Thiess Degremont Joint Venture v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 6490
•21 SEPTEMBER 2011
[2011] FWA 6490 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Thiess Degremont Joint Venture
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(C2011/4601)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 21 SEPTEMBER 2011 |
Alleged dispute concerning meal allowances as per clause 2.2(m), 7.5(a)(i) and 7.14(a)(i).
[1] This decision arises from an application by Thiess Degremont Joint Venture (TD) under s.739 of the Fair Work Act 2009 (the Act) between it and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) in relation to the Thiess Degremont (“TD”) and AMWU, AWU, CEPU and CFMEU Victorian Desalination Project Greenfields Agreement 2009 1 (the Agreement) in respect of work undertaken by AMWU members on the desalination plant project of TD at Wonthaggi.
[2] The dispute was dealt with in conference on 8 June 2011, without resolution, and was programmed for arbitration in accordance with clause 15.1(b)(vi) of clause 15 - Dispute Settling Procedure - within the Agreement.
[3] The dispute concerns the eligibility of AMWU members for a meal allowance prescribed by clause 2.2(m) of Division A of Part 3 of the Agreement.
[4] Clause 2.2(m) - Meals Allowance - is found in clause 2 of Division A of Part 3 of the Agreement - Additional Allowances - and provides that:
“(i) An employee required to work at least two hours overtime on Monday to Friday shall be paid by TD an amount of $11.77 to meet the cost of a meal.
(ii) An employee shall be entitled to be paid a further $11.77 for each meal after the completion of each four hours from the commencement of overtime on Monday to Friday.
(iii) The meal allowance set out above shall increase as set out in the table below.
[table omitted]
(iv) This clause shall not apply to an employee who is provided with reasonable board and lodging, or who is receiving a living away from home allowance in lieu thereof as provided for in this clause, or who is provided with a suitable meal.”
[5] It is agreed 2 that clause 2.2(m)(i) of Division A of Part 3 of the Agreement provides that an employee required to work at least 2 hours of overtime on Monday to Friday shall be paid a meal allowance.
[6] It is also agreed, 3 consistent with clause 2.2(m)(iv) of Division A of Part 3 of the Agreement, that the meal allowance does not apply to employees who receive the living away from home allowance (LAHA). Accordingly, the issue in dispute only arises in respect of employees not receiving the LAHA.
[7] Similarly, it is agreed 4 that:
• As part of the 56 hour roster at clause 7.5(a)(i) of Division A of Part 2 of the Agreement, the employees work regular rostered overtime between 3.30 pm and 5.10 pm Monday through Friday (regular rostered overtime); and
• The employees accrue, and are paid but do not take, a 20 minute crib break pursuant to clause 7.14(a)(i) of Division A of Part 2 of the Agreement in respect of regular rostered overtime.
[8] In the context of those agreed issues, the issue in dispute is whether employees who perform 1 hour and 40 minutes of overtime, on Monday through Thursday, are eligible for a meal allowance because they are entitled to payment equivalent to a 20 minute crib break under clause 7.14(a)(i) of Division A of Part 2 of the Agreement. 5
[9] Clause 7.14(a)(i), with the prefatory words within clause (a), provides:
“(a) When an employee working a 56 hour weekly roster is required or rostered to work overtime after the cessation of ordinary hours for the day then one of the following shall apply:
(i) Where an employee works an additional one hour and forty minutes but less than two hours overtime and then ceases work, he/she shall accrue (but not take) and be paid an amount equivalent to a crib time of twenty minutes at the rate of time and a half calculated in accordance with clause 7.9(d) of this Division; ...”
[10] For completeness, and because it is later relevant, the remainder of clause 7.14 is in the following terms:
“[(a)] (ii) Where an employee agrees to work an additional two hours or more overtime and then ceases work, he/she shall accrue (but not take) and be paid an amount equivalent to a crib time of twenty minutes at the rate of double time calculated in accordance with clause 7.9(d) of this Division.
(b) Where overtime is worked that is not part of the 56 hour week roster as provided in clause 7.14(a), an employee shall also be allowed to take, without deduction of pay, a crib time of 20 minutes in duration for each additional period of four hours of continuous overtime worked in excess of that 56 hour week roster. In determining the amount of overtime being worked each day shall stand alone.
(c) In the case of any other roster or working arrangement where an entitlement to a crib break arises when an employee is required to work overtime after the usual finishing time for the day or shift for two hours or more, he/she shall be allowed to take, without deduction of pay, a crib time of twenty minutes in duration immediately after such finishing time and thereafter, after each four hours of continuous work, a crib time of thirty minutes duration. In the event of an employee remaining at work after the usual finishing time without taking the crib time of twenty minutes and continuing to work for a period of two hours or more he/she shall be regarded as having worked twenty minutes more than the time worked and be paid accordingly.”
Submissions
General
[11] There was no material dispute between the parties as to the principles applicable to the interpretation of an industrial instrument. Reference was made to:
• Amcor Limited v Construction, Forestry, Mining and Energy Union; 6
• Kucks v CSR Ltd; 7
• Short v F W Hercus Pty Ltd; 8
• Geo A Bond & Co Ltd (in liquidation) v McKenzie. 9
[12] I accept, and apply, the principles drawn from those authorities:
• A statutory industrial agreement is to be construed having regard to its industrial purpose and the commercial and legislative context in which it applies;
• Care should be taken to avoid too literal adherence to the strict technical meaning of words in favour of a meaning consistent with the general intention of the parties, having regard to the instrument as a whole;
• Regard might be had to the arbitral history of relevant award provisions in interpreting an agreement provision;
• A narrow or pedantic approach to interpretation should be avoided in favour of a search for the meaning intended by the framers of a document, as persons with a practical bent of mind;
• Meanings which avoid inconvenience or injustice may reasonably be strained for;
• The circumstances of the origin and use of a clause are relevant to an understanding of what was intended by the drafters;
• The context of an expression may extend beyond the words that are its immediate neighbours;
• The task is one of interpreting a document produced by others and effect should not be given to some interiorly derived notion of what would be fair or just, regardless of the terms of the instrument;
• Ordinary or well understood words are generally to be accorded their ordinary or usual meaning;
[13] In relation to the issue in dispute:
• TD contended that the employees are not entitled to the meal allowance on the basis that it is only payable where overtime actually performed is of a duration of 2 hours or more; and
• The AMWU contended that the employees are entitled to the meal allowance because the employees are paid as though they have worked 2 hours (taking into account the 20 minute crib break).
TD
[14] TD submitted that clause 2.2(m) of Division A of Part 3 of the Agreement must be given a purposive interpretation according to the ordinary meaning of the words used in it and within the context of other provisions of the Agreement that define, and elaborate on, how overtime is worked. It submitted that eligibility for the payment of the meal allowance was conditional upon the working of 2 hours of overtime, which is clear from the words of clause 2.2(m)(i) and the broader context of the Agreement.
[15] TD submitted that regard must be had to the indicative 56 hour roster established in clause 7.5 of Division A of Part 2 of the Agreement, which operates in respect of the relevant employees. It submitted that the 56 hour roster does not involve or require 56 hours of work to be undertaken and, whilst the indicative roster in clause 7.5 describes 4 days of 10 hours each, Monday to Thursday, employees are not required to work 10 hours under the roster. It submitted that under the roster, employees work ordinary hours of 7 hours 40 minutes, with a 20 minutes paid smoko and a 30 minute unpaid lunch break between 7.00 am and 3.30 pm. It submitted that on those days, the employees also work overtime from 3.30 pm to 5.10 pm, a period of 1 hour and 40 minutes, with an additional payment for a break of 20 minutes, not taken, at time and a half. TD submitted that it is too pedantic an approach to say that because an employee works according to an indicative 56 hour roster in accordance with clause 7.5, they have worked or can be taken to have worked 56 hours a week or 10 hours a day through Monday to Thursday.
[16] TD also submitted that the context of the crib time provision supports its interpretation. It submitted that the criteria for eligibility for the crib time payment in clause 7.14(a)(i) is the length of overtime worked. It submitted that the crib time entitlement is properly characterised as a productivity bonus, intended to minimise the disruption to the flow of work caused by a crib break between the end of ordinary time hours and overtime hours. TD submitted that the purpose of clause 7.14(a)(i) was to specify the entitlement to payment and the level of payment in respect of a crib break not taken upon meeting the eligibility criterion of working an additional 1 hour and 40 minutes (but less than 2 hours) overtime and nothing in it equates the payment as being time worked or required to be worked or deemed to be time worked. It submitted that clause 7.14(a)(ii) specifies the entitlement to payment and the level of payment in respect of a crib break not taken upon meeting the eligibility criterion of working an additional 2 hours overtime and references the 20 minutes only for the purpose of quantifying the payment.
[17] TD submitted that if the parties had intended the 20 minute paid crib break in respect of overtime to be counted as time worked, they would have said so. TD also submitted that the absence of any deeming of the 20 minutes as time worked in respect of overtime under the 56 hour roster (clauses 7.14(a)(i) and (ii)) is telling, having regard to the explicit deeming in the context of overtime worked outside of the 56 hour roster in clause 7.14(c). TD further submitted that the AMWU interpretation would deprive clause 7.17(a)(i) of any purpose. It submitted that if the AMWU argument that payment for the 20 minute crib break meant that the 20 minutes constitutes or is deemed to be time worked were accepted bringing the employees to the threshold of 2 hours overtime worked for the purposes of clause 2.2(m)(i), clause 7.14(m)(i) would have no operation, applying only where an employee works an additional 1 hour and 40 minutes but less than 2 hours overtime.
[18] TD submitted that the equivalent crib break provision in clause 26.5 of the underpinning pre-modern award - the National Metal and Engineering On-site Construction Industry Award 2002 (the NECA Award) 10 expressly provides that where an employee remains at work after the usual ceasing time without taking the crib time of 20 minutes and continues at work for a period of 2 hours or more, they will be regarded as having worked twenty minutes more than the time worked and be paid accordingly. It submitted that the absence of a similar express deeming of the crib break as time worked supports its position.
[19] TD also submitted that the interpretation of clause 22(m)(a)(i) is inconsistent with the common law position that an employer’s liability to pay wages or salary is a dependant obligation, the relevant contingency being performance by the employee. 11 It submitted that employees cannot be entitled to a payment in respect of the working of overtime if they have not worked the required overtime.
[20] TD also submitted that clause 4 of Division A of Part 2 of the Agreement incorporates various awards, including the NECA Award, provided that “no provision ... of any of the Awards set out below however applied shall grant or vest any monetary, or other benefit or entitlement, in addition to the provisions set out in this Agreement with respect to wages, hourly rates, penalties, loadings, allowances, minimum entitlements or any other provision providing a monetary or related benefit”. It submitted that the incorporation of the deeming provision from the NECA Award, treating the time paid in respect of the crib break as time worked would provide a monetary benefit and is thus excluded by clause 4.
AMWU
[21] The AMWU submitted that the employees are paid as though they have worked 2 hours overtime and are therefore entitled to the meal allowance in clause 2.2(m)(i).
[22] The AMWU submitted that the entitlement under clause 2.2(m)(i) arises when employees are required to work at least 2 hours overtime. It submitted that the ordinary hours arrangements in clause 7 of Part 2, Division A of the Agreement for the 56 hour roster, require four 10 hour days Monday through Thursday. Ordinary time is limited by clause 7.5(a)(i) to 8 hours, with the remaining 2 hours being overtime hours. It submitted that the meal allowance provision, and its interpretation of it, dovetails with the 56 hour roster arrangement.
[23] It submitted that the introductory words within clause 7.14(a) - crib time - reference the provisions in (i) and (ii) to circumstances of the working of the 56 hour roster and a requirement or roster to work overtime (imperatives) whereas clause 7.14(a)(i) refers to the working of overtime (the indicative). It then went to the meal allowance in clause 2.2(m)(i), noting that the clause uses the imperative “required to work”, submitting that it is merely the requirement that at least 2 hours of overtime be worked and it is not necessary that 2 hours of overtime actually be worked. Thus, the AMWU relied on a distinction in the language of the Agreement as between “works” and “is required to work”.
[24] In relation to the NECA Award, the AMWU submitted that there is more than a passing resemblance to the Agreement in respect of the meal allowance provision for overtime. It submitted that clause 26.6 of the NECA Award, like the Agreement clause, contains the “required to work” terminology, is not conditioned on an absence of notice of overtime and contains a similar exclusion where board and lodging is provided. The AMWU submitted that, unlike other industrial instruments, 12 neither the Agreement nor the NECA Award requires verification of a meal taken or thrown away. It concluded that the meal allowance in the Agreement is an automatically paid reimbursement and it is unnecessary to consider the actual partaking of meals or how the reimbursement operates in practice.
[25] In respect of the extra-Agreement context, the AMWU drew my attention to a decision of the Supreme Court of South Australia, 13 in which White J, supported by Doyle CJ and Vanstone J, dealt with the meaning of the expression “Required to Work Permanently” in the Private Contractors (Public Hospitals) Award (SA) (the Award) and rejected a contention that the phrase “required to work” meant that the entitlement arose only where there was “an element of real or at least perceived compulsion” on the employer’s part and “contemplated an imperative issued by the employer, ie, a direction issued against the employee’s resistance”, finding that despite the difference in wording used, the words in clause E4(c) “employees required to work permanently on afternoon or night shifts” have the same meaning as “employees who do work permanently on afternoon or night shifts”.14
[26] Wright J went on to note that the expression “required to work” or its analogue appears often in other clauses of the Award and do not appear to be used always with a consistent meaning, 15 so that determination of the meaning of the expression by reference to other provisions is of limited utility but noted that there were a number of instances where the expression is used to mean simply “an employee who works”. The AMWU referred to other authorities16 to submit that the expression “required to work” does not have a single and fixed meaning and must be considered in its particular context.17
[27] The AMWU also referred to an Australian Industrial Relations Commission decision of Senior Deputy President Lacy, 18 -which I will refer to later in this decision.
[28] The AMWU also submitted that the term of clause 2.2(m)(i) should be interpreted generously in the context of the Agreement which is generally generous to employees in its terms and conditions, in order to meet a tight labour market and to attract a highly skilled and specialist workforce to a remote area.
Consideration
[29] The issue in dispute between the parties is whether employees who perform 1 hour and 40 minutes of overtime, on Monday through Thursday, are eligible for a meal allowance because they are entitled, under clause 2.2(m)(i) of Division A of Part 3 of the Agreement, to payment equivalent to a 20 minute crib break under clause 7.14(a)(i) of Division A of Part 2 of the Agreement.
[30] In addressing that question, the starting point is the relevant terms of the Agreement.
[31] Clause 2.2(m)(i) of Division A of Part 3 of the Agreement provides that:
“An employee required to work at least two hours overtime on Monday to Friday shall be paid by TD an amount of $11.77 to meet the cost of a meal.”
[32] The issue between the parties goes to the term “required to work” with TD contending that it means “works” in the sense that the entitlement only arises upon the working of at least 2 hours overtime. The AMWU contended that it is merely the requirement that at least 2 hours of overtime be worked and it is not necessary that 2 hours of overtime actually be worked.
[33] Looking at the words of clause 2.2(m)(1) in isolation, the common law principle referred to by TD 19 and common practice within industrial instruments would suggest that an entitlement associated with overtime would require the working of overtime, unless a contrary intention was specifically stated. However, the appearance of the two different expressions “required to work” and “works” in the Agreement, and in clause 17.14 in particular, requires some examination of the context of the term within clause 2.2(m)(i) of Division A of Part 3 of the Agreement.
[34] The most immediately relevant provisions within the Agreement are the 56 hour roster arrangements in clause 7.5 of Division A of Part 2 of the Agreement and the crib break arrangements within clause 7.14(a), which relate to employees working a 56 hour roster and clause 7.14 more broadly.
[35] Clause 7.5 - Rosters - provides:
“(a) For the purpose of this Division the following indicative working rosters shall apply to the Plant:
(i) a 56 hour roster to be worked in accordance with the Industry Calendar based on 4 days of 10 hours each (Monday to Thursday) and two days of 8 hours each (Friday to Saturday).
(ii) The parties have developed a 4 on/4 off roster that is set out in Part 2 Schedule 1A – 4 on/4 off roster.”
[36] On the agreed facts 20 the 10 hour days on Monday to Thursday within the indicative roster are made up of:
• 7 hours and 40 minutes worked, with a paid break of 20 minutes (ordinary time of 8 hours, as limited by clause 7.5(a)(i) of Division A of Part 2 of the Agreement); and
• Overtime worked of 1 hour and 40 minutes, with a further paid break of 20 minutes (overtime).
[37] It may be seen that the 56 hour roster, properly understood does not refer to 56 hours worked and the four 10 hour days, Monday through Thursday, does not refer to 10 hours worked. Rather it refers to a shift pattern of 56 hours, and 10 hours, Monday through Thursday, comprised of time worked and time of paid breaks. In the case of a Monday through Thursday, the roster entails 9 hours and 20 minutes worked and 40 minutes of paid breaks. The overtime period entails work for 1 hour and 40 minutes, and payment in respect of a break of 20 minutes, which is not worked (nor taken). It follows that under the 56 hour roster employees are not required to work at least 2 hours overtime, Monday through Thursday, whether or not they work the overtime required. The AMWU’s proposition that the 56 hour roster entails 10 hours of work per day 21 and a requirement to work 2 hours overtime, Monday through Thursday, does not properly reflect the operation of the 56 hour roster. In the context of the operation of the 56 hour roster, as it operates according to the agreed facts, there is no requirement for the working of at least 2 hours of overtime. Employees working that roster are not entitled, under clause 2.2(m)(i) of Division A of Part 3 of the Agreement, to the payment of a meal allowance.
[38] The only way in which the 2 hour overtime threshold for the payment of the meal allowance could be said to be met is if the 20 minute break arising from clause 7.14(a)(i) of Division A of Part 2 of the Agreement is or is regarded as or deemed to be overtime (required to be worked). Plainly it is not. Clause 7.14(a)(i) makes it clear that the 20 minutes is accrued as a break, not taken but paid for. The provision is addressed entirely to an entitlement to payment and the specification of the payment. There is nothing in the clause to suggest that the 20 minutes is or is regarded or treated as or deemed to be time worked. The fact that shortly after, within the Agreement, clause 7.14(c) specifically and expressly provides that a paid break not taken is regarded as time worked and clause 26.5 of the underpinning pre-modern award - the NECA Award - expressly provides that an untaken break will be regarded as time worked, reinforces the conclusion that the 20 minute paid break under clause 7.14(a)(i) of Division A of Part 2 of the Agreement is not and was not intended to be or to be regarded as time worked.
[39] The issue relied upon by the AMWU as to a distinction between “required to work” and “works” does not require determination. In the context of the operation of the 56 hour roster, the eligibility for the meal allowance under clause 2.2(m)(i) does not arise even if “required to work” does not necessitate the undertaking of the work required, as submitted by the AMWU. Nonetheless, since the AMWU’s case was premised substantially upon that distinction, it warrants some comment.
[40] The AMWU distinguished “required to work” and “works” in clause 7.14 of Division A of Part 2 of the Agreement grammatically, submitting that “required to work” denotes an imperative to work overtime, whilst the working of overtime is expressed in the indicative. It submitted that in that context the term “required to work” in clause 2.2(m) should be read to denote an imperative to work overtime, involving a requirement to work the specified time and not the working of that period of overtime.
[41] The first comment is that it is difficult to envisage a situation whereby an employee could be (lawfully) required to work overtime and does not actually work the overtime. Absent such circumstances, the distinction the AMWU seeks to draw is of no practical effect.
[42] Second, the AMWU’s proposition that an entitlement could be activated by a requirement to work without the work being undertaken is at odds with the usual operation of provisions of industrial instruments. In this context, the AMWU’s submission that the meal allowance entitlement is an automatically paid reimbursement, unconstrained by the usual requirements to evidence the taking of or wastage of a meal, does not give clause 2.2(m) an automatic operation - it is conditioned by the requirement to work the specified level of overtime. As the AMWU submits, it is unnecessary to consider the actual partaking of meals or how the reimbursement operates in practice.
[43] Third, the proposition that the usage of the words “required to work” denotes an entitlement which arises without the actual work being undertaken is not supported by other Agreement provisions. Within the Agreement, the term “required to work” is used differently:
• In the imperative, suggesting compulsion, for example in clauses 7.10 and 7.13 of Part 2 of Division A of the Agreement wherein TD can require an employee to work reasonable overtime. Such clauses either permit or constrain TD from requiring things of employees; 22
• In the indicative, for example in clause 5.2(f) of Part 1 of the Agreement, where the entitlement to overtime or penalty rates for a casual employee “required to work” overtime or weekends could not sensibly be said to arise absent the undertaking of work as overtime or on weekends.
[44] Consistent with the other authorities referred to by the AMWU 23 which suggest the expression “required to work” does not have a single and fixed meaning, the term, as used in clause 2.2(m), should be considered in its particular context, having regard to the purpose of the provision.
[45] Fourth, the usage of the two terms “required to work” and “work” between the prefatory words in clause 7.14(a) and clause 7.14(a)(i), does not support the AMWU’s proposition. Clause 7.14(a) deals with the entitlement to a paid break and the level of payment in respect of overtime worked or agreed to be worked by employees working a 56 hour roster. In my view, the prefatory words generally describe the overtime context and the words within clauses 7.14(a)(i) and (ii) specify the level of overtime worked for the purpose of identifying the period for which payment is made and the level of payment, rather than the distinction drawn by the AMWU.
[46] The AMWU brought my attention to some authorities which considered the expressions “required to work” and “work”. One of them, a decision by Senior Deputy President Lacy 24 was concerned with an unrelated issue - whether an entitlement arose from a certified agreement upon a requirement to work beyond a given number of hours from the commencement of work or a requirement to work the given number of hours and gave no considered attention to any distinction between “work” and “required to work”. The other, a decision of the Supreme Court of South Australia,25 found that the expressions “employees required to work permanently on afternoon or night shifts” and “employees who do work permanently on afternoon or night shifts” within a particular award clause had the same meaning when read in the context of the clause as a whole.26 That finding arose from the particular context of the award in question27 and provides no general guidance as to the meaning of the expressions.
[47] Finally, the AMWU submitted that the terms of clause 2.2(m)(i) should be interpreted generously in the context of an agreement that is generally generous to employees in its terms and conditions. I do not accept this proposition, which would support the interpretation of any agreement clause which was later disputed in favour of the employees. Generosity of terms and conditions specified in an agreement might reflect a general disposition of the employer to generosity in negotiations. Equally, it might reflect a preparedness by the employer to provide some generous terms and conditions on the basis that agreement has been reached for less generous provisions in relation to other agreement terms, including a provision later disputed. Absent evidence as to the negotation of the Agreement and the terms of clause 2.2(m)(i), I am not persuaded to accept the intent of the parties was to provide the more beneficial outcome for employees sought by the AMWU in respect of clause 2.2(m)(i) of Division A of Part 3 of the Agreement.
Conclusion
[48] I find that the employees in question, required to work and working 1 hour and 40 minutes of overtime, on Monday through Thursday, under the 56 hour roster are not entitled to payment of the meal allowance under clause 2.2(m)(i) of Division A of Part 3 of the Agreement.
SENIOR DEPUTY PRESIDENT
Appearances:
S Saeedi for Thiess Degremont Joint Venture.
B Terzic for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
Hearing details:
2011.
Melbourne:
September 14.
1 AE873094 PR992391.
2 Statement of Agreed Facts of 8 September 2011, Exhibit FWA1.
3 Para 4.2 of Form F10 and AMWU written submissions of 13 July 2011, Exhibit AMWU1.
4 Para 4.2 of Form F10 and AMWU written submissions of 13 July 2011, Exhibit AMWU1.
5 Statement of Agreed Facts of 8 September 2011, Exhibit FWA1.
6 (2005) 222 CLR 241.
7 (1996) 66 IR182.
8 (1993) 40 FCR 511.
9 [1929] AR (NSW) 498.
10 AP816828CRV.
11 Csomore and Anor v Public Service Board of New South Wales, (1986) 10 NSWLR 587.
12 The AMWU cited clause 6.4.11 of the pre-modern Metal, Engineering and Associated Industries Award 1998 [AP789529CRV].
13 Tempo Services Ltd v Robinson and Anor, [2005] SASC 161.
14 Ibid, at para 35.
15 Ibid, at para 37.
16 ECH Incorporated v Halliday [2011] FCAFC 51 and Telstra Corporation v Peisley [2006] FCAFC 79.
17 Telstra Corporation v Peisley [2006] FCAFC79, at para 36.
18 Mayne Group Limited t/as Mayne Logistics Armaguard v Transport Workers’ Union of Australia, PR926076.
19 Csomore and Anor v Public Service Board of New South Wales, (1986) 10 NSWLR 587.
20 Statement of Agreed Facts of 8 September 2011, Exhibit FWA1.
21 Written submissions of 13 July 2011, Exhibit AMWU1, at para 14.
22 Clause 7.13 of Division A of Part 2 is an example of a constraint.
23 ECH Incorporated v Halliday [2011] FCAFC 51 and Telstra Corporation v Peisley [2006] FCAFC 79.
24 Mayne Group Limited t/as Mayne Logistics Armaguard v Transport Workers’ Union of Australia, PR926076.
25 Tempo Services Ltd v Robinson and Anor, [2005] SASC 161.
26 Ibid, at para 35.
27 Ibid, at para 36.
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