SIMPEC Pty Ltd T/A SIMPEC Pty Ltd

[2019] FWC 7545

[2019] FWC 7545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SIMPEC Pty Ltd T/A SIMPEC Pty Ltd
(AG2019/1472)

SIMPEC PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 OCTOBER 2019

Application for approval of the SIMPEC Pty Ltd Enterprise Agreement 2019(Agreement) - Relevant reference instruments.

[1] Simpec Pty Ltd made an application for the approval of an enterprise agreement known as the Simpec Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), while not a bargaining representative for the Agreement, sought copies of the materials filed regarding the application, and thereafter made an application to be heard under s 590 of the Act.

[3] The decision of the Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited (Collinsville Decision) 1makes explicit that despite a union having no right to be heard, the Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate. The CEPU submitted that under its rules it had coverage over several classifications covered by the Agreement, and it was familiar with, and had knowledge of, the awards that underpin the Agreement.

[4] Although the CEPU traversed several issues with the pre-approval steps for the Agreement and the intent of the Agreement itself, it raised the further salient point that Simpec had referred in its Agreement to the classifications of ‘Electrical Installer’ and ‘Dual Tradesperson’, which were not classifications covered by the Building and Construction General On-Site Award 2010 (the Building and Construction Award). The CEPU submitted that Simpec should have also included the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical Award) as the reference instrument for the purposes of the Better Off Overall Test (BOOT) required to be applied by s 193 of the Act.

[5] Simpec submitted that it was a relatively new business enterprise, established 26 months ago to provide construction and asset management services in structural, instrumentation, mechanical, piping, electrical and civil industries.

[6] According to the CEPU, Simpec should have identified the Electrical Award to cover classifications within ‘electrical services’, if any relevant electrical employees were engaged in works that fell within ‘asset management’. The CEPU submitted that asset management services could include (although not limited to) maintenance of power lines, installation of electric lights, and general repair and maintenance of electrical installations.

[7] Having heard from both Simpec and the CEPU concerning the CEPU’s application under s 590, I decided to hear from the CEPU, but limited its input to issues regarding the BOOT. Exercising the broad discretion available, I was of the view that the CEPU would be of assistance as a contradictor in respect to the BOOT issue. I invited the CEPU to file written submissions and any documentary material upon which it wished to rely in support of its contentions.

[8] Both Simpec and the CEPU advised of their preference to have the matter determined on the papers rather than by way of hearing. However, Simpec submitted that if the Commission decided that the Electrical Award was a reference instrument for the purpose of the BOOT, it should be allowed to rely upon the revised undertaking it had filed on 27 September 2019.

[9] The CEPU in its submissions challenged that the Agreement had not been ‘genuinely agreed’ as that term is understood under s 188(1) of the Act, despite standing having not been extended to this point. Simpec submitted that if the CEPU’s contentions regarding ‘genuine agreement’ were to be considered then it in turn relied upon the information and submissions filed on 4 July 2019 and 6 September 2019.

[10] In short, the issues to be determined are as follows:

a) what is the relevant modern award, or what are the relevant modern awards for the purpose of assessing whether the Agreement passes the BOOT;

b) does the Agreement pass the BOOT;

c) if there was a further reference instrument other than the Building and Construction Award, was the explanation of the terms of the Agreement compliant with s 180(5), if Simpec proceeded on the basis there was only one relevant award;

d) did Simpec comply with the other pre-approval steps; and

e) were there no other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees.

Context

The workforce

[11] At the time of filing its submissions on 5 September 2019, 2 Simpec employed 39 ‘white collar’ employees who did not fall under the coverage of the Agreement and three site employees who would. However, when the Agreement was voted upon there were five employees who would be covered.3 Those five employees, according to Simpec, had all worked in the ‘industry’ for more than nine years and were qualified as boilermakers, riggers and electricians, representing a cross section of the construction and asset management industries.4

The pre-approval steps

[12] Simpec submitted that a meeting was held with the five employees (two on the telephone) on 11 April 2019. 5 The employees were provided with a printed copy of a comparison between the Building and Construction Award, and the Agreement.6 A copy of the Building and Construction Award was available at the meeting.7 A copy of the Agreement had been provided to the employees the day before, by email.8

[13] Simpec stated that each of the entitlements under the Agreement were discussed, and employees were advised whether the Agreement departed or differed from the Building and Construction Award, and the effect this would have. 9 The employees were provided with calculations showing the minimum rates of pay under the Building and Construction Award where various allowances, loading, redundancy scheme, forward and return journeys, and paid ‘R&R’ were incorporated. All employees were encouraged to ask questions as each entitlement under the Agreement was discussed.10

[14] On 12 April 2019, Simpec emailed to the employees a link to the Building and Construction Award, a copy of the final Agreement, and details of the vote. 11

The Agreement

[15] Clause 2 of the Agreement is entitled ‘Parties bound and application of agreement’; it states:

2.1 This Agreement covers:

(a) SIMPEC Pty Ltd (ABN: 44 619 238 505) (Employer); and

(b) Employees of the Employer employed in the classifications contained in clause 6 (“Classifications and Wage Rates”) of this Agreement (Employees).

[16] Thereafter cl 6.1 of the Agreement provides ‘[E]mployees (other than apprentices) shall be paid no less than the ordinary rates of pay…’. Clause 6.1 then proceeds to list eight levels within a table with corresponding ordinary hourly rates for each level. Underneath the table sits a notation that ‘[C]lassification definitions can be found at Appendix 1’. Appendix 1 reproduces the eight levels and under each provides position names, classifications, or alternatively duties such as ‘assists employees at higher classification levels, including tradesmen (TA)’. Under the level 6 classification there are six position titles including an Electrical Installer, and under the level 7 classification there are again six position titles including Dual Tradesperson.

[17] Understandably, I have highlighted these two particular positions given the CEPU’s contention that they are not covered by the Building and Construction Award. However, under the level 8 classification there is the position title of ‘Offshore Technician (Oil and Gas).’ I further note that concerning the scope of the Agreement under cl 2.1, the Agreement does not appear to be limited to an industry or industries, or a particular geographical location.

Building and Construction Award

[18] Clause 4.1 of the Building and Construction Award states that it ‘covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications set out within Schedule B – Classifications Definitions to the exclusion of any other modern award.’ This Award defines ‘on-site building, engineering and civil construction industry’ as meaning ‘the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.’ 12

[19] The Classification Definitions at Schedule B 1.3, relevantly include the ‘Engineering streams, which are defined as:

(a) Electrical/electronic stream—including the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all electrical and electronic devices systems, equipment and controls, e.g. electrical wiring, motors, generators, PLCs and other electronic controls, instruments, refrigeration, telecommunications, radio and television, communication and information processing.

[20] There is a carve out provision at cl 4.2, which states ‘without limiting the generality of the exclusion, this award does not cover employers covered by’ eight listed awards, the third of which, at subparagraph (a), is the Electrical Award.

Electrical Award

[21] The Electrical Award at cl 4.1 expresses that it covers ‘employers throughout Australia in the industry of electrical services provided by electrical, electronics and communications contractors and their employees in the classifications within Schedule B – Classification Definitions to the exclusion of any other modern award’ [emphasis added].

[22] While there are carve out provisions at cl 4.2 of the Electrical Award, they are not relevant for present purposes. The term ‘[E]lectrical services’ is defined at cl 4.8 to include ‘the maintenance of electric power distribution lines and all associated work; and/or the installation of electric light and power, all cases of assembly, wiring, repair and maintenance of electrical installations and appliances including, without limiting the generality of the foregoing, the assembling, installing, diagnosing, servicing and rectifying of faults in any of the following...’. The Award then proceeds to list various products, devices, equipment, instrumentation and systems. Schedule B outlines the ‘Classification Definitions’, which define ‘Electrical Workers’ according to ten different grades.

Hydrocarbons Industry (Upstream) Award 2010

[23] The Hydrocarbons Industry (Upstream) Award 2010 (the Hydrocarbons Award) covers employers throughout Australia who are engaged in the hydrocarbons industry in respect of work by their employees engaged in the classifications listed in this Award, to the exclusion of any other modern award. At Schedule B, the Hydrocarbons Award lists classification groups which include ‘Hydrocarbons Industry Services Employees’, ‘Hydrocarbons Industry Onshore Drilling Employees’, ‘Hydrocarbons Industry Offshore Drilling Employees’, ‘Hydrocarbons Industry Operations and Processing Employees’, and ‘Hydrocarbons Industry Modification and Maintenance Trades Employees’. The Hydrocarbons Award defines the ‘hydrocarbons industry’ at cl 4.2 as meaning:

(a) the exploration and/or drilling for hydrocarbons by use of on and offshore drilling rigs or platform drilling rigs or any other means;

(b) the preparatory work and development of an oil or gas field, including well servicing, and decommissioning of hydrocarbon facilities;

(c) the extraction, separation, production and processing, piping, storage, distribution and transport (including handling or loading facilities) of hydrocarbons;

(d) provision of services incidental to the activities set out in clause 4.2(a) to (c) above, including:

(i) provision of clerical and administrative, warehousing, stores and materials, medical, laboratory, utility or general services, or platform services at a location where the activities in clause 4.2(a) to (c) above are being performed;

(ii) provision of catering, cleaning and accommodation services where owned or operated by an employer engaged in the activities set out in clause 4.2(a) to (c) above at a location where the activities in clause 4.2(a) to (c) above are being performed;

(iii) provision of supply base services owned or operated by an employer engaged in the activities set out in clause 4.2(a) to (c) above;

(e) the commissioning, servicing, maintaining (including mechanical, electrical, fabricating or engineering and preparatory work) modification, upgrading or repairing of facilities, plant and/or equipment used in the activities set out above by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed; or

(f) the provision of temporary labour services used in the activities set out in clause 4.2(a) to (e) above, by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.

What is the reference instrument?

Simpec’s submissions

[24] Simpec’s view was the Building and Construction Award was the relevant reference instrument because its operations fell within the substantive provisions of that Award. It provided a lengthy list of construction management work which it had been awarded over the period of 2017-2018, and referred to its standard subcontracting documents that referenced applicable construction related legislation and subordinate legislation. Such references included – construction industry security of payments legislation, the National Code of Practice for the Construction Industry, and the Western Australian Building and Construction Industry Code of Conduct 2016.

[25] Referring to the decision in Maritime Union of Australia v Sea Swift Pty Ltd 13 (Sea Swift), Simpec quoted the Full Bench at paragraphs [19] and [22] respectively:

The determination of the relevant award for the purposes of the BOOT requires a consideration of the coverage clauses of the respective instruments applied to the relevant evidence. As the awards are industry and not occupational awards the crucial evidence will be that concerning the operations of the employer.

…

The coverage clauses are supplemented by definitions. Each coverage clause contains exclusions.

[26] Thereafter, Simpec drew attention to the approach taken when two awards are in contest. 14 Namely that the approach necessitated ‘a consideration of the substantive provisions and the exclusions in both awards’, which essentially required the consideration of four inter-related questions based on the evidence in the matter.15 The four inter-related questions were said to be whether the:

a) operations fall within the substantive provision of the Seagoing Award; 16

b) exclusion to the Seagoing Award applies… [T]he answer to this question depends on the combined answer to the third and fourth questions; 17

c) substantive definition of Ports and Harbours Award applies; 18 and

d) operations are wholly or substantially within a port, harbour or other body of water within the Australian coastline. 19

[27] Adopting the approach of the Full Bench in Sea Swift, Simpec again reiterated that its operations fell within the substantive provisions of the Building and Construction Award, which did not cover employers covered by the Electrical Award. Referring to cl 4.8 of the Building and Construction Award and cl 4.9 of the Electrical Award, both of which speak of coverage by more than one award, Simpec quoted:

Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[28] The CEPU had contended that the Electrical Award was the relevant reference instrument. It referred to Simpec having been awarded a contract for the installation of electrical communications and dry fire systems at a site referred to as Eliwana (the Eliwana Contract). Simpec submitted that the work under the Eliwana Contract met the definition of ‘Engineering streams’ in the Building and Construction Award and that the CEPU’s submissions on this point were premised on no more than conjecture based on assumptions it had made.

[29] However, Simpec submitted that where an employer holds a licence as an electrical contractor, it is possible that its current and/or prospective employees may be covered by the Electrical Award if: (a) the employer is operating in the industry of ‘electrical services’; and (b) the employee falls within the classification definitions contained at Schedule B – Classification Definitions of the Electrical Award. Simpec acknowledged that it held a licence as an electrical contractor.

The CEPU’s submissions

[30] The gravamen of the CEPU’s argument was threefold. The Agreement included classifications not covered by the Building and Construction Award, the scope was not narrowed to a particular State or a specific industry in which work was to be performed, and there was no reference within the Agreement to a modern award. In short, the CEPU was of the view that the Agreement had a broad coverage and some classifications within the Agreement appeared to be derived from the Electrical Award and possibly the Hydrocarbons Award. Drawing upon the services Simpec provided, as detailed on the company website and in Simpec’s submissions, the CEPU submitted that Simpec operated in the construction and asset management industries.

[31] Referring to the evidence adduced by Simpec, the CEPU contended among other submissions, that Simpec had not provided evidence regarding the nature of its business or work performed by the relevant employees, or the industries in which it engaged its current and future workforce, or further details about the ‘services’ provided, all of which would have assisted Simpec’s claim of only relying on the Building and Construction Award.

[32] According to the CEPU, as the Agreement’s scope was not explicit to the construction industry, if Simpec intended to perform work under the Agreement that fell within ‘asset management services’ or ‘electrical services’, then for the purposes of the BOOT, the Electrical Award should be contemplated as a reference instrument to cover such electrical workers.

Consideration

[33] The Full Bench in the decision of Construction, Forestry, Maritime and Energy Union v Specialist People Pty Ltd 20(Specialist People) stated that the BOOT ‘must be assessed in light of the work that may be performed under an agreement, measured against the relevant awards. If an agreement allows for work to be performed in a manner that would bring it within the coverage of a particular award, this must be taken into account.’

[34] In its submissions, Simpec gave detail on the construction management work awarded and completed during its operation as a business, to support its contention that its operations fell within the substantive provisions of the Building and Construction Award. The argument that Simpec appeared to advance was that the task of the Commission in this case was to determine whether Simpec’s operations were ‘wholly or substantially’ covered by the Building and Construction Award. In support of this contention, Simpec had referred to the decision of the Full Bench in Sea Swift, as authority for the approach to adopt when more than one award could cover or apply (that is where there were two awards in contest).

[35] The Full Bench in Sea Swift quite correctly pointed out that the determination of the relevant award for the purposes of the BOOT required consideration of the coverage clauses of the respective instruments applied to the relevant evidence. 21

[36] In Sea Swift, one of the grounds of appeal concerned the decision at first instance that the Ports, Harbours and Enclosed Water Vessels Award 2010 (the Ports Award) was the reference instrument rather than the Seagoing Industry Award 2010 (the Seagoing Award). The Full Bench stated that in order to fall within the scope of the Ports Award, the company must be held to be involved in the operation of vessels wholly or substantially within a port, harbour or other body of water within the Australian coastline. Relevantly, the coverage clause of the Ports Award defined ‘ports, harbours and enclosed water vessels industry’ to mean the ‘operation of vessels of any type wholly or substantially within a port…’ and so on ‘and not wholly or substantially covered, relevantly, by the Seagoing Award.’ 22 It therefore followed that the first question that the Full Bench asked itself was whether the operations of the company fell within the substantive provision of the Seagoing Award.

[37] In Sea Swift, the issue in contention was the identification of the relevant modern award – a question of law. 23 However, Sea Swift is not authority for the proposition that an enterprise agreement may fall within the scope of only one reference instrument. There will be occasions where it is not fanciful that the work under an enterprise agreement may fall within the scope of other awards - particularly if the terms of an enterprise agreement permit this to occur, and where there is no apparent contest between awards as there was in Sea Swift.24

[38] The CEPU levelled comments toward Simpec regarding the paucity of evidence presented to support Simpec’s contention that the Building and Construction Award was the reference instrument. Despite the opportunity to put forward evidence to support its contention, Simpec was content to rely upon the materials filed. While further detailed evidence regarding the extent of Simpec’s operations would undoubtedly have proved helpful by way of context, its absence does not detract from what is ultimately evident from the terms of the Agreement – particularly the coverage clause and the classifications.

[39] The coverage clause (cl 2.1) simply announces that both Simpec and the employees employed in the classifications in cl 6 of the Agreement are covered. While cl 6 only refers to ‘levels’ - as far as the classifications are concerned, the clause illuminates that classification definitions are able to be found at ‘Appendix 1’. As has been identified by Simpec in its submissions of 5 September 2019, there are at least two positions within Appendix 1 that Simpec considered had no corresponding award classification under the Building and Construction Award – namely the classifications or positions of ‘Electrical Installer’ and ‘Dual Tradesperson’. From what has been stated by both Simpec and the CEPU, I am unable to conclude unequivocally that the work performed by the relevant employees is constrained within the Agreement to the ‘industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site’, as that phrase is understood in the Building and Construction Award. Further, no such constraint appears to operate in the Agreement with regard to Simpec’s service provision.

[40] Based upon the information before me, Simpec, in addition to working in the construction industry, has extended its service provision to asset management. While the Building and Construction Award covers civil construction work which necessary encompasses maintenance of power transmission, light, television, radio, communication, radar, navigation, observation towers, structures and power houses, it remains the case that the classifications of ‘Electrical Installer’ and ‘Dual Tradesperson’ are not to be found in the Building and Construction Award. The case can similarly be made out for the classification of Offshore Technician (Oil and Gas), which again does not appear within Schedule B of the Building and Construction Award.

Conclusion

[41] I have concluded that each of the Building and Construction and the Electrical Awards are the relevant modern awards for the purpose of assessing whether the Agreement has passed the BOOT. Furthermore, I consider the Hydrocarbons Award is, in addition, a reference instrument - the possibility of which was elucidated by the CEPU in its submissions of 3 October 2019, but not addressed at length, if at all, by Simpec in its submissions of 9 October 2019.

Does the Agreement pass the BOOT?

[42] With respect to passing the BOOT, having reviewed all material before me, I am satisfied that each employee and each prospective employee covered by the Building and Construction Award and the Electrical Award would be better off overall if the Agreement with undertakings provided by Simpec on 27 September 2019 applied, rather than the two aforementioned awards. The Full Bench in CFMEU v Kaefer Integrated Services Pty Ltd, 25 stated that the legislative concern in s 190(3)(b) appears to be to avoid imposing on employees arrangements that they have not approved. It continued that employees were unlikely to object to higher monetary amounts or other modifications that fundamentally protected their interests.26

[43] As far as passing the BOOT with respect to the Hydrocarbons Award, I am unpersuaded that the Agreement passes the test. It follows that the Agreement is, in the terms in which it was made, incapable of satisfying the approval requirement in s 186(2)(d). However, the appropriate course now is to permit Simpec to address these further BOOT concerns with a view to resolving them by the provision of appropriate undertakings and, where relevant, submissions. Modelling of the BOOT issues, in this respect, will accordingly be provided to Simpec.

Has Simpec complied with the pre-approval steps?

[44] Simpec submitted that it had complied with the pre-approval requirements, stating that the employees had been given a copy of the Agreement and any incorporated documents, had been notified of the vote and the vote details, and had not been requested to approve the Agreement until 21 days after the last notice of employee representational rights had been given. I am satisfied this is the case. However, the pressing issue is whether Simpec complied with its obligations under s 180(5) of the Act.

Did Simpec take all reasonable steps to explain the terms of the Agreement and their effect?

[45] Section 188(1) of the Act provides that an enterprise agreement has been genuinely agreed to by the employees covered by the enterprise agreement if the Commission is satisfied that the employer has complied with requirements set out in that section, including those in s 180(5) of the Act.

[46] Further, s 180(1) requires that before an employer requests that its employees approve an enterprise agreement by voting for it, the employer must comply with requirements including the requirement at s 180(5) that:

The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[47] The issue at the heart of the requirement in s 180(5) of the Act is to ensure genuine and informed consent to the terms of the proposed enterprise agreement. 27

Simpec’s submissions

[48] Simpec submitted that all reasonable steps were taken by it to explain the terms of the Agreement and the effect of those terms, in an appropriate manner, taking into account the particular circumstances of the employees.

Consideration

[49] Forming a view as to whether s 180(5) has been complied with involves an evaluative judgment. 28 Whatever steps may be necessary will depend upon the facts and circumstances of each case.29 If the Building and Construction Award was the only reference instrument then, based upon the totality of the evidence before me, I would be satisfied that s 180(5) had been complied with. However, that is not the case. I have concluded that there are two further reference instruments – neither of which were referred to when Simpec provided its explanations of the Agreement.

[50] In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (One Key), 30 Flick J found that ‘reasonable steps’ could include the identification of the particular award which covered the relevant employees with reference to those provisions in the awards that varied from, or did not vary from, the terms of the proposed enterprise agreement. I have previously written, that in effect Flick J was proffering a suggestion on what steps could have been taken to constitute ‘all reasonable steps’ in the circumstances of that particular case.31 Providing an explanation of the ‘effect of the Agreement in relation to the Modern Award’ is ‘not mandatory’ but is ‘to be assessed on a case by case basis’.32

[51] On appeal, the Full Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union Court Decision (One Key Full Court Decision) 33 found that a bare statement by an employer that an explanation had been given was an inadequate foundation upon which to reach a state of satisfaction for the purpose of s 180(5) of the Act. The Full Court said that the relevant considerations to which the Commission was bound to have regarded, was the content of the explanation provided and the terms in which it was conveyed.34 The Full Court went on to say:

The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement 35.

…

To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose 36.

[52] Simpec has not yet been provided with the opportunity to address its compliance with s 180(5), in light of the conclusion that the Electrical Award and Hydrocarbons Award are reference instruments in addition to the Building and Construction Award. On receipt of such materials, consideration will also be had to whether there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to.

Conclusion

[53] It follows that Simpec is to send to my Chambers any undertakings and further submissions addressing the issues identified, with reference to ss 180(5), 186(2)(a), 186(2)(d), 188(1) and 188(2) in support of its application - within seven days of the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE504868  PR713921 >

 1   [2014] FWCFB 7940.

 2   Submissions in reply to CEPU’s objection in respect to matter AG2019/1472 (Submissions of 5 Sept).

 3 Submissions of 5 Sept at [3].

 4 Submissions of 5 Sept at [4].

 5 Submissions of 5 Sept at [11].

 6 Submissions of 5 Sept at [11].

 7 Submissions of 5 Sept at [11].

 8 Submissions of 5 Sept at [15].

 9 Submissions of 5 Sept at [12].

 10 Submissions of 5 Sept at [15].

 11 Submissions of 5 Sept at [16].

 12   Building and Construction Award at cl 4.9.

 13   [2016] FWCFB 651.

 14 Ibid [27].

 15 Ibid [27].

 16 Ibid [29].

 17 Ibid [31].

 18 Ibid [32].

 19 Ibid [32].

 20   [2019] FWCFB 6307 at [36].

 21   [2016] FWCFB 651 at [19].

 22 Ibid [26].

 23   [2019] FWCFB 6307 at [38].

 24 Ibid [36].

 25   [2017] FWCFB 5630 at [40].

 26   [2019] FWCFB 6307 at [56].

 27   Coles Supermarkets Australia Pty Ltd v Shop, Distributive and Allied Employees Association Print T2319 at [20].

 28   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [105].

 29 Ibid [103].

 30 [2017] FCA 1266 at [105].

 31   Georgiou Group Pty Ltd [2019] FWC 211 at [91].

 32   Downer EDI Mining-Blasting Services Pty Ltd [2018] FWCA 2888 at [46] (a subsequent decision of Commissioner Johns after an earlier decision with the same media-neutral citation was quashed by the Full Bench in [2018] FWCFB 3703).

 33   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [112].

 34   Ibid.

 35 Ibid [115].

 36 Ibid [156].