Re Queensland Nurses' Union of Employees

[2017] FWCA 162

[2017] FWCA 162

FAIR WORK COMMISSION

DECISION

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

Queensland Nurses' Union of Employees
(AG2016/3193)

TRICARE RESIDENTIAL AGED CARE FACILITIES ENTERPRISE AGREEMENT 5

Aged care industry
COMMISSIONER BOOTH	BRISBANE, 9 JANUARY 2017

Application for termination of the TriCare Residential Aged Care Facilities Enterprise Agreement 5.

[1] An application was made by Queensland Nurses’ Union of Employees (QNU) under s.225 of the Fair Work Act 2009 (the Act) to terminate the TriCare Residential Aged Care Facilities Enterprise Agreement 5 (EA5). The nominal expiry date of the Agreement was 18 November 2015.

[2] EA5 was approved by the Fair Work Commission (the Commission) on 12 November 2012. 1

[3] EA5covers and applies to TriCare Limited (TriCare) and its employees at their residential aged care facilities. QNU, United Voice (UV) and The Australian Workers’ Union of Employees, Queensland (AWU), are also covered by EA5.

[4] A hearing took place in this matter 14 December 2016. Mr Crank represented the QNU, Mr Ong, UV and Mr Harding, the AWU.

[5] QNU’s application satisfies s.225 of the Act, because the agreement has passed its nominal expiry date and QNU is an employee organisation covered by EA5.

Summary of Tricare’s and the Union’s positions

[6] TriCare has indicated that it will “neither support nor oppose the application” and that they “leave the determination of this matter with the Fair Work Commission”. This remained its position up to and including at the hearing. It did not participate in the hearing.

[7] QNU seeks to terminate EA5 on the basis it is outdated and less beneficial than the awards that cover Tricare’s employees (Nurses Award 2010 and Aged Care Award 2010).

[8] UV and the AWU oppose the termination. A primary consideration for both is that EA5 provides for 5 weeks’ leave for full-time employees while the Aged Care Award 2010 that covers their members provides for a minimum of 4 weeks’ annual leave for permanent employees (the annual leave issue).

Legislation

[9] Section 226 of the Act provides that the Commission must terminate an enterprise agreement in certain circumstances:

“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.”

Relevant background

[10] The parties have been bargaining to replace EA5 since October 2015. The QNU’s position is that there is little prospect of agreement being reached if EA5 is not terminated.

[11] Additionally, the QNU asserts (and it was not disputed by other parties) that a number of the base wage rates in EA5 fell below the applicable award in July 2015. TriCare increased those rates to award levels as it is required to do under s.206 of the Act. Additionally at that time TriCare unilaterally increased all base rates for all employees to whom EA5 applied. TriCare did not seek to vary or amend the agreement.

[12] QNU submits that as a result the base rate of pay found in EA5 does not apply to any employee.

[13] In June and July 2016 several conferences were convened to ascertain the position of parties and the likely effect the termination would have on them.

[14] UV and the AWU provided submissions on the effect termination would have on its members, including that they did not support termination, particularly because of the 5 weeks’ annual leave issue.

[15] UV and the AWU in their written submissions argued (in substantially identical terms) that termination was not in the public interest for various reasons including that bargaining is underway; there is no evidence of productivity gains from termination; TriCare has failed to address the 5 weeks’ leave issue; there is no consent from UV and the AWU to termination; employees’ views had not been formally sought; there is uncertainty about coverage under the awards. 2

[16] On 2 September 2016 my chambers wrote to TriCare asking for its views about the likely effect termination would have on shift worker employee entitlements to the 5^th week of leave.

[17] TriCare responded in a letter dated 12 September 2016 stating:

(a) In accordance with clause 18 of the TriCare Residential Aged Care Facilities Enterprise Agreement 5 (TriCare EA5), all permanent full time employees are entitled to a minimum of five weeks' of annual leave.

(b) In terms of TriCare's employees who are covered by the Aged Care Award 2010 (Award), the majority of these employees are not 'shiftworkers' within the meaning of the Award.

(c) If the TriCare EA5 was terminated, TriCare would continue to provide terms and conditions of employment in accordance with its legal obligations (i.e. the obligations arising under the National Employment Standards, the applicable modern Award and employees' common law contracts of employment).

The Views of employer, employees and employee representatives

TriCare

[18] TriCare has consistently maintained a position that it neither supports nor opposes the application. Nonetheless TriCare filed short submissions dated 18 August 2016 and wrote to the Commission on 24 October 2016 expressing the opinion that there was insufficient material before the Commission about the views of employees or the effect of termination on employees.

The employees

[19] EA5 covers approximately 1500 employees.

[20] In deciding whether to terminate an agreement the Commission must take into account the views of employees. The Act provides no direction as to how the Commission should obtain those views or how it should account for them.

[21] In AWX Pty Ltd trading as AWX (AWX) a Full Bench held:

“the Commission must be satisfied that employees had an opportunity to express a view and were fully aware of the issues upon which they were being asked to express a view.” 3

[22] The QNU completed a survey of its members employed by TriCare. Only 38 responded, all expressing support for the termination application. 4

UV similarly prepared a survey, with 6 members responding. No member indicated any particular view in support of or opposition to the application. As Mr Ong said:

“on the whole there has not been a great appetite to express a view one way or the other.” 5

[23] Consistent with its original position TriCare, in correspondence before the hearing, reiterated it neither supported nor opposed the application but drew to the Commission’s attention its view the Commission did not have sufficient material to satisfy s.226(b).

[24] UV and the AWU expressed similar views noting only a small proportion of the 1500 employees had expressed a view and urged an opportunity for all employees to express their views as to the termination of EA5.

[25] The Commission wrote to TriCare seeking its views on whether it would assist in the conduct of a survey of its employees. TriCare was not prepared to assist.

[26] Considering the Full Bench’s views in AWX, I formed the view it was necessary to allow employees a further opportunity to express a view on the QNU’s application.

[27] With the 3 Unions’ agreement, a Statement was published on the Commission’s website. It advised employees of TriCare that its purpose was to provide notification and information for employees who are covered by EA5 and to seek their views. Each Union prepared approximately 200 words stating its position - in the case of the QNU, why it supports the termination of the agreement; and for UV and AWU why it opposed the application.

[28] Following the publication of the Statement, TriCare advised that it had uploaded the Statement on its intranet.

[29] Each of the 3 Unions clearly put their case, and I am satisfied that “employees would have well understood the strong views articulated by both sides of the argument”. 6

[30] Only 9 employees responded to the survey by the time set for reply. A further 3 employees responded after that time. The parties had no objection to the late responses being considered by the Commission. All responses opposed termination of the agreement. The main reason given (where one was given) was the feared loss of 1 week’s annual leave, although some responses referred to a general loss of pay or entitlements.

[31] Out of almost 1500 employees, the employees’ views before the Commission represent a tiny minority, with 38 employees supporting the termination (as described in the QNU submission) and less than 20 employees opposing the termination.

[32] In relation to the views of the non-union members employed at TriCare, QNU submits that there have been at least 2 bargaining meetings whereby the topic of terminating EA5 was discussed. Those meetings were attended by around a dozen or more TriCare employees including non-members. It was submitted that “no employee has expressed in those bargaining meetings, nor otherwise to the QNU’s knowledge, any desire for EA5 to continue”.

The views of employee organisations

[33] QNU supports the termination for the following reasons:

• The circumstances of the employee, employers and employee organisations and the likely effect that the termination of EA5 on them, QNU submits that employees are better off under the Nurses Award 2010 because their terms and conditions are more beneficial than EA5.



• Termination of EA5 will not result in any loss of terms and conditions because the employees’ employment contracts still exist and provide entitlements of EA5.



• EA5’s continuance is an impediment to negotiations for a new agreement because it provides a base for negotiations that is worse than the awards.

[34] QNU submits the benefits to TriCare upon termination of EA5 are:

• reduced employee turnover;



• reduced training costs because experienced staff are retained;



• consequentially reduced errors in the care of their residents;



• continuing to negotiate towards a new enterprise agreement is not impeded.

[35] In QNU’s submission, UV and the AWU are not disadvantaged as unions because they remain bargaining representatives for their members at TriCare covered by EA5.

[36] UV conceded in its submissions that it had earlier neither supported nor opposed the application but it has changed its position.

[37] UV opposes termination of EA5 because it believes reverting to the Aged Care Award 2010 will have a detrimental impact on its members employed with TriCare. The concerns raised by UV are about the annual leave issue.

[38] UV requested an undertaking from TriCare to preserve this benefit.

[39] TriCare declined.

[40] The AWU submitted that in earlier proceedings, they had indicated their members employed at TriCare held concerns about the application to terminate EA5.

[41] If QNU’s application is successful the terms and conditions of the AWU members employed at TriCare would revert to the Aged Care Award 2010 and the AWU submits they will “suffer an adverse, tangible impact”.

[42] The AWU shared UV’s concerns about the annual leave issue.

[43] The AWU submits that TriCare will not provide an undertaking to preserve the 5 weeks’ annual leave and therefore the AWU cannot be satisfied that its members employed by TriCare will not lose this entitlement.

[44] The AWU submitted it has no choice but to oppose QNU’s application because of these concerns; and the refusal of TriCare to provide any formal assurance to preserve the entitlement of the extra week of annual leave.

Likely effect of termination of agreement on employer, employees and unions

[45] I turn now to consider the likely effect that termination of EA5 will have on the respective parties and whether it is appropriate in all the circumstances to terminate it.

[46] TriCare made no submissions about the effect of termination on its business, and went so far as to submit to the decision of the Commission.

[47] On the likely effect of termination of the agreement on its employees, TriCare stated that terms and conditions would be under:

National Employment Standards, the applicable modern award and employees' common law contracts of employment.

[48] QNU submitted that there are better terms and conditions under the Nurses Award 2010 than EA5. These include appropriate matching of wages to duties, issues about overtime and leave, minimum hours of work, consultation, allowances, breaks, days off and numerous other benefits.

[49] QNU’s submission is that employees will continue to have the benefits of the few terms of EA5 that are more beneficial than those of the Awards because the employees’ employment contracts provide for all of the entitlements of EA5. The QNU asserts that this position was not disputed in the submissions of TriCare, UV or the AWU.

[50] Mr Crank elaborated on this position during the hearing of this application. He made the following points:

• EA5 is now irrelevant in terms of the base rates of pay for anybody; 7



• There are no significant benefits of EA5 for any employee over the award other than an additional week’s leave for some employees. 8

[51] UV and the AWU are both of the view there is a risk that the additional annual leave entitlement available to their members under EA5 will not apply under the Aged Care Award 2010, and there is no certainty that TriCare will continue to provide that benefit in the event of termination.

[52] At the hearing the AWU raised an issue about coverage under the 2 awards. While this is a consideration, there are clear industrial processes to resolve any such concerns.

Conclusion on appropriateness

[53] Section 226(b) requires the Commission to consider the appropriateness of the termination taking into account the matters in s.226(b)(i) and (ii).

Views of employees, employer and employee representatives: s.226(b)(i)

[54] TriCare is the only affected employer. It neither supported nor opposed the termination and submitted itself to the Commission’s decision.

[55] The QNU supports termination.

[56] The other 2 unions, UV and the AWU oppose termination for the reasons stated above, including the possible detriment arising from the annual leave difference and their public interest arguments.

[57] Such a clear picture is not available about the views of employees. The following things are relevant to those views.

• About 1500 employees are covered by EA5.



• 38 employees who are members of the QNU support termination.



• Less than 20 employees indicated they oppose the termination, mainly because of the annual leave issue.



• The Commission is unaware of the views of the vast majority of employees because they have not taken advantage of the opportunities given to them to state their views.

[58] Nothing in the Act requires that a given proportion of employees’ views must be known or taken into account for an application under s.225. AWX makes plain that a low level of participation in formal action to ascertain views does not of itself impede the Commission from forming the requisite consideration for s.226. What must be provided is the opportunity to express a view. In my opinion, the Unions’ surveys, workplace meetings and the opportunity provided by the Commission, with Statements for and against from the Unions and made available both on the Commission’s website and TriCare’s intranet provided that opportunity. The fact that some employees responded shows that the information was conveyed to at least some employees.

[59] The fact that so few people took the opportunity to express a view does not preclude the views of employees being considered along with other matters although the views are not binding on the Commission. 9 The statutory obligation is for the Commission to form its view “taking into account all the circumstances”, which include employees’ views. If only a small number of employees express a view, given the opportunity for an informed view to be expressed, then the view of employees include a lack of interest in the question from a large majority. In effect the majority of employees shared TriCare’s lack of interest in the question.

Circumstances and likely effect: s.226(b)(ii)

[60] Mr Crank for the QNU submitted that the Nurses Award 2010 provides more beneficial provisions both in terms of wages allowances and conditions, and that the leave issue was covered for QNU members by their contracts of employment, and that the same was true for other employees. QNU also in written submissions pointed out that shift workers are afforded 5 weeks’ annual leave by the Aged Care Award 2010, so the risk of losing the week’s leave falls only on non-shift workers under that award. It argues that many (if not most or even all) TriCare employees under that award are shift workers.

[61] In final submissions, Mr Harding was less sure of the contractual conclusion for AWU members, noting that QNU’s submission was in the nature of a legal opinion and not a guarantee about TriCare’s obligation. He submitted QNU’s position could not satisfy the Commission that employees would not lose 1 week’s annual leave.

[62] It is at best uncertain whether, in the event of termination, all employees would retain EA5 minimum annual leave conditions. TriCare’s decision not to participate in these proceedings and refusal to give an undertaking contributed to this uncertainty. The possible loss of the 5th week of annual leave is a real consideration in that termination might negatively affect some employees.

[63] It is not the case that termination will not proceed in cases where there may be a diminution in either pay or conditions. For example, in Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd 10(Peabody) the Full Bench upheld a decision to terminate an agreement in circumstances, which included “a small but significant reduction in remuneration for the employees in question”.11

[64] On the other hand, the EA5’s wage rates no longer apply; it has expired; conditions under the Awards are generally better; and negotiations are continuing for a new agreement, potentially impeded by relatively poorer conditions under EA5. Further, termination will not disturb the rights of UV and the AWU as bargaining parties to participate in future bargaining.

[65] The Commission is required to consider the appropriateness of termination taking into account “all the circumstances”. The expressed support or opposition of an employee or employee’s representative, the employer’s lack of participation, and lack of interest by the vast majority of employees, cannot be determinative.

[66] Taking into consideration views of employees (who generally did not raise opposition to termination), the submitting position of TriCare, the support by the QNU and opposition from UV and the AWU, the uncertain effect of termination on annual leave entitlements of some employees including the potential of the loss of the 5^th week of leave for some employees, the irrelevance of EA5 to actual pay, the beneficial effect for some conditions under the Awards, and the state of negotiations towards a new agreement, there is a sufficient basis to conclude it is appropriate to terminate the agreement.

The public interest

[67] In Aurizon Operations Ltd; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd 12(Aurizon) the Full Bench noted that consideration of the public interest involves something distinct from the interest of the persons and bodies covered by the agreements. It considered the approach in Re Kellogg Brown and Root Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2010 (Kellogg Brown) should be followed. In that decision a Full Bench said:

“The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include.

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.

We were referred to a number of authorities concerning the ascertainment of the public interest. It is sufficient to refer to two. The first is the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (the QEC case). In that case the Court was considering the exercise of the discretion conferred on the Conciliation and Arbitration Commission by s.41(1)(d)(iii) of the Conciliation and Arbitration Act 1904. A similar discretion is now conferred upon this Commission by s.111(1)(g)(iii) of the Act. That section reads:

"111 Particular powers of Commission

. . .

(1) The Commission may:

. . .

(g) dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute, if it appears:

. . .

(iii) that further proceedings are not necessary or desirable in the public interest;"

The QEC case was concerned with whether or not the Commission had failed to exercise its jurisdiction in upholding an application by the Queensland Electricity Commission to refrain from further hearing or from determining an industrial dispute between it and the Electrical Trades Union of Australia. The following passage appears in the joint judgement of the majority:

“. . . Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case the Commission was called upon to weigh in the balance two competing public interests. One was the importance of settling in its entirety the dispute initiated by the E.T.U.'s log of claims. The other was the importance of leaving the dispute to be resolved by the State tribunal despite the limitations on its jurisdiction if that course was likely to maintain the marked improvement in industrial relations in the industry that had occurred since the dispute arose and thereby contribute to industrial peace and an efficient power supply.”

It is clear from this passage that the ascertainment of the public interest may involve balancing countervailing public interests. That the Commission should take all of the circumstances into account is made clear by Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd. These authorities provide useful general guidance in the application of the test in s.170MH(3). They illustrate the types of interests which can be properly described as public interests and confirm the breadth of circumstances which may be relevant to the ascertainment of those interests.
It should be emphasized that the Commission's consideration of the public interest for the purpose of s.170MH(3) is directed to the consequences of terminating the agreement. In a given case, some consequences will be clearly predictable, others will be less so. For the most part the Commission should be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences.” (underlining added) 13

[68] The QNU notes that the public interest test under s.226(a) requires a consideration of whether termination is not contrary to the public interest. It does not require a positive finding that termination is in the public interest. This is correct.

[69] The QNU suggests that while there is no direct effect on the public, termination would have “affirm principles that are broadly in the public interest”, 14 particularly because after termination of the agreement the Nurses Award 2010 and the Aged Care Award 2010 would apply.15

[70] On the issue of bargaining for the next enterprise agreement the QNU submits that it has no desire to bargain for a new agreement starting from the terms of EA5 which are less beneficial than the Award. Accordingly, continuance of EA5 discourages from collective bargaining for a replacement agreement. 16

[71] UV and the AWU brought to the Commission’s attention a number of factors relevant to the public interest that should be considered in deciding whether to terminate an enterprise agreement from the case law.

[72] These factors are:

• Whether bargaining for a new agreement is occurring.



• Whether productivity gains would be obtained from the termination.



• The extent to which any detrimental impact to employees caused by the termination is ameliorated.



• The extent to which application is made by consent.



• Any potential uncertainty as to Award coverage which would arise because of the termination.

[73] UV and the AWU suggest these factors can be addressed in the following way:

• Bargaining for a replacement agreement has been occurring for some time.



• It is unclear what productivity gains would be achieved by the termination of the agreement.



• The employer has refused to provide any formal assurance that the detrimental impact to employees caused by the termination will be addressed and their conditions of employment protected.



• The application is not made by consent.



• There is significant potential for uncertainty about coverage if the application is successful.

[74] As to the different positions between the QNU and the AWU in this matter, the AWU submits:

The QNU rightly identifies that many of TriCare’s employees are low-paid and that there is a need to have employment conditions which are more beneficial than the relevant modern Award/s. However, there is little regard for those employees who as a result of the termination of the agreement, may suffer a reduction in their employment conditions.

[75] In these circumstances the AWU submits that the Commission cannot be satisfied that the termination is not contrary to the public interest.

Is termination contrary to the public interest?

[76] From Kellogg Brown, the notion of the public interest relevant to termination of an agreement looks to maintenance of proper industrial standards, and achieving the Act’s objects. 17

[77] Turning to those factors I refer first to the maintenance of proper industrial standards. I have concluded that the termination is not contrary to proper industrial standards because although there is a potential for a diminution of a benefit being the 5^th week of leave it does not fall foul of maintaining a proper industrial standard. Aurizon makes this clear, noting that the safety net and reversion to an award is in fact a proper industrial standard.

[78] As to possible coverage issues, there are proper industrial means for addressing any uncertainty or resolving any dispute. The mere possibility of coverage issues is not sufficient to say that termination is not in the public interest.

[79] Additionally the QNU seeks termination because it asserts EA5 restrains its capacity to maximise reasonable benefits for its members. On this point, I am persuaded that the same principle applies whether the applicant for termination is an employer or an employee organisation. That QNU’s application to terminate will disturb the current bargaining positions was explicit in its submissions. QNU does not seek to bargain with EA5 in place but seeks to bargain with the “more beneficial provisions of the 2 Awards”.  18 This proposition is not counter to the object of a fair framework for collective bargaining and on this basis is not contrary to the public interest.19

[80] The termination sought by the QNU cannot therefore be contrary to the public interest on the basis of industrial standards.

[81] The argument that some individual employees may suffer a reduction in employment conditions (no doubt of real concern to those individuals and their unions) is an argument about individual conditions and is not a matter contrary to the public interest.

[82] In written submissions QNU listed 22 terms and conditions in the awards it said would be more beneficial than those in EA5. 20

[83] I therefore conclude for these reasons that termination of EA5 is not contrary to the public interest.

Conclusion

[84] For the reasons just given, in all circumstances termination of EA5 is not contrary to the public interest.

[85] Further, I have considered the views of the employees, employers and the employee organisations and the likely effect that the termination will have on them.

[86] After termination, employees’ terms and conditions will revert to the Nurses Award 2010 or the Aged Care Award 2010. Those conditions are in many cases more beneficial.

[87] QNU’s submission that common law contracts include more beneficial EA5 conditions, at least for its members and others under the Nurses Award 2010 was not contradicted by the other unions. In any case, the primary benefit that might be lost in the UV and the AWU submissions was the minimum 5 weeks’ annual leave. It seems this risk is limited to certain individuals who will not have the benefit of 5 or more weeks minimum annual leave under the Awards, and whose contracts of employment do not preserve EA5 benefits. On the evidence before the Commission that number is likely to be small. This effect is comparable, in my view, with the possible negative impacts discussed in Peabody.

[88] In my view it remains appropriate to terminate the agreement in all these circumstances notwithstanding uncertainty and possible detriment.

[89] I am satisfied the requirements of s.226 for termination of an enterprise agreement after its nominal expiry date have been met.

[90] The termination of EA5 is approved with effect from 9 January 2017.

COMMISSIONER

Appearances:

Mr K Crank from Queensland Nurses Union of Employees.

Mr Simon Ong from United Voice.

Mr Jack Harding from The Australian Workers’ Union of Employees, Queensland.

Hearing details:

2016.

Brisbane:

14 December.

 1   AE898146

 2   AWU Submissions 18 August 2016 at paragraph 18; UV Submissions 18 August 2016 at paragraph 18.

 3   [2013] FWCFB 8726 at [19].

 4   Transcript dated 14 December 2016 at PN26; Affidavit of Mr Crank dated 22 September 2016

 5   Transcript dated 14 December 2016 at PN76

 6   [2013] FWCFB 8726 at [22]

 7   Transcript dated 14 December 2016 at PN46

 8   Transcript dated 14 December 2016 at PN42

 9   [2013] FWCFB 8726 at [16]

 10   [2016] FWCFB 3591

 11   [2016] FWCA 1595

 12   [2015] FWCFB 540 at [129]

 13   PR955357 at [22] to [27].

 14   QNU submissions at paragraph 30

 15   QNU submissions at paragraph 32

 16   QNU submissions at paragraph 33

 17 as to the Act’s objects see also CEPU v Aurizon Operations Ltd [2015] FCAFC 126 affirming the Full Bench’s approach in Aurizon; and refusing relief claimed on the basis that the Full Bench misread the relevant objects of the Act.

 18   QNU Submissions at paragraph 25

 19   Aurizon at paragraph [159]

 20   QNU Submissions at paragraph 50(a)

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