[2017] FWCFB 3659

The attached document replaces the document previously issued with the above code on 2 August 2017.

This decision has been amended to correct the typographical error at paragraph [24] by replacing the reference to “Section 193(3)” with the correct reference to “Section 193(7)”.

Danielle Mezzatesta
Associate to Justice Ross

16 August 2017

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2017] FWCA 2308 of Commissioner Lee at Melbourne on 28 April 2017 in matter number AG2017/1060 – procedural fairness – ‘better off overall’ test – agreement provides for casual employment – no provision in award - appeal dismissed.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Lee on 28 April 2017 (Decision) to approve the SESLS Industrial Pty Ltd Employee Black Coal Mining Industry Enterprise Agreement 2017 (Agreement). In the Decision, the Commissioner concluded that he was satisfied that ‘each of the requirements of ss. 186, 187 and 188 as are relevant to this application for approval have been met’. 1

[2] The CFMEU’s grounds of appeal, as contained in its amended notice of appeal, were as follows:

1. The Commissioner erred in failing to afford the Appellant procedural fairness by not giving the Appellant an opportunity to be heard as to why the Commissioner should hear from the Applicant, pursuant to s590 of the Fair Work Act 2009 in relation to the Respondent’s application for approval of the SESLS Industrial Pty Ltd Employee Black Coal Mining Industry Enterprise Agreement 2017 (‘SESLS Agreement’).

2. The Commissioner erred in finding that the SESLS Agreement satisfied all of the provisions of s186 of the Fair Work Act 2009.

3. The Commissioner erred in being satisfied that the SESLS Agreement met the Better Off Overall Test in s186(2)(d) of the Fair Work Act 2009.

4. The Commissioner erred in approving the SESLS Agreement.

[3] An appeal under s604 of the Fair Work Act 2009 (FW Act) is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error, or a preference for a different result.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...’ 5

[5] Other than the special case in s604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 6

Procedural fairness

[6] The CFMEU contends that it was denied procedural fairness on the basis that it was not afforded an opportunity to be heard as to why the Commissioner should hear from it in relation to the approval of the Agreement. It is first necessary briefly to set out the sequence of events that give rise to this contention.

[7] On 30 March 2017, the company filed an application for approval of the Agreement. On 5 April 2017, Ms Melanie Mitchell of the CFMEU sent an email to ‘Member Assist’, stating:

‘Dear Member Assist, the CFMEU Mining and Energy Division have concerns about the content of the SESLS Industrial Pty Ltd Employee Black Coal Mining Industry Enterprise Agreement 2017 which has been listed on the Fair Work Commission website as waiting for approval. We wish to have our concerns heard. In order to assist us with making complete submissions we would be grateful if we could obtain the Form 16 and Form 17 that were lodged by the employer in this matter. Can you please acknowledge receipt of this email. Please do not hesitate to contact us should you wish to discuss further.’

[8] Later that day, an employee from the Commission’s Member Support Research Team responded to Ms Mitchell to acknowledge receipt of her email. She advised that the request would be provided to the Commission member for consideration, and that she would be in contact once she received the Member’s instructions. On 7 April 2017, the Commission’s Member Support Research Team sent Ms Mitchell another email, which stated: ‘As per the below request, please find attached the F16 and F17 for the agreement matter number AG2017/1060.’ The documents were attached.

[9] Over the course of the following week, there was correspondence between the Chambers of Commissioner Lee and the representatives of the company, HR Legal, concerning various matters relating to the Agreement and the approval requirements in the Fair Work Act 2009 (Act).

[10] On 28 April 2017, the Commissioner approved the Agreement. This occurred by way of ‘e-hearing’. The matter was listed on the Commission’s website for hearing on 28 April 2017 at 11:00 am before Commissioner Lee in Chambers. Details of hearings and conferences for any given day and the week ahead are published daily on the Commission’s website.

[11] The Commission did not notify the CFMEU of the e-hearing. The last correspondence from the Commission to the CFMEU was the message of 7 April 2017 attaching the F16 and F17.

[12] The CFMEU submits that it received no further advice, confirmation or instructions from the Commission on the application for approval of the Agreement. 7 The union became aware that the Agreement had been approved when perusing the daily list of enterprise agreements approved by the Commission, a list that is emailed each weekday to subscribers.8

[13] The union submits that, despite advising the Commission of its concerns about the Agreement, and requesting to be heard, the Commission ‘failed to give the Appellant any opportunity to be heard in accordance with s590’. 9 It refers to the decision of the Full Bench in CFMEU v Collinsville Coal Operations,10 where the Bench stated: ‘We accept that the CFMEU (as with any person seeking to be heard) is entitled to be given a proper opportunity to develop its argument on the question whether it should be heard’.11

[14] It was not contended in these proceedings that the CFMEU was a bargaining representative. As was noted in Collinsville, the question of whether an organisation that is not a bargaining representative has a right to be heard in respect of the application for approval of an enterprise agreement will depend on the circumstances of each case. 12 In the present case, the union did not contend that it had a right to heard. Rather, it contends that the Commission should have afforded it an opportunity to be heard on the question of whether it should be heard.

[15] Returning to the sequence of events set out above, it is evident that the Commission responded promptly to the CFMEU’s message of 5 April 2017, and shortly afterwards provided it with the F16 and F17 documents, consistent with the decision of the Full Bench in CFMEU v Ron Southon. 13 The Commission answered the question that had been asked of it. The union did not request to be notified of the date when the Agreement would be approved or considered for approval. It foreshadowed that it would make ‘complete submissions’ on its concerns, but did not ask the Commission whether it could make a submission. Nor did the Commission indicate that it would not accept any submissions. A period of three weeks passed between the provision of the F16 and F17 and the decision to approve the Agreement. The union did not make any submission or other approach to the Commission in this period.

[16] In our opinion, during this three week period, the union had an opportunity to address the Commission on why it should be heard. The CFMEU did not avail itself of this opportunity. However, it argues that in the circumstances, it did not receive a proper opportunity, because it assumed it would receive notice of the listing date.

[17] At the hearing, the CFMEU submitted that there is a practice within the Commission that, where a union has raised a concern about an agreement, the Commission will seek further submissions from the union as to why it wishes to be heard. 14 However, if there is any such practice, it is not a formal practice or procedure of the Commission and reflects no more than the approach of individual members.

[18] Members of the Commission must generally act in a judicial manner and observe procedural fairness in carrying out functions and exercising powers under the Act. 15 The requirements of procedural fairness are not prescribed in a fixed body of rules; what is required is judicial fairness.16 The content of the requirement to accord procedural fairness will depend on the facts and circumstances of each case.17 As Gleeson CJ explained in Ex parte Lam:

‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’ 18

[19] In considering the application of procedural fairness to the present case, it is relevant to note that the union was afforded a practical opportunity to make submissions on why it should be heard. It was provided with the material that it had requested. The Agreement was not approved for a further three weeks. The Commissioner’s intention to determine the application was made public in the notices of listing for Melbourne in respect of 28 April 2017. Further, it is relevant to note that the union is a sophisticated organisation with extensive experience in industrial law and practice. Taking into account all of the circumstances, we do not consider that the union was denied a proper opportunity to develop its argument on the question of whether it should be heard. No practical injustice arose. We reject the first ground of appeal.

[20] We further note that the CFMEU has had an opportunity to develop before this Full Bench its argument as to why it should be heard on the approval of the Agreement. The hearing of this appeal has therefore enabled the union to advance its case against the approval of the Agreement, which we deal with further below. Accordingly, even if we had accepted the first ground of appeal, any failure at first instance to afford the union procedural fairness would now have been rectified.

The ‘better off overall’ test

[21] Grounds 2, 3 and 4 are directed at the union’s contention that the Commissioner erred in finding that the Agreement passed the better off overall test (BOOT). Section 186(2)(d) of the FW Act provides:

(2)  The FWC must be satisfied that:

…

(d)  the agreement passes the better off overall test.

[22] The BOOT, in respect of non-greenfields agreements, is explicated in s193(1) as follows:

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

[23] It is well established that the test requires the identification of terms which are more beneficial for an employee, terms which are less beneficial for an employee, and an overall assessment of whether an employee would be better off under the agreement. 19 The overall assessment involves a global comparison.20 However, it is clear from s193(1) that this global comparison must be undertaken in relation to ‘each’ award covered and prospective award covered employee.21 The test is not directed at whether most employees or most classes of employees are better off.

[24] Section 193(7) permits the Commission to assume that, if a particular class of employees is better off under an agreement, an employee who belongs to that class would also be better off. But the Commission may only make this assumption ‘in the absence of evidence to the contrary’. This provision only serves to underscore what is evident in the language of s193(1); the test must be conducted in relation to each employee.

[25] The modern award for the purposes of assessing the BOOT in this matter was the Black Coal Mining Industry Award 2010 (Award). The Agreement covers and applies to ‘production and engineering staff’ who are covered by the Award. 22 The terms of the Agreement provide that the Agreement is to be read in conjunction with the Award except where there is an inconsistency, in which case the Agreement applies.23

[26] The essence of the union’s concern about the BOOT is that the Agreement allows for the employment of any employees on a casual basis. 24 By contrast, the Award contemplates casual employment only for staff employees; production and engineering employees can only be employed on a full-time or part-time basis25. The union contends that the Commissioner erred by failing to take into account this material consideration.26

Comparing casuals under the Agreement with permanents under the Award?

[27] The application of the BOOT in the present case has a peculiar complexity.

[28] The union proceeds on the basis that the BOOT, as applied to a casual production or engineering employee under the Agreement, requires a comparison with full-time or part-time employment under the Award. Ordinarily, one would assess the BOOT for a casual employee by reference to casual employment under both the agreement and the award. However, the union, in essence, contends or assumes that one cannot compare ‘like for like’ in the present case, because the Award does not permit the use of casual employment for production and engineering employees. This position has a certain attraction, and the respondent did not contest it. However, it is necessary to consider the application of the BOOT to this particular situation.

[29] Section 193(1) requires one to consider the position of each existing ‘award covered employee’ and each ‘prospective award covered employee’ under the agreement and the award. Section 193(4) defines ‘award covered employee’ to mean an employee who would be covered by the agreement and:

‘(b) at the test time, is covered by a modern award … that

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.’

[30] From the F17, it is evident that 3 employees voted on the Agreement. There is no indication as to their mode of engagement however they were presumably not casual production or engineering employees; the award does not allow for it, and the Agreement, which would permit it, is not yet in operation. The concern relating to the BOOT does not appear to affect award covered employees.

[31] Section 193(5) defines ‘prospective award covered employee’ in terms similar to ‘award covered employment’, but employs the subjunctive mood - a person who, if he or she were an employee at the test time, would be covered by the agreement, and would be covered by a modern award that would cover the person in relation to the relevant work under the agreement.

[32] It should be noted that s.193(5) relates to a hypothetical situation. It directs us to contemplate a person who, if he or she were an employee, would be covered by an agreement and an award etc. On one view at least, this direction can be read as requiring that one simply assume that a person (including a casual production worker) has been employed.

[33] If a prospective employee were to be employed as a production worker on a casual basis under the Agreement, would that person be ‘covered’ by the Award? Coverage is dealt with in s48 of the Act. An award covers an employee if the award ‘is expressed to cover’ the employee. 27 Clause 4 of the Award states that it covers ‘coal mining employees’, who are defined as including employees employed in the black coal mining industry and whose duties are directly connected with the day to day operation of a black coal mine, and are employed in classifications covered by the award.28

[34] If a prospective casual production or engineering employee were employed under the Award, such an employee would fall within the coverage provision in clause 4 of the Award. The employer would evidently be in breach of the limitation on casual employment in clause 10.1 – it is only ‘in the case of classifications in Schedule B – Staff Employees’ that casual employment can be used. However, this does not necessarily mean that the casual employee would not be covered by the award.

[35] Returning again to the wording of s193(1), the next question is whether this employee would be better off overall if the agreement applied to him or her than if the relevant modern award applied. Section 47 of the Act explains when an award applies to an employee, namely if the award covers the employee, is in operation, and no other provision of the Act has the effect that the award does not apply (for example, by virtue of an agreement applying to the person). It appears then that the Award could apply to a prospective casual production employee. The above suggests that, at least on one analysis, the BOOT could be conducted in relation to a prospective award covered casual employee.

[36] The BOOT, in relation to prospective employees, addresses a hypothetical scenario. It is established for the purposes of comparing the position of the notional employee under the agreement on the one hand and the award on the other. The hypothetical scenario is a construct. It does not require that one work backwards to construct a realistic narrative about the employer’s hypothetical decision to engage an employee either under the award or the agreement.

[37] Against this, it could be contended that, because of the limitation on the use of casual employment for production and engineering employees in the Award, the prospective casual employees is not covered by the Award. On this argument, the question of coverage is defined not simply by the ‘coverage clause’, but by the terms of the Award as a whole. The presence of a prohibition on the use of casual employment should inform the construction of award in relation to the question of whom it covers. However, if this argument is correct, the consequence is that the casual employee is not covered by the Award at all, and the BOOT test cannot be undertaken.

[38] The union’s position is that the BOOT test can be undertaken, and that the appropriate comparator is the position of a full time or part time employee under the Award. This may seem reasonable. But is it right? We have some difficulty in identifying how the analysis of s193 leads to this outcome. Perhaps the hypothetical scenario requires a reasonable accommodation to be made of the practical circumstances that might underpin the hypothesis, and that such an accommodation could go so far as to assume that the employee had been employed on some other lawful basis under the Award – that one compare casuals under the agreement with whatever is possible under the award.

[39] We were not addressed on these issues at hearing. Given the conclusions we have reached further below, it is not necessary for us to decide them. We proceed to consider the union’s contentions in relation to the BOOT assuming (but not necessarily accepting) that the BOOT test for prospective casual employees requires a comparison between casual employment under the Agreement and part-time or full-time employment under the Award.

Detriments and benefits

[40] The union contends that various forms of detriment arise in connection with the employment of a production or engineering employee as a casual under the Agreement.

[41] The CFMEU contends that inherent in full-time or part-time employment is a relatively high level of job security, 29 which is not reflected in casual employment. We were taken to a decision of Commissioner Saunders in which the proposition was accepted that casual employment provisions under an enterprise agreement were less beneficial to employees than those under the Award, essentially for this reason.30 Casual employment provides an additional mode of engagement which some employees may prefer; there may be less job security, but there is correspondingly less commitment, and higher (loaded) remuneration, albeit to compensate for leave and other benefits of permanent employment not being available. New employees would presumably agree to casual employment upon their engagement and there is no suggestion of existing permanent employees being forced onto such arrangements. Further, as to the question of security of employment, full-time and part-time employees can be engaged on fixed term contracts;31 it is not necessarily the case that their employment is more secure, although this will often be the case.

[42] At the hearing, the union relied on the recent decision of the Full Bench in the 4 yearly review of modern awards in relation to casual and part-time employment 32 in which the Bench decided not to include a casual provision in the Award.33 However, the Bench also noted that the introduction of a casual provision in the Award for production and engineering employees had ‘merit as a matter of broad principle,’ but that the lack of evidence before it had meant that it ‘could not formulate a provision that would achieve the modern award objective’.34

[43] The union also contended that full-time and part-time employees receive various benefits under the Award that exceed those in the National Employment Standards in the Act. Such benefits include enhanced notice of termination, redundancy pay, annual leave and personal leave entitlements. 35 Of course, as the Award is incorporated into the Agreement, permanent full and part-time employees covered by the Agreement receive these benefits too. However, casual employees would not receive them, by virtue of their casual status.36

[44] The union further submits that, whilst the Agreement provides for a 25% loading for casuals, this is not sufficient to offset the detriments referred to above. In particular, it says that a 25% loading has not been independently assessed, in terms of being an appropriate recompense for casual status in the context of the Award, because no casual employment exists under that Award (except for staff employees). Whilst such a loading might be appropriate for the Metal, Engineering and Associated Industries Award 1998, this does not mean it is appropriate for the Award, which has the higher benefits referred to earlier. Any casual loading in the Award would, it is said, need to be higher than 25%. 37 The union relied on the decision in Site Fleet Services,38 where Commissioner Roe accepted that a casual loading greater than 25% would be required in the industry in order to compensate for relevant detriments.39

[45] We recognise that the Award provides for benefits that exceed those in the NES, and that in important respects the conditions in question are those which do not apply to casual employees (leave, notice of termination, and redundancy). However, it is also the case that the Award provides for casual employment of employees in staff classifications, 40 and that a casual loading of 25% is provided. This does not necessarily mean that a 25% loading would necessarily be appropriate, as an award standard, for production and engineering employees; as the Full Bench noted in the Modern Award review case referred to above, this is a question that needs to be resolved by reference to an appropriate evidentiary merit case. However, for the purposes of the BOOT, we consider that the presence in the Award of a 25% loading for casual staff employees is a matter which can be taken into account in considering the adequacy of the 25% loading in the Agreement for BOOT purposes.

[46] In addition, as to detriment, the union submits that casual employees do not have access to the unfair dismissal provisions of the Act, other than in the limited circumstances provided for in the Act. 41 Production and engineering employees employed on the Award, being permanent or part-time employees would have greater unfair dismissal rights. This contention can be seen as an adjunct to the job security argument.

[47] On the beneficial side of the BOOT equation, the union contends that the Agreement provides only for a wage rate that is ‘at least 1% more remuneration than what [employees] would receive under the Modern Award’. 42 This is said to be insufficient to offset the detriments that the union says accrue to casual employees under the Agreement.43

[48] For its part, the employer contended that the Agreement incorporates the Award, applies all relevant penalties and loadings, assigns a 25% loading for casuals, and affords an additional 1% remuneration. In this last mentioned respect, the company emphasised that the commitment in clause 5.1 was that employees would receive 1% more remuneration than what they would have received under the Award, applied not just to the rate of pay, but also to other Award benefits. Whatever the total payments under the Award would have been, at least 1% more is paid under the Agreement. 44

[49] At the hearing, the employer adverted to a further benefit arising under the Agreement, namely a travel allowance that is provided through clause 11.2(b). Employees receive $20 a day where transport is not provided by the company to the work site in certain circumstances. However, this is a contingent benefit, and there was no evidence as to the expected or likely incidence of its use. The scale of the benefit is small, and we do not think it has any bearing on the BOOT.

[50] Satisfaction of the BOOT under s186(2)(d) is a jurisdictional prerequisite for the approval of an enterprise agreement. It also is a matter that involves the exercise of discretion, and involves a degree of subjectivity or value judgement. 45 The issue before us is whether the Commissioner made an error of the kind described in House v The King46 in making his decision.

[51] We do not consider that any such error was made in the Commissioner’s application of the BOOT, or his decision to approve the Agreement. The Agreement incorporates the Award, and guarantees that employees will receive 1% more than the remuneration they would have received under the Award. The casual engagement of production and engineering employees is not permitted under the Award; it is permitted under the Agreement, but affords a 25% loading. In our view, the Commissioner’s conclusion that the Agreement satisfied the BOOT was not affected by appealable error.

Disposition of the appeal

[52] As we have not identified any error in the Decision, we are not persuaded on public interest grounds or otherwise to grant permission to appeal.

[53] Permission to appeal is refused.

PRESIDENT

Appearances:
Mr A Thomas appeared for the Construction, Forestry, Mining and Energy Union

Mr J Dwyer appeared for SESLS Industrial Pty Ltd

Hearing details:
2017.
Melbourne:
10 July

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594464>

 1  [2017] FWCA 2308, at [2]

 2  Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 3  O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] - [46]

 4  GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed onjudicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 5  [2010] FWAFB 5343, 197 IR 266 at [24] – [27]

 6   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481

 7   Outline of Submissions of the CFMEU at [18]

 8   Ibid, at [20]

 9   Ibid, at [21]

 10  [2014] FWCFB 7940

 11   Ibid, at [76]

 12   Ibid, at [72]

 13  [2016] FWCFB 8413

 14   Transcript at PN27, PN32

 15   See Appeal by Construction, Forestry, Mining and Energy Union [2014] FWCFB 174 (29 January 2014); Coal and Allied Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at 83; see also Kioa v Minister for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513; 29 IR 148.

 16   Appeal by CFMEU, [2014] FWCFB 174 (29 January 2014) at [22] and [23]

 17  Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), [1963] HCA 41; (1963) 113 CLR 475 at [504] per Kitto J

 18  Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [37]

 19   See AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; Armacell Australia Pty Ltd [2010] FWAFB 9985

 20  CFMEU v TR Construction Services Pty Ltd, [2017] FWCFB 1928 at [20]

 21  Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 (31 May 2016); at [33]

 22   Clause 1.2(b) of the Agreement

 23   Clause 1.4 of the Agreement

 24   Clause 9.2 of the Agreement

 25   See clause 10.1 of the Award

 26   Outline of Submission, paragraph 35

 27   Section 48(1) of the Act

 28  Black Coal Mining Industry Award 2009, clause 4.1 and following

 29   Outline of Submission, paragraph 36

 30  Moolarben Coal Operations Pty Ltd [2017] FWCA 2010, at [26] item (h), and [38]

 31   Respondent’s Outline of Submission, paragraph 33

 32  [2017] FWCFB 3541 (5 July 2017)

 33   Transcript at PN59, 85-95

 34  [2017] FWCFB 3541, at [879]

 35   Outline of Submission, paragraph 37 and 39

 36   Clause 92 of the Agreement: a casual employee is one engaged and paid as such

 37   Outline of Submission, paragraph 40

 38  [2017] FWC 2163

 39  [2017] FWC 2163, at [30] item (c)

 40  Black Coal Mining Industry Award 2009, clause 10.1(c)

 41   Outline of Submission, paragraph 36

 42   Clause 5.1 of the Agreement

 43   Outline of Submission, paragraphs 41 to 44.

 44   Transcript at PN121-124

 45  Transport Workers' Union of Australia v Jarman Ace Pty Ltd [2014] FWCFB 7097 (28 October 2014)

 46   [1936] HCA 40; (1936) 55 CLR 499, 404–405