FWCFB 657
FAIR WORK COMMISSION
Maritime Union of Australia, The
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT HATCHER
SYDNEY, 31 JANUARY 2014
Appeal against decision  FWC 9547 of Commissioner Cambridge at Sydney on 19 December 2013 in matter number C2013/7531.
 The Maritime Union of Australia (MUA) seeks permission to appeal and appeals a decision (Decision) 1 and order (Order)2 of Commissioner Cambridge made on 19 December 2013. In the Decision, the Commissioner determined to grant an application made by Patrick Stevedores Holdings Pty Limited (Patrick) for an order under s.418 of the Fair Work Act 2009 (the Act) directed at the cessation of the engagement in and organisation of industrial action at Patrick’s terminal at the Port of Fremantle.
 Patrick’s application for a s.418 order was lodged on 4 December 2013. The application was initially the subject of a hearing before the Commissioner on 5 December 2013. The Commissioner determined that he was unable to deal with the matter within two days, and consequently granted an interim order that day in accordance with s.420(2) of the Act.
 A full hearing, in which Patrick presented its evidentiary case, occurred on 19 December 2013. The MUA, apart from the tender of a small number of documents, did not call any evidence. The Commissioner delivered an ex tempore decision at the conclusion of the hearing on 19 December 2013, and later that day published his decision. The Commissioner’s reasoning and conclusions, which were briefly stated, were as follows:
“ The industrial action that is the subject of the application relates to an alleged limitation on the performance of work by employees of Patrick who are members of the MUA employed at Patrick’s terminal located at Fremantle, Western Australia and whose work and employment is regulated by the Patrick Terminals Enterprise Agreement 2012 (the Fremantle Employees).
 The evidence provided in this matter, in terms of both statistical analysis and industrial relations history, has established that the MUA and the Fremantle Employees have engaged in, and or encouraged or otherwise organised, the imposition of a limitation on the performance of work involving a limit to the number of container lifts by a crane gang in a shift to a maximum of roughly 200. This limitation is referred to as “the Cap”.
 Perhaps the most meaningful, “apples with apples” diagrammatic manifestation of the Cap can be found at page 7 of Exhibit 4. In simple terms, before 19 November 2013, 26.32% of 3 ITV shifts had over 200 lifts. Between 19 November and 15 December last, the corresponding figure was 12.24%.
 The adoption and or organisation of the practice of work involving the Cap is industrial action as defined by section 19 of the Act. The definition of industrial action is found at section 19 of the Act which is in the following terms:
 Consequently, I am satisfied that industrial action in the form of the organisation, encouragement and adoption of the Cap is occurring and that is occurring during the nominal term of the Patrick Terminals Enterprise Agreement 2012.
 Therefore, pursuant to s.418 of the Act, the Commission must Order that the industrial action stop.
 The Orders [PR545941] as broadly sought by Patrick are made and issued separately, and in effect, confirm the Interim Orders issued on 5 December 2013.
 It is disturbing that it appears that the Interim Order issued in this matter has not been complied with. I trust that there will be rectification of that circumstance as a result of today’s Determination and the consequent Order made.”
 The Order, in substance, required employees of Patrick who were members of the MUA and employed at its Fremantle Terminal to stop engaging in or threatening to engage in industrial action and not to continue, recommence or organise any industrial action during the period of operation of the Order, and also required the MUA not to organise any industrial action at the Fremantle Terminal. The period of operation of the Order was from 19 December 2013 until 1 May 2014 unless earlier revoked or varied by the Commission. The terms of the Order were consistent with the order made by a Full Bench of the Commission in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd. 3
The MUA’s grounds of appeal and submissions
 The grounds of appeal (as stated in the MUA’s amended appeal notice) were as follows:
(1) The Commissioner failed to give adequate reasons for the decision to make the order and/or in the decision failed to consider the submissions made by the appellant as to why the Order should not be made.
(2) The decision was affected by error as a finding that industrial action was happening, threatened, impending or probable was not available on the evidence and/or mistook the evidence.
(3) The finding that Fremantle employees engaged in, and or encouraged or otherwise organised, the imposition of a limitation on the performance of work was not available on the evidence and/or mistook the facts.
(4) The finding that the MUA engaged in, and or encouraged or otherwise organised, the imposition of a limitation on the performance of work was not available on the evidence and/or mistook the facts.
(5) In the alternative to the above grounds, the terms of the Order were too broad in that they were not justified on the evidence.
 In its submissions, the MUA focused on two propositions. The first proposition, based on appeal ground 1, was that the Commissioner had failed to give adequate reasons in the Decision, and/or failed to consider the MUA’s submissions as to why no order should be made. In respect of a lack of reasons, the Commissioner had, the MUA submitted, made no finding that his conclusion concerning the existence of industrial action was based on a drawing of an inference, nor to the extent that he had drawn such an inference was an unspecified allusion to the “industrial relations history” sufficient to found the drawing of such an inference. Further, the Decision failed to give any consideration to five significant and central submissions made by the MUA before the Commissioner:
(1) There was no specific evidence that any industrial action was occurring, and Patrick’s case depended on the drawing of inferences.
(2) The selection of 200 maximum lifts per shift as the limit allegedly being imposed by way of industrial action was arbitrary.
(3) Account should be taken of the fact that average lifts per shift had increased during the period of alleged industrial action.
(4) The position in the “Port Botany case” (Patrick Stevedores Holdings Pty Limited v Maritime Union of Australia  FWC 4391, substantially affirmed on appeal in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd  FWCFB 7736, in which it had been found that productivity restrictions at Patrick’s Port Botany terminal constituted industrial action organised by the MUA) was factually distinguishable.
(5) There were other matters that may have affected productivity, in particular changes made by the Australian Maritime Safety Authority (AMSA) to the way in which Marine Order 32 (MO32) was to be implemented, a direction by Patrick for operators of Internal Transfer Vehicles (ITVs) to slow down and not to “cut through the stacks”, and pre-Christmas congestion.
 The MUA referred to two decisions in support of the proposition that a failure to consider submissions that were significant and central to a party’s case constituted jurisdictional error. In Linfox Australia Pty Ltd v Fair Work Commission 4, a Federal Court Full Court decision (Dowsett, Flick and Griffiths JJ), the Court said:
“ First, it is not necessary for those making a decision to refer to “every piece of evidence and every contention” made by a party: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 184 at , 75 ALD 630 at 641 per French, Sackville and Hely JJ; Reece v Webber  FCAFC 33 at , 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ. Although reasons for decision are not to be scrutinised with an eye to discerning error where none truly exists (Minister for Immigration and Ethnic Affairs v Wu Shan Liang  HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), more may be expected of experienced and legally qualified members of Fair Work Australia who have had the benefit of written submissions filed by experienced legal practitioners: Soliman v University of Technology, Sydney  FCAFC 146 at , 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. But there remains no unqualified and universally applicable legal requirement to refer to every submission advanced. Much depends upon the importance of the submission to the claims being made. A failure to address a submission which is “significant” and which touches upon the “core duty” being discharged (Fox v Australian Industrial Relations Commission  FCAFC 150 at  per Marshall, Tracey and Buchanan JJ) or which is “centrally relevant” to the decision being made (WAFP v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 319 at  per Lee, Carr and Tamberlin JJ; Soliman v University of Technology, Sydney  FCAFC 146 at  to , 207 FCR 277 at 295) may in some circumstances found a conclusion that it has not been taken into account and may thereby expose jurisdictional error.”
 In Soliman v University of Technology, Sydney 5 (referred to in the above passage) the Full Court of the Federal Court (Marshall, North and Flick JJ) said:
“ Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error: cf. WAFP v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 319. Lee, Carr and Tamberlin JJ there concluded:
 However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at .
 In the present proceeding it is concluded that the failure to refer to the submissions relating to mitigating circumstances and the reasonableness of the decision of the Acting Vice-Chancellor is properly to be characterised as a failure on the part of the Vice President to resolve, in accordance with law, the application that had been made.
 Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang  HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely:
● the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia  FCA 764 at ,  FCA 764; 290 ALR 326 at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia  FCAFC 114 at  per Lander, Flick and Jagot JJ;
and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons:
● the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman.
The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed.”
 The MUA’s second proposition, which essentially took up appeal grounds 2, 3 and 4, was that in any event the evidence was incapable of supporting the inference or conclusion that industrial action was occurring and that it was being organised by the MUA. In contrast to the Port Botany case, where it had been demonstrated that there had been a reduction in average productivity, the evidence before the Commissioner demonstrated that average productivity had actually increased during the period of alleged industrial action, which, the MUA submitted, provided a weak basis for drawing an inference that there was any “covert” industrial action occurring. There was no evidence identifying how work was being performed in a different manner than usual to produce an adverse productivity outcome, and the increased average productivity statistics prevented the drawing of any inference that employees were performing the work more slowly. Any effects on productivity, the MUA submitted, may have been caused by the change in practice relating to MO32, the requirement that ITVs drive around the stacks and more slowly, and congestion in the pre-Christmas period. While, the MUA submitted, it was true that there had been a productivity cap in the past, there was no evidence of it having been in the nature identified in the Decision, namely “a limit to the number of container lifts by a crane gang in a shift to a maximum of roughly 200”. The number 200 was arbitrarily selected by Patrick, and the statistical evidence belied the existence of a cap at that level since they showed some shifts with over 200 lifts. There was no history of a prior s.418 order having been at the Fremantle Terminal on the basis of productivity restrictions, unlike the Port Botany case.
 The MUA submitted that permission to appeal should be granted because the Commissioner’s failure to consider central and significant submissions made by the MUA constituted jurisdictional error, the Decision was attended with sufficient doubt to warrant its reconsideration, and the Decision manifested an injustice which required correction. The MUA sought that the Decision and Order be quashed.
The statutory scheme
 Section 418 of the Act is part of the statutory scheme in Part 3-3 concerning industrial action. Under Division 2 of Part 3-3 requirements are established whereby employees and employers may take “protected” industrial action, being industrial action which under s.415 is immune from any action under any law in force in a State or Territory (subject to certain exceptions concerning personal injury, destruction, damage, taking, keeping or use of property, and defamation). Industrial action which is not taken in accordance with the requirements of Division 2 is not “protected” in the sense that the s.415 immunity does not apply to it, but additionally there are a range of provisions in Part 3-3 which serve to prohibit, penalise and/or prevent the taking of such industrial action. Firstly, s.417(1) prohibits outright the engagement in or organisation of industrial action during the period in which an enterprise agreement or a workplace determination has come into effect until its nominal expiry date has past. Section 417(1) is a civil remedy provision, so that any contravention of it may lead to the`` imposition of a pecuniary penalty by a relevant court as well as other orders as may be considered necessary to stop or remedy the effect of such a contravention.
 Secondly, under s.418 the Commission is obliged in specified circumstances to make orders concerning industrial action which is not protected. Section 418 provides:
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.
 Section 418 operates together with s.420, which relevantly requires that an application for an order under s.418 must as far as practicable be determined within two days of the application being made; if the application is unable to be determined in that period, the Commission is required to make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be) unless the Commission is satisfied that it would be contrary to the public interest to do so. A Full Bench in McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd 6 characterised the broad effect of these provisions as follows:
“ Section 418, when read together with s.420, is “a remedy that is clearly intended to be available at short notice to deal with unprotected industrial action”. The obligation upon the Commission in s.420(1) to determine an application for orders under s.418 within two days so far as practicable underlines the legislature’s intention that the Commission is to act quickly and effectively in relation to such industrial action in response to an application made by any person in the categories identified in s.418(2)(b). Section 420(2) “backstops” this position by requiring the making of an interim order in identified circumstances.”
 Thirdly, s.419, which is expressed in similar terms to s.418, obliges the Commission to make orders in respect of industrial action taken by non-national system employees and employers (which cannot be protected under Division 2 of Part 3-3) where that industrial action “will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation”. Section 420 operates in respect of s.419 as well as s.418.
 Finally, sections 474 and 475 respectively operate to prohibit employers from paying employees, and employees from accepting or seeking payment from employers, in respect of periods in which the employees have engaged in industrial action that is not protected. It is sufficient for present purposes to set out s.474:
(1) If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is at least 4 hours—the total duration of the industrial action on that day; or
(b) otherwise—4 hours of that day.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, if the industrial action is, or includes, an overtime ban, this section does not apply, in relation to a period of overtime to which the ban applies, unless:
(a) the employer requested or required the employee to work the period of overtime; and
(b) the employee refused to work the period of overtime; and
(c) the refusal was a contravention of the employee’s obligations under a modern award, enterprise agreement or contract of employment.
Note: An employee is able to refuse to work additional hours if they are unreasonable (see subsection 62(2)). There may be other circumstances in which an employee can lawfully refuse to work additional hours.
(a) the industrial action is, or includes, an overtime ban; and
(b) this section applies in relation to a period of overtime to which the ban applies;
then, for the purposes of this section:
(c) the total duration of the industrial action is, or includes, the period of overtime to which the ban applies; and
(d) if paragraph (1)(b) applies—the period of 4 hours mentioned in that paragraph includes the period of overtime to which the ban applies.
(a) the industrial action is during a shift (or other period of work); and
(b) the shift (or other period of work) occurs partly on one day and partly on the next day;
then, for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.
Example: An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action that is not protected industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.
(4) For the purposes of subsection (3), overtime is taken not to be a separate shift.
 Taken as a whole, the scheme of provisions just described demonstrates that the Act takes a rigorous and comprehensive approach to non-protected industrial action which is both prophylactic and punitive in nature. The legislature’s clear intention was that such industrial action should not occur, and that if it does occur it should promptly be stopped.
History of “the Cap”
 Because of the degree of concision in the reasons contained in the Decision, it is necessary for us to set out what the evidence before the Commissioner demonstrated concerning the history of productivity restrictions at Patrick, the dispute at the Fremantle Terminal which arose immediately before the period of the alleged industrial action, and the statistics concerning productivity at the Fremantle Terminal during the period of the alleged industrial action. The evidence as to these matters may be supplemented by relevant material from the Commission’s public records.
 Uncontested evidence received by the Commissioner demonstrated that there was a history of employees of Patrick at its Port Botany and Fremantle terminals imposing caps upon the number of container movements per shift (the Caps). That history was principally set out in the statement of Michael O’Leary dated 5 December 2013 7, and in documents annexed to that statement. Mr O’Leary is the General Manager - Industrial Relations for Patrick. Mr O’Leary has worked in industrial relations in the Australian maritime industry for many decades, including a period of approximately ten years in which he worked as a senior official for the MUA. The history which we summarise below is derived from Mr O’Leary’s evidence except where we indicate otherwise.
 Patrick, its employees at its Port Botany, Fremantle, Fisherman Islands and East Swanston Dock terminals, and the MUA, are currently bound by an enterprise agreement in operation under the Act, the Patrick Terminals Enterprise Agreement 2012 (the Agreement). The Agreement was negotiated between Patrick and the MUA in 2011/2012. A major issue for Patrick in those negotiations was the removal of the Caps which its employees and the MUA had imposed at the Port Botany and Fremantle terminals. In the case of the Port Botany terminal, the productivity cap had been in place since approximately 2006. In the respect of Fremantle, the evidence did not disclose how long the Cap had been in place, or at what figure container movements were capped. At the hearing of the appeal, counsel for Patrick in answer to an inquiry on that score said on instructions that the Cap at Fremantle had been 200 container movements per shift. Counsel for the MUA, having likewise taken instructions, declined either to confirm or contest that number, and simply submitted that the matter should have been dealt with by evidence.
 In early July 2011, Mr Paddy Crumlin, the MUA’s National Secretary, and Mr John Mullen, the Chief Executive Officer of Patrick, entered into direct discussions in order to attempt to advance the negotiations. Between them they reached an agreement that the Caps at Port Botany and Fremantle should be lifted. That agreement was recorded in an email sent by Mr Mullen to Mr Crumlin which identified the items about which they had reached agreement. Item 7 read as follows:
“7. Cap Restrictions and General Productivity
It is agreed that the MUA team would give an unequivocal commitment that the caps will be lifted in Sydney and Freemantle and no caps or other artificial restrictions on productivity will exist in any port throughout the duration of the agreement. We agree to monitor productivity in each port to ensure optimum vessel turnaround and productivity metrics are achieved. The teams will agree specific objectives in this regard to be incorporated into the agreement.
Given the criticality of this to the company’s competitiveness Paddy Crumlin and John Mullen agree to personally assist in committing both organisations to deliver upon this in every way possible.” 8
 In October 2011, the discussions between Mr Crumlin and Mr Mullen extended to exploration of the Caps being removed in exchange for an immediate 5% increase in pay as “back pay”. In the light of those discussions, Mr O’Leary on 20 October 2011 sent an email to Mr Mick Doleman, the Deputy National Secretary of the MUA, which included the following:
“Can you also confirm agreement that the Company has offered to process the back pay (October 2010 to October 2011) immediately (within one pay period), prior to completion of Drafting and endorsement of the EA as a act of good fath.in [sic] response the Union agrees to an immediate removal of, [sic] productivity caps in Sydney and Freemantle and any bans or limitations in all Ports.” 9
 On 28 October 2011, Mr Doleman sent Mr O’Leary a document attaching a list of the matters which the MUA considered to have been agreed. This included the following item:
“It is agreed that the MUA team would give an unequivocal commitment that the caps will be lifted in Sydney and Freemantle and no caps or other artificial restrictions on productivity will exist in any port throughout the duration of the agreement. We agree monitor productivity in each port to ensure optimum vessel turnaround and productivity metrics are achieved. The teams will agree specific objectives in this regard to be incorporated into the agreement.” 10
 On 2 November 2011, Mr Doleman sent a further email to Mr O’Leary confirming that an in-principle agreement had been reached to permit the Agreement to be drafted on the basis, among other things, of the list of agreed items which Mr Doleman had attached to his 28 October 2011 email. On the same day, Mr Paul McAleer, the MUA’s Sydney Branch Secretary, rang Mr O’Leary to request a meeting with the Port Botany employees to discuss the lifting of the Cap there. The following day (3 November 2011), Mr O’Leary sent Mr Doleman an email which stated, among other things, the following:
“I am instructed that once the attached document is agreed to and the Cap is lifted at Botany (a meeting is being arranged tomorrow to settle that issue) then the Company will pay the backpay for the 1st year as a sign of good faith.”
 The attached document identified items which had been agreed, and included the following:
It is agreed that the MUA team would give an unequivocal commitment the caps will be lifted in Sydney and Freemantle and no caps or other artificial restrictions on productivity will exist in any port throughout the duration of the agreement. We agree to monitor productivity in each port to ensure optimum vessel turnaround and productivity metrics are achieved. The teams will agree specific objectives in this regard to be incorporated into the agreement.” 11
 On 4 November 2011, Mr McAleer advised Mr O’Leary that employees at Port Botany had voted to lift the Cap. Data produced by the Port Botany Terminal Manager, Mr Ben Wicks, two days later confirmed that the Cap had been lifted at Port Botany. Mr O’Leary was also provided with a copy of an MUA leaflet to its members, prepared by Mr Adrian Evans from the MUA’s Fremantle Branch, which summarised the outcome of the negotiations for the Agreement. The document was entitled “Enterprise Agreement 2010 - outcomes 12 October 2011”. It began with the following statement:
“The MUA national negotiations team have worked very hard to achieve an incredible outcome and the members involvement, focus and discipline should be commended. The following are the outcomes from long and extensive and at times, frustrating negotiations: ...” 12
 The document then listed 75 agreed items, and finished with the same commitment (under the heading “Productivity”) concerning removal of the Caps that had been contained in the documents attached to the 28 October and 3 November emails and which we have set out above.
 On 9 November and 11 November 2011, Patrick and the MUA respectively issued public announcements that that an in-principle agreement had been reached as to the Agreement. On 15 December 2011, Patrick paid a 5% wage increase to its employees at the four terminals, back-dated to the expiry date of the previous enterprise agreement (22 October 2010).
 Approximately six weeks later the Cap was re-imposed at Port Botany following a disagreement concerning the handling of potential redundancies at Port Kembla, as a consequence of loss of work from Patrick’s client Bluescope. After having received a report that productivity at Port Botany had decreased and that the Cap appeared to be back in place, Mr O’Leary on 12 February 2012 sent Mr Doleman an email about this which included data showing that productivity, measured by average shift crane rates, had reverted to the levels which existed prior to the lifting of the Cap.
 On 20 February 2012 Mr Doleman telephoned Mr O’Leary and advised him, among other things, that he had instructed the MUA’s Sydney Branch officials Mr McAleer and Mr Paul Keating to address the employees and have the productivity levels increase back up to “non-Cap levels”. Mr O’Leary sent Mr Doleman an email the following day seeking confirmation of their telephone discussion. Item 4 in the email referred to the MUA removing “any further restrictions on Productivity that had been in place for a number of weeks”, and then articulated the following mild remonstrance:
“I need to point out that point 4 above is one that the Company is of the view we have already paid for and it is disappointing that we have ended up in a situation where a reduction in productivity is being used to impact the Company’s operations.” 13
 Mr Doleman was apparently unsuccessful in his promised endeavour to have the Cap lifted because on or about 12 March 2012 Patrick found it necessary to apply to Fair Work Australia (as the Commission was then entitled) for an order under s.418 to stop non-protected industrial action in the form of the Cap. Patrick’s application was the subject of a hearing before the Commission (Vice President Watson) on 13 and 14 March 2012. The transcript of the hearing on 13 March 2012 discloses that senior counsel who appeared for Patrick outlined his case in the following way 14:
“MR McDONALD SC: As your Honour pleases. Your Honour, the subject of the application is industrial action in the form of a go slow at Patrick's Port Botany terminal, which in its most recent manifestation has occurred since 30 January this year. The company contends that the action has been organised by the union and engaged in by the workforce, and has resulted in a reduction per shift of approximately 30 container movements. That is, 170 container movements per shift as against an average of 200 movements per shift prior to the imposition of the go slow on 30 January.
You'll have seen from the material that has been filed that it's the company's contention that the industrial action is tied up with negotiations in respect of a new enterprise agreement which had been going on for quite some time, the current enterprise agreement having expired - it's nominal expiry date in October 2010. The company's position is that the existence of a cap on container movements at Port Botany has been long-standing and in the course of negotiations throughout 2011 for a new enterprise agreement, the removal of the cap was a key issue in those negotiations.
Ultimately, in about November of last year, an express agreement was reached between the company and the MUA for the removal of the productivity cap. In return for that removal, the employees at Port Botany received a payment equivalent to 5 per cent of salary backdated for a 12-month period. That equated to a payment of approximately, on average, 5 to 6 thousand dollars per employee. That payment was made in mid-November 2011. That payment coincided with both the company and the union making public pronouncement of an in-principle agreement having been reached for a new enterprise agreement. The payment of the 12 months' back pay in return for the lifting of the cap was stated to be, and understood we contend by both parties, an act of good faith on the part of the company to facilitate the movement from an in-principle agreement to a final agreement in a form which could be approved by the tribunal.
The cap was lifted following a meeting of MUA members at Port Botany on 5 November 2011. The meeting was addressed by Mr McAleer, the Sydney branch secretary. Immediately following the meeting, there was a significant increase in container movements per shift. Throughout October 2011, the average had been 170 per shift. From 5 November until the end of December, the average per shift was 190. In the first half of January, it was 205. In the second half of January, the period 16 through to 30 January, it was 197. Now, that slight drop-off was explicable by reference to a construction project known as the 66K project. We anticipate that your Honour may hear a bit about that from the union in the material they'll put before you. That is, by way of an explanation of the current drop-off in container ship movements.
That project involves the replacement of 6600 square meters of pavement at the Port Botany site. From 16 January, a new phase of the project has been undertaken which has had some impact on the movement of straddles on the wharf. Notwithstanding that slight impact, the figures in the second half of January are still significantly higher than for the period prior to 5 November 2011 when the cap was lifted. The company's position, your Honour, is the evidence will demonstrate that the position in the last six weeks from 30 January when the cap, we contend, was re-imposed, is identical to the position which prevailed on 16 January through to 30 January. The operational environment is identical.
The significance of 30 January is that on this date a dispute arose between Patrick's and the MUA regarding the redeployment of employees from Patrick's Port Kembla operations who had become surplus to requirements as a result of BlueScope Steel downscaling its operations at Port Kembla. The MUA's position was that any employees redeployed to Port Botany were to be placed on the general roster. Patrick's position was that it wanted any employees redeployed to be on the permanent irregular roster.
Immediately following 30 January, container movements have reverted to the pre-5 November levels. 30 January to 12 February, 171; 13 February to 22 February, 166; 23 February to 11 March, 174. As I've indicated, the company says the operational environment during that six-week period is identical to that which prevailed in the period 16 to 30 January when 197 containers per shift were moved. We contend that the reduction in container movements in the last six weeks is explicable only by reference to the re-introduction of the cap.
Now, as it transpired, the roster dispute in relation to employees redeployed from Port Kembla was resolved on about 21 February this year. Notwithstanding that, the cap has remained in place. The evidence before you, your Honour, will be to the effect that the union's motivation for retaining the cap is the fact that there remain a number of outstanding issues between the parties in respect of the negotiation of a new enterprise agreement, which has not been resolved.
I wish, if I may, to take you to a number of documents - and I'll hand up a bundle. This is all in the material. They're extracted from the documents which are attached to Mr O'Leary's statement. The upshot of this material, your Honour, is that it demonstrates, we would submit beyond argument, that (1) the issue of the removal of the cap was a central issue in the negotiations of the in-principle agreement for a new enterprise agreement; (2) there was an explicit agreement for moneys to be paid in return for the lifting of the cap; (3) at the union's behest and direction to the employees at Port Botany, the cap was lifted on 5 November; (4) the parties have been in dispute again since 30 January and precisely at that time container movements have reverted to pre-5 November levels.”
 At the continuation of the hearing on 14 March 2012, Patrick presented an evidentiary case that was reliant both on statistical analysis of productivity performance and direct observation of working practices to support its contention that the Cap had been reinstated. The MUA denied organising any industrial action and submitted that Patrick had not established on the evidence that industrial action was taking place, but did not itself call any evidence.
 We note that during the closing submissions, the following exchange occurred between the Commission and counsel for Patrick 15:
“THE VICE PRESIDENT: Why would it do that [reimpose the Cap] rather than engage in protected industrial action?
MR McDONALD: So the employees aren't docked pay. This is a form of industrial action which has that benefit to the employees, your Honour. They still continue to get paid full-time. As Mr Wilson has indicated in his evidence, it's action which is difficult to monitor and control because of the circumstances in which the action is taking place and because of the ability of the employees to come up with a raft of real-time excuses about why they're engaging in the conduct, "The containers are too heavy. There's no space available," excuses of that like. So it's action which is difficult to regulate and doesn't expose the employees to the risk of having their pay docked.”
 From that submission, it appears that Patrick had not had regard to its obligations under s.474 of the Act.
 At the completion of the hearing, the Commission issued an ex tempore decision the substance of which was as follows 16:
“The application before the tribunal is made under section 418 of the Fair Work Act that an order should be made that industrial action stop or not occur. As both sides have agreed in the matter, the critical issue that I must determine is whether industrial action is happening or otherwise threatened, impending, probable or being organised. That is a critical matter because if I am satisfied that industrial action is happening, the tribunal must make an order that the industrial action stop or not occur. If I am not satisfied that industrial action is happening, then there is no jurisdiction to make an order.
In this matter evidence has been led from Mr Douglas Wilson, the stevedoring manager at the Port Botany terminal of Patrick Stevedores. That evidence relates to productivity levels at the terminal and at other operations within the Patrick Group over a period of 2011, the latter part of 2011, and a period of 2012 to date. Evidence given by Mr Wilson also deals with work practices that he has observed which in his view have contributed to changes in productivity levels over that period.
Evidence has also been given by Mr Michael O'Leary, the general manager, industrial relations, of Patrick Stevedores. That evidence goes to the history of negotiations for a new enterprise agreement and communications between the company and the MUA regarding what has been termed "a productivity cap" applying or allegedly applying at the Port Botany and another terminal within the Patrick Group. Mr Wilson was subject to cross-examination regarding his evidence. Mr O'Leary was not subject to cross-examination and his evidence is not contested.
The contention of the company is that the industrial action that is happening at the moment is in the form of a go slow whereby work practices are such that the normal or anticipated productivity levels per shift are reduces. It is alleged by the applicant that a reduction in productivity levels occurred as a result of the imposition of a productivity cap during the course of 2011, that it was lifted in November 2011, that productivity increased thereafter but that the productivity decreased to the previous levels of around about 170 crane movements per shift from the end of January 2012.
I am satisfied on the evidence of Mr Wilson and Mr O'Leary that there is industrial action happening in the form contended for by the applicant in this matter. I am also satisfied that the nature of that industrial action is such and the apparent reasons for the industrial action is such that the MUA is involved in that industrial action. In that regard I have particular regard to the evidence of Mr O'Leary where he gives evidence of in his experience the involvement of the MUA in all industrial disputes involving the workforce at Port Botany. I also have regard to Mr O'Leary's experience not only as an executive of Patrick but his experience of 35 years in the maritime industry as a consultant and union official.
As I am satisfied that industrial action is happening, I am required to make an order that the industrial action stop and not occur. I do propose to issue an order substantially in the terms sought in the application. I will, however, limit the term of the order to a period of three months. In doing so, that does not, of course, preclude further applications at the end of that period if there are grounds for making such an application.”
 There is no evidence that the order issued by the Commission on 14 March 2012 17 was not complied with.
 At about the same time, Patrick and the MUA appear to have resolved their outstanding differences concerning the finalisation of the Agreement with the assistance of the Commission. 18 The Agreement was approved in a vote of Patrick’s employees at the four terminals on 22 May 2012, and was approved by the Commission (Sams DP) on 15 June 2012.19 Remarkably, as we were informed by counsel for Patrick at the hearing of this appeal, the Agreement as approved did not contain any provisions giving effect to the MUA’s undertaking to ensure that the Caps at Port Botany and Fremantle were permanently removed, notwithstanding the significance of that undertaking to Patrick in deciding to enter into the Agreement. No explanation for this is apparent in any of the evidence or submissions before us. The Agreement did however provide (in Schedule 5) for an “at-risk” additional superannuation payment of 0.75% per year, depending on attainment of defined productivity and vessel servicing measures. The productivity measure was the annual average “gross crane lifts per worked crane shift, adjusted to account for specific allowable delays”, and Schedule 5 of the Agreement identified both national and terminal-specific target numbers in that respect.
 In April 2013, a new dispute between Patrick and the MUA arose from Patrick’s announcement of its intention to automate various activities at the Port Botany terminal. This led to a re-imposition of the Cap at Port Botany, as well as other forms of industrial action affecting productivity. On 30 May 2013, Patrick made another application to the Commission for an order under s.418 to stop the industrial action. The application could not be determined within the two day period referred to in s.420(1); accordingly on 31 May the Commission (Vice President Watson) made an interim order in accordance with s.420(2), and the application was heard on 19 and 26 June. The Commission issued its decision on 4 July 2013. 20 In that decision, the Commission made the following findings concerning industrial action being taken by way of re-imposition of the Cap:
“ Patricks relied on productivity data to support its claim that a productivity cap of 260 lifts per shift has been in place since mid May 2013. The data was initially led in the hearing of 31 May and updated during the course of subsequent proceedings. The evidence establishes that from 1 January 2013 to 16 May 2013 crane gangs exceeded 260 lifts per shift 22.42% of the time. From 16 May 2013 to 29 May 2013 crane gangs exceeded 260 lifts per shift 9.73% of the time. Between 16 May 2013 and 16 June 2013 crane gangs exceeded 260 lifts per shift 13.4% of the time.
 Mr Cheng gave evidence of a further breakdown of the performance after 7 June. He said that it had become apparent that one crew per shift performed very well, while the performance of other gangs was much lower. There are usually four crane crews per shift. From 7 to 16 June 24.73% of crews exceeded 260 lifts per shift - higher than the performance level from 1 January to 16 May. When the highest performing crew per shift was taken out of the calculations only 8.45% of crews exceeded 260 lifts.
 Mr Cheng also gave evidence that the average number of lifts per shift from 1 January to 16 May 2013 was 213.42. It was 220 between 1 and 16 May. From 16 May to 16 June the average lifts per shift was 197.7. The average between 7 June and 16 June after taking out the best performing crane gang on each shift was 189.7 lifts per shift.
 Counsel for the MUA cross-examined Mr Cheng and contended that the data does not establish the existence of a productivity cap. The existence of a cap was expressly denied by MUA witnesses. Mr Freestone said that the employees were frustrated and unhappy about the way the company had been treating them and that he and other members of the site committee had been endeavouring to keep the member’s frustrations under control. He said that new safety procedures were having an effect on productivity.
 Counsel for Patrick submits that a clear inference from all the evidence is that industrial action in the form of productivity restrictions is happening. I accept that such an inference should be drawn from the evidence. It is clear that the dispute over automation has been festering for some time. It has now reached the stage where some implementation of automation is occurring. The MUA has consistently been critical of the automation proposals. Its members have passed resolutions opposing the implementation of the changes. The MUA concedes that employees are frustrated with the fact that implementation of automation will not be stopped.
 The Port Botany site is characterised by a history of industrial action, including go-slows and productivity caps that are intended to damage the performance of the company while not significantly prejudicing the earnings of employees. The workforce is estimated to be 100% unionized. The work crews and team leaders are members of the MUA. There is little opportunity for constant supervision of work practices by non-unionised supervisory employees. The workplace culture involves a high level of employee solidarity and a high level of employee antipathy for management.
 The MUA and its members are obviously aware of their inability to engage in lawful industrial action. However they have the clear motivation to engage in responsive action and to attempt to avoid culpability by disguising their conduct and responsibility. There is no logical reason for the drop in productivity other than it being the result of actions by employees to deliberately limit productivity and avoid detection of their conduct. In particular, the alleged increased safety requirements do not provide a logical explanation.
 The normal performance level of one crew per shift since the nature of Patrick’s evidentiary case was disclosed is particularly revealing. It suggests that weather and other uncontrollable factors were not present and safety requirements which all crews were required to apply did not inhibit productivity. I also found the evidence of MUA witnesses to be unpersuasive. Mr Keating in particular was inappropriately combative. I found his evidence unreliable. The evidence suggests to me that productivity at Port Botany has been inhibited by a covert campaign to damage the company. The isolated performing crew per shift has all the appearances of a particularly cynical device to avoid detection of the productivity limitations. In all the circumstances I find that industrial action in the form of productivity limitations is happening and, in the absence of any change to the automation program and the MUA’s opposition to it, is likely to continue.”
 The Commission went on to conclude or infer that the industrial action he had found was occurring was being organised by the MUA through its delegates and/or officials. An order was issued under s.418 21 with a period of operation of six months.
 The MUA appealed the Commission’s decision and order. That appeal was unsuccessful save as to a jurisdictional challenge to certain terms of the order. In its decision on the appeal 22, the Full Bench (Hatcher VP, Booth DP, Bull C) rejected the MUA’s submissions that the evidence did not support a finding that industrial action was happening, stating:
“ In its written appeal submissions, the MUA appeared initially to take issue with the analysis by Vice President Watson which concluded that there had been a significant drop in workforce productivity since shortly after the commencement of the automation dispute. However, in its oral submissions, the MUA conceded (we think properly) that a reduction in productivity had occurred. That being the case, the only question on appeal was whether his Honour’s inference that the reduction in productivity was caused by industrial action was a reasonable and definite one arising on the balance of probabilities from the evidence, or whether the evidence gave rise to an at least equally probable inference that would explain the occurrence of the reduction in productivity.
 In the proceedings below, the MUA’s witness Mr Freestone, an MUA delegate at Port Botany, posited a number of alternate explanations for the productivity reduction, including the incidence of fog and safety issues. Those alternative explanations were rejected in the Decision. The MUA did not put anything to us in the appeal to persuade us that his Honour was wrong in rejecting these alternatives or that they provided a probable or credible explanation for what occurred. In its oral appeal submissions, the MUA emphasised that an equally probable inference to that of industrial action was that employee frustration and demoralisation caused by Patrick’s automation plans was responsible for the productivity reduction. That submission was not squarely put to Vice President Watson, and in any event the evidence did not support it. The highest the evidence went in favour of this submission was that the employees were unhappy and frustrated as a result of Patrick’s automation plan. That was and is no doubt the case. However, there was no evidence connecting that unhappiness and frustration with the reduction in productivity in a way which did not involve industrial action. Indeed, at least in connection with the absenteeism episode, Mr Freestone denied outright any connection with employee frustration. Therefore we do not consider that there was any reasonable or probable competing inference capable of being drawn from the evidence.
 We consider, having regard to his Honour’s undisputed findings that there was a dispute concerning automation in progress, that the Port Botany site was unionised to a very high degree, and that there was a previous history of industrial action at the site including the imposition of productivity limitations resulting in a previous s.418 order being issued against employees and the MUA, that the inference that the productivity reduction was the result of industrial action by the employees at Port Botany was a reasonable and definite one that was fairly open on the evidence, and that the balance of probabilities supported it.
 The past history of industrial action at the Port Botany site, in particular any earlier occurrence of a productivity limitation, was plainly relevant to an assessment of whether in the circumstances of this case industrial action was taking place. We therefore do not consider that Vice President Watson erred in taking this matter into account.”
 In respect of the finding that the MUA had organised the industrial action, the Full Bench said:
“ Earlier findings in the Decision which were not challenged on appeal provided a proper foundation for this inference. We have earlier quoted paragraphs - of the Decision in which His Honour described the history of industrial action, including productivity restrictions, at Patrick’s Port Botany workplace and its connection with the high degree of unionisation amongst the workforce. His Honour also referred to the evidence of Mr O’Leary, which he accepted, in the following way (underlining added):
“ Patrick led evidence of a history of productivity restrictions being used by the MUA and its members at Port Botany to exert pressure on Patrick over industrial demands. Mr Mick O’Leary, the General Manager, Industrial Relations for Patrick and a former MUA Deputy National Secretary gave evidence of the imposition and lifting of productivity caps and go-slows over recent years. His evidence was that a productivity cap was an acknowledged form of industrial action and that, in his experience, industrial action does not occur at the Port Botany terminal without the knowledge and involvement of the MUA.”
 Having regard to those matters and the more immediate context of resistance to automation being led by the MUA, when confronted with a further instance of industrial action by way of a productivity limitation that by its nature required coordination and planning by somebody, we consider his Honour was entitled to draw the inference that the MUA was a participant in the organisation of that industrial action. That was the most probable explanation of what was occurring, even if the actual persons who were involved in such organisation on behalf of the MUA cannot be identified.”
The dispute at Fremantle
 Unchallenged evidence before the Commissioner demonstrated that a dispute had arisen between Patrick and the MUA at the Fremantle Terminal immediately before the time at which Patrick alleged that the Cap had been re-imposed there. That evidence was largely contained in a witness statement made by Mr Bruce Guy, the Operations Manager at the Fremantle Terminal, dated 5 December 2013 23. The following description of the development of the dispute is drawn from Mr Guy’s evidence unless otherwise indicated.
 MO32, which was issued by AMSA, establishes a prescriptive regime concerning, among other things, the safe loading and unloading of cargo and the safe transfer of persons from ships, off-shore industry vessels and off-shore industry mobile units. Until October 2013, AMSA had traditionally allowed work to be done on vessels which did not comply with MO32 provided that a satisfactory risk assessment had been carried out by the person in charge in consultation with employees. However, the position changed when, on or about 22 October 2013, AMSA issued an information sheet which stated that work could not be performed by employees on a vessel which did not comply with MO32 unless the employees agreed to the risk assessment.
 On 12 November 2013 the vessel Safmarine Mulanje berthed at Patrick’s Fremantle Terminal. Bay 58 of this vessel was considered to be non-compliant with MO32, so that a risk assessment of that part of the vessel was conducted while the other parts of the ship were unloaded. We infer from the evidence that there was no agreement with the employees concerning that risk assessment.
 Early the following morning (13 November 2013), AMSA issued advice that the information sheet issued on 22 October was withdrawn, that the use of the risk assessment process as means for resolving disputes relating to the loading and unloading of cargo would cease immediately, and specified the new procedures to be followed. It appears that Patrick understood this to mean that there was to be a reversion to the pre-22 October practice. Later that day, an AMSA inspector conducted an inspection of the Safmarine Mulanje with the eventual upshot that Bay 58 was advised to be safe for the performance of cargo operations, although a defect notice was issued with respect to a passageway from the accommodation area to the work platform near Bay 58.
 On 14 November 2013 representatives of Patrick management and the operational employees attended the Safmarine Mulanje to review the position. The operational employees were advised that Patrick’s position was that Bay 58 could be worked safely and that accordingly they were required to participate in a risk assessment to address possible hazards and safety measures, so that work could proceed. When Mr Guy attempted to conduct a risk assessment, the four employees whom he required to participate (including a team leader) refused to do so, claiming that a risk assessment had already been done, that they were under no obligation to perform a further risk assessment, and that AMSA had not applied MO32 correctly. As a consequence of this the risk assessment could not be done, a significant delay was caused, and the Safmarine Mulanje left Fremantle Port without 36 containers having been loaded.
 Mr Guy stood down the four employees who had refused to participate in the risk assessment, on the basis that they had participated in illegal industrial action by refusing to follow a reasonable direction. That evening, he received a telephone call from Mr Will Tracey, the Assistant Secretary of the MUA’s Western Australian Branch. In the course of a discussion about the Safmarine Mulanje and the standing down of the four employees, the following exchange occurred 24:
Mr Tracey: Not a very smart move what you did today. You’ve poked the employees in the eye with a stick. You’ve made my job a lot easier.
Mr Guy: What do you want Will?
Mr Tracey: Are you sure you want to go ahead with the standing down of 4 guys today? I can give you until tomorrow to think about it and I’ll call in the morning in case you change your mind.
Mr Guy: I’m not changing my mind on this one but you can give me a call tomorrow if you like.
Mr Tracey: I’m not wasting my fucking time on a call if you are not going to change your mind anyway.
 On 15 November 2013 the four employees who had been stood down the previous day were issued with warnings, which were confirmed in writing on 21 November 2013. We were informed by Patrick’s counsel at the hearing of the appeal that the employees were also docked pay for the period of the stand-down.
 On 19 November 2013 Mr Tracey and three other MUA officials attended the Fremantle Terminal and conducted a meeting with about 40 employees that went for about an hour. It was from that day that Patrick management observed unusual productivity data which caused them to conclude that the Cap had been re-imposed.
Patrick’s evidentiary case
 Patrick’s case that the Cap had been re-imposed at the Fremantle Terminal rested almost entirely upon the productivity data it produced and the analysis of that data conducted by Mr Timi Cheng, Senior Project Manager at the Port Botany Terminal. Mr Guy said in his witness statement that he believed that the Cap had been put back in place based not only on the productivity data but also “my observations of the employees working”. However Mr Guy did not identify in his statement what it was that he observed in the employees’ working practices which supported his belief that the Cap was in place, and in that circumstance the submission of the MUA that this evidence had little or no probative value must be accepted. There is nothing in the Decision which suggests that the Commissioner in any way relied upon Mr Guy’s evidence in this respect. Accordingly, that leaves Mr Cheng’s evidence concerning the productivity data for consideration.
 Mr Cheng’s evidence was that Patrick’s primary method of measuring productivity was “gross lifts per shift per crane”, and that Patrick collected the data of lifts per crane for all shifts and entered it into its Terminal Operating System. Using this data, Mr Cheng constructed a series of graphs and tables comparing the productivity data for periods before and after 19 November 2013. In Mr Cheng’s first witness statement, made on 5 December 2013 25, the data was taken up until 1 December 2013. In a further witness statement made on 18 December 201326, the data was updated to 15 December 2013. Those tables showed a sudden drop in the number of shifts in which crane lifts had exceeded 200 for the shift from 19 November 2013 as follows:
(1) From 13 June 2013 to 18 November 2013, 200 lifts per shift was exceeded 37.12% of the time.
(2) From 1 November 2013 to 18 November 2013, 200 lifts per shift was exceeded 57.17% of the time.
(3) From 19 November 2013 to 1 December 2013, 200 lifts per shift was exceeded 21.62% of the time.
(4) From 19 November 2013 to 15 December 2013, 200 lifts per shift was exceeded 24.83% of the time.
 The above statistics do not convey the full picture displayed by the statistics. As Mr Cheng pointed out, where 200 lifts per shift was exceeded on or after 19 December 2013, the amount by which 200 was exceeded was minimal - it appears from the graphs that in only perhaps one case was 220 lifts exceeded. By contrast, in the period from 1 November 2013 to 18 November 2013, 220 lifts per shift was frequently exceeded, as was 240 lifts per shift, and on some occasions 260 lifts per shift was achieved or exceeded. Mr Cheng also plotted on two graphs the distribution curves for the full range of the number of lifts per shift for the periods before and from 19 November 2013. He said that the first graph (for the pre-19 November 2013 period) had “a fairly normal and natural distribution of lifts per shift, with a degree of symmetry around the peak of the distribution” 27, but that the second graph (for the post-19 November 2013 period) demonstrated “a reasonably normal distribution until it reaches 200 lifts per shift” and “then drops off significantly, which would indicate an un-natural or forced distribution”28. This caused Mr Cheng to conclude that a limit or ceiling on productivity at or around 200 lifts per shift had been imposed.
 Mr Cheng undertook some further analyses to ensure that there were no other contributing factors which may have caused the productivity effects which he had observed. He firstly took into account the number of ITVs available on each shift which, he accepted, could have impacted upon the level of productivity. To identify whether this was a relevant factor, he performed separate analyses, comparing periods before and after 19 November 2013, for shifts when there were three ITVs available and for shifts when there were four ITVs available. Broadly speaking, the pattern in terms of a significant reduction in the number of shifts with over 200 lifts from 19 November 2013 and an irregular change in the distribution curve from the same date remained whether there were three or four ITVs available per shift. Secondly Mr Cheng considered delays caused by weather or vessel issues, but could not identify any difference in such delays before or after 19 November 2013. Thirdly, because there was a perception that delays due to breakdowns had increased after 19 November 2013, Mr Cheng recalculated the figures for the period from that date excluding those shifts which had a breakdown delay of over one hour. Again, this did not significantly change the results, demonstrating that breakdowns could not have caused the change in productivity which he had observed. Mr Guy also gave evidence that he was not aware of any other factors which may have contributed to the changes in productivity data after 19 November 2013, and that “the usual factors that contribute to reduced productivity, such as weather issues, have not existed since 19 November 2013” 29.
 In relation to the average number of crane lifts per shift, Mr Cheng’s analysis (in his second witness statement) demonstrated the following:
(1) For the period 13 June 2013 to 18 November 2013, the average number of crane lifts per shift was 168.59. In the same period, for shifts with three ITVs, it was 156.059, and for shifts with four ITVs, it was 182.271.
(2) For the period 19 November 2013 to 15 December 2013, the average number of crane lifts per shift was 171.414. In the same period, for shifts with three ITVs, it was 168.551, and for shifts with four ITVs, it was 172.905.
 The above figures were the basis for the MUA’s submission that average productivity had actually increased from 19 November 2013, when the industrial action was alleged to be occurring (although for shifts with four ITVs we observe that it fell). However, the picture becomes more complicated if the period 1 November 2013 to 18 November 2013 is compared to the period 19 November 2013 to 15 December 2013. Mr Cheng’s second statement, which had a graph which plotted the number of cranes lifts per shift over these periods, had a line across each period which represented the average performance for each period. 30 This demonstrated that the average of crane lifts per shift clearly and significantly fell in the period from 19 November 2013 - from about 186-7 per shift (the precise number cannot clearly be identified from the vertical axis on the graph) in the first period to about 171-2 in the second period. This would lead us to conclude that, in the more immediate timeframe commencing 1 November 2013, the period in which the industrial action was alleged to have occurred was marked by a significant fall in overall productivity as measured by average crane lifts per shift.
Evidence relied upon by the MUA
 We have already referred to the evidence relied upon by the MUA to support its contention that productivity actually increased during the period of industrial action. As earlier stated, the MUA (at first instance and in this appeal) advanced three possible alternative explanations for the change in the productivity statistics in the period commencing 19 November 2013. The first was the change in practice relating to MO32. We have already referred to the evidence concerning MO32. The MUA’s submission to the Commissioner in that connection was that the initial change by AMSA caused a spike in productivity, and that the reversion to the original practice (which occurred on 13 November 2013) had caused productivity to drop back again. 31 The MUA adduced no evidence that the way in which MO32 was implemented had any connection with productivity.
 The second alternative explanation was a requirement that ITVs drive around the stacks and drive more slowly and carefully. In this connection, it tendered a bundle of documents. 32 The first document in the bundle was a document entitled “Tool Box Topic - Issued 4/11/13” which referred to some incidents where use of ITVs had caused damage, and then set out six directions for future behaviours, one of which required drivers to “Drive to the conditions” and slow down on blind corners or if there were “lots of other vehicles in the area”, and another one of which said “Stick to the proper laneways, NO cutting through the stacks”. The other four documents in the bundle were pre-shift information reports dated 12, 19, 19/20 and 20 November 2013 respectively. Each of these reports referred to a safety incident involving the use of an ITV. The MUA cross-examined Mr Cheng about this issue, and Mr Cheng accepted that cutting through the stacks would involve drivers taking a more direct and quicker route, and that a cessation of this practice could lead to a drop in productivity, as could a direction to drive more slowly.33 On the basis of these documents, the MUA submitted to the Commissioner that the directions given in the tool box topic sheet of 4 November 2013 caused the drop in the number of shifts with over 200 lifts after 19 November 2013. It submitted that from the incident reports from 12 through to 20 November 2013, it could be inferred that there was a delay in obtaining compliance with the directions, that the employees’ attention was drawn to these directions over that period, and that it was only after 20 November that the direction was complied with.34
 The third alternative explanation was “pre-Christmas congestion”. The MUA asserted in submissions that “Everybody knows there is problems in the waterfront just before Christmas”, and that the productivity figures represented “the normal ebb and flow of work in the workplace”. 35 No evidence was identified to support this submission at first instance or in the appeal.
 The approach to be taken in an appeal from a decision to issue an order under s.418 of the Act was described by the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd 36 in the following way:
“ Because the jurisdictional fact requirement in s.418(1) is founded upon the Commission member’s perception about the specified matters, and involves to a significant degree an evaluative assessment with a degree of subjectivity (including determining whether particular types of conduct constitute industrial action as defined, and whether industrial action is “threatened, impending or probable”), the decision-making process under the subsection can be characterised as discretionary in the sense discussed in Coal and Allied. Accordingly we consider that in this appeal we should not interfere with the findings concerning the s.418(1) jurisdictional prerequisites in the Decision unless House v The King error is identified.”
 In that case, which as discussed earlier concerned industrial action constituted by the imposition of productivity limitations at Patrick’s Port Botany Terminal, the Full Bench discussed the circumstances upon which inferences could be drawn from primary facts in the following terms:
“ In relation to the productivity limitation, the conclusion drawn about this by his Honour was based upon an inference drawn from the evidence as a whole. The basis upon which inferences of this nature can be drawn in civil proceedings was described by Tadgell JA (with whom Winneke P and Phillips JA agreed) in the Victorian Court of Appeal decision in Transport Industries Insurance Co Ltd v Longmuir as follows:
“In a civil case like this, where there is no direct evidence of a fact that a party bearing the onus of proof seeks to prove, ‘it is not possible to attain entire satisfaction as to the true state of affairs’: Girlock (Sales) Pty. Ltd. v Hurrell. In such a case, however, the law does not require proof to the ‘entire satisfaction’ of the tribunal of fact. A definition of the sufficiency of circumstantial evidence in a civil case to support proof by inference from the directly proved facts was given by the High Court in the unreported case of Bradshaw v McEwans Pty. Ltd. (27 April 1951) in a passage since repeatedly adopted: e.g. Luxton v Vines; Holloway v McFeeters; Jones v Dunkel; Girlock's case. The relevant passage in Bradshaw's case is this:
‘Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v Astley. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ...’.”
 The Full Bench also considered the extent to which an inference concerning the engagement in and organisation of industrial action could be founded on past instances of similar industrial behaviour. The Full Bench said:
“ The MUA submitted that in drawing the inference that he did, Vice President Watson erred by taking into account the past history of industrial action including the imposition of productivity limitations. In support of this submission, it referred to the Full Bench decision in Smith v Moore Paragon Australia Ltd, in which the Full Bench included in a summary of the legal principles applying to the drawing of inferences that “generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations”.
 That proposition, as the Full Bench decision makes clear, is drawn from the judgment of Dixon J in the High Court decision in Martin v Osborne. That case was concerned with the rules concerning admissibility of “similar fact” or “propensity” evidence in criminal proceedings. The applicability of those rules to civil proceedings is debatable. Their relevance to a tribunal not bound by the rules of evidence is even more questionable. But in any event, after stating the proposition referred to, Dixon J in Martin v Osborne went on to say:
“But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. ... it is at least true, I think, that the acts of a party are admissible against him whenever they form a component in a combination of circumstances which is unlikely to occur without the fact in issue also occurring. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.”
 Ultimately the touchstone is relevance. As the Full Bench said in Michael King v Freshmore (Vic) Pty Ltd:
“ ...Propensity evidence may be admissible if sufficiently relevant to the issues which arise for determination in the case. Contrary to the appellant's submission in these proceedings the question of prejudice is not a matter to be taken into account. But even if prejudice was relevant we are satisfied that it was open to his Honour to conclude that the evidence in question was relevant and that its probative value outweighed any potential prejudice.”
 The past history of industrial action at the Port Botany site, in particular any earlier occurrence of a productivity limitation, was plainly relevant to an assessment of whether in the circumstances of this case industrial action was taking place. We therefore do not consider that Vice President Watson erred in taking this matter into account.”
 Neither party submitted that we should take any different approach in this appeal. We will apply the above statements of principle to the determination of this appeal.
 Apart from the unspecified observations of Mr Guy, which we have earlier accepted lacked probative value, there was no direct evidence of the industrial action - that is, no evidence of an observed overt act which constituted industrial action. Any conclusion that industrial action occurred depended upon an inference being drawn from undisputed or established primary facts. It is clear from his reasons that the Commissioner’s conclusion that industrial action was occurring was inferential in nature. Contrary to the MUA’s submissions, we do not attach any significance to the fact that the Commissioner did not expressly characterise his conclusion as being an inference.
 The primary facts in this matter concerning the previous history of the imposition of the Cap at Fremantle and Port Botany, the dispute which arose at Fremantle in November 2013 about MO32 and the standing down of four employees, and the productivity statistics for the periods before and after 19 November 2013, were not in dispute. There was no issue that if the Cap had been re-imposed by Patrick’s employees at Fremantle, that would constitute “industrial action” falling within the definition of that expression in s.19 of the Act that would be “happening” for the purpose of s.418(1)(a), and that such industrial action would not be protected. The principal question in this appeal is therefore whether the Commissioner’s conclusion that the Fremantle employees had imposed the Cap (at about 200 crane lifts per shift) was one that was available as a reasonable and definite inference on the primary facts and was more probable than any alternative explanation proffered for what was occurring.
 We consider that the Commissioner’s conclusion was one that was available to him to reach and also clearly correct. The statistical evidence adduced by Patrick demonstrated that from about 19 November 2013 there was an abrupt change both in the number of shifts in which crane lifts had exceeded 200 at all and in the number of shifts in which 200 lifts were exceeded to any significant degree. Mr Cheng’s analysis, taken together with Mr Guy’s evidence, established that weather, vessel difficulties, breakdowns and the number of ITVs available could not be the explanation for this highly anomalous result.
 The industrial history at Patrick at its Fremantle and Port Botany terminals, which we have earlier set out at length, suggested the most probable cause for what was occurring. That history demonstrated that the MUA and its members employed at Fremantle and Port Botany had imposed the Cap - that is, a restriction on the number of container lifts which could be performed per shift - up until enterprise bargaining negotiations in 2011. In the course of those negotiations, the MUA then made a commitment that the Caps at Fremantle and Port Botany would be removed and not re-imposed in the future. It then broke that commitment by using the re-imposition of the Cap as a pressure tactic in relation to disputes which arose at Port Botany. In two instances in 2012 and 2013 respectively, the Commission found, substantially on the basis of statistical evidence produced by Patrick, that the MUA and its members at Port Botany had organised and engaged in industrial action through the re-imposition of the Cap, over the denials of the MUA, and s.418 orders had issued as a result. We consider that the following proposition may be regarded as firmly established from the industrial history:
(1) The MUA and its members have the organisational capacity to limit productivity through the imposition of the Cap for extended periods of time.
(2) The MUA and its members are prepared to use the imposition of the Cap as a pressure tactic to help secure a favourable outcome in industrial disputes that arise from time to time, notwithstanding the commitment that was made in the course of the negotiation of the Agreement.
(3) The Cap is able to be imposed in a way that is not overt and is therefore “deniable” by the MUA, and only becomes apparent upon the analysis of productivity data over a period of time.
 The dispute which arose in the week before 19 November 2013 provides the proximate cause for the re-imposition of the Cap. The MUA had a grievance in respect of the procedures for the application of MO32 and the standing down and issuing of warnings to four employees who refused to participate in a risk assessment of the Safmarine Mulanje. In his telephone call to Mr Guy on the evening of 14 November 2013, the MUA’s Mr Tracey made remarks which we consider to be in the nature of a warning or threat of further consequences if Mr Guy did not reconsider his decision to stand down the four employees. That was followed on 19 November 2013 by the conduct by Mr Tracey and three other MUA officials of a meeting of employees at the Fremantle Terminal. The change in the productivity data made itself apparent from about that date.
 In those circumstances, we consider that the inference that the MUA and its members re-imposed the Cap at the Fremantle Terminal in response to the dispute about MO32 and the standing down of the four employees is a compelling one. In accordance with the principle stated in Jones v Dunkel 37, that inference could be more confidently drawn because of the failure of the MUA to call any witness, whether an MUA official or an employee at the Fremantle Terminal, to give evidence denying the organisation of or engagement in the re-imposition of the Cap. We note that at one stage of the hearing the MUA proposed to call a Mr Clifford Smith to give evidence.38 Mr Smith ultimately did not give evidence arising from an objection raised by Patrick concerning the lack of any prior notice of Mr Smith’s evidence, but it is apparent from the MUA’s description of the evidence it proposed to adduce from Mr Smith that it would not have been concerned with denying the imposition of the Cap but only the direction for ITVs not to be driven through the stacks and to be driven more slowly.39 Ultimately the bundle of documents marked as Exhibit 5 was tendered in substitution for Mr Smith’s evidence. We do not consider therefore that the foreshadowed evidence of Mr Smith would have altered the applicability of the Jones v Dunkel principle.
 We do not consider that the distinction the MUA sought to make with the Port Botany case, namely that productivity as measured by average lifts per shift was higher in the period 19 November 2013 to 15 December 2013 than in the period 13 June 2013 to 18 December 2013, alters the position. This is for three reasons:
(1) An increase in the average number of lifts performed per shift is not necessarily inconsistent with there being a cap on the maximum number of shifts allowed to be performed per shift. Certainly the MUA did not demonstrate any such necessary inconsistency.
(2) The fact that there may have been an increase in average productivity over a given period would make all the more anomalous a marked reduction in the number of shifts with lifts over 200 in the same period. It is opposite to the result that would normally be expected, namely that an increase in average productivity would result in there being more, not less, shifts with more than 200 lifts achieved.
(3) The productivity data that is more proximate to the period in question - that is, that which compares the period 1-18 November 2013 to the period 19 November 2013 to 15 December 2013 actually shows a marked reduction in average lifts per shift. This reduction in productivity is entirely consistent with what occurred in the Port Botany case.
 We reject the MUA’s criticism that the description of the Cap as being set at “roughly 200” was arbitrary in nature and in any event not consistent with the evidence insofar as there was a small number of occasions over the relevant period in which over 200 lifts in a shift was achieved. Patrick was not in a position to be able to prove, and the Commissioner was not in a position to determine, the precise numerical basis upon which the Cap may have been re-imposed. The critical question was whether a limitation had been imposed at all. Patrick was able to demonstrate the existence of such a limitation in its analysis of the productivity data using the number 200 as a reference point, but it could readily have made good the same proposition using, say, 210 as the reference point in the analysis.
 None of the MUA’s proffered alternative explanations for the outcomes demonstrated in Patrick’s analysis of the productivity data is in any way probable. There was no evidence to support the counter-intuitive proposition that a more onerous method of applying MO32 - that is, requiring a risk analysis to be agreed with employees before work could occur on a vessel which was not compliant with MO32 - would cause a “spike” in productivity, or that the removal of this requirement would cause a reduction in productivity. In relation to the directions issued as part of the “Tool Box Topic” document of 4 November 2013, there was no evidence that those directions represented a change to the required practice in the workplace; it is more likely that they represented a reminder as to what the existing required practice was. What effect those directions had on actual working practices was also not the subject of any evidence. The MUA’s attempt to demonstrate by reference to documents concerning ITV accidents that the directions, issued on 4 November 2013, took effect in a practical sense on 20 November 2013, was entirely unconvincing. As to alleged pre-Christmas congestion, there was no evidence on this topic at all, so that it remains unknown whether there was any pre-Christmas congestion at all, when it started, or what if any effect it might have on productivity.
 Once the Commissioner had found that industrial action by way of the re-imposition of the Cap was happening, the further inference that such industrial action was organised by the MUA followed almost as a necessary consequence. Mr O’Leary gave the following unchallenged evidence in his witness statement:
“38. In my experience the MUA represent the interests of (practically) all the Employees. When an industrial dispute arises regarding the Employees, I deal with the MUA. I cannot recall a scenario regarding an industrial dispute when the Patrick workforce adopted a different position to the MUA.
39. The reimposition of the Cap would necessarily involve a coordinated and collective effort because Employees work different shifts in each roster cycle and will work with different people on each shift. In order to implement the Cap across all shifts it is necessary that the MUA communicate with all Employees and arrange for the Cap to be implemented. In my experience, as a former MUA official, and in Patrick management, the team leaders and crane drivers exert the greatest influence over the container rate movements. They can do this with a degree of precision because they are directly involved in moving containers off vessels.”
 The industrial history demonstrated that when the Cap was lifted in 2011 at Port Botany and Fremantle, this was done by way of arrangement with the MUA. When the Cap was re-imposed in Port Botany in 2012 and again in 2013, the Commission found on both occasions that this had been organised by the MUA. The dispute which arose at the Fremantle Terminal in November 2013 clearly involved the MUA taking a leadership role on behalf of employees’ interests. This evidence makes it overwhelmingly likely that any re-imposition of the Cap was organised by the MUA. We note that the MUA did not run an alternative case that, to the extent the Cap was found to be in place, it had not been organised by the MUA.
 We conclude therefore that there was a proper basis for the Commissioner to determine that he was satisfied that industrial action in the form of the Cap was happening and was being organised by the MUA. That being the case, s.418(1) required the Commissioner to make an order of the nature that he did. We therefore reject appeal grounds (2), (3) and (4). No submission was advanced by the MUA in the alternative challenging the specific terms of the Order, and as earlier noted the Order was in the same terms as that made by the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd 40. Appeal ground (5) is therefore also rejected.
 That leaves appeal ground (1). Although the Decision is short, we do not consider that there is any prejudicial insufficiency of reasons in the Decision. Once the reasoning in the Decision is related to the evidence that was before the Commissioner, it becomes clear enough what the basis of the Commissioner’s determination was. Certainly those reasons have proved sufficient to permit the MUA to articulate its case in this appeal as to why the Order should not have been made. In Transport Workers’ Union of Australia v WA Freightlines Pty Ltd 41 the Full Bench said:
“ … Where reasons are required, and assuming reasons are given, a question may arise as to the adequacy of the reasons. Whether the reasons given are adequate will depend upon the circumstances including the nature of the statutory function being exercised, the decision and the submissions and material in the case.”
 We consider that the exercise of the statutory function in s.418(1) will always involve an element of urgency. That is usually the case because of the requirement in s.420(1) that any application for an order under s.418(1) be determined so far as practicable within two days. However, even where that proves not to be practicable and an interim order is made under s.420(2) as a result, that should not lead to the result that any urgency in the application thereby dissipates. It is a serious matter for persons to be bound by an interim order, contravention of which may attract civil penalties, in circumstances where the liability of those persons to an order under s.418(1) has not yet been determined. The Act may require that result, but such a situation should also lead to the Commission determining the application to finality as soon as possible even if this cannot be done in the two day period referred to in s.420(1). We consider that the Commissioner acted in accordance with this preferred approach by giving short ex tempore reasons for his decision rather than reserving upon it, and in that context we consider that, save for one matter, the reasons he gave for his decision were adequate for the purpose.
 The one area in which the Commissioner’s reason were not adequate was that he failed to make any mention of the submissions made by the MUA as to why no order under s.418(1) should be made, and thereby failed to demonstrate that he had taken those submissions into consideration. However, if this failure constituted error, even jurisdictional error, it does not follow that permission to appeal should be granted and the MUA’s appeal upheld. It is well established that the lack of a useful result is a proper reason to refuse to grant relief even where jurisdictional error has been identified. 42 We have in this decision considered all the submissions made by the MUA before the Commissioner, and for the reasons we have earlier set out have concluded that they lacked merit. They could not therefore, if expressly considered at first instance, have given the MUA the possibility of a successful outcome. If permission to appeal was granted, the appeal upheld, and the matter re-heard, those submissions would not lead to a different result in the re-hearing. In those circumstances, we consider that there would be no utility in granting the MUA permission to appeal, and the public interest does not otherwise require the grant of leave to appeal.
 Having regard to the objects of the Act which are set out in s.3, we consider it appropriate to make two additional observations about this matter.
 Firstly, we note that this is now the third occasion in which the MUA and its members have been found to have re-imposed the Cap after it was lifted at the Fremantle and Port Botany terminals in late 2011. The second and third occasions occurred after the Agreement, which has not yet reached its nominal expiry date, took effect under the Act, and so prima facie constituted industrial action taken in contravention of s.417(1) of the Act. It is also the case that each of these three occasions involved a breach of the commitment which the MUA gave in the course of bargaining for the Agreement to lift the Cap and not re-impose it during the life of the Agreement. That commitment clearly had considerable significance in the bargaining for the Agreement: it was evidently regarded as something of considerable value by Patrick; Mr Crumlin, the MUA’s National Secretary, personally undertook to assist in delivering compliance with the commitment; and on the strength of the commitment the MUA’s members were afforded a considerable financial benefit in terms of back-pay. The fact that the MUA, having given that commitment, has proceeded repeatedly to dishonour it is highly disturbing. Conduct of this nature discredits the integrity of enterprise bargaining and is likely in the future to inhibit honourable and productive dealings between the MUA and employers because it casts doubt upon the MUA’s willingness or capacity to abide by agreements it enters into. Our expectation is that the MUA will take steps to ensure that this type of conduct does not recur.
 Secondly, the chronology of events in this matter indicates that although Patrick may not yet have been in a position on or immediately after 19 November to be confident that its employees at the Fremantle Terminal were engaging in industrial action by way of the re-imposition of the Cap, it was clearly sure that that was the case by the time it filed its application for a s.418(1) order on 4 December 2013 at the latest. In that circumstance, Patrick’s obligation under s.474 to cease paying its employees would appear to have been engaged. That statutory obligation, as we have earlier explained, is an important part of the regime of provisions in the Act intended to prevent the occurrence of non-protected industrial action. At the hearing of this appeal we inquired of counsel for Patrick what steps Patrick had taken in respect of its obligations under s.474. Although counsel for Patrick did not concede that any contravention of s.474 had occurred, it is apparent from counsel’s response to our inquiry that Patrick’s employees at its Fremantle Terminal had not suffered any loss of pay in respect of the period in which they have been found to have engaged in non-protected industrial action. It is a matter for the courts, not the Commission, to determine whether any contravention of s.474 has occurred. It is sufficient for us to observe that compliance with s.474 by employers is of course not voluntary, that a failure to comply with s.474 may attract the imposition of a civil penalty, and further that an employer which unlawfully permits its employees to engage in non-protected industrial action without any consequence in terms of loss of pay should not be surprised that such employees repeatedly resort to the use of such industrial action as a pressure tactic when industrial disputes arise.
 To the extent that the Commissioner may have erred in not giving any express consideration in the Decision to the MUA’s submissions, we do not consider that there is any utility in granting permission to appeal because of the lack of merit in those submissions. We do not consider that the MUA has otherwise demonstrated any error in the Decision or in the making of the Order. Permission to appeal is refused.
S. Crawshaw SC with L. Edmonds for the Maritime Union of Australia
Y. Shariff of counsel with A. Allegretto, solicitor, for Patrick Stevedores Holdings Pty Ltd
1  FWC 9547
3  FWCFB 7736
4  FCAFC 157
5  FCAFC 146 at , 207 FCR 277
6  FWCFB 2568
7 Exhibit 2, Appeal Book pp.163-394
8 Exhibit 2, Appeal Book pp.292-293
9 Exhibit 2, Appeal Book p.300
10 Exhibit 2, Appeal Book p.312
11 Exhibit 2, Appeal Book p.319
12 Exhibit 2, Appeal Book p.359
13 Exhibit 2, Appeal Book p.379
14 PNs 23-31
15 PNs 799-800
16 PNs 847-852
18 See Patrick Terminals Enterprise Agreement 2012  FWAA 5021 at -
20 Patrick Stevedores Holdings Pty Limited v Maritime Union of Australia  FWC 4391
22 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd  FWCFB 7736
23 Exhibit 3, Appeal Book pp.26-162
24 Exhibit 3, Appeal Book pp.29-30
25 Exhibit 1, Appeal Book pp.395-426
26 Exhibit 4, Appeal Book pp.427-460
27 Exhibit 1, Appeal Book p.399
29 Exhibit 3, Appeal Book p.30
30 Exhibit 4, Appeal Book p.431 at -
31 Appeal Book pp.555-556 PNs 895-897
32 Exhibit 5
33 Appeal Book pp.516-517 PNs 562-569
34 Appeal Book pp.560-562 PNs 925-930 and 933
35 Appeal Book p.560 PN 921
36  FWCFB 7736
37  HCA 8; (1959) 101 CLR 298
38 Appeal Book pp.527-8 PNs 691-697.
39 Appeal Book pp.528-9 PNs 705-6
40  FWCFB 7736
41  FWAFB 3863
42 Ferrymen Pty Ltd v Maritime Union of Australia  FWCFB 8025 at ; Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia  FWCFB 4250 at ; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; Gardner and another v Dairy Industry Authority of NSW (1977) 18 ALR 55; Transport Workers Union of NSW v AIRC (2008) 171 IR 84.
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