Tim Lowe v Colac Area Health

[2013] FWC 1051

[2013] FWC 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Tim Lowe
v
Colac Area Health
(C2012/4375)

COMMISSIONER GREGORY MELBOURNE, 14 MAY 2013

Alleged dispute concerning Suspension & Termination.

Introduction

[1] This matter involves an application brought by Dr Tim Lowe (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) seeking to have a dispute with the Respondent, Colac Area Health (the Respondent), dealt with by the Tribunal. However, the Respondent has raised a jurisdictional objection to the application being dealt with in this way. This decision deals with that objection. The key issue is whether the Applicant is an employee or an independent contractor.

[2] The Application was lodged with the Tribunal on 29 June 2012. It was dealt with in conference on 16 July 2012 but not able to be resolved. The Respondent participated in the conference on the basis that it reserved its right to pursue the jurisdictional objection in the event a resolution was not achieved. The matter was subsequently listed for hearing. Directions were issued for the Respondent to file and serve submissions and any witness evidence by 7 September, and for the Applicant to respond by 14 September 2012. The Respondent was then to file any submissions in reply by 14 September 2012.

[3] The parties subsequently made a joint request for the Tribunal to deal with the jurisdictional objection on the basis of the written materials provided, without a further hearing. This request was granted and the hearing cancelled. The Australian Medical Association (Victoria) appeared on behalf of the applicant. DLA Piper Australia were granted leave to appear on behalf of the Respondent.

The issue to be decided

[4] The Applicant originally claimed the Respondent had breached its contractual obligations by suspending the Applicant for a reason other than an allowable reason as provided by clause 10.2 of the Applicant’s contract of employment. It also claimed the Respondent had failed to utilise the process of independent review to enable a procedurally fair decision.

[5] The Respondent raised in response the jurisdictional objection to the Tribunal’s ability to deal with the matter under ss.595(1) and 738 of the Act. It submitted the Applicant practised at the hospital as a Visiting Medical Officer on a fee for service basis and was engaged under a contract for the provision of medical services, rather than a contract of employment. The Respondent indicated it:

“.. [Does] not consider that section 738 allows Fair Work Australia to conciliate a dispute between the parties regardless of any terms agreed between the parties. There is also an issue about whether the matter concerning Dr Lowe is even applicable to his circumstances as we note that his services ended by effluxion of time on 30 June 2012.” 1

[6] Section 595 of the Fair Work Act prevents the Tribunal from dealing with a dispute unless it is expressly authorised to do so under or in accordance with another provision of the Act. The present application has been made under section 739, however, the Tribunal only has jurisdiction to deal with an application under that section in circumstances provided for in section 738. That section states:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.” 2

[7] Accordingly, a dispute under s. 739 can only be dealt with by the Tribunal if it relates to an employee(s) covered by an instrument referred to in s.738. The Respondent submits the Applicant was an independent contractor and so the tribunal cannot have jurisdiction to deal with the matter. The issue to be determined is, therefore, whether the Applicant was an employee employed by the Respondent or whether he was an independent contractor engaged to provide medical services.

The Submissions and Evidence

[8] The Respondent provides integrated health services to the Corangamite, Colac Otway and Surf Coast Shires. It is responsible for running a hospital, community health centre, adult day activity centre and neighbourhood house. It submits the Applicant was:

“.... a Visiting Medical Officer (VMO) who provided services as a member of Otway Medical Clinic to the Respondent pursuant to a Contract for Medical Services (the Contract). That contract expired on 30 June 2012.” 3

[9] The heading of the contract states it is a:

“...contract for medical services between Colac Area Health and Dr Tim Lowe (‘The Practitioner’) as a member of Otway Medical Clinic and Otway Medical Clinic.” 4

[10] In the Respondent’s submission this indicates at the outset that the contract is not an employment contract as it is not normal practice for an employee to be described as a member of another organisation. It submits the relationship was one governed by a contract for medical services and the Applicant was engaged in a medical practice. During the time he provided services to the Respondent he also provided services to the Otway Medical Clinic and was free to provide services to other clinics or private patients.

[11] The Respondent submits the following contractual terms also confirm the contract was one between a principal and independent contractor, rather than an employer and employee.

• The Applicant was free to enter into any subcontracting arrangements by employing a locum tenens.



• The Applicant did not receive a salary but received monthly invoices in respect of each patient treated. If the Applicant did not treat any patients he did not receive any payment, regardless of whether he was rostered.



• The Respondent paid GST in respect of these invoices and no income or other tax was deducted from the payments made to him.



• No superannuation payments were made to the Applicant.



• The Applicant was required to be registered for GST and to have an ABN. He was also required to maintain professional indemnity insurance and membership of a recognised defence association.



• The Applicant had a degree of control over the hours in which his services were provided and his general availability.

[12] The Respondent acknowledges the Applicant, as a Visiting Medical Officer, was required to comply with the reasonable directions of the Chief Executive Officer, but this was compatible with the nature of the relationship between the parties. The CEO is required to ensure that appropriate care is provided to patients by all doctors, regardless of whether they are direct employees or engaged as contractors. It submits the Applicant was not otherwise supervised when providing services and was in full control of how patients were treated. The Respondent also rejects the submission that when the contract was varied in December 2010 to include clauses stipulating the Applicant must follow the reasonable directions of the CEO, his employment status changed from contractor to employee. It submits this direction is not inconsistent with an independent contractor relationship and does not demonstrate the level of control necessary for an employment relationship to be found to exist, particularly when viewed in conjunction with other aspects of the relationship.

[13] It also submits the Applicant had control over the hours worked and determined his own availability. In addition, he was not provided with any annual or personal leave entitlements and had never requested to access any such leave, and further:

“Nowhere does the Contract describe it in any respect as an employment contract nor is there any provision of the Contract which provides for the usual benefits of an employee.” 5

[14] It submits, in summary:

“The Applicant was clearly conducting his own business as a consulting practitioner. He was providing invoices to the Respondent and was only paid if he rendered treatment to patients. He was free to provide services to any patient or clinic as he saw fit. The Applicant accepted, like the medical profession at large, that VMOs are not employees; the nature of their role is that they are “visiting” doctors from other medical practices.” 6

[15] Jennifer Labourne is the Director of Finance and Business Services for Colac Area Health, and provided a Statutory Declaration in respect of this matter. As part of her role at the Respondent, she oversees the accounts payable department which:

“...processes the payment of invoices provided to us by visiting medical officers (VMOs) and other independent contractors.” 7

[16] Ms Labourne submits the Applicant provided regular invoices to the Respondent and these included Goods and Services Tax (GST). The Respondent then provided the Applicant with remittance forms detailing the payment of each invoice.

[17] The Respondent refers to the High Court decision in Hollis v Vabu Pty Ltd 8 in support of its submission that when determining whether an individual is an employee or independent contractor it is necessary to examine the “totality of the relationship”9 between the parties. This requires looking not only at the contractual terms, but also the systems and work practices in place. It also referred to the decision of a Full Bench of Fair Work Australia in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (French Accent),10 noting the Full Bench identified the ultimate question to be answered in these matters in the following terms:

“...whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part?” 11

[18] In its submissions in reply the Respondent also referred in detail to the decision of a Full Bench of the AIRC in Australian Salaried Medical Officers Federation v ACT Visiting Medical Officers Association (ASMOF) 12, which overturned a decision at first instance that Visiting Medical Officers case were employees, in particular, because of the level of control exercised by the hospital over, inter alia, the hours of work and the location at which services were provided. The Respondent points to the decision of the Full Bench on appeal which held that this situation did not act to overcome other factors existing in the totality of the circumstances which indicated a principal/contractor relationship.13 The decision of the Full Bench was subsequently confirmed on appeal by a decision of the Full Court of the Federal Court of Australia.

[19] It further noted that the Full Bench held the ultimate question is:

“rooted fundamentally in the difference between a person who serves his employer in his, the employer business and a person who carries on a trade or business of his own.” 14

[20] It submits a key factor in that decision was that VMOs saw private patients while working in the hospital. It submits the Applicant in the present matter conducted a similar business of professional practice. It referred to statistics regarding private and public patients treated by him in support of this submission. The contract between the parties also enabled the Applicant to specifically see private patients whilst providing services at Colac Area Health. It submits the facts then before the Full Bench and the full Federal Court are substantially similar to those in the present matter and support a finding that the Applicant is not an employee.

[21] The Applicant submits he was engaged by the Respondent as a “contracted VMO” 15 for nine years, until asked to enter into a revised “contract for medical services” in December 2010. That revised contract contained the following additional clauses:

• 4.1.5 attend at such meetings as directed by the Chief Executive Officer;



• 4.1.15 complies with the reasonable directions of the Chief Executive Officer and any person authorised by the Chief Executive Officer;

and from that point on the Applicant considered the nature of the relationship had changed from one of principal and independent contractor to one of employment involving the hospital as the employer and him as the employee.

[22] It submits the Applicant’s contract was the only one involving a VMO at the hospital that had these clauses included and the Applicant was required to sign the revised contract or he “would be sacked.” 16 In its submission this change and the degree of control now able to be exercised over the Applicant indicated he was an employee of the hospital. The changes made clear the CEO wanted to control the nature of the work performed by the Applicant. It also highlighted the following factors that support the view the Applicant should be considered to be an employee, rather than an independent contractor.

• The hospital carries insurance for risk involving the Applicant’s inpatients.



• Equipment is provided by the hospital.



• The Applicant had a limited ability to refuse work.



• The remuneration provided up until September 2011 included a salary packaging arrangement and the Applicant presumed he was in receipt of payments as an employee.



• The hours are set for the Applicant’s attendance at the hospital.

Consideration

[23] The Fair Work Act does not provide an explicit definition of an employee. Section 15, Definitions, provides that:

“(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and

(b) does not include a person on a vocational placement.”

[24] Accordingly, the resolution of this issue requires the application of common law principles to determine whether the Applicant was an employee or, instead, engaged by the Respondent as an independent contractor. There are, of course, well established principles developed in regard to this question. The Full Bench decision in Abdalla v Viewdaze Pty Ltd 17 summarised these principles following the decision of the High Court in Hollis v Vabu. They were subsequently refined by a Full Bench in the French Accent decision referred to by the Respondent in these proceedings. In that matter the Full Bench highlighted some of the difficulties in seeking to retrospectively categorise relationships as either one of employer and employee or principal and independent contractor. It stated, in particular, at paragraph 25 of the decision:

“The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey Proposition). That is a matter clearly recognised by the courts and tribunals.” 18

[25] The Full Bench then continued to deal at length with the approach to be applied in distinguishing between an employee and independent contractor. Those conclusions are contained in paragraph 30 in the following terms:

“The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities.” 19

[26] The Full Bench then continued to list a series of 13 indicia identified from relevant authorities to be considered in determining these matters. It is not necessary to detail those in full in this decision, but several have been referred to by the parties in this matter in support of their submissions.

[27] I am also satisfied the Full Bench decision referred to by the Respondent in the matter of ASMOF is of particular relevance to the determination of this matter, given it considered at length the circumstances of VMOs, albeit in the context of that particular matter.

[28] The decision was handed down prior to the decision in French Accent, and refers, in particular, to the decision in Abdalla. It cites the reference in that decision to the ultimate question to be determined:

“whether the worker is the servant of another in that others business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own.” 20

[29] It continues to state this question is to be answered by considering the totality of the relationship. The Full Bench in ASMOF also emphasises the relevance of the contractual provisions between the parties, noting again the decision of the Full Bench in Abdullah:

“if, after considering all other matters, the relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity by the very agreement itself which they make with one another.” 21

[30] The contract entered into between the parties in this matter leaves no doubt about the intended nature of the relationship. It indicates in the introduction it is a “contract for medical services.” It provides for those services to be delivered personally or by a locum tenens and enables private patients to be treated “using hospital facilities and consumables.” It specifically denies any liability to provide superannuation contributions to the “the practitioner,” nor does it contain any reference to leave entitlements or any other benefits and obligations normally associated with an employment relationship. One unusual aspect of the wording of the contract are the terms of Clause 12, Dispute Resolution, which include a reference to a matter in dispute being able to “be referred to FWA for conciliation and, if settlement cannot be reached, for arbitration.” This provision is at odds with a contract for the provision of services, however, considered on its own does not act to change the nature or character of the contract.

[31] In the matter before it the Full Bench made reference to a number of indicia which pointed to a finding that the VMOs under consideration in those proceedings were not employees. It referred in particular to:

• “The work in question was work involving a profession, trade or distinct calling on the part of the person engaged: the doctors are all highly skilled medical professionals.



• The doctors performed work for others and had a genuine and practical entitlement to do so. Each of the doctors conducted a private practice and had a contractual right to treat private patients in the public hospitals where he or she was engaged as a VMO.



• The work could be delegated. Each of the doctors had a right to arrange for a locum tenens to substitute for him or her in theatre sessions. Although this right was subject to the approval of the nominated locum tenens by the hospital, on the proper construction of the contracts such approval could not be unreasonably withheld. In practical terms the hospital could not refuse approval whether locum was reasonably competent and was prepared to abide by the requirements of the hospital.



• PAYG tax was not deducted from the payments to the doctors.



• The doctors were not provided with paid holidays or sick leave.” 22

[32] It continued to indicate:

“On the other hand, the only significant factor pointing in favour of a characterisation of contractual relationships as one of employment was the question of control. We are not satisfied that the hospitals presented the VMO's to the public at large as representatives or emanations of the hospitals in an unequivocal fashion. Their very title suggests otherwise.” 23

[33] And further:

“Even though control remains a "prominent" or "significant" factor, or even "the surest guide", the decisions of the High Court in Brodribb and Hollis v Vabu establish that control can no longer to be regarded as determinative. The "ultimate question" remains as specified above and control remains a factor, albeit an important factor, to be considered in addressing that ultimate question.” 24

[34] Each of the above circumstances were also present in this matter. It is acknowledged that additional provisions were introduced into the contract entered into between the parties requiring the Applicant “attend at such meetings as directed by the Chief Executive Officer,” and a requirement that “the practitioner ... complies with the reasonable directions of the Chief Executive Officer and any person authorised by the Chief Executive Officer.” The Applicant submits that following these changes his view about the nature of the contract changed. He no longer considered it to be a contract for the provision of medical services but rather a contract of employment.

[35] I am not satisfied the addition of these provisions acted to fundamentally change the nature of the relationship between the parties. They do not impose direct control upon the Applicant, but simply require compliance with reasonable directions. What is reasonable in any situation would be considered and determined on the basis of the nature of the relationship, being one of principal and independent contractor. Furthermore, there will often be good reason why a principal will seek to have some degree of control over the nature of the services provided by a contractor, for example, to ensure those services are provided in accordance with relevant specifications, or the requirements of a particular job, or to ensure compliance with specific legal and regulatory requirements. As indicated already control is no longer regarded as the determinative consideration, although it obviously remains an important factor.

[36] The Full Bench in ASMOF made clear how it believes a relationship such as that in the present matter should be considered. I am satisfied, in all the circumstances, that there is nothing in this matter to warrant a departure from the approach adopted by the Full Bench in ASMOF. I am satisfied the relationship between the Applicant and the Respondent in this matter is one of principal and independent contractor. The application is accordingly dismissed.

[37] The Respondent also seeks an order for costs against the Applicant pursuant to section 611(2)(b) on the basis it should have been apparent the application had “no reasonable prospects of success. Section 611 provides as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[38] The Respondent referred to the decision of then Commissioner (now Deputy President) Asbury in Mrs Michelle Mckerrow v Sarina Leagues Club Incorporated 25 in support of its submission. It indicated in its written submission:

“The Respondent submits that viewed objectively, the Applicant’s application is manifestly untenable and misconceived and that it should have been reasonably apparent to the Applicant that his application had no prospects of success.” 26

[39] And further:

“Every aspect of the Contract between the parties underscores the fact that the parties had a business relationship of contractor and principal and that through his own business, and/or Otway Medical Clinic, the Applicant supplied medical services to the Respondent. Schedule 2 of the Contract sets out the detailed fee for service schedule pursuant to which the Applicant provided monthly invoices. ” 27

[40] In the decision referred to above Commissioner Asbury confirmed the understanding about the exercise of this Power when she stated:

“The power to award costs under S.611 of the Act is discretionary, and involves determining whether the situation is one in which there is a power to award costs, and if so, whether an award of costs is appropriate in all the circumstances. The general statement in s.611(1) that a person must bear the person’s own costs in relation to a matter before FWA, reflects the longstanding principle that costs will not be awarded against parties in industrial proceedings, other than in exceptional circumstances.” 28

[41] She also made reference to be Full Bench decision in A. Baker v Salva Resources Pty Ltd in summarising the approach to be taken about whether an application “had no reasonable prospects of success” when she stated:

“The approach to be taken in relation to the concept of “should have been reasonably apparent” and “had no reasonable prospects of success” in s.611(2) (b) of the Act was summarised by a Full Bench in Baker v Salva Resources Pty Ltd in the following terms;

• “should have been reasonably apparent” must to be objectively determined. It imports an objective test, directed to a belief formed on an objective basis rather than a subjective test; and



• a conclusion that an application had “no reasonable prospects of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in material substance to be not reasonably arguable.” 29

[42] The Commissioner in that matter did make a finding that costs should be awarded; in that case against the Respondent employer. However, she did so in circumstances where the employer sought to rely on the small business exemption in response to an unfair dismissal claim. That exemption requires an employer to employ less than 15 employees, however, the employer had indicated it only had eight employees when it knew this was incorrect because it actually employed 17 people. Its case was accordingly based on a factually incorrect premise which meant, indisputably, it had “no reasonable prospects of success.”

[43] Having considered the submissions of the parties in this matter and, in particular, the changes to the Contract made in 2010 I am not satisfied that it should have been apparent on an objective analysis that the application had “no reasonable prospects of success.” The precedents in this area generally confirm a high threshold for costs applications to be granted. In this case I am satisfied there was a case with some substance to answer. The costs application is accordingly dismissed.

COMMISSIONER

 1   Letter from Respondent to Fair Work Commission dated 9 July 2013.

 2   Fair Work Act 2009 s.738.

 3 Outline of Submissions of the Respondent dated 7 September 2012, at [4].

 4   Statutory Declaration of Jennifer Labourne dated 7 September 2012, Attachment JL1, at p. 1.

 5 Outline of Submissions of the Respondent dated 7 September 2012, at [17].

 6 Outline of Submissions of the Respondent dated 7 September 2012, at [33].

 7 Statutory Declaration of Jennifer Labourne dated 7 September 2012, at [2].

 8 (2001) 207 CLR 21.

 9   Hollis v Vabu Pty Ltd (2001) 207 CLR 21, [44] citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 90.

 10   [2011] FWAFB 8307.

 11   Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (French Accent)[2011] FWAFB 8307, [30].

 12   (Unreported, AIRC, Lawler VP, Cartwright SDP, Cargill C, 14 June 2005) PR958666.

 13   Australian Salaried Medical Officers Federation v ACT Visiting Medical Officers Association (ASMOF) (Unreported, AIRC, Lawler VP, Cartwright SDP, Cargill C, 14 June 2005) PR958666, [33]

 14   Australian Salaried Medical Officers Federation v ACT Visiting Medical Officers Association (ASMOF) (Unreported, AIRC, Lawler VP, Cartwright SDP, Cargill C, 14 June 2005) PR958666, [19]; citing Hollis v Vabu Pty Ltd (2001) 207 CLR 21, [40].

 15   Applicant Outline of Submissions dated 14 September 2012, [9].

 16 Witness Statement of Dr Tim Lowe dated 13 September 2012, at [3].

 17   Abdallah v ViewdazePty Ltd t/a Malta Travel (2003) 121 IR 215.

 18   Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (French Accent)[2011] FWAFB 8307, [25].

 19   Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (French Accent)[2011] FWAFB 8307, [30].

 20   Abdallah v ViewdazePty Ltd t/a Malta Travel (2003) 121 IR 215, [34]

 21   Australian Salaried Medical Officers Federation v ACT Visiting Medical Officers Association (ASMOF) (Unreported, AIRC, Lawler VP, Cartwright SDP, Cargill C, 14 June 2005) PR958666, [24] citing Abdallah v ViewdazePty Ltd t/a Malta Travel (2003) 121 IR 215, p.228-229.

 22   Australian Salaried Medical Officers Federation v ACT Visiting Medical Officers Association (ASMOF) (Unreported, AIRC, Lawler VP, Cartwright SDP, Cargill C, 14 June 2005) PR958666, [25].

 23 Ibid [26].

 24 Ibid [29].

 25   [2012] FWA 7574.

 26 Outline of Submissions of the Respondent dated 7 September 2012, at [46].

 27 Ibid [48].

 28   Mrs Michelle McKerrow v Sarina Leagues club Incorporated[2012] FWA 7574, [4].

 29   Mrs Michelle McKerrow v Sarina Leagues club Incorporated[2012] FWA 7574, [8] citing Baker v Salva Resources Pty Ltd [2011] FWAFB 4014, [10].

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