Toll Transport Pty Ltd T/A Toll v Transport Workers' Union of Australia

[2021] FWC 1729

[2021] FWC 1729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Toll Transport Pty Ltd T/A Toll
v
Transport Workers’ Union of Australia
(C2021/685)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 30 MARCH 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].

[1] On 11 February 2021, Toll Transport Pty Ltd trading as Toll filed an application pursuant to section 739 of the Fair Work Act 2009 (Cth) concerning dispute with the Transport Workers’ Union of Australia (TWU) over the application of the Toll TWU Enterprise Agreement 2017 – 2020. The TWU appears as the respondent to this matter.

[2] A Conference was conducted with the parties on 3 March 2021 with the matter remaining unresolved. At the conclusion of the Conference, it was agreed that the matter would be determined on the papers. Directions were issued to the parties for submission of materials they sought to rely on in the matter along with the following arbitral question which related to the matters which were agreed at the conference to be in dispute:

‘Do clauses 17(b) or 17(f) of the Toll – TWU Enterprise Agreement 2017-2020 prevent the process of voluntary redundancies described by the employer in this matter.’

[3] The circumstances are that on 31 March 2021 there will be no CNG fuel for the 44 trucks, and therefore no work for the CNG trucks, and CNG truck drivers, which can be performed. The only alternative found by the TWU and put to Toll was that Toll undertake major new investment to convert the trucks to diesel, set up a CNG plant, or buy new trucks. Toll considered these options and rejected them as too costly. The position of the TWU members is somewhat invidious, and there may as a matter of practicality in such a situation be little work for the agreement to do. The agreement cannot for example itself create the substantial new investment required if jobs are not to be lost.

[4] During the conference before me which defined the scope of the dispute, and which led me to frame the arbitral questions, the TWU appeared to put the somewhat surprising submission that the agreement requires Toll to invest in a new fleet of up to 44 trucks to replace its CNG trucks, or to set up a CNG producing plant, or convert trucks to diesel. On its face this appeared to be an attempt to use an agreement to directly regulate the business model and investment decisions of Toll. No precedent for such agreement clauses was provided to me, other than OHS clauses, which are employment related matters. However this became in formal written submissions a submission that there was an obligation to inform and consult about such matters, or something similar.

[5] The TWU also appeared to change its position in relation to the scope of the dispute. During the conference it appeared to agree that the dispute was about clause 17(b) and 17(f). However, in its submissions it also dealt with alleged breach of the agreement consultation and redundancy clauses, without seeking leave to do so. It also attached an application relating to those issues should they not be dealt with.

[6] There is force in Toll’s criticism that the TWU is attempting to change the nature of the dispute and has not behaved appropriately. More orderly proceedings would have been desirable, and I was somewhat surprised to read the TWU’s submissions. Leave was not sought to change the dispute. I also accept that TWU members are faced with an invidious position, and the TWU may be casting about for arguments to assist them. It is open to me to deal only with the initial dispute, as initially agreed. However this would then lead to further proceedings, however tenuous. In order to assist the parties as best I can I have therefore somewhat reluctantly dealt with all submissions before me to the extent possible in the time available. An initial conference on information and consultation would have been helpful to the Commission and parties.

Procedural issues

[7] In relation to that last issue, the TWU explains its position as follows:

“4. The TWU considers that Toll’s compliance with clause 14 and 26 are also relevant to the matters in dispute. For the avoidance of doubt, the TWU seeks to commence its own dispute regarding Toll’s compliance with those clauses. The TWU considers that it is efficient for its dispute to be allocated to the same Commissioner as Toll’s dispute, as it relates to the same facts and circumstances.

5. The TWU also submits that the Fair Work Commission ought inform itself by requiring Toll to produce certain documents relevant to the issues in dispute. At the same time as filing this outline, the TWU also files an application for an Order for Production. After production of those documents, the TWU may seek to make further submissions in this matter.”

[8] Toll submits:

“3. It is unclear how the TWU proposes to agitate a separate dispute in relation to the same events and subject matter which has already been conciliated, and then defined by the FWC for the purposes of arbitration.

4. The approach taken by the TWU is akin to a party to litigation attempting to amend their claim immediately before trial, when allowing that step would completely change the matter being determined. While the FWC has declined to make the order for production of documents, the request of the TWU in reliance on the expanded scope of the dispute indicates the extent of that expansion.

5. It is also incorrect to maintain that the question posed by the FWC cannot be determined without consideration of the further matters identified by the TWU at paragraph 8. For the reasons below, it will be apparent that the resolution of the question depends on the meaning and effect of clauses 17(b) and 17(f) without regard to those further matters.

6. Subject to further direction, Toll addresses the matters properly raised in accordance with the FWC’s directions, and otherwise reserves its position.”

[9] I have had regard to all submissions and evidence from the parties in this matter. No objection was raised by either party with respect to the Commission being able to determine the question in accordance with the dispute settlement procedure in clause 15, and I so find.

The dispute

[10] The dispute is characterised by Toll as follows: 1

•  Toll currently operate a small fleet of rigid trucks which are fuelled by compressed natural gas (the Fleet). Compressed Natural Gas necessary for the operation of the Fleet, is supplied by a specialised service station within the locality of the Toll Express Parcels Melbourne Airport site (the Site). This service provider to Toll is no longer willing to provide compressed natural gas to the Site. Toll has investigated the possibility of obtaining compressed natural gas from other sources in Melbourne without success. In response to this, Toll proposed making changes to reduce the Fleet, comprised of 44 prime movers.

•  At the initiative of the Transport Workers Union, Toll also considered (1) the possible installation of a compressed natural gas tank at the Site, (2) the conversion of rigid trucks to be fuelled by diesel; or (3) the conversion of rigid trucks to liquid petroleum gas.

•  Toll consulted with the Transport Workers Union and employees about this proposed change commencing on 12 January 2021. This process involved Toll:

a. Holding discussions with Transport Workers Union officials and delegates at various times from 12 January 2021 to 10 February 2021

b. Holding discussions with its employees at the Site commencing 18 January 2021

c. Providing written correspondence to the Transport Workers Union dated 18 January 2021

d. Providing written correspondence to its employees for the period from 18 January 2021 to 22 January 2021

e. Receiving feedback from employees at the Site including nominations for voluntary redundancies for the period from 18 January 2021 to 5 February 2021.

f. Holding structured Toolbox presentations to provide information about the proposed change, its likely effects upon employees, and steps that might be taken by employees to provide feedback about any mitigations that may be put in place for the period commencing 18 January 2021 to 5 February 2021.

•  Following this process, Toll received nominations from those employees at the Site who wished to be considered by voluntary redundancy. Toll received 40 nominations for voluntary redundancy, creating a scenario where Toll did not, based on nominations anticipate any requirement to select any employees for involuntary redundancy.

•  On 10 February 2021, Toll undertook further consultation with the Transport Workers Union. During this meeting, the advice from the Transport Workers Union was that the process involving voluntary redundancies was in dispute. The Transport Workers Union advised that the status quo was to remain.

•  By maintaining the status quo, Toll is prevented from making any offers of voluntary redundancy to employees at the Site. Toll is additionally being prevented from making a legitimate decision based on its operational requirements and will endure unnecessary delays and associated costs resultantly.

•  Toll now seeks the assistance of the Commission to resolve this issue.

The Agreement

[11] Clause 17(b) and (f) of the Agreement relevantly provide:

“17. Toll commitment to job security

The Parties recognise that job security is an important issue for Transport Workers. For its part, Toll commits:

…

(b) subject to reasonable practical requirements, such as adequately servicing industry peaks, to promote job security through the full utilisation of full-time permanent Transport Workers/Owner-Drivers before the engagement of part-time Transport Workers/Owner-Drivers, or casual Transport Workers/Owner-Drivers or Outside Hire;

…

(f) not to use third party agencies for the purpose of circumventing this Agreement;”

[12] Clause 14 of the Agreement provides the following regarding workplace change:

“14. Consultation on workplace change

(a) If Toll is considering workplace changes that are likely to have a significant effect on Transport Workers, it will consult with the Union and any Transport Workers who will be affected by any proposal

(b) As soon as practicable Toll must discuss with the Union and relevant Transport Workers the introduction of the change, the effect the change is likely to have on the Transport Workers, the number of any redundancies, the persons or class of persons likely to be affected and any reasonable alternatives to the change or redundancy. Toll must discuss measures to avert or mitigate the adverse effect of the change on the Transport Workers.

(c) In addition to the above, where there is a proposed change to Transport Workers' regular rosters or ordinary hours of work Toll must provide information to the Transport Workers about the change and invite the affected Transport Workers to give their views about the impact of the change, including any impact in relation to their family or caring responsibilities.

(d) Toll will give prompt and genuine consideration to matters raised by the affected Transport Workers and the Union about the changes referred to in clauses 14(a), (b) and (c).

(e) As soon as a final decision has been made, Toll must notify the Union and the Transport Workers affected, in writing, and explain the effects of the decision.

(f) In the event that a Dispute arises in respect to any decision, proposal or consideration to 10 Banbury [39] – [40] 11 Toll’s F10 Application dated 11 February 2021, at part 3.1 5 effect any change, the parties agree to follow the disputes procedure in clause 15, and until the Dispute is resolved in accordance with that procedure the status quo before the Dispute arose will be maintained and work will continue without disruption.

(g) A reference to a change that is "likely to have a significant effect on Transport Workers" includes but is not limited to: (i) the termination of the employment of Transport Workers; or (ii) major change to the composition, operation or size of Toll's workforce or to the skills required of Transport Workers; or (iii) the elimination or diminution of a significant number of job opportunities (including opportunities for promotion or tenure); or (iv) the significant alteration of hours of work; or (v) the need to retrain Transport Workers; or (vi) the need to relocate Transport Workers to another workplace; or (vii) the restructuring of jobs; (viii) "New Economy" and technological change including changes in work modes, on demand technology and automation; or (ix) any variation to the Drug and Alcohol Policy and Procedures.”

[13] Clause 26 of the Agreement provides:

“26. Redundancy

(a) A redundancy occurs in a circumstance where Toll decides that it no longer requires the position that a Transport Worker has been doing to be done by anyone and that decision leads to the termination of the Transport Worker's employment with Toll.

(b) Toll will use redundancy as a last resort. This will include Toll taking all reasonable steps at the relevant workplace to reduce the number of Outside Hires and casual Transport Workers before implementing any redundancies.

(c) In a redundancy situation Toll will:

(i) undertake consultation in accordance with clause 14;

(ii) explore, in consultation with the affected Transport Worker(s) and the Union, opportunities for suitable alternative employment for the affected Transport Worker(s);

(iii) provide such re-training or outplacement support to Transport Workers as may be reasonable in the circumstances; and

(iv) provide Transport Workers with reasonable paid time off to seek alternative employment.

(d) The selection of Transport Workers for redundancies, and the criteria to be applied in making that selection, will be at Toll's reasonable discretion. Selection criteria for redundancies may include:

(i) identification of the skill sets which Toll requires be maintained;

(ii) expressions of interests for volunteers for redundancy; and

(iii) "last on, first off'.

(e) Without limiting Toll's discretion under clause 26(d), where Toll is required to make a choice between Transport Workers as to which will be selected for redundancy then, all other things being equal, Toll will select Transport Workers who have expressed an interest in being so selected.

(f) In the event that a redundancy occurs, and subject to any greater requirement that the NES requires, the affected Transport Worker will be entitled to a severance payment calculated at the rate of 3 weeks pay per year of service, pro rata for incomplete years of service, up to a maximum of 52 weeks pay. For the purposes of this clause, "weeks pay" means the Transport Worker's base rate of pay at the time of termination.

(g) A Transport Worker will not be entitled to receive a severance payment if Toll obtains for them suitable alternative employment. Such suitable alternative employment can include employment with an employer other than Toll but only in circumstances where the new employer recognises all previous service of the Transport Worker with Toll and all employee entitlements are transferred with the Transport Worker to the new employer.

(h) The severance payment in clause 26(f) is in addition to:

(i) notice or payment in lieu of notice in accordance with clause 25; and

(ii) payment for any accrued but untaken leave or days in lieu which are payable on termination.

Authorities

[14] The principles relating to the construction of agreements were summarised by a Full Court of the Federal Court in WorkPac Pty Ltd v Skene: 2

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation ‘… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …’: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”

[15] I also refer to and adopt the latest High Court decision in relation to the interpretation of enterprise agreements: Amcor Limited v Construction Forestry Mining and Energy Union. 3

[16] The extent to which a clause in an enterprise agreement might deal with the subject matter of contractors, but which may still be capable of being held as a clause about job security for employees, has been extensively considered. 4 Such clauses must include a job security function attaching to the clause which may otherwise appear to relate solely to the use of contractors. As stated in Transport Workers’ Union of Australia v Australian Air Express and Anor:

“On one side of the line is a clause prohibiting or regulating the employers right to engage or use contractors and, on the other, a clause providing, that when engaged, certain minimum terms and conditions for their employees will be observed.” 5

[17] In Brown v Clermont Coal, 6 the Commission recognised its role with respect to the discretion that may be exercised under s.389(2) of the Act:

“[40] … in general, the Commission is not charged with the task of criticising the legitimate business models of companies in exercising its discretion pursuant to s. 389(2) of the Act. The appropriate consideration is whether in the particular circumstances of this matter, it was reasonable to displace the existing labour hire workers at the Mine to make way for 29 surplus employees that were made redundant. The evidence before the Commission shows that Clermont Coal had a strategy of maintaining some labour hire workers in the business to provide a degree of flexibility to allow the business to respond to changes in its labour requirements and also to perform specialised work. The operations of a mine are of a nature where each task is interdependent and part of a complex programme so that if one unit is unable to complete a task in the sequence, the operational processes will be significantly affected.

[41] I find that in these circumstances, it was not reasonable to require the Respondent to reduce numbers of existing labour hire to free up positions to redeploy the Applicants at Clermont Mine. It would cause major operational difficulties for the Respondent if they were not able to have the flexibility to cover employees on leave in a work environment where symbiotic processes mean that the absence of personnel can bring production to a standstill. Requiring the Respondent to alter its business model in circumstances where there was a legitimate operational strategy in place requiring a certain ratio of labour hire is not appropriate and cannot be characterised as a reasonable requirement to impose upon the Respondent.”

Submissions

Submissions of Toll

[18] The material filed by the TWU on 12 March is outside the scope of the FWC’s directions and the dispute. The TWU suggests it is commencing ‘its own dispute regarding Toll’s compliance’ with this approach being akin to a party to litigation attempting to amend their claim immediately before trial. Allowing that step would completely change the matter being determined.

[19] The TWU is incorrect when asserting that the question posed by the FWC cannot be determined without consideration of the further matters identified by the TWU. The resolution of the question depends on the meaning and effect of clauses 17(b) and 17(f) without regard to those further matters suggested by the TWU.

[20] Clause 17 is titled ‘Toll commitment to job security’. There are several parts to clause 17(b):

(a) The commitment given by Toll is to promote job security;

(b) The means by which that commitment is delivered is through the ‘full utilisation’ of full-time permanent Transport Workers before engaging Outside Hire; and

(c) The commitment is subject to ‘reasonable practical requirements’.

[21] Clause 17(b) must also be read in context, given the presence of clause 17(g) and (h), as well as clause 18(a).

[22] An agreement must only include terms which pertain to the employment relationship (or which are ancillary, incidental, or machinery provisions to support those pertaining matters). 7 The extent to which a clause might deal with the subject matter of contractors, but still be upheld as a clause about job security for employees, has been extensively considered.8 The clause cannot be about contractors; there must be a job security function attaching to a clause which otherwise appears to relate to the use of contractors. With reference to was what put in Transport Workers’ Union of Australia v Australian Air Express and Anor,9 this has allowed parties to include clauses which permit the employer to contract out or outsource, provided they ensure contractor pay rates are no less favourable than under the agreement, so as to remove any economic advantage to the employer from contracting out at cheaper rates.

[23] Similarly, the clause does not enquire into the merits of the decision to contract out or outsource as recognised by the Commission in Brown v Clermont Coal. 10

[24] Clause 17(b) is not a clause of the type described in Australian Air Express as it does not address job security by requiring the employer to match employee pay rates when contracting out. That is the task of clauses 17(g) and (h) where the expression ‘full utilisation’ is directed to the form of engagement used for Transport Workers in preference to the use of Outside Hire. This is consistent with the wedding of part-time Transport Workers, casual Transport Workers, and Outside Hire in clause 17(b) as categories of labour which are to be treated as subordinate. This is consistent with the language in clause 18(a), which takes the commitment one step further; by going beyond ‘full utilisation’ and committing not to reduce ‘overtime hours available’ for full-time permanent Transport Workers.

[25] The engagement of Outside Hire is permitted in any circumstances if it serves a ‘reasonable practical requirement’ of Toll. The rationale for retiring the CNG trucks is based on events external to Toll with the apparent challenge being that other options were not properly considered. A requirement does not fail to be a reasonable practical requirement merely because other options might be available. It is not apparent from the TWU’s material that one of the other options advanced by the TWU is more reasonable or more practical than Toll’s preference.

[26] With respect to clause 17(f) Toll commits ‘not to use third party agencies for the purpose of circumventing’ the agreement, the purpose of Toll is clear; to manage circumstances external to its operation which compromise the fuel supply essential to the vehicles which it operates. There is no suggestion Toll has contrived those circumstances. No provision of the agreement is identified as being circumvented as a result of Toll engaging Outside Hire to deal with these circumstances.

[27] The difficulty with the TWU submissions is that they do not engage with the question to be decided which is captured in paragraph 38 of the TWU submissions, where the determination sought by the TWU is that:

“(a) Toll is prevented from proceeding due to clauses 17(b) and (f), ‘in circumstances where Toll has failed to adequately consult’ or ‘genuinely consider alternatives to redundancy’; and

(b) Toll ‘failed to consult’, with a request for an order that Toll ‘must further consult’.”

[28] The TWU’s reliance on clause 14 in relation to consultation is flawed as it suggests it requires consultation before a decision is made, merely because paragraph (a) refers to Toll ‘considering workplace changes’. Paragraph (e) refers to a ‘final decision’ being made, after consultation; which pre-supposes a preliminary decision can be taken which might then be the subject of consultation.

[29] No attempt is made by the TWU to reconcile the different consultation triggers under clauses 14 and 17(e). Paragraph 34(b)(ii) of the TWU submissions appears to proceed on the flawed premise that clause 17(e) obliges Toll to consult before the matter was ‘already decided’.

[30] The TWU’s reliance on clause 26 is without foundation. Clause 26 describes the framework for effecting redundancies. Nothing in clause 26 is made subject to Toll’s compliance with clauses 17(b) or (f). Clauses 17(b) and (f) relate to different subject matter, being Toll’s decision to procure labour from sources other than Transport Workers. The limits on Toll under clause 17(b) and (f) are independent of the criteria in clause 26. The differences between the obligations is further evidenced by a comparison between clauses 17(e) and clause 26(c)(i). Toll submit that the Commission should not speculate as to the interaction of these provisions, given the limited question to be answered.

[31] The answer to the arbitral question must be ‘no’. If a contrary view is held, the Commission will need to consider an appropriate order. The order proposed by the TWU is not appropriate. The Commission will need to consider the basis on which clauses 17(b) and (f) prevents voluntary redundancies, and what might be necessary to remedy that defect.

[32] The Commission might determine not to make any order, given that:

(a) The TWU has not properly addressed the question, or framed its request for relief accordingly. The remedy proposed by the TWU assumes consultation is the issue;

(b) There is a genuine set of circumstances whereby, on any view, significant changes are necessary to respond to the external circumstances facing Toll;

(c) The FWC has no useful information to assess the alternate arrangements referenced by the TWU at paragraph 13 of the TWU submissions, in terms of timing, cost, and efficacy; and

(d) The take up rate of voluntary redundancies is extremely high.

[33] This may be a matter where, even if the question could be answered “Yes”, the Commission should take a position similar to decisions such as in the Federal Court in CFMEU v BHP Coal Pty Ltd  11 where, even in the face of an arguable breach of an agreement, there was no mandate to interfere with a proposal being implemented where there was no efficacy in doing so, and in circumstances which would represent ‘surreal formality’.

Submissions of TWU

[34] The TWU submits that the response to the arbitral question involves consideration of whether Toll has complied with the redundancy process in clause 26 of the Agreement and whether Toll has met the consultation obligations in clause 14 of the Agreement. If it is deemed that this is beyond the scope of the arbitral question, the TWU relies on their F10 Application dated 12 March 2021.

[35] Clause 14 of the Enterprise Agreement sets out Toll’s obligation to consult regarding workplace change with subclauses 14(a) and (b) requiring Toll to discuss with the Union and relevant Transport Workers the effect of any change before making a final decision. In particular, subclause 14(a) requires Toll to consult if it is “considering” any workplace changes, not after it has decided to implement a change. “Significant effects” in clause 14(a) is not exhaustive in nature. The reduction of the number of employees, either on a “voluntary” or other basis is a significant effect.

[36] Clause 26 references clause 14. Clause 26 addresses redundancy. Specifically, clause 26(c) requires Toll to undertake certain steps in a redundancy situation, which extend the obligations outlined in clause 14. Clause 26 codifies the circumstances in which Toll can make employees redundant, voluntary or otherwise.

[37] Clause 17 imposes further obligations on Toll regarding job security at subclauses (a), (b), (e), and (f).

[38] The Cambridge Dictionary defines “commit” as to promise or give loyalty, time or money to a particular principle, person or plan of action. the TWU submits that Toll has not complied with that promise.

[39] Clause 17(b) and (f) should be read in the context of the other commitments in clause 17 including sub clause 17(a) (regarding full time engagement) and 17(e) (consultation with the Union if a decision is taken to outsource work). When given their ordinary meaning, those sub-clauses provide that Toll commits to:

(a) Full time engagement of Transport Workers;

(b) Full utilisation of full-time permanent Transport Workers before the engagement of Outside Hire;

(c) Consulting with the union if a decision is taken to outsource work; and

(d) Not to use third party agencies to circumvent the Enterprise Agreement.

[40] Toll’s commitments in clause 17 require Toll to take practical steps, including consultation and consideration of alternatives to redundancy and outsourcing or engagement of Outside Hire or third parties.

[41] The TWU submits that Toll has not complied with those commitments in circumstances where:

(a) Toll first advised the TWU at the 12 January 2021 meeting that it would no longer utilise the Isuzu Trucks and would outsource the work to Outside Hire.

(b) Toll has not considered other options available to retain drivers or otherwise prevent redundancy.

(c) Toll also did not adequately consider the alternative options proffered by Mr Banbury at the 12 January 2021, including the CNG Proposal, the Replacement Proposal and the Conversion Proposal.

[42] The above matters are necessarily relevant to Toll’s commitment to job security as set out in clause 17.

[43] Clause 26 codifies the process by which Toll can make employees redundant. The Agreement does not permit Toll to by-pass clause 14 and 26 and engage in a “voluntary redundancy process” without complying with the consultation obligations. Toll has failed to comply with the Agreement with the “voluntary redundancy process” as redundancy is not being used as a last resort and Toll has not consulted.

[44] The TWU does not submit that Toll must explore every possible option or require agreement. 12 However, it must genuinely consider alternatives to redundancy.13 Instead of adequately considering those options, Toll already determined that employees will be made redundant and that outside hire will be engaged to undertake the work.

[45] Toll has not consulted in accordance with clause 14 and 26 regarding the proposed redundancies or engagement of Outside Hire. The “voluntary redundancy” is in contravention of the consultation and other obligations in Agreement. Subsequently, Toll has also failed to comply with its commitments to job security in clause 17(b) and (f).

[46] The Commission should determine that clause 17(b) and (f) prevent the process of voluntary redundancies described by the employer in this matter, in circumstances where Toll has failed to adequately consult with the TWU, genuinely consider alternatives to redundancy and otherwise comply with the Enterprise Agreement. Furthermore, the TWU seeks:

(a) A determination that Toll failed to consult with the TWU and employees during the voluntary redundancy process regarding both the redundancy and the decision to engage Outside Hire/ outsource the work conducted by Isuzu Trucks;

(b) An order that Toll must further consult with the TWU and employees in accordance with the Enterprise Agreement before any redundancies are affected or steps taken to engage Outside Hire/ outsource the work conducted by Isuzu Trucks

Consideration

Clauses 17(b) and (e)

[47] The employer submits that clause 17(b) is ‘subject to reasonable practical requirements’, and that the trucks in question cannot be operated because there is no supply of CNG, and they are CNG operated trucks. This is not questioned by the TWU. However, during the Conference held on 3 March 2021 when the nature of the dispute was agreed and which led to the framing by me of the arbitral question, the TWU appeared to submit that there was an obligation on the employer to invest in new trucks which can use other fuels or take other similar investment decisions. It used the analogy of occupational health and safety (OHS) obligations, which require the employer to take steps and engage in expenditure to meet those requirements. There is some similarity with claims in the Witness Statement of Mr Banbury, although now it appears as a requirement to consider proposals rather than to make new investment:

“Both I and the TWU delegates from the Airport Site raised the following matters for Toll to consider regarding their planned removal of the Isuzu Trucks from the Fleet:

(a) given that Toll is a transport company that regularly replaces parts of their Fleet, we proposed the replacement of the Isuzu Trucks with new Trucks (Replacement Proposal);

(b) we proposed converting the motors in the Isuzu Trucks to diesel motors (Conversion Proposal)

(c) we proposed that Toll build a CNG storage facility and pump at the Airport Site, similar to the Airport Site LPG Pump (CNG Storage Proposal)” 14

[48] I respectfully agree with the TWU submission relating to OHS requirements. However purchasing new trucks or undertaking similar major investment is a different matter. The clause is ‘subject to reasonable practical requirements’. It would not be consistent with this qualification for me to determine that there is an obligation on the employer to undertake investment in new trucks, or take the other steps proposed by the TWU. I respectfully do not agree with the submission of the TWU if that is still put, although it may have abandoned this submission. The employer must promote job security rather than engaging in outside hire, but this is subject to the qualification of being subject to reasonable practical requirements. This does not in my view on the material before me require the employer to invest in new trucks or make similar investments. There is a long line of authority, based on the need for the economy to function efficiently, which is to the effect that the tribunal does not stand in the shoes of the employer in managerial decisions, additional to the authorities that I have already quoted. 15

[49] The obligation in clause 17(b) is as follows:

“(b) subject to reasonable practical requirements, such as adequately servicing industry peaks, to promote job security through the full utilisation of full-time permanent Transport Workers/Owner-Drivers before the engagement of part-time Transport Workers/Owner-Drivers, or casual Transport Workers/Owner-Drivers or Outside Hire”

[50] It is not clear to me that this clause provides that there is an obligation to listen to, examine and respond to proposals for extensive new investment put by the TWU in order to ‘promote job security’. Presumably there might be no or limited harm in so doing in some circumstances, and it may assist Toll to do so, although the role of agreements is, generally speaking, not to regulate investment and business models by an employer, having regard to the authorities I cited earlier and below. Even if it does, on the issue of whether or not Toll did in fact give full consideration to the TWU’s proposals, I deal with those matters more extensively below in relation to assessment of the consultation and redundancy clauses. The TWU squarely put proposals for substantial investment by Toll to convert trucks to diesel and other proposals, and Toll rejected this, as it was entitled to do. There was not a breach of the clause.

[51] In relation to clause ‘(f) not to use third party agencies for the purpose of circumventing this Agreement;’, in this case the purpose of the employer actions arises from the absence of CNG supplies for CNG powered trucks. There are no grounds, and no evidence offered, with respect, for a conclusion that the purpose of the employer actions is circumventing the agreement, including on provisions relating to job security and the like. Nor do the circumstances raise any sort of convincing inference to that effect. The absence of CNG supplies for CNG powered trucks has nothing to do with attempts by the employer to circumvent the agreement. Indeed it appears that the employer attempted to comply with the agreement by finding other sources of fuel, and other measures which are not in dispute, or not in dispute to any significant extent.

Other issues

[52] The TWU also submitted that the answers to the agreed questions required a consideration of other provisions of the agreement:

“8. The TWU submits that the response to that question necessarily involves consideration of 1) whether Toll has complied with the redundancy process in clause 26 of the Enterprise Agreement and 2) whether Toll has met the consultation obligations in clause 14 of the Enterprise Agreement. For the reasons outlined below, those matters are relevant to the interpretation of clause 17(b) and (f) and the answer to the agreed question.”

[53] This appears to be an attempt to widen the agreed issues in dispute, which were settled during the conference. These attempts are, with respect, somewhat surprising, given the agreement at the conference, although I note that the TWU then offers a fresh application if in fact these present proceedings do not offer it a vehicle for its submissions on this issue. I do not excuse the TWU, which appears to depart from orderly Commission procedure. Nevertheless I think it is appropriate and necessary to focus on the issues in the workplace which are of importance to TWU members and Toll not just on legal form and technicalities, and to avoid further unnecessary proceedings which might simply cause delay.

[54] Firstly, I do not accept that consideration of clause 17 requires me to consider clauses 14 and 26. For the reasons given by Toll they are discrete issues.

[55] In the alternative, in relation to consultation and redundancy requirements in clauses 14 and 26 the TWU submits:

“31. The TWU submits that Toll has not complied with those commitments in circumstances where:

(a) Toll first advised the TWU at the 12 January 2021 meeting that it would no longer utilise the Isuzu Trucks and would outsource the work to Outside Hire. This meeting was the first time that the matter had been raised with the TWU or its members. At that meeting, it was apparent that Toll had already made a final decision to decommission the Isuzu Fleet and outsource/engage Outside Hire.

(b) Toll has not considered other options available to retain drivers or otherwise prevent redundancy. There is presently no evidence before the Commission that Toll has adequately considered alternative options to redundancy. In fact, there is evidence to the contrary, that Toll failed to consider any measures it could take to continue the operation of Isuzu Trucks and therefore prevent redundancy, voluntary or otherwise. The Commission may be further informed of this matter when it considers the documents produced in response to the TWU’s Order for Production.

(c) Toll also did not adequately consider the alternative options proffered by Mr Banbury at the 12 January 2021, including the CNG Proposal, the Replacement Proposal and the Conversion Proposal. Such proposals would likely have enabled the continued use of the Isuzu Trucks.”

[56] In his witness statement at clause 20, Mr Banbury explains that the options put to Toll on 12 January 2020 by the TWU were that new trucks be purchased by Toll, that trucks be converted to diesel motors, and that Toll build a CNG facility and pump at the Airport site. Each of these would require investment of some form by Toll of a substantial nature. Mr Banbury complains that Toll only replied to one of these options, conversion to diesel motors (clause 21), and that Mr Bill Rolfe, the Toll manager, checked and said that this could not be done because it would require expenditure of $70,000 per truck, and ‘Toll could not afford it’. According to Mr Banbury, Mr Rolfe did not check the other options or otherwise reply to them.

[57] Further, according to Mr Banbury, Toll further replied by letter on 18 January 2020. In that letter Toll said that:

“Proposed Change

Express Parcels has identified that we operate 44 Compressed Natural Gas (CNG) vehicles within our fleet at this site, and the fuel supply on these trucks are due to expire on 31 March 2021.

The following options have been considered by Toll:

•  Engine conversions

•  Mechanical modifications, and

•  Vehicle reallocation however, these options are not available to us and it is Toll’s intention to remove these 44 vehicles from our operations. This action will impact up to 44 driver roles currently engaged at the Melbourne Airport site.”

[58] Toll and the TWU further met in February 2021, and the follow-up email from Mr Banbury again sent on 10 February 2021 provides support for the view that Toll considered and rejected the TWU proposals for substantial new investment because they were too costly:

“Subject: Toll Dispute Clause

To, Bill Rolfe

after 2 meeting with the company and TWU delegates regarding Toll Global Express / Epress Parcels Division (ipec )in Tullamarine in which you have stated that Toll cannot receive natural gas after 31 March for 44 of the gas vehicles and cannot afford the replacement of the vehicles & maintenance and ongoing costs to the Toll vehicles which intern you have said that Toll would like to make 40 Company drivers redundant and replace them with outside hire which leaves the TWU Vic / Tas Branch to invoke Clause 15 the the toll TWU enterprise agreement 2017–2020 cheers

Regards
Peter Banbury
TWU VIC/ TAS branch”

[59] Clause 14 (a) provides:

“If Toll is considering workplace changes that are likely to have a significant effect on Transport Workers, it will consult with the Union and any Transport Workers who will be affected by any proposal”

[60] In considering whether this clause and the rest of the clause quoted earlier was complied with no doubt a more elaborate formal process of consideration of the options might have been put by the TWU and considered by Toll. The TWU put the options on 12 January 2020 and were fully and squarely met with the objection by Mr Rolfe, after he checked, that Toll could not afford a $70,000 conversion cost per truck, with 44 trucks to be converted, a total cost of perhaps over $3 million. The fact that Mr Rolfe checked, and the later letter, shows that Toll was appropriately considering workplace changes.

[61] Further, the Toll letter of 18 January 2021 made it clear to the TWU that Toll had considered its options and rejected them because ‘these options are not available to us’. It seems clear from the context of earlier and other discussions that the problem was a similar one of the cost of investment or business models. I see no reason to make a finding in all the circumstances that Toll had made a final decision and did not consult while it was considering changes. Further, some care has to be taken in delineating stages of decision making. It is possible for an employer to make a decision of some kind and change its mind when new information and perspectives become available. Managerial decisions are not always rigid in sequence and in finality. They change, as they have to. For example Toll might have discovered that the TWU had put a proposal that was within Toll’s cost constraints. It did not discover this, because the TWU did not put such a proposal.

[62] Again the email of Mr Banbury on 10 February 2021 makes it clear that Toll considered and rejected the major investment proposals of the TWU because they were too costly, and this was explained to the TWU by Toll at the February 2021 meeting. Mr Banbury said with exemplary clarity that Toll had stated at the February 2021 meeting as follows:

“…you have stated that Toll cannot receive natural gas after 31 March for 44 of the gas vehicles and cannot afford the replacement of the vehicles & maintenance and ongoing costs to the Toll vehicles which intern [sic] you have said that Toll would like to make 40 Company drivers redundant…”

[63] In any event the TWU has never contested the Toll investment answers by attempting to demonstrate that the answer given on 12 January or 18 January was false or can be avoided, or some other solution was possible, or that it lacked merit and was wrong, or was ill considered or inadequate, or something else. After 12 January and 18 January, and February 2021 it was under no illusion that there were serious cost and investment problems with its alternative proposals. The TWU knew this. The idea that they did not understand the Toll position that their new investment proposals were too costly is untenable, or were in any position to demonstrate that it lacked merit, as is any suggestion that this was not a careful and considered response by Toll rather than something else.

[64] I also have reservations about the extent to which Toll is required to undertake discussions and provide information about its investment strategies. The agreement is not a vehicle for regulating the managerial and investment policies and strategies of Toll. Such a notion is both outside the scope of discussions about the employment relationship on the authorities and is completely impractical. 16 The TWU and this Commission are in no position to dictate to Toll what business and investment models it adopts, although information and consultation is a different matter. Nevertheless the TWU was given full opportunity to deal with investment decisions, and took that opportunity.

[65] The TWU asserts that Toll had made a ‘final decision’ on 12 January 2020. There is no evidence for this assertion, beyond the fact that the various alternative options made by Mr Banbury on 12 January, including the CNG proposal, the replacement proposal, and the conversion proposal were not adopted by Toll. I have already outlined how Mr Rolfe immediately and quite properly checked the conversion cost proposal and gave Mr Banbury an answer the accuracy of which the TWU has made no effort to contest. Then again on 18 January and February 2021 the problem with the TWU proposals were reiterated, and the TWU in context must have understood the answer. Again, they made no effort to contest the accuracy of the answer, which in context means that they understood and accepted its accuracy, in that it is not enough to simply keep reiterating apparently unacceptable proposals without further reasoning or substantiation, or something else.

[66] Nor does the rejection of alternative options constitute evidence in this case of a final decision having been made. It is a rejection of the TWU options. Toll has an obligation, as the TWU rightly states, to seriously consider the TWU options. It has no obligation to adopt them. We cannot leap from a rejection of proposals to a conclusion that Toll had already made a final decision. There is evidence in any event of serious consideration of the investment cost of the proposals.

[67] There was a good reason to reject the TWU proposals, which in context the TWU understood and summarised with great clarity on 10 February in an email. They involved new investment by the employer in other forms of trucks that do not use CNG, or something similar. The TWU has not, for example, costed its investment proposals, compared those costs with the Toll costings, or undertaken any of the fundamentals needed for a major investment and new business model decision by Toll. As we have already discussed, there is no obligation on an employer to take a particular course of investment decisions in relation to these clauses and this issue.

Summary

[68] I note that the TWU made extensive submissions as follows:

“28. The Cambridge Dictionary defines “commit” as to promise or give loyalty, time or money to a particular principle, person or plan of action. The commitments set out in clause 17 are not mere empty words nor a discretion that can be exercised by Toll. They are a firm promise by Toll to comply with certain principles regarding job security. In this matter, the TWU submits that Toll has not complied with that promise.”

[69] On the material before me this is not the case. Toll undertook a course of action and considered alternatives. There is no escaping the fact that CNG trucks cannot be operated without CNG fuel, and Toll was entitled to reject proposals for major new investment converting CNG trucks to diesel, building a CNG plant, or buying new trucks.

“29. Clause 17(b) and (f) must also be read in the context of the rest of the clause and Enterprise Agreement. In particular, Clause 17(b) and (f) should be read in the context of the other commitments in clause 17 including sub clause 17(a) (regarding full time engagement) and 17(e) (consultation with the Union if a decision is taken to outsource work). When given their ordinary meaning, those sub-clauses provide that Toll commits to:

(a) Full time engagement of Transport Workers;

(b) Full utilisation of full-time permanent Transport Workers before the engagement of Outside Hire;

(c) Consulting with the union if a decision is taken to outsource work; and

(d) Not to use third party agencies to circumvent the Enterprise Agreement.

30. The TWU submits that Toll’s commitments in clause 17 must require Toll to take practical steps, including consultation and consideration of alternatives to redundancy and outsourcing or engagement of Outside Hire or third parties. This is particularly so when clause 17 is understood in the context of the broader Enterprise Agreement which requires those steps; see clause 14 and 26 of the Enterprise Agreement. Without such practical steps (which are already provided for in the Enterprise Agreement), the commitments in clause 17 would be meaningless.

31. The TWU submits that Toll has not complied with those commitments in circumstances where:

(a) Toll first advised the TWU at the 12 January 2021 meeting that it would no longer utilise the Isuzu Trucks and would outsource the work to Outside Hire. This meeting was the first time that the matter had been raised with the TWU or its members. At that meeting, it was apparent that Toll had already made a final decision to decommission the Isuzu Fleet and outsource/engage Outside Hire.

(b) Toll has not considered other options available to retain drivers or otherwise prevent redundancy. There is presently no evidence before the Commission that Toll has adequately considered alternative options to redundancy. In fact, there is evidence to the contrary, that Toll failed to consider any measures it could take to continue the operation of Isuzu Trucks and therefore prevent redundancy, voluntary or otherwise. The Commission may be further informed of this matter when it considers the documents produced in response to the TWU’s Order for Production.

(c) Toll also did not adequately consider the alternative options proffered by Mr Banbury at the 12 January 2021, including the CNG Proposal, the Replacement Proposal and the Conversion Proposal. Such proposals would likely have enabled the continued use of the Isuzu Trucks.”

[70] On the material before me, I do not agree. Toll advised the TWU of the problem it had, a real problem which has not been contested. The TWU put proposals for major new investment. Those proposals were considered and rejected on 12 and 18 January and other dates. I see no reason to believe why its consideration was not ‘adequate’. It is odd that the TWU appears to claim that it did not understand a relatively simple problem that it and Toll, and the truck drivers had.

“32. The above matters are necessarily relevant to Toll’s commitment to job security as set out in clause 17. They are the practical expression of that commitment to job security. Furthermore, consultation and consideration of alternatives to redundancy and outsourcing are specifically required by clauses 14 and 26 of the Enterprise Agreement.”

[71] Toll complied with the clauses for the reasons given.

“33. Clause 26 also codifies the process by which Toll can make employees redundant. While clause c26(d) and (e) permit Toll to select employees for redundancy on the basis of expressions of interest, the Enterprise Agreement does not permit Toll to by-pass clause 14 and 26 and engage in a “voluntary redundancy process” without complying with the consultation and other obligations provided therein. Toll’s intent to by-pass clause 26 by the voluntary redundancy process appears evident in their F10 Application (see section 3.1) in which a distinction is drawn between the current process, and the process to be undertaken (in accordance with clause 26) if voluntary redundancies cannot be implemented.

34. The TWU submits that Toll has failed to comply with the Enterprise Agreement by the current “voluntary redundancy process”. In particular:

(a) Toll has not used redundancy as a last resort (as required by clause 26(b)). For example, there is no evidence before the Commission that Toll has taken any steps to reduce the number of Outside Hires before progressing with any redundancy process.

(b) Toll has not consulted in accordance with clause 14 (as also required by clause 26 (c)(i)). As set out above, clause 14 requires Toll to consult before any final decision is made. Instead, by 12 January 2021, Toll had already decided that redundancy was necessary and Outside Hire would be engaged. Furthermore, Toll has not:

i. Consulted with the TWU and Transport Workers regarding the “reasonable alternatives to the change or redundancy” (see clause 14(b)) or the impact of any change, including on any family or caring responsibilities (see clause 14(c)).

ii. Given genuine consideration to matters raised by the TWU (see clause 14(d)). As outlined above, Toll’s consideration of the TWU’s proposals was perfunctory in nature. 17 Toll has not modified or changed its decision in any way.

iii. Consulted with the TWU if a decision is taken to outsource work (see clause 17(e). By 12 January 2021, Toll had already decided to outsource the work currently conducted by Izusu Trucks.19 The TWU has not been provided with any opportunity to consult regarding that decision.”

[72] On the material before me Toll has complied with the clauses.

“35. In relation to the consultation process, the TWU does not submit that Toll must explore every possible option or require agreement – however, as part of consultation, it must at least adequately and genuinely consider alternatives to redundancy. As observed by DP Sams in Transport Workers' Union of Australia v Toll Holdings Limited t/a Toll Group [2019] FWC 4664 [58]:

‘…..Consultation must be meaningful, open and transparent, and involve a reasonable, realistic and respectful consideration of each other’s views. Whereas in the past, employers may have claimed they had genuinely consulted when there was no more than a meeting to inform employees of their redundancy and asking for questions, such a perfunctory approach would not be considered acceptable in the present day industrial relations environment…’

36. Instead of adequately considering options to retain the full-time work force, Toll had already determined that employees will be made redundant and that outside hire will be engaged to undertake the work.

37. The TWU submits that Toll has not consulted in accordance with clause 14 and 26 regarding the proposed redundancies or engagement of Outside Hire. The “voluntary redundancy” process it has engaged in is in contravention of the consultation and other obligations in Enterprise Agreement. In failing to failing to comply with the obligations in clause 14 and 26, Toll has also failed to comply with its commitments to job security in clause 17(b) and (f).”

[73] On the limited material before me I do not agree, for the reasons given.

The order to produce

[74] The TWU explained its proposed order to produce as follows, as we have seen:

“31. The TWU submits that Toll has not complied with those commitments in circumstances where:

(a) Toll first advised the TWU at the 12 January 2021 meeting that it would no longer utilise the Isuzu Trucks and would outsource the work to Outside Hire. This meeting was the first time that the matter had been raised with the TWU or its members. At that meeting, it was apparent that Toll had already made a final decision to decommission the Isuzu Fleet and outsource/engage Outside Hire. 17

(b) Toll has not considered other options available to retain drivers or otherwise prevent redundancy. There is presently no evidence before the Commission that Toll has adequately considered alternative options to redundancy. In fact, there is evidence to the contrary, that Toll failed to consider any measures it could take to continue the operation of Isuzu Trucks and therefore prevent redundancy, voluntary or otherwise.¹⁸ The Commission may be further informed of this matter when it considers the documents produced in response to the TWU’s Order for Production. [emphasis added]

(c) Toll also did not adequately consider the alternative options proffered by Mr Banbury at the 12 January 2021, including the CNG Proposal, the Replacement Proposal and the Conversion Proposal. Such proposals would likely have enabled the continued use of the Isuzu Trucks.”

[75] The statement by the TWU that ‘The Commission may be further informed of this matter when it considers the documents produced in response to the TWU’s Order for Production’ is very close to an admission that the proposed order is simply a fishing expedition. The statement before it that Toll has failed to consider alternative measures to making employees redundant, is not consistent with my findings above. Toll did on 12 and 18 January, and at other times. To then say that the Commission may find out more or be further informed is a statement that the Commission should embark on a fishing expedition, in an endeavour to find something for which there is currently no evidence before me. As the Commission said in Industrial Relations Commission Decision 184/1992:

“A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a 'fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.” 19

Efficacy

[76] The circumstances are that on 31 March 2021 there will be no fuel for the 44 trucks, and therefore no work for the trucks which can be performed. As Toll said in its letter of 18 January 2021:

“Express Parcels has identified that we operate 44 Compressed Natural Gas (CNG) vehicles within our fleet at this site, and the fuel supply on these trucks are due to expire on 31 March 2021.”

[77] This was discussed during the conference before me, and the tight timeline procedurally was the basis of discussions. In those circumstances it is somewhat futile to make orders relating to alleged breaches, given that discussions will be taking place about work that is no longer possible given the lack of fuel for the trucks the TWU workers work on, which means that they cannot operate and no work is possible. I agree with the Toll submission that the Commission should take a position similar to decisions such as in the Federal Court in CFMEU v BHP Coal Pty Ltd 20 where, even in the face of an arguable breach of an agreement, there was no mandate to interfere with a proposal being implemented where there was no efficacy in doing so, and in circumstances which would represent ‘surreal formality’. There appears to be substance in this submission, which I adopt in the alternative.

Conclusion

[78] On the material before me I determine that clauses 17, 14 and 26 were not breached by the employer. Even if I am wrong about that, given that there is no work for the trucks to do after 31 March there no efficacy in making other or further findings: CFMEU v BHP Coal Pty Ltd. 21

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728222>

 1   Form F10 - Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, 2.1.

 2 [2018] FCAFC 131.

 3 [2005] HCA 10; (2005) 222 CLR 241; (2005) 214 ALR 56; (2005) 79 ALJR 703 (9 March 2005).

 4   Re Schefenacker (2005) 142 IR 289; Transport Workers Union v Australian Air Express (2005) 142 IR 409; Re National Union of Workers (2005) 146 IR 334.

 5 (2005) 142 IR 409, [48].

 6   [2015] FWC 3862.

 7   Fair Work Act 2009 (Cth), s.172(1)(a).

 8   Re Schefenacker (2005) 142 IR 289; Transport Workers Union v Australian Air Express (2005) 142 IR 409; Re National Union of Workers (2005) 146 IR 334.

 9 (2005) 142 IR 409 at [48].

 10   [2015] FWC 3862, [40]-[41].

 11 [2014] FCA 1431, [76].

 12   Transport Workers' Union of Australia v Toll Holdings Limited t/a Toll Group [2019] FWC 4664, [58]- [57].

 13   Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2015] FWC 4405, [57].

 14   Witness Statement of Mr Banbury, [20(a), (b), and (c)].

 15   Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188, 191.

 16   Re Schefenacker (2005) 142 IR 289; Transport Workers Union v Australian Air Express (2005) 142 IR 409; Re National Union of Workers (2005) 146 IR 334; Brown v Clermont Coal[2015] FWC 3862.

 17   Witness Statement of Mr Banbury, [26].

18 Ibid, [30].

 19 [1992] AIRC 125; Print K2056.

 20 [2014] FCA 1431, [76].

 21   Ibid.