[2016] FWC 7184
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Commonwealth of Australia represented by the Department of Immigration and Border Protection
v
CPSU, the Community and Public Sector Union
(B2016/1065)

COMMISSIONER WILSON

MELBOURNE, 6 OCTOBER 2016

Application for an order to suspend or terminate protected industrial action pursuant to s.424.

INTRODUCTION

[1] An application was made to the Fair Work Commission by the Commonwealth of Australia, as represented by the Department of Immigration and Border Protection (the DIBP), on Friday, 30 September 2016 seeking an order pursuant to s.424 of the Fair Work Act 2009 (the Act) that would suspend protected industrial action being taken by members of the Community and Public Sector Union (CPSU) employed within the DIBP until 24:00 hours on 21 November 2016.

[2] The application was the subject of an urgent hearing before me the same day, Friday, 30 September 2016, in which an interim order was issued by me suspending industrial action until further notice. 1 That order was issued upon application by the Commonwealth and with the CPSU advising that it neither consented to nor opposed the making of such an order.

[3] Section 424(3) requires that the FWC must, as far as practicable, determine such an application within 5 days after it is made, and s.424(4) provides that in the event the Commission is unable to determine the application within that period, it must, within the 5 day period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. With the application having been made at 12:25 PM on 30 September 2016, reference to the Acts Interpretation Act 1901 (Cth) leads to the conclusion that the 5 day period referred to within s.424(3) expired, in this instance, at midnight on Wednesday, 5 October 2016. 2

[4] The matter was the subject of a hearing before me on Wednesday, 5 October 2016 for the purposes of determining the application.

[5] In the hearing, the DIBP argued for a suspension of protected industrial action until 21 November 2016, in order to allow time for the DIBP to conduct a further ballot of employees for its proposed enterprise agreement, which it considers has a real prospect of being agreed to by a majority of employees. 3 Although the DIBP sought the suspension of protected industrial action, it opposed its termination.

[6] While the CPSU acknowledged the jurisdictional pre-requisites for the making of an order under s.424(1) had been made out, it argued that the appropriate response for the Commission would be to terminate the protected industrial action, rather than suspending it.

[7] After the hearing, also on Wednesday, 5 October 2016, the parties were advised of my decision to terminate the protected industrial action and an Order to that effect was issued at the same time. They were also advised that my reasons for decision would be circulated to them as soon as possible. Accordingly, this matter has been determined by me within the time period allowed for in the Act.

[8] The Order issued by me on 5 October 2016 was in the following terms;

APPLICABLE LEGISLATION

[9] Section 424 of the Act provides as follows:

[10] Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before the Commission.

BACKGROUND

[11] The parties involved in this matter, the DIBP and CPSU, have been bargaining, together with other employee bargaining representatives, for some time for an enterprise agreement to replace agreements applying to the Department’s predecessors. The CPSU notes that it first wrote to the DIBP seeking bargaining commence in December 2013, and that negotiations were commenced with the former Australian Customs and Border Protection Service in September 2014 (noting that the current form of the DIBP, now covering both agencies, only came into being on 1 July 2015). 5 While Notices of Employee Representational Rights were originally issued in the predecessor agencies in 2014 and bargaining has been continuing since, a replacement notice was provided by the Department more recently, in September 2016.6

[12] A protected action ballot order was issued by Commissioner McKenna in respect of the bargaining on 8 May 2015, with certain undertakings having been given by the CPSU as to the application of certain proposed questions to particular groups of employees and also as to the periods of notice to be given for the taking of protected industrial action, in both cases should the questions be carried upon the ballot.

[13] The bargaining that is underway is in respect to all employees of the DIBP. While that is so, the protected industrial action that is the consideration of this decision has predominantly related to employees of the Australian Border Force, although industrial action has taken place in other parts of the DIBP.

[14] The evidence relied upon by the DIBP for its application pertains to the effects of protected industrial action within the Australian Border Force (the ABF). That Agency performs frontline operations for the DIBP, with its mission being to protect Australia’s border and manage the movement of people and goods across it. The ABF comprises more than 13,000 employees and operates on a large scale working across the international airports, sea and cargo ports.

[15] Protected industrial action being taken by members of the CPSU employed by the DIBP has previously been suspended by the Commission for a period of 90 days through an Order issued on 27 April 2016. That Order required the suspension of the protected industrial action for a period of 90 days from 3 April 2016. 7

[16] The industrial action which is the subject of this decision was notified to the DIBP on 14, 20 and 27 September 2016. The notifications made by the CPSU and received by the DIBP on those occasions provided notice that CPSU members employed by the Department intended to take protected industrial action in the form of stoppages of work in all states and territories as follows;

[17] The form of the notifications was to indicate that all CPSU members intended to take protected industrial action in all States and Territories across all 48 half-hour blocks in each of the days for which notification was given. In the case of each notification the CPSU advised that there were 11 groups of employees excluded from the notified protected industrial action, being discrete work groups or functions.

[18] Evidence was received in this matter on behalf of the DIBP from Clive Murray, the Australian Border Force’s Assistant Commissioner, Strategic Border Command, and Murali Venugopal, the Department’s First Assistant Secretary, People Division. Evidence was received on behalf of the CPSU from Richard Muffatti, CPSU Industrial Officer, and Rupert Evans, CPSU Deputy National President. The witnesses did not give oral evidence in these proceedings, with the exception of Mr Murray, who gave short evidence in support of the making of the interim suspension order on 30 September 2016, and who was not cross-examined on the evidence he gave.

[19] Mr Murray’s evidence included that the threat environment now existing is much as it stood in April 2016. 8 He also noted that in the event there was a high level of participation in the notified protected industrial action such would almost certainly pose a higher risk to life, personal safety, health and welfare than was the case at the time of the April 2016 hearing. He supported that contention with an analysis of several operational factors; firstly, that the nature and magnitude of current threats are similar; secondly, the movement of passengers and cargo volumes remain at high levels; thirdly, the notified protected industrial action represents a serious escalation from that in April 2016; and fourthly “while the DIBP has taken a range of steps to improve its capacity and preparedness to respond to the notified PIA, it would never be possible within the resources of the DIBP to make improvements on a scale which could ever provide such coverage.”9

[20] Mr Murray’s evidence reviewed the current threat environment and the implications and effects of the protected industrial action to the point it was suspended on 30 September 2016. He considered that the 30-minute rolling stoppage design, being different from the one hour rolling stoppages during the April 2016 period, meant that CPSU members were able to withdraw their labour in places and at times at which maximum disruption would be caused. He also held the view that the notified protected industrial action dramatically escalated the intensity, duration and unpredictability of the action, compared to the April 2016 protected industrial action. The fact that notifications were given for a 24-hour period, rather than specific blocks of time as was the case during April, meant that the problems experienced in April in covering disputation would be “compounded, and compounded more rapidly with the potential need to cover all shifts on every day”. 10 He also considered that the longer period of notifications and the fact they covered CPSU members in all States and Territories simultaneously would make it more difficult for the DIBP to respond to.

[21] Mr Murray’s evidence was also that there had been a high level of participation by staff in the protected industrial action in a number of locations. He was concerned about the risk which those circumstances brought about and gave illustrations to the Commission about actual instances of harm from the protected industrial action, as well as what he saw as emerging risks that would result from its continuation. His evidence also discussed the depleted ability of the Department to adequately respond to instances of protected industrial action. Because of the factors known to him, and identified to the Commission and the parties in this matter, he formed the view that the DIBP would be unable to effectively manage the risks flowing from the protected industrial action.

[22] Mr Venugopal has Department-wide responsibility for all human resource related matters and is the lead negotiator for the DIBP enterprise agreement on behalf of the Secretary, having commenced with the Department in January 2016. Mr Venugopal’s two witness statements record the efforts by the Department to negotiate an enterprise agreement. In this regard, his witness statements record the following;

Another ballot of employees was held in March 2016;

[23] Mr Evans has been extensively involved in the bargaining for an enterprise agreement within DIBP. His evidence traverses the extensive history of bargaining. While he notes that there have been at least 24 bargaining meetings since a decision in March 2015 on the part of the Department that it wished to negotiate a single agreement, there have been relatively few in recent times. In particular he notes that since the Commission’s suspension of protected industrial action in April 2016 there have only been three bargaining meetings. 16

[24] Having been critical of the progress of bargaining between the parties, he connects the protected industrial action taken or contemplated by the CPSU members with progressions in bargaining;

[25] Mr Evans believes the most recent proposal from the DIBP is inadequate and that there is no prospect of agreement between the parties;

[26] Mr Muffatti largely echoes Mr Evans’ evidence. In relation to the progression of bargaining, he notes that while there have been 25 meetings between the parties, there have only been about seven meetings since October 2015. Further, only three of those were since April 2016. 19 Mr Muffatti is also pessimistic about the likely success of a further ballot, basing his view that staff will once again vote to reject the proposed enterprise agreement on feedback he has received, along with other members of the bargaining team, from the union’s members and delegates.20

[27] While the CPSU accepted the contention that the prerequisites for an Order under s.424 have been met, 21 it was careful to note that its acceptance in this regard came about because of its view that the DIBP had not been able to manage the effects of the protected industrial action, and in particular that it has been unable to manage the harms flowing from the action. I take this to be a submission that while the DIBP may have been able to manage the effects of the industrial action, the CPSU considers it chose not to do so.

CONSIDERATION

The Interim Suspension Order

[28] On 30 September 2016, upon application by the DIBP, I made an interim suspension order, suspending the protected industrial action then taking place until further order or determination of the application (whichever first occurs).

[29] This order was made since I was satisfied that the Commission has the power to make such an interim order, with the legislative scheme of s.424, and subsections (3) and (4) in particular, not displacing the general scheme for the making of interim decisions allowed for within s.589 of the Act. In this regard, I rely upon the reasons set out in my earlier decision on the subject during the April 2016 DIBP protected industrial action hearings. 22

[30] In making the interim order on that occasion, as well as this, I took into account the matters that ordinarily would be considered by the Commission in making an interim decision;

[31] In relation to those criteria; I was satisfied that the material filed by the DIBP to that date and time showed there was a serious matter to be heard; that the same material and Mr Murray’s oral evidence (which was not the subject of cross-examination) disclosed that there may well be irreparable prejudice to the Applicant without an order and that, conversely, there would not be irreparable prejudice to the Respondent; and that the balance of convenience at that time favoured the DIBP.

[32] I also took into account that the CPSU advised that it would be in a position to file its material by noon on Tuesday, 4 October 2016and that both parties would be in a position to have the matter heard on Wednesday, 5 October 2016.

Determination of the Application

[33] The legislative tests within s.424 include that the industrial action “is threatened, impending or probable” coupled with the need for the Commission to be satisfied that the protected industrial action “has threatened, is threatening, or would threaten” the population or part of it, which is the test within s.424(1)(c). The test within s.424(1)(d), regarding the potential for the protected industrial action to cause significant damage to the Australian economy or an important part of it, is not relevant to these proceedings.

[34] In assessing applications for suspension or termination of industrial action, the Commission must be satisfied of an appropriate evidential basis for the making of an order. 24

[35] In doing so the Commission has previously considered matters such as the adverse effects to the quality and timeliness of treatment to patients in a health system, as well as what the likely cumulative future effect would be to decrease, over time, the capacity of the system, including its aggravated effects. Endangerment may not be confined to physical harm, or its probability, but to the future impact of the industrial action on an effected group’s welfare. 25

[36] In deciding matters under s.424, the Commission has also had regard to the efforts taken by an employer to mitigate the impact of protected industrial action, or the steps they might take to mitigate. The availability of sufficient mitigating avenues may be a reason for the Commission not to be satisfied of the legislative criteria needed to make an order, and the efforts to mitigate will be weighed by the Commission. 26 The Commission has previously been unpersuaded by “generalised predictions” about the consequences of protected industrial action or the other “many things” that could have been done in mitigation by either the applicant employer or those affected by the action.27 The Commission may also take account of whether there is an extended time period for the giving of notice of protected industrial action above the minimum period of three working days prescribed in s.414(2) of the Act.28

[37] The powers to make an order under s.424 may be used in exceptional circumstances and where significant harm is being caused by the action. 29 However, the use of such terms does not establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself.30

[38] The evidence leads compellingly to a finding, which I make, that the prerequisites of s.424(1) have been met.

[39] While I base that finding upon the evidence brought principally by the Applicant, and in particular on the evidence of Mr Murray, I also note the concession on the part of the CPSU to the effect that it accepts the contention that the prerequisites have been met, although tempered by the further submission to the effect that the DIBP has either been unable to or has insufficiently managed the effects of the protected industrial action. While that is an important concession on the part of the CPSU, the findings I make stand independently of that concession. The factors I take into account in this regard include the evidence of Mr Murray that the Department endured an escalated involvement in protected industrial action right across its operations, at least in respect of the Australian Border Force, and that in order to deal with the consequences of the protected industrial action it would in effect need a full shadow workforce which is simply unavailable to the DIBP. I have also taken into account his evidence about the state of the threats he and his agency are endeavouring to manage and the impact which the protected industrial action has on the risks flowing from that threat profile.

[40] I note that Mr Murray’s analysis of the protected industrial action at the point of 23 September 2016, when his first witness statement was prepared, being a week prior to the commencement of these proceedings, was that the notified protected industrial action;

[41] Relevant to the timing of the foregoing analysis, he further noted;

[42] I have also taken into account the evidence on the part of the CPSU regarding the importance of protected industrial action in its bargaining campaign. That evidence leads to the conclusion that, in all likelihood, the protected industrial action in the current, or even an escalated form, would be likely to continue for the reason that its gains in bargaining in the past had come from action such as this. In turn, this leads to the view that the protected industrial action, as presently designed by the CPSU, is hardly about to be backed away from. This is not a case in which industrial action is used to make a point made about the union’s relative strength in the workplace, perhaps leading to an early concession on the part of the employer. To the contrary, the history of bargaining in this matter would indicate that the parties’ respective positions appear unlikely to be affected by cues such as a union showing that it has strong support in the workplace.

[43] While struck by the relative incongruence of a union putting forward the submission to the Commission that protected industrial action it designed and delivered is actually endangering the life, the personal safety or health, or the welfare, of the population or part of it, coupled with the somewhat unconvincing argument that the endangerment was only coming about because the target of the action was not managing it properly, such is not a reason to make a finding that the jurisdictional prerequisites of s.424 have not been met.

[44] I have also taken into account confidential evidence given by Mr Murray regarding participation rates in the protected industrial action in the days between 26 and 30 September 2016, and note his evidence about this being a high level of participation, together with his view that it may not necessarily be the total number of employees withdrawing their labour that creates the harm but rather the location of the people involved and the tasks that they would otherwise be required to perform. I have also taken into account efforts by the DIBP to mitigate the effects of the protected industrial action and the evidence given by Mr Murray regarding the deployment of replacement staff, the effects of which are likely to decline over time due to factors including availability and fatigue. I am satisfied from the evidence given by Mr Murray that the DIBP has taken sufficient efforts to mitigate the effects of the protected industrial action notified and actually taken.

[45] Once satisfied that the protected industrial action being engaged in meets the jurisdictional prerequisites within s.424(1), which I am, the section requires the Commission to make an order suspending or terminating the protected industrial action. The choice of the alternative within the section is a matter of discretion on the part of the Commission, taking into account all the circumstances of the matter.

[46] The contest between the parties in this matter on this occasion is whether or not the Commission should suspend the protected industrial action, as advocated for by the DIBP, or terminate it, as advocated for by the CPSU.

[47] Necessarily, an exercise of discretion on the part of the Commission to suspend the protected industrial action is a non-permanent conclusion to the disputation, with employees, as in this case, entitled to resume employee claim action at the end of the suspension. With the Commission having suspended protected industrial action for a period of 90 days commencing on 3 April 2016, the CPSU and employees were entitled to and did notify further protected industrial action after the expiry of the suspension.

[48] Consideration of termination of protected industrial action brings with it the processes set out in Division 3 of Part 2 – 5 of the Act. In particular, the provisions of s.266 require that the Commission must make a workplace determination if, after termination of the protected industrial action, the parties have failed to settle all the matters that were at issue during bargaining during a post-industrial action negotiating period. The section, and others in the same Part, are in the following terms;

[49] In VHIA v ANF protected industrial action was suspended by the Full Bench for a period of 90 days. 33 The action suspended included bans that were stated to “remain in place until a new agreement is reached”, but with specified exemptions and regard to matters of safety.34 In that matter the Full Bench specifically avoided terminating the protected industrial action because it considered negotiations were still at a relatively early stage and because suspension would allow the discussions and negotiations between the parties to proceed. The Full Bench’s decision on the subject determined the matter in this way;

[50] In other matters in which termination of protected industrial action has been considered by the Commission;

[51] I concur with Hamberger SDP’s analysis in Essential Energy v CEPU of the factors that require being taken into account in deciding whether it is appropriate to terminate protected industrial action, or to suspend it.

[52] In this matter bargaining between the parties has been continuing for a considerable period. Officially that period has been since 1 July 2015, following the Machinery of Government changes that lead to the formation of the DIBP in its current state. However notification was given to all concerned in March 2015 that the predecessor agencies, the DIBP as then formed and the Australian Customs and Border Protection Service desired to negotiate a single agreement to cover both agencies. Bargaining with the predecessor agencies had been underway since June 2014 in the case of the predecessor DIBP and September 2014 in the case of the former Australian Customs and Border Protection Service. Counsel for the CPSU put forward in the hearing that employees had had no wage increase since July 2013.

[53] On any analysis, and from any of the available dates, negotiations between the parties for an enterprise agreement have been going for a considerable period of time.

[54] It is also the case that the bargaining between the parties has essentially been unproductive. While appearing to be featured by hard bargaining on both sides, the negotiations appear stuck around the respective wages positions of the main actors. On the one hand, the DIBP relentlessly argues that it is unable to improve the Department’s wages offer because it is bound by the Australian Government’s Workplace Bargaining Policy. On the other hand the CPSU either does not accept that the policy constrains the Department in the way that the DIBP argues, or appears to put forward that, even if it does, the DIBP should improve its offer. In relation to its own proposals, the CPSU appears to put forward so many baseline conditions that an improved offer on the part of the DIBP could only ever succeed with a greater overall cost to Government, with little or no prospect of there being cost offsets through changes to other conditions within the proposed enterprise agreement.

[55] While the CPSU is critical, perhaps with some justification, about there only being 7 bargaining meetings held since October 2015, of which only 3 were after the Commission’s suspension of protected industrial action in April 2016, it can also be reflected that within the construct of bargaining referred to above, with each of the parties putting forward super-constrained positions for bargaining, there may not have been much to talk about within the bargaining meetings that were convened.

[56] The record of protected industrial action in the DIBP workplaces, and especially the Australian Border Force, has been extensive, having been canvassed significantly both within this decision and my earlier decisions relating to the April 2016 protected industrial action. In both periods of protected industrial action I have found that the community has either been endangered by the protected industrial action or may well be endangered if it continued.

[57] The bargaining posture of both parties would lead reasonably to the view that in the event the Commission suspended this round of protected industrial action, further action would likely take place after a suspension ended.

[58] This is not a circumstance in which prior industrial action has either been inconsequential or restricted. I take into account that the April 2016 protected industrial action period coincided with school holidays and high travel periods in most states and that the current round of protected industrial action similarly coincided with school holidays in most States. From this, I conclude that if the current protected industrial action was suspended until near to the end of November 2016, as argued for by the DIBP, a further round of protected industrial action, with the potential for similar harm to the community, would almost certainly be targeted for the end of year holiday periods.

[59] The CPSU maintains that industrial action by its members has been the principle way in which concessions by the DIBP, albeit small ones, have been made in the course of bargaining. It accepts that its current protected industrial action, as responded to by the DIBP, whether deficiently or not, has harmed, or is likely to harm the community. Faced with that stance, the proposition unavoidably emerges that, following suspension of the current round of protected industrial action, further high-level industrial action would almost certainly take place towards the end of 2016 and into the start of 2017. There is little doubt that such industrial action would be on a broad scale, and clinically targeted to the areas of the DIBP where it had most effect. There is also little doubt that, as with the present case, the intention of such likely future protected industrial action would be to maximise the impact on the DIBP. The evidence I have heard now on two occasions shows an ability on the part of the DIBP to withstand those effects for a period, but not to be able to do it beyond a week or two, short of taking more a significant response, such as an employer response action locking out employees taking protected industrial action.

[60] The DIBP argues that the protected industrial action should only be suspended, and in this case to 21 November 2016. The DIBP’s argument in that respect is that suspension for that period will enable its proposed enterprise agreement to be put to employees for a further ballot and that all concerned should not be burdened during that period by the need to deal with the consequences of the termination of protected industrial action.

[61] While the democratic process is, of course, to be applauded, I consider that real questions emerge in this case about the prospects of success for the ballot about to be undertaken by the DIBP. The evidence discloses that two previous ballots undertaken of employees were defeated by very significant margins of those voting. 91% voted against a proposed agreement put to staff in September 2015 and 81% voted against a further proposal in March 2016. The proposal about to be put to employees is different from its predecessors but is still considered by the CPSU to be an insufficient offer, with its witnesses putting forward the basis upon which they have formed that view.

[62] The proposal now put by the DIBP is improved in the sense that some of the problems identified in the course of bargaining in respect of the earlier versions have been remedied, especially through a restructuring of the wages proposal such that, with the latest proposal, the DIBP is able to say with confidence that all staff will get a general pay increase of 3% upon commencement of the agreement and that overall, through the life of the proposed agreement, employees will receive wage increases of between 4.7% and 10.7%. The higher amount comes about because some, but not all, staff will have access to new top-of-the-range salaries through performance-based salary advancements. 40 It is unclear from the evidence before me either of the criteria related to the performance-based element of the offer or how many, or how few, staff will have access to the performance-based salary advancement.

[63] In contrast, the offer that was the subject of the 2015 ballot allowed, on the DIBP’s evidence, for an average wage increase of 4.5%, made up of a 3.4% general increase for all employees, with other increases coming through adjustments to deal with disparities between the pay rates applying to the staff coming from the different predecessor agencies. 41 Amongst other things, the March 2016 proposal included a 6% pay increase over three years for all employees.42

[64] I take from this analysis the point merely that while the DIBP has been endeavouring to address certain and specific concerns on the part of bargaining representatives about its wages offer, it appears to be working wholly within the constraint imposed by the Workplace Bargaining Policy, which requires that remuneration increases may be negotiated up to an average of 2% per annum. Seemingly then, the DIBP’s most recent offer remains within that constraint but endeavours to make more attractive what it can offer, perhaps to as many people as possible. Notwithstanding that objective on the part of the DIBP, the gulf between a 19% favourable vote on the occasion of the March 2016 ballot and the 50% plus one that is required for the making of its proposed November 2016 enterprise agreement is considerable. On the strength of the evidence presently before me in relation to the components of the offer to be put to employees; their disposition as reported by the CPSU; and the other matters remaining not agreed between the parties, I consider the most likely result from the forthcoming ballot would be a continuation of the impasse presently between the parties, with the inevitable consequence of further protected industrial action.

[65] If this analysis of the DIBP’s current enterprise agreement proposal overlooks more favourable aspects of the offer that would lead to its acceptance, then plainly the Department can make those the subject of a concerted campaign to staff to vote in its favour. A consideration on my part of the termination of protected industrial action does not prevent the conduct of the proposed ballot, or indeed the conclusion of bargaining between the parties.

[66] For all these reasons, I am unable on this occasion to favour the prospect of a further suspension of protected industrial action. Suspension of the protected industrial action is unlikely to do more than put a further hiatus in the bargaining between the parties. The likely consequence of that in turn is for employees to continue to agitate for an improved offer on the part of the DIBP, with the form of the agitation being further protected industrial action if that is available. There appears little chance the DIBP would respond favourably in its bargaining position to further agitation or protected industrial action, and that more likely in such event the DIBP’s response would be to yet again seek an order pursuant to s.424.

[67] As a consequence my discretion on this occasion was exercised with an order terminating the protected industrial action.

[68] Having communicated the Commission’s decision to terminate the protected industrial action, and having now provided its reasons for decision, I am mindful of the work that is now required to be undertaken by the parties during the post-industrial action negotiating period which has now commenced, the details of which are specified in s.266 of the Act. The Commission as presently constituted is available to assist the parties in that task upon request, including through the convening of one or more conciliation conferences.


COMMISSIONER

Appearances:

Mr P O’Grady QC (instructed by the Australian Government Solicitor) for the Commonwealth of Australia.

Mr A M Slevin (instructed by Slater and Gordon) for the CPSU.

Hearing details:

2016.

Melbourne:

October 5.

 1   PR586012.

 2   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148; [11]–[12], per Buchanan J: [128], per Katzmann and Rangiah JJ.

 3   Exhibit A8, Commonwealth’s Outline of Submissions, [25].

 4   PR586132.

 5   Exhibit R2, Witness Statement of Rupert Evans, [14], [19], [20].

 6   Exhibit A4, First Witness Statement of Murali Venugopal, Attachment MV–8.

 7   [2016] FWC 2526; PR579316.

 8   Exhibit A1, First Witness Statement of Clive Murray, [18].

 9   Ibid [9]–[14].

 10   Ibid [32(b)].

 11   Exhibit A4 [7].

 12   Ibid [8].

 13   Ibid Attachment MV-5.

 14   Ibid Attachment MV-8.

 15   Ibid [48]-[49].

 16   Exhibit R2 [22], [76].

 17   Ibid [35]-[37].

 18   Ibid [81]-[86].

 19   Exhibit R1, Witness Statement of Richard Muffatti, [27].

 20   Ibid [79].

 21   Exhibit R3, Outline of Submissions on behalf of the CPSU, [20].

 22   [2016] FWC 2090 [12], noting that the last appearing legislative reference in the second paragraph of the ex tempore decision in [12] should be a reference to s.589(2) and not s.598(2), as printed.

 23   Ibid [24].

 24   Victorian Hospitals' Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 [49].

 25   Monash University v NTEU [2013] FWCFB 5982 [40]-[41], [47].

 26   Re KDR Victoria Pty Ltd T/A Yarra Trams [2015] FWC 6282 [37].

 27   Re Metro Trains Melbourne Pty Ltd [2015] FWC 6037 [28]–[30].

 28   Ibid.

 29   NTEU v University of South Australia (2010) 194 IR 30 [8].

 30   Monash University v NTEU [2013] FWCFB 5982 [20]–[21].

 31   Exhibit A1 [47].

 32   Ibid [48]-[49].

 33   [2011] FWAFB 8165 [61].

 34   Ibid [6]–[8].

 35   Ibid [59]–[61].

 36   [2015] FWC 1600 [59].

 37   Monash University v NTEU [2013] FWCFB 5982 [55].

 38   Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44, (2009) 187 IR 119 [35].

 39   [2016] FWC 3338 [37]-[39].

 40   Exhibit A4 Attachment MV-5.

 41   Ibid [7].

 42   Ibid [8].

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