The Blue Mountains Food Co-Operative Limited T/A Food Co-Op
[2022] FWC 1965
•25 JULY 2022
| [2022] FWC 1965 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
The Blue Mountains Food Co-Operative Limited T/A Food Co-Op
(AG2021/8114)
| DEPUTY PRESIDENT EASTON | SYDNEY, 25 JULY 2022 |
Application to terminate an enterprise agreement – public interest – allegedly financially unsustainable agreement – consequence for employees – wage freeze and cessation of service-based increments in agreement – evidence of alleged ongoing operating deficit – not appropriate to terminate agreement – application dismissed.
The Blue Mountains Food Co-Operative Limited has applied to terminate the Blue Mountains Food Co-Op Enterprise Agreement 2013 because “the Board has determined that future wage increases under the EBA are unsustainable, and it would not be in the public interest for the 2000+ members of the Co-op to lose their much loved organisation.”
The nominal expiry date for the Blue Mountains Food Co-op Enterprise Agreement 2013 (“the Agreement”) was 30 June 2016. There was some evidence of activities that could be described as bargaining, but the applicant, Blue Mountains Food Co-Operative Limited (“the Co-op”), has shown no discernible interest in bargaining for a new agreement. Instead the Co-op has applied to terminate the Agreement, given undertakings to its employees and prepared draft contracts of employment that would preserve many, but not all, of the conditions of the Agreement for a period of five years.
In short the Co-op says that the continuation of the Agreement is not sustainable. The Co-op made an operating loss in FY2022 and has provided projections that “losses are forecast to continue, and increase each year [which] is an unsustainable position for any organisation.” The Co-op also submits that the Agreement should be terminated because it is unduly complex for a small organisation, resulting in additional costs for managing the payroll.
For the reasons set out below I have decided to refuse the application.
General Principles
Section 226 requires the Commission to terminate an Agreement if the Commission is satisfied of matters going to the public interest in the termination, and secondly matters going to the interests of persons covered by the Agreement.
Sections 225 and 226 of the Fair Work Act 2009 (Cth) (FW Act) are in the following terms:
“225 Application for termination of an enterprise agreement after its nominal expiry date
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.”
“226 When the FWC must terminate an enterprise agreement
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.”
In Wollongong Coal Limited t/as Wollongong Coal [2021] FWCFB 2161 (“Wollongong Coal”) the Full Bench provided a comprehensive summary of the Commission’s task[1]:
“[7] Section 226 must be considered in the context of the Objects of the FW Act and the Part in which that section is found. The Object of the FW Act in s.3 may potentially be achieved by various means including enterprise level collective bargaining with an existing agreement in place, and by other means, such as the termination of an expired agreement and the continuation of collective bargaining that has commenced in good faith, for an enterprise agreement that delivers productivity benefits. While enterprise agreements are an important mechanism in the regulation of terms and conditions of employment under the FW Act, it does not follow that the existence of a previously negotiated agreement should be regarded as providing particular encouragement to collective bargaining.
[8] There is no presumption under the FW Act that an enterprise agreement will continue unaltered in perpetuity after it has passed its nominal expiry date. The legislation guarantees the continuation of the relevant modern award and NES safety net, not the terms and conditions of employment contained in a nominally expired agreement. There is also no legislative presumption that the termination of an enterprise agreement upon reaching its nominal expiry date is appropriate.
[9] Section 226 of the FW Act involves a narrow discretion in the sense that if the Commission is satisfied in relation to the specified matters it must terminate the agreement. However, the evaluative assessments required by s. 226(a) and (b) allow a degree of latitude on the part of the Commission as to the conclusions to be reached. The evaluative process involves the Commission treating the considerations as a matter of significance in the decision-making process.
[10] In relation to the public interest consideration in s. 226(a) the Commission is not required to be satisfied that termination of an agreement is in the public interest but rather, that it is not contrary to the public interest – a lower threshold. There is no predisposition that the termination of an enterprise agreement that has passed its nominal expiry date is contrary to the public interest. Public interest is distinct from the interests of the parties, notwithstanding that the public interest and the interests of the parties may be simultaneously affected. Where the termination of an enterprise agreement will have no effect on anyone other than the parties, it is likely not to be considered contrary to the public interest.
[11] Section 226(b) requires the Commission to consider whether termination of an enterprise agreement is appropriate, having regard to all the circumstances including the views of the employees, each employer and each employee organisation (if any) covered by the agreement and their circumstances, including the likely effect that termination will have on each of them. A statutory requirement that a matter be taken into account means that the matter is a “relevant consideration” the Commission is bound to take into account. This is an evaluative assessment and each of the matters must be treated as a matter of significance in the decision-making process and given due weight. A matter is not taken into account by being noted and erroneously discarded as irrelevant.
[12] In considering the views of the employer, the Commission may place weight on the impact of restrictive provisions in the enterprise agreement sought to be terminated, that termination of the agreement may result in improvements in productivity and efficiency and/or the financial or trading position of the employer. Further, the impact of termination upon employees by way of diminished terms and conditions of employment is an important matter and any proper undertakings about those matters by an employer would be relevant to that assessment and the exercise of the discretion more generally. In addition, the impact of any termination upon the bargaining dynamic, including the impact upon the bargaining positions and options then available to the parties, is a relevant consideration.
[13] Taking into account the views of the parties, involves more than the expression of those views and should involve the reasons for and the validity of their concerns. Relevant considerations relating to the appropriateness of the termination of an enterprise agreement may include:
· The length of time since the nominal expiry date of the enterprise agreement;
· The number of employees affected by the proposed termination;
· The reduction or absence of reduction in terms and conditions of employment; and
· The presence or absence of proper industrial standards for employees.”
The Evidence
The Agreement was approved by the Fair Work Commission on 27 August 2013.[2] The Shop, Distributive and Allied Employees Association (SDA) was a bargaining representative and the Agreement covers the SDA. The SDA did not participate in the proceedings and indicated by email that it has no submissions to make relation to the Co-op’s application.
The Co-op led evidence from Mr Peter Perry, who is currently the Co-op’s Treasurer and is a director, and Ms Narelle Wilson, who is the former Treasurer and a current director.
Mr Perry is a qualified accountant, now retired, and gave evidence that when he was appointed to the board he was presented with figures that caused him concern. Upon further enquiry Mr Perry formed a view that it was unsustainable for the Co-op to continue to apply the Agreement.
Mr Perry gave three main reasons why he considers it necessary to seek the termination of the Agreement: the financial and sustainability of the Co-op, a concern about pay rate in equity amongst staff who otherwise fulfil identical roles, and the complexity and difficulty of administrating the Agreement.
Mr Perry provided evidence, in broad terms only, of the Applicant’s trading performance since 2013. The Co-op has had operating surpluses since at least 2013. However in 2022 the Co-op expects to make an operating loss. The Co-op has compiled financial projections based on its projected operating loss for 2022. These figures assume that sales will grow by 2% per annum and wages grow by 2.5% per annum, and reveal a mathematically unsurprising projection of ongoing losses into the future.
Ms Narelle Wilson is a registered BAS Agent and has provided BAS Agent services to the Co-op since 2010. Ms Wilson agrees with Mr Perry’s concerns and gave evidence about the pay rate inequity said to arise under the Agreement.
The Agreement contains service-based increments for permanent shop assistants and coordinators that top out after seven FTE years of service. Ms Wilson is concerned that the longer a person works for the Co-op, “they will receive a greater and greater percentage of Award Level 1 – without having to take on extra responsibility or upskill.” Ms Wilson is also concerned that because staff only progress to the next step after each 1976 hours worked (i.e. a full year of employment) and “it can take years for new staff to receive pay that is equal to their colleagues.”
Ms Wilson also thinks there is a disparity between casual and permanent staff because casual staff receive different penalty loadings for work at certain times of the week, which she says means there is a “persistent 10%-40% disparity between the wages of permanent and casual staff.”
Ms Wilson also gave the following evidence about the ongoing difficulties of administering the Agreement:
“It is necessary to continually calculate and monitor employees’ ‘Step’ hours for each employee role. This is a complex and difficult task that relates to the ‘Step’ progressions of the EBA. Calculation and monitoring can be made even more complex if employees hold dual roles such as Shop Assistants and Coordinators, as both role’s ‘Step’ hours need to be separately tracked and sometimes combined.
Over the years, errors in calculating ‘Step’ hours have resulted in multiple staff members being underpaid for a period of time and subsequently receiving back pay well after they have reached their next step.”
Ms Wilson addressed what she regards to be an undue burden that would be placed upon volunteer directors if the Co-op was to continue enterprise bargaining:
“… When a volunteer board member (eg Director) commits to the role, it is a stated expectation that they contribute an average of eight (8) hours per month to the role. This includes reading board papers, attendance at monthly board meetings and other meetings and correspondence as required.
…
The hours that the volunteer board has volunteered to apply for the termination of the EBA are not dissimilar to renewing an existing EBA.
I believe that the co-op would find it difficult to fill the required volunteer board member positions if the expectation was made clear to volunteers that, during the three (3) year term, they would likely be required to participate in enterprise bargaining towards a new EBA. Similarly, if a volunteer board is either unwilling to or incapable of participating in enterprise bargaining, the co-op would need to engage external consultants at a considerable expense to its members.”
Ms Rebecca Tyson is currently employed by the Co-op as a Volunteer Coordinator and Shop Assistant and has worked for the Co-op since April 2016. She is currently employed on a permanent part-time basis, working 42 hours a fortnight, and opposes the termination of the Agreement. She describes herself as a member of the Retail and Fast Food Workers Union Incorporated (RAFFWU). Ms Tyson gave evidence that she has spoken to numerous co-workers and that none of them want the Agreement terminated. Ms Tyson provided a statement in these proceedings and annexed screenshots of SMS communication between herself and her co-workers. It seems that Ms Tyson sent a message to a number of co-workers on or about 28 April 2022 in the following terms:
“I’ve got my evidence document to work on for the upcoming hearing. It’s due tomorrow. One of the statements is “I do not want the Agreement terminated. I have spoken to numerous co-workers and none of them want the Agreement terminated. This includes my co-workers …” Can you let me know if you are happy for me to list your name there? Nothing else will be required of you. It would just be a nice piece of evidence to have a nice list of employees in this section.”
Ms Tyson has provided screenshots of positive statements of support from 14 current employees. The words of Ms Tyson’s message were obviously somewhat leading, but I take the responses received from these employees to be the social media equivalent of a petition insofar as the employees identified in the screenshots have affirmed the proposition put to them in the same way that an employee might sign a petition to affirm a particular stated proposition.
This evidence is imperfect but relevant. There is no evidence of any information provided to employees upon which they have formed their views. Ms Tyson gives evidence by reference to RAFFWU having told her things about the conditions she will lose if the Agreement is terminated. For example in her statement she says “I have been told by RAFFWU that a number of conditions in the Agreement are superior to the conditions in the award … I have been told by RAFFWU that the Co-op may make an undertaking guaranteeing certain conditions will apply …”. There is some evidence of communications from the employer about the proposed termination of the Agreement. As such I need to be cautious in placing too much weight on the responses Ms Tyson received to her SMS. I note that in other proceedings the Commission has raised concerns about the forensic value of employee surveys and the like.[3]
With the above caveats I take this material to be evidence that at least 15 current employees do not want the Agreement to be terminated.
Matters of public interest
Section 226(a) does not require a positive finding that termination is in the public interest, it requires only that termination is not contrary to the public interest[4] – which is a lower threshold.
The Co-op submits that the Award and the National Employment Standards provide a proper industrial standard and safety net for employees. The Co-op also undertakes to pay employees 12.5% above the applicable Award level.
As the Full Bench said in Wollongong Coal, where the termination of an enterprise agreement will have no effect on anyone other than the parties, it is likely not to be considered contrary to the public interest.[5]
The Co-op submits that because it is a community-owned and run enterprise with just under 2,500 members, its continued operation is of interest to its members and therefore in the interests of a significant public cohort. In my view, to make good on this submission the Co-op would have to lead significant evidence of, for example, the community welfare benefits of the ongoing operation of the Co-op’s business, the lack of alternative suppliers or businesses, perhaps even evidence of endangerment to the health or welfare of community members if the goods and services provided by the Co-op was lost, and the like.
Nonetheless, in this matter I cannot identify any considerations that would support a conclusion that terminating the Agreement would be contrary to the public interest.[6] As such the precondition in s.226(a) is satisfied.
The Circumstances of the parties and the likely effect of termination
Section 226(b) requires a positive determination that it is appropriate in the circumstances to terminate the Agreement[7] taking into account the views of employees covered by the Agreement, the views of the employer and taking into account the circumstances of the parties including the likely effect the termination will have on them.
The views of employees covered by the Agreement
There is very little evidence of the views of employees. The Co-op said there were a number of meetings with staff, and Ms Tyson confirmed as much, but the Co-op did not lead any evidence of the views of its employees.
Ms Tyson led evidence, imperfect as it was, that at least 15 current employees do not want the Agreement terminated. Ms Tyson also is personally concerned about what she understands to be the impact of the termination of the Agreement upon her household income. She says she relies on her wages to support her family and has set budgets on the assumption that she will receive incremental increases under the Agreement.
Ms Tyson also is concerned that the termination of the Agreement and the resulting loss of conditions of the Co-op’s current and future staff will have a devastating impact on retention of staff at the Co-op which will therefore impact the success of the Co-op as a business have on flowing effects to the local community.
Ms Tyson also says she is concerned that the conduct of the Directors is not consistent with the Co-op’s values, mission and aims and, in general, not meeting the standards of behaviour that she has come to expect from the Co-op.
The views of the employer covered by the Agreement
Quite obviously the Co-op supports the termination of the Agreement. It says that while termination of the Agreement alone will not solve the Co-op’s financial situation, it will assist in its efforts to remain a viable community enterprise. The Co-op also says that administration costs would be saved, and that reverting to the Award would eventually overcome what it says are inequities within the current wage structure and remove the burden on volunteer directors to participate in enterprise bargaining.
The effect of the termination of the Agreement
The Co-op has provided to the Commission a set of draft template employment contracts that it proposes to offer to employees upon the termination of the Agreement.
The Co-op has resolved to confer certain benefits upon employees if the Agreement is terminated. In March 2022 the Co-op’s board passed a resolution as follows:
“It is moved that the following undertaking to be provided by the board of the Blue Mountains Food Co-operative Ltd to permanent employees following termination of the Blue Mountains Food Co-Op Enterprise Agreement 2013:
1. Blue Mountains Food Co-operative Ltd (Co-op) undertakes that, if the Fair Work Commission makes an order pursuant to section 226 of the Fair Work Act 2009 (Cth) (Act) terminating the Blue Mountains Food Co-Op Enterprise Agreement 2013 (Agreement), the Co-op will apply the terms set out below to all current employees and employees it may later employ who are covered by the General Retail Award 2020 (Award).
Application of Undertaking
2. This undertaking is to supplement the minimum rates and benefits provided for in the Award.
Term of Undertaking
3. Unless extended in whole or in part at the complete discretion of the Co-op, these undertakings will cease to apply either:
3.1 five (5) years from the date of the undertaking; or
3.2 on the date which an enterprise agreement is made by the Co-op and Employees.
Pay rate
4. At a minimum, and unless a higher amount is currently being paid to the particular employee, the Co-op undertakes to pay the applicable hourly rate of the Award as may apply from time to time plus 12.5% to each employee.
Benefits and conditions
5. The Co-op undertakings to maintain the following benefits and conditions.
5.1 All staff receive an additional 10% discount above that of members, meaning an entitlement of 20% discount.
5.2 All staff receive 15 minutes of paid time each week for reading memos.
5.3 All staff receive an annual bonus based on a pro rata share of 5% of the previous year’s declared annual profit. To be eligible for this payment, staff must be employed by the Co-op at the time of the payment and not serving out their notice. The annual bonus is paid in December. The total bonus shared amongst staff is calculated by taking 5% of the declared annual profit of the Co-op from the previous financial year. Each staff member’s share of the bonus is calculated by expressing their total wages earned from January to November of that year as a percentage of the total wages paid out by the Co-op during the same period. Ineligible staff members are excluded from these calculations.
5.4 Permanent staff are entitled to 5 days paid domestic violence leave in additional to the statutory entitlements of 5 days unpaid annually.
5.5 Permanent staff are entitled to 2 days per year of paid Natural Disasted leave.
5.6 For each 6 months of service, permanent staff are entitled to 1 week (pro-rata) paid maternity leave up to a maximum of 8 weeks.
5.7 All staff receive 1 additional day of compassionate leave, in additional to the statutory entitlements of 2 days.
5.8 In approved circumstances, permanent staff who experience the passing of an immediate family member or are required to travel a significant distance to attend a funeral, an additional 2 days of compassionate leave can be provided.
5.9 If mutually agreed by staff and Co-op, staff may forgo their unpaid meal break when rostered for a 6-hour shift – provided that a paid rest break was taken at least 2 hours prior to finishing work.”
It is difficult to gauge the value of these provisions, and also difficult to discern whether some provisions are merely a continuance of benefits already provided.
In a memo sent to all staff the Co-op has indicated that apart from wages “all current conditions will be maintained, including 15 minutes tea breaks and extended compassionate leave provisions for permanent part-time staff”.
There was evidence about the Co-op not being as comprehensive as it should be about the specific conditions that would be maintained, particular in the terms of the draft contracts. Nonetheless I will assume for present purposes that the Co-op meant what it said and that any of the over-award benefits to employees contained within the Agreement will be preserved, save of course for wages.
It is important to recognise that even if each individual employee accepts the terms of the proposed contracts, the security of those conditions is materially less than the security of conditions contained in an enterprise agreement. That is, contracts can be amended from time to time (albeit with some limitations) whereas the employer is not at liberty to reduce benefits available under an enterprise agreement without either varying or terminating the Agreement itself.
Putting these matters aside, the two key consequences of terminating the Agreement are as follows:
(a)wages for most staff will be frozen for a number of years until the Award rates catch up; and
(b)future wage increases will be stemmed by the removal of the rachet provisions (referrable to the Award) and service increments.
The Co-op’s board has resolved to ensure that employees are paid at least 12.5% more than their applicable Award rate if the Agreement is terminated. However many employees are already paid more than 112.5% of their award rate.
The Co-op prepared comparison figures for 25 employees and estimated the year in which each employee’s “held rate reaches parity with the award”, which euphemistically means the year until which their wages will be frozen. I have tabulated the Co-op’s calculations:
| Year in which “held rate reached parity with the award” | Number of employees |
| 2022 | 6 |
| 2023 | 4 |
| 2024 | 4 |
| 2025 | 4 |
| 2026 | 1 |
| 2027 | 1 |
| 2028 | 2 |
| 2029 | 1 |
| 2030 | 0 |
| 2031 | 3 |
| Total | 25 |
The second significant consequence of the termination of the Agreement is that it will stem future wage increases that would otherwise occur under the Agreement because of the ratcheting process within the classification structure and wage structure of the Agreement.
Clause 3.3 of the Agreement is in the following terms:
“3.3 Rates of Pay
(a) Employees’ pay will be based on the ‘Retail Employee Level 1’ classification in the General Retail Industry Award 2010.
(b) Employees will be paid the following percentage of the Retail Employee Level 1 classification according to their classification and step under this Agreement in accordance with the following table:
| Classification | Step 1 | Step 2 | Step 3 | Step 4 | Step 5 | Step 6 | Step 7 |
| Casual Shop Assistant (first 3 months) | 100% | - | - | - | - | - | - |
| Casual Shop Assistant | 105% | - | - | - | - | - | - |
| Casual Shop Assistant (keyholder) | 107% | 110% | - | - | - | - | - |
| Permanent Shop Assistant | 117% | 120% | 123% | 126% | 129% | 132% | 135% |
| Co-ordinator | 132% | 135% | 138% | 141% | 144% | 147% | 150% |
Mr Perry describes the effect of clause 3.3 in the following way:
“Pay rates under the EBA are calculated by applying an additional percentage above Retail Employee Level 1 of the General Retail Industry Award ranges from 17% to 35%, and for co-ordinators it ranges from 32% to 50% above the Award.
The steps of the EBA are determined solely based on length of service, only differentiating between a shop employee and co-ordinator. This means that all permanent employees reach Step 7 (the highest step) – which, when held against the Award classifications, is management level – after 5.5 years of full-time equivalent employment. This results in ever-increasing payroll costs that impacts significantly upon finances without any change in the role description.
At present, there are six (6) permanent employees of a total twelve (12) permanent employees who are paid at the highest possible step. It is considered reasonable to anticipate that, because of the low turnover of staff, the majority of permanent shop staff will reach the highest possible step at some future stage.”
Moreover, and because the rates in the Agreement are determined as a percentage of an award rate, the rates in the Agreement will increase over time as the underpinning award rates increase. Most relevantly, the rates in the Agreement have increased annually and will probably continue to increase annually well after the end of the nominal term.
Is it appropriate to terminate the Agreement?
I am not satisfied that it is appropriate to terminate the Agreement.
To some degree I understand the concern of the Board that if the Co-op continues to run an operating deficit then in a short number of years its cash reserves will run out. I can appreciate that the members of the Board feel obliged to take steps now to redress what they fear to be the progressive demise of the Co-op.
However, the assumptions applied by the Board are not sufficiently sound. On the figures provided the Co-op has made an operating surplus every year except 2022. The figures provided to the Commission assume that the operating deficit of 2022 will continue.
One must assume, like every business in Australia, that the COVID-19 global pandemic has created unusual, even abnormal, trading conditions. To base predictions for trading results for the next seven years on the results only of FY22 seems intuitively unsound.
Moreover, the assumptions attached to the predictions are somewhat crude. The predictions do not take into account staff turnover (where newer and, frankly, cheaper staff replace staff who have progressed through service increments), assume salaries will grow by a constant amount (2.5%) and that sales will grow by a lesser constant amount (2%). There is no evidentiary basis provided for these estimates of future sales and wages. It is mathematically obvious that the assumptions adopted by the Co-op will result in a projected deficit that grows every year (because wages are assumed by the Co-op to rise at 0.5% more than sales each year over the estimates).
By contrast the consequences of terminating the Agreement upon wages is reasonably clear and is, on any view, significant. The Co-op’s calculation of the number of years over which wages will be frozen for members of staff is, by contrast, quite specific. That said, these calculations carry an assumption that award rates will increase by 2.5% per annum, which now is a little outdated because of recent increases in inflation and minimum wages.
The possibility of an ongoing decline in the Co-op’s trading performance, as estimated using the Co-op’s crude assumptions, measured against the guarantee of wage freezes and removal of incremental benefits, does not provide a proper basis upon which I could be satisfied that it is appropriate to terminate the Agreement.
Similarly the administrative burden borne by the Co-op, measured against the significant consequence for employees, does not provide a proper basis upon which I could be satisfied that it is appropriate to terminate the Agreement.
Finally I do not accept that the time burden placed on volunteer directors to participate in enterprise bargaining is not a proper reason to terminate the Agreement.
For the above reasons the application by the Co-op to terminate the Blue Mountains Food Co-op Enterprise Agreement 2013 is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr L Reeves for the Applicant
Mr J Cullinan of Retail and Fast Food Union Incorporated (RAFFWU) for Ms R Tyson, employee of The Blue Mountains Food Co-Operative Limited T/A Food Co-Op
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
May 3.
[1] Citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126 at [23] – [25], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126 at [23] – [25], Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd T/a AGL Loy Yang[2017] FWCFB 1019 at [31], Peabody Energy Australia PCI Mine Management Pty Ltd (2016) 260 IR255 at [18], CFMEU v AGL Loy Yang Pty Ltd[2017] FWCFB 1019 at [29]; Gangell v Lobethal Abattoirs Pty Ltd T/A Thomas Foods International[2018] FWCFB 4344.
[2] [2013] FWCA 6172, AE403446.
[3] [2017] FWCA 1595 at [68].
[4] Greg Rogowsky; Nigel Willis v Western Australian Meat Marketing Co-operative Limited T/A WAMMCO International[2019] FWCFB 4073.
[5] Wollongong Coal Limited t/as Wollongong Coal [2021] FWCFB 2161 at [10], see also Coverall Security Employee Collective Agreement 2008 [2014] FWCA 2735 at [35].
[6] Mambourin Enterprises Ltd [2020] FWCA 4182 at [34]
[7] Australian Concert and Entertainment Security Pty Ltd T/A ACES Group v David Mapledoram[2020] FWCFB 7032 at [31].
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