Union of Christmas Island Workers v Phosphate Resources Limited T/A Christmas Island Phosphates

[2019] FWC 7496

[2019] FWC 7496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Union of Christmas Island Workers
v
Phosphate Resources Limited T/A Christmas Island Phosphates
(B2019/1260)

DEPUTY PRESIDENT BEAUMONT PERTH, 5 NOVEMBER 2019

Proposed protected action ballot of employees of Phosphate Resources Limited T/A Christmas Island Phosphates.

[1] This decision concerns an application by the Union of Christmas Island Workers (the Union) pursuant to s 437 of the Fair Work Act 2009 (Cth) (the Act) for protected action ballot orders. The application was made on Tuesday, 29 October 2019, and relates to employees who are members of the Union, are employed by Phosphate Resources Limited (Phosphate Resources) and would be covered by the proposed agreement.

[2] Christmas Island is located in the Indian Ocean. It is approximately 2,600km from Perth and approximately 1,400km from Indonesia. 1 Phosphate Resources is said to be the largest private sector employer on the Island.2

[3] Phosphate Resources opposed the application on three grounds:

a) the Union had failed to provide sufficient acceptable evidence to discharge its evidential onus under section 443;

b) the Union is not ‘genuinely trying to reach an agreement with Phosphate Resources’; and

c) the Union is pursuing the application for an extraneous purpose.

[4] Mr Gordon Thomson, General Secretary of the Union, gave evidence on behalf of the Union. Mr Nicholas Gan, Chief Operating Officer for Phosphate Resources, gave evidence on behalf of Phosphate Resources.

[5] At the conclusion of the hearing on 31 October 2019, I advised the parties that I would reserve my decision. Later in the evening I issued an Order. 3 Having considered the materials filed and the evidence given in this matter, as well as the submissions of the parties, I was satisfied at the time of making the Order4 that the Unions had been, and are, genuinely trying to reach agreement with Phosphate Resources. I have therefore concluded that the requirements for the issuing of an order were satisfied. My reasons follow.

Background

[6] Phosphate Resources operates a phosphate rock mine on the Island. 5 It employs approximately 110 people and its mining workforce is residential.

[7] The current enterprise agreement covering 70 of Phosphate Resources’ employees is the UCIW/Phosphate Resources Ltd (t/as Christmas Island Phosphates) Enterprise Agreement 2015 6 (the Agreement), which has a nominal expiry date of 31 December 2018.

[8] Mr Thomson, bargaining representative for the Union, gave evidence that Phosphate Resources had agreed to negotiate a replacement agreement in November 2018. 7 The proposed agreement would cover the same 70 employees in the mining operations.8 On 12 November 2018, Phosphate Resources issued a notice of representational rights,9 and on 28 November 2018, the Union submitted a log of claims.10

[9] Mr Thomson’s evidence was that while some discussions were said to have been had in the November 2018 period, no offers were made or accepted during that time as Phosphate Resources had expressed concern about the uncertainty of the phosphate market. 11 Mr Thomson said that both parties agreed to reconvene in the new year.12

[10] Mr Gan, who was the bargaining representative for the company, stated that bargaining meetings had occurred on 28-30 November 2018, 9 December 2018, 14 December 2018, 21 December 2018, 5 March 2019 and 7 March 2019. 13 Phosphate Resources produced copies of the minutes of meetings.

[11] Mr Gan gave evidence that on 20 December 2018, he wrote to the Union and offered a proposal to reach agreement on a new enterprise agreement. 14 He said that as a result of bargaining meetings in late 2018 and early 2019, there were some matters that had been agreed.15 On 1 March 2019, Mr Gan stated that he wrote to Mr Thomson setting out Phosphate Resources’ response to the Union’s claims and noting the matters agreed.16

[12] Mr Thomson stated that in March 2019, the parties had had discussions and exchanged written agreement proposals. 17

[13] Phosphate Resources put an agreement to the vote on 29 March 2019, 18 which the employees rejected.19

[14] Mr Thomson stated that in April 2019, Phosphate Resources met with the Union bargaining representatives to discuss its ongoing concerns about the market conditions for phosphate. 20 Mr Thomson said that Phosphate Resources expressed cautious optimism about its marketing strategies and hopes that the prospects of the company might improve – but it was constrained by continuing uncertainty.21 According to Mr Thomson, the Union bargaining representatives proposed the suspension of negotiations for a six month period.22

[15] Mr Gan stated that after the unsuccessful vote, further bargaining meetings were held on 4 April 2019 and 6 May 2019. 23 Mr Gan gave evidence that at the meeting on 4 April 2019, he stated that there would be an interim board meeting to discuss the financial position of the company and, after that meeting, Phosphate Resources would reassess the enterprise agreement position.24 Mr Gan communicated at the meeting that Phosphate Resources ‘was no longer in the same financial position it had been when the original offer was made in December 2018 … the Proposed EA was withdrawn.’ At the meeting on 6 May 2019, Mr Gan’s evidence was that he suggested to the Union that if the Union wanted Phosphate Resources to come up with a better position, the company would need to see how the market conditions played out.25

[16] Correspondence was sent to employees, dated 10 May 2019, in which it was conveyed ‘[T]he Company and the UCIW have now agreed to suspend negotiations and resume in six months’ time.’ 26

[17] Mr Thomson reported receiving correspondence from Mr Gan on 16 September 2019, confirming an agenda for a meeting to recommence bargaining, and to discuss the restructuring plans of the company. 27 Mr Thomson said that a series of bargaining meetings continued through September and October 2019 – with three days of bargaining in September, and further bargaining on 22, 23, 24 and 25 October 2019.28 Mr Thomson stated that the Union had exchanged written proposals on the subjects of discussion, and the Phosphate Resources had maintained minutes of the meetings.29

[18] Mr Gan confirmed that there had been subsequent meetings between the parties on 18 September and 19 September 2019. 30 Discussions were said to have related to proposed changes to shift structures at the drying plant and a proposed new redundancy clause in the Agreement.31 However, Mr Gan’s evidence was that the central discussion in the September meetings was over rostering arrangements.32 Mr Gan stated that the second discussion point had been a proposed change to the redundancy clause in the Agreement, with Phosphate Resources proposing an amended redundancy clause in the new proposed agreement.33 Mr Gan stated that while the redundancy clause topic originated in discussion for a new enterprise agreement, once the discussions about restructuring commenced, the discussion on the clause shifted quickly into proposals around exit packages for employees impacted by the restructure.34

[19] In his witness statement, Mr Gan referred to emails that had passed between him and Mr Thomson. Amongst those emails was one dated 27 September 2019, time stamped 16:53hrs. In this email, Mr Gan referred to the company’s response to Mr Thomson’s written document provided the week prior. There was a proposal for a further meeting on 8 October 2019, to allow Phosphate Resources the opportunity to seek legal advice on the redundancy clauses, which would be put to Mr Thomson once received. On 8 October 2019, Mr Thomson responded asking whether the legal advice on the redundancy clauses had been received. 35

[20] On 15 October 2019, Mr Gan emailed Mr Thomson about a dispute regarding personal leave, but in addition had referred to the changes to the redundancy clause. 36 The proposed redundancy clauses were purported as separating genuine redundancy from a 15 year ex gratia payment, outlining the approach for new employees, and the benefits such clauses would bring regarding tax. Furthermore, in that same email Mr Gan stated ‘provide for a 0% increase in 2020, and a 1% increase in Jan 2021 along with a 5% increase in COLA.’37

[21] On 23 October 2019, Mr Thomson emailed Mr Gan an attachment that was referred to as a ‘marked up doc response to your redundancy clause proposal.’ 38 On 27 October 2019, Mr Gan emailed Mr Thomson two documents, one of which was the ‘updated redundancy clauses, with mark ups and comments from Legal.’39 Mr Gan asked that Mr Thomson look at them, and reply with his comments.40

Threshold

[22] It is not in dispute that the Union:

a) is a bargaining representative and is therefore entitled to make the application;

b) had made a proper application as required by the Act and met the documentary and notice requirements for the application; and

c) was not prevented from bringing the application by virtue of s 438 given the nominal expiry of the Agreement.

[23] It was confirmed that Phosphate Resources was provided with a copy of the application within 24 hours of it being made, as required by s 440 of the Act.

[24] I am satisfied that the threshold requirements have been met.

Statutory framework

[25] Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. 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.

[26] 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. 41 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.42 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.43

Consideration

Ground one – insufficient evidence to support the application

[27] Phosphate Resources submitted that with respect to these types of application the applicant carried the burden of proof when it comes to establishing that they are ‘genuinely trying to reach an agreement’. 44 Referring to the Statutory Declaration of Mr Thomson, Phosphate Resources observed a failure to attach correspondence that had been referred to at paragraphs 5 and 6, a failure to provide evidence of that which was discussed at meetings, and there being no evidence of an ‘exchange’ of alleged written proposals. In summary, it was contended that the Statutory Declaration of Mr Thomson lacked documentary and corroborative evidence and was devoid of critical particulars relevant to the matters to be determined under s 443.

[28] With regard to the evidence adduced by Mr Thomson some of the observations of Phosphate Resources were not misplaced. However, several circumstances were clearly at play. Christmas Island is by its very geography a remote location and Phosphate Resources is said to be the largest private employer on the Island. The evidence presented by both the Union and Phosphate Resources indicated that whilst bargaining had been on foot, there had, in addition, been a restructuring of the business resulting in multiple redundancies. Clearly the attention of both Phosphate Resources and the Union had been directed to this restructuring process over the course of late October 2019, and provides the background against which this application is made.

[29] In the Statutory Declaration of Mr Thomson he had noted that Phosphate Resources had maintained minutes of the meetings – whether pertaining to bargaining or the restructuring of the business, and Phosphate Resources had produced in its evidence such documentation. While Mr Thomson had not produced all the evidence of bargaining proposals between the parties, he provided oral evidence testifying to such meetings, and had provided several drafts of a redundancy clause with tracked changes and explained their providence. Further there was a comprehensive compilation of the passage of proposals between the parties regarding bargaining for the Agreement, albeit the focus of the proposals did appear for a period to centre on the proposed redundancy clause - and such evidence was adduced by Phosphate Resources.

[30] However, on balance, I do not consider that the evidence of Mr Thomson was such that it was insufficient to support the application made and should result in the application being defeated.

Ground two – the Union is not ‘genuinely trying’

[31] Phosphate Resources submitted that in the current circumstances, one would expect evidence that major items forming part of the proposed enterprise agreement would have been clearly articulated by at least one of the parties and that sufficient steps to reach agreement had been taken. 45 It was Phosphate Resources’ view that the Union had failed to provide evidence of such matters in support of the application, or particulars thereof. Phosphate Resources pointed to there being no agreement attached to the Statutory Declaration of Mr Thomson, or evidence regarding claims or demands made, or the effect of those claims and details of the bargaining process, save vague and generalised conclusions.

[32] Referring to the two temporal elements in s 443, Phosphate Resources submitted that the last bargaining meeting occurred on 6 May 2019. It stated that while there were meetings held on 22 and 23 October 2019, which were relevant to the proposed redundancy provisions in a proposed agreement, the meetings were ones regarding the current restructuring and redundancy process of the company.

[33] Drawing upon the conduct of the Union’s bargaining representative, Phosphate Resources put forward that there was no evidence that this bargaining representative had been acting consistently with the Union members’ position or wishes and the absence of such evidence may therefore suggest a bargaining representative is not genuinely seeking an agreement. 46

[34] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. As was expressed in Total Marine Services Pty Ltd v MUA, 47 it is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters, but ultimately the test in s 443 must be applied.48

[35] The evidence before me shows that the parties had advanced bargaining to a stage, come March 2019, where the parties had had discussions and exchanged agreement proposals. 49 By 29 March 2019, Phosphate Resources put an agreement to the vote,50 which the employees rejected.51 Due to economic circumstances there was a mutually agreed hiatus in the bargaining.52 However, leading up to that time there was correspondence between the parties that indicated clearly that the Union had articulated claims.53 Following the six month hiatus, Phosphate Resources indicated that the proposed agreement that had previously been voted upon was withdrawn.54

[36] On return to the bargaining table, Mr Gan’s evidence was that there were meetings on 18 and 19 September 2019, in which a proposed redundancy clause for the new agreement was discussed, albeit within the confines of a meeting regarding proposed changes to shift structure at the drying plant under the Agreement. With regard to meetings held in October, Mr Gan gave evidence that all pertained to the restructuring process and not bargaining for the new agreement.

[37] The evidence before me demonstrates that the Union has articulated claims and provided responses to claims made by Phosphate Resources during the course of bargaining. While the parties have been pre-occupied by the latest turn of events regarding the financial viability of Phosphate Resources, there has, nevertheless, been communication regarding the redundancy clause to be included in the proposed agreement, in addition, perhaps to percentage wage increases.

[38] While at times discussions concerning agreement proposals may have occurred in the context of meetings pertaining to other matters this is not, in and of itself, suggestive that the Union is not genuinely trying to reach agreement with Phosphate Resources. It is apparent that at present there are two processes running parallel – a restructuring of the business and the bargaining of an enterprise agreement. In the circumstances, it is unsurprising that during the month of October 2019, bargaining has been limited to the exchange of proposals via correspondence and that the subject matter has been limited to a clause that appears extraordinarily pertinent in the circumstances – redundancy. Further, given the restructuring process, the necessity to inform employees of redundancies, and the Phosphate Resources’ intent to introduce further changes within its operations under the Agreement, it is readily conceivable that less time would be allocated to the bargaining process for a new agreement.

[39] It is not the case that the application has been prematurely made given the history of negotiations to date. Further, given Phosphate Resources withdrew the proposed agreement that was unsuccessful in gaining traction with the relevant employees, it is again plausible that, at this point, there may be a limited number of claims under discussion.

[40] In approaching an assessment as to whether the applicant is ‘genuinely trying,’ it must also be borne in mind that the expression is concerned with the genuineness of efforts by the bargaining representative to achieve the goal of an enterprise agreement that meets the approval requirements of the Act. I do not perceive there to be evidence before me that indicates that the Union lacks motivation or intention to reach an agreement with Phosphate Resources. The correspondence indicates timely responses to the claim(s) currently under consideration.

Ground three – the pursuit of an extraneous purpose

[41] Relying on the passage of the Full Bench in JJ Richards v TWU, 55 Phosphate Resources submitted that where an ‘applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act’, then the applicant cannot be said to be genuinely trying to reach an agreement in terms of s 443.

[42] Phosphate Resources contended that the real reason the application had been made was in support of the Union’s position in relation to the Phosphate Resources’ restructuring, consequential redundancies, roster changes and the Union’s discontent about these matters, rather than anything connected to advancing permitted terms in any proposed enterprise agreement.

[43] Describing the action of a number of Union members that took place a week prior to the making of this application (25 October 2019), Phosphate Resources submitted that it was no mere coincidence that Union members had engaged in unprotected industrial action, which was entirely about and caused by the restructuring/redundancy process. Phosphate Resources contended that such action occurred a week prior, and a couple of days later a protected action ballot order application was made (subsequently withdrawn), followed by the application that is now on foot.

[44] Having considered the written and oral evidence of the witnesses, in addition to the submissions of both parties, I am unpersuaded that the Union has made the application in pursuit of an extraneous purpose. There is insufficient evidence before me to draw that conclusion. While Phosphate Resources relies in part on the timing of this application, a prior application, and the changes in its operations. It is of course the case that bargaining is occurring parallel to the restructuring, however, there is no evidence before me that persuades me that an extraneous purpose is pursued.

[45] The parties clearly provided disparate perceptions as to what occurred on the morning of 25 October 2019, regarding the purported industrial action. During the course of the hearing much time was taken by Mr Thomson to explore the perceptions concerning what had occurred that morning. However, the activities on 25 October 2019 were in my view unrelated to the bargaining process and were related to the restructuring process that was underway. Further, there was insufficient evidence before me to make any finding regarding whether the activities described constituted industrial action, or for that matter, unprotected industrial action. Furthermore, such activities were, in my view, a side issue and did not detract or weaken the Union’s contention that it was genuinely trying to reach agreement with Phosphate Resources, and further did not demonstrate that this application was brought in the pursuit of an extraneous purpose.

Extension of the three day period

[46] 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 Phosphate Resources to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance.

[47] The approach to exceptional circumstances in this context was discussed by Vice President Lawler in CEPU v Australian Postal Corporation 56 which concerned an equivalent provision of the Workplace Relations Act 199657:

[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.

[48] While I have acknowledged that Christmas Island is remotely located, the evidence of Phosphate Resources was that there were two commercial flights to the Island each week on a Tuesday and a Friday. 58 With the exception of Mr Gan giving evidence that the seating capacity of the commercial flights was 80-100, I was not provided with evidence of seating numbers. Mr Gan stated that Phosphate Resources had used the flights previously to bring small numbers of individual contractors to the Island. However, I note that the number of employees said to be covered by the Agreement is approximately 70. Therefore, I do not consider the capacity of the commercial flights as a fetter to the timely engagement of a contingency workforce, and while Phosphate Resources referred to the cost of a one-way flight to the Island, I do not consider this cost prohibitive.

[49] With regard to the viability of accommodation, it is evident from Mr Gan’s witness statement that there is accommodation available for contractors and employees. While Mr Gan has provided an estimate of the number of beds available and owned by Phosphate Resources, he has in addition referred to the availability of private accommodation. I do not consider there to be a dearth of accommodation such that this would impact on any defensive action that Phosphate Resources may take.

[50] Phosphate Resources outlined the impact on productivity and profitability if the proposed stoppages took place. However, it is not unusual or uncommon for such an impact to occur. Further, it is not the case that Phosphate Resources is absent the capacity to stockpile. 59

[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 Phosphate Resources to take appropriate defensive action against the diminution of the effectiveness of the Union members’ bargaining power that is contemplated by the scheme of the Act. 60 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 action.61

[52] In brief, Phosphate Resources has not met the onus of satisfying the Commission that there are, 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.

Conclusion

[53] Having considered the materials filed and the evidence given in this matter, as well as the submissions of the parties, I was satisfied at the time of making the Order 62 that the Union had been and, at the time of the filing of the application, were genuinely trying to reach agreement with Phosphate Resources.

DEPUTY PRESIDENT

Appearances:

G Thomson for the Union of Christmas Island Workers

J Raftos of Counsel for Phosphate Resources Limited T/A Christmas Island Phosphates

Hearing details:

2019.
Perth:
October 31.

Printed by authority of the Commonwealth Government Printer

<PR713859>

 1   Witness Statement of Nicholas Gan (Gan Statement) at [6].

 2 Gan Statement at [7].

 3   PR713860.

 4   PR713860.

 5 Gan Statement at [8].

 6   [2016] FWCA 538; AE417586.

 7   Form F34B Statutory declaration of Gordon Thomson in support of an application for a protected action ballot order (Statutory Declaration of Mr Thomson) at [2].

 8 Gan Statement at [17].

 9 Gan Statement at [31].

 10 Gan Statement at [36].

 11 Statutory Declaration of Mr Thomson at [2].

 12 Statutory Declaration of Mr Thomson at [2].

 13 Statutory Declaration of Mr Thomson at [32].

 14 Gan Statement at [37].

 15 Gan Statement at [38].

 16 Gan Statement at [39].

 17 Statutory Declaration of Mr Thomson at [3].

 18 Gan Statement at [45].

 19 Statutory Declaration of Mr Thomson at [3].

 20 Statutory Declaration of Mr Thomson at [4].

 21 Statutory Declaration of Mr Thomson at [4].

 22 Statutory Declaration of Mr Thomson at [4].

 23 Gan Statement at [46].

 24 Gan Statement at [47].

 25 Gan Statement at [50].

 26   Gan Statement NG18.

 27 Statutory Declaration of Mr Thomson at [5].

 28 Statutory Declaration of Mr Thomson at [6].

 29 Statutory Declaration of Mr Thomson at [6].

 30 Gan Statement at [58].

 31 Gan Statement at [58].

 32 Gan Statement at [59].

 33 Gan Statement at [60].

 34 Gan Statement at [60].

 35   Gan Statement at [60]; NG21.

 36   Gan Statement NG-22.

 37   Gan Statement NG-22.

 38   Gan Statement NG-23.

 39   Gan Statement NG-24.

 40   Gan Statement NG-24.

 41   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 at [57].

 42   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].

 43   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210 at [54].

 44   John Holland Pty Ltd v AMWU (2010) FWAFB 526 [27]; CEPU v Kraft Foods Ltd (2010) FWA 4404 at [34].

 45   Total Marine Services Pty Ltd v MUA[2009] FWAFB 368 at [31] and [32].

 46   CEPU v Engine Fire Services Australia Pty Ltd [2018] FWC 5000.

 47   [2009] FWAFB 368.

 48 Ibid [31].

 49 Statutory Declaration of Mr Thomson at [3].

 50 Gan Statement at [45].

 51 Statutory Declaration of Mr Thomson at [3].

 52 Gan Statement at [45].

 53   Gan Statement at [45] NG-14.

 54   Gan Statement at [47]

 55   [2010] FWAFB 9963.

 56   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848.

 57   Workplace Relations Act 1996 (Cth) s 463(5).

 58 Gan Statement at [95].

 59 Gan Statement at [118].

 60   Australian Federation of Air Pilots v Alliance Airlines Pty Ltd T/A Alliance Airlines[2017] FWC 6748 at [12].

 61   Ibid.

 62   PR713860.