Shop, Distributive and Allied Employees Association

[2014] FWCA 5344

[2014] FWCA 5344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association
(AG2013/7594)

RETAIL ADVENTURES PTY LTD STORE SALES STAFF AGREEMENT 2009

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 6 AUGUST 2014

Application to terminate an enterprise agreement after its nominal expiry date - company has had receivers and managers appointed.

Introduction

[1] The Shop Distributive and Allied Employees’ Association (the SDA) has made application under section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Retail Adventures Pty Ltd Store Sales Staff Agreement 2009 1. The Agreement was approved by the Commission on 2 December 2009 and has a nominal expiry date of 2 December 2012. On 4 April 2014 the Commission received correspondence from the Australian Workers’ Union, who are also covered by the Agreement, indicating they support the application.

[2] It is also noted that the application initially named Retail Adventures Pty Ltd as the Respondent. However, the Commission was subsequently advised the Respondent’s name had changed to DSG Holdings Australia Pty Ltd (DSG). On 1 July 2014 the Commission also received a copy of a media release forwarded from DSG advising KordaMentha Restructuring had been appointed as Receivers and Managers of DSG and Nicols + Brien as Voluntary Administrators.

[3] Section 225 of the Act states:

“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;

(c) an employee organisation covered by the agreement.”

[4] In dealing with such an application section 226 provides:

“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.”

[5] The SDA submit the employees are being disadvantaged by continuing to be covered by the existing Agreement. It also submits it has attempted to negotiate a new agreement with DSG without success, and there is no imminent prospect of negotiations commencing. It therefore submits the Agreement should be terminated to enable the employees to be covered by the relevant modern award, being the General Retail Industry Award 2010 2 (the Modern Award).

[6] DSG submits it has not sought to avoid negotiations for a new Agreement, but has not been in a position to do so given the financial issues it has been dealing with. It also submits that, in all the circumstances, the application does not satisfy the requirements of s.226 of the Act.

The Issue to be Determined

[7] An application has been made under s.225 of the Act to terminate the Retail Adventures Pty Ltd Store Sales Staff Agreement 2009. The Commission must terminate an Agreement when an application has been made if the conditions in s.226 of the Act have been met. Therefore –

• would it be contrary to the public interest to terminate the Agreement; and



• is it appropriate to terminate the Agreement taking into account all the circumstances including the views of the employees, the employer, and each employee organisation covered by the Agreement, and the circumstances of each, including the likely effect termination would have on them.

The Evidence and Submissions

[8] The SDA submits it is now more than 18 months since the Agreement passed its nominal expiry date and there is currently no prospect of negotiations commencing for the establishment of a new Agreement. It submits the employees covered by the Agreement are disadvantaged when the terms and conditions in the Agreement are compared with those in the underlying General Retail Industry Award 2010. It also submits the employer has been “sheltered” by this situation, while its competitors are covered by different arrangements and are transitioning to the minimum terms and conditions contained in the Modern Award.

[9] The SDA provided a detailed comparison of the terms and conditions in the Agreement and those in the Modern Award. In its submission the particular areas of disadvantage for employees who continue to be covered by the existing Agreement derive from the penalty rates provided for work on Sundays for employees in New South Wales, and the loading provided to casual employees.

[10] It submits it is not appropriate to have an industrial instrument in place which undermines the standards contained in the Modern Award in circumstances where there appears to be no prospect of bargaining for a new agreement being initiated.

[11] Is also submits there is a level of confusion about the relevant wage rates to be provided to the employees covered by the Agreement, and they need to access three separate instruments to determine their actual entitlements, being the expired Agreement, the Modern Award, and their previous State based rates. It submits this provides further support for termination of the Agreement in the public interest.

[12] The SDA also submits it has been attempting to engage in bargaining with DSG since December 2012, but this has come to nothing. In this context it highlighted various emails and other correspondence between the parties where DSG indicated it is not in a position to be able to meet and enter into a bargaining process. It also submits bargaining should be based upon the terms and conditions contained in the Modern Award, rather than the expired Agreement.

[13] DSG submits, in response, the Agreement should not be terminated because the requirements of s.226 have not been satisfied. It referred, firstly, to the Full Bench decision in Kellogg Brown & Root Pty Ltd v Esso Australia Pty Ltd 3 (Kellogg Brown) in dealing with to the need to consider the public interest. It referred, particularly, to the following extract when the Full Bench stated:

“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 ... 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.” 4

[14] It also submits the Objects of the Act are relevant in the context of this application and referred, in particular, to the Objects in s.3(a) and (f) of the Act which state:

“(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

...

(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;”

[15] It also made reference to the Objects contained in s. 171, being that part of the Act that deals particularly with the making of enterprise agreements. It states:

“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) makingbargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance...”

[16] It submits, in turn, that leaving the existing Agreement in place will “will more readily enable parties to collectively bargain for a new agreement as opposed to the effect that termination of the agreement would have.” 5

[17] It also relies on the decision of VP Lawler in Tahmoor Coal Pty Ltd re Tahmoor Colliery Enterprise Agreement 2006; Tahmoor Washery Workplace Agreement 2006 6 (Tahmoor Coal) when stated:

“Given that principle of construction that the specific overrides the general, this suggests that the emphasis on promoting productivity (part of the object in s.3(a)) is primarily to be achieved through collective bargaining in good faith (the objects in s.3(f) and s.171) rather than by other means, such as termination of an expired agreement.” 7

[18] DSG also submits the SDA has not addressed the public interest considerations in any realistic way, and is only concerned about the interests of the individual employees, rather than any “larger economic or community interests”. 8 In its submission the public interest is greater than just the interest of the parties, and matters such as prevailing employment levels, and the level of inflation, should also be taken into account. It submits the SDA’s focus is on “individual employee interest,” rather than “larger economic or community interests”, and “therefore they are not relevant for the purpose of establishing whether the Commission should be satisfied that there are public interest considerations”.9

[19] DSG also provided a summary of the trading difficulties the business has experienced over the past 2 to 3 years, highlighting the following developments, in particular:

• Retail Adventures Pty Ltd went into voluntary administration on 26 October 2012. Since this time more than 1000 employees have been made redundant and more than 150 stores have closed across the country.



• On 5 September 2013 the employer became DSG following its purchase of the Retail Adventures Pty Ltd business on 26 October 2012.



• Proceedings were bought against Retail Adventures Pty Ltd by creditors in September 2013 and a decision was subsequently handed down on 23 December 2013.



• That decision was the subject of appeal in January 2014 and the application was subsequently dismissed in March 2014. However, the court action heightened the operational difficulties resulting in the closure of other stores and more employees being made redundant.

[20] It also submits if the Agreement were terminated now it would impose further administrative costs on the business, and not be consistent with the productivity objectives set out in the Act. It also submits the associated cost impact would likely make it more difficult to begin the process of establishing a new Agreement at some point in the future. In its submission the potential outcome of a decision to terminate the existing Agreement is, in summary:

“a. More employees being made redundant on the basis of greater costs being incurred by the business to transition to the Modern Award both in respect of administrative costs of implementing the change and as a result of increased labour costs;

b. Further stores throughout Australia being closed down resulting in reduced competition and benefits for consumers throughout both metropolitan and regional Australia; and

c. Delaying the Respondent’s ability to enter in to bargaining for a new enterprise agreement;” 10

[21] It referred again to the decision of VP Lawler in Tahmoor Coal when he stated:

“...the apparent legislative intent is that both beneficial and detrimental effects on the employees, employer and union of termination as against no termination should be considered and that if the comparison of those effects suggests that one of them is disproportionately worse of[f] when the benefits and detriments are balance, this is factor in favour of a conclusion that termination will be inappropriate.” 11

[22] DSG also submits the disadvantage suffered by employees is not significant when the operation of the business in all States is taken into account. It submits only 30.8% of its employees are located in New South Wales and not all of the stores in that State trade on Sundays. Conversely, 44.7% of its employees are engaged in Queensland and receive the same entitlements as under the Modern Award. However, it also submits that reverting to the award would have “the foreseeable effect of further increasing labour costs in the short term.” 12

[23] It also questions the SDA’s submissions about bargaining and submits it has not made any real efforts since December 2012 to engage in bargaining. Ms Megan Larnach-Jones is DSG’s General Manager – Human Resources. She said DSG had not sought to avoid meeting with the SDA to commence negotiations about a new agreement, but was simply not in a position to do so given the issues the business had been dealing with. She said that since the SDA made application she has continued to update the Commission about the ongoing issues impacting on the business. She said the present situation remained uncertain and DSG did not propose or intend to enter into negotiations for a new agreement until the business had “stabilised”. It would be in this position when the business had become profitable and the number of stores remaining had consolidated. She also submitted that “pushing DSG on to the Modern Award” would be inconsistent with the objective of increasing productivity through good faith bargaining. 13

[24] Ms Larnach-Jones also submitted that administrative costs of up to $90,000 could be incurred if DSG was required to update its payroll system to take account of employees being engaged under the terms and conditions contained in the Modern Award, rather than the existing Agreement. In addition, termination of the Agreement now could result in:

• more employees being made redundant;



• further stores throughout the country being closed; and



• further delay in DSG’s ability to enter into negotiations for a new agreement.

[25] After the hearing had concluded the Commission received further information from the Respondent which caused it to issue further directions to the parties, indicating in part:

“It has come to the Commission’s attention, both from media reports and information received from the Respondent, that DSG Holdings Australia Pty Limited (DSG) has been placed into receivership, with receivers appointed. It is understood DSG operates the Retail Adventures business.

As a consequence of this development it is proposed to provide the parties with the opportunity to make further submissions, if they wish, about the relevance of this situation to the present application.” 14

[26] The SDA responded by indicating it did not wish to make further submissions and continued to rely on what it had already provided. Ms Larnach-Jones responded by indicating, in part:

“DSG Holdings Australia Pty Ltd (DSG) (Administrator Appointed) (Receivers and Managers Appointed) has received the directions issued on 4th July 2014 regarding this matter, the response from the SDA and has no further submissions.” 15

Consideration

[27] The circumstances that characterise this matter have obviously been difficult for all concerned. The financial difficulties DSG has been working through over an extended period have been outlined in the submissions and evidence. They have also been the subject of reports in the media. Clearly, it has also been a difficult time for the employees of the business, with many having been made redundant already, and those remaining no doubt uncertain about their ongoing employment prospects. Those employees also remain locked into an Agreement which is heading towards being two years beyond its nominal expiry date, with no realistic prospect of DSG being prepared or willing to commence negotiations for the establishment of a new agreement.

[28] As indicated, the matter is required to be determined in accordance with s.226 of the Act. The decision of Lawler VP in Tahmoor Coal, which DSG made reference to, providesa detailed review of those provisions, both in terms of their historical context and what they now require. He also made reference in that decision to the Full Bench decision in Kellogg Brown, and its consideration of how the “public interest” is assessed and taken into account. That matter also involved an application to terminate an agreement and Lawler VP referred particularly to the conclusions of the Full Bench in paragraph 23 of that decision. DSG’s submissions also referred, in part, to this aspect of the decision where the Full Bench concluded:

“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.” 16

[29] Lawler VP continued to indicate that the public interest might involve something distinct from the interests of the parties, although they may be similarly affected. He also concluded that termination of an agreement may be in the public interest, or it might contradict the public interest, but could also be neutral in terms of any public interest considerations. He also noted that the existing legislation represented the first time the power to terminate an agreement had been subject to the additional pre conditions in s.226(a) and (b), and both involve a degree of subjective judgement. He concluded:

“‘Appropriateness’ is a broad discretionary standard. Reasonable minds may differ, indeed, differ sharply, on what is appropriate in any given set of circumstances. The power to terminate an agreement turns on what is effectively an exercise of a broad discretion.” 17

[30] The Vice President also suggested a form of cost/benefit analysis might be relevant in terms of the obligations imposed by s.226(b)(ii) when he stated:

“In relation to the matter specified in s.226(b)(ii), the apparent legislative intent is that both beneficial and detrimental effects on the employees, employer and union of termination as against no termination should be considered and that if the comparison of those effects suggests that one of them is disproportionately worse of when the benefits and detriments are balance, this is factor in favour of a conclusion that termination will be inappropriate. Of course, there is a problem of comparison here because it will often be inherently problematic to compare different species of benefit and detriment.” 18

[31] He also concluded that the Objects of the Act are of particular relevance and a “material factor” in considering whether termination of an agreement is going to be appropriate in any particular instance. In this context he referred to the Objects set out in s.3, but also to the Objects in s.171 in that part of the Act that deals specifically with bargaining and agreement making. He concluded that collective bargaining in good faith is the central way in which the framework established by the Act is to be facilitated and, accordingly, termination of an agreement should only be considered in the context of whether it will “enhance or reduce the prospects of the parties concluding a new agreement through bargaining.” 19

[32] He also made reference to the decision of Watson VP in Energy Resources of Australia Ltd v Liquor, Hospitality and Miscellaneous Union 20 and referred, in particular, to the following extract from paragraph 26:

“The prevailing legislative provisions have provided for the continuation of agreements after their nominal expiry date subject to an ability to make application to terminate the Agreement. Different tests have applied, some more limited than the current provisions and some less restricted. It is clear that enterprise agreements are intended to apply for a limited period and either be renegotiated, renewed, varied, replaced, terminated or left unaltered depending on negotiations between the parties and the operation of the legislative provisions.” 21

[33] Watson VP terminated the agreement in that matter in circumstances where it was more than ten years beyond its nominal expiry date, and had continuing application to only three employees, who represented less than 1% of the entire workforce.

[34] In referring again to the decision in Energy Resources Lawler VP concluded:

“I respectfully agree with his Honour that it is not intended by the legislation that agreements should remain in place indefinitely and that it is unreasonable to lock an expired agreement in place indefinitely. On the other hand, this does not mean that a party to an agreement has a prima facie right to have the agreement terminated merely because the agreement has passed its nominal expiry date.” 22

[35] In dealing with the matter before him Lawler VP finally decided not to terminate the agreement having regard to, in particular, the ongoing bargaining processes. However, he also concluded that this should not be taken to mean the agreement should necessarily be left in place indefinitely, or even for an extended period. He concluded:

“It seems to me that under the scheme of the FW Act, generally speaking, it will not be appropriate to terminate an agreement that has passed its nominal expiry date if bargaining for a replacement agreement is ongoing such that there remains a reasonable prospect that bargaining (in conjunction with protected industrial action and or employer response action) will result in a new agreement. This will be so even where the bargaining has become protracted because a party is advancing claims for changes that are particularly unpalatable to the other party. While every case will turn on its own circumstances, the precedence assigned to achieving productivity benefits through bargaining, evident in the objects of the FW Act, suggests that it will generally be inappropriate for FWA to interfere in the bargaining process so as to substantially alter the status quo in relation to the balance of bargaining between the parties so as to deliver to one of the bargaining parties effectively all that it seeks from the bargaining.” 23

[36] I have given consideration to the circumstances of this matter having regard to the relevant legislative provisions, the evidence and submissions of the parties, and the authorities referred to. The Agreement that covers the parties had an initial term of three years. It is now more than eighteen months since that period ended with no apparent prospect of the employer being prepared to get involved in negotiations for a new agreement. However, it is also acknowledged as well that DSG is now in voluntary administration.

[37] The evidence of Ms Megan Larnach-Jones for DSG is that it only intends to be involved in negotiations for a new agreement when the business has “consolidated” and is again profitable. 24 To this extent the current circumstances can be contrasted with those being considered by Lawler VP in Tahmoor Coal when he concluded that “generally speaking” it will not be appropriate to terminate an agreement in circumstances where there is a “reasonable prospect bargaining ... will result in a new agreement.”25 In the present matter there is no bargaining or negotiation taking place, and no indication of when it is likely such processes will commence.

[38] Section 226 of the Act first requires that consideration be given to whether it would be contrary to the public interest to terminate the Agreement. The decision of the Full Bench in Kellogg Brown suggests this requires attention be directed to the likely consequences in terms of their impact upon the broader public interest, and goes to considerations such as employment levels in the workforce, the prevailing levels of inflation, business confidence, and perhaps even the broader “knock-on” effects of any decision to terminate the agreement on others apart from those directly involved.

[39] It is also evident from the decisions in Kellogg Brown and Tahmoor Coal that the notion of the public interest extends to having regard to the objects of the Act, and the maintenance of proper industrial standards. In this context DSG makes reference to the objects contained in sections 3(a) and (f) and in s.171. The emphasis in each case is upon productivity and growth through enterprise level collective bargaining. There can be no doubt that bargaining and negotiation and the making of enterprise agreements is intended to be the principal means under the Act whereby working conditions and work arrangements, based on the needs of individual workplaces and their employees, are to be put in place and varied over time. However, the Act also refers to the requirement to have regard to an appropriate safety net of “fair, relevant and enforceable minimum terms and conditions” of employment. 26 This brings into question whether it is appropriate for employees to remain covered by an Agreement that is still in place well beyond its nominal expiry date in circumstances where there is no imminent prospect of it being replaced by another.

[40] So, while DSG rightly points to the emphasis in the Act on bargaining and agreement making it also acknowledges that, in all the current circumstances, it is not in a position to enter into those processes at this point. As indicated, it’s submissions in regard to the objects of the Act also need to be considered in the context of those objects in totality, including the object contained in s.3(b) which requires “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.” 27

[41] DSG also submits the SDA has not addressed the public interest considerations in the manner contemplated by the Act and is only concerned about the interests of the employees employed by DSG, rather than by any “larger economic or community interests.” 28 It is again acknowledged that in pursuing this application the SDA is primarily concerned with the interests of its members employed by DSG, (and probably by the interests of the other employees as well.) Its submissions only make limited reference to any broader public interest concerns as motivation for pursuing the application.

[42] However, the same can be said about DSG’s submissions. In opposing the application it is primarily concerned about its own business interests, rather than any broader public interest considerations. While it makes passing reference to the impact on consumers of reduced competition in the market if its stores continue to be forced to close, its submissions are primarily focused upon the impact on its business. For example, it makes particular reference to the impact of any additional labour costs that might be imposed if the Agreement were to be terminated, as well as the costs that might derive from any additional administrative requirements associated with termination of the Agreement and coverage by the Modern Award.

[43] These are entirely understandable concerns and clearly any business is going to be concerned about the potential impact of additional costs. The business is also in voluntary administration and its concerns in this regard are going to be more acute. Nevertheless, I am not satisfied this provides sufficient reason or excuse to lock employees into an Agreement that has long since passed its nominal expiry date, in circumstances where there is no apparent prospect of negotiations for a new agreement commencing. It is also noted that DSG was provided with the opportunity to make further submissions after it was announced it was now in voluntary administration but elected not to do so.

[44] I am, accordingly, satisfied at the outset that there nothing in the circumstances of this matter that leads to a conclusion it would be contrary to the public interest to terminate the Agreement. While the outcome of these proceedings might be of some significance to the business and its employees I cannot conceive of any wider public interest considerations that would be similarly impacted.

[45] The Commission is also required to consider whether it is appropriate to terminate the Agreement taking into account all the circumstances, including those specified in s.226(b)(i) and (ii). In taking into account “all the circumstances” it is appropriate at this point to briefly summarise the circumstances I consider relevant, based on the evidence and submissions before the Commission.

• The business is in evident financial trouble and obviously looks to avoid anything further that might exacerbate the current situation.



• The business is supportive of bargaining and negotiation leading to the establishment of a new enterprise agreement to cover its employees. However, it has not been prepared to engage in those processes for some time because of the financial and trading issues it has been dealing with and can provide no indication of when it might be in a position to do so.



• The business is now in voluntary liquidation and looking for potential investors who might be prepared to take on the business or a part of it. In the meantime further store closures and employee redundancies remain a distinct possibility.



• The remaining employees are presently locked into an Enterprise Agreement initially made five years ago, and now more than eighteen months past its nominal expiry date, with no prospect of it being replaced by a new Agreement.



• Some of the employees, particularly those located in New South Wales and required to work at weekends, and those employed on a casual basis, are disadvantaged when their current terms and conditions of employment are compared with those contained in the General Retail Industry Award 2010.

[46] In coming to a decision in this matter it is not my intention to make DSG’s trading position more difficult. In any case the evidence was not conclusive about the extent to which additional costs might be imposed upon the business by any decision to terminate the existing Agreement. For example, DSG submitted on the one hand if the application were granted there could be significant cost impacts for the business. However, it also submitted that there was no need to grant the application because most employees were not disadvantaged when the terms and conditions contained in the Agreement were compared with those in the General Retail Industry Award 2010. DSG also submitted there could be some additional administrative costs involved if the Agreement were terminated and the Modern Award had application in its place.

[47] I have also had particular regard for the circumstances of the employees. As indicated, the recent past has clearly been a very uncertain time for anyone employed in the business. Many employees have been made redundant, with those remaining left in an uncertain and unpredictable position. They also remain locked into an Agreement in circumstances where their conditions of employment appear to lag behind those applying as minimum standards for the overwhelming majority of employees in the retail industry.

[48] Taking into account all the circumstances I have decided to terminate the Agreement. I have come to this decision, in particular, because the Agreement is now almost five years beyond the date on which it was first approved, and more than eighteen months past its nominal expiry date, with no realistic prospect at this time of a new Agreement being negotiated and put in its place. I am satisfied that this outcome provides an appropriate balance taking into account the interests of the business and its employees.

[49] However, I have also decided that termination of the Agreement will not take effect until 1 December 2014, being a point in time that is two years after the nominal expiry date of the Agreement. There is no particular significance attaching to this date being two years after the nominal expiry date. However, it will provide an extended period of four months to enable the business, and those now responsible for its management, to act in a measured and considered way in response to any issues arising from termination of the Agreement.

[50] I am also satisfied that this outcome will provide a degree of certainty for both the existing business and any prospective purchaser of the business in terms of the industrial instrument that regulates the terms and conditions of employment for the employees of the business from 2 December 2012 and beyond. It will also put the business on the same footing as now applies in the retail industry in all States through the application of the minimum terms and conditions of employment contained in the General Retail Industry Award 2010.

COMMISSIONER

Appearances:

Ms S Burnley appeared on behalf of the Shop, Distributive and Allied Employees Association.

Ms G Sharp of HR Business Solutions Pty Ltd appeared on behalf of DSG Holdings Australia Pty Ltd.

Hearing details:

2014.

Melbourne and Brisbane.

9 April.

Final written submissions:

Final written submissions of the Shop, Distributive and Allied Employees Association were submitted on 8 July 2014.

Final written submissions of DSG were submitted on 9 July 2014.

 1   AE872460

 2   MA000004

 3   [2005] AIRC 72

 4   Ibid at [23]

 5   Submissions of the Respondent at para 15

 6   [2010] FWA 6468

 7   Ibid at [51]

 8   Above n.v at para 18

 9   Ibid

 10   Ibid at para 30

 11   Above n.vi at [45]

 12   Above n.v at para 34

 13   Above n.v at para 29

 14   Directions issued by the Fair Work Commission on 4 July 2014

 15   Email correspondence from Megan Larnach-Jones to Chambers - Gregory C on 9 July 2014

 16   Above n.vi

 17   Ibid at [32]

 18   Ibid at [45]

 19   Ibid at [50]

 20   [2010] FWA 2434

 21   Ibid at [26]

 22   Above n.vi at [54]

 23   Ibid at [55]

 24   Exhibit S1 at para 19

 25   Above n.xxiii

 26 Section 3(b) of the Fair Work Act 2009 (Cth)

 27   Ibid

 28   Above n.v at para 18

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