Fair Work Act 2009
s.225—Enterprise agreement

Tuftex Carpets Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8586)

Application for termination of the Tuftmaster Carpets - TCFUA Enterprise Agreement 2017

[1] The applicant, Tuftex Carpets Pty Limited (which trades as Tuftmaster Carpets) operates a carpet manufacturing business in Preston, in the state of Victoria, employing approximately 81 employees, the great preponderance of whom are permanent full time employees.¹ The Tuftmaster Carpets – TCFUA Enterprise Agreement 2017 (Agreement) applies to the applicant and is a transferable instrument. It does not cover all 81 employees, but only those of that cohort who were transferring employees within the meaning of s 311(2) of the Fair Work Act 2009 (Act) when each commenced employment with the applicant in 2018. These employees were previously employed by Tuftmaster Carpets Pty Ltd, an associated entity of the applicant and to which the Agreement applied. The applicant became covered by the Agreement in relation to the transferring work performed by transferring employees for the applicant by operation of s 313(1) of the Act after the transfer time. As to the applicant’s employees who are not transferring employees and who fall within the coverage of the Textile, Clothing, Footwear and Associated Industries Award 2020 (Modern Award), the Modern Award applies to their employment.

[2] When the Agreement was approved, it covered the Textile Clothing and Footwear Union of Australia (TCFUA). Upon its amalgamation with the Construction, Forestry, Mining and Energy Union and the Maritime Union of Australia, the TCFUA was deregistered. The amalgamated union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) became covered by the Agreement by force of s 76 of the Fair Work (Registered Organisations) Act 2009 and the Agreement applies to it. The Agreement’s nominal expiry date of 31 August 2020 has passed.

[3] The applicant and the CFMMEU commenced bargaining for an enterprise agreement to replace the Agreement towards the end of April 2021, although the CFMMEU appears to have been agitating for the commencement of bargaining since at least June 2020, consistently with the Agreement’s requirement (clause 11) that the “parties” commence negotiations for a new agreement not less than three months before the Agreement’s nominal expiry. To date a new enterprise agreement has not been made although as will become clear, much about the content of the proposed agreement is the subject of in-principle agreement as between the applicant and the CFMMEU. By its application dated 26 November 2021 the applicant applies under s 225 of the Act for the termination of the Agreement. The CFMMEU opposes the application.

[4] It is convenient to begin with a consideration of the statutory scheme under which this application is brought.

[5] The relevant legislative mechanism by which an enterprise agreement may be terminated is found in Division 7 of Part 2–4 of the Act. Subdivision D of Division 7 contains provisions which enable the termination of an enterprise agreement after the agreement has passed its nominal expiry date. These are as follows:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] The operation of these provisions was considered in detail in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd² and by a Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd³ and need not be repeated here.

[7] The statutory task performed under s 226 of the Act is informed by the statutory context and the objects and purpose of the legislation. The object and purpose of the Act and Part 2-4, in which s 226 resides, is to be found in ss 3 and 171 respectively. Section 226 involves the exercise of a “narrow” discretion, in the sense that the Commission is required to make a particular decision if it forms a particular opinion or value judgment.⁴ But the evaluative assessments required by s 226(a) and (b) allow the Commission a degree of latitude as to the conclusions to be reached.⁵ Section 226 requires the Commission to take into account “all of the circumstances, including the matters identified, in making its evaluative assessment. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account.⁶ To take into account “all of the circumstances” means that each relevant matter (including those identified in s 226) constituting the circumstances must be treated as a matter of significance in the decision-making process⁷ and requires the Commission to evaluate it and give it due weight, having regard to all other relevant factors.⁸ In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.⁹

Consideration

[8] I will begin my consideration with the second limb of s 226 – whether it is appropriate to terminate the Agreement taking into account all the circumstances.

The applicant’s views

[9] The applicant supports the termination of the Agreement and the CFMMEU accepts that that this is a circumstance that weighs in support of a conclusion that it is appropriate to terminate the Agreement.¹⁰ This is so, however, in assigning weight to this circumstance, it is relevant to assess the veracity of the views expressed by the applicant. Tara Morley is the applicant’s Human Resources Manager and has been employed by the applicant since May 2021.¹¹ Ms Morley gave evidence in support of the termination application particularly directed to the views of the applicant, the substance of which is summarised further below. Ms Morley’s evidence together with that of Brian Gregson, the applicant’s financial controller (which is later addressed), also dealt with the circumstances of the applicant including the likely effect that the termination of the Agreement will have on the applicant.

[10] The applicant contended that the reason for the view (that it supports the termination) is expressed through the unchallenged evidence of Ms Morley.¹² For the reasons that will become apparent, I do not accept that Ms Morley’s evidence was relevantly unchallenged, nor do I consider the reasons she advances for the view that the Agreement should be terminated as particularly persuasive. For that reason, I do not propose to assign any significant weight to the applicant’s views.

The circumstances of applicant including the likely effect that the termination will have on the applicant and other relevant circumstances

[11] The applicant is a family owned and operated carpet manufacturing business, which as earlier noted employs approximately 81 employees, 80 of whom are permanent full-time and one is a casual employee.¹³ The applicant operates its business from Victoria with its manufacturing and support services based in Preston. It has sales representatives located in all other states.¹⁴ Employees who are covered by the Agreement comprise 28.5% female employees and 71.5% male employees, with an average age of 52 years – the youngest production employee is 31 years of age, and the most senior production employee is 72 years of age.¹⁵

[12] The applicant aspires to create a more flexible working environment and to attract a more diverse workforce.¹⁶ The applicant says it wishes to commit to introducing several offerings to its manufacturing business but that the Agreement operates as a hindrance to their introduction.¹⁷

[13] The applicant wishes to make apprenticeships for trades positions (such as fitters and turners) available to increase the availability of skilled tradespeople with experience in tufting equipment. The applicant wants to offer apprenticeships through either a contracted agency (where it is charged for the hours worked by agency), or through fixed term contracts. If work is available at the end of an apprenticeship, the applicant would offer permanent employment. The applicant maintains that clause 22 of the Agreement prevents it from engaging contractors and clause 34 of the Agreement prevents it from engaging employees on a fixed term basis. The applicant says that consequently, it has not been able to engage apprentices for many years, and in the result, this contributes to the aging and deskilled demographic of its workforce.¹⁸

[14] The applicant wants to provide opportunities for employees to work in casual, fixed term, or part time positions (other than through job share arrangements) so manufacturing can be a more attractive industry for people who have out of work commitments or for students who are limited by the number of hours they are able to work each week. Ms Morley says that the Agreement is silent as to part-time engagements and so it has not engaged anyone on this basis and because of clause 31 of the Agreement, the applicant can only offer job share arrangements in particular circumstances and only where the employees, department managers and team leaders are all in agreement.¹⁹

[15] The applicant considers that restrictions in the Agreement on the engagement of casual and fixed term employees means that other employees cannot take a leave of absence without being concerned that there is no-one to backfill their role and the impact that will have on the rest of their team. The applicant considers that because it cannot back-fill roles through fixed term contracts, some existing employees attended work while injured so that others were not burdened with the work.²⁰ The applicant also considers that the limited duration of casual employment it is able to offer under clause 32 of the Agreement (a maximum of 16 weeks) means that it is unable to enter into longer term casual contracts for employees for whom the flexible nature of a casual contract is more attractive.²¹

[16] Ms Morley pointed to several provisions of the Agreement which the applicant maintains make it difficult to apply or cause real and tangible difficulties in the efficiency and productivity of the applicant’s business as follows:

•  Clause 21 of the Agreement which deals with redundancy entitlements is said to be a significant cost because the applicant is unable to make business decisions (such as outsourcing, reduction of workforce size, sale of the business) because redundancies consequent on any such decision present a prohibitive cost barrier. The applicant says that its current redundancy liability for all staff covered by the Agreement on base salary alone is approximately $1,368,496.50 not including superannuation or any other entitlements paid out on termination of employment. The applicant says that it has had difficulty securing additional funding and investment because of the cost of redundancy.

•  Clause 22 which deals with the use of contractors is said to make engagement of contractors difficult where there are short-term requirements to cover employee absences or to fill skills gaps within the business.

•  Clause 23 which deals with Electronic Funds Transfer is said to be outdated as it requires the applicant to pay some employees an addition $1 per week for the inconvenience of being paid by EFT and not in cash.

•  Clause 24 which provides for the applicant to make an ex-gratia payment of four weeks wages to an employee on retirement or resignation if the employee has completed at least 15 years of service. Ms Morley says that eight employees are currently eligible for this payment at a total cost of $33,120.90.

•  Clause 26.1(b) which provides that an employee is entitled to two single sick days per annum without proof of illness, which the applicant says is frequently used by employees.

•  Clause 30 which provides for deduction and remittance of union membership fees, which the applicant says imposes an additional administrative burden.

•  Clause 32 which contains a restriction on the applicant’s capacity to engage a casual employee for longer than 16 weeks without the consent of the CFMMEU as well as restrictions on the minimum number of hours a casual employee may be engaged. Ms Morley also says that it is difficult to apply the penalty rates provisions of clause 32 because they are referable to the Textile Industry Award 1994 (as in operation on 30 June 1998) which is not attached to the Agreement. She says that the applicant must rely on the CFMMEU to provide it with a copy of that Award.

•  Clause 34 which limits the use of fixed term employment to coverage for maternity leave absences. The applicant says that the provision restricts its capacity to backfill positions in other circumstances such as long-term absences for reasons other than maternity leave.²²

[17] Ms Morley maintains that the applicant is required to be aware of the terms and conditions in multiple different instruments (which runs over 400 pages in length) through a convoluted referencing system, in circumstances where it cannot independently locate a copy of one of the instruments.²³

[18] The applicant contends that Ms Morley’s evidence explains why the applicant considers that termination of the Agreement is appropriate. In short compass, this is because the applicant’s earlier stated vision is hindered by the array of restrictive or expensive terms and conditions contained in the Agreement; properly applying the Agreement is difficult because of its length and complexity; the redundancy provisions of the Agreement all but rule out making business decisions which might involve termination of employment on the ground of redundancy and obtaining additional funding or investment has been difficult because of the redundancy provisions; and the use of more flexible labour arrangements such as the use of contractors and longer term casual employees is prohibited further restricting its capacity to appropriately manage its business. The applicant contends that Ms Morley’s evidence about these matters was unchallenged. To the extent that Ms Morley gave evidence about the applicant’s vision and desire for the business that is correct. Indeed, it is difficult to see how the CFMMEU might have challenged this evidence. But it is not correct to say that Ms Morley’s views about the prescriptive nature and effect of the Agreement on the applicant’s business, vision or ambition was unchallenged.

[19] Jenny Kruschel is the TCF National Secretary of the CFMMEU’s Manufacturing Division. Without rehearsing in detail Ms Kruschel’s evidence, she disputes Ms Morley’s evidence about the following matters, or says that the issue identified by Ms Morley has been resolved in principle during bargaining:

•  the standard practice in the manufacturing industry concerning the engagement of apprentices and the impact the Agreement’s provisions on the applicant’s capacity to do so;

•  the impact of the limitation on casual employment and the absence of part-time employment provisions in the Agreement;

•  the capacity of the applicant to locate a copy of the Textile Industry Award 1994 (as in force on 30 June 1998); and

•  the operation and effect of clauses 15,16, 22, 23, 24, 26, 30, 32 and 34 of the Agreement.²⁴

[20] There can be little doubt that navigating the Agreement is not without its complexity given the incorporation of the Textile Industry Award 2000 (as in force on 5 December 2000) and the Textile Industry Award 1994 (as in force on 30 June 1998) as terms of the Agreement. But it is telling that, apart from the size of the Agreement when account is taken of the incorporated instruments, the only complaint of substance made is that the applicant is required to be aware of the terms and conditions in multiple different instruments (which runs over 400 pages in length) through a “convoluted referencing system”, in circumstances where it cannot independently locate a copy of one of the incorporated instruments. Of the array of specific terms of the Agreement identified by Ms Morley as negatively impacting on the applicant’s vision or ambition for its business, with the exception of casual penalty rates for work outside the normal spread of hours (clause 32.3(b)), no other arises from the incorporated instruments. All other clauses identified by Ms Morley as problematic are express terms of the Agreement.²⁵

[21] The notion of a convoluted referencing system by reference to the Agreement is not explained nor is any probative connection drawn between the form of the Agreement and any negative impact on the profitability or operation of the applicant’s business. To the extent that the Agreement explains its interaction with incorporated instruments by reference to a requirement that the Agreement will be read (or operate) in conjunction with the incorporated instruments and will prevail over inconsistent terms of those instruments, this kind of formulation is common in Agreements which incorporate instruments by reference including Awards. Likewise, the precedence given to express terms over inconsistent incorporated terms is not an uncommon formulation. Far from being convoluted, the Agreement seeks to explain how its express terms relate to the incorporated terms and the circumstances in which the incorporated terms will not operate. Beyond this, the incorporated instruments like the Agreement utilise a multi layered number and letter method to identify the various clauses, subclauses and paragraphs.

[22] The applicant has a copy of the Textile Industry Award 1994 (as in force on 30 June 1998). The applicant attached a copy of it to its application. The applicant’s concern appears to be about verification of the instrument since it obtained a copy from the CFMMEU without verification of its authenticity.²⁶ Ms Morley’s evidence that the applicant has “no way of verifying”²⁷ the instrument’s authenticity is not explained. She does not set out any steps that she or anybody else has taken to attempt to obtain a verified copy of the instrument or why those attempts failed. Her evidence in this regard is unconvincing and cannot be accepted. Whilst it is true that instrument is not available on the Commission’s website it does not mean is not available or accessible at all. Requests can be made to the Commission’s library staff for a verified copy of the instrument and a copy can be provided. Frankly if there is real concern about the applicant complying with any of its obligations under the instrument operating as incorporated terms of the Agreement one would have thought that such a step would already have been taken. In the circumstances the only reason the applicant has not been able to obtain a verified copy of the instrument appears to be a lack of diligence on its part to make the most basic of enquiries.

[23] As to the specific provisions of the Agreement said to be causing “real and tangible difficulties in the efficiency and productivity for the” applicant, the following may be observed.

[24] Clause 22 of the Agreement provides that the applicant “is committed to the use of its own employees in all aspects of the production process”. Ms Morley’s evidence was that clause 22 makes it difficult for the business to engage contractors where there is a short-term requirement to cover employee absences or to fill a skill gap within the business and that the CFMMEU resists allowing contractors to be used to fill skill gaps.²⁸ Nonetheless the CFMMEU has indicated that it would consider the applicant’s desire for more flexibility in the use of contractors to cover short-term absences of staff.²⁹ More relevantly however is that the purported restriction on the use of contractors is perhaps more imagined than real. Clause 22 of the Agreement is expressed as a commitment to use the applicant’s employees in all aspects of the production process. It is not a prohibition on the use of contractors in particular circumstances and I do not accept that it operates in the prohibitive manner suggested by the applicant.

[25] Clause 23 requires an annual payment of $52.00 (pro rata) to employees whose method for payment of wages has changed from cash to electronic funds transfer (EFT). No detail is provided about how many employees are affected or when affected employees had the method of payment of wages changed from cash to EFT. Plainly the clause has limited operation because it is in the nature of a “ring-fencing” provision and will not apply to any employee covered by the Agreement who commenced employment after EFT as a method of payment of wages was introduced. It also does not affect non-transferring employees. Indeed, as Ms Kruschel’s evidence discloses, at a bargaining meeting held on 14 July 2021 the applicant disclosed that approximately 10 employees were affected by the provision and that at a bargaining meeting held on 12 April 2022 the applicant advised the CFMMEU that it no longer pressed the issue.³⁰ This was not disputed in Ms Morley’s reply statement.³¹ The annual cost to the applicant is therefore $520.00.

[26] Clause 24 of the Agreement provides for employees who have completed 15 years or more of continuous service with the applicant to be paid an ex-gratia payment of four weeks wages on retirement or resignation. Ms Morley’s evidence was that this is a provision that the applicant does not want in a new enterprise agreement because of the cost imposed. She said that there were currently eight employees who are eligible for the payment which amounted to an additional cost of just over $33,000.³² There is doubtless an additional cost, as there is with any benefit to employees for which the Agreement provides, however Ms Kruschel’s evidence is that during bargaining the CFMMEU and the applicant agreed to retain clause 24 in the proposed agreement and that this is reflected in a document sent by Ms Kruschel to Ms Morley on 5 October 2021.³³ This was not disputed in Ms Morley’s reply statement.³⁴

[27] Clause 26 of the Agreement allows an employee to take two single sick days per annum without providing proof of illness subject to certain restrictions. Ms Morley gave evidence to the effect that since she commenced employment the applicant has received notification “nearly every workday of an employee who has not come into work due to illness without evidence”.³⁵ This statement does not survive the barest of scrutiny. First, Ms Morley does not contend that any employee who has taken or who takes a single sick day absent is not sick nor does she say that most employees who take such leave are not sick when the leave is taken. Moreover, Ms Morley does not provide any detail about the extent to which employees utilise their full entitlement to personal/carer’s leave each year or whether there is any material problem experienced by the applicant in relation to absenteeism. The evidence given is in the abstract and unhelpful. Secondly, the contention that an employee makes use of the entitlement “nearly every workday” is plainly exaggerated. Ms Morley gave evidence that the applicant employs 80 full-time employees³⁶ but only 41 are covered by the Agreement.³⁷ If each employee took the entitlement that would result in 82 days of absence per annum without a requirement to provide proof of illness. Assuming a Monday to Friday operation and taking into account public holidays, there would be 250 working days. That hardly constitutes “nearly every workday”.

[28] In any event Ms Kruschel’s evidence is that during the course of bargaining and as reflected in a document sent by Ms Kruschel to Ms Morley on 5 October 2021 the CFMMEU and the applicant had agreed to retain clause 26 (as clause 37) in the proposed agreement.³⁸

[29] Clause 30 of the Agreement deals with union membership and provides for the applicant to deduct union fees from employees who are union members and remit those fees to the CFMMEU monthly without charge. Ms Morley says that this is an administrative burden for which the applicant does not wish to be responsible. Doubtless it is an administrative burden, but no evidence is provided about how many employees are affected by the provision or the time and cost incurred in deducting and remitting such fees. In addition, the provision only requires the maintenance of the arrangement insofar as employees are covered by the Agreement and are union members. The applicant is not required to facilitate union fee deductions in respect of employees who are union members but who are not covered by the Agreement because they are not transferring employees. The Agreement contains obligations on the employer to the CFMMEU vis-à-vis deductions but only in respect of employees covered by the Agreement who are union members and who have authorised the deductions.

[30] Clause 32 of the Agreement deals with casual employees and allows the applicant to employ casual employees for a period of 16 weeks. Engagement of a casual employee for periods longer than 16 weeks requires agreement with the CFMMEU. Casual employees must be engaged for a minimum of three hours in a day and for a minimum of eight hours in any week. Ms Morley identifies three issues. The first is the requirement to reach agreement with the CFMMEU before an employee may be engaged as a casual employee for a period longer than 16 weeks. The second is that the eight hours per week minimum engagement requirement does not meet the applicant’s operational needs. The third is there is uncertainty as to how the payments to be made to casual employees for work outside the spread of normal hours are determined by reference to the spread of hours set out in subclause 18(c) of the Textile Industry Award 1994 (as in force on 30 June 1998) given the uncertainty as to the terms of that instrument.

[31] As to the issue of requiring the agreement of the CFMMEU to engage a casual employee for a period longer than 16 weeks, Ms Kruschel’s evidence was that to her knowledge there had not been a single instance where the applicant has sought the agreement of the CFMMEU “to retain a casual employee covered by the agreement beyond the 16 week period”.³⁹ Ms Morley’s evidence did not directly contradict this evidence.⁴⁰ Ms Kruschel’s evidence was also that all issues, save for the 16 week limit, had been resolved in principle during bargaining and that members of the CFMMEU had on 13 April 2022 endorsed a 20 week limit instead of 16 weeks.⁴¹ This is not controversial. The in principle agreement set out in Ms Kruschel’s evidence would seem to resolve the second and third concerns but, in any event, having regard to my earlier observations about the applicant’s concerns as to the authenticity of the copy of the Textile Industry Award 1994 (as in force on 30 June 1998) in its possession, the third matter identified can hardly be viewed as significant or material. As to the second, no detail is provided by Ms Morley about the applicant’s operational needs or how that need is not met by the minimum engagement requirement of clause 32. Without this, Ms Morley’s evidence raises no higher than to the level of a bare assertion.

[32] Moreover, the restrictions on the use of casual labour by the applicant imposed by the Agreement are perhaps more imagined than real. I think Ms Kruschel understood this when crafting her evidence that she was not aware of a single instance where the applicant has sought the agreement of the CFMMEU “to retain a casual employee covered by the agreement beyond the 16 week period”. The Agreement only applies to transferring employees and the Agreement’s restrictions on casual employment can only apply to a casual employee covered by the Agreement. The Agreement does not impose limitations on the capacity of the applicant to engage casual employees who are not transferring employees because the Agreement does not cover such casual employees. Non transferring casual employees that the applicant may wish to engage will be covered by the Modern Award and clause 11 thereof sets out the parameters for their engagement.

[33] Clause 34 of the Agreement provides that the applicant is able to employ staff on a fixed term contract basis to cover a maternity leave period taken by any of its full-time employees. Ms Morley says that the positions of employees who are absent for long periods, for example because of illness, cannot be backfilled by a fixed term employee because of the restriction. She also says that apprentices cannot be employed because apprentices are usually employed on a fixed term basis rather than as ongoing employees.⁴² Neither of these propositions is correct. Any apprentice employed by the applicant would be a new employee and therefore not covered by the Agreement. The Modern Award, which is also the instrument that would apply to the transferring employees if the Agreement were terminated, will now apply to any apprentice the applicant wished to engage. Clause 13 and Schedule E of that award sets out the conditions on which an apprentice may be employed. The Agreement would not prohibit the applicant employing such an apprentice on a fixed term basis. It may be arguable that backfilling a position of an employee covered by the Agreement who is on a long-term absence may not be done on a fixed term basis but that that is not the case in respect of such an employee who is not covered by the Agreement. And in the case of an Agreement covered employee, there would be nothing to prevent the applicant from shifting an existing ongoing non-transferring employee to cover the long-term absence and to then backfill that position with an employee engaged on a fixed term basis as neither the non-transferring employee nor the new backfill employee would be covered by the Agreement.

[34] Furthermore, as Ms Kruschel’s evidence discloses, the CFMMEU proposed on 5 October 2021, to include a term in the proposed agreement which would extend the use to which fixed term employment could be put to include covering of special leave, maternity leave and periods of leave taken by any of its full-time employees.⁴³ This is not disputed. Such an amendment would resolve much of the concern identified and it appears that the issue raised by the applicant during bargaining is not pressed as a result.⁴⁴ This also does not appear to be in dispute.

[35] Ms Morley also identified clauses 15 and 16 of the Agreement as raising further problems for the business.⁴⁵

[36] Clause 15 of the Agreement refers to a skill level classification structure which is separately annexed as attachment C and which Ms Morley says is outdated when regard is had to the classification structure in the Modern Award.⁴⁶ Ms Kruschel’s evidence, which was not disputed, was that during a bargaining meeting held on 11 June 2021, the bargaining parties agreed that the provision for classifications in the proposed agreement would refer to the skill level classifications and definitions in the Modern Award and that this was reflected in a document sent by Ms Kruschel to Ms Morley on 5 October 2021.⁴⁷ This would seem to resolve the concern identified.

[37] Clause 16 of the Agreement deals with special leave without pay which permits an employee who has completed more than five years of continuous service to apply for special leave on one occasion for a period of not more than two months. Eligibility is subject to several restrictions including that the employee has utilised and exhausted all other leave entitlements such as annual and long service leave. Ms Morley’s evidence is that although the clause appears to be discretionary, she is concerned that the discretion could not be exercised in an unfettered manner. She contended that the existence of the provision in the Agreement has led to staff availability issues by the usual unpredictability of staff taking personal carers leave and the restrictions imposed by clause 22 of the Agreement on the use of contractors.⁴⁸ Ms Kruschel said that with the exception of one matter related to the effect special leave without pay had on an employee’s continuity, the bargaining parties had reached an in principle agreement to include special leave without pay in the proposed agreement.⁴⁹ That this is so does not appear to be in dispute. But in any event, as with several matters raised by Ms Morley, the impact on the applicant’s business of this provision is much more imagined than real. Ms Morley’s own evidence discloses that during her employment with the applicant no employee has made an application for special leave without pay.⁵⁰ Moreover given the conditions of clause 16 to exhaust all leave entitlements, to give three months’ notice, and the approval of the leave being subject to meeting all of the conditions and subject to the applicant’s operational requirements, the prospect of the operation of this clause having the effect identified by Ms Morley is to say the least remote.

[38] That which should be clear from the analysis above is that many of the provisions identified by Ms Morley and the applicant as problematic do not have the effect for which she and the applicant contend. The course of bargaining also appears to have resulted in agreement or in principle agreement in respect of several of the provisions. In some cases, a change to the provision of the Agreement identified as problematic in this case is no longer pressed by the applicant as an issue in bargaining. Further the effect of some of the provisions identified by Ms Morley is plainly exaggerated.

[39] In the result I do not consider that any of these matters taken individually or collectively lend support to the applicant’s view that they hinder its stated vision for the business or the operation of the business, nor do they weigh in favour of a conclusion that it is appropriate in the circumstances to terminate the Agreement. I do not accept, as the applicant has contended, that result of these provisions is that the applicant presently has one casual employee, zero apprentices, zero fixed-term employees, zero contractors, and an inability to efficiently backfill vacancies.⁵¹ For the reasons explained above I do not consider the Agreement prevents or restricts the employment of casual employees or fixed term employees. The Agreement in terms does not prohibit the engagement of contractors and positions may be backfilled in the manner earlier discussed. The applicant’s contention that the Agreement’s provisions have resulted in 25 positions that need to be filled⁵² also cannot be accepted for the reasons just stated. The Agreement does not apply to new hires. In any event Ms Morley’s evidence was that she had “25 positions that [she was] planning on filling between now and the end of the next financial year”.⁵³ This evidence was given in the context of a discussion about the prospect of redundancies in the foreseeable future.⁵⁴ Ms Morley did not say that these vacancies had arisen or had not been filled because of any restriction in the Agreement.

[40] For the same reasons, the applicant’s contention at [27] of its outline, to the extent it relies on terms in the Agreement discussed above in support of its claim that termination is appropriate, is also rejected.⁵⁵

[41] Before turning to the Agreement’s redundancy provisions it is convenient to deal with two further provisions of the Agreement identified by the Applicant in its submissions about which the applicant complains and which are said to conflict with the provisions of the Act. 56

[42] The first is clause 30.3 of the Agreement, which relevantly provides that “the Branch Secretary of the TCFUA or any person authorised by the TCFUA shall have the right to enter the factory premises of Tuftmaster for the purposes of holding discussions with employees during the lunch hour or non working time”. On its face, the provision appears to be an unlawful term within the meaning of s 194 of the Act, in that it provides an entitlement to enter the applicant’s premises for a purpose of holding discussions with employees of the kind referred to in s 484 other than in accordance with the provisions of Part 3-4. This is because the entry right under the Agreement may, inter alia, be exercised by a person who is not a permit holder and without the need to comply with the entry notice requirements found in Part 3-4.

[43] The applicant contends that the provision may lead to practical difficulties and disputation. However, there is no evidence of either. Clause 30.3 of the Agreement has no effect to the extent that it is an unlawful term. 57 There is no practical difficulty in administering entry rights. Because the entry rights conferred by the Agreement stray beyond Part 3-4 of the Act in relation to a purpose of holding discussions with employees of the kind referred to in s 484, the entry rights are an unlawful term to that extent. Entry rights exercised for a purpose of holding discussions with employees of the kind referred to in s 484, may only be exercised by CFMMEU permit holders and then only in accordance with Part 3-4. A CFMMEU official who is not a permit holder has no entry rights under Part 3-4. Similarly, a CFMMEU permit holder who has not given notice as required, has no right of entry.

[44] The second is clause 26.1(b) of the Agreement, which contains an entitlement to take non-cumulative personal leave of two days per annum without proof. The applicant contends that the provision is contrary to its rights to require evidence of the reason for a person’s leave absence under s 107 of the Act. It says that the term contravenes s 55(1) because it excludes a provision of the NES. If that be correct, then the term of the Agreement has no effect to the extent that it contravenes s 55. 58 But for reasons which follow I do not consider the applicant’s analysis to be correct.

[45] The effect of clause 26.1(b) of the Agreement is that the employer does not require evidence of the reason for the absence in the particular circumstances set out. Section 107(3) is only engaged when the employer requires evidence and an enterprise agreement may include terms relating to the kind of evidence that an employee must provide, 59 which may include a provision that requires no evidence in respect of some portion of the leave entitlement.

[46] Moreover, as s 107(4) makes clear, an employee’s entitlement to personal leave under Division 8 is conditioned on an employee complying with s 107, which includes providing evidence when the employer requires it. The evidence requirement in s 107(3) is a condition attaching to the entitlement, it is not a stand-alone entitlement of the employer. Understood in this way, clause 26.1(b) of the Agreement is a term permitted by s 55(4) as a term which supplements the NES in a way that is not detrimental in any respect to an employee when compared to the NES.

[47] Clause 21 of the Agreement deals with redundancy and contains redundancy pay provisions which in most respects, are in excess of those provided by the NES. In respect of an employee with at least one year but less than two years of service, by reason of an undertaking given by the employer at the time the Agreement was approved by the Commission, the entitlement is to 4 weeks redundancy pay, which is equivalent to the corresponding NES entitlement. An employee whose position is redundant and whose employment is terminated as a consequence is entitled, inter alia, to three weeks’ pay for each year of service which is capped at a maximum of 70 weeks’ pay. The cap is reached when an employee reaches 23.33 years of service.

[48] Ms Morley’s evidence was that the redundancy provisions of the Agreement are among the provisions which cause real and tangible difficulties in the efficiency and productivity of the applicant’s business. She said that the significant cost of redundancy impacts the business in two ways. First, the applicant was unable to make business decisions such as outsourcing, reduction of workforce size, or the sale of the business, because of the prohibitive cost of redundancy. Second, the current redundancy liability for all staff covered by the Agreement exceeds $1.36 million excluding other entitlements and had caused the applicant difficulty in securing additional funding and investment. She said that the applicant had been attempting to secure additional funding from several banks and investors over the past three years and that in at least three instances of which she was aware, the applicant has not been successful in securing funding because of the liabilities created by the Agreement.⁶⁰

[49] Ms Morley’s evidence was that the applicant did not have an intention to make any employee redundant but was seeking to secure less beneficial redundancy entitlements because it presented a barrier to securing funding.⁶¹ The applicant’s submissions were to the same effect.⁶² Given the position of the applicant as to its intentions vis-à-vis redundancy, and its desire to continue trading, the impact on the business decisions of the redundancy provisions of the Agreement identified by Ms Morley must carry little weight since each of the kinds of business decisions identified – outsourcing, reduction of workforce size and sale of business – would result in the termination of employment of employees on redundancy grounds. Speculating that such decisions might be made would be inconsistent with the applicant’s stated position that it does not intend to make employees redundant.

[50] That leaves for consideration the second of the two impacts identified, namely that the redundancy liability has had a negative impact on the applicant’s capacity to obtain additional funding and investment. Apart from Ms Morley’s evidence (which is clearly hearsay in nature since she does not say that she was directly involved in any effort to obtain or secure funding or investment – instead, she says that she was aware of at least three instances), there is no document produced from any prospective funder or investor setting out that an application for funding has been rejected and the reasons for the rejection.

[51] Mr Gregson gave evidence that he was unable to provide any documents about funding applications. He said that he had discussions with the applicant’s financial brokers and three banks and that based on Mr Gregson’s discussions with the financial broker the applicant “did not meet the criteria” for funding.⁶³ His evidence was that since 2018 some third-party funding had been obtained for the purchase of machinery the cost of which is in the vicinity of $700,000 when commissioned,⁶⁴ although Mr Gregson subsequently clarified that the funding was issued to a separate company operated by the majority shareholder of the applicant, Kate Scott, which purchased a tufting machine and proposed to lease the machine to the applicant.⁶⁵

[52] Taken together Ms Morley’s assertions in her evidence about the difficulties in attracting funding and investment and the reasons for those difficulties cannot be accepted because they lack any sufficient foundation. It follows that the applicant’s submission to that effect which is founded on Ms Morley’s evidence must also be rejected. In the result the redundancy provisions of the Agreement and their contended impact on the applicant’s business are not matters which weigh in favour of a conclusion that it is appropriate to terminate the Agreement.

[53] The applicant also contends its financial position is a relevant circumstance that weighs in favour of the appropriateness of terminating the Agreement, although it rejected the CFMMEU’s characterisation that its financial position was “the key matter” on which the applicant relied to support its application. 66

[54] Mr Gregson gave evidence about the applicant’s financial position. Mr Gregson said that over the last four years, the applicant has suffered financial losses due to several factors including the rising costs for raw materials, increasing costs for freight, reductions in sales because of the COVID-19 pandemic and reductions in production due to plant closures, and from which the applicant is still recovering.⁶⁷

[55] Mr Gregson said that the applicant’s revenue and operating profitability has seen steady and steep decline since 2018⁶⁸, as follows:

[56] Mr Gregson said (in his 3 March 2022 statement) that “[l]ooking ahead and assuming that we continue to operate under the existing Enterprise Agreement and our sales do not see a significant increase, the [applicant’s] business will cease operating within months”⁶⁹ and (in his 29 April 2022 statement) that without significant change “it is unlikely that the [applicant] will be trading in FY2022/23”.⁷⁰

[57] Despite these predictions, the Agreement still operates and the applicant’s business still trades.

[58] Mr Gregson said (in his 3 March 2022 statement) that because expenses have increased and sales have not, this resulted “in a negative profit projection” for FY2021/22.⁷¹ Less than two months later (in his 29 April 2022 statement), Mr Gregson said that he was projecting a “small profit” for the financial year ending 30 June 2020 of $1 million.⁷² Mr Gregson explained his reference to “small profit” as follows:

THE DEPUTY PRESIDENT:  Just on that, I understood your answer to one of Mr Bakri’s questions a moment ago that you regarded it as small profit, or you described it as a small profit of $1 million, taking into account the revenue or the turnover; is that right?---Yes.

But you also gave evidence that the year to date, or at least the first three-quarters of the year, you agreed with the proposition that it produced an operating profit margin or a profit margin of 22 per cent?---Yes.

Do you regard that as small?---Given what I've been familiar with and what I've worked in in the past, one should be looking at at least 30 per cent.

MR BAKRI:  But, Mr Gregson, you accept that profit margins vary from industry to industry?---They do.

They do.  Based on your experience with this business, a profit margin of 22 per cent is a healthy profit margin?---It's not as healthy as what it should be in a manufacturing entity, which is 30 per cent.

Mr Gregson, it’s higher than at any time since 2017.  We know that based on your analysis; yes?---Based on my experience in terms of manufacturing industries, of which I have been in many, it is considered to be on the low side.

Yes, but you accept that over the period since 2017, it is the highest profit margin?---It’s higher than where it was.⁷³

[59] Mr Gregson gave evidence about the applicant’s cash flow and produced two financial reports – Aged Payables Detail as at 30 April 2022⁷⁴ and Aged Trial Balance as at 30 April 2022⁷⁵ – in support of his evidence. These documents show, as at 30 April 2022, the amounts the applicant owes to its various creditors and the amounts it is owed by its debtors. Mr Gregson said:

“. . .if cash flow dries up, then you’ve got a problem, no matter how much or are profitable you are.  You can be as profitable as anything, but if your cash flow is causing you some problems, then it will become an issue simply from the point of view of when you don't pay your suppliers, you get placed on a hold on your shipment . . .”76

[60] Mr Gregson described the applicant’s cash flow position as “[v]ery, very dangerous”.⁷⁷

[61] However, Mr Gregson accepted that the terms of the Agreement have no bearing on the applicant’s cash flow position.⁷⁸ He also acknowledged that the applicant’s cash flow is a reflection of how quickly the applicant is paid by its debtors and how quickly it can pay its creditors.⁷⁹ He said that the applicant’s capacity to pay its creditors on time (and thus not negatively affect its supply) will be influenced by how quickly its debtors pay the applicant. He said that the applicant had a very good book of debtors which generally paid within the applicant’s payments terms of 30/60 days.⁸⁰

[62] I do not accept Mr Gregson’s description of the cash flow position of the applicant as “[v]ery, very dangerous” for several reasons.

[63] First, the description only emerged in re-examination. It does not appear in either of the statements made by Mr Gregson and it was not adduced in examination in chief when the documents which are said to set out the applicant’s cash flow position were introduced.

[64] Secondly, in light of his earlier predictions as to the applicant’s imminent demise as a business, which has not come to pass, his opinion as to the financial position of the applicant must be doubted or at least not accepted without further objective corroboration.

[65] Thirdly, Mr Gregson’s evidence that the applicant’s position is affected by the speed with which its debtors make payment and that its book of debtors generally pays the applicant within its payment terms does not suggest that the applicant’s cash flow position is very, very dangerous. The contrary seems more likely to be true.

[66] Fourthly, Mr Gregson’s cash flow assessment does not take into account cash in the business which according to its balance sheet as at 30 March 2022, was in excess of [figure redacted].⁸¹ Cash in the business must necessarily affect the capacity of the applicant to pay its creditors and so must impact on the business and its cash flow in a positive way.

[67] Fifthly, Mr Gregson did not give any tangible example where the applicant has not been able to pay its creditors. The documents on which Mr Gregson relied merely establish what the applicant is owed and what it owes. More relevantly, the Aged Trial Balance as at 30 April 2022, shows that of the total owed by its debtors, only a small fraction is 90 or 120 plus days outstanding.⁸² The preponderance is either current or 30 days outstanding,⁸³ which is consistent with Mr Gregson’s evidence that it has a good book of debtors which general pay on time and inconsistent with his assessment that the applicant’s cash flow position is “[v]ery, very dangerous”.

[68] Sixthly, I accept as the CFMMEU contends, the cash flow evidence is insufficient to support the conclusion for which Mr Gregson contended. Mr Gregson did not produce evidence of a cash flow statement which would explain the cash flow situation of the applicant’s business. Instead, the documents produced merely set out a list of creditors and debtors. But in any event, apart from the position of its debtors, the applicant’s position as to its creditors shows that nearly 85% of its debt to creditors is current or less than one month outstanding.⁸⁴ This also suggests a healthy capacity to pay its creditors on time and is inconsistent with a suggestion that the applicant’s cash flow position is “[v]ery, very dangerous”.

[69] Although I accept that an important pillar in assessing the viability of a business is its cash flow position, on the evidence, it cannot be accepted that the applicant’s cash flow position is as Mr Gregson has described. If anything, as discussed above, such evidence as is available points to the opposite conclusion.

[70] Furthermore, while the evidence shows that the applicant has experienced a decline in revenue in the period from 2017 to 31 March 2022, it does not support Mr Gregson’s assertion that over the last four years, the applicant has suffered financial losses,⁸⁵ at least not for the majority of the period for which there is evidence. The position appears to be that in the period described in the previous sentence, the applicant recorded an operating loss in 2019 and 2020, but has recorded an operating profit in 2017, 2018 and 2021, and at the time of the hearing, it was forecasting a profit in 2022. The Applicant’s financial performance in 2021 and 2022 vastly improved and was (and is) profitable compared to 2019 and 2020.⁸⁶ The financial position of the applicant’s business will improve between 2021 and 2022 with a forecast improvement from a net operating profit of [figure redacted] to [figure redacted]. Moreover, the profit and loss statement year to date as at 31 March 2022 indicates a year to date net profit of [figure redacted].⁸⁷

[71] The profit margin of the applicant’s business also appears to have improved since 2019, or at least has been maintained at comparable levels. In 2019 the applicant’s profit margin was 16%, in 2020 it was 18%, in 2021 it was 17% and for the year to date as at 31 March 2022 it was 22%.⁸⁸

[72] Mr Gregson accepted that net profit and loss was also a pillar and the most important indicator in assessing the financial viability of a business,⁸⁹ and that it is a more reliable indicator of the financial viability of the business than revenue or production figures.⁹⁰

[73] There are other indicators which suggest that the applicant’s business is not in a fragile or vulnerable financial state.

[74] Mr Gregson accepted that applicant’s balance sheet as at 31 March 2022 was a helpful indicator of the financial situation of the business.⁹¹ He accepted that the net asset position of a business is an important measure of financial viability⁹² and that since 2020 there has been a steady trend of improvement in the net asset position of the applicant’s business.⁹³ As at 31 March 2022, the net asset position of the applicant’s business was in excess of [figure redacted]. Mr Gregson accepts that a trend of an improving net asset position is an important matter to take into account in assessing the viability of a business into the future.⁹⁴

[75] Mr Gregson said that the applicant’s business prepares a budget each year which sets out the financial plan for the year.⁹⁵ The budget for the 2021/2022 financial year is set out in the Profit & Loss Budget 2021/2022⁹⁶ which shows that the business budgeted for a profit of [figure redacted]. Compared to the year-to-date net operating profit of [figure redacted] as at 31 March 2022. At the time of hearing (less than two months before the end of the financial year) the applicant’s business was on track to exceed its budgeted profit.⁹⁷

[76] For these reasons, I am not persuaded that the applicant’s financial position and performance is as the applicant sought to paint and it is not a matter that weighs in favour of a conclusion that it is appropriate to terminate the Agreement.

[77] Apart from Ms Morley’s assertions earlier noted as to the applicant’s view that it is constrained by the terms of the Agreement in implementing its vision for the business, the applicant did not produce any evidence about any plans for the business should the Agreement be terminated. It does not identify any plan to improve the operation or productivity of the business which it says has been stymied because of the operation of the Agreement. As I noted earlier many of the concerns about the purported restrictive provisions of the Agreement are unfounded or misunderstood. That said, there is no evidence about the steps the applicant would take to give effect to the vision about which Ms Morley gave evidence. There is no evidence about what the applicant would do if it were able to secure funding which it says it has been unable to obtain because of the redundancy provisions of the Agreement. Where would the funding be invested? What expansion would take place? What parts of the business would close or be outsourced? How may contractors would be engaged? On what terms and for which function would the applicant engage contractors? How many apprentices would be engaged? Which parts of its business does it project would grow? The applicant complains about the Agreement’s restrictions on its capacity to run its business, but it does not explain what it would do with its business absent the Agreement. The applicant’s case is lacking in this regard, and if such plans exist then its case suffers from a lack of candour.

[78] Mr Gregson gave evidence that if the Agreement is terminated and the applicant’s transferring employees became covered by the award, the applicant would be able to make decisions about the closure of unprofitable divisions of its business, for example its spinning mill. Mr Gregson said that if the Agreement was terminated it would allow the applicant to close the spinning mill because it would be able to afford to pay statutory redundancy entitlements.⁹⁸ Mr Gregson’s evidence was that the Agreement’s redundancy provisions were a barrier to closing the spinning mill and so the applicant “is forced to maintain a lossmaking division because it cannot afford to close it”.⁹⁹ As noted earlier Ms Morley gave evidence that the applicant did not have any plans to make any employees redundant. Ms Morley said that “[t]he conversations that [she] had had in regards to the lack of profitability in the spinning mill were always regarding whether [the applicant] could move those operatives into other areas of the business where [the applicant] had several vacancies for machine operators and forklift drivers”.¹⁰⁰ This all seems at odds with Mr Gregson’s evidence but in any event it shows that redeployment of some or all of the employees in the spinning mill to other areas of the applicant’s business is or was in contemplation, and that closure of the unprofitable spinning mill need not result in any significant redundancy liability. More to the point, apart from difficulties accessing funding, a proposition which has not been made out on the evidence, no contention based on any probative evidence is advanced that the redundancy provisions of the Agreement inhibit the applicant’s plans to expend or restructure its business or any plan to otherwise improve the profitability or performance of the business. There is simply no evidence about any of this. All I have is the evidence of Ms Morley that the applicant has no plans to make any employees redundant. I take from that evidence that any planned step to improve the performance of the business does not involve any redundancies. If it were otherwise, surely Ms Morley would have said so and the applicant would have advanced a contention to that effect. To the contrary, the applicant submitted that “there is no evidence to suggest that there are any redundancies flagged for any part of the applicant’s business”.¹⁰¹

[79] Moreover, as the earlier discussion shows, most of the restrictive provisions of the Agreement about which the applicant complains have either been resolved in principle through bargaining or are no longer pursued in bargaining by the applicant. Given this and the financial position of the applicant as earlier discussed, I cannot accept the applicant’s contention that the combination of these factors results in a company that is severely restricted in its ability to manage its own workforce, while operating at a significant loss.

[80] I do accept that the industry in which the applicant operates has changed since the Agreement was made. In short, industry demand and revenue has declined greatly; wool prices have increased while demand has decreased; many businesses have left the industry, and more business are expected to do so; employment numbers are down; and wage outcomes are down.¹⁰² But it must also be accepted that in this difficult environment, on the evidence, the applicant while covered by the Agreement in respect of some of its workforce, has maintained a profitable operating position in 2021 and in 2022. In these circumstances I am not persuaded that the environment in which the applicant operates is a matter that weighs materially in favour of a conclusion that termination of the Agreement is appropriate particularly absent any consideration or analysis of the terms under which its competitors in the industry in Australia employ their workforces.

The applicant’s undertaking

[81] In response to concerns expressed by some employees in statements filed in these proceedings about a reduction in the hourly rates that would be paid if the Agreement is terminated, the applicant contended that this was not its intention and has given an undertaking in the following terms:

The company undertakes that, should the agreement be terminated, no employee engaged by Tuftex at the date of termination will experience any reduction in the hourly rate they are paid at the date of termination.¹⁰³

[82] The undertaking is given to the affected employees to assuage concerns that some have expressed, not to the Commission. That the applicant has given the undertaking, and the terms of the undertaking, is a matter that is relevant in my assessment whether it is appropriate to terminate the Agreement. I propose therefore to take the undertaking into account for that purpose and assess it as a circumstance that weighs in favour of a conclusion that it is appropriate to terminate the Agreement because it ameliorates a likely deleterious effect that employees covered by the Agreement might otherwise experience if the Agreement is terminated.

The views of the employees covered by the Agreement, their circumstances including the likely effect that the termination will have on them

[83] The CFMMEU relied on a petition signed by 39 employees (41 employees are covered by the Agreement) in which they expressed their opposition to the termination of the Agreement.¹⁰⁴The CFMMEU accepts that seven of the signatories identified by Ms Morley¹⁰⁵ are not covered by the Agreement. In the result 32 of the 41 employees who are covered by the Agreement have signed the petition.

[84] The applicant says that little weight can be given to this evidence. None of the signatories (beyond the employee witnesses for whom statements have been filed) have given evidence to the Commission to explain the reasons for their view, nor does the face of the petition provide an explanation. The applicant says it is clear from the date of the signatures that this petition was collected throughout the period where the CFMMEU had made representations to employees that if the Agreement is terminated, the employees would all have their wages reduced to “award wages”.¹⁰⁶

[85] Account will be taken of the fact that many of the employees who signed the petition did not give evidence, but I do not accept that the employees’ views as expressed in the petition should be further discounted because of the representation. At and during the time the representation was made there is no evidence that the applicant told the affected employees that their current wages would be maintained if it was successful in its application to terminate the Agreement. The applicant did not give the wages undertaking until it filed its reply material on 29 April 2022 and there is no evidence that even then, it communicated this to affected employees. In these circumstances the representation when made was correct, save for those affected employees whose contracts of employment made provision for a higher rate of pay.¹⁰⁷

[86] I also accept the CFMMEU’s contention that despite most of the signatories to the petition not been called to give evidence, the petition is an expression of the views of the employees signing it and may be accorded some weight. As the CFMMEU points out, it is not uncommon for the Commission to accept signed petitions as evidence of the views of employees about a particular subject matter, for example in ascertaining whether a majority of employees at a workplace wish to bargain with their employer for an enterprise agreement for the purposes of determining whether a majority support determination should be made. Apart from the contention as to the purported misrepresentation about wages, with which I have dealt above, no other cogent reason is advanced why I should not accept that the views expressed by employees signing the petition are genuinely or reasonably held. The applicant says that most of the employees signing the petition have not been called to give evidence to explain their views. If the applicant was concerned about the reasons for the views as expressed in the petition, it was open for the applicant to require that employees attend for cross examination or to apply for an order requiring their attendance. Indeed, where employees who signed the petition provided a statement to the Commission these employees were not required for cross examination. These employees could have been asked, for example whether their views in opposition to the termination of the Agreement have changed since learning of the applicant’s wages undertaking. In these circumstances the submission that the reasons for signing the petition by the relevant employees is unknown rings hollow.

[87] Several employees covered by the Agreement gave evidence setting out their opposition to the termination of the Agreement. As I have already indicated the employees were not required for cross examination. In summary Dijana Jovanoska,¹⁰⁸ Kevin Freeth,¹⁰⁹ Makayle Bellette,¹¹⁰ Martin Beamer¹¹¹ and Van Nhi Phung¹¹² gave evidence about their:

•  personal and financial circumstances and work history;¹¹³

•  reasons for opposing the termination of the Agreement which in summary amount to a concern about reduced wages and its impact on their spending capacity, and the loss of redundancy entitlements; ¹¹⁴

•  opposition to the to the termination of the Agreement notwithstanding the undertaking provided by the applicant; ¹¹⁵ and

•  concerns over the significant diminution of redundancy entitlements if the Agreement is terminated.¹¹⁶

[88] The applicant contends that apart from the reasons summarised above, no other reason is advanced by these employees for their opposition to the termination of the Agreement. It contends that the concern about reduction in wages is unfounded given the undertaking and the concerns about the reduction in redundancy entitlements is hypothetical since there is no evidence of any intention by the applicant to make any position redundant. It says, to the extent that there is some concern about the closure of the spinning mill, the preponderance of employees employed in the spinning mill are employed either as machine operators or forklift drivers and such employees could be redeployed to other areas of the business in which there are vacancies in the event of a closure.¹¹⁷

[89] There is some force to this submission given the state of the evidence. Nevertheless, the concerns expressed by employees about the diminution of redundancy entitlements if the Agreement is terminated cannot simply be dismissed as hypothetical. Putting the position of the spinning mill to one side together with the question whether the vacancies identified by Ms Morley will exist, if or when at a time in the future, a decision is made to close the spinning mill – which Ms Morley said on 4 May 2022 will not be made in the next six months¹¹⁸ – it remains the case that one of the reasons advanced by Ms Morley that inter-alia the redundancy provisions of the Agreement cause real and tangible difficulties in the efficiency and productivity of the applicant is that, by reason of the redundancy provisions, the applicant “is unable to make business decisions (such as outsourcing, reduction of workforce size, sale of the business etc.)”.¹¹⁹ Thus although the evidence does not disclose any plan by the applicant to make one or more of the business decisions identified, it may be inferred that since the applicant identifies the redundancy provisions of the Agreement as interfering with its capacity to make such decisions that it will likely at least consider making such decisions if the Agreement is terminated. If it were otherwise why identify the redundancy provisions of the Agreement as interfering in its capacity to make such decisions?

[90] The CFMMEU also relies on the comparison of the Agreement and the Modern Award which is said to set out the various ways in which the employees will suffer detriment if the Agreement is terminated.¹²⁰ So much of the comparison as concerns the lower hourly rates may be discounted by reason of the undertaking. The applicant has criticised the CFMMEU’s contention that the effect of the Agreement’s termination, as demonstrated by the comparison, would be to significantly diminish conditions of employment.¹²¹ The applicant’s analysis of the effect of many of the provisions contained in the comparison, and which I largely accept, makes good its criticism. There are undoubtedly differences between the Agreement and the Modern Award but it is unhelpful to analyse the effect of the differences by reference to concerns about possible unspecified alterations to the Modern Award in the future, or by reference to possible unspecified alterations to the Act, and by reference to prohibitions on engagement of employees under an Australian Workplace Agreement, an instrument of a long ago repealed legislative scheme and for which there is no provision in the Act. Other differences concerning leave entitlements will likely have some detrimental impact on employees covered by the Agreement if the Agreement is terminated. Save for that which follows, I do not consider the negative impact just discussed to weigh significantly in the balance.

[91] In the end having regard to the undertaking, employees covered by the Agreement will not suffer a wage reduction if the Agreement is terminated but will have redundancy benefits for which the Agreement provides reduced in an environment in which the applicant has identified business decisions, which likely would involve redundancies, it has been “unable to make” because of the redundancy provisions. I accept that the redundancy provisions are contingent benefits, that is they will only be engaged if an employee’s employment is terminated by reason of redundancy. But that is not the end of the matter. The redundancy provisions provide benefits which have been bargained for and which form part of a package of entitlements for which the Agreement provides. The redundancy provisions of the Agreement also have had the effect of providing job security to employees where, on Ms Morley’s evidence,¹²² business decisions that would result in redundancies are unable to be taken because of the prohibitive costs associated with redundancies. As Mr Gregson said, with the termination of the Agreement the applicant “would be allowed to make decisions regarding the closure of unprofitable divisions of [its] business”.¹²³ Thus a real and likely effect of the termination of the Agreement will be a diminution of the job security of the employees covered by the Agreement. This is not an insignificant matter. In the circumstances I consider that the views of the employees and the likely effect on those employees of the termination of the Agreement weigh against a conclusion that it is appropriate to terminate the Agreement.

The views of the CFMMEU, its circumstances including the likely effect that the termination will have on the CFMMEU

[92] The CFMMEU is covered by the Agreement and opposes its termination.¹²⁴ The reasons articulated for its opposition are twofold. First, the termination of the Agreement would result in a significant diminution of the conditions of employment of the employees covered by the Agreement because the conditions in the incorporated instruments and the express provisions of the Agreement are superior to the Modern Award which would apply.¹²⁵ Second, the termination of the Agreement would impede or restrict the capacity of the CFMMEU to represent its members effectively.¹²⁶ My consideration of the effect of the Agreement’s termination on the relevant employees’ employment conditions earlier stated, applies with equal force to the first basis the CFMMEU advances for its opposition and need not be repeated.

[93] Ms Kruschel gave evidence as to the second basis. She identified the following matters under the Agreement which assist the CFMMEU in effectively representing its members employed by the applicant and which would no longer be available. These are to be found in:

•  clause 7, which is a dispute settlement procedure allowing for disputes to be dealt with about “any matter connected with employment or job conditions”, containing express involvement for the CFMMEU in the dispute resolution process and allowing for disputes to be the subject of arbitration by the commission at the initiative of one party and without the consent of the parties;

•  clause 11, which contains a provision that the parties are to commence the negotiation of a new agreement not less than three months prior to the Agreement expiring;

•  clause 18, which is said to contain more beneficial representative training provisions compared to the dispute resolution training provisions of the modern award;

•  clause 25, which makes provision for the parties to participate in discussions about the establishment of an appropriate mechanism or scheme for securing and protecting employee entitlements covered by the Agreement;

•  clause 30, which makes provision for the deduction and remittance of union fees;

•  clause 32, which requires the consent of the CFMMEU for the engagement of casual employees beyond the specified 16 weeks limitation; and

•  clause 35, which deals with consultation and makes provision for the CFMMEU’s involvement.¹²⁷

[94] The CFMMEU contends that each of these matters have a likely negative impact on it and its capacity to represent its members and should weigh heavily against a conclusion that it is appropriate to terminate the Agreement.¹²⁸

[95] The applicant contends that the CFMMEU’s opposition to termination must be treated with caution given its primary position is that the Agreement should be replaced. It says that the CFMMEU’s position is not that the current Agreement is appropriate and should remain in perpetuity. The CFMMEU’s position is that the Agreement should be replaced with a new enterprise agreement. The applicant says, on that understanding, all parties want the current Agreement to no longer apply, the question is one of methodology.¹²⁹ This contention is rejected.

[96] The genuineness of the CFMMEU’s opposition to the termination of the Agreement is not affected by its desire to bargain for a new agreement and which it has been doing for some time. It is a cheap debating point to suggest that the position of the applicant and the CFMMEU align because both no longer want the Agreement to continue in operation. There is a marked difference between replacing an agreement with another that has been bargained for and approved by employees who are covered by it and the termination of an agreement in the face of opposition by employees and the union covered by it leading to its replacement by a safety net modern award.

[97] The applicant also contends that the second of the reasons advanced by the CFMMEU – the diminution of its capacity to represent its members effectively – is not significant because, on the evidence, only one of the identified clauses (clause 32) remains contentious in the bargaining for a new agreement.¹³⁰ This submission is rejected not least because Ms Morley’s evidence was that if the Agreement were terminated then all matters that were agreed in principle during bargaining would no longer be the subject of an in principle agreement, as is evident from the following exchange recorded in the transcript:

Ms Morley, at paragraph 55 of your reply statement, you say that:

If the agreement is terminated the bargaining will remain on foot. To the extent that the union's statements refer to matters allegedly being agreed upon throughout the bargaining process, the company has conceded significant ground in an attempt to move bargaining forward and it may wish to re-evaluate some of its position.  If the agreement is terminated, bargaining will move forward from a position where the relevant workforce is covered by the award rather than the agreement.

I want to ask you about what you mean there. What you mean is that from your point of view if the Enterprise Agreement was terminated, bargaining would start again at scratch, would it?---Yes.

So all of the – of matters that are subject of in principle agreement, will be - will no longer be the subject of in principle agreement?---That’s correct.¹³¹

[98] The applicant contends that there is no explanation by the CFMMEU as to how holding a veto on prospective casual employees for a period longer than 16 weeks (including those that are not CFMMEU members) increases the union’s capacity to represent members.¹³² It says that the true motive and purpose of clause 32 of the Agreement is to prevent the applicant from engaging casual employees and it does not assist in the capacity of the CFMMEU to represent members.¹³³ These contentions are rejected. Self-evidently the provision is aimed at reducing or limiting casualisation and is likely thereby to improve the job security for permanent employees including union members. Whether clause 32 of the Agreement, operating as a transferable instrument, has the same impact on job security as it did before it commenced covering the application is a matter that may be seriously doubted for the reasons earlier articulated. Nevertheless, protecting the job security of members is quintessentially a representative function of any union, including the CFMMEU, and a removal of the capacity to require agreement by the CFMMEU to extend the duration of the period of engagement of casual employees (where that agreement is required) necessarily diminishes its capacity to provide representation of that kind.

[99] The applicant contends that while the provisions of the Agreement have a real and negative impact on the business, the concerns expressed by the CFMMEU as to the impact that the termination of the Agreement will have on its capacity to represent members is hypothetical. I have earlier dealt with the applicant’s contention as to the impact of various provisions of the Agreement on its business and these need not be repeated. It is true that the concerns are hypothetical in the sense that we will only know the true impact once the Agreement is terminated. But the consideration here is about the hypothetical albeit assessed in the context of the likelihood of a particular effect. The issue requiring assessment is the likely effect that the termination will have on the CFMMEU. There can be little doubt that the removal of the capacity to have disputes arbitrated without the consent of the applicant, its established role in the dispute settlement procedure, the capacity to access paid training for its delegates and its role in regulating casual employment (albeit a diminished one), will in combination likely have some negative impact on the CFMMEU’s capacity to represent its members effectively. How much so is unknown. The removal of union deductions may have an impact on the CFMMEU financially and organisationally, but I do not consider this impact to be significant. It does not affect its capacity to effectively represent members. I do not consider the other matters to be particularly significant.

[100] As to clause 11, it has already been engaged, the parties have commenced the negotiation of a new agreement. No further benefit can be gained from it and no detriment is apparent if the Agreement is terminated.

[101] As to clause 25, this seems to me to be an example of enterprise agreement provisions which often find their way into agreements, but which are not thereafter acted on or engaged. There is no evidence that the CFMMEU has sought to participate in discussions about the establishment of an appropriate mechanism or scheme for securing and protecting employee entitlements covered by the Agreement. One would think that if the issue is important enough steps would have been taken long ago to have initiated such discussions.

[102] As to clause 35, the consultation provisions of the Modern Award allow for the CFMMEU’s involvement in consultation.

[103] Nonetheless, I consider that the views of the CFMMEU and the likely effect of the termination of the Agreement on the capacity of the CFMMEU to effectively represent its members are, for the reasons identified, matters which weigh against a conclusion that it is appropriate to terminate the Agreement.

Other relevant matters

[104] There are some other matters relevant to the issue whether it is appropriate in all the circumstances to terminate the Agreement that warrant mention.

[105] The first is the impact or likely impact that the termination of the Agreement will have on bargaining for a new agreement. It is uncontroversial that bargaining has been proceeding for some time and as the evidence discloses, significant progress has been made on reaching agreement as to many of the provisions of the Agreement about which the applicant complains. Changes to some of the provisions of the Agreement about which the applicant complains it no longer presses. As the evidence of Ms Morley given during cross-examination and earlier reproduced discloses, if the Agreement is terminated the employer will resile from the in principle agreed position in respect of many of the matters that have been and remain the subject bargaining. In effect this bargaining would start from scratch. The CFMMEU contended and I agree that this change in the bargaining dynamic and the impact on bargaining is a relevant consideration in assessing whether it is appropriate to terminate the Agreement and one that weighs against such a conclusion.

[106] The second relates to the candour with which the applicant conducted its case. The CFMMEU contended, and I accept, that the applicant has not been as candid about its financial position as one might rightly expect and that this weighs against a conclusion that termination of the Agreement is appropriate. This is so particularly given that in its overview set out in its outline of submissions the applicant contended that “[in] circumstances where the company is operating in financial difficulty and is precluded by the Agreement from effectively and productively managing its own workforce, it would be appropriate to terminate” the Agreement.¹³⁴ The CFMMEU’s criticism of the applicant that it was selective in the evidence it has given in chief on financial matters, is not without merit.¹³⁵ Much of the relevant financial material to which earlier reference has been made is in evidence as a consequence of orders for production made by me at the request of the CFMMEU and the forecast profit on $1 million for this financial year was not disclosed until the applicant filed its material in reply. And Mr Gregson’s evidence contained in the statement of 3 March 2022 that:

“Looking ahead and assuming that we continue to operate under the existing Enterprise Agreement and our sales do not see a significant increase, the Tuftex business will cease operating within months. This is because, as I indicated above, expenses have seen increases and sales have not, resulting in a negative profit projection.”

is, frankly, highly questionable given the subsequently disclosed forecast, and the fact that the applicant had recorded a net operating profit in each of September 2021 to December 2021 and in February 2022 with losses recorded in January 2022 and in July and August 2021 – with a net total profit for the year ending 28 February 2022 in the order of [figure redacted] and increasing to [figure redacted] for the year ending 31 March 2022.¹³⁶

[107] The CFMMEU contends that the applicant has not been candid about the discussions that have occurred with potential purchasers about selling the business. There is some evidence that some interest in the sale of the business has been expressed¹³⁷ but I am not persuaded that the evidence establishes that there has been anything by way of serious discussions about the prospect of selling the business. Neither of the witnesses called by the applicant was able to give any direct evidence about the prospect of a sale of the business, and the owner of the business Ms Scott was not called. The CFMMEU was free to call Ms Scott or to seek an order that I compel Ms Scott to give evidence, she was after all in attendance throughout the hearing. It did not. In these circumstances I am not persuaded that I should conclude there was a lack of candour on the part of the applicant about the prospects of a sale of its business and so this does not bear upon the assessment that I must make.

Summary

[108] As I have endeavoured to make plain, although the applicant supports the termination of the Agreement, the reasons it advances for holding that view are not persuasive. Many of the provisions about which it complains do not have the restrictive effect for which it contends and moreover it has largely settled disputes about them in the context of bargaining – by reaching an in principle agreement or by abandoning claims in relation to them. There is no probative evidence that the terms of the Agreement have acted as an inhibitor to the applicant obtaining funding or investment for the business. My assessment of its financial position and performance is contrary to the position advanced by the applicant. It has not explained what it would do in relation to its business to ensure an improvement in its profitability and viability if it were no longer bound by the Agreement. And even if the provisions of the Agreement had the prohibitive effect on its business in the manner the applicant contends, it has not explained in any discernible detail what it would do with its business, when freed of such restrictions. Without such an explanation it is difficult to assess the likely impact that termination of the Agreement will have on the applicant or more properly its business. For example, it does not say that the applicant proposes to restructure the business or to outsource particular functions or activities, or that it otherwise proposes to take identified business decisions which might result in the termination of employment of some employees by reason of redundancy. The effect or likely effect of plans or proposals of this kind which are disclosed can then be assessed by reference to the impact that the termination of the Agreement will have on the applicant and its capacity to execute such plans. But there is none of that in evidence. Having said that I accept that termination of the Agreement will relieve the applicant of the administrative burden associated with administering that, which it must be accepted, is a cumbersome Agreement. Thus, on the whole, while the applicant’s views weigh slightly in favour of a conclusion that it is appropriate to terminate the Agreement, the likely effect on the applicant of the termination of the Agreement, its capacity to obtain finance and its current financial position are not matters which weigh in that direction, nor does the applicant’s lack of candour as to its financial position.

[109] The views of the employees and of the CFMMEU and the reasons they hold those views – which are views rationally held and have some proper foundation, are matters that are to be weighed against a conclusion that it is appropriate to terminate the Agreement. In addition, the termination of the Agreement will likely have adverse consequences upon employees covered by the Agreement at least by affecting their job security which the current redundancy provisions afford to them. The termination of the Agreement will also likely diminish the tools available to the CFMMEU under the Agreement to fulfil its representative role and to protect the job security of its members. These circumstances all weigh against a conclusion that it is appropriate to terminate the Agreement.

[110] In addition, the change in the bargaining dynamic and the impact on bargaining that will be brought about by terminating the Agreement because the applicant has said it will depart from its position on matters that are currently the subject of in principle agreement also weighs against such a conclusion.

[111] Taken together and for the reasons given I am not persuaded that it is appropriate to terminate the Agreement taking into account all the circumstances discussed.

Public interest

[112] Given my conclusion, it is unnecessary to consider whether termination of the Agreement is not contrary to the public interest, since both heads of s 226 must be satisfied.

Conclusion

[113] For the reasons given I am not satisfied that it is appropriate to terminate the Agreement. The application must be dismissed.

Order

[114] I order that the application by Tuftex Carpets Pty Limited made under s 225 of the Fair Work Act 2009 to terminate the Tuftmaster Carpets – TCFUA Enterprise Agreement 2017 (AG2021/8586) be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A Denton of Counsel for the applicant
Mr Y Bakri of Counsel for the CFMMEU

Hearing details:

2022
Melbourne
4 and 5 May and 8 June

Written submissions:

Applicant, 3 March, 29 April and 23 May 2022

Respondent, 19 April and 6 June 2022

Printed by authority of the Commonwealth Government Printer

<PR745601>

1 Exhibit 2 at [5]

2 [2015] FWCFB 540 at [118]-[152]

3 [2015] FCAFC 126 at [1]-[26]

4 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] (per Gleeson CJ and Gaudron and Hayne JJ)

5 Construction, Forestry, Mining and Energy Union v Peabody Energy Australia PCI Mine Management Pty Ltd [2016] FWCFB 3591 at [18]

6 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

7 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

8 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

9 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

10 CFMMEU’s closing submissions at [53]

11 Exhibit 2 at [1]

12 Applicant’s closing submissions at [4]

13 Exhibit 2 at [5]

14 Ibid

15 Ibid at [6]

16 Ibid at [8]

17 Ibid

18 Ibid at [8(a)]

19 Ibid at [8(b)]

20 Ibid at [8(c)]

21 Ibid at [8(d)]

22 Ibid at [11]; Exhibit 3 at [49]; Transcript PN173

23 Ibid at [9]-[10]

24 Exhibit 16 at [112]-[148]

25 Exhibit 2 at [11]-[13]

26 Exhibit 2 at [9]

27 Ibid

28 Exhibit 2 [11(b)]

29 Transcript PN346–PN348

30 Exhibit 16 at [135]

31 Exhibit 3

32 Exhibit 2 at [11(d)]

33 Exhibit 16 at [136]

34 Exhibit 3

35 Exhibit 2 at [11(e)]

36 Ibid at [5]

37 Exhibit 3 at [45]

38 Exhibit 16 at [138]

39 Exhibit 16 at [121]

40 Exhibit 3 at [48]; Transcript PN556–PN561

41 Exhibit 16 at [121]

42 Exhibit 2 at [11(h)-(i)]

43 Exhibit 16 at [142]

44 Ibid at [143]

45 Exhibit 2 at [12]

46 Exhibit 2 at [12(a)]

47 Exhibit 16 at [145]

48 Exhibit 2 at [12(a)]

49 Exhibit 16 at [147]

50 Exhibit 2 at [12(b)]

51 Applicant’s closing submissions at [5]

52 Ibid

53 Transcript PN435

54 Transcript PN420-PN450

55 Applicant’s outline of submissions, 3 March 2022, at [27]

 56   Transcript PN1435-PN1498

 57   Fair Work Act 2009, s 253

 58   Ibid, s 56

 59   Ibid, s 107(5)

60 Exhibit 3 as [11(a)]

61 Transcript PN173

62 Transcript PN42–PN43

63 Transcript PN1054–PN1056

64 Exhibit 9 at [8]

65 Exhibit 10 at [15]

 66   Transcript PN1503-PN1504

67 Ibid at [3]-[5]

68 Ibid at [7]

69 Ibid at [10]

70 Exhibit 10 at [13]

71 Exhibit 9 at [10]

72 Exhibit 10 at [12]

73 Transcript PN861–PN867

74 Exhibit 11

75 Exhibit 12

76 Transcript PN1085

77 Transcript PN1086

78 Transcript PN1090

79 Transcript PN1073–PN1074

80 Transcript PN1079

81 Exhibit 14

82 Exhibit 12

83 Ibid

84 Exhibit 11

85 Exhibit 9 at [4]

86 Transcript PN754-PN808

87 Exhibit 13, Transcript PN803.

88 Exhibit 10, attachment BG-3, Transcript PN812-PN815

89 Transcript PN751

90 Transcript PN752

91 Transcript PN922

92 Transcript PN920

93 Transcript PN944 and PN957

94 Transcript PN959

95 Transcript PN930-PN931

96 Exhibit 28

97 Transcript PN969

98 Exhibit 9 at [12]

99 Ibid

100 Transcript PN166

101 Applicant’s closing submissions at [28]

102 Exhibit 16, annexure JK-3

103 Exhibit 3 at [22]

104 Exhibit 16 at [31]-[34] and annexure JK-1

105 Exhibit 2 at [30]

106 Transcript PN1268-1269

107 Exhibit 3 at [19]-[21]

108 Exhibits 18 and 19

109 Exhibits 20 and 21

110 Exhibits 22 and 23

111 Exhibits 24 and 25

112 Exhibits 26 and 27

113 Exhibit 18 at [1]-[7]; Exhibit 20 at [1]-[11]; Exhibit 22 at [1]-[11]; Exhibit 24 at [1]-[12]; Exhibit 26 at [1]-[10]

114 Exhibit 18 at [9]-[13]; Exhibit 19 at [3]-[4]; Exhibit 20 at [12]-[16]; Exhibit 21 at [3]-[4]; Exhibit 22 [13[13]-[17]; Exhibit 23 at [3]-[4]; Exhibit 24 at [14]-[19]; Exhibit 25 at [3]-[4]; Exhibit 26 at [13]-[17]; Exhibit 27 at [3]-[4]

115 Exhibit 19 at [3]-[4]; Exhibit 21 at [3]-[4]; Exhibit 23 at [3]-[4]; Exhibit 25 at [3]-[4]; Exhibit 27 at [3]-[4]

116 Exhibit 18 at [12]; Exhibit 20 at [15]-[16]; Exhibit 22 at [16]-[17]; Exhibit 24 at [17]; Exhibit 26 at [16]-[17]

117 Applicant's closing submissions at [26]–[30]

118 Transcript PN436-PN437

119 Exhibit 2 at [11(a)(i)]

120 CFMMEU’s closing submissions at [30]; Exhibit 16 at [35] and annexure JK-2

121 Applicant's closing submissions at [16]

122 Exhibit 2 at [11(a)(i) and (ii)]

123 Exhibit 9 at [12]

124 CFMMEU’s closing submissions at [38]; Exhibit 16 at [26]-[28]

125 Exhibit 16 at [26]

126 Ibid at [27]

127 Exhibit 16 at [30]

128 CFMMEU’s closing submissions at [49]-[52]

129 Applicant’s closing submissions at [13]

130 Ibid at [17]

131 Transcript PN376–PN379

132 Applicant’s closing submissions at [17]

133 Ibid at [18]–[19]

134 Applicant’s outline of submissions, 3 March 2022, at [3]

135 CFMMEU’s outline of submissions at [56]-[66]

136 Exhibit 13

137 Exhibit 4, Exhibit 5, Exhibit 6, Transcript PN201-PN283 and PN1008-PN1050