Nulsen Group Ltd formally "Nulsen Haven Association Incorporated"

[2021] FWCA 6338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Nulsen Group Ltd formally "Nulsen Haven Association Incorporated"
(AG2021/6876)

NULSEN HAVEN ASSOCIATION INCORPORATED AND UNITED VOICE ENTERPRISE AGREEMENT 2015

Social, community, home care and disability services
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 NOVEMBER 2021

Application for termination of the Nulsen Haven Association Incorporated and United Voice Enterprise Agreement 2015

[1] Nulsen Group Ltd (formerly Nulsen Haven Associated Incorporated) (Nulsen) filed an application on 24 August 2021 seeking the termination of the Nulsen Haven Associated Incorporated and United Voice Enterprise Agreement 2015 1 (the Agreement), pursuant to s 225 of the Fair Work Act 2009 (Cth) (Act). The Agreement has passed its nominal expiry date of 31 December 2017.

[2] Nulsen provides several services to the community, including disability services in the form of supported independent living (SIL) for people with complex disabilities. It operates its SIL services through group home care in which four to five residents live together in a home. Most residents require care 24 hours a day, seven days a week. This care is provided by Nulsen’s support workers who are covered by the Agreement.

[3] That same Agreement, which is the focus of this dispute, covers both the Nulsen Group and the United Workers Union (UWU), notwithstanding references within it to the former names of the two entities. The employees covered by the Agreement are the aforementioned ‘support workers’ 2 who provide care to resident ‘service users’ in Nulsen’s SIL group homes. For the purpose of this decision, Nulsen’s ‘service users’ are simply referred to as ‘residents’. It is accepted that the UWU has coverage of workers in the disability services sector in Western Australia.

[4] From August 2017, Nulsen and the UWU have been bargaining for a new enterprise agreement. Applications were lodged with this Commission in July 2020 to deal with a bargaining dispute and to terminate the Agreement. This ultimately saw Nulsen and the UWU enter Interest Based Bargaining (IBB) facilitated by the Commission. However, a proposed agreement did not materialise.

[5] In June 2021, the UWU discontinued the IBB process. It advised Nulsen to put an agreement to the vote as the two were no closer to reaching consensus on the terms of a replacement agreement. A proposed agreement was voted down after the UWU campaigned against a ‘yes’ vote. Subsequent to the unsuccessful vote, Nulsen made the current application.

1 Context

[6] Nulsen was established in 1954 by parents of children with severe disabilities who found that there were no support services available that tailored to their needs. 3 Its charitable purpose is ‘to empower people to live their best life’; a purpose which is sought to be achieved through the organisation’s core values of being collaborative, compassionate, courageous, resilient and respectful.4

[7] Its structure is multidimensional with functions referable to services. Services include Disability Services, Outcare, Exceptionally Complex Support Needs, Pillar Support Coordination, and Melior Positive Behaviour Support. 5 Disability Services and Outcare are delivered exclusively by Nulsen, whilst other services are delivered in conjunction with Nulsen’s external partners.6 Nulsen’s Outcare division was the product of a merger between Nulsen and Outcare (a separate entity), which was completed in May 2019.7

[8] Nulsen currently operates 56 group homes/units in the Perth metropolitan area. It has 224 residents overall with seven residents living individually in a Nulsen home. The seven residents do not require assistance 24 hours a day, seven days a week, but require some assistance with daily tasks at particular times of day, such as preparing meals, completing housework, or dressing. 8

[9] Each resident has unique needs and has a tailored disability service plan. 9

[10] Nulsen provides its SIL services under the funding structure of the National Disability Insurance Scheme (NDIS). 10 The Western Australian disability sector became subject to the Commonwealth NDIS in December 2017. This change required Nulsen (as well as other similar providers) to transition from being funded by the Western Australian Government under its state funding model, to being funded by the Commonwealth NDIS.

[11] The NDIS sets the price of services via the ‘Disability Support Worker Cost Model’. NDIS funding for Nulsen residents in SIL group homes is calculated based on the pay rates and entitlements set out in the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). 11

[12] However, the Agreement, not the Award, applies to support workers that deliver services to Nulsen’s group residents and, in a minority of cases, to non-group residents. There are approximately 579 employees covered by the Agreement. 12 The work of Nulsen’s support workers covered by the Agreement does not relate to Nulsen’s other functions.13

[13] The Agreement commenced its operation at a time when funding was provided to Nulsen through the Western Australian Government. 14 The transition to the NDIS did not commence until 2017. Hence, when the Agreement was made in 2015, Nulsen did not know what funding arrangements would be introduced under the new scheme.15

[14] At this juncture the funding arrangements of Nulsen warrant further attention given the basis of Nulsen’s application is premised in part on its perilous financial circumstances.

1.1 Historical funding arrangements of Nulsen

[15] Nulsen’s CEO, Mr Trewern, proffered further detail about the historical funding arrangements under the State Government. Before providing that detail, it is relevant to observe that Mr Trewern appeared well placed to speak of such arrangements and the implications arising from the transition to the NDIS. He had been the CEO of Nulsen for some 27 years and for the last seven years had been the director of the National Disability Services – the peak body for non-government disability service providers. His evidence regarding the historical transition from state to federal funding was unchallenged.

[16] Mr Trewern relayed that State Government funding for disability services had been in place since at least the 1980s. 16 Under the state funding model, funding operated through individualised plans and funding for residents.17 Workforce funding was initially benchmarked against Western Australian state awards. The ‘sleep shift’, which is included in the Agreement and will be referred to at a later point in this decision, was inherited from the State Government funding model and state industrial award structures from the 1980s.18

[17] Twenty years ago, the Western Australian Government introduced a new funding structure called ‘Business Rules’ for the non-government disability support sector. 19 This new structure included an annual wage analysis and was based on the actual wages cost of support plus a 15% administrative margin and an indexation factor.20 The indexation was determined through an 80/20 rule: 80% by wage costs and 20% by the Consumer Price Index (CPI), which together produced an annual indexation rate.21 According to Mr Trewern, this system recognised both wage cost increases and the effect of the CPI every year. The entirety of the funding grant from the State Government was automatically indexed every year in accordance with this state indexation policy.

[18] The Business Rules’ system also used a tool known as ‘ERSSI’, which was a support indicator. The tool was used to assess an individual’s needs and the appropriate funding level according to those needs. 22 Mr Trewern gave the example that under ERSSI a resident might be assessed as requiring $250,000 of funding. This was, according to him, a highly reliable and predictable measure. Further, it made it possible to identify any shortfall and that shortfall would be discussed with the State Government who would often award an increase.

[19] Mr Trewern expressed that the old funding structure had been built on an understanding of the true cost of business, including actual wages costs. 23 The structure also understood and allowed for particular industrial arrangements to be negotiated with employees, because each provider had funding in place based on the actual wages costs that applied to their operation.24

[20] As observed, the Western Australian disability sector became subject to the NDIS in December 2017 and thereafter a transitional funding arrangement was put in place which, according to Mr Trewern, had now ended. 25 The last resident of Nulsen to transition from state funding to the NDIS, did so in the last financial year.26

1.2 The funding cost model under the NDIS

[21] Mr Patching, the Chief Financial Officer of Nulsen, took some time to describe and explain for the Commission the financial difficulties confronting Nulsen. He was an unemotive witness who endeavoured to take the Commission through several reports, including annual and financial reports. He was responsive to all questions asked. He diligently traversed financial matters with care not to mislead. He demonstrated no evasiveness.

[22] Mr Patching held the qualification of Chartered Accountant and was a Member of Chartered Accountants Australian and New Zealand. Before working at Nulsen, he was the Finance Business Partner and Financial Controller at the University of Western Australia. I considered him well positioned to speak reliably about the financial circumstances of Nulsen, its revenue sources, and expenditures.

[23] Mr Patching explained that Nulsen was reliant on external funding. There were three primary sources of funding: (a) funding from government grants and schemes; (b) donations, fundraising and bequests income; and (c) gains (or losses) on realizing financial assets. 27

[24] Predominately however, funding derived from the Commonwealth Government with 91 % of residents funded via the NDIS and the remaining 9%, who were over the age of 65 years, funded by the Commonwealth based Disability Support for Older Australians (DSOA) scheme. 28 Mr Patching stated that the DSOA closely matched the NDIS funding principles.29

[25] Mr Trewern described the NDIS funding cost model in some detail. 30 Funding for each resident was against an annual NDIS plan that had been prepared for them.31 The NDIS plan specified the amount of funding for that year, calculated on a ‘per hour’ amount of service provided.32

[26] Mr Trewern stated that the NDIS cost model did not provide funding for the same level of services when compared to the state funding system. It did not cater for the costs of providing 24/7 care to people with complex disabilities, that had been assumed to be available under the Agreement. 33

[27] As noted, the NDIS cost model is calculated using the pay rates and other entitlements in the Award. Nulsen provided a schematic overview of the NDIA Disability Support Worker Cost Model (Cost Model):

[28] Mr Trewern explained that the Cost Model operated from certain assumptions, including that overheads were fixed at 12% of direct costs, margins at 2% and the supervisor to support worker ratio was 1 to 15. 34

[29] Mr Trewern stated that the Award and the abovementioned assumptions were used to calculate the ‘cost per hour of support’ by each support worker, together with indexation factors for labour costs and capital cost. The NDIS then determined the amount of service it deemed necessary for each supported person. This, said Mr Trewern, was done via a ‘Roster of Care’, which was also based on the Award’s hours of work and working patterns. 35 Therefore, a residents’ NDIS plan accordingly stated a number of hours of support available to the person on an annual basis and in light of the NDIS assessment of their needs.36

[30] As to the difference between the State and Federal funding models, Mr Trewern stated that essentially under the NDIS cost model, the NDIS determined Nulsen’s funding income for disability services with direct reference to the Award and assumptions about capital costs. 37 This differed from the state model, where funding was referenced to actual wage and actual capital costs, including those wage costs created by enterprise bargaining at a particular service provider.38

[31] Mr Trewern outlined that there were other material differences between the two funding models, which included:

a) under the NDIS system, overheads were funded as 12% of direct costs, compared to 15% under the state system;

b) not all plans are automatically indexed annually. When a resident’s plan is reviewed, the NDIS may apply indexation on the package or it may not;

c) if a plan’s funding is indexed it is by reference to CPI – not to wage costs;

d) the NDIS does not fund where there is a vacancy in a residence therefore a funding deficit exists until a new person takes residence (under the state system there was a continuation of funding for three months to allow a suitable new resident to take up residence);

e) the NDIS funds two days’ training per year in contrast to the state system which allows 12 to 15 days a year;

f) Nulsen employed six full-time staff simply to complete plan reviews with the NDIS, which is not funded by the model;

g) the NDIS does not fund the cost of wheelchair modified vehicles, which are essential to be able to transport residents (state system funding 90% of the costs of such vehicles).

[32] Another key difference said to exist between the Award and the Agreement was the penalties that applied to shifts – particularly the sleep shift. Mr Trewern explained that because the NDIS cost model was set by reference to the Award, the Agreement penalties that were in addition to the Award, were unfunded. 39

[33] On transition to the NDIS, Nulsen requested that the Western Australian Government allow it to retain $1.5 million in underspent funds; the request was declined. 40 Nulsen also asked the Western Australian Government for assistance with its funding shortfall relating to its nursing services; the request was refused.41

[34] While Nulsen did not expect, and had not budgeted for, any future funding from the Western Australian State Government, it was able to secure a Lotterywest grant in June 2020, which it used to pay for personal protective equipment to manage the effects of COVID-19.

[35] In short, it was said that the Disability Services division was resourcing its labour under an enterprise agreement built for a different funding model. The labour costs of running Nulsen Disability Services constituted approximately 88% of the overall cost in FY21. 42 Mr Trewern stated that Nulsen Disability Services is presently operating at a loss of $400,000 per month, with a projected deficit of $5 million for the financial year.43 The forecast overall for the Nulsen Group was a loss of approximately $3 million.44

[36] Mr Patching detailed that staffing costs of FY21 amounted to $60.64 million of the total expenditure of $69.95 million (86.7% of all operating expenditure). 45 Mr Patching said that on his review of Nulsen’s annual reports, it was evident that staffing costs had been consistently between 85% and 92% of total operating expenses since at least 2015.46 In this respect, Mr Patching was referring to total staffing costs. However, in relation to Nulsen Disability Services staffing costs, these amounted to approximately 88% in the FY21 year.47 Other expenses for Nulsen Disability Services predominately related overhead costs – such as administration and management wages, insurance, IT costs, vehicle usage, and depreciation etc.

[37] Mr Patching gave evidence that as of March 2021, more than 55% of Nulsen’s SIL houses (a total of 56 houses) were operating at a loss. 48 Of the 21 loss-making houses:

a) deficits ranged from $20,000 to $250,000 when compared to funding prior to FY21;

b) 15 of the houses had no funding review in FY21;

c) 12 of the 31 loss-making houses transitioned to the NDIS in FY21. Two houses were better off due to an increase for very high medical needs for one resident;

d) the other four remaining loss-making houses had already transitioned to the NDIS, and plans were reviewed in FY21. 49

[38] Having reviewed the financial accounts for Nulsen Disability Services, Mr Patching said that the accounts showed that it had been running at a loss for the past four years and that the forecast loss for it in FY22 was projected to be $1.8 million to $ 5 million. 50 Further, based on Mr Patching’s review of the year to date accounts on 31 August 2021, Nulsen was currently in deficit by $2.003 million. The year to date operating deficit was larger, at $2.087 million, but had been slightly mitigated by investment income of $85,000.51

[39] The original forecast position for Nulsen in its budget for FY22 (as calculated and provided to the Board in June 2021) was a $1.8 million deficit, said Mr Patching. 52 The difference between NDIS funding for staffing costs and the actual staffing costs under the Agreement, accounted for $1.4 million of the total $1.8 million loss.53

[40] Mr Patching updated forecasts on 31 August 2021. He noted that Nulsen now projected a $5 million loss for Nulsen Disability Services. He continued that a superficial projection of the ‘year to date’ position, as presented in August, confirmed this projection. 54

1.3 The UWU’s view on Nulsen’s financial situation

[41] Mr Whenan, National Disability Sector Coordinator at the UWU, expressed that Nulsen did not receive the full amount of funding they were able to access for sleepover shifts, because they did not record when people were being supported during a sleepover shift, including when workers were woken up, or when workers were not able to go to sleep. 55

[42] He continued, that under the state funding model, Nulsen was not required to record time worked but that the NDIS funding model differed and required time to be recorded if it was to be claimed. 56

[43] Mr Whenan’s understanding was that sleepover shifts represented a significant cost to Nulsen, and that the UWU had raised that the organisation could be accessing additional funding. 57 As far as he knew, Nulsen had not adopted this practice.58

[44] Mr Whenan pressed that the financial forecasts provided by Nulsen in its Form F24C represented the worst-case extrapolations. 59 He noted that he had been told by Nulsen that its management costs were high at approximately 15.9%, despite funding for overheads being at approximately 12%.60

[45] However, at hearing, the UWU did not challenge the financial circumstances of Nulsen as presented by Mr Patching and Mr Trewern, regarding the organisation running at a loss.

1.4 Board decision

[46] Mr Trewern said that the Board of Nulsen had been required to act as a result of Nulsen’s outlook. At a special board meeting on 15 September 2021, it convened to discuss the financial situation of Nulsen Disability Services and resolved:

a) Nulsen must serve notices of discharge on 13 residents by 1 October 2021, unless the NDIA agreed to provide a higher level of funding for the 13 residents; and

b) Nulsen must serve notices of discharge to another 36 residents by 1 December 2021, unless the NDIA agreed to provide a higher level of funding for the 36 residents. 61

[47] Mr Trewern informed the Commission that the resolutions had been notified to the WA Minister for Disability Services, the Federal Minister for Government Services, and the Director-General of the WA Department of Communities.

[48] The implication for the residents in receipt of a notice of discharge was that Nulsen would have three months to assist the resident to find an alternative provider, and if one could not be located the resident would be discharged into a tertiary hospital. 62

[49] While Nulsen had sent correspondence to the NDIA and to Ministers advocating its position, Mr Trewern expressed he was not confident that Nulsen’s correspondence would change anything.

1.5 Bargaining for a new enterprise agreement

[50] The parties filed a comprehensive ‘Statement of Agreed Facts’ from which the following bargaining history is derived.

[51] Bargaining for a new enterprise agreement commenced on 1 August 2017 and extended until 20 July 2020 (First Round of Bargaining). The First Round of Bargaining was conducted between the Nulsen and the UWU. The UWU was the bargaining representative for the support workers to be covered by the new enterprise agreement. 63

[52] By July 2020, a small number of new terms were agreed in principle, largely based on the UWU’s log, said Ms Madaffari, the Manager of Industrial and Workplace Relations for Nulsen. 64 However, according to Ms Madaffari, no terms had been agreed which contributed to creating a financially sustainable enterprise agreement.65 In short, the First Round of Bargaining did not culminate in a new enterprise agreement. No agreement was put to the vote.66

[53] Nulsen lodged an application on 17 July 2020 for the Commission to deal with a bargaining dispute and to terminate the Agreement. 67 As a result of the bargaining dispute application, Nulsen and the UWU entered IBB and the application to terminate the Agreement was withdrawn.68

[54] Bargaining recommenced for a new enterprise agreement on 12 October 2020 and extended until 30 June 2021; it included the IBB in the Commission (Second Round of Bargaining). 69 The IBB sessions occurred on 12 October 2020, 11 November 2020, and 1 December 2020.

[55] From the beginning of 2021, the UWU and Nulsen met for bargaining discussions outside of the IBB process on 20 January 2021, 10 February 2021, 23 February 2021, 4 March 2021, 11 March 2021, 17 March 2021, 30 March 2021, 25 May 2021 and 30 June 2021. The IBB process was discontinued on 18 June 2021. 70

[56] In the Second Round of Bargaining, the bargaining representative for the employees was the UWU. Again, Nulsen and the UWU were unable to agree the terms of a new enterprise agreement.

[57] No individual employees acted as their own bargaining representative in either round of bargaining.

[58] At the bargaining meeting on 30 June 2021, the UWU advised Nulsen to put an agreement to the vote, which Nulsen did. 71 It was unsuccessful with the proposed agreement being voted down by a mark of 324 votes to 48 votes.72

[59] While the parties provided an agreed account of the chronology of bargaining, both contributed additional evidence regarding what had occurred.

[60] Mr Whenan informed the Commission that he had been involved in the bargaining for a replacement agreement since February 2021. 73 It was his view that the parties were close to reaching an agreement in March 2021, but as of May 2021, Nulsen had changed its position indicating it wanted an agreement closely aligned to the Award.74 To support its position, Nulsen had provided Mr Whenan with a report detailing its financial position.75

[61] Mr Trewern confirmed that Nulsen had been attempting to bargain to replace the Agreement since 2017, when the NDIS funding model was introduced. 76

[62] It was Mr Trewern’s view that the failure of bargaining demonstrated that the UWU was not prepared to bargain for a set of terms and conditions that reflected the NDIS funding model. 77

[63] Ms Madaffari gave evidence that on 25 May 2021 Mr Patching presented a financial information presentation to again demonstrate the funding constraints within which Nulsen had to operate. 78 Presentations concerning the financial position of Nulsen were provided on 1 December 2020,79 11 November 2020,80 and 8 June 2020.81

[64] On 17 September 2021, after the termination application, the UWU invited Nulsen to a bargaining meeting via ‘Zoom’. 82 Shortly prior to the meeting, the UWU provided a proposal in relation to certain clauses, including the sleep shift. The proposal included a penalty that was different to that in the Agreement and Award.83 Mr Patching costed the proposal, the UWU disagreed with the costings.84

1.6 The impact of Agreement termination

[65] Mr Needham, a support worker, had been employed by Nulsen since 2007. He claimed there would be several reductions in his terms and conditions of employment if the Agreement was terminated, including:

a) a loss of approximately $6,817.98 a year due to changes to sleep shifts; 85

b) reduction in long service leave from 13 weeks after 10 years to 8 2/3 weeks;

c) reduction in annual leave entitlements by two weeks a year;

d) reduction in uniform, laundry and lodging allowances;

e) a reduction in sleepover shift penalties;

f) loss of journey cover insurances;

g) loss of access to union delegates and union information; and

h) loss of access to the location allowance, buddy shift allowance, and mandatory training allowance. 86

[66] Similarly, Ms Hall spoke of losing $14,679.79 a year because of the changes to sleep shifts. 87 She detailed that the paid portion of her sleep shift would reduce from eight hours to four hours.88 Ms Hall worked four sleep shifts a fortnight and was currently paid a loading of 35.7% for sleep shifts on weeknights, which equated to approximately $90.74 per shift. On weekend sleep shifts she received a loading of 75%. Ms Hall said that she had been told that under the Award she would only receive a payment of $50.53 for each sleepover.89 Like Mr Needham, Ms Hall referred to the reductions in terms and conditions of employment, including long service leave, annual leave and shift penalties.90

[67] Messrs Watson and Cherry, 91 both support workers, gave a comparable account of reductions in terms and conditions of employment, with Mr Watson purporting he would see a reduction in his remuneration of $730.71 a year from changes to ‘awake’ shift loading.92

[68] Mr Whenan foreshadowed the detrimental impacts that would arise from the termination of the Agreement. Briefly stated, these included:

a) full-time workers being required to work for longer to achieve their contracted hours; 93

b) a significant impact on employees because of the difference in the length of the paid portion of a sleep shift between the Agreement and the Award;

c) employees being tired and therefore the quality of support would reduce;

d) more Nulsen workers being required to work more than one job;

e) less choice and control for people being supported if Nulsen is unable to fill shifts, or are forced to use agency staff more often;

f) diminution in Nulsen’s ability to meet the Roster of Care because of increased turnover; and

g) exacerbation of problems caused by COVID-19. 94

[69] Mr Trewern confirmed that the termination of the Agreement would allow Nulsen to operate within the parameters of the NDIS cost model which adopted Award rates and entitlements as the basis to calculate the value of the hours of service available to Nulsen’s residents. 95

[70] In addition to being able to operate within the parameters of the NDIS, Mr Trewern outlined other productivity benefits that would follow from the Agreement’s termination:

a) the absence of a 4-hour minimum shift requirement under the Award, unlike that provided for in the Agreement, would allow Nulsen to optimise shifts and care to best meet the needs of the residents;

b) as the Award provided fixed rosters Nulsen would be able to roster with more precision by reference to the exact duration of the scheduled work, unlike the Agreement which did not require fixed days of work or fixed start and finish times;

c) the Agreement provided accrued days off (ADO), to be accrued at a rate of 3 minutes per hour of each ordinary hour of work, equating to 12 ADOs a year – there was no equivalent provision in the Award, meaning fewer staff would be required to perform the same services;

d) leave would similarly accrue in accordance with the Award, meaning more work would be performed; and

e) there would be more opportunity for deploy personnel between Nulsen’s’ functions as Nulsen’s Outcare division was governed by the Award. 96

[71] Mr Trewern held the view that the application of the Award would enable Nulsen to continue to provide its services seamlessly to residents without change, and without discharge. 97 However, he noted that it was not Nulsen’s preference to operate under the Award as it preferred to conclude an enterprise agreement that was suitable and appropriate for its support workers.98

2 Undertaking

[72] If the Commission terminates the Agreement, Nulsen undertook to implement the following:

a) apply Parts A, D (with the exception of clauses 34 and 36), E, F and G of the Agreement for a period of three months after the date on which the Commission terminates the Agreement;

b) in lieu of Part B, Part C and clauses 34 and 36 of Part D, apply the Award; and

c) apply the Award in the event that the preserved Parts of the Award cannot be sensibly read together. 99

3 Consideration

[73] The financial circumstances of Nulsen occupied the most part of its submissions in support of the Agreement’s termination. It contended that the termination was not contrary to the public interest and was appropriate in all of the circumstances as it was under significant financial distress.

[74] As should be evident by now, Nulsen contended that its funding for its SIL services were almost entirely determined by the NDIS. The NDIS cost model was aligned with the Award rather than staffing costs at the enterprise level under the Agreement. This change to the funding structure had resulted in continued decreases in funding on the gradual introduction of the NDIS model in 2017. And, as such, Nulsen Disability Services had been operating at a deficit in the last four financial years. For FY21/22, Nulsen had projected a $5m loss for its Disability Services arm, and a $3.5 million loss for its organisation overall. 100

[75] In light of these funding constraints, Nulsen had been attempting to negotiate a new enterprise agreement with the UWU since August 2017. During the bargaining that led to this application, the UWU did not compromise on any financial claim that would have allowed Nulsen to align to the NDIS cost model. It was Nulsen’s view that bargaining had reached an end point following the UWU’s discontinuance of an IBB process that was facilitated by the Commission. 101

[76] The UWU opposed the termination of the Agreement, on the ground that termination would have a serious detrimental effect on Nulsen employees, the vulnerable residents of Nulsen, and on the general public.

[77] Turning to the various obligations and mechanisms to enable bargaining for the making of, approving, varying, and terminating an enterprise agreement, they are set out in Part 2-4 of the Act.

[78] Those obligations and mechanisms include an obligation to bargain in good faith, 102 and an ability to obtain, by order of the Commission, bargaining orders,103 serious breach declarations,104 majority support determinations,105 and scope orders.106 Additionally, Part 2-4 of the Act gives the Commission the ability to deal with a bargaining dispute.107

[79] However, it is Division 7 of Part 2-4 that sets out the legislative mechanisms for the termination or variation of an enterprise agreement. Subdivision C of that Division prescribes the manner in which an enterprise agreement may be terminated. Whether the enterprise agreement is in term or has passed its nominal expiry date, termination is a separate and distinct process contemplated under the Act. The termination process can proceed at any time when steps are under way to arrive at a replacement enterprise agreement.

[80] The provisions for terminating an enterprise agreement past its nominal expiry date are set out in the following sections of the Act:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[81] In Re Aurizon Operations Limited, the Full Bench of this Commission stated that the abovementioned provisions must:

be construed in a manner that is consistent with the language and purpose of the provisions by reference to the language of the Act as a whole, and so the context, general purpose and policy of the provision are an important means by which the meaning and effect of a provision is to be ascertained. 108

[82] The objects of Part 2-4 provide that context, in addition to the objects of the Act, which are set out below:

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians.

[83] The means by which the Objects of the Act are to be achieved is set out in the various paragraphs enumerated in s 3 as follows:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.

[84] There remain other sections of the Act that provide context when construing s 226 of the Act. In Re Aurizon Operations Limited, the Full Bench summarised those sections. For the sake of brevity, they are mirrored here: 109

• Provisions that enable employees to organise and engage in protected industrial action described as employee claim action and employee response action, 110 and those enabling an employer to respond to employee action through employer response action.111 Subject to compliance with the various statutory preconditions, such action when organised or taken will attract a limited immunity from suit.112 Unlike the corresponding provisions in the Workplace Relations Act 1996,113 an employer is not permitted to engage in protected industrial action for the purpose of supporting or advancing its claims in bargaining except in response to employee claim action.

• Under the statutory scheme, whilst an employer and a valid majority of employees may make an enterprise agreement which has statutory effect if subsequently approved by the Commission, there is nothing in the scheme which compels bargaining parties to reach or make an enterprise agreement. This is made clear in the provisions dealing with the good faith bargaining requirements. 114

• Division 4 of Part 2–4 contains the pre-approval steps, the approval steps and the content requirements for an enterprise agreement. Relevantly one of the content requirements is that an enterprise agreement must specify a date as its nominal expiry date and that date may not be more than 4 years after the day on which the Commission approves the enterprise agreement. 115

• The operation of an enterprise agreement is dealt with in s 54 of the Act. An enterprise agreement commences to operate from either seven days after it is approved by the Commission or from any later date that is specified in the agreement. 116 An enterprise agreement will cease to operate either on the day on which a termination of the agreement comes into operation pursuant to ss. 224 – 227,117 or another enterprise agreement that covers the employees comes into operation and there are no employees to whom the first agreement applies,118 whichever occurs earlier.

[85] The Act provides a marked distinction between rights and obligations of those covered by an enterprise agreement during the nominal term, and after the expiry of the nominal date. For example, during the nominal term, no industrial action may be organised or engaged in, 119 and industrial action may be prevented by order of the Commission.120

[86] The legislative scheme facilitates the making of enterprise agreements but does not mandate that result. Once an enterprise agreement is made, and approved by the Commission, it seems clear that the legislative scheme does not intend that such agreements operate in perpetuity. 121 Agreements have a finite nominal life. At the end of the nominal life of an agreement, bargaining parties may bargain for a new agreement utilising all of the tools available under the Act; a person to whom an agreement applies may take steps to bring the agreement to an end in accordance with the provisions of the Act, or both may occur.

3.1 Section s 226(a) – not contrary to the public interest

[87] Having regard to s 226(a) of the Act and the manner in which the public interest is to be assessed, the Full Bench in Aurizon 122 cited various passages from the Full Bench of the Australian Industrial Relations Commission’s decision in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000123 (Kellogg), which had concerned the corresponding, but not identical, provision from the Workplace Relations Act 1996 (Cth). Relevantly, these passages included:

The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them… 124

[88] For the following reasons I am satisfied that the termination of the Agreementis not contrary to the public interest notwithstanding the argument pressed by the UWU.

[89] The UWU submits that there are three compelling reasons why the current application is contrary to the public interest, namely:

a) it is contrary to the express provisions in the Agreement regarding its disposition following expiry;

b) it would diminish Nulsen’s ability to attract and retain staff, and promote industrial disharmony and disruption in the midst of a global pandemic; and

c) it would significantly impede the UWU’s ability to negotiate for its replacement.

[90] While the UWU has at times framed the ‘test’ as one which ‘is contrary to the public interest’, the factor in s 226(a) is a negative factor – termination is not contrary to the public interest (as opposed to being a positive factor that termination is in the public interest).

[91] Expanding upon the first reason, it was submitted that fundamental to the regime created by the Act was that parties honour the commitment that they have made in enterprise agreements. This, said the UWU, was reflected in the Objects of the Act, the enforcement mechanisms contained within the Act, and the very regime of industrial regulations itself.

[92] Referring to clause 4 of the Agreement, the UWU observed that it provided:

Date and Term of Agreement

4.1 This Agreement shall operate from 7 days after approval by the Fair Work Commission to the nominal expiry date of 31 December 2017.

4.2 Notwithstanding the provision of sub-clause 4.1, this Agreement shall continue to operate until it is replaced in accordance with the provisions of the Fair Work Act 2009.

[93] The UWU submitted that by applying to terminate the Agreement, Nulsen sought to disavow the clear commitment made in the Agreement to its continuing operation until replacement. Facilitating a disavowal of the agreed position in relation to the disposition of the Agreement subsequent to expiry would, said the UWU, be contrary to the public interest and such consideration alone was sufficient to dispose of the application. In this respect the UWU drew support from the decision of Cochlear Limited v AFMEPKIU 125(Cochlear) where the Full Bench held:

The Appellant, having agreed that the Agreement would only be terminated by the agreement of the parties, but its very application to the Commission seeks to have the Agreement terminated against the will of the union party to it. To allow a party to use the machinery of the Act and the auspices of the Commission to terminate and Agreement that it said it would not terminate unilaterally would be obviously contrary to the public interest.

[94] Nulsen argued that the UWU’s lead argument had no merit. Reflecting on clause 4.2 of the Agreement, Nulsen repeated the line, it ‘shall continue to operate until it is replaced in accordance with the Fair Work Act 2009’. Nulsen observed that clause 4.2 was on a different footing when compared to the term considered in Cochlear. The clause considered in Cochlear provided that the agreement continued ‘until varied or terminated or replaced by agreement’. The replacement provision under clause 4.2 proceeded in accordance with the provisions of the Act.

[95] In my view, the clause shows no indication that the consent of those covered is the requisite trigger to allow replacement. Further, as was observed in Toyota Motor Corporation Australia v Marmara & Ors (Marmara), 126 a term of an agreement which states, or has the effect, that the employer may not proceed as provided for in the Act must necessarily be inconsistent with, or repugnant to, the Act to that extent.

[96] In light of the wording of clause 4.2 and the judgment in Maramara, the UWU’s argument that the application to terminate the Agreement represents a disavowal of the commitment made by those covered by the Agreement and to facilitate the termination would therefore be contrary to the public interest,cannot be sustained. For the sake of fulsomeness, I again observe that what is asked by s 226 is whether the Commission is satisfied that the termination is not contrary to the public interest. In so far as this ground is concerned, I do not consider that it advances the UWU’s case against the termination.

[97] The UWU submitted that the termination of the Agreement would diminish Nulsen’s ability to attract and retain staff and promote industrial disharmony and disruption in the midst of a global pandemic. The UWU appears to have buttressed its submission on the diminution of the terms of conditions of employment for support workers that will follow from the transition from Agreement to Award.

[98] In Kellogg, it was said that for the most part the Commission should be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences. 127 Further, it was understood that it could be safely assumed that the termination of a ‘certified agreement’, carrying with it the loss of significant benefits, was not itself contrary to the public interest.128

[99] The UWU submitted, correctly in my view, that a potential reduction in terms and conditions does not attract the public interest because the Award and NES maintain proper industrial standards. 129 However, the inferences drawn by the UWU about employee retention and attraction are speculative. While those to be covered by an agreement may pursue a particular claim, it does not always follow that ultimately that claim will be the subject of agreement or that any agreement reached will take a particular form or will have a particular effect.130

[100] On retention and attraction, there was no evidence adduced supporting the inferences drawn by the UWU. In my view, it is not improbable that employers and employees within this particular industry are experiencing the same NDIS funding constraints. This much was recognised in Mambourin Enterprises Ltd (Mambourin), 131 where the applicant, a disability services provider, applied to terminate a collective agreement-based transitional instrument.

[101] The applicant in Mambourin contended that the industry landscape had shifted significantly since the agreement in question was made and pointed principally to the implementation of the NDIS in 2013, as having had a ‘substantial’ impact on the funding of disability services in Australia.

[102] There was acknowledgement in Mambourin that NDIS funding was calculated based on labour costs referable to the Award that covered employers and employees in the social and community services sector in Australia. Award coverage extended to work performed in the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting. It was uncontested that the Award was used as the base reference point for the determination of appropriate NDIS funding levels and that before the introduction of the NDIS, funding had been provided at a state level using a different methodology.

[103] The applicant in Mambourin relied upon a funding gap as part of the justification to terminate the Agreement. It argued that the termination would deliver substantial cost savings and therefore assist in maintaining its viability. However, while the Commission decided to terminate the Agreement, it did so predominately on the grounds that the wording of the Award allowed the applicant greater flexibility in conducting its business. The Commission observed that the specific link between the agreement in question and the NDIS arrangements, and any specific provisions in the agreement that were ill-suited to the NDIS’s new framework, had not been particularised with a great deal of specificity by the applicant and in that sense were somewhat illusive.

[104] The submission that Nulsen’s support workers will collectively seek to find more remunerative employment elsewhere is an inherently speculative path of reasoning. There may or may not be some employers that are positioned to provide such conditions. As it is, some employees might be dissatisfied with termination to such a magnitude so as to end their employment; others may not reach that conclusion. Of course, the point of staff retention and attraction becomes moot, in circumstances where Nulsen ceases to operate. There is incontrovertible evidence that Nulsen’s financial position is far removed from being robust, and therefore the point is not casually made.

[105] The UWU argued that its ability to negotiate for a replacement agreement would be significantly impeded. Whilst the UWU accepted that the continuation of an extant agreement cannot be presumed to incentivise bargaining, the UWU pressed that the instant circumstances gave rise to additional considerations. The UWU outlined that the effect of terminating the Agreement would be to impede the union in its ability to negotiate at all by significantly reducing its access to members and involvement with the employer. However, I am unconvinced that the termination of the Agreement will lead to the non-fulfilment of other matters associated with the Objects of the Act, such as the right to representation in bargaining or to access an alternative dispute resolution process.

[106] Further, the evidence does not lead to a conclusion that the termination will lead to the undermining of collective bargaining in a broader public sense (as opposed to the impact on the parties). Collective bargaining would continue with a proper focus on the terms and conditions negotiated by reference to the Award as opposed to previously negotiated terms that arose at a time where funding of the disability services sector emanated from a different government funding regime. Thus, termination of the Agreementwould assist Nulsen and the UWU to reach agreement on a new enterprise agreement given neither have expressed a reticence to continue bargaining.

[107] I am satisfied that it is not contrary to the public interest to terminate the Agreement (s.226(a) of the Act).

3.2 Appropriateness (s 226(b))

[108] The approach to assessing appropriateness under ss 226(b)(i) and (ii) has been set out in the Full Bench decision of Aurizon, and I repeat what was written there:

All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s 226(b) to take into account all of the circumstances including those set out in s 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s 226(b)(i) and (ii). 132

[109] When assessing appropriateness in this context, several principles are evident from the existing case law. They include:

• •the question of appropriateness requires an overall judgment based on all the relevant circumstances of the application; 133

• there is no right or expectation that an enterprise agreement continues in perpetuity after its nominal expiry date; 134

• there is no presumption or predisposition against terminating an enterprise agreement after the passing of its nominal expiry date; 135

• there is no inherent inconsistency between terminating an enterprise agreement, and bargaining subsequently in good faith; 136

• the question of appropriateness involves not only a consideration of the views of the parties but also the reason for those views; 137

• the fact that remuneration will be reduced if termination occurs does not mean that it is not appropriate to terminate an agreement; 138

• there is no requirement for an employer to provide an undertaking to maintain terms and conditions of employment in order for termination to be appropriate; 139 and

• the Act does not express an objective of ‘equity in relation to a party’s “power” status’ ‘in bargaining’. 140

[110] The UWU submitted that the Commission could easily be satisfied that employees were opposed to the termination of the Agreement in light of the significant reductions in remuneration and conditions that would attend upon termination. In support of its contention, the UWU referred to the petition documents executed by 119 employees and the witness statements that had been filed on behalf of support workers.

[111] It also observed that the termination of the Agreement would result in a reduction in employees’ wages, a reduction in their conditions (especially shift length and the number of shifts they would be required to work) and would impact the standard of care of Nulsen’s residents. A detailed comparative table was provided to support such proposition.

[112] The UWU submitted it was strongly opposed to the termination of the Agreement for multiple reasons, which included that the termination would: (a) result in staff being forced to leave Nulsen; (b) result in Nulsen having difficulty acquiring new staff; (c) result in negative outcomes for Nulsen’s clients; (d) remove a multitude of union rights; and (e) result in a reduction in pay and conditions for its members.

[113] I accept that the UWU opposes the termination of the Agreement and the evidence indicates that its members are similarly opposed. Their opposition is not without basis concerning the issue of pay rates, and the witness statements of its members clearly detailed the amount their salaries would reduce by, if the Awardset pay rates.

[114] Nulsen submitted that the termination of the Agreement was the only means of addressing its perilous financial position and that termination would secure Nulsen’s ongoing viability. 141 It conceded that it was not open to infer that it did not want to bargain but that the bargaining unit would look towards the non-monetary benefits that could be offered, but did want the terms and conditions to align with the Award.

[115] Nulsen detailed the productivity and efficiency benefits that would arise from Award coverage and application. I do not intend to traverse them in detail except to say that Ms Madaffari gave detailed evidence on the differences between the Award and Agreement concerning ‘hours of work’, ‘minimum period of engagement’, ‘base rates of pay’, ‘penalties for sleep shifts’, ‘penalties and overtime’, ‘accrued days off’, and ‘leave accruals’. 142 It is evident that the Award provides for productivity improvements in light of the evidence adduced by Nulsen.143

[116] The utilisation of the Award as the comparator for a new agreement rather than the Agreement itself would, in my view, shift the bargaining dynamic and bring Nulsen and the UWU closer together. Bargaining has been protracted – some four years. During that four year period Nulsen has transitioned from a state based funding model to that provided under the NDIS. While it has evidently made other cost saving cuts in its Disability Services business, such as the reduction of administrative staff headcount on two occasions, 144 the reduction of expenditure on nursing services, halting wage growth for management and administration, the introduction of technology to reduce administrative overheads by two ‘OTE’, its staff costs account for approximately 87% of expenditure and 579 support workers are covered by the Agreement.

[117] The evidence shows that no concessions on financial matters were made by the UWU until Nulsen made the application. While that saw some shift in the bargaining dynamic, Mr Patching’s modelling of the UWU’s proposal did not engender the costs savings necessary for the ongoing viability of Nulsen. Appreciating of course that the UWU disagreed with the modelling, but at hearing did not step the Commission through its own detailed and comprehensive modelling in that regard.

[118] In arriving at the view that the termination of the Agreement is appropriate in all of the circumstances I have considered various factors.

[119] First, the nominal expiry date of the Agreement was 28 October 2015. Some six years have passed since that expiry and some four years have been spent bargaining to no avail.

[120] Second, employees will continue to receive the benefit of the safety net in the form of the Award on the termination of the Agreement.

[121] Third, there will be a reduction in terms and conditions of employment upon termination of the Agreement, but Nulsen has offered to minimise the impact for a short period by its undertaking - albeit that the undertaking does not preclude a reduction in wages.

[122] Fourth, the UWU and the employees will maintain their rights to take protected industrial action.

[123] Fifth, Nulsen intends to continue bargaining with the UWU after the termination of the Agreement. However, I am satisfied that this bargaining would now be premised on the reality of the situation facing Nulsen. Nulsen submitted that the bargaining framework which has ensued for the last four years had not been proceeding on any reality – by all accounts that would appear correct in light of the transition of funding to the NDIS and the reticence to depart from some of the terms of the Agreement. It is of course understandable that the support workers do not want to see the diminution of their existing terms and conditions of employment. For that they cannot be criticised. However, the backdrop is one where Nulsen’s continued existence is perilous because of its financial distress.

[124] Sixth, a significant number of terms of the Agreementhave an adverse impact on Nulsen’s ability to maintain the immediate viability of its business and it faces the real and not remote prospect of issuing notices of discharge on its residents. Residents who of course consider where they live and are supported, to be their home. Absent the identification of an alternative provider, the tertiary hospital system in Western Australia would carry the responsibility of providing temporary shelter and support for Nulsen’s former residents. 145

[125] Mr Trewern put it rather succinctly:

The longer this ensues, the more residents will leave our care and the bigger our failure becomes. Nulsen needs to make immediate changes to its cost base in order to continue to operate Nulsen Disability.

Continuation of Nulsen Disability without cost changes will result in the insolvency of Nulsen.

As each resident leaves our care, Nulsen will be required to reduce its support worker headcount. We expect redundancies to take place on the discharge of residents who have received notices. More redundancies will follow after the additional 122 NDIS plan reviews are finalised and notices are carried out.

On cessation of Nulsen Disability, this would result in approximately 600 redundancies. 146

[126] The question of appropriateness requires an overall judgment based on all the relevant circumstances of the application. I have considered those circumstances at length in arriving at a decision and am satisfied that it is appropriate to terminate the Agreement, taking into account, and balancing all the circumstances including those set out in s 226(b)(i) and (ii) of the Act.

3.3 Conclusion

[127] In having regard to the requirements of s 226 of the Act, the evidence before me and the submissions made on behalf of Nulsen, its employees and the UWU, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so. In light of the Commission's satisfaction in respect of s 226(a) and (b), the Agreement must be terminated.

[128] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. The Order 147 issued will reflect such terms.

DEPUTY PRESIDENT

Hearing Details:

Perth (Microsoft Teams)
October 20
2021.

Appearances:

L Howard, for the Applicant;
E Moran, of Mills Oakley, for the Applicant;
P Dean, for the Respondent;
P Bergesio, of the United Workers’ Union, for the Respondent.

Printed by authority of the Commonwealth Government Printer

1 [2015] FWCA 7196.

2 Nulsen Haven Associated Incorporated and United Voice Enterprise Agreement 2015, clause 3.

3 Witness Statement of Gordon Trewern (Trewern Statement) [8].

4 Trewern Statement [7].

5 Trewern Statement [9].

6 Ibid.

7 Ibid.

8 Trewern Statement [13].

9 Trewern Statement [14].

10 Statement of Agreed Facts (SOAF) [36].

11 Social, Community, Home Care and Disability Services Industry Award 2010 (PR733862).

12 Trewern Statement [18].

13 Trewern Statement [19].

14 Trewern Statement [21].

15 Trewern Statement [22].

16 Trewern Statement [24].

17 Ibid.

18 Trewern Statement [25].

19 Trewern Statement [26].

20 Ibid.

21 Ibid.

22 Trewern Statement [28].

23 Trewern Statement [29].

24 Ibid.

25 Ibid.

26 Trewern Statement [32].

27 Witness Statement of Geoffrey Patching (Patching Statement) [7].

28 Patching Statement [8].

29 Ibid.

30 Trewern Statement [33] – [41].

31 Trewern Statement [33].

32 Ibid.

33 Trewern Statement [34].

34 Trewern Statement [37].

35 Trewern Statement [39].

36 Ibid.

37 Trewern Statement [40].

38 Ibid.

39 Trewern Statement [76].

40 Trewern Statement [42].

41 Trewern Statement [42].

42 Trewern Statement [47].

43 Trewern Statement [48].

44 Ibid.

45 Patching Statement [14].

46 Ibid.

47 Patching Statement [15].

48 Patching Statement [25].

49 Patching Statement [26].

50 Patching Statement [30].

51 Patching Statement [32].

52 Patching Statement [34].

53 Ibid.

54 Patching Statement [36].

55 Witness Statement of Mark Whenan (Whenan Statement) [24].

56 Whenan Statement [25].

57 Whenan Statement [26].

58 Ibid.

59 Whenan Statement [27].

60 Whenan Statement [29] – [30].

61 Trewern Statement [56].

62 Trewern Statement [60].

63 SOAF [17].

64 Witness Statement of Kerry Madaffari (Madaffari Statement) [44].

65 Madaffari Statement [45].

66 SOAF [18].

67 SOAF [20].

68 SOAF [21].

69 SOAF [22].

70 SOAF [26].

71 SOAF [30].

72 SOAF [34].

73 Whenan Statement [5].

74 Whenan Statement [7].

75 Ibid.

76 Trewern Statement [68].

77 Trewern Statement [69].

78 Madaffari Statement [65].

79 Madaffari Statement [58].

80 Madaffari Statement [55].

81 Madaffari Statement [36].

82 Madaffari Statement [77].

83 Madaffari Statement [78].

84 Madaffari Statement [80]-[81].

85 Witness Statement of Wayne Needham [9].

86 Witness Statement of Wayne Needham [11].

87 Witness Statement of Janine Hall (Hall Statement) [9].

88 Hall Statement [7].

89 Ibid [7].

90 Hall Statement [11].

91 Witness Statement of Michael James Cherry.

92 Witness Statement of Vincent Charles Watson [9].

93 Whenan Statement [11].

94 Whenan Statement [11] – [23].

95 Trewern Statement [71].

96 Trewern Statement [75].

97 Trewern Statement [78].

98 Trewern Statement [88].

99 Trewern Statement [96].

100 Patching Statement [17]-[37]; Trewern Statement [33]-[39], [47]-[49].

101 Madaffari Statement [18], [82]-[84]; Trewern Statement [68]-[70]; Patching Statement [50]-[51].

102 Fair Work Act 2009 (Cth) s 228.

103 Ibid ss 229 – 230.

104 Ibid ss 234 – 235.

105 Ibid ss 236 – 237.

106 Ibid ss 238 – 239.

107 Ibid s 240.

108 Re Aurizon Operations Limited[2015] FWCFB 540 [120] (Aurizon).

109 [2015] FWCFB 540 [125].

110 Fair Work Act 2009 (Cth) ss 408 – 410.

111 Ibidss 408, 411.

112 Ibids 415.

113 Workplace Relations Act 1996 (Cth)ss 435 – 448.

114 Fair Work Act 2009 (Cth) s 228(2).

115 Ibids 186(5).

116 Ibids 54(1).

117 Ibid s 54(2)(a).

118 Ibidss 54(2)(c), 58.

119 Ibids 417.

120 Ibidss 418 – 420.

121 Aurizon, [126], [176].

122 [2015] FWCFB 540.

123 Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 (Kellogg).

124 Kellogg, 40.

125 Cochlear Limited v AFMEPKIU [2009] AIRCFB 27 (Cochlear).

126 Toyota Motor Corporation Australia v Marmara & Ors (2014) 222 FCR 152 (Marmara), 97.

127 Kellogg, [27].

128 Kellogg, [47].

129 UWU Submissions [32].

130 Kellogg, [48].

131 Mambourin.

132 Aurizon, [167].

133 ERA v LHMU[2010] FWA 2434 [15]; Re Allen & O’Brien Pty Ltd[2016] FWCA 1906 [22]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 [19]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226 [78], [115]; Re Remondis Australia Pty Ltd [2017] FWCA 254 [4], [35]; Re Murdoch University [2017] FWCA 4472 [396]; Re Pinarello Blues Pty Ltd as trustee for Judds Discretionary Trust t/as Yankalilla Hotel[2015] FWCA 7698 [98].

134 Aurizon , [126], [176]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226 [73], [74], [104]; Re Remondis Australia Pty Ltd [2017] FWCA 254 [13], [14]; Re Viterra Operations Pty Ltd [2018] FWCA 1161 [55].

135 Aurizon, [142]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465, [32]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226 [73]; Re Remondis Australia Pty Ltd [2017] FWCA 254 [13].

136 Aurizon, [158]; AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265 [69]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226 [73], [103]; Re Remondis Australia Pty Ltd [2017] FWCA 254 [13]; Re Murdoch University [2017] FWCA 4472 [455]; CEPU v Aurizon Operations Ltd (2015) 233 FCR 301, [18].

137 ERA v LHMU[2010] FWA 2434 [15]; Re Project Coordination (Australia) Pty Ltd [2016] FWCA 5465 [19].

138 Re The Griffin Coal Mining Company Pty Ltd [2016] FWCA 2312 [173]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226 [142], [154], [161]; Re Queensland Nurses' Union of Employees [2017] FWCA 162 [63]; Re Remondis Australia Pty Ltd [2017] FWCA 254 [29], [55]; CFMEU v Peabody Energy Australia PCI Mine Management Pty Limited (2016) 260 IR 255 [2].

139 AMWU v The Griffin Coal Mining Company Pty Ltd (2016) 260 IR 265 [51], [66]; Re AGL Loy Yang Pty Ltd [2017] FWCA 226.

140 Re The Griffin Coal Mining Company Pty Ltd[2016] FWCA 2312 [156].

141 Patching Statement [45]-[47]; Trewern Statement [63]-[67].

142 Madaffari Statement [86] – [106].

143 Madaffari Statement [88]-[89], [91], [99] – [102], [103], [105].

144 Trewern Statement [52].

145 Trewern Statement [60].

146 Trewern Statement [64]-[67].

147 PR735883.