Ostwald Bros Pty Ltd

[2012] FWA 6450

Note: An appeal pursuant to s.604 (C2012/5010) was lodged against this decision.

[2012] FWA 6450

FAIR WORK AUSTRALIA

DECISION

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

Ostwald Bros Pty Ltd
(AG2012/1335)

COMMISSIONER BOOTH BRISBANE, 1 AUGUST 2012

Application for approval of Ostwald Bros. Civil Pty Ltd Collective Agreement 2012 - content of notice of employee representational rights - appointment of employee bargaining representatives - communications to employees during bargaining process.

[1] Ostwald Bros Pty Ltd (the Applicant) lodged an application for approval of the Ostwald Bros Civil Pty Ltd Collective Agreement 2012 on 21 April 2012. Shortly after lodgement, the Construction, Forestry, Mining and Energy Union (CFMEU) indicated it wished to be heard on the approval of the agreement. A conference was convened following the request to be heard on the approval. Written directions were issued directing the CFMEU and the Applicant to provide an outline of submissions. A hearing was conducted on 5 July 2012.

[2] The CFMEU submits that this agreement cannot be approved because the purported notice of representational rights omitted a prescribed clause and therefore does not satisfy s.174(3) of the Act. This particular provision requires a notice that informs employees of the circumstances in which the union would automatically be a bargaining representative. This is referred to in the heading of s.174(3) as Content of Notice-default bargaining representative. The clause in the notice is sometimes referred to as the default bargaining clause. The CFMEU argues that as a result of the omission no valid notice has been given and therefore there can be no genuine agreement and the agreement cannot be approved.

[3] Additionally the CFMEU raised arguments that the agreement was not made under s.182 that requires employees who will be covered by an agreement casting a valid vote to approve the agreement and that the agreement was not genuinely agreed to by the employees who will be covered by it.

[4] The Applicant rejects the grounds of objections raised by the CFMEU. It admits that the notice of representational rights did not include the default bargaining representative clause. It submits that the approach to be taken for approval of an agreement is whether the purpose of the Fair Work Act 2009 (the Act) about agreement approvals has been satisfied. 1

[5] For completeness, I note that there is a history of dispute among the parties, including contested representation rights. 2 Also, of the 159 employees who cast a valid vote, 86 employees voted to approve the agreement.

The law

[6] The Act establishes a process for making an enterprise agreement that requires Fair Work Australia (FWA) to approve an agreement if, among other things, “the agreement has been genuinely agreed to by the employees covered by the agreement” as provided for in s.186(2)(a), the relevant clause in this case.

[7] Section 186 of the FW Act provides as follows:

“186 When FWA must approve an enterprise agreement—general requirements

Basic rule

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

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

...

(2) FWA must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; …”

[8] Section 188, extracted below, defines the term “genuinely agreed” by reference (among other things) to compliance with s.181(2), which in turn requires that 21 days pass between the giving of a notice under s.173(1) before employees are asked to approve the agreement. The content of the notice is prescribed in s.174 and the Fair Work Regulations, particularly regulation 2.05 and Schedule 2.1.

[9] The prescribed content includes explanation of what is called the “default bargaining representative”. Section 176(1) sets out who bargaining representatives are for proposed enterprise agreements that are not greenfields agreements:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; …

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement …”

[10] Other relevant sections of the Act are:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

174 Content of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.

178 Appointment of bargaining representatives—other matters

Copies of instruments of appointment must be given

(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must: (a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer …

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections.180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

Consideration and Decision

[11] The Applicantacknowledges that the Notice of Employee Representational Rights did not include the words prescribed to be included in the notice, including the following two paragraphs prescribed by Schedule 2.1 of the Regulations:

“If you are a member of a union that is entitled to represent the industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union's status as your representative” (default bargaining representative clause).

“If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Australia Infoline on [insert number]” (questions clause).

[12] The notice did not include any default bargaining representative clause, but did include a questions clause worded as follows:

“if you have any questions about this notice or about enterprise bargaining, please speak to either Rohan May HR Manager – 0407 356 872, bargaining representative, go to or contact the Fair Work Australia Help Line on 1300 799 675.”

[13] The Applicant submits that the notice otherwise adopts the prescribed form, and that the omission was:

“inadvertent in the sense that [Mr Sharp] removed a paragraph that was required to be removed because it was irrelevant, in doing so he accidently removed some further words as well, but there’s no question that was given in purported compliance of section 173.” 3

[14] The CFMEU submits that the failure to include the default bargaining representative clause is not merely incomplete notice but is actively misleading. It not only fails to tell employees of their representational rights, but wrongly informs them that there is something they must do as a precondition to that right.

[15] The CFMEU argues that omitting the word “your” in the questions clause compounds the omission of the default bargaining representative clause: 4

“The alternative form of words used by the Applicant, by leaving out the word ‘your’, does not present an employee’s employer, bargaining representative and FWA as alternatives… there is nothing to suggest that an employee has a bargaining representative unless they actively appoint one.

[16] The Applicant argued that this construction is incorrect. For the reasons given below, nothing turns on the precise wording of the questions clause, and I have not found it necessary to take this into account.

[17] There are two ways employees can obtain representation during bargaining. The first is described in s.175(1)(b) where an employee who is a member of a union with coverage has an automatic (or default) bargaining representative, namely, the relevant union. The employee does not have to do anything to obtain this representation.

[18] Alternatively, an employee (whether a member of a union or not) may appoint a bargaining representative under s.176(1)(c). In that case, the employee must advise the name of the bargaining representative in writing to the employer: s.178(2)(a).

[19] The Applicant submits that the task of FWA when approving the agreement is to ascertain whether the requirements of the Act governing that process have been satisfied. I agree with that submission.

[20] That task, among other things, is to ascertain whether there is genuine agreement by the employees pursuant to s.186(2) of the Act. Whether there is genuine agreement requires the Tribunal to be satisfied of the requirements under s.188, including compliance with s.181(2) which provides for a 21 day period after the last notice of representational rights, given under s.173(1), before an enterprise agreement can be approved.

[21] The Applicant submits that the CFMEU case depends on accepting that the omission of the default bargaining representative clause from the notice means that the employee cannot comply with s.181(2) and therefore cannot meet the requirements in s.188. It urged on the Tribunal a practical approach rather than a technical one.

[22] If the notice of representational rights is invalid, the 21 day period between the last notice of representational rights and the request for approval cannot commence. As this is required for “genuine agreement”, the employer cannot have the agreement approved.

[23] The Applicant submits that this conclusion is not the effect of a defective notice. The Applicant submits that when considering the effect of a defective notice the Tribunal must consider the objects of the Act, specifically to provide a simple, flexible, fair framework that enables good faith bargaining. In effect, the Applicant argues that a defective or irregular notice does not necessarily invalidate it and argues in effect that the defect in this case does not invalidate the notice.

Case authorities

[24] The CFMEU submits that there are a number of authorities of single members where facts included the omission of the same default bargaining representative clause. These are Australian Nursing Federation 5, Melsteel Constructions Pty Ltd6, Regent Taxis Proprietary Limited T/A Gold Coast Cabs7and Wigley.8

[25] The CFMEU submits that in each of these cases the omission of the default bargaining representative clause invalidated the notice and that on the facts of this matter and based on those precedents the notice is invalid.

[26] The Applicant and the CFMEU also rely on a number of Full Bench authorities. These include CJ Manfield Proprietary Limited v Communication Electrical and Electronic Energy Information Postal Plumbing and Allied Services Union of Australia 9 (Manfield); Automotive Food Metals Engineering Printing and Kindred Industries Union known as the Australian Manufacturing Workers (AMWU) v Inghams Enterprises10 (Inghams); Stephen & Bland v CEVA Logistics (Australia) Pty Ltd11 (CEVA) and Galintel Rolling Mills Pty Ltd T/A The Graham Group. (Galintel).12 Each party submitted that I could come to a different conclusion, relying on various authorities in support of their positions.

[27] While these authorities assist, my attention has not been drawn to any Full Bench authority directly on point.

[28] The Applicant urged a position, based on the observations in Manfield, that the requirements for approval are to be applied in a practical manner without unnecessary technicalities. In Manfield the failure to provide an otherwise-compliant notice to all affected employees was not fatal to the application as the employer had taken “all reasonable steps” pursuant to s.173.

[29] The Applicant submits that failure to provide a compliant notice does not affect the validity of that which follows in the process.

[30] The Applicant also relied on CEVA where the Full Bench concluded [at 42] on the question of whether the obligation to issue a notice of representation right is mandatory:

“we doubt compliance with the provisions of section 173(1) is mandatory, such that a breach of it necessarily renders an enterprise agreement void and incapable of approval.”

[31] That case was similar to Manfield. It was not one where the notice was defective because prescribed words were omitted, but one where not every employee actually received the notice. It was ultimately decided that process was not invalid because, despite the distribution problems, the employer had taken “all reasonable steps” to give the notice.

[32] The Applicant in this case acknowledges that the Notice of Employee Representational Rights did not include the prescribed words of the default bargaining representative clause.

[33] Section 174(3), extracted above, states the requirements for the notice to include the default representative provision.

[34] Regulation 2.05 provides a prescribed form for the notice of employee representational rights in Schedule 2.1 of the Regulations. Contained within that prescribed form are the default bargaining representative clause and the questions clause.

[35] In effect, the requirements of s.174(3) have been directly inserted into the prescribed form in regulation 2.05 and Schedule 2.1.

[36] The Applicant urged on the Tribunal the approach taken in Inghams. 13The Tribunal agrees that the approach detailed in Inghams is relevant as a guide in deciding the question: What is the effect of omitting the words in s.174(3) and in the prescribed form in regulation 2.05 from a Notice of Employee Representational Rights?

[37] The Full Bench in Inghams appliedthe approach to statutory interpretation outlined in Project Blue Sky Inc and others v The Australian Broadcasting Authority. 14In that case, the High Court said as follows:

“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to the ‘language of the relevant provision and the scope and object of the whole statute’.”

[38] It is clear from the authorities that a defect or irregularity in the notice, or in the giving of the notice, does not necessarily invalidate the process such that the agreement cannot be approved. It is also clear that in some circumstances, a defective or irregular notice or defective or irregular process may indeed invalidate the notice and hence mean that an agreement cannot be approved.

[39] The Tribunal’s task is to consider the purpose of the clauses prescribed for the notice and whether the omission of the prescribed paragraph would render the notice invalid. In determining the purpose, the Tribunal must have regard to the language of the relevant provision and the scope and object of the whole statute.

[40] In that regard, the Applicant points to Manfield. In that case, the Tribunal approved an agreement notwithstanding non-compliance with s.173 where not all employees were notified but all reasonable steps had been taken.

[41] In contrast, the CFMEU suggest that Manfield and CEVA were both concerned with the notification under s.173, not with the contents of the notice detailed in s.174. The CFMEU prefers theobiter dicta in Galintel that considered important the context and purpose 15 of the particular sections of the Act, in particular, the importance of the requirement to notify employees of their rights to representation.

[42] The Applicant also sought to rely on Inghams as authority for the approval of an agreement that omitted certain employee representational rights from a notice. Mr Herbert for the employer submitted that I should follow the approach set out in Inghams and conclude that the omission of a clause from the notice was not fatal to the application and that I should have consideration of a “qualitative evaluation of the clause those parts missing”. 16

[43] Mr Herbert referred to the following from the decision in Inghams: 17

“Against this background we have come to the view the legislature did not intend a notice of employee representational rights to be rendered invalid because of an omission of the type made by Inghams.”

[44] The CFMEU points to the qualification on the analysis by the Full Bench in Inghams. Mr Green for the CFMEU asserts that the Full Bench is clearly limiting the decision by reference to “omissions of the type made by Inghams”.

[45] The CFMEU referred to the further qualifying sentence also in paragraph [53] of Inghams:

“Given the limited effect of the omission and the centrality under the Fair Work Act of a valid notice of employee representational rights to the making and approval of enterprise agreement, such a conclusion is in the most consistent with the attainment of the objects of the FW Act.”

[46] While the process detailed in Inghams provides guidance to the Tribunal as to the approach to be taken in this matter, the facts of that case limit the guidance.

[47] It should be noted that s.174(3) explicitly requires the notice to advise of default representation 18 whereas in the Inghams decision the omitted clause described the qualification on a right detailed under regulations made under s.174(6).

[48] The correct interpretation of the legislation will therefore turn, in part, on whether the explicit requirement to advise of default representation in the language of the s.174(3), and the default bargaining representative clause, supports a different conclusion from that in Inghams.

[49] Mr Herbert submitted that default representation is created under s.176 of the Act. This is correct. Section 176(1)(b) provides:

“an employee organisation is a bargaining representative of an employee who will be covered by the agreement if …the employee is a member of the organisation … unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2)”

[50] However the creation of the right by statute is different from the exercise of that right, having been put on notice as to its existence.

[51] It is not an unreasonable inference of Parliament’s intention that a notice of representation rights must include the advice of a default representation for the notice to be valid. This is true regardless of whether the employees are union members or not, and regardless of the fact that the notice merely conveys information about rights conferred by another provision.

[52] In seeking to elicit the intention of the legislature, it is necessary to have regard to the legislative context, including ss.174(5) and 178 that deal with the non-default position and require certain steps to be taken for such an appointment of a bargaining representative.

[53] Section 174(3) may be characterised as essential to employees’ right to appoint bargaining representatives in that the requisite notice apprises them of how they go about exercising that right. That is, employees who are union members availing themselves of default representation need do nothing. In contrast, an employee seeking to appoint another representative, whether a union member or not, must take active steps, including giving a copy of the appointment instrument to the employer as required by s.178(2).

[54] The statutory scheme details the legislator’s intention to ensure employees not only have a right to representation in bargaining, whether by default or by appointment, but that employees are armed, by proper notice, with the necessary knowledge about how they can go about exercising that right of representation. If the existence of the right was all Parliament intended, ss.174(3) and (5) would then not be necessary.

[55] In these circumstances does the failure to appraise employees of the default representation and the process to appoint another representative, expressed in ss.174(5) and 178(2) mean that the notice was invalid?

[56] In Inghams the deficiency was the failure to apprise employees of their inability to have a bargaining representative in a limited circumstance, where the employee has no right to bargain and therefore no right to (or need for) a bargaining representation. The omission of the material from the notice affected neither employees’ rights to representation nor the knowledge to be able to exercise those rights. For these reasons, the Inghams decision is distinguishable from these facts of this matter.

[57] I also conclude that the facts of CEVA are distinguishable and agree with submissions made on behalf of the CFMEU that, in that matter, the error was that a limited number of employees do not receive a notice of representation rights.

[58] In this case, there is no dispute that all the employees received the notice.

[59] In Galintel, extra words were added to the Notice. They were held not to affect its validity. However, the Full Bench does provide guidance as to the approachto be taken, andconsistently with Inghams, although obiter dicta, the importance of context and purpose of the provisions. In that regard the Full Bench states: 19

“The context and purpose of these provisions are important. Imposing a requirement for employers to notify its employees of their rights of representation is obviously seen by the legislature as an essential ingredient of fair bargaining and agreement making under the Act. So too is the notion of employees being free to exercise their choice of representation. In some workplaces employers may be negative or even hostile to union representation. Negotiations may be quite adversarial.

The requirement in s.181(2) is that employers advise employees of their rights and allow the specified time for employees to make whatever choice they wish to make. If an employer fails to advise employees of their rights in the manner specified the requirement is not satisfied. But employers are not precluded from other representations provided the statutory advice is given. There is nothing that we can see in the legislation that precludes, for example, an employer from expressing a preference or giving employees advice on representation. If the representations contradict the notice about employee rights then there will be real questions whether a valid notice was in fact given. If the representations are such that they affect the genuineness of any subsequent agreement then section 188(c) will become relevant.

There can be no doubt that the notice issued to employees in this case contained every word required by the Regulations. The question is whether the addition of the slip at the bottom of the notice altered its nature such that it ceased to be a valid notice under s.173.”

[60] Galintel provides guidance as to purpose of the notice: it allows for choice of representation, and in environments where there is hostility to union representation, provides a process to ensure those representation rights are protected. I add that I have formed no view about whether there is a hostile or adversarial environment in this case, but do note the closeness of the majority vote.

[61] In my view Galintel supports the notion that the creation of a statutory right to representation, whether by default or appointment, is complemented by a requirement in the Act to give notice of the right and how it might be exercised.

[62] What then is the effect of a deficient notice when such advice is not included?

[63] I have concluded that the legislature had a clear intention that certain information be provided to employees during bargaining. In this case, the information was not provided, whether by the prescribed words or other words that adequately conveyed the same intent.

[64] A defective or irregular notice may still be sufficient, consistent with the High Court’s approach in Blue Sky Project and the Full Bench’s statements in Galintel. However, not every defect or irregularity will satisfy the Act’s requirement for notice to be given. As Mr Herbert put it in argument for the Applicant: 20

“… the essence of the matter is this: if a notice, which is made and purported to be made in a substantial attempt to comply with section 173, it has the effect of a notice under section 173. The question as to whether it is or purports to be in compliance a notice given in discharge of the employer’s obligations under section 173, will be question that is easily answered by examination of the notice itself.”

[65] In this case, no notice was given of the default representation. I have found that such notice is required by the Act in order to discharge Parliament’s intent that employees not only have representation rights but that they are aided in exercising those rights by a notice that is required to be given as part of the statutory scheme. Its omission is such that the requirements of 174(3) have not been met and therefore the employer has not given a notice of the right to be represented by a bargaining representative to each employee.

[66] What the employer has done is given partial notice, inadequate for the legislated purpose.

[67] I find that the employer has not complied with s.173(1) and therefore notice was not given for the purposes of the 21 days time frame in s.181(2).

[68] If I am wrong in my conclusion that giving notice of the default bargaining representative is an essential part of giving valid notice, then Mr Herbert’s urging of a practical approach would require consideration of whether the agreement had been genuinely agreed by the employees.

[69] As I noted earlier, there is a history to this matter, including contested representation rights by the CFMEU, and a relatively close ballot approving the agreement. It is not a case of a small workforce, all of whom are represented by one union and all of whom approved a proposed agreement. In such a case, it may, as a matter of practical reality, a deficient notice makes no difference and that FWA might be satisfied that the requirements of s.186 are met.

[70] As a matter of practicality, given the history in this matter, the deficiency in the notice is important. Mr Herbert argued that the omission was accidental, the CFMEU did not contest that assertion, and accordingly I accept it at face value.

[71] However, the omission directly affected the question of the default bargaining representative. I conclude that as a practical matter, in the contested circumstances before me, the Tribunal cannot be satisfied in terms of s.186(2)(a) because of the defect in the notice.

[72] The agreement is not approved.

COMMISSIONER

Appearances:

Mr A Herbert of Counsel for Sharpe Workplace Solutions for the Applicant.

Mr T Spence for The Australian Workers’ Union

Mr B Green for the Construction, Forestry, Mining and Energy Union

Hearing details:

2012.
Brisbane:
6 July.

 1   The Australian Workers Union who were a bargaining representative for the agreement supported the submissions of Ostwald Bros. Pty Ltd.

 2   see Construction, Forestry, Mining and Energy Union v Ostwald Bros Pty Ltd [2012] FWA 1870, an application for a bargaining order by the CFMEU determined by Richards SDP.

 3   oral submission of Mr Herbert for the employer in transcript dated 6 July 2012 at PN 343.

 4   CFMEU submissions at paragraph 11.

 5   [2010] FWA 6725

 6   [2010] FWA 7731

 7   [2011] FWA 3683

 8   [2012] FWA 4479

 9   [2012] FWAFB 3534

 10   [2011] FWAFB 6106, 8 September 2011 at paragraph 47.

 11   [2011] FWAFB 7453

 12   [2011] FWAFB 6772

 13   [2011] FWAFB 6106, 8 September 2011 at paragraph 47.

 14 [1998] 194 CLR 355 at paragraph 93.

 15   [2011] FWAFB 6772 at paragraph 39.

 16   Transcript dated 6 July 2012 at PN 367

 17   [2011] FWAFB 6106 at paragraph 53.

 18 other than in circumstances of the low paid authorisation being in force, governed by s.174(4), which do not apply here.

 19   [2011] FWAFB 6772 at paragraphs 39 to 41.

 20   Transcript dated 6 July 2012 at PN 342.

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