Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd
[2018] FWC 5638
•6 SEPTEMBER 2018
| [2018] FWC 5638 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers’ Union of Australia
v
Linfox Armaguard Pty Ltd
(B2018/792)
DEPUTY PRESIDENT BEAUMONT | PERTH, 6 SEPTEMBER 2018 |
Proposed protected action ballot of employees of Linfox Armaguard Pty Ltd –– has been and is – genuinely trying to reach agreement – notification time – employer agrees to bargain or initiates bargaining.
[1] On 4 September 2018, the Transport Workers’ Union of Australia (TWU) filed an application for a protected action ballot order (PABO) pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act). The application concerned a proposed ballot of certain employees of Linfox Armaguard Pty Ltd (Armaguard).
[2] The employees in question are members of the TWU who are based in Western Australia who would be subject to a proposed enterprise agreement that will replace the Armaguard Roadcrew (Western Australia) Enterprise Agreement 2015 (Proposed Agreement). An enterprise agreement does not currently apply to the relevant employees.
[3] Section 441 of the Act provides that the Fair Work Commission (Commission) must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was listed for Hearing on 5 September 2018.
[4] At the Hearing, Mr Adam Dzieciol, Senior Legal / Industrial Officer of the TWU (Mr Dzieciol), appeared for the TWU and Ms Pearl Thompson, HR Operations Manager (Ms Thompson), appeared on behalf of Armaguard.
Armaguard’s objections
[5] Armaguard opposed the granting of the proposed order on the basis that it considered that the TWU had not been genuinely trying to reach agreement as that term is understood in s 443(1) of the Act.
[6] It held the view that the TWU had not given genuine consideration to Armaguard’s proposals. Ms Thompson submitted that from 20 July 2018 the TWU had ceased all negotiations with the company, and that the negotiations had ceased because of the introduction of a new firearm policy.
[7] It was the case, said Ms Thompson, that on 5 July 2018 the TWU had shifted its position in bargaining in response to a policy decision by Armaguard to introduce a new procedure for the wearing, or not wearing as the case may be, of firearms during meal breaks. It was that policy change that had resulted in the TWU pursuing a new claim midway during the negotiations concerning the Proposed Agreement. It was advanced that when the TWU could not secure its claim regarding the firearm wearing, it simply ceased to bargain and gave notice that it intended to make an application for a PABO.
The submissions of the TWU
[8] In short, the TWU submitted that it was clear from the evidence it had been genuinely trying to reach agreement with Armaguard regarding the Proposed Agreement. While it was true that a new claim was raised midway during the negotiation, Mr Dzieciol said that claim was not unrelated to the Proposed Agreement given it concerned the wearing of firearms during meal breaks.
[9] Mr Dzieciol advanced that the policy change concerning firearms occurred on 12 June 2018 and yet at the bargaining meeting on 29 June 2018 the evidence showed that the TWU had made concessions regarding a drop in its wage claim from 4% to 1.9%, 1% increase for superannuation, a roll-over of the existing agreement and a term of 3 years. It was the TWU’s contention that it had only asserted that the offer of 29 June 2018 would be off the table if it was compelled or forced to take significant industrial action.
[10] Mr Dzieciol submitted that the parties were unable to reach agreement on the concept of ‘probationary rates’, which were a set of reduced introductory wage rates for new employees, and the approach to the wearing of firearms during meal breaks. According to the TWU, Armaguard’s proposed policy of the non-wearing of a firearm whilst on meal break would, in its view, reduce its members’ allowance and pose a safety risk. It had become an emotive issue. An impasse had been reached.
Confidentiality order
[11] At the commencement of the Hearing Armaguard submitted an application for confidentiality orders concerning the evidence of Mr James Michael O’Brien, General Manager – Security (Mr O’Brien). Briefly stated, Armaguard advanced that the evidence Mr O’Brien would give was highly confidential information relating to Armaguard’s security procedures which if disclosed could impact upon the safety and security of Armaguard road crews, clients and potentially the general public. Mr Dzieciol submitted that the TWU had no objection to the orders sought by Armaguard.
[12] Section 593 of the Act vests discretion in the Commission to make an order in relation to a Hearing if the Commission is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason. Section 594(1) of the Act similarly vests a discretion in the Commission to make an order prohibiting or restricting the publication of certain things in relation to matters before the Commission if satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason.
[13] Considerations of open justice and the administration of justice are clearly relevant to the exercise of discretion to make an order under the aforementioned sections. 1 However, these considerations are not to be applied in a vacuum and need to be considered in the context of the express power to prohibit or restrict publication of certain material having regard to its confidential nature or for any other reason and the circumstances of a particular case.2
[14] Having considered the submissions of both parties and the witness statement of Mr O’Brien, I was satisfied that an order should be granted in the terms set out in PR700185.
Statutory framework
[15] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in ss 437(2A) and 438(1) the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. Section 443 relevantly provides:
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
…
[16] Whether an applicant ‘has been, and is, genuinely trying to reach anagreement’ within the meaning of s 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 3 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.4 There are two temporal components to s 443(1)(b); the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.5
[17] While there is a relationship between s 443(1)(b) and the need to bargain in good faith under s 228 of the Act, a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU 6cautioned against conflating the two requirements. It stated that ‘a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement’.7 Ultimately, it is the test in s 443(1) that must be applied.
Threshold requirements
[18] For reasons that will become apparent I am satisfied that the threshold requirements have been met. Pursuant to s 437(1), I have found that the TWU is a bargaining representative and is entitled to make the application being considered in this matter.
Having considered the evidence and other material provided, I am further satisfied that the application has been properly made under s 437 and the application was not made earlier than 30 days before the nominal expiry date of a previous enterprise agreement.
[19] It was confirmed that Armaguard was provided with a copy of the application within 24 hours of it being made as required by s 440. 8
Background and evidence
[20] Mr John Cutrali, TWU WA Branch Organiser (Mr Cutrali), gave evidence that he is the bargaining representative for those members in negotiations with Armaguard for the Proposed Agreement. 9
[21] Mr Cutrali’s evidence was that on 3 May 2018 he gave Armaguard the TWU Log of Claims for the Proposed Agreement. The Log of Claims sought the following terms:
a) an agreement that has a three year term;
b) wage increases of 4% per year, namely, a wage increase of 4% in the first year, and then further wage increases of 4% in the second and third years, backdated to 26 July 2018;
c) a 1% increase in employer superannuation contributions; and
d) allowances to increase aligned to annual wage increases of 4%. 10
[22] Mr Cutrali said that he attended bargaining meetings for the Proposed Agreement with representatives of Armaguard on 3 May 2018, 30 May 2018, 21 June 2018, 5 July 2018 and 20 July 2018. 11
[23] In summary, Mr Cutrali’s evidence was that at the first meeting on 3 May 2018, Armaguard stated that it was not yet prepared to offer a pay rise and it would present a Log of Claims to the TWU at the next bargaining meeting on 30 May 2018. 12 At the next meeting on 30 May 2018, Armaguard presented its Log of Claims which included a proposal to introduce a new probationary rate for new employees, and also included an offer of a wage increase to the employees of 1.9% each year.13 Ms Tania Puczkowski, Regional Manager – West (Ms Puczkowski) gave evidence that the TWU proposed a probationary period for the new structure of between two years and 12 months.14 Mr Cutrali disagreed with this point and expressed that were the TWU to consider such a claim it would be up to a maximum of 12 months but preferably six months.
[24] On 21 June 2018, a third bargaining meeting was held in which Mr Cutrali said he advised Armaguard that the employees could be prepared to accept a lower pay rise of 1.9% for each year if the company dropped its claims for changes to the Proposed Agreement. 15 Ms Puczkowski said that Armaguard informed the TWU that the probationary rates would be referred to as a traineeship or similar wording and would run for three years.
[25] Ms Puczkowski said that on 5 July 2018 the TWU raised a claim that guards must wear firearms while on duty. 16 Armaguard informed TWU of its position that the claim was not accepted as it was a procedural matter and not related to the terms and conditions of employment.17 Ms Puczkowski’s evidence was that the TWU responded by saying that it would now only accept 4% per annum and 1% superannuation per annum.18 Mr Cutrali’s evidence was that the statement was made under the proviso that if the TWU was forced to take protected action it would not settle for the current offer of 1.9% per year and superannuation.
[26] Mr Cutrali said that he met with TWU members to discuss Armaguard’s position and then he met with Armaguard and emailed a response to the company on 10 July 2018. He advised Armaguard that its offer was not accepted. In the email of 10 July 2018, Mr Cutrali said the TWU tabled a further claim to include a clause in Proposed Agreement to ensure employees could not be directed to remove all firearms for the duration of their meal breaks whilst working outside of their yard. 19
[27] On 20 July 2018 a subsequent bargaining meeting was held in which Armaguard said that they would not remove their claim for a probationary rate and they would not raise their wage offer any further than 1.9%, or revoke the changes to the policy regarding the wearing of firearms during breaks. 20 It was the case that the TWU Members were dissatisfied with the response and therefore instructed Mr Cutrali to make an application for a PABO.21
[28] In his email of 10 July 2018 to Ms Jocelyn Fredericks (copied to Ms Puczkowski), Mr Cutrali concluded with ‘I understand your [sic] on leave until the 13th July 2018 and I will wait on a written response so we can resolve and move forward with [sic] agreement as soon as possible. 22
Consideration
Proposed agreement
[29] Subsection 437(1) provides that a bargaining representative of an employee who will be covered by ‘a proposed enterprise agreement’ may apply to the Commission for a PABO. Subsection 443(1) requires an application to have been made under s 437 in order for the Commission to be empowered to make a PABO.
[30] Having considered the decisions in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia 23, Skilled Offshore Pty Ltd v AMWU and others24, Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd (Maersk Crewing)25 and MUA v Swire Pacific Ship Management (Australia) Pty Ltd26, I am satisfied that there is a ‘proposed enterprise agreement’ within the meaning of ss 437(1) and 443(1) of the Act.
Notification time and the issuing of NERRs
[31] For a protected action ballot order to have been validly made under s 473(1) there must have been a ‘notification time’ for the proposed agreement 27. The Full Bench in Maersk Crewing28 referred approvingly to the observation of Vice President Hatcher in Transport Workers’ Union of Australia v Hunter Operations Pty Ltd29 that the definition of ‘notification time’ in s 173(2)(a) ‘indicates that an employer’s agreement to bargain is a single event which happens at a particular point in time’.
[32] In Maersk Crewing 30the Full Bench stated that it was clear that the reference to ss 437(2A) to ‘notification time in relation to the proposed enterprise agreement’, meant a notification time within the meaning of s 173(2). Subsection 173(2) of the Act states that the notification time for a proposed enterprise agreement is the time when ‘the employer agrees to bargain or initiates bargaining, for the agreement’. I note that with regard to the matter before me ss 173(2)(b)-(d) are not relevant in the current context.
[33] The Statutory Declaration of Mr Cutrali did not specify the date of the ‘notification time’ save a reference to ‘in or about late April 2018’. Armaguard advanced that it was 10 April 2018 and the TWU submitted they did not have a copy of the Notice of Employee Representative Rights (NERR) or details of the exact date, but that the latest date for the notification time would be 3 May 2018, the date of the first bargaining meeting. Both, however were in agreement that there had been a notification time and there was no contention made that the NERR had not been issued. I am satisfied that there was a notification time for the Proposed Agreement.
Genuinely trying to reach an agreement
[34] Consideration must be had to whether the TWU has been, and is, genuinely trying to reach an agreement with Armaguard. It appears that the conduct relevant to a determination of whether the TWU is genuinely trying to reach agreement is that which has occurred during the course of bargaining, and that which is presently occurring.
[35] Armaguard drew attention to the introduction of a new claim midway through negotiations. In the circumstances of this matter the introduction of a new claim midway in the negotiations does not in and of itself suggest that the TWU was not genuinely trying to reach an agreement. While Armaguard contended it was unrelated to the terms and conditions of employment, I do not hold that view given it related to meal breaks, safety and what arguably could be seen to be the provision or non provision of an allowance for wearing a firearm during a meal break. The introduction of the claim midway in negotiations was understandable given the matter was not contentious prior to the announcement by Armaguard of a change in its policy in this regard. That announcement occurred after negotiations for the Proposed Agreement had commenced and therefore explains why the claim was absent in the initial Log.
[36] It was submitted that there had been a shifting in position by the TWU when it had initially been open to a 1.9% pay increase per annum, 1% increase in superannuation and a three year term and the offer was subsequently revoked when Armaguard did not accede to the TWU’s claim of the wearing of firearms during breaks. However, while a pattern of shifting position regarding certain claims or for want of a better term, moving the goal posts, may indicate a breach of good faith bargaining provisions and perhaps result in a finding that a party is not genuinely trying to reach agreement, no such pattern is established on the evidence before me.
[37] There was clearly a period between the last bargaining meeting and this application that extended to near on six weeks. With no steps being taken by the TWU in this time to continue the negotiations, attention is unsurprisingly drawn to the matter of whether the TWU is genuinely trying to reach agreement.
[38] When questioned on this point it was said that Armaguard’s Employee Relations Manager had been on leave since 28 July 2018 and she had been the main negotiator for Armaguard. It followed that the TWU had not arranged or scheduled any further meetings. Mr Dzieciol directed my attention to Armaguard having taken no steps to schedule a further meeting, and that Armaguard had been responsible for the schedule of meetings and providing the requisite venue. It is of course the actions of the TWU that fall under my gaze to determine the genuineness of it trying to reach agreement and whether it continues to do so.
[39] Ms Thompson submitted that Ms Puczkowski was part of the negotiating team and could have been contacted in addition to herself, and that the Employee Relations Manager had taken leave but was available up until to 17 August 2018. In the email of 10 July 2018, Mr Cutrali states ‘I understand your [sic] on leave until the 13th July 2018 and I will wait on a written response so we can resolve and move forward with agreement as soon as possible’. 31 There is evidence before me to suggest that Armaguard’s Employee Relations Manager had been on leave for a period within the six weeks. Therefore, I consider that there is a plausible rationale why a subsequent bargaining meeting was not arranged by the TWU in the period between the last bargaining meeting and the making of this application. I am not satisfied that the absence of arranging a further meeting in the circumstances of this matter demonstrates that the TWU is not genuinely trying to reach agreement.
[40] Having considered all of the evidence of both parties, I am satisfied that the TWU has been and is, genuinely trying to reach an agreement with Armaguard as that term is understood in the context of ss 443(1)(b) of the Act.
Ambiguity ballot question
[41] Sections 414(6) and 437(3) both require that the ‘nature’ of the action (being the proposed industrial action the subject of the protected action ballot) must be specified. The object of the relevant division as set out in s 436 is to ensure that those who are to be balloted are afforded a fair, simple and democratic process which leads to the view of employees who vote on the question being expressed in the ballot.
[42] I raised issue regarding the form of question 1 to be put to employees in the draft order. I invited the parties to make submissions concerning whether the question allowed for the employees to properly assess the particular protected industrial action in relation to which they would be voting, or the nature of that action. My particular concerns were with regard to ‘where it is too far’ and ‘1-hour minimum lunch break’. The question read:
Question 1
An unlimited number of indefinite bans lunch on truck or lunch outside of depot (i.e. all trucks to return to base for lunch, except in circumstances where it is too far to return to the depot in which case a 1-hour minimum lunch break on truck will be applied)?
[43] It is said that s 437 itself, seen in its statutory context, requires that the questions should describe the industrial action in such a way that employees are capable of responding to them. 32 In its current form I was not satisfied that the employees were capable of responding to question 1. I am appreciative that questions which are ambiguous or lack clarity may result in consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action.33 These are the risks associated with the drafting of questions that are initially taken by the bargaining representatives making the application.34
[44] However, there remains an absolute necessity that sense must be able to be made of the question posed and in this case ‘too far to return to a depot’ and a ‘1-hour minimum lunch break’ are devoid of the clarity required to engender an informed response where a proper assessment has taken place.
[45] Subsequent to the Hearing, the parties were directed to file any submissions they wished to make on this point. Armaguard submitted that the phrase ‘where it is too far’ is too broad, and reference to a ‘1-hour minimum lunch break’ lacks clarity. It submitted both phrases may lead individual employees not to understand what the particular form of industrial action is likely to be.
[46] The TWU requested question 1 in the draft order be amended as follows and Armaguard said it had no further submissions to make:
Question 1
A ban on “lunch on road” where, at the time that the road crew is scheduled to commence their meal break, the truck is within 25 km driving distance of the depot (by the most direct route). In these circumstances the road crew will return to the depot where they will take a 1-hour meal break.
[47] I was satisfied that the amendments to question 1 addressed the concern raised.
Extension of the three day period
[48] Section 443(5) of the Act provides the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus then is on Armaguard to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.
[49] The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation 35 which concerned an equivalent provision of the Workplace Relations Act 199636:
[10] In this passage his Honour was concerned with the ordinary meaning of the expression “exceptional circumstances” and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.
[50] The Vice President went on to state:
[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices [sic] period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.
[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.
[51] In order to warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice. This requires a weighing up of the opportunity for Armaguard to take appropriate defensive action against the diminution of the effectiveness of the TWU members’ bargaining power that is contemplated by the scheme of the Act 37. In that light, it would not be a relevant exercise of discretion to grant additional notice simply to allow the employer to neutralise the impact of the industrial action38.
[52] Where the interests beyond that of the immediate parties may be significantly impacted by the taking of industrial action, the tendency is for an extension of the notice period to be provided 39.
[53] The evidence of Mr O’Brien was compelling and he gave cogent reasons for the necessity to implement contingency arrangements and the ramifications that would occur should such arrangements not be put in place. Those ramifications included placing staff, clients and potentially the general public in harm’s way. Armaguard is Australia’s largest cash-in-transit company and its road crew employees are responsible for the transportation of all cash and coin to and from client’s premises. 40 There is an obvious danger that arises from the storage and transportation of large sums of cash and coin; hence the necessity to wear firearms, to use a secure fleet with the appropriately trained personnel, and to regularly provide the service.
[54] Armaguard has met the onus of satisfying the Commission that there is in this instance exceptional circumstances justifying the period of notice of protected industrial action being longer than three working days as is prescribed in the Act. I have considered the evidence before me, and acknowledge that the request for a seven day period is premised on Mr O’Brien’s professional opinion. However, the evidence is such that I consider an extension of two days is warranted to the period specified in s414(2)(a) and therefore the period of notice will be five working days. 41
Conclusion
[55] For the above reasons I have found that the TWU has met the statutory requirements of the Act and have found that the TWU has been and is genuinely trying to reach an agreement with Armaguard who is the employer of the employees who are to be balloted.
[56] An order 42 is issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
A. Dzieciol on behalf the Applicant.
P. Thompson on behalf the Respondent.
Hearing details:
Perth:
2018.
September 5.
Printed by authority of the Commonwealth Government Printer
<PR700183>
1 Bowker;Coombe; Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2015] FWC 4542 [15].
2 Ibid.
3 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [57].
4 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 at [25].
5 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 [54].
6 [2015] FWCFB 210.
7 Ibid [18].
8 Section 440 of the Act.
9 Statutory Declaration of Dulio John Cutrali (Exhibit A1) [1].
10 Ibid [2].
11 Ibid [3].
12 Ibid [4].
13 Ibid; Witness Statement of Tania Puczkowski (Exhibit R1).
14 Exhibit R1.
15 Exhibit A1 [4].
16 Exhibit R1.
17 Ibid.
18 Ibid.
19 Exhibit A1 [4] and Annexure C.
20 Ibid [5].
21 Ibid [6].
22 Ibid [4] and Annexure C.
23 [2014] FWCFB 1317.
24 [2015] FWCFB 7399 [27].
25 [2016] FWCFB 1894 [15].
26 [2014] FWCFB 2587 [34].
27 Section 437(2A) of the Act; Ibid [23].
28 Ibid [34].
29 [2014] FWC 7469 [60].
30 Ibid [23].
31 Statutory Declaration of Dulio John Cutrali [4] and Annexure C.
32 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australia Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union[2010] FWAFB 526.
33 Ibid.
34 Ibid.
35 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848.
36 Section 463(5) Workplace Relations Act 1996 (Cth).
37 Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines[2017] FWC 6748 [12].
38 Ibid.
39 Transport Workers’ Union of Australia[2012] FWA 133; Transport Workers’ Union of Australia v the Chief Executive of the ACT Internal Omnibus Network (ACTION) on behalf of the Australian Capital Territory; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v the Chief Executive of the ACT Internal Omnibus Network (ACION) on behalf of the Australian Capital Territory[2010] FWA 3355.
40 Witness Statement of James Michael O’Brien [3] & [7] (first sentence).
41 Section 414(2)(b) of the Act.
42 PR700184.
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