DECISION

Fair Work Act 2009

s.424—Industrial action

Southern Cross Care Inc (SA, NT & Vic)
v
United Workers’ Union
(B2022/380)

s.424 Application to suspend or terminate protected industrial action – held action endangering life, personal safety or health, or welfare of part of the population – industrial action suspended.

[1] On 28 April 2022 the United Workers Union (UWU or the Respondent) served Southern Cross Care Inc (SA, NT & VIC) (SCC or the Applicant) with two notices of Intention to take Protected Industrial Action. One of the notices referred to the wearing of union badges and campaign clothing – no issue has been taken with respect to this notice. The second notice (which is the subject of this application) refers to the following industrial action.

“In accordance with the requirements of s 414(1) of the Fair Work Act 2009 (Cth), we put you on notice that all United Workers’ Union (‘UWU’) members employed by Southern Cross Care Inc (SA, NT & Vic) who work in South Australia, who will be covered by the proposed enterprise agreement, will engage in industrial action of the following nature:

1. A stoppage of work on Tuesday 10 May 2022 for a period of 5 hours from 11.30 am to 4.30 pm.

2. A stoppage of work on Tuesday 10 May 2022 for a period of 1 hour from 11.30am to 12.30pm for the purpose of distributing material and speaking to the employer’s customers or clients, their families or other members of the public about the reasons for industrial action and the Union’s campaign for a new enterprise bargaining agreement.

3. A stoppage of work on Tuesday 10 May 2022 for a period of 1 hour from 3.30pm to 4.30pm for the purpose of distributing material and speaking to the employer’s customers or clients, their families or other members of the public about the reasons for industrial action and the Union’s campaign for a new enterprise bargaining agreement.

The notified action will apply to all residential aged care facilities operated by Southern Cross Care (SA, NT & Vic) Inc in South Australia which would be covered by the proposed enterprise agreement.”

[2] On 1 May 2022 (SCC sought an order pursuant to s.424 of the Fair Work Act 2009 to terminate the proposed protected industrial action as described in the second notice. The Application contained witness statements by Mr Colin Heslop (Manager Care Support Team) and Ms Jo Boylan 1 (Executive Services).

[3] The application was first listed on Tuesday 3 May 2022. Mr Short represented the Applicant and Dr Gray represented the Respondent. Permission for the parties to be legally represented was granted pursuant to s.596 on the basis of complexity and efficiency.

[4] The parties engaged in conciliation but the matter was not resolved. The matter was listed for hearing at 9am on Wednesday 4 May 2022. The Applicant was provided with a further opportunity to file additional material until 6.00pm, and the Respondent was directed to file its material by 12 noon on 4 May 2022.

[5] A revised statement was received from Mr Heslop. 2 On 4 May 2022 the UWU submitted statements from Ms Kimberley Rowney3 (Lead Organiser Aged Care Team), Mr Richard Warley4 (Personal Care Worker), Mr Wisdom Okon Nash (Personal Care Worker), Ms Joby George5 (Personal Care Worker), and Ms Rhiannon Sired6 (Personal Care Worker). Mr Nash’s statement was subsequently withdrawn.

[6] Hearings were conducted over the period of 3-6 May 2022. Further unsuccessful attempts at conciliation occurred during the hearing. When determining this matter I have not had regard to the matters discussed or materials provided and/or produced during the conciliations.

[7] A Fact Sheet 7 published by the Department for Health and Wellbeing, which appears to be drawn from the Emergency Management (Residential Aged Care Facilities No 47) (COVID-19) Direction 2022 concerning arrangements for care workers and their ability to work across multiple aged care facilities was submitted.8 The document indicated that the previous requirement for aged care workers to work for only a single employer had been relaxed. The document stated that ‘To the extent reasonably possible, personal care workers must not provide personal care to residents at more than one RACF. Whilst personal care workers are not restricted from having secondary employment or working at more than one RACF, employers should make best endeavours to support personal care workers to work at a single RACF site as much as possible. If the risk of COVID-19 in the South Australian community increases, single site restrictions on personal care workers may become mandatory. Any person working at a RACF during a declared COVID-19 outbreak is prohibited from other employment for the duration of the prescribed self-quarantine period’.

[8] On 6 May 2022 the UWU provided an undertaking which had the effect of modifying the proposed industrial action. The undertaking is as follows;

“In respect of the Notice of Intention to Take Protection Industrial Action Notified in the letter dated 28 April 2022 which is now Exhibit A1 in Action Number B2022/380 – Application by Southern Cross Care (“the Notification of Action”)

1. The United Workers Union makes the following undertakings:

•  The United Workers Union undertakes not to proceed with any work stoppage on 10 May 2022 at the Mt Carmel, Oakfield, Sandpiper and McCracken facilities (which are currently the subject of COVID outbreaks).

•  The United Workers Union undertakes that pursuant to the notice of 28 April 2022, the stoppage of work at all Southern Cross Care facilities in South Australia (other than those named in undertaking (1)(a)) will only proceed for a period of 3.5 hours, between the hours of 12.00 noon to 3.30 pm on Tuesday 10 May 2022.

2. The United Workers Union withdraws (will not proceed with) the actions notified on 28 April 2022 in the Notification of Action at items (2) and (3) of that Notification.”

[9] The effect of the undertaking is that the proposed industrial action is reduced to a stoppage of work on Tuesday 10 May 2022 for 3.5 hours between the hours of 12 noon and 3.30pm at all residential facilities operated by the Applicant in South Australia with the exception of Mt Carmel, Oakfield, Sandpiper and McCracken facilities (which are currently the subject of COVID outbreaks)

[10] In the interests of publishing this decision within the timeframe imposed by s.424(3), I do not propose to detail the evidence given by each witness. Each witness’s evidence was largely contained in their statements and no significant issues of credit arose during their examination.

[11] The relevant evidence is summarised as follows.

Background

[12] SCC provides aged care services to 17 locations across South Australia. None of the patients are capable of caring for themselves. The level of support provided to patients varies depending on their needs but is significant. Patients in the Memory Support Unit have a higher level of needs. Four of the units are currently subject to COVID-19 outbreaks which adds an additional level of complexity in meeting patient requirements, however they have been excluded from the proposed protected industrial action

[13] SCC advises that it employs 1696 persons who would be covered by the proposed Agreement. These persons are engaged in the following roles:

•  Personal Carers (approximately 1054 persons)

•  Wellness and Lifestyle

•  Chefs

•  Food Services Assistants

•  Cleaners

•  Laundry Assistants

•  Maintenance Officers

•  Administration

[14] This is the care worker cohort that (subject to membership of the UWU) will be entitled to take protected industrial action.

Key resident care tasks

[15] The evidence revealed that the key tasks undertaken by the care workers are as follows.

•  Responding to call bells (which may include an emergency, a resident fall, a call for water, assistance to go to the toilet or wash, seeking company, or an accidental button press) Calls are required to be responded to within 10 minutes. No data as the current compliance levels with this standard was presented.

•  Providing mobility assistance to go to the toilet

•  Providing mobility assistance to shower or wash

•  Providing mobility support to getting out of bed and/or a chair)

•  Provision of meals and varying levels of eating support

•  Provision of water or drinks

•  Provision of physiotherapy and/or movement activities and/or cognitive activities

•  Facilitating visitor attendance

[16] The provision of medication is a responsibility of the nursing staff.

[17] In Victorian Hospitals' Industrial Association v Australian Nursing Federation 9, the Full Bench stated “Conduct that puts a person's physical or mental state at risk of material detriment - or that materially hinders or prevents improvement in a person's poor physical or mental state - may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however be more than to cause inconvenience to the persons concerned - it must be such as to expose them to danger.

[18] When I take into account the duration of the proposed action and the time of day it is scheduled to occur, it is apparent to me that some of the tasks may have been completed prior to the proposed industrial action or that the task may be delayed. It also appears that some of the non-completed tasks may be regarded as an inconvenience and not present a danger to the health and welfare of the residents.

[19] However, responding to call bells, toileting, eating and drinking clearly have the potential to cause a risk to personal safety or health. It is this issue which concerns me.

Staff shortages

[20] The evidence reveals that SCC is generally suffering from significant staff shortages. The SCC witness attributed the problem to:

•  The impact of staff not being able to attend work due to COVID-19 isolation requirements (currently 76 staff have contracted COVID-19 and 26 are close contacts).

•  The loss of care workers - who having achieved a nursing qualification move to the higher paid State sector.

•  The inability to source overseas labour due to travel restrictions.

•  Reduced success in covering shortages using agency or casual labour.

•  Reduced success in persuading existing employees to work additional hours or shifts despite the use of incentives.

[21] The staff shortage problem is so common that SCC has documented strategies to assist in secure coverage for staff shortages 10 including:

•  Requesting nursing staff to work extra shifts or hours

•  Extending shift times or the working of extra shifts by care workers.

•  Offering incentives (including additional payments) to encourage employees to work extra hours and/or shifts

•  Using lifestyle and kitchen staff to assist care workers

•  Using allied health and fitness staff to assist with meals

•  Using cleaners to assist with food service.

[22] SCC has access to agency workers through labour hire providers to fill vacant shifts. Whilst no evidence from the agencies was provided, Mr Heslop contended that the labour hire providers were suffering from staff shortages. I was advised that in April 2020, 298 care worker shifts were cancelled (or unfilled) by the labour hire providers. I do not know what percentage this was of the total number of shifts to which this figure relates, or if some of these shifts were covered by other means.

[23] SCC also has access to a casual pool (SCT Pool) which is managed by Mr Heslop. The size of the pool was the subject of debate (200 v 400). The UWU contend that the SCT pool is not unionised and would thus not be able to participate in protected industrial action.

[24] Mr Heslop contends that SCC has a high number of unfilled shift positions and their ability to fill those shifts has decreased over time. Mr Heslop advised that in January 2022 SCC was only able to fill 50% of 6953 unfilled shifts. In February 2022 this improved to 69% before falling to 67% in March and 61% in April. I am advised that pre-pandemic SCC was able to fill between 86 and 90% of unfilled shift positions (in the same months of the year).

[25] I was not provided any detail of the current and/or optimal staffing levels (or resident/career ratios), or the point at which services would be impacted such to adversely impact on the safety, health, or welfare of the residents. Whilst I have evidence from the care workers that that they are under stress, it is difficult to quantify the actual impact of the staff shortages on workforce levels. SCC contend that any reduction in labour due to industrial action presents an unacceptable risk.

[26] The information in Mr Heslop’s statement 11 at paragraph 17 does not appear to contain the total number of rostered shifts per month per site (unless only 7.3 carers work each day at Bellevue to care for 120 residents over 3 shifts which I suspect is unlikely)

[27] Some of the UWU witness contended that when SCC was the subject of accreditation inspections (which appear to be both structured and random) it was able to secure adequate levels of labour. It was suggested this demonstrated that SCC was capable of addressing any labour shortages. Whilst that might be true, there was no evidence that the accreditation process occurred simultaneously across all sites - which would be the challenge if the proposed protected industrial action occurred.

Employee strategies to deal with shortages

[28] I am advised that care workers use a range of strategies to deal with service provision during staff shortages. These include:

•  Serving Sustagen meals to reduce meal preparation and supervision

•  Encouraging residents into larger groups for easier supervision

•  Skipping employee breaks (including meal breaks)

•  Postponing documentation or linen changes

•  Obtaining assistance from Registered or Enrolled Nurses.

•  Moving to the dining room earlier for dinner

•  Postponing lifestyle activities

•  Postponing room clean-ups

[29] It is submitted that these workarounds could be used to deal with the reduction of carer staff during the proposed protected industrial action. In addition, the timing of the industrial action has taken into account the timing of these activities to try and minimise resident impact, and that the duration is 3.5 hours, and spans the day and afternoon shift.

[30] In addition, Enrolled and Registered Nurses are not covered by the Agreement and thus would have the capacity to backfill tasks performed by employees who take protected industrial action. SCC contended that they suffer from staff shortages in Nursing staff as well. There are also a few other senior staff who are qualified in nursing who could assist. I have also considered the potential for authorised resident visitors to elect to support resident care needs.

Impact of ‘normal’ staff shortages on week of 4-10 May 2022

[31] As at the date of preparation of his Statement Mr Heslop contended that for the week between 4-10 May (the 10 of May being the date of the proposed industrial action), there were 65 shifts that had not been filled via agency staff or the SCT Pool. It appears that Phillip Kennedy did not have any vacant shifts, Buckland had 8 vacant shifts and Pines 2. 12

[32] At a macro level the best evidence suggests that the UWU have 470 members across the SCC sites against a total of 1696 employees covered by the proposed Agreement. This represents a Union density of 27.7% across the business. I recognise that this data is a few months old and may not now be accurate. The number of Union members is based on the ballots issued for the PABO Ballot on 13 April 2022. Since that time some of those employees may have left the SCC’s employ or the UWU, or new employees engaged.

[33] The macro level density appears to be at odds with the more recent detailed information concerning Union density provided by Ms Rowney 13 in her statement. This information was used to compile the table overleaf which was provided to the parties after the hearing but prior to the decision. The Applicant contended that the data supported its view of the impact of the proposed industrial action. The Respondent accepted that the data could be extrapolated but care should be taken. Both parties agreed to my reference to the participation in and results of the PABO Ballot.

[34] The following table provides a more detailed picture and has been compiled from information contained in the statements of Mr Heslop and Ms Rowney. The four numerically largest sites are highlighted and those who are excluded due to an undertaking.

[35] The data in the table above allows for the calculation of the Bed/Workforce ratio at a site level prior to any industrial action and allows some predictions to be made as to the impact of the industrial action on the remaining labour.

[36] Phillip Kennedy (185), Bucklands (159), Pines (144) and Bellevue Court (120) sites have the largest bed numbers. I have assumed beds equate to residents. I recognise that some caution must be used as the total number of care workers are spread over three shifts, some of the workers will be on leave, and that generally speaking, there are more workers rostered during the daytime than the night. However, in the absence of detailed shift numbers it the best evidence that is available to me.

[37] The normal workforce/bed ratio at Phillip Kennedy is 1.276. Whilst this figure does not represent how many beds a care worker has to look after, it can be used for a comparative analysis of the increase in workload.

What level of participation in the industrial action can be predicted?

[38] It is clear from the care workers who gave evidence, priority is placed on a high standard of care for residents. I expect that the majority of the care worker cohort would take the same approach. This may have the effect of reducing the percentage of employees who choose to take the proposed protected industrial action, and increasing the pool of available employees. On the other hand, other employees may be motivated to join colleagues on the day and increase the industrial action participation rate.

[39] I note that 66.7% of eligible employee who participated (341) in the PABO ballot on 13 April 2022, supported Question 1 which identified the action of the type proposed (see picture below). Recognising that this is only a prediction, I have assumed a 66.7% participation rate in industrial action.

[40] Based on a participation rate of 66.7% and extrapolating from the data in the table, the potential increase in workload for remaining care workers in the four largest centres is detailed in the table below.

[41] It appears that a 76% increased workload in Bucklands and 46.5% increased workload Pines would seriously adversely impact the service provision with 303 residents placed at considerable risk of being unable to have call bells answered in time, lack of mobility assistance which may result in falls, issues with toilet access (despite the use of pads) and the provision of food and water. This data supports the anecdotal evidence of the SCC witnesses (which was partly supported by two of the employee witnesses who conceded that if labour got too short there could be adverse consequences). I have not relied solely on the data.

[42] The other two sites would less impacted, but still suffer increased workloads in the order of 28-34%. I suspect this would be problematic, but not so serious as Bucklands and The Pines which have the highest union density.

Mitigation by SCC

[43] The UWU sought to engage with SCC to hold discussions designed to allow mitigation of the impacts of the protected industrial action, but it appears that the parties’ privacy concerns about their data prevented and useful dialogue.

[44] The UWU submitted that if SCC was motivated to, it could apply a combination of these mitigation strategies and the staff attraction options discussed earlier to ensure that staff levels would not fall to a level which prevented the appropriate standard of care.

The law

[45] Section 424 of the Act states:

424 FWC must suspend or terminate protected industrial action—endangering life etc.

Suspension or termination of protected industrial action

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

Submissions

[46] The Applicant contends that;

•  Any reduction in labour as a result of the proposed protected industrial action is unacceptable

•  The level of specificity sought by the UWU is artificial and unnecessary

•  Normal mitigation methods will not work where there is a site wide disruption.

•  Mitigation is impossible as SCC does not know which holes to fill and where and that the UWU could have provided more information

•  The table data referred to supports the Applicant’s contention about the significant impact of the withdrawal of labour.

•  The Applicant’s case satisfied the criteria in s.424.

[47] The Respondent provided written submissions and their oral submission supported the original contentions. They are summarised as follows;

•  The Respondent accepts that the threatened industrial action is (at least) impending.

•  In order to satisfy the second limb of s.424 I must be satisfied that the relevant threat to part of the population must be more probably than not. Speculative evidence or generalised predictions will be insufficient.

•  I was referred to NTEU v University of South Australia and Appeal by NTEU in respect of the meaning of exceptional circumstances.

•  The consequences of the industrial action must be more than inconvenience – it must expose the residents to danger.

•  The danger does not exist simply because people are at risk in some way. 15

•  The availability of sufficient mitigating avenues may be sufficient for the Commission not to be satisfied of the legislative criteria. 16

•  The Applicant’s evidence is generalised and imprecise.

•  The Applicant has failed to try and mitigate the impact of the action.

•  The avenues used previously can be used in this circumstance to ameliorate the industrial action.

•  The Applicant has not demonstrated that on the balance of probabilities that there will be danger to a person’s life, personal safety or health, or welfare.

Consideration

[48] By virtue of s.176(1)(a) SCC is a bargaining representative and has standing to make this Application

[49] The notice given by the UWU on 28 April 2022 satisfies me that there was industrial action that was ‘threatened, pending or probable’, and there is no dispute that the requirements of s424 (1)(b) have been met.

[50] The term ‘population’ refers to the total number or the body of the inhabitants of Australia. 17 The reference to ‘part’ of the population should be read as having a more collective meaning than simply ‘individuals’.18 There is no suggestion in this matter that the residents that would be impacted by the protected industrial action do not fall within part of the population. I consider that a single SCC site can represent a part of the population.

[51] There is no suggestion that the protected industrial action would cause significant damage to the Australian economy or an important part of it.

[52] The remaining issue for determination is whether I am satisfied that the proposed protected industrial action (as modified by the undertaking) has threatened, is threatening or would threaten to endanger the life, personal safety or health, or welfare of part of the population.

[53] Even if conduct is not serious enough to endanger life, it might constitute a significant risk to personal safety or health. 19

[54] Conduct that puts a person’s physical or mental state at risk of material detriment, or that materially hinders or prevents improvements in a person’s poor physical or mental state, may qualify as conduct that endangers personal health or safety. 20

[55] The term welfare is not limited to situations where life, personal safety or health is endangered. 21

[56] I accept that s.424 is only intended to be used in exceptional circumstances 22 and where the action could cause significant harm.23

[57] Having considered the evidence before me those factors which weigh in favour of granting the Application include:

•  The circumstances faced by SCC in terms of securing labour (both normal and replacement) are exceptional.

•  The widespread nature of simultaneous action and the impact that has on access to replacement labour

•  The uncertainty of which and how many members of the UWU will determine to take the industrial action and the impact that has on access to placement labour

•  The impact of the withdrawal of labour will be on the provision of care services and the risk that poses to critical components of patient care such as call bells, toileting and provision food and water

[58] The factors which weight against the granting of the order include:

•  The extended notice of industrial action provided by the Respondent

•  The lack of engagement by the Applicant with the Respondent

[59] I have taken into account the UWU undertakings.

[60] A balancing exercise must be conducted.

[61] I accept that in this matter (as was the case in Victorian Hospitals’ Industrial Association v Australian Nursing Federation) the impact of the proposed action will be different across the SCC sites. Some sites might be better able to cope with the proposed industrial action than others.

[62] It is clear that the proposed protected industrial action will add extra pressure to a workplace which is already under pressure

[63] For some residents, the adverse impact may be an inconvenience, whilst for others the impact may be more serious. In sites with a higher union density, it is more probable than not, that there will be a significant reduction in labour due to the industrial action. These include two of the most populated sites. Unabated, it is probable that the reduction in labour as a result of the protected industrial action will place some of the most vulnerable members of our population at risk.

[64] There is a chance (and I put it no higher than that) that SCC may be able to arrange cover for the loss of labour at some of the less impacted sites, but I cannot foresee how the sites with greater union density will be able to cope with the loss of labour and their inability to provide those services I have identified as having a significant impact on the health and/or safety or the and/or welfare of the Residents and in the case of a fall which is not attended to - the life of the resident.

[65] It would be of little comfort to an injured resident (or their family) that the capacity for SCC to cover the absences from the industrial action was overestimated.

Appropriate Order

[66] Both parties submitted that I should not terminate the protected industrial action.

[67] The Application seeks that in the event that I was satisfied as to the exercise of the power conferred under s.424 that I suspend the capacity to take action for a period of 90 days. During submissions, the Applicant revised its position and sought a suspension of 4 weeks. I am not required to grant the relief in the form sought.

[68] The Applicant advised that me that negotiations were continuing, but in the absence of the parties reaching agreement on the terms of the proposed Enterprise Agreement, the Applicant may distribute an Agreement for consideration by the employees in 4 weeks’ time.

[69] It is possible that the Agreement may be made in as little as 5 weeks. In my view it would not be appropriate to prevent the taking of industrial action for the majority of that period.

[70] The UWU sought that I suspend the industrial action for a period of two weeks.

Decision

[71] I have concluded that that the proposed industrial action (taking into account the undertakings given) would threaten to endanger the life, personal safety or health, or the welfare of part of the population. As a result of that finding, I must make an order either suspending or terminating the protected industrial action.

[72] In my view it is appropriate to suspend the industrial action for two weeks and I so determine. An order to this effect (PR741377) will publish with effect from the date of this decision.

Appearances:

A Short of Counsel for the Applicant.
R. Gray of Counsel for the Respondent.

Hearing details:

2022.
Video Hearing, Adelaide:
May 3,4,5,6.

Printed by authority of the Commonwealth Government Printer

<AE515845  PR741377>

 1   Exhibit A3

 2   Exhibit A2

 3   Exhibit R2 (including annexures)

 4   Exhibit R4

 5   Exhibit R5

 6   Exhibit R6

 7   https://www.sahealth.sa.gov.au/wps/wcm/connect/e6f2b60e-df96-42f4-be16-ef261b976df2/20220503+-+Fact+sheet+-+Information+for+Operators+Residential+Aged+Care+Facilities+Emergency+Management+Direction.pdf?MOD=AJPERES&amp;CACHEID=ROOTWORKSPACE-e6f2b60e-df96-42f4-be16-ef261b976df2-o28sgDI

 8   Exhibit R3

 9   [2011] FWAFB 8165

 10   See Exhibit R2 attachment KR1 for additional examples

 11   Exhibit A2

 12   See paragraph 14 of Exhibit A2

 13   Exhibit R2 Paragraph 19

 14   Methodology – Divide number of beds by total site workforce (Calc 1). Calculate UWU member participation by multiplying membership x .667 (PABO support for Q1). Subtract member participation from site workforce, to determine remaining staff level, divide number of beds by remaining staff (Calc 2)– Compare result to first calculation and determine percentage change.

 15   G4S v HSU of Australia [2011 FWA 5902

 16   Application by Commonwealth of Australia [2016] FWC 7184

 17   Transit Australia Pty Ltd v Transport Workers’ Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011) at para. 9.

 18   Coal & Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union Print P8382 (AIRCFB, Giudice J, Munro J, Larkin C, 29 January 1998) at p. 20, [(1998) 80 IR 14].

 19   Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011) at para. 51, [(2011) 214 IR 148].

 20   Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J, Acton SDP, Lewin C, 15 December 2011) at para. 51, [(2011) 214 IR 148].

 21   State of Victoria - Department of Health and Community Services v Health Services Union of Australia Print L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.

 22   NTEU v University of South Australia [2010] FWAFB 1014

 23   NTEU v University of South Australia [2010] FWAFB 1014