United Firefighters' Union of Australia v Mr Gavin Wright
[2020] FWCFB 3315
•24 JUNE 2020
| [2020] FWCFB 3315 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
United Firefighters' Union of Australia
v
Mr Gavin Wright; Country Fire Authority
(C2020/1021)
United Firefighters' Union of Australia
v
Country Fire Authority; Mr Gavin Wright
(C2020/1745)
Country Fire Authority
v
United Firefighters' Union of Australia; Mr Gavin Wright,
(C2020/1931)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 24 JUNE 2020 |
Appeal against decision [2020] FWC 705 of Commissioner Bissett at Melbourne on 14 February 2020 - Appeal against decision [2020] FWC 1219 of Commissioner Bissett at Melbourne on 12 March 2020 in matter number C2019/5842 - Appeal against decision [2020] FWC 1219 of Commissioner Bissett at Melbourne on 12 March 2020 in matter number C2019/5842.
Introduction and Background
[1] This decision deals with three appeals for which permission is required under s.604 of the Fair Work Act 2009 (Act) lodged by the United Firefighters’ Union of Australia (UFU) and the County Fire Authority (CFA). The first notice of appeal dated 21 February 2020 (February Appeal), lodged by the UFU, appeals against a decision of Commissioner Bissett made on 14 February 20201 (February Decision). The second notice of appeal dated 23 March 2020 (March Appeal), also lodged by the UFU, appeals against a decision of the Commissioner made on 12 March 20202 (March Decision). The third notice of appeal dated 27 March 2020, lodged by the CFA, also appeals against the March Decision (CFA Appeal).
[2] By way of background to the appeals, Mr Gavin Wright, an employee of the CFA, made an application on 16 August 2019 for the Commission to deal with a dispute in accordance with the dispute settlement term of the Country Fire Authority/United Firefighters Union of Australia Operational Staff Agreement 2010 (Agreement). An amended or revised application was filed with the Commission on 23 September 2019. Mr Wright did not list the UFU as a respondent to the application.
[3] The Commissioner convened a conference in relation to the application on 13 December 2019. The UFU attended the conference.
[4] On 9 January 2020 the UFU applied for orders that it be joined as a party to the application or, alternatively, that it be given permission to intervene for the purpose of putting evidence or submissions as required to protect its interests.3 The UFU also sought that the Commissioner disqualify herself from hearing the matter any further, including the joinder application, on apprehended bias grounds or, alternatively, that the Commissioner not hear the matter further because of the views she expressed about the merits of the application during the conference.4 The recusal application was supported by the statements of Ms Gina Moore,5 a UFU Industrial Officer who attended the conference, and Commander Owen Tudball,6 an employee of the CFA, who did not. Ms Moore’s statement set out some allegations concerning the Commissioner’s conduct during the conference about which the UFU complained.
[5] Directions for the filing and exchange of materials were also made.7 The manner in which the UFU’s applications would be determined was also set out. It is uncontroversial that the UFU did not seek its applications be dealt with in this way. In its written submissions dated 20 January 2020 filed pursuant to the directions, the UFU had expressed concerns about this approach.8
[6] By email correspondence from the Commissioner’s Associate sent on 23 January 2020, the parties and the UFU were advised as follows:
“The Commissioner has only now had the opportunity to review materials submitted by the UFU to the extent that they go to process and the Statement issued by the Commission on 14 January 2020 (and Mr Wright’s reply).
It is the Commissioner’s intention to determine the application of the UFU that it be heard (‘joined’) on the substantive arbitration of the application of Mr Wright.
The Commissioner understands that the UFU consider that she should recuse herself from such a determination on the grounds of apprehended bias.
In considering the application from the UFU that it be heard it is the Commissioner’s intention to determine whether she should recuse herself from determining that matter only. If she does not determine to recuse herself she will determine if the UFU should be heard on the arbitration.
Depending on the outcome of that consideration the next steps in the arbitration of Mr Wright’s substantive application before the Commission will be determined (including, if necessary, the further recusal application).
For these reasons the directions issued by the Commission on 14 January 2020 will be amended. The form of the amendment will be determined following advice from the UFU if it wishes to make any further submissions as to whether I should recuse myself from determining if it should be heard on Mr Wright’s application or if it relies on the material already filed by it on 9 January 2020. Such advice should be made to my chambers by 9.00am Friday 24 January 2020. On receipt of that advice further directions will be issued.”9
February Decision
[7] In the February Decision the Commissioner dealt with and decided the issues identified in the fourth paragraph of the email reproduced above. The Commissioner declined to recuse herself (at [36]) for the reasons set out at [21]-[35] of the February Decision.
[8] The Commissioner also rejected the UFU’s application that it be joined as a party to Mr Wright’s application (at [53]). The Commissioner reasoned that clause 15.2.5 of the Agreement on which the UFU relied in support of its joinder application, did “no more than invite the union to a meeting with an aggrieved employee” and did “not provide any right to the UFU as a party to the dispute between the individual and the CFA.”10 The Commissioner allowed the UFU to intervene in the application to make submissions in relation to the matter in dispute (at [60]) but on a limited basis as she explained at [61] of the February Decision.
[9] Following publication of the February Decision, the Commissioner issued directions to deal with whether she should, on apprehended bias grounds, recuse herself from further dealing with Mr Wright’s application.
March Decision
[10] In the March Decision the Commissioner also declined to recuse herself from hearing and determining Mr Wright’s application (at [30]) for the reasons set out at [18]-[23] of that decision.
[11] The Commissioner also dealt with and rejected the UFU’s alternative contention that for the reasons stated in Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd11(Watpac), the Commissioner should not arbitrate the dispute the subject of Mr Wright’s application. Her reasons for so doing are set out at [25]-[29] of the March Decision.
Appeal grounds
[12] The various appeal grounds across the three appeals may conveniently be grouped and summarised as follows:
Failure to take into account relevant considerations – apprehended bias application
[13] The UFU contends the Commissioner erred at the very outset in deciding to deal with the UFU’s recusal application by considering separately whether to recuse herself from hearing its joinder application and whether to recuse herself from hearing Mr Wright’s application. This was because:
• the decision produced an artificial and erroneous process;
• it isolated the evidence of apprehended bias relating to the joinder application from the evidence relating to the merits of Mr Wright’s application;
• it is the evidence as a whole which informs the opinion that the reasonable lay observer might form as to the Commissioner’s ability to bring an impartial mind to the consideration of the matters which the UFU would seek to raise in the matter, and this was not considered.
[14] In the result, the Commissioner is said to have failed to take into account relevant evidence in both decisions the subject of the UFU appeals.
Additional apprehended bias grounds
[15] The UFU contends the Commissioner erred in failing to recuse herself from dealing with its joinder application on two further bases. First, the Commissioner erred in her application of the relevant legal principles including her finding at [35] of the February Decision. Secondly, on the basis of the Commissioner’s statements as set out in Ms Moore’s statement, the hypothetical observer might reasonably apprehend that they demonstrate that the Commissioner might not bring an impartial and unprejudiced mind to the task of deciding the UFU's joinder application. The UFU thus contend that the Commissioner erred in failing to so find.
[16] As to the Commissioner’s refusal to recuse herself from further dealing with Mr Wright’s application the UFU contends the Commissioner erred because:
• her conduct during the conciliation and the content of her reported statements give rise to circumstances where a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the resolution of Mr Wright’s application;
• at [19] and [23] the Commissioner incorrectly attributed to the UFU a submission based on a misreading of the penultimate sentence in [14] of the UFU’s 21 February 2020 submissions and so:
◦ wrongly concluded her reported statements about issues that would arise in the arbitration were irrelevant to this recusal application because they occurred in her interactions with Mr Wright and the CFA or between the Commissioner and Mr Wright; and
◦ failed to take into account relevant matters because, as a participant in the arbitration (whether as a party or intervenor) the UFU is entitled, as a matter of natural justice, to a fair and impartial arbitration of the issues in dispute irrespective of which party has raised them.
• at [20], [21] and [23] the Commissioner erroneously took into account that the CFA has not raised concerns of apprehended bias because this is an irrelevant matter;
• at [20] the Commissioner proffered and erroneously relied on her subjective reasons for making various comments during the conference. Her subjective views are irrelevant considerations; and
• at [22] and [23] the Commissioner erred in characterising the dispute the subject of Mr Wright’s application as being about whether Mr Wright should be interviewed for a particular position rather than more broadly about the “Mandatory Eligibility Criteria” as it related to the advertising and recruitment and selection of the 10/14 Commander positions. By doing so, the Commissioner failed to take into account a relevant consideration.
The joinder and intervention grounds
[17] The error alleged by the UFU is concerned with the proper construction and application of clauses 15.2.5 and 15.2.6 of the Agreement. By this ground the UFU contends the Commissioner erred in concluding that the provisions of the dispute settlement term of the Agreement do not result in the UFU being party to the dispute raised by Mr Wright and the application referring the dispute to the Commission.
[18] Alternatively, the UFU contends the Commissioner erred in restricting the terms of the UFU's intervention in the matter set out at [61] of the February Decision. It says the decision to restrict its involvement was in all the circumstances, unreasonable or plainly unjust.
[19] The UFU also contends there was a denial of procedural fairness in relation to the Commissioner’s decision to confine the UFU’s intervention in the manner set out at [61] of the February Decision.
Grounds contending errors on the basis of the decision Watpac
[20] The UFU’s alternative contention to the apprehended bias grounds is that the Commissioner should not have proceeded to deal with Mr Wright’s application for the reasons stated in Watpac. By these grounds the UFU contends the Commissioner’s discretion miscarried because she failed to take into account relevant considerations and took into account irrelevant considerations as follows:
• at [26] the Commissioner took into account the irrelevant consideration that the UFU is not “actually a party” because the entitlement to a fair hearing is not confined to “actual parties”;
• in any event, the CFA as an “actual party” supported this application and the Commissioner did not take this into account;
• at [27] the Commissioner is said to miss the point because the thrust of the statement in Watpac is about the nature and extent of the Commissioner’s engagement with the parties. The description of the conference in Ms Moore’s statement satisfies the threshold for the Commissioner to have stepped aside; and
• at [28] the Commissioner misstated the submissions of the UFU and overlooked [32] of the UFU’s 21 February 2020 submissions where specific grounds are advanced.
[21] The UFU also contends the decision was in all the circumstances, unreasonable or plainly unjust.
[22] The CFA’s notice of appeal sets out four appeal grounds which also engage with the decision in Watpac. The CFA contends the Commissioner erred:
• in failing to recuse herself from arbitrating Mr Wright's application because she was involved in the conciliation conference on 13 December 2019;
• in her application of Watpac;
• in her application of Watpac in circumstances where in addition to her participation in the conciliation conference (as addressed in the March Decision), the UFU had also separately made an application for the Commissioner to recuse herself on the grounds of an apprehension of bias; and
• because her decision not to recuse herself from the arbitration of Mr Wright's application was in all the circumstances, unreasonable or plainly unjust.
[23] The appeals were heard together. Mr Wright elected not to file any submissions and did not participate in the hearing. He observed the hearing and had earlier advised that he relies on submissions filed on his behalf in the proceedings before the Commissioner.
Consideration
[24] Since reserving our decision, Mr Wright has advised the Commissioner that he no longer wishes to proceed with his application and has discontinued it. Further hearing of that application had been adjourned pending the outcome of these proceedings. We sought the views of the parties whether in light of this development there was any utility of determining the appeals. Utility is obviously a question informing whether it is in the public interest that permission to appeal be granted, or whether permission should otherwise be granted. The UFU, supported by the CFA, maintains there remains a utility in determining the appeals. As to the joinder and intervention grounds of appeal against the February Decision, the UFU contends:
• determining these grounds will have ongoing relevance and importance in the operation of the dispute resolution procedure under the Agreement;
• the Agreement is the subject of an application under Part 2-8 of the Act, pending the creation of Fire Rescue Victoria in accordance with the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (Vic); and
• the February Decision is productive of uncertainty and there will be a need for further litigation to clarify the position of the UFU under the dispute resolution term of the Agreement.
[25] As to the apprehended bias appeal grounds, the UFU contends there is an important public interest consideration in the Full Bench ruling on those grounds. It says the public interest arises because in the absence of a Full Bench ruling, the February and March Decisions will stand uncorrected in the public records of the Commission and may be relied upon by others as authority or precedent or for guidance, as to the type of conduct that is permitted and acceptable.
[26] The UFU contends the related March Decision appeal grounds, which are based on the decision in Watpac have on-going utility because the issue discussed in Watpac is one raising some controversy and much uncertainty in the workings of the Commission. As the issue was fully argued before the Full Bench, a decision on the issue would have considerable utility in the public interest by providing needed clarity and certainty.
[27] We are not persuaded there is any public interest or other basis to grant permission to appeal on the apprehended bias grounds or the Watpac grounds. The “justiciable issue”, that is, the merits of Mr Wright’s application that the Commissioner was to arbitrate by reason of her refusal to recuse herself or otherwise cease to preside, is no longer live as the application has been discontinued. Neither decision made by the Commissioner concerning apprehended bias nor the application of Watpac is binding on another member of the Commission. There can be no concern of its ongoing application or any prejudicial effect on the UFU or the CFA. To the extent that the decisions remain “uncorrected in the public records of the Commission and may be relied upon by others,” that is not reason enough to enliven the public interest in relation to appeals affecting the rights of parties or intervenors in respect of an application which has not been determined and has since been discontinued.
[28] In any event applications made to a member of the Commission for recusal on apprehend bias grounds are not made by embarking on a comparison with what another member in a particular case might have done. Such applications when made are to be determined by application of apprehended bias principle which (subject to qualifications relating to waiver and necessity) is as stated in Ebner v The Official Trustee in Bankruptcy12:
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”13 [Our emphasis]
[29] The application of the principle in the context of a member of the Commission involves two steps. The first is to identify what it is said might lead the member to decide the particular questions or a proceeding other than on the merits. The second, no less important step, is to articulate the “logical connection” between the matter or matters identified in the first step and the fear that the member might deviate from the course of deciding the question or proceeding on its merits.14
[30] Application of the principle in a given case is a matter of judgment and evaluation depending on the circumstances.15 The question of an apprehension of bias requires a focus on the issue(s) that the member is called upon to decide.16
[31] In this regard it would be thoroughly unhelpful and irrelevant to focus on what a member in another case has done.
[32] As to the Watpac appeal grounds, we should indicate we endorse the observations of the Full Bench in Watpac about the undesirability of a member of the Commission proceeding to arbitrate a matter over the objection of a party after having exercised conciliation functions in relation to the matter.
[33] To recap, in Watpac the Full Bench said:
“In our view, once a party to a dispute objects to a member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration. This is particularly the case where the member has participated in private discussions separately with the parties in conciliation, the member has expressed views in conciliation about the merits of the dispute, the member has been made aware of without prejudice settlement offers made in conciliation, or one or more parties have made concessions in conciliation which they are not willing to make in a subsequent arbitration.”17
[34] It is to be remembered that the principal issue in Watpac was whether the Commissioner erred in refusing to recuse herself from further dealing with a dispute by arbitration on the ground of reasonable apprehension of bias by reason of her conduct during conciliation proceedings. The Full Bench dismissed the appeal on that ground holding that no appealable error had been made out.18
[35] The Full Bench made clear the basis for the views it expressed. In expressing this view, the Full Bench was not concerned with a reasonable apprehension of bias. It was concerned about the efficacious conduct of arbitral proceedings. Put another way the concern expressed was that justice must not only be done but must also be seen to be done in the context of a statutory mandate that the Commission’s functions and powers are to be exercised in a manner that is fair and just, open and transparent. 19 Strikingly similar concerns about mixing conciliation and arbitral functions in a termination of employment matter before the Commission were expressed by a Full Court of the Federal Court of Australia in Heap, in the Matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission20 where it was observed:
“Even if, as a matter of law, it is open to a member of the Commission exercising the function of arbitration with respect to a termination of employment to engage in conciliation . . . there is every reason to take the view that the member should be reluctant to do so. The possibility that the member might be told something in conciliation that would influence his or her decision as an arbitrator is so great that it ought to lead to extreme reluctance to mingle the two functions. There is also the risk that what the member says will exhibit prejudgement, will be perceived (rightly or wrongly) to be applying undue pressure, or will be seen as endeavouring to assist one side or the other. The risk that the exercise of the conciliation function in conjunction with the arbitration process might taint the latter is exacerbated where the member of the Commission confers privately with one party only.”21 [Our emphasis]
[36] The statement of the Full Court speaks for itself. In the context of an appeal against a decision by the Commissioner to proceed to arbitrate a dispute having exercised conciliation functions, which will now not occur because Mr Wright’s application has been discontinued, we do not consider that it is in the public interest to grant permission to appeal on these grounds. We are also not persuaded in the circumstances that there are other discretionary grounds on which we ought to grant permission to appeal.
[37] We are however persuaded that there is on-going utility in the joinder appeal ground and that it is in the public interest to grant permission to appeal on that ground, because of the effect of that appeal ground on the UFU’s rights under the dispute settlement term of the Agreement which extend beyond just the discontinued application. We deal with that ground below.
[38] Whether the UFU was a party to the dispute the subject of Mr Wright’s application essentially involved interpreting the Agreement. So much of the Commissioner’s February Decision as concerns this issue, was not a discretionary decision. The conclusion reached was either correct or it was not. As we earlier noted, the Commissioner declined to allow the UFU to participate in the proceedings as a party to the dispute because she reasoned that clause 15.2.5 of the Agreement on which the UFU relied did “no more than invite the union to a meeting with an aggrieved employee” and did “not provide any right to the UFU as a party to the dispute between the individual and the CFA.”
[39] Much like construing a statute, the construction of provisions in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an enterprise agreement was made and in which it operates may also be relevant.
[40] The Agreement covers and applies to the UFU.22 Clause 15 of the Agreement contains a dispute resolution process. Clause 15.2 contains a number of mandatory steps that are to be followed in relation to disputes of a kind described broadly in clause 15.1.
[41] The object of the several mandatory steps found in clauses 15.2.1-15.2.6 is set out in clause 15.2 as follows:
“To ensure effective consultation between the employer, its employee(s) and the union on all matters, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:” [Our emphasis]
[42] The fourth and fifth steps in the procedure are engaged after dispute resolution steps taken at a local level have not resolved a relevant dispute. These provide:
“15.2.5. Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the employer, employee(s) and the union within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
15.2.6. Step 5 If the matter is not settled following progression through the disputes procedure it may be referred by the union or the employer to FWA. FWA may utilise all its powers in conciliation and arbitration to settle the dispute.” [Our emphasis]
[43] Clause 15.3 provides a hint at how these provisions are to be applied. It provides:
“15.3. Notwithstanding the words contained in the above sub-clause, the steps of the procedure apply equally to a dispute raised by an employee, the union or Officer in Charge.” [Our emphasis]
[44] It is apparent from the above that, rightly or wrongly, the UFU is given a role in the dispute resolution process of every dispute, whether the dispute concerns or is raised by an employee who is a member of the union or not. Apart from its dispute resolution function, the mandatory steps and in particular the step in clause 15.2.5, serve to ensure effective consultation between the CFA, its employee(s) and the UFU on all matters, whether those matters have been agitated by the CFA, the UFU, one of its members or an aggrieved employee who is not a union member. This is objectively an intended operation of the provisions in clause 15. When clause 15.2.5 is read in the context of the provision as a whole and considered in light of various other provisions of the Agreement which give the UFU higher order rights than those commonly found in enterprise agreements (for example clause 13 dealing with consultation and consensus decision making), it is apparent that clause 15.2.5 is not simply a provision inviting the UFU to a meeting with an aggrieved employee.
[45] Clause 15.2.5 mandates the participation by the UFU in the dispute resolution process. The UFU’s attendance at the meeting convened is not qualified in any way. It is not limited to disputes that it or one of its members has notified. It is not limited to disputes that the CFA might agitate which involve the UFU or one of its members. At that point, if it is not earlier involved, the UFU becomes involved in the dispute. One might say it is then a party to the dispute to be resolved.
[46] Under clause 15.2.6 the UFU may refer any dispute not settled following step 5 in clause 15.2.5 to the Commission for conciliation and arbitration. As a party, the UFU’s ability to be able to refer disputes to the Commission is not limited to disputes it has initiated or that involve only members of the UFU. It is a general right that obtains unless the dispute settles at an earlier stage of the disputes procedure. Such a right seems to us to be consistent with the stated object of the dispute resolution steps.
[47] On a proper construction of the Agreement, the UFU, whether as a party or otherwise, was involved in the dispute the subject of Mr Wright’s application by reason of the provision of clause 15 of the Agreement. It had an unfettered right to participate in proceedings before the Commission involving the matter of Mr Wright’s application.
[48] The Commissioner was in error to conclude otherwise. It is unnecessary for us to consider the grounds relating to the leave to intervene, the Commissioner’s decision to limit the UFU’s participation in the manner described at [60]-[61] of the February Decision, or whether there was any denial of procedural fairness resulting therefrom.
[49] On a rehearing, for the reasons stated, the UFU should, by reason of the terms of clause 15, have been permitted to fully participate in the proceedings dealing with Mr Wright’s application. It is however not necessary to grant the joinder application, because, as Mr Wright’s application has been discontinued, the joinder application falls away.
Conclusion
[50] For the reasons stated we grant permission to the UFU to appeal the February Decision on the joinder ground of appeal and we uphold the appeal on that ground. We otherwise refuse permission to appeal the February Decision. We also refuse the UFU permission to appeal the March Decision. We refuse permission to the CFA to appeal the March Decision. On a rehearing of the joinder application we conclude the UFU is able by reason of the terms of clause 15 to fully participate in the proceedings dealing with Mr Wright’s application however as Mr Wright’s application has been discontinued, the joinder application falls away.
Orders
We order as follows:
1. In C2020/1021:
a. Permission to appeal on ground 3 of the notice of appeal is granted;
b. The appeal is upheld on that ground;
c. Paragraphs [37]-[62] of the decision in [2020] FWC 705 are quashed; and
d. Permission to appeal is otherwise refused.
2. In C2020/1745 permission to appeal is refused.
3. In C2020/1931 permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
H Borenstein QC with J McKenna of counsel for the United Firefighters’ Union of Australia
R Davern of counsel for the Country Fire Authority
Hearing details:
2020
Melbourne (by video conference)
18 May 2020
Further written submissions:
United Firefighters’ Union of Australia, 20 May 2020 and 18 June 2020
Country Fire Authority, 15 May 2020
Printed by authority of the Commonwealth Government Printer
<PR720464>
1 [2020] FWC 705
2 [2020] FWC 1219
3 Joint Appeal Book tab 10
4 Joint Appeal Book tab 11
5 Joint Appeal Book tab 12
6 Joint Appeal Book tab 13
7 Joint Appeal Book tab 1, p 28
8 Joint Appeal Book tab 14, pp 88-89 at [3]-[9]
9 Joint Appeal Book at tab 2, p 29
10 Ibid at [52]
11 [2019] FWCFB 3855
12 (2000) 205 CLR 337
13 Ibid at [6]
14 (2000) 205 CLR 337 at [8]
15 Kirby v Centro Properties Limited (No 2) (2011) 202 FCR 439 at [17] and [23]
16 Ibid; see also British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97]
17 [2019] FWCFB 3855 at [47]
18 Ibid at [32]
19 Fair Work Act 2009, s 577(a) and (c)
20 [2003] FCAFC 36
21 Ibid at [27]
22 Fair Work Act 2009, s.52, s.53(2)(a) and s.201(2); Re Country Fire Authority[2010] FWAA 8164 at [3]
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