether the proposed action may not be industrial action as defined will depend on whether the proposed action involved the employee undertaking their work in a manner that resulted in a restriction, limitation or delay in the performance of their duties. That will necessarily require findings of fact that are not open to me on the material presently before me, and would more appropriately be made at a different time. In this regard, I note the findings of the Full Bench in the matter of Esso Australia Pty Ltd v AMWU and Others 11 about the meaning of the part of the Act dealing with protected action ballot orders. While that matter was concerned with whether the Applicant for an order was “genuinely trying to reach an agreement”, the analysis is no less relevant to this matter. The Full Bench found the following;

“[52] Division 8 of Part 3-3 of the FW Act deals with protected action ballots. The object of the Division is ‘to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.’ (s.436). Industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot (see ss.408 and 409). However the making of a protected action ballot order does not mean that any industrial action authorised by the relevant employees, or any resulting industrial action, will be protected. The ballot order (and the result of the ballot) does not of itself confer protected status - the industrial action must also meet the other requirements of s.409 in order to be protected and to attract the immunity in s.415.” 12

[26] After consideration of all the materials before me in this matter and with reference to the earlier decisions of the Commission, I consider that the application made by the NTEU and the questions to be put to the employees to be balloted sufficiently describe the particular industrial action. I find that the questions is not so wide or vague as to not be capable of being understood by those called upon to vote in relation to the question. I am unable to find that the wording proposed by the NTEU for Question 2 should not be included in an Order.

[27] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NTEU. An Order consistent with the NTEU’s amended application was issued by the Commission separately to these reasons for decision. 13

COMMISSIONER

Appearances:

Mr R Thomas for the National Tertiary Education Union

Mr K Vrolyk for Hawthorn Learning Pty Ltd

Hearing details:

2015.

Adelaide:

21 April

 1 [2014] FCA 1119

 2   Ibid, at [26]

 3   John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2010] FWAFB 526, (2010) 194 IR 239, at [14]

 4   Ibid, at [19]; see also Re: Mornington Peninsula Shire Council[2011] FWAFB 4809, at [40]

 5   [2011] FWAFB 4809, at [30]

 6   [2014] FWC 8809

 7   Ibid, at [15] - [21]

 8 Ibid, at [49], with reference to [2014] FCA 1119, at [14] – [17]

 9   [2014] FWC 8809, at [51] - [60]

 10 [2014] FCA 1119, at [2] – [5]

 11   [2015] FWCFB 210

 12   Ibid, at [52]

 13   PR563294

Printed by authority of the Commonwealth Government Printer

<Price code C, PR563338>