[2016] FWC 7839
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
AGL Loy Yang Pty Ltd
(B2016/1054)

COMMISSIONER CIRKOVIC

MELBOURNE, 28 OCTOBER 2016

Proposed protected action ballot by employees of AGL Loy Yang Pty Ltd.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is a bargaining representative of a number of employees of AGL Loy Yang Pty Ltd (AGL Loy Yang) who will be covered by a proposed enterprise agreement. The CFMEU has been bargaining with AGL Loy Yang for an agreement for approximately twelve months.

[2] On 26 September 2016, the CFMEU applied to the Fair Work Commission (the Commission) for a protected action ballot order (PABO) under s.437 of the Fair Work Act 2009 (the Act).

[3] The group of employees that are proposed to be balloted are employees of AGL Loy Yang who are members of the CFMEU and who have not appointed another bargaining representative in the negotiations (relevant employees).

[4] The relevant employees of AGL Loy Yang are currently covered by the Loy Yang Power Enterprise Agreement 2012 1 which has passed its nominal expiry date of 31 December 2015 (2012 Agreement). The agreement also covers AGL Loy Yang and several unions, including the CFMEU.

[5] The CFMEU have requested the Protected Action Ballot Agent, Mr Errol Raymond Hodder, is to conduct the protected action ballot in accordance with the terms of the PABO if it is issued. 2

[6] AGL Loy Yang opposes the granting of a PABO, submitting that the Commission does not have jurisdiction to make the proposed PABO because:

[7] Further, if a PABO is to be made:

Background

[8] As outlined at paragraph [1] above, the parties have been engaged in enterprise bargaining for an enterprise agreement to cover AGL Loy Yang and its employees since October 2015.

[9] Since this time, there have been three PABO applications made by the CFMEU pursuant to s.437 of the Act, all have been opposed by AGL Loy Yang. The first of these was made on 21 March 2016 and later discontinued by the CFMEU on 5 April 2016 due to the CFMEU failing to give a copy of the application to the AEC pursuant to s.440(b) of the Act. The second PABO application was made by the CFMEU on 5 April 2016 and referred to a Full Bench pursuant to s.615A of the Act, which dismissed the PABO application due to reaching a conclusion that the application was not validly made. The third PABO application was made by the CFMEU on 26 May 2016 and was heard by Deputy President Clancy on 10 June 2016.

[10] In Deputy President Clancy’s Decision 5 and Order6 dated 1 July 2016, which arose from the third PABO application, it was held by Deputy President Clancy that he was not satisfied that the CFMEU had been and was genuinely trying to reach agreement with AGL Loy Yang and dismissed the application.

[11] An appeal was subsequently lodged by the CFMEU against the Decision and Order of Deputy President Clancy and the appeal was listed for hearing before the Full Bench on 24 August 2016. The Full Bench, in its Decision 7 granting permission to appeal, was not persuaded that Deputy President Clancy’s discretion was exercised wrongly, and dismissed the appeal on the grounds that the decision was not manifestly unjust or unreasonable.8

The Current PABO Application

[12] As outlined in paragraph [2] above, the CFMEU made this application for a PABO on 26 September 2016 (the Application).

[13] The application was initially listed for hearing on 28 September 2016 in Melbourne.

[14] On 27 September 2016, Ms Kate Lehane of Minter Ellison, representatives for AGL Loy Yang, sought an adjournment in order for AGL Loy Yang to submit further evidence relating to many circumstances it stated were relevant to the decision of Deputy President Clancy that still pertained to the application.

[15] It was stated by Ms Lehane, whilst acknowledging the statutory obligation of the Commission in s.441(1) of the Act to, as far as practicable, hear and determine the application within two working days, that it was necessary for AGL Loy Yang to submit further evidence in order to properly put these matters before the Commission and appropriately apprise the Commission of the history and context of this matter.

[16] On 27 September 2016, the Commission wrote to the parties and inquired as to whether the CFMEU, had any objection to the adjournment request and proposed timetabling of the matter for hearing put forward by AGL Loy Yang for consideration.

[17] On 27 September 2016, Mr Pasfield of Slater and Gordon, representatives for the CFMEU, wrote to the Commission and stated that they strongly opposed the adjournment, advising that a more detailed response by way of a letter would be forthcoming.

[18] On 27 September 2016, Mr Pasfield provided the Commission with a letter outlining their opposition to the adjournment. Mr Pasfield submitted that as to the need for evidence on the issue of whether CFMEU has been, and is, genuinely trying to reach agreement, AGL Loy Yang had not specified the nature of such evidence. Ms Pasfield referred to the decision of the Full Bench in CFMEU v AGL Loy Yang Pty Ltd 9 which he stated traversed the bargaining between parties up until 10 June 2016. He further submitted that since that time, bargaining had occurred under the auspices of the Commission, and the progress of negotiations had been recorded in statements issued by the Commission, a fact the Full Bench was aware of when it stated as follows:

[19] In the letter to the Commission dated 27 September 2016, Ms Pasfield further submitted that the CFMEU had filed a witness statement of Mr Geoff Dyke which set out the course of bargaining including what had occurred since the proceedings before Deputy President Clancy on 10 June 2016. Mr Pasfield stated that Mr Dyke would be available for cross examination and that as the CFMEU would be relying upon statements issued during the conciliation process, any further evidence from AGL Loy Yang would be of limited compass. Ms Pasfield submitted that if AGL Loy Yang wished to put on the evidence that was before Deputy President Clancy then this was readily available and could be made available to the Commission at short notice.

[20] Mr Pasfield finally submitted that AGL Loy Yang also did not specify what submissions it wished to make about the CFMEU’s proposed ballot agent, and that as the CFMEU was to rely on the affidavit of Mr Hodder in that regard it respectfully submitted that any submissions to be made on this topic could be dealt with at the initially listed hearing date of 28 September 2016.

[21] On 27 September 2016, parties were advised, via email, of my decision to grant the adjournment, on the basis that the materials before me at the time did not provide sufficient information as to what occurred between the parties since the decision of Deputy Present Clancy of 1 July 2016. In addition to this, I considered it relevant in the circumstances that the CFMEU had only provided an unsworn affidavit of its nominated protected action ballot agent Mr Hodder on the afternoon of 27 September 2016. As such, I advised parties that an adjournment would provide sufficient opportunity for the parties to provide submissions on both matters referred to.

[22] Amended directions for parties to file submissions were set and a hearing date of 7 October 2016 was provided.

[23] Mr Pasfield emailed the Commission on 27 September 2016, stating that counsel for the CFMEU was not available for the hearing on 7 October 2016, due to having another matter before the Commission and requesting that the hearing instead take place on 5 October 2016 or 6 October 2016.

[24] The Commission emailed the parties in response to Mr Pasfield’s request and inquired as to the availability of both parties for 6 October 2016.

[25] On 27 September 2016, representatives of both parties emailed the Commission to confirm their availability to attend for hearing on 6 October 2016.

[26] Following the hearing on 6 October 2016, the matter was adjourned for a further hearing to hear closing submissions, on 12 October 2016.

[27] Two witness statements were filed in these proceedings by the CFMEU for Mr Dyke, dated 26 September 2016 and 4 October 2016. Two affidavits were filed by the CFMEU for Mr Hodder, dated 27 September 2016 and 4 October 2016. Mr Dyke gave evidence at the hearing on 6 October 2016. Mr Hodder was not cross examined in these proceedings.

[28] Witness statements were filed by AGL Loy Yang for Ms Lehane and Mr Michael Clinch, both dated 29 September 2016. Mr Clinch gave evidence at the hearing on 6 October 2016. Ms Lehane was not cross examined in these proceedings.

[29] At the hearing on 12 October 2016, Mr Parry, Counsel for AGL Loy Yang confirmed that the submissions upon which AGL Loy Yang relied in relation to its opposition to the Application are contained in its Outline of Submissions dated 11 October 2016 and certain Schedules attached and referred to therein. 11

Legislative Scheme and competing contentions

[30] The legislative provisions that regulate the making of a PABO and the conduct of any resulting ballot are set out in Part 3-3, Division 8 of the Act.

[31] Section 437 of the Act sets out who may apply for a PABO:

[32] Section 443 of the Act sets out when the Commission must make a PABO:

Matters for Determination

[33] That the CFMEU is a bargaining representative for the proposed agreement of at least some of the employees who will be covered by the proposed agreement is not in dispute.

[34] The questions to be put to the employees have been specified, including the nature of the proposed industrial action. 12

[35] The CFMEU has named Mr Hodder to be the Protected Action Ballot Agent. 13

[36] It is also not in dispute that the nominal expiry date of the current agreement has passed 14 or that the CFMEU served a copy of the application on AGL Loy Yang and Mr Hodder within 24 hours of making the application.15

[37] A PABO may only be made in the circumstances outlined in s.443 of the Act. The Commission must issue a PABO, if it is satisfied that:

[38] As indicated in paragraph [6] above, AGL Loy Yang opposes the making of a PABO and submits that the Commission does not have jurisdiction to issue the proposed PABO because:

[39] Further, if a PABO is to be made:

Application pursuant to s.443(5) – exceptional circumstances justifying the period of written notice being longer than three working days – AGL Loy Yang’s Submissions

[40] As indicated in paragraphs [7] and [39] above, AGL Loy Yang submits that if a PABO is to be made, they make an application pursuant to s.443(5) of the Act for the notice period for any protected action to be extended to seven working days.

[41] AGL Loy Yang submits that there are exceptional circumstances justifying an increase of the written notice period referred to in s.414(2)(a) pursuant to s.443(5) of the Act. Further, they contend that the Commission should exercise its discretion to extend the relevant notice period for both forms of proposed industrial action to seven working days. 18

[42] AGL Loy Yang also submits that if a PABO is made, ‘there will be limit on the number of stoppages and/or bans, their frequency, their duration, or the period over which the stoppages and/or bans are sought to be imposed’. 19 AGL Loy Yang further sought to rely on paragraphs [108]-[142] of its submissions dated 10 June 2016 in previous application B2016/581 which set out the relevant authorities and refers to evidence from earlier proceedings.

[43] AGL Loy Yang presses its application for an order pursuant to s.443(5) of the Act that the period of notice be extended to seven working days. 20

[44] The CFMEU does not oppose the application that the Commission make an order that pursuant to s.443(5) of the Act, the notice period for any protected action to be extended to seven working days. 21

s.443(1)(b) of the Act – AGL Loy Yang’s Submissions

[45] AGL Loy Yang submits that the Commission does not have jurisdiction to make a PABO because the requirements of s.443 of the Act are not met. Critically, AGL Loy Yang submitted that the Commission ought not to be satisfied that the CFMEU ‘has been, and is, genuinely trying to reach an agreement’ as required by s.443(1)(b) of the Act.

[46] In submitting that this question of whether an applicant for a PABO ‘has been, and is, genuinely trying to reach agreement’ with the relevant employer is a matter to be determined having regard to all of the relevant facts and circumstances, AGL Loy Yang relies on Total Marine Services Pty Ltd v MUA 22 (Total Marine) and Esso Australia Pty Ltd v AMWU and Others23 (Esso).

[47] AGL Loy Yang submitted that the Commission cannot make a binding determination assessing whether s.443(1)(b) is satisfied, in reliance on the obiter dicta of the majority decision in JJ Richards & Sons Pty Ltd v TWU 24(JJ Richards No 1) which would have regard to a single fact or circumstance which is the applicant's motivation (its intent, object or purpose).

[48] It is submitted that this approach is inconsistent with the language, context and legislative history of s.443(1)(b). In support of this proposition, AGL Loy Yang cited the decision in Esso, where the Full Bench agreed with the following passage from Total Marine at [31]-[32] :

[49] AGL Loy Yang noted that the Full Bench in Esso reaffirmed later in its decision that all the facts and circumstances of a particular case had to be taken into account, and went on to say that:

[50] AGL Loy Yang further referred to the Full Bench in Esso where it stated:

[51] AGL Loy Yang submits that the decision in Esso has been applied on numerous occasions by the Commission when considering PABO applications, including by a subsequent Full Bench in MMA Offshore Vessel Operations Pty Ltd v MUA 27 (MMA Offshore) where it was held (at [11]-[13] and [22]) that the Commission ought to apply the Esso decision unless it is of the view that the decision is manifestly incorrect.

[52] It is further submitted by AGL Loy Yang that in his decision of 1 July 2016 28, Deputy President Clancy expressly followed the approach in Esso and the part of Total Marine applied by the Full Bench in Esso in determining the question of whether the CFMEU has been, and is, genuinely trying to reach an agreement.29

[53] AGL Loy Yang submits that in its appeal against the decision of Deputy President Clancy, 30 the CFMEU sought to challenge the approach enunciated by Esso and Total Marine. AGL Loy Yang refers to the CFMEU’s reliance on paragraphs [58], [62] and [63] of the majority position in JJ Richards No 1 for a number of their appeal grounds (1, 2, 7, 8 and 9). AGL Loy Yang notes that the CFMEU’s appeal failed, and the Full Bench in dismissing the appeal, approved of an approach which applied that of Total Marine, also followed in Esso.31

[54] It is submitted that the CFMEU seeks to rely on the ‘decision rule’ approach of the majority in JJ Richards No 1 which is inconsistent with the language of s.433(1)(b), its legislative history and subsequent Full Bench authority including the decisions of JJ Richards & Sons Pty Ltd and another v TWU 32 (JJ Richards No 2), as well as Esso and MMA Offshore, and J.J Richards & Sons Pty Ltd v Fair Work Australia33 (JJ Richards Full Court Decision).34

[55] AGL Loy Yang submits that the CFMEU submissions make only passing reference to the decision in Esso and do not cite the main propositions for which it stands. It submits that the CFMEU selectively emphasises certain passages in an extract from JJ Richards Full Court Decision which they state turned on the very specific factual scenario of those proceedings. It is submitted that the key words in the passage extracted by the CFMEU (in its submissions at [16]) are from the judgment of Flick J in the JJ Richards Full Court Decision:

[56] AGL Loy Yang refers to the submissions of the CFMEU 35 at [17] which assert that the JJ Richards Full Court Decision ‘emanates’ from the decision in JJ Richards No 1 as being incorrect. AGL Loy Yang submits that the majority decision in JJ Richards No 1 remitted the application to a single member and it was that single member decision which subsequently went on appeal to a Full Bench decision in JJ Richards No 2. As such, and contrary to the CFMEU’s submission, it is the Full Bench decision in JJ Richards No 2 which was subjected to judicial review in the JJ Richards Full Court Decision.36

[57] AGL Loy Yang made reference to paragraphs [25] and [27]-[29] of the CFMEU submissions as relying upon paragraphs [62] and [63] of the majority decision in JJ Richards No 1. It is submitted the differences between the JJ Richards decisions and the factual circumstances they considered are important as the approach of the majority in JJ Richards No 1 was not followed or applied in JJ Richards No 2 or in the JJ Richards Full Court Decision.

[58] AGL Loy Yang contends that in the appeal in JJ Richards No 1 there were two narrow issues and beyond a determination of these, the Full Bench was not required to answer any broader questions as to facts and circumstances relevant to assessing whether s.443(1)(b) of the Act is satisfied. It submits that as JJ Richards No 1 dealt with discrete points relating to the identity of an applicant for a PABO, and the timing of that application, it should not be seen as putting forward an ‘alternative test or criterion’ for applying the statutory requirements of s.443(1)(b) of the Act. 37

[59] AGL Loy Yang referred to JJ Richards No 2 as another case where it was considered whether s.443(1)(b) is satisfied in circumstances when the employer had not yet agreed to bargain. It is submitted that the Full Bench in this case did not adopt the broad comments of the majority in JJ Richards No 1 but in construing the wording of ‘genuinely trying to reach agreement’, the Full Bench said:

[60] AGL Loy Yang relies on the natural and ordinary meaning of the words in s.443(1)(b) of the Act by drawing attention to the dictionary definitions for ‘genuine’ as follows:

[61] In relation to its opposition to the current PABO application, AGL Loy Yang also relies on Esso in particular the passage:

[62] AGL Loy Yang submitted that when construing s.443(1)(b) of the Act, consideration must be given not just to the current bargaining position of the CFMEU, but to all of its bargaining conduct over the course of the negotiations since July 2015 42, and to whether the CFMEU’s bargaining conduct demonstrates that it has been genuine in trying to reach agreement.

[63] Whilst stating it does not seek to conflate the questions of ‘genuinely trying to reach an agreement’ and good faith bargaining under s.228 of the Act, AGL Loy Yang submits that the acknowledgement of the relationship between the two concepts in Esso tends against the narrow construction contended for by the CFMEU.

[64] AGL Loy Yang states that it also appears clear that an assessment of whether a person is complying with the good faith bargaining requirements is relevant to whether they are genuinely trying to reach agreement. In support of this it referred to the Explanatory Memorandum to the Fair Work Bill 2008 where it was stated in relation to the concept of ‘genuinely trying to reach agreement’ in s.413 of the Act:

[65] AGL Loy Yang set out in detail a legislative history of ss.443(1)(b) and 413(3) of the Act and their predecessors 44 and submitted:

[66] As such, AGL Loy Yang submits that the CFMEU must be acting ‘genuinely’ and it is not enough for the CFMEU to show that its goal is simply to reach an agreement. It asserts that mere attendance at meetings can be given little weight, as while the CFMEU has attended conferences convened under s.240 of the Act, this does not mean the Commission can be satisfied that it has been and is genuinely trying to reach an agreement.

[67] As to the option of an ‘acceptable cooling off period’ referred to by Deputy President Clancy as being the period ‘between the cessation of behaviour that is or may be deemed to be of a nature that offends the notion of genuinely trying to reach agreement and the making of a PABO application … [and] … a period of bargaining in an atmosphere free of behaviour that lacks the requisite genuineness’, 46AGL Loy Yang submitted that there needs to be an assessment of what occurs in that period in the context of what has occurred before.

[68] In this regard, AGL Loy Yang submitted that mere attendance at conferences is not enough. AGL Loy Yang also referred to the CFMEU’s refusal to accept, and what it claims was its active campaign against, the Recommendation of Commissioner Roe of 24 August 2016 (Recommendation), as well as misrepresentations about the effect of that Recommendation as additional reason the CFMEU’s mere attendance at conferences can be attributed little weight.

[69] AGL Loy Yang submits that despite all of the attempts of the Commission through the bargaining process convened pursuant to s.240 of the Act to broker a deal that all parties can live with, and AGL Loy Yang’s acceptance of a deal even though it did not meet all of its objectives, ‘the CFMEU has continued on its course of game playing and industrial warfare’. 47

[70] In particular, AGL Loy Yang submits that by criticising the outcome of the process of bargaining convened pursuant to s.240 of the Act, the CFMEU through its officer Mr Dyke, has made public statements seeking to downplay the CFMEU’s involvement in the process. 48

[71] AGL Loy Yang submits that now the CFMEU is seeking the Commission’s exercise of power to grant its PABO application, it seeks to rely on that same involvement and nothing else since the decision of Deputy President Clancy on 1 July 2016, to support its current application. AGL Loy Yang contends that the CFMEU cannot have it both ways, and refers to the inconsistency of the position that the CFMEU puts to its members, and that which it now puts to the Commission as another example of how it is not genuinely trying to reach agreement.

[72] AGL Loy Yang also notes that while the Act itself does not refer to a ‘cooling off period’, on the evidence before the Commission, the Commission is entitled to find that the CFMEU’s conduct through its officer Mr Hardy in relation to the appointment and participation of the nominated bargaining representatives is continuing. It further submits that such a finding is relevant to the assessment of both the ‘has been’ and ‘is’ aspects of s.443(1)(b) of the Act.

[73] AGL Loy Yang submits that Mr Hardy is the relevant person who would be able to explain why the appointment of the nominated bargaining representatives occurred, as well as the reasons for the involvement of the CFMEU and Mr Hardy himself in this process. AGL Loy Yang notes that despite the findings of Deputy President Clancy, and despite being called to give evidence for the CFMEU in previous PABO applications, and being present in the hearing of 6 October 2016, Mr Hardy did not give evidence in this proceeding. 49

[74] In the absence of an explanation for the CFMEU’s failure to call Mr Hardy to explain why he and the CFMEU have been involved in the appointment of nominated bargaining representatives, AGL Loy Yang submits that the Commission should draw a Jones v Dunkel 50 inference that the evidence of Mr Hardy would not have assisted the CFMEU.

[75] AGL Loy Yang further submits that because of the unexplained failure of the CFMEU to call evidence, the Commission may more readily accept its evidence on the facts in question. 51 It is submitted that this goes not only to the appointment of the nominated bargaining representatives in March, July and August 2016, but also to the ongoing participation and independence of the nominated bargaining representatives.

[76] AGL Loy Yang contends that the Commission is entitled to find that the purported appointment and ongoing participation of the nominated bargaining representatives is nothing but a sham, with the nominated bargaining representatives being mere puppets of the CFMEU. 52 It is submitted that in reality the CFMEU is representative of all 437 of its financial members who are employed by AGL Loy Yang in relation to enterprise bargaining. AGL Loy Yang submits this is consistent with the evidence of Mr Dyke in related agreement termination proceedings before the Commission.53

[77] AGL Loy Yang also submits that this is consistent with the meeting of CFMEU financial members on 12 September 2016, as this considered the Recommendation and at which it was stated the members ‘spoke about [the] proposal, put it to members for a vote’. 54 It is submitted that the only other matter that was referred to by Mr Dyke as having been discussed at this meeting was a workplace survey, which was a planned survey of employees for use in the agreement termination proceedings.55

s.441(3)(b) of the Act – CFMEU’s Submissions

[78] The CFMEU submitted that the Commission can be satisfied it has been, and is, genuinely trying to reach agreement.

[79] The CFMEU referred to its history of involvement in bargaining towards an enterprise agreement dating back to October 2015. The CFMEU also referred to conferences held to assist in the bargaining pursuant to an s.240 application made by AGL Loy Yang 56 which took place on 13 dates before the Commission from May 2016 to August 2016.57

[80] The CFMEU also relies on statements made by Mr Dyke, describing the bargaining process and the CFMEU’s participation in the s.240 conferences, particularly his statement that ‘[T]hroughout the process described above the CFMEU has been, and continues to be, genuinely trying to reach agreement’. 58

[81] In addition to this evidence which it submits meets the description of evidence required in JJ Richards No 1, the CFMEU also submits it has the assistance of the Statements of Commissioner Roe made during the conferences convened under s.240 of the Act which indicate that all parties were genuinely trying to reach agreement.
[82] In relation to the Statements and Recommendations of Commissioner Roe, the CFMEU states that these documents record the following:

[83] In light of what it considers to be unequivocal supporting statements, the CFMEU submits that AGL Loy Yang’s contention that it has not been, and is not genuinely trying to reach agreement is unsustainable.

[84] The CFMEU submits that nothing in the hearing on 6 October 2016 strengthens AGL Loy Yang’s case, as most of the cross-examination of Mr Dyke went to issues identified in Deputy President Clancy’s decision of 1 July 2016, and occurred prior to 16 June 2016. The CFMEU states that these matters have been rectified and that Mr Dyke added the evidence in support of its application when questioned about post-June 2016 conduct, by attesting that since this time the CFMEU has made 30-40 concessions on its claims. 60

[85] The CFMEU also submits that the findings of Deputy President Clancy – that he could not be satisfied that the CFMEU had been genuinely trying to reach an agreement – was based on five matters. 61 With regard to these matters the CFMEU submits that, save for the bargaining representative matter dealt with separately, they all occurred long ago from October 2015 to May 2016.

[86] The CFMEU further submits that at hearing AGL Loy Yang attempted to advance its case that the CFMEU’s involvement in the appointment of six bargaining representatives meant that it was not genuinely trying to reach agreement. The CFMEU submits that Deputy President Clancy found this to be a matter which told against an earlier application under s.437 as it ‘disrupted the bargaining, altered its process and is ongoing’. 62 The CFMEU submitted that Deputy President Clancy’s decision was made on 1 July 2016 and only dealt with circumstances up until the date of hearing of 10 June 2016, and that since this time circumstances have changed.

The CFMEU also submits that any disruption in the earlier bargaining caused by the nominated bargaining representatives has been addressed in the bargaining dispute process convened by the Commission pursuant to s.240 of the Act and that these same representatives were parties to it. It further submitted that in addition to the conferences held at the Commission between June and August 2016, the process was ongoing with a further conference held on 11 October 2016.

[87] The CFMEU submits that there has been no further disruption as claimed by AGL Loy Yang and that there was a new process. As such, it is submitted that the reliance of AGL Loy Yang on the finding of Deputy President Clancy in this regard is misconceived as the circumstances have now changed.

[88] It is further argued by the CFMEU that the same matter was raised before and considered by the Full Bench in the appeal from Deputy President Clancy’s decision in the following way:

[89] The CFMEU submits that the above concern is taken no further in these proceedings. It asserts there is no basis, on the material before the Commission, for any finding that the non-CFMEU bargaining representatives are in any way impugned. 64

[90] In relation to AGL Loy Yang’s assertions that the CFMEU campaigned against Commissioner Roe’s Recommendation, the CFMEU submits it did not campaign against the Recommendation but rather against a proposed agreement that AGL Loy Yang put to a vote of employees. 65

The CFMEU submits that the decision of AGL Loy Yang to move directly to a vote on a proposed agreement ‘changed the landscape of bargaining dramatically’ and ‘was not a step contemplated by the Recommendation’. 66

[91] Due to this decision by AGL Loy Yang to put a proposed agreement to a vote, the CFMEU argues it was no longer faced with consulting its constituents as to whether the proposal should be endorsed. Instead, the CFMEU contends it was faced with AGL Loy Yang having moved to a decision to draft the Recommendation into an agreement, for which it was seeking the approval of its employees.

[92] The CFMEU submits that it told AGL Loy Yang as much in its correspondence on 9 September 2016. In this correspondence, the CFMEU states it also set out the matters it would like AGL Loy Yang to address in order ‘to achieve a wide and lasting acceptance of the proposal’. 67

[93] Stating that there was no response received to their letter of 9 September 2016, the CFMEU did not endorse the proposed agreement, and on 21 September 2016 the result of the ballot was declared and the proposed agreement was rejected by employees.

[94] The CFMEU also asserts that media reports of its position in opposing the proposed agreement take the matter no further. It is submitted that these media reports do not, in any event, displace the strong evidence that the CFMEU was trying to reach agreement.

[95] On 23 September 2016, the CFMEU again wrote to AGL Loy Yang seeking a meeting to progress bargaining. 68 AGL Loy Yang responded on 27 September 2016, advising the CFMEU that it would be reviewing its position including pay outcomes, and had requested a further conference to be convened by Commissioner Roe on 11 October 2016.69

[96] The CFMEU responded on 29 September 2016 indicating its concern that a review of AGL Loy Yang’s position would not bring parties closer to agreement. The CFMEU contends that this correspondence is further evidence of it trying to reach agreement.

[97] In this regard, the CFMEU relies on the statement of the Full Bench in JJ Richards No 1, that where an applicant calls evidence that their intention, object or purpose is to reach an enterprise agreement a finding that the applicant was not, ‘will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot’. 70

[98] In particular, the CFMEU cited the Full Bench’s statement where it said as follows:

[99] As to the conduct of the CFMEU since the Recommendation, it is submitted that the CFMEU was not bound to adopt the Recommendation it its entirety. The CFMEU denies that it has actively campaigned against the Recommendation and also denies it misrepresented the Recommendation.

[100] The CFMEU also submits that the comment of Mr Walsh at one meeting in July 2016 does not amount to a reference to ‘industrial warfare’. 72

[101] It is also submitted by the CFMEU that so far as AGL Loy Yang’s submissions can be considered as an oblique reference to the preference for their members to engage in protected industrial action, the Commission has long recognised that such action is a legitimate part of bargaining under the Act. 73

[102] In support of this proposition, the CFMEU referred to what the Full Bench said in Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd 74:

[103] As such, the CFMEU submits that the matters identified in the statements of Mr Dyke and Commissioner Roe, as well as correspondence since the Recommendation was issued, more than meet the test set out by the Full Bench in JJ Richards No 1. It is submitted that the matters raised by AGL Loy Yang do not displace that evidence and the Commission can be well satisfied that the CFMEU has been and is genuinely trying to reach agreement. In support of this, the CFMEU cites the Full Bench in the appeal from Deputy President Clancy’s decision:

[104] It is submitted by the CFMEU that nothing in these proceedings would lead the Commission to a different view, and that the application should be granted.

Specification of the group to be balloted – AGL Loy Yang’s submissions

[105] AGL Loy Yang submits that, in the circumstances of this case where there are ‘real doubts’ as to whether the nominated bargaining representatives were properly appointed in accordance with s.178 and regulation 2.06, there are real doubts as to whether the 338 employees who have filled in a nomination form for a nominated bargaining representative are part of the group to be balloted 76.

[106] Further, AGL Loy Yang contends that the Commission cannot be satisfied of the jurisdictional prerequisite in s.443(1)(a). They submit that the CFMEU’s Application and Draft Order do not satisfy the requirements in ss.443(1)(a) and 437(3)(a) and 443(3)(b) because of the uncertainty in the group to be balloted 77.

[107] The application and further amended draft order define the group of employees to be balloted as members of the CFMEU who have not appointed another bargaining representative in negotiations for a proposed enterprise agreement.

[108] In the context of the application, the effect of s.176 of the Act is that the CFMEU is the bargaining representative of each of its members employed by AGL Loy Yang and who will be covered by the proposed agreement, unless they have appointed another person as a bargaining representative.

[109] AGL Loy Yang claims there is real uncertainty as to whether the nominated bargaining representatives have been validly appointed in accordance with s.178 of the Act and regulation 2.06 of the Fair Work Regulations 2009.

[110] AGL Loy Yang state that in early March 2016, they received notice from six employees that they had been nominated as bargaining representatives under the Act for 337 employees of AGL Loy Yang. Further, amongst the 337 employees were 58 of the 60 employee who had previously nominated Mr Hardy or Mr Walsh as a bargaining representative. Three of those nominated bargaining representatives were CFMEU delegates 78.

[111] AGL Loy Yang submits it has a continuing, real concern, supported by the evidence, as to whether the 7 nominated bargaining representatives appointed for 338 employees of AGL Loy Yang are free from control or improper influence by the CFMEU.

[112] AGL Loy Yang also submitted that there are real doubts as to whether the 338 employees who have filled in a nomination form for a nominated bargaining representative are part of the group to be balloted.

[113] The basis of AGL Loy Yang’s objection is as follows:

[114] As a result of these uncertainties, and phrasing requiring an assessment to be made as to whether the nominated bargaining representatives are validly appointed, the application should be dismissed as it does not satisfy the requirements of ss.443(1)(a), 437(3)(a) and 443(3)(b) of the Act.

Specification of the group to be balloted – CFMEU’s Submissions

[115] The CFMEU submits that the application meets the requirements of s.437(3)—(6) including s.437(3)(a) that the application ‘must specify the group or groups of employees to be balloted’. The CFMEU submits this is identified in the application at Question 2.1:

[116] The CFMEU also submits it followed the process for nominating bargaining agents in accordance with the requirements set out in s.178 of the Act and regulation 2.06. They further submit as follows:

[117] As such, the CFMEU submits that due to the criteria for granting a PABO being satisfied, the Commission must grant orders due to the mandatory obligation as outlined by Flick J of the Full Court of the Federal Court in the JJ Richards Full Court Decision:

Protected Action Ballot Agent – AGL Loy Yang’s Submissions

[118] It is submitted by AGL Loy Yang that if the Commission is minded to issue a PABO, the ballot agent should be the Australian Electoral Commission (AEC).

[119] With regards to the order sought by the CFMEU, under s.443(4)(a) of the Act that the protected action ballot be conducted by an agent other than the AEC, AGL Loy Yang states that its opposition to this makes no criticism of the nominated agent Mr Hodder, whom it acknowledges has extensive experience. Rather, AGL Loy Yang cites that its reasons why appointing a ballot agent other than the AEC would be inappropriate has everything to do with the ‘game playing’ engaged in by the CFMEU in relation to enterprise bargaining since July 2015. 80

[120] AGL Loy Yang submits that the Commission does not have jurisdiction to appoint Mr Hodder as the protected action ballot agent due to regulation 3.11(3) of the Regulations requiring as a jurisdictional prerequisite that the agent ‘must be capable of ensuring the ballot will be fair and democratic’. AGL Loy Yang further submits that even if it did have jurisdiction, the Commission should exercise its discretion to ensure that the normal position apply with the AEC being appointed as ballot agent.

[121] Stating that the AEC is an independent statutory body that is experienced, well-resourced and accountable, AGL Loy Yang also submits that the differences between the AEC and other ballot agents are recognised by the Explanatory Memorandum to the Fair Work Bill which states:

[122] AGL Loy Yang contends that there must be a proper basis established by evidence in order for an exercise of discretion to be made to appoint a ballot agent other than the AEC under s.444 of the Act, as the prima facie presumption under the Act is that the AEC perform this function.

[123] It is submitted that no such reasonable basis has been put forward by the CFMEU. AGL Loy Yang refers to the fact that the enterprise agreement negotiations have been ongoing since July 2015, and have a long and contentious history as mitigating against any other body other than the AEC conducting the ballot.

[124] Citing the conduct of the CFMEU throughout the bargaining process and Deputy President Clancy’s statement regarding the CFMEU’s conduct as ‘suggestive of a scenario in which there are games being played’, 82 AGL Loy Yang submits it is appropriate that the ballot be conducted by the statutory authority normally entrusted with conducting such elections.

[125] Further, AGL Loy Yang considers an issue likely to arise in conducting any ballot is related to the entitlement of any of the 338 employees who have purported to appoint a nominated bargaining representative. AGL Loy Yang submits that because of an assessment they are required to make by clause 5.3 of the further amended draft order (outlined at [115] above), there may be disagreements as to whether all or some of the 388 employees are required to be included on a list to be provided to the ballot agent.

[126] AGL Loy Yang submits that this disagreement as to which particular employees are, or are not, entitled to be on the roll of voters, would need to be settled by the ballot agent in what may be difficult judgment calls. As such, due to this issue and the lack of reasonable basis put forward by the CFMEU, any ballot agent appointed would be assisted by the appointment of an independent advisor under s.444(3) of the Act. AGL Loy Yang submits such an appointment is not provided for in the further amended draft order of the CFMEU.

[127] AGL Loy Yang contends that the CFMEU will point to the delay since March 2016 when it first applied for a PABO as grounds for seeking to appoint a ballot agent other than the AEC. AGL Loy Yang submits that the reasons for the delay are entirely of the CFMEU’s own making. It is further contended that had the CFMEU complied with the requirements of the Act in the making of a PABO application, and engaged in conduct that satisfied the Commission it has been and is genuinely trying to reach an agreement, a PABO would have been issued months ago. AGL Loy Yang asserts that instead of taking the normal course, the CFMEU chose to engage in ‘game-playing and industrial warfare’ which does not warrant the appointment of a ballot agent other than the AEC. 83

[128] If a ballot agent is to be appointed, AGL Loy Yang submits that further amendments would be required:

Protected Action Ballot Agent – CFMEU’s Submissions

[129] The CFMEU seeks an order that the ballot be conducted by Mr Hodder, who is an agent other than the AEC. Mr Hodder has been served with the application in accordance with s.440 of the Act.

[130] In relation to the opposition of AGL Loy Yang to the nomination of Mr Hodder as the ballot agent, the CFMEU submits that there is no basis for the contention of AGL Loy Yang that a ballot conducted by Mr Hodder would not be fair and democratic.

[131] In support of this, the CFMEU refers to two affidavits provided by Mr Hodder which set out his extensive experience and provides assurances regarding the conduct of the ballot, as well as addressing specific concerns raised by AGL Loy Yang about his appointment. 87

[132] Mr Hodder was not cross examined and therefore his evidence is not challenged.

[133] It is submitted that in his second affidavit dated 4 October 2016, Mr Hodder elaborates on his extensive experience conducting ballots in remote locations and provides an opinion that based on his experience, the further amended draft order will ensure the ballot is conducted both fairly and democratically.

[134] In particular, Mr Hodder attests that based on 10 years’ experience in which time he has conducted 107 ballots, the attendance ballot method ensures a far greater turnout of voters than other methods ensuring that the ballot is fair and democratic.

[135] The CFMEU made reference to the evidence of AGL Loy Yang on this point (outlined at [130] above) as to a concern over some employees who live 45 minutes from the ballot place possibly not being able to vote. It is submitted that in cross examination Mr Clinch was not able to provide the Commission with assistance as to whether that fact would have any impact whatsoever on the ballot. 88

[136] The CFMEU also referred to the second issue raised by AGL Loy Yang that goes to the roll of voters and its assertion that the non-CFMEU bargaining representatives may not meet the requirements of s.178 of the Act and regulation 2.06. The CFMEU submits that it became clear this concern did not stop AGL Loy Yang from regarding these non-CFMEU bargaining representatives in the process before the Commission where it named them as respondents to the s.240 application. 89

[137] The s.240 application raised concerns about the bargaining representatives’ role and sought the Commission’s assistance for a fresh approach to bargaining. It is submitted that the fresh approach included all bargaining representatives attending conferences convened pursuant to s.240 of the Act and had the effect of further entrenching the non-CFMEU bargaining representatives in the negotiations.

[138] The CFMEU submits that contrary to the suggestion of AGL Loy Yang that there is a prima facie presumption that the AEC will conduct a ballot (as outlined at [124] above), the choice of ballot agent appears in s449(1) of the Act:

[139] The CFMEU submits that the section of the Act makes no presumption. Finally the CFMEU submits that Mr Hodder is capable of meeting all the requirements of the Act to conduct the ballot, and that he is able to conduct the ballot fairly and expeditiously.

[140] The CFMEU refers to the submission of AGL Loy Yang that raised the issue of the entitlement of employees to vote. It is stated by the CFMEU that, as outlined at [118]-[119] above, the application clearly states who is entitled to vote. It is the group of members of the CFMEU who have not appointed another bargaining representative in these negotiations.

[141] Submitting that this group is clearly ascertainable, the CFMEU asserts that AGL Loy Yang’s submissions on this point are disingenuous. It further submits that there is no difficult decision to be made by the ballot agent or AGL Loy Yang in providing the required information to the ballot agent.
[142] The CFMEU submits that the process for nominating a ballot agent other than the AEC is set out in s.178 of the Act and regulation 2.06. It is their submission that these have been followed and there is no warrant to suggest there is any doubt associated with the appointments which should be regarded as having been regularly made unless properly challenged and no direct challenge is made by AGL Loy Yang. Rather, the CFMEU submits that AGL Loy Yang speculates about the possibility that they are not properly made, and mere speculation should not influence the Commission in the exercise of its powers. As such, the CFMEU submits there is no need for an independent adviser as suggested by AGL Loy Yang.

Consideration

Was the bargaining genuine?

The CFMEU’s reliance on JJ Richards No 1

[143] AGL Loy Yang contends that the reliance by the CFMEU on JJ Richards No 1 is misplaced and to the extent that it advances that the decision proposed an ‘alternative test or criterion’ in relation to the statutory requirements of s.443(1)(b) of the Act, the submission is flawed. It suggests that such an approach in effect endorses a ‘decision rule’ approach which is inconsistent with the language of s.443(1)(b) of the Act.

[144] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to reach an agreement’ as specified in s.443(1)(b) of the Act. I have been guided by the chronology of the relevant parts of some of those decisions as outlined by the Full Bench in Esso, and in approaching the task, have been guided by the decision in Esso where the Full Bench agreed with the following passage from Total Marine at [31]-[32]:

[145] Further, the Full Bench in Esso determined at [69]:

[146] In reaching my conclusion, I have been guided by the following observations of the Full Bench at [58]-[59] of the Esso decision:

Temporal elements of s.443(1)(b) of the Act

[147] AGL Loy Yang contends that the natural and ordinary meaning of the words in s.443(1)(b) of the Act, when considered in light of the current application, mean that consideration must be given not just to the current bargaining position of the CFMEU but to all of its bargaining conduct over the course of negotiations since July 2015, and to whether the CFMEU’s bargaining conduct demonstrates that it has been genuine in trying to reach agreement.

[148] In considering this issue, I have had regard to the following observations of Deputy President Clancy (original emphasis):

[149] I accept that the phrase ‘has been, and is’ incorporates two temporal elements and that both must be considered. In coming to my conclusion, I have not attributed particular importance to one over the other, rather they are both significant considerations in determining whether the requirements of s.443(1)(b) are met.

[150] I am not persuaded that the words in s.443(1)(b) of the Act are to be interpreted so as to require a party to be trying to reach agreement both at the time of determination (reflecting the evidence at the time of the hearing) and for the ‘entirety’ of the period for which the parties had been bargaining for an agreement. In coming to my conclusion, I have considered whether, on balance, I am satisfied there is a period of bargaining that points to the requisite ‘genuineness’ to satisfy whether that period has been free from disruption such as to render the bargaining non-genuine.

[151] There is no warrant to read the qualification in relation to the words ‘has been’ as suggested by AGL Loy Yang into s.443(1)(b). The interpretation suggested by AGL Loy Yang would have the effect of requiring the Commission to attribute greater significance to one part of the prior bargaining behaviour over the other and call into question the utility of the provision.

Conflation of genuinely trying to reach agreement and good faith bargaining

[152] In support of its proposition that the conduct of the CFMEU should be properly characterised as lacking the requisite genuineness, AGL Loy Yang seeks to rely on the following:

[153] Whilst I accept the argument advanced by AGL Loy Yang that an assessment of whether a person is complying with the good faith bargaining requirements is relevant to a consideration of whether they are genuinely trying to reach agreement, I have had regard to the fact that what is appropriate in this circumstance, is whether the parties are ‘genuinely trying to reach agreement’ in accordance with s.443(1)(b) of the Act.

[154] In considering this matter, the Full Bench in Esso made the following statement:

[155] It may be the case that certain aspects of bargaining between parties can be subject to criticism or can be described as ‘combative’ in tone or as ‘hard bargaining’. That being said, it is not necessarily appropriate for such a characterisation to call into question the genuineness or otherwise of the bargaining. As was found by the Full Bench in the appeal to Deputy President Clancy’s decision (my emphasis):

Conduct since 10 June 2016

[156] AGL Loy Yang’s proposition in this regard posits a position that is contrary to the evidence before me regarding the conduct of the parties during the conferences held before Commissioner Roe, who provides in his Recommendation of 24 August 2016 (referred to by both parties in the proceedings before me) that (my emphasis):

[157] Further, I have also considered the latest Recommendation of Commissioner Roe of 12 October 2016 which was made following the s.240 conference of 11 October 2016, in particular:

[158] I have considered the material before me as to the circumstances since the hearing before Deputy President Clancy on 10 June 2016. Since that time, circumstances have changed to alter the course of the bargaining negotiations. These include the following:

[159] Given my earlier findings and the circumstances described above, I am persuaded that an alteration of the bargaining landscape has occurred since 10 June 2016, such that the requirements of s443(1)(b) have been met.

Specification of the group to be balloted

[160] AGL Loy Yang seeks to conflate a number of propositions in support of its argument that the further amended draft order does not specify the group to be balloted as required, as outlined earlier at [115]. These propositions include arguments as to:

[161] I have considered the legislative scheme as it applies to the appointment of bargaining representatives.

[162] Sections 176 and s.178 of the Act are as follows:

[163] Regulation 2.06 of the Fair Work Regulations 2009 prescribes:

[164] To the extent that the AGL Loy Yang submission requires a consideration as to the validity of the appointments, this matter was agitated by AGL Loy Yang before Deputy President Clancy, and I concur with his observations that (endnotes omitted):

[165] Mere speculation as to the involvement of Mr Hardy in the process is insufficient to justify a conclusion that the appointments were improperly made and that the statutory prerequisites have not been met and that the order should not be made. Similarly, a failure by Mr Hardy to explain the circumstances surrounding the appointments is insufficient to rebut a presumption of regularity in relation to the appointments.

[166] On the basis of the materials before me and in particular where there is no finding by a court of competent jurisdiction as to whether the nominated bargaining representatives are properly appointed in accordance with s.178 of the Act and regulation 2.06, I do not accept that there is uncertainty in the group to be balloted such that the Application and further amended draft order do not meet the requirements of ss.443(1)(a), 437(3)(a) and 443(3)(b).

Nomination of ballot agent other than AEC

[167] The CFMEU application sought that Mr Hodder be specified as the Protected Action Ballot Agent. Mr Hodder is a former member of the Australian Industrial Relations Commission and the Queensland Industrial Relations Commission. The CFMEU has advised it had been engaged in discussions with Mr Hodder related to the conduct of the ballot.

[168] Section 444 of the Act provides that the Commission may decide on a ballot agent other than the AEC and this section also deals with the appointment of an independent advisor for a protected action ballot:

[169] Section 444(2) of the Act requires that consideration be given to the Regulations relative to the appointment of a ballot agent other than the AEC:

[170] AGL Loy Yang submitted that the CFMEU had not established any proper basis for Mr Hodder, rather than the AEC, conducting the ballot. It is also submitted by AGL Loy Yang that the CFMEU will point to the delay since it first applied for a PABO in March 2016 as reason for seeking to appoint a ballot agent other than the AEC.

[171] The CFMEU submits that the basis for seeking Mr Hodder as the ballot agent is that he is able to conduct the ballot fairly and within the timeframe as outlined in its further amended draft order, and that this is important not just because the Act requires it but in the circumstances where there has been a wait of more than six months since the first PABO application.

[172] I am satisfied that Mr Hodder is a fit and proper person to conduct the proposed ballot and has extensive experience having conducted ballots under the former Workplace Relations Act 1999, as well as having conducted attendance and postal ballots under provisions of the Act since 4 August 2009. However, there are other relevant considerations including the fact that the appointment of Mr Hodder is opposed by AGL Loy Yang which submits that if he were to be appointed, consideration should be given to the need to appoint an independent advisor and amend the ballot period specified in the further amended draft order. AGL Loy Yang also notes that the provision of the further amended draft order that Mr Hodder be
on-site to conduct the ballot should be deleted as the proposed ballot is to be conducted entirely off-site.

[173] On the basis of the argument and evidence advanced by the CFMEU I do not consider that it has established a proper foundation to displace the AEC as the ballot agent. The issue of an independent advisor is avoided by the appointment of the AEC. The appointment of a ballot agent other than the AEC could result in a further delay of the process. I consider that the scheme of the Act mitigates in favour of the AEC assuming this function. I am not satisfied that Mr Hodder should be specified as the ballot agent, in order to displace the AEC and the responsibilities afforded to it in the Act as to the conduct of the ballot.

Extending period of written notice

[174] On the basis of the material before me I am satisfied that there are exceptional circumstances of the manner contemplated by s.443(5). I am satisfied those exceptional circumstances warrant the period of written notice referred to in s.414(2)(a) for protected industrial action to be longer than three working days.

Conclusion

[175] For the reasons given, I have decided to issue a PABO because I am satisfied that in relation to the proposed enterprise agreement, an application has been made by the CFMEU under s.437 of the Act, and the CFMEU has been and is genuinely trying to reach an agreement with AGL Loy Yang, the employer of the employees who are to be balloted. The PABO 95 that I make is a modified version of the further amended draft order submitted by the CFMEU on 11 October 2016. I am also persuaded to exercise my discretion to order that the period of notice referred to in s.414(2)(a) of the Act for protected industrial action being longer than three working days, because I am satisfied that there are exceptional circumstances justifying such an extension. The period of notice will be seven working days.

Seal of the Fair Work Commission with member's signature

COMMISSIONER

Appearances:

Mr A Slevin of Counsel for the Construction, Forestry, Mining and Energy Union.

Mr F Parry QC and Mr B Avallone of Counsel for AGL Loy Yang Pty Ltd.

Hearing details:

2016.

Melbourne:

6 October.

12 October.

 1   AE894678.

 2   Applicant’s Submissions, 4 October 2016, [30].

 3   Respondent’s Outline of Submissions, 29 September 2016.

 4   Ibid.

 5   CFMEU v AGL Yang Pty Ltd [2016] FWC 4364.

 6   PR582301.

 7   CFMEU v AGL Loy Yang Pty Ltd [2016] FWCFB 6332.

 8   Ibid [49]-[50].

 9   [2016] FWCFB 6332.

 10   Ibid [47].

 11   Transcript, 12 October 2016, PNs 754-775.

 12   Fair Work Act 2009 (Cth) s 437(3)(b).

 13   Ibid s 437(4).

 14   Ibid s 438(1).

 15   Ibid s 440.

 16   Ibid s 443(1)(a).

 17   Ibid s 443(1)(b).

 18   Respondent’s Outline of Submissions, 11 October 2016, [107]. .

 19   Ibid [109].

 20   Ibid [111].

 21   Applicant’s Submissions, 4 October 2016, [10]; Applicant’s Final Submissions, 11 October 2016, [4].

 22   (2009) 189 IR 407.

 23   [2015] FWCFB 210.

 24   [2010] FWAFB 9963.

 25   [2015] FWCFB 210 [57].

 26   Ibid [58]-[59].

 27   [2016] FWCFB 3957.

 28   [2016] FWC 4364.

 29   Ibid [89].

 30   [2016] FWCFB 6332.

 31   Ibid [26]-[27], [34]-[35].

 32   (2011) 210 IR 231.

 33   (2012) 218 IR 454.

 34   Respondent’s Outline of Submissions, 11 October 2016, [34].

 35   Applicant’s Submissions, 4 October 2016, [17].

 36   Respondent’s Outline of Submissions, 11 October 2016, [37].

 37   Ibid [41].

 38   (2011) 210 IR 231.

 39   Oxford English dictionary definition.

 40   Macquarie dictionary definition.

 41   [2015] FWCFB 210 [54].

 42   Respondent’s Outline of Submissions, 11 October 2016, [9].

 43   Explanatory Memorandum Fair Work Bill 2008 (Cth).

 44   Respondent’s Outline of Submissions, 11 October 2016, [49]–[61].

 45   Tam Anh Bui v Minister for Immigration and Multicultural Affairs [1998] FCA 353; (1998) 52 ALD 536 542.4; Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617 624; Pearce and Geddes, Statutory Interpretation in Australia 8th Edition 3.33.

 46   [2016] FWC 4364 [167].

 47   Respondent’s Outline of Submissions, 11 October 2016, [66].

 48   Witness Statement of Michael Clinch, 29 September 2016, [49], [63].

 49   Respondent’s Outline of Submissions, 11 October 2016, [69].

 50   [1959] 101 CLR 298.

 51   Xiu Zhen Huang v Rheem Australia Pty Ltd (PR954993, 9 February 2005) [33]; Davidson v The Commonwealth of Australia (represented by the Department of Climate Change and Energy Efficiency) [2011] FWAFB [16].

 52   Respondent’s Outline of Submissions, 11 October 2016, [71].

 53   See application AG2016/4580.

 54   Respondent’s Outline of Submissions, 11 October 2016, [71].

 55   Ibid.

 56   See Application B2016/442.

 57   Applicant’s Final Submissions, 11 October 2016, [7]-[8].

 58   Witness Statement of Geoffrey Dyke, 26 September 2016, [56].

 59   Applicant’s Final Submissions, 11 October 2016, [9].

 60   Transcript, 6 October 2016, PN 363.

 61   [2016] FWC 4364 [116].

 62   Ibid [165].

 63   [2016] FWCFB 6332 [43].

 64   Applicant’s Final Submissions, 11 October 2016, [37].

 65   Ibid [16].

 66   Ibid [18].

 67   Witness Statement of Michael Clinch, 29 September 2016, Attachment MC20.

 68   Ibid Attachment MC26.

 69   Ibid Attachment MC27.

 70   [2010] FWAFB 9963 [63].

 71   Ibid.

 72   Applicant’s Submissions, 4 October 2016, [28(b)(iv)].

 73   Applicant’s Submissions, 4 October 2016, [26].

 74   [2014] FWCFB 2587.

 75   [2015] FWCFB 6332 [47].

 76   Respondent’s Closing Submissions, 11 October 2016, [73].

 77   Ibid [74].

 78   Ibid [9h], [2016] FWC 4364 [140].

 79   (2012) 218 IR 454 [69].

 80   Respondent’s Outline of Submissions, 11 October 2016, [97].

 81   Explanatory Memorandum, Fair Work Bill 2008 (Cth).

 82   [2016] FWC 4364 [148].

 83   Respondent’s Outline of Submissions, 11 October 2016, [105].

 84   Witness Statement of Michael Clinch, 29 September 2016, [69]-[70]; Transcript, 6 October 2016, PNs 582-583.

 85   Transcript, 6 October 2016, PN 584.

 86   Transcript, 6 October 2016, PNs 41-45; PR583390.

 87   Affidavits of Errol Hodder, 27 September 2016; 4 October 2016.

 88   Transcript, 6 October 2016, PNs 586-587.

 89   Transcript, 6 October 2016, PNs 532-537.

 90   [2016] FWC 4364.

 91   [2016] FWC 3376 [94], [116]-[119].

 92   [2016] FWCFB 6332.

 93   Recommendation of Commissioner Roe, 12 October 2016, [7].

 94   [2016] FWC 4364.

 95   PR587023.

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