Stefania Screpanti v Desjan Pty Ltd
[2022] FWCFB 92
•7 JUNE 2022
| [2022] FWCFB 92 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stefania Screpanti
v
Desjan Pty Ltd
(C2022/2013)
| VICE PRESIDENT CATANZARITI | SYDNEY, 7 JUNE 2022 |
Appeal against decision [2022] FWC 365 of Commissioner Hampton at Video Hearing on 21 February 2022 in matter number U2022/1114 – permission to appeal refused.
Stefania Screpanti (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act or the FW Act) against a decision[1] (the Decision) of Commissioner Hampton (Commissioner), issued on 9 March 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Desjan Pty Ltd (Desjan or the Respondent), pursuant to s.394 of the Act.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). It was not in dispute that the dismissal took effect on 15 November 2021 and, accordingly, the period of 21 days ended at midnight on 6 December 2021. The application before the Commissioner was made on 25 January 2022 and therefore filed 50 days outside the 21-day period.
Section 394(3) of the FW Act provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The Commissioner was not satisfied that there were exceptional circumstances and declined the Appellant’s request. As a result, the Commissioner dismissed her application. The Appellant seeks to appeal the Decision.
This matter was listed for permission to appeal only with directions set for the filing of material by the Appellant. In response the Appellant filed written submissions and later consented to the appeal being determined on the papers, without the need for oral submissions at a formal hearing As a consequence, the hearing in relation the appeal originally scheduled for 10 May 2022 was vacated. The Respondent was not required to file any material and did not do so except for submissions in support of a grant of permission for legal representation if a hearing was necessary. Accordingly, pursuant to s.607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.
Decision Under Appeal
The Appellant’s employment was terminated by Desjan for reason of her failure to be vaccinated against COVID-19 or to hold a medical exemption, with the Respondent maintaining South Australia’s third version of the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (SA) applied to the Appellant’s employment and it was required to comply with those directions. For convenience, the Directions are referred to in this decision as the ‘SA Workers Vaccination Directions’.
Commissioner Hampton considered at length a dispute between the parties about the application of the SA Workers Vaccination Directions to Ms Screpanti’s employment, with the dispute ongoing at this time. Succinctly stated, the dispute surrounds Ms Screpanti’s contention the Directions have no application to her employment.
In relation to this contention Commissioner Hampton noted that Desjan provides numerous forms of health services, including those performed in homes, police cells, medi-hotels and schools, as well as the provision of vaccination and testing services. He also noted the Respondent provided around 450 in-home clinical care visits per day, with Ms Screpanti employed as a scheduler/operations officer from November 2017 to 15 November 2021.[2]
In October 2021, Desjan circulated the first version of SA Workers Vaccination Directions to staff with a later version circulated in November. Commissioner Hampton noted the later version “extended its coverage to include defined healthcare settings, including private nurse offices.”[3] Following circulation of the first version of the directions, Ms Screpanti and other staff were directed they would not be rostered for work unless they complied with the vaccination requirement by 31 October 2021.[4]
After the Respondent’s direction to her, and a discussion with her employer on the subject, Ms Screpanti commenced a period of leave which was to run from 5 November to 19 November 2021. However, on 15 November 2021 before her leave concluded, Ms Screpanti was informed of her dismissal. This was because, having informed the Respondent she would not be vaccinated they held the view she was “unable to comply with the Emergency Management (Healthcare Setting Workers Vaccination No 3) (COVID-19) Direction 2021 (Direction) and… unable to engage in work or perform your duties under your employment contract with Desjan Pty Ltd.”[5] Ms Screpanti disputes that the SA Workers Vaccination Directions had application to her, holding the view she did not work in “private nurse offices”, a place to which the Directions applied.
Having had her employment terminated on 15 November 2021, Ms Screpanti did not lodge an unfair dismissal application until 25 January 2022, and Commissioner Hampton found her to have put forward four matters to explain the delay in filing. In summary these were: Ms Screpanti’s attempts to resolve her termination dispute with the employer after being dismissed; the proximity of approval of her annual leave application to her dismissal; unexplained delays by Desjan in responding to her post-termination communications; and endeavours by Ms Screpanti to have a formal response from the State Department of Health and Wellbeing for inclusion in her application.
Submissions made by Ms Screpanti in her original case on matters of the merit of her case ranged not only over the above matters, but questions of purported conflict of the SA Workers Vaccination Directions with the Australian Constitution, the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) and the Biodiversity Act 2015 (Cth).
Commissioner Hampton’s decision concluded on the reasons for the late application, being the consideration within s.394(3)(a), that Ms Screpanti had not provided a credible or satisfactory explanation for long periods of the delay in making the unfair dismissal application; that she knew she had been dismissed and knew the grounds relied upon by Desjan for doing so and that, despite making approaches to Desjan to advance a resolution to her dismissal as an alternative to litigation, that possibility had been firmly rejected by the Respondent by 2 December 2021. Despite the Respondent’s rejection of her approaches, and rather than lodging an unfair dismissal application, Ms Screpanti decided to put another proposal for the Respondent’s consideration. This was rejected by Desjan on 16 December 2021, and even at that point, Ms Screpanti did not lodge an unfair dismissal application until 25 January 2022.[6]
Commissioner Hampton also noted that despite Ms Screpanti seeking clarification from the SA Department of Health and Wellbeing about the application of the SA Workers Vaccination Directions to her employment;
“… her evidence was that she already considered that the Direction did not apply and was, in effect, awaiting some confirmation which was sought, and ultimately supplied, well after the 21-day period. Further, the Applicant did not have a formal response prior to lodging the application. This issue is relevant, but the Applicant must take responsibility for the decision to delay making the application despite her strong views about the unfairness of the dismissal more generally that she held at the time of the dismissal itself.”[7]
Commissioner Hampton also did not consider the disputed period of leave to have provided a meaningful part of the explanation of the delay.[8] In finality the Commissioner noted the delay in the matter was lengthy and that his “conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances.”[9]
Commissioner Hampton then turned to the other considerations required of him by s.394(3);
As to whether Ms Screpanti became aware of the termination after it took place he found that with her being aware of her dismissal on 15 November 2021 such tells against a finding of exceptional circumstances. (s.394(3)(b));[10]
Commissioner Hampton also noted Ms Screpanti took actions to dispute her dismissal after having been dismissed and that those actions supported a finding of exceptional circumstances. (s.394(3)(c));[11]
With respect to the matter of prejudice to the employer (including prejudice caused by the delay) Commissioner Hampton considered that the matter marginally weighed against a finding of exceptional circumstances. This was after taking account of submissions made by the Respondent that its resources could better be directed to managing staff and patient demands than defending Ms Screpanti’s unfair dismissal action. (s.394(3)(d)); [12]
In relation to the merits of the application Commissioner Hampton noted “that whilst the Respondent appears to have a strong case, the Applicant has at least an arguable case on the scope of the Direction” if the matter were to be heard in relation to its merits. (s.394(3)(e));[13]
As to matters of fairness as between the person and other persons in a similar position, the Commissioner considered application of consistent principles and approaches weighed mutually. (s.394(3)(f))[14]
Principles of appeal
An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[15] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
The Decision subject to appeal was made under Part 3-2 – Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a “significant error of fact.”[16] Section 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[17] The public interest is not satisfied simply by the identification of error,[18] or a preference for a different result.[19] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[20]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[21] However, an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[22] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal and material provided by the Appellant
The grounds of appeal as set out in the Notice of Appeal are lengthy and cover a number of matters. We have distilled the grounds as best we can to be as follows: (using the same numbering as in the Appellant’s Notice of Appeal);
Grounds 1 and 2 – The Appellant was diagnosed with depression and anxiety in October 2021 which limited her capacity to “understand the time constraints of the submission to the Commission” drawing a distinction between what she had learned about the FW Act and actions which might be commenced elsewhere including the Australian Human Rights Commission.
Grounds 3, 4 and 5 – The Appellant applied for stress leave between 20 October and 5 November 2021 and applied for annual leave between 5 November and 19 November 2021 and was terminated on 15 November 2021. The Appellant submitted that while “this is not unlawful as per the Human Rights Commission Act 1986 it is defined as ‘unfair practices’”. Further, the Appellant submitted was unable to fully understand her circumstances during the first two weeks of stress leave.
Ground 6 – The Appellant continued communication with her employer after the termination believing the termination to be contrary to human rights legislation.
Grounds 7, 8 and 9 – The Appellant asserts the determination is contrary to the AHRC Act, citing numerous cases to support this proposition.
Ground 10 – In acting as it did the Respondent appeared to be acting as an agent of the State Government and “so [the Respondent] made arbitrary decisions that were incorrect and unlawful under natural law and procedural fairness.”
Ground 11 – In relation to the conduct of the hearing before Commissioner Hampton, the Respondent’s Managing Director and Director of Nursing gave untrue evidence to the Commission capable of being rebutted if the Appellant had the opportunity to do so.
Ground 12 – The Commissioner at first instance did not appreciate the significance of the Respondents delayed responses to the Appellant after she was dismissed and before she filed the unfair dismissal application.
Fresh Evidence
On 5 April 2022, Ms Screpanti filed a document which comprised her written submissions and new material obtained by her after the Decision was published. In particular, the Appellant’s submission included correspondence to her from the SA Department for Health and Wellbeing dated 22 March 2022 and statements from two other employees of Desjan dated 5 April 2022.
The Appellant has not formally sought leave to adduce new material as part of her appeal, however we will nonetheless discuss whether or not the Full Bench will admit this new material. The principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank.[23] Although the material is dated after the Decision was published, we are not persuaded that the material could not have been adduced at first instance. It was open to the Appellant to obtain a letter from the SA Department for Health and Wellbeing before her initial proceedings. Similarly, there is no reason why Ms Screpanti could not have obtained the declarations from Desjan employees before the initial hearing. Furthermore, the material is not sufficiently probative to be adduced on appeal. Accordingly, we do not admit any of the new material as evidence in the appeal.
Appellant’s Submissions
On 20 April 2022, the Appellant filed a document entitled “Witness Statement of Stefania Screpanti”. That document recited Ms Screpanti’s employment history; made submissions about the application of the SA Workers Vaccination Directions and their application to her; and submitted there would be public interest in resolving her question about the Directions and give guidance to employers generally about “the correct performance of all due diligence requirements” in relation to directions such as these. Ms Screpanti also drew a parallel to her case and that considered by the Full Bench in CFMMEU v Mount Arthur Coal Pty Ltd,[24] having never had any consultation and only direction about the instruction to “either get vaccinated or be terminated”.
Ms Screpanti also made contentions about the incidence of adverse reactions to vaccination and submitted the Commission’s decision cannot be addressed in isolation from other laws, such as the AHRC Act. In finality, she submitted “that no appropriate due diligence was undertaken, simple facts that could have been corroborated by the Chief Health Medical Officer were not investigated and confirmed, the mischaracterization of the Desjan Pty Ltd site as a 'private nurse offices' was wrong and there was no 'meeting of the minds' in any consultative situation provided by Desjan Pty Ltd” with it being “in the best public interest to make it clear to employers that they are duty bound, in both public service and private enterprise, to ensure the facts of the matter in the letter and spirit of the law is ensured and maintained before making decisions on termination practices”.
Consideration
Grounds 1 and 2
Ms Screpanti’s Notice of Appeal states these things about her health;
“1. On approx. 20/10/2021, I attended my doctor who diagnosed me with depression and anxiety, I was referred to a psychologist, who I attended and he stated that I had severe depression and was in need of treatment.
2. In a state of deep anxiety and depression, including a form of agoraphobia, I was limited in my capacity to understand the time constraints of a submission to the Commission as it now appears that a 21 day limit is provably [sic] limiting as compared to ‘Statute of Limitations’ which apply to many ‘on the books’ crimes both in civil and criminal laws. This is also comparable to the Human Rights Commission 6 month window of opportunity to make a submission.”
These first two grounds for appeal relating to Ms Screpanti’s mental health were not raised by her as reasons upon which she relied in the course of the first instance proceedings. Other than the statements set out in the Notice of Appeal about the state of her health, Ms Screpanti has not provided evidence about the subject matter. The reference to the lodgement period available under other laws is not relevant to determination of an extension of time matter and the Commissioner properly directed himself only to the criteria set out in s.394(3).
No error of law or principle or fact on the part of Commissioner Hampton is disclosed in these grounds.
Grounds 3, 4 and 5
Grounds 3, 4 and 5 pertain to the Appellant’s period of leave proximate to the dismissal date and, so far as is relevant, are stated by her in the following way;
“3. I applied for stress leave starting 20/10/2021 which took me through to 5/11/2021. At this time, I was under extreme work-related stress and extreme pressure from management in being coerced to take a vaccine in order to retain employment.
4. Although my “personal/sick leave” ran out on the 5/11/2021, I then applied for annual leave for the period 5/11/2021 – 19/11/2021 which was approved on 15/11/2021 and I received an email from Neville Pappin approving said leave and I was terminated on the 15/11/2021. While this is not unlawful as per the Human Rights Commission Act 1986 it is defined as “unfair practices”. Exhibit to this statement and marked “SS-1” is a true copy of the approval.
5. In hindsight the first 2 weeks of “stress leave”, I was unable to understand my circumstances fully and I believe this contributed to my late filing.”
The matter of Ms Screpanti’s leave is dealt with in several parts of Commissioner Hampton’s decision.
He noted there was a dispute about the period of leave approved by the Respondent and took the leave applications into account in forming his decision. He noted neither party had brought forward documentary evidence on the subject and observed that the disputes do not appear directly relevant to the considerations under s.394(3), other than to the matter of merit.[25]
With respect to the matter of Ms Screpanti’s explanation for the lateness of her application he noted the disputed period of leave does not appear to provide a meaningful part of the explanation for the delay.[26] He also took into account Ms Screpanti’s evidence that the disputed period of leave added to the unfairness of the dismissal, specifically noting Ms Screpanti’s evidence on the subject that “while it is not unlawful to dismiss someone while they are on leave, it is unfair.”[27]
Consideration of this ground discloses no error of law or principle on the part of the Commissioner. There is no error of fact on the part of Commissioner Hampton on the subject of the disputed period of leave, let alone a significant error of fact.
Ground 6
Ground 6 of the Notice of Appeal refers to the Appellant’s continuing communication with her former employer after dismissal, with the ground being set out in the following way;
“6. I continued communication with my employer, as I truly believed I had been terminated unfairly and both the domestic laws and international agreements were being broken such as The Human Rights Commission Act 1986 Schedule2 Article 7 which did not get a single mention in the Hearing as it was focused on the ‘late submission’ purely and simply, which while not legally against the Fair Work Commission Act, was certainly against the spirit and intent of the legislation in protecting the rights of all Australians against unlawful and negligent acts against natural justice.”
To the extent the Appellant argues the Commission should have regard to considerations other than those articulated in the FW Act, she is wrong. There is no warrant to say that the Commission’s consideration of an extension of time application should be decided according to principles in the AHRC Act. Instead, the Commission’s obligation is to consider and apply the criteria within s.394(3).
The fact the Appellant continued communicating with her former employer after termination and that this was directed to resolution of her dispute with them was properly identified by Commissioner Hampton who accepted the matter as weighing in favour of an extension of time. He balanced this finding with others made by him.
We note that the efforts by Ms Screpanti to persuade her former employer of her views about the AHRC Act were not engaged with to any great extent by the Respondent. There was no evidence available to the Commission at first instance that the Respondent strung her along until the 21-day time limit had passed feeding her with the hope her views would be accepted. To the contrary Ms Screpanti was told by the Respondent on 2 December 2021 she would not be reappointed, with that statement being made to her within the 21-day time limit for lodgement of an unfair dismissal application which expired on 6 December 2021.[28] We also note that a weighting of one of the criteria in s.394(3) in favour of the Appellant does not axiomatically lead to a finding of exceptional circumstances.
Consideration of this ground discloses no error of law or principle on the part of the Commissioner. No significant error of fact is disclosed in relation to this ground.
Grounds 7, 8 and 9
Grounds 7, 8 and 9 go further than Ground 6 in attempting a connection of Ms Screpanti’s case with human rights legislation. The grounds submit that the Commission is obliged to consider and apply various parts of the AHRC Act in its decision-making process. Specifically, in Ground 8, the Appellant reminds the Commission of its obligation of procedural fairness.
However, the Appellant’s submissions fail to detail any specific matters of procedural fairness or natural justice that she was not afforded in the proceedings or Decision at first instance. Consideration of this ground discloses no error of law or principle on the part of the Commissioner.
Ground 10
Ground 10 is set out in these terms;
“10. In the rulings of the above cases, it would appear that Desjan Pty Ltd have stated that they were acting under the auspices of a ruling by a Directive under the State Government directions. This would suggest they were acting as agents for the State Government and so made arbitrary decisions that were incorrect and unlawful under natural law and procedural fairness. No effective due diligence characterized as ‘duty of care’ would appear to have been undertaken and this resulted in my unlawful termination.”
To the extent this ground is intended to convey that Desjan acted not in compliance with a legislative instrument but in cohort with the SA Government or failed to observe such duties of care it carried, such are matters that would be considered in detail only at the point of consideration of the merits of her application. The task before Commissioner Hampton was to determine whether or not an extension of time should be granted for reason of exceptional circumstances. Assessment of the merits of Ms Screpanti’s application were correctly identified by the Commissioner as being “limited to, in effect, a preliminary consideration.”[29] He gave that preliminary consideration and went no further than noting;
“[66] Based upon the limited evidence and submissions about this point, I consider that whilst the Respondent appears to have a strong case, the Applicant has at least an arguable case on the scope of the Direction. I have weighed all aspects of this consideration into the overall assessment of exceptional circumstances required in this matter.”
Consideration of this ground discloses no error of law or principle on the part of the Commissioner or significant error of fact.
Ground 11
The gravamen of ground 11 is an allegation that Ms Pappin, the Respondent’s Managing Director and Director of Nursing “made questionable and untrue statements of fact, under oath”, with the contention being that no healthcare services were provided at the premises at which Ms Screpanti worked.
Ms Screpanti’s submissions, received on 5 April 2022 include signed declarations from two other employees, both of which support her contention about the premises at which she worked. However, for the reasons above we do not admit these declarations as fresh evidence in the appeal. Furthermore, the status of the premises and application of the SA Workers Vaccination Directions to those premises is a matter of merit. We can do not more than echo the Commission’s conclusion, extracted above, that the Appellant has at least an arguable case on the scope of the Direction.
The Commissioner’s findings in this regard were reasonably open to him on the evidence and consideration of this ground discloses no significant error of fact on the part of the Commissioner.
Ground 12
The Appellant’s final ground of appeal deals with claims of deliberate delays by the Respondent in reverting to Ms Screpanti;
“The hearing under the Commissioner for an extension of time was relatively well managed however it was not fully understood that the timing of the responses from Desjan Pty Ltd, were all either by phone or email, and exceedingly fast in their delivery, however, it is shown in a timeline marked Exhibit SS-2 that the exceedingly long durations in responses could be characterized as improbable as to their declared definite termination thus exceeding the allowed 21 days as allowed by the appropriate Act. This may have been inadvertent but appears at odds with the statement from Desjan Pty Ltd that their decision was final without hearing the full facts of the matter including the final declaration by the Deputy CHO medical officer, who stated, that because the Desjan Pty Ltd was a private company and did not conform to their definition of a ‘healthcare setting’ it was indeed an unfair dismissal and entirely prejudicial to the Applicant.”
Although this proposition featured in Ms Screpanti’s written submissions in the matter before Commissioner Hampton it was not the subject of her representative’s cross-examination of Ms Pappin in the hearing which ensued.
Commissioner Hampton considered the matter in his decision and noted Ms Screpanti had been told by the Respondent on 2 December 2021 she would not be reappointed, with that statement being made to her within the 21 day time limit for lodgement of an unfair dismissal application which expired on 6 December 2021. He concluded about these exchanges;
“[49] It is also apparent that Ms Screpanti made the decision to initially approach her former employer to seek to advance a resolution to her dismissal as an alternative to litigation at that point. However, by 2 December 2021, Ms Screpanti’s concerns and position had already been firmly rejected by the Respondent and rather than lodging an unfair dismissal application, the Applicant decided to put a further position to Desjan on 9 December 2021. That correspondence indicated, in effect, that she would file an unfair dismissal claim if her concerns were not met within 5 business days. By 16 December 2021, the Respondent had again confirmed that it would not change its position.
[50] In that light, and noting that the 9 December 2021 correspondence provided a 5 business days deadline, the Applicant must also accept the responsibility for wating for any responses from the Respondent, rather than taking actions to lodge the unfair dismissal application in this Commission.
[51] This application was still not lodged until 25 January 2022.”
These findings were available to the Commissioner on the evidence and were appropriate to make and Ms Screpanti has not demonstrated within them any error of fact, let alone a significant error of fact.
Public Interest
Having considered the material within the Appellant’s Notice of Appeal and her written submissions, we are not satisfied that there is an arguable case of error. The basis on which the Commissioner reached his Decision was an orthodox approach to the determination of whether the Appellant should be granted a further period to make the application, applying the correct legal principles. The Commissioner considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter decided on the papers.
Final written submissions:
Appellant’s written submissions 19 April 2022.
[1] Stephania Screpanti v Desjan Pty Ltd [2022] FWC 365.
[2] [2022] FWC 365, [14] – [17].
[3] Ibid, [20].
[4] Ibid , [19].
[5] Ibid, [26].
[6] Ibid, [47] – [50].
[7] Ibid, [52].
[8] Ibid, [53].
[9] Ibid, [54].
[10] Ibid, [55].
[11] Ibid, [56].
[12] Ibid, [57] – [60].
[13] Ibid, [66].
[14] Ibid, [67].
[15] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).
[16] Fair Work Act 2009 (Cth) s.400(2).
[17] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[18] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[19] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[20] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[21] Wan v AIRC (2001) 116 FCR 481 at [30].
[22] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[23] (1994) 34 NSWLR 155.
[24] [2021] FWCFB 6059.
[25] Ibid, [25].
[26] Ibid.
[27] Transcript, PN 109.
[28] [2022] FWC 365, [30] – [31].
[29] Ibid, [61].
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