[2016] FWC 985


Fair Work (Registered Organisations) Act 2009

s.158(1) RO Act - Application for alteration of eligibility rules

CPSU, the Community and Public Sector Union



Application for consent to alteration of eligibility rules – privatisation of Home Care Service of NSW – transfer of employees to Australian Unity Home Care Service Pty Ltd – application to continue to cover transferring employees who were previously covered – application granted.

[1] On 3 June 2015, CPSU, the Community and Public Sector Union (the CPSU) applied to the Fair Work Commission (the Commission) under s.158 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) for an alteration of its eligibility rules.

[2] It initially sought to add the following as Chapter A, Rule 2, Part II, Section 1(D)(v) (dealing with eligibility for membership of the CPSU) and Chapter A, Rule 3, Part II, Section 1(B)(1)(u) (dealing with the industries in connection with which the CPSU is registered):

[3] At the hearing, the CPSU sought to amend the wording of the proposed alteration to remove ‘or’, 1 so that only persons who were both employed by companies or organisations who are successors to and performing roles, functions or responsibilities of the Home Care Service of New South Wales (Home Care) would fall within its scope. I accept this amendment, and this decision will henceforth consider whether the Commission should grant the proposed alteration as amended. In other words, the proposed alteration that is being considered by the Commission would insert a new sub-section (v) to Chapter A, Rule 2, Part II, Section 1(D) as follows:

[4] An equivalent sub-section (u) would be added to Chapter A, Rule 3, Part II, Section 1(B)(1).

[5] The Australian Nursing and Midwifery Federation (ANMF) initially objected to the alteration, but reached an agreement with the CPSU before the matter was heard. The ANMF and CPSU entered into a Deed of Agreement which included the following undertakings on the part of the CPSU:

[6] There remain three objectors to the CPSU’s application:

The hearing

[7] The matter was heard on 18 and 19 February and 10 and 11 March 2016. The CPSU was represented by Mr Wright. The ASU was represented by Ms Doust of counsel. The HSU was represented by Mr Howell of counsel. United Voice was represented by Mr Bull.

[8] The following witnesses gave evidence on behalf of the CPSU:

[9] Mr Turner, Mr Pearce and Ms Callinan were cross-examined. I also received into evidence several documents relating to the procedures taken by the CPSU to have the proposed rule change approved internally before making this application to the Commission. 7

[10] The following witnesses also gave evidence:

[11] Ms Gatfield, Ms Wright and Mr McLeay were cross-examined.

Procedural deficiency in the HSU’s objection

[12] The deadline for objecting to the CPSU’s application was Wednesday, 26 August 2015. The HSU lodged its objection on Thursday, 27 August 2015.

[13] In support of its late objection being accepted, the HSU tendered evidence in the form of a witness statement of Ms Leigh Svendsen. 14 In brief, Ms Svendsen’s evidence was that an untimely combination of circumstances led to the application being filed late. These included the relocation of the HSU national office and incidents of a personal nature affecting Ms Svendsen.

[14] I accept that Ms Svendsen realised the deadline fell on a Wednesday rather than a Friday once she made contact with Mr Wright, the CPSU officer with carriage of the matter, on Thursday, 27 August 2015. I note that Ms Svendsen filed the objection that same day.

[15] I consider there are special circumstances that justify an exemption from compliance with the deadline for filing an objection, especially given the brevity of the delay. Pursuant to regulation 179 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regs), therefore, I exempt the HSU from compliance with the 26 August 2015 deadline and will consider its objection.


The transfer from Home Care to Australian Unity

[16] Home Care was established in 1943 as the NSW Housekeepers’ Emergency Service. Its role was to provide housekeeping assistance during illness, childbirth and other emergencies. It eventually grew into an organisation employing over 4,500 staff across NSW. In 1988 it became a statutory corporation, providing services to frail aged and younger people with a disability. It helped older people and people with disability to live independently in their own homes as well as providing support to carers.

[17] On 28 August 2015, the NSW Government announced that Home Care would be transferred to mutual provider Australian Unity. The Department of Family and Community Services announced that:

[18] The transfer of Home Care took place on 20 February 2016. On 22 February 2016, Australian Unity wrote to transferring employees indicating that their employment had been transferred to a subsidiary of Australian Unity: Australian Unity Home Care Services Pty Ltd. The letter indicated that the employment terms and conditions of transferring employees would remain unchanged for at least the period of the ‘employment guarantee’. It explained that the employment guarantee period was two years for permanent employees and up to six months for temporary and casual employees. The letter also included the following:

[19] The CPSU came into existence on 1 July 1994 as a result of the amalgamation of other unions. Administratively, the CPSU operates through two Groups, the PSU Group and the State Public Service Federation (SPSF) Group. In 1994, the SPSF applied to have its rules changed in order that its capacity to enrol and represent members through its eligibility rules would reflect that of the State-registered unions in their respective jurisdictions, described in the rules as ‘Associated Bodies’. The Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (PSA) is an Associated Body of the CPSU. The core area of coverage of the PSA has historically been NSW government public service and statutory authorities. 17

[20] In NSW, members of the PSA are also members of the CPSU. Where their industrial rights are determined in the NSW industrial relations jurisdiction, they are represented in the name of the PSA. Where their employer is a national system employer for the purposes of the Fair Work Act 2009 (the FW Act) and their rights and obligations are determined under that jurisdiction, they are usually represented in the name of the CPSU. 18 Approximately one-fifth of PSA/CPSU members in NSW are covered by the Federal jurisdiction.19

[21] Employees of Home Care have historically been covered by the NSW industrial relations jurisdiction. As employees of a State-owned statutory corporation, employees of Home Care engaged in administrative and managerial roles (including assessors, administrative assistants and service co-ordinators) fell within the eligibility rules of the PSA/CPSU. This ceased with the transfer to Australian Unity, a private, not-for-profit organisation.

[22] The CPSU submitted that its sole intention was to continue to be able to cover those employees from Home Care whom it previously represented prior to the privatisation. 20


[23] Section 158 of the RO Act relevantly provides:

[24] Section 158(2) permits consent ‘in whole or in part’. The predecessor provision to this sub-section was considered in Re Federated Miscellaneous Workers’ Union of Australia21 where it was read to operate as though it:

[25] In deciding whether the test set out in s.158(4) for approval of applications to alter eligibility rules has been met, the Commission must identify the ‘relevant employees’.

[26] This normally involves ‘identifying the persons who will be covered after the alteration that were not covered before it’. 24

[27] The test involves ‘broad value judgements of no particular precision’. 25

[28] To refuse an application under s.158(4), another organisation must satisfy the description contained in both sub-sections (a) and (b).

[29] The reference to ‘more conveniently belong’ in s.158(4) is oriented more towards the perceived convenience of the employees who would become eligible because of the proposed alteration. The reference to ‘more effectively represent’ is about the relative capability of the applicant and other organisations to effectively represent the industrial interests of that class of employees. 26

[30] To refuse an application under s.158(4), the relevant employees must more conveniently belong to the other organisation, and it must also be the case that the other organisation would represent them more effectively.

[31] The point in time at which the tests in s.158(4) are to be applied is the point at which a decision is being made either to consent to or refuse the application. 28

[32] Section 158(6) is only relevant if the proposed alteration to the rules would contravene an agreement or understanding to which the organisation is a party concerning representation rights.

[33] Section 158(7) is only relevant if the proposed alteration to the rules would change the effect of an order made by FWC under s.133.

[34] Section 158(8) ‘… makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent’. 29 This discretion must, however, ‘be exercised in a bona fide fashion having regard to the policy and purpose of the statute’.30

[35] In a case concerning whether to make an order concerning the right of an organisation to represent the industrial interests of a particular group of employees, a Full Bench of the Commission noted that the discretion in the matter at hand needed to have regard to the scheme and objects of the prevailing legislation (SDA v NUW). 31 It stated:

[36] I consider that, to the extent that this decision involves the exercise of discretion, similar considerations are relevant.

Compliance with CPSU rules: s.158(2)

[37] The crux of the procedural requirements for altering the CPSU’s rules is found in rule 15 of those rules, which relevantly states:

[38] To demonstrate that the alteration has been made under its rules and therefore complies with s.158(2) of the RO Act, the CPSU relies primarily on the declaration of its Federal Secretary, Karen Batt, which it filed with its originating application. Ms Batt outlines the conduct and results of ballots of the SPSF Group Federal Council and the PSU Group Governing Council. She also describes a telephone meeting of the CPSU’s National Officers Committee (NOC) held on 22 April 2015, at which the proposition to alter the CPSU rules in the manner the subject of this application was carried.

[39] Both the ASU and HSU contended in their written submissions that the CPSU had not tendered sufficient evidence to demonstrate compliance with the requirements of its own rules for effecting a rule change before the application was brought to the Commission, but did not particularise the alleged non-compliance. 33 Only the HSU pressed this objection during the hearing. It initially listed several bases on which it said the application was deficient under s.158(2). However, it ultimately relied on the argument that Ms Batt’s description of the NOC meeting of 22 April 2015 was inconsistent with the proper composition of the NOC under rule 14 of the CPSU rules.

[40] Rule 14 relevantly provides:

[41] The HSU submitted that the fact that each position referred to in rule 14 is referred to in the singular rather than the plural means that the NOC must only ever comprise eight members at most. It submits that the NOC meeting of 22 April 2015, which Ms Batt stated to comprise 10 attendees of a possible 12, of whom nine voted in favour of the alteration, was therefore inherently invalid. 34

[42] At the hearing, the CPSU submitted that rule 14 does not operate to limit, but rather simply denotes the equivalent position on the NOC for a given position in either the PSU or SPSF Group. 35 It further submitted that, as at 22 April 2015, there were 12 people who held office in one or other of the PSU Group or SPSF Group positions referred to in that rule,36 and relied on Annexure A to its annual return in this regard.37

[43] I find that the CPSU’s submission is the correct interpretation of the rule. Such an interpretation is also consistent with the fact that sub-section (b) commences by referring to an unspecified number of ‘persons’. I therefore do not accept the HSU’s submission that rule 14 by its wording requires there only to be eight members of the NOC.

[44] In light of Ms Batt’s declaration, together with the additional evidence the CPSU tendered to support that declaration, 38 I find that the alteration was made under the CPSU rules and therefore complies with s.158(2) of the RO Act.

[45] An issue was also raised during the proceedings concerning whether the CPSU had complied with its obligation under reg 121(4) of the RO Regs to publish on its website a notice that it had lodged the application. While there appears to have been an error in labelling a link to the application, I am satisfied that the application was indeed published on the website and the CPSU met its obligation under the regulation.

‘More conveniently belong’ and ‘more effectively represent’: ss.158(4), 158(5)

[46] The CPSU asserts that the class of employees subject to the application are those employed in the roles formerly performed by Home Care after their transfer to Australian Unity, other than direct care workers covered by United Voice (who were covered by the Care Worker Employees – Department of Family and Community Services – Ageing, Disability and Home Care (State) Award).

[47] The class of employees subject to the application were previously covered by the Crown Employees (Home Care Service of New South Wales – Administrative Staff) Award 2012. This award will continue to apply to transferring employees as their copied State instrument under the FW Act.

[48] According to the CPSU, of around 500 employees covered by the application, 190 were members of the CPSU as at 31 December 2015. 39

[49] The CPSU relies on what it describes as its ‘record of achievement with respect to the current employees of the Home Care Service of New South Wales to negate arguments raised that the HSU is an organisation to which they can more conveniently belong and which can more efficiently represent them.’

[50] Mr Turner gave evidence about the way that the PSA/CPSU engages generally with its members. He described the PSA/CPSU as ‘a full service union, capable of representing a diverse range of members across multiple industries and classifications of employment.’ 40 He said that while members in Home Care had been badged as PSA members, there would be ‘a seamless transition to CPSU representation, given that all the PSA and CPSU services are managed as a single entity with staff expert in both the NSW and Federal Industrial Relations Systems.’41

[51] Mr Turner gave evidence about the ‘long and strong history’ of the PSA in supporting its Home Care Service members, including throughout the privatisation process. 42

[52] Mr Turner gave evidence that the CPSU ‘has followed many other entities into the private sector post-privatisation’. He referred to a number of enterprise agreements that the CPSU has negotiated on behalf of members in the private sector. 43

[53] Mr Pearce gave evidence that the PSA has case-managed more than 600 industrial disputes relating to individual members employed by Home Care since 1990. 44

[54] Ms Callinan gave evidence that PSA/CPSU members in Home Care are represented by elected delegates. Delegates are elected to a State-wide committee called the Departmental Committee (DC). The DC is allocated an organiser to support and mentor the delegates. There were at least 91 visits to Home Care work sites by PSA organisers in 2015. 45

[55] Ms Shipman gave evidence of regular meetings between PSA delegates and officials to discuss issues within Home Care, and of the PSA’s participation in Home Care’s Joint Consultative Committee. 46

[56] Mr Pearce gave evidence that the PSA’s membership in Home Care has been separate and distinct from that of United Voice. The latter represents direct care workers, while the PSA represents office-based employees such as administrative staff, service co-ordinators, assessors and managers. 47

[57] The CPSU provided an undertaking during the hearing. 48 It reads:

[58] Ms Gatfield, on behalf of United Voice, gave evidence of that organisation’s involvement with home care workers in New South Wales. This included over 2000 employees employed by Home Care. Her evidence was that United Voice covered care work, maintenance work, general domestic assistance and work escorting clients to medical appointments, shopping and recreational outings. 49

[59] Ms Gatfield referred to certain difficulties with the classification system in the Care Workers Employees- Department of Family and Community Services – Ageing Disability and Home Care (State) Award 2014. 50 However, she agreed that the delineation between the coverage of the PSA and United Voice had generally been clear.51 She also agreed that United Voice has no capacity to represent the group of employees dealt with in the CPSU’s application.52

[60] Ms Gatfield indicated that her union’s concern was the potential for demarcation disputes that might arise in the future arising out of anticipated changes in the industry such as consumer-directed care. 53 She also expressed a concern that the CPSU – unlike the HSU and the ASU – had shown no interest in sector-wide issues.54

[61] Mr Smith, on behalf of the ASU, gave evidence that the ASU has substantial membership in the social and community services (SACS) industry. 55 He gave evidence that:

[62] According to Mr Smith, the ASU is the largest union in the SACS industry, with approximately 20,000 members in the industry nationally. 57 He gave evidence of the role played by the ASU, including in relation to the Equal Remuneration case.

[63] Mr Smith said in his statement:

[64] Mr Smith referred to a number of enterprise agreements in the SACS industry that the ASU had been involved in negotiating. 59

[65] Ms Wright gave further details about the ASU’s role in the aged care sector. According to her statement:

[66] Ms Wright referred to the government programs under which home care is funded. These are Home Care Packages (HCP), the Commonwealth Home Support Program (CHSP) and the Community Support Program (CSP). (These are the programs under which Home Care provided services. 61)

[67] Ms Wright gave evidence that the ASU has about 150 members in NSW employed as HCP, CHSP, and CSP workers by 47 different private and community sector employers (including Australian Unity). 62

[68] Ms Wright conceded that the ASU only had an enterprise agreement with one of these employers 63 and that in a number of cases where the employer in question had enterprise agreements (including Australian Unity), the ASU was not covered.64 Ms Wright said that the ASU’s industrial strategy was not to pursue significant improvements through enterprise bargaining.65

[69] Ms Wright agreed during cross-examination that if the rule change was approved there would be ‘dual potential coverage’ between the ASU and CPSU for the affected employees. 66

[70] Ms Wright gave evidence that once Home Care was transferred to Australian Unity the ASU had rules coverage of managers, service coordinators and administrative assistants formerly employed by Home Care, but not care workers. 67

[71] Mr McLeay gave evidence concerning the rules of the HSU. In particular he referred to rule 2, the Industry Rule, which describes the industries in connection with which the HSU is registered.

[72] In his statement, Mr McLeay stated that the HSU has members working in home care across Australia, including carers, health professionals of various persuasions, administrative workers and managers. 70

[73] Mr McLeay gave evidence that there are approximately 5000 members in the HSU’s Aged Care Division. 71 In New South Wales, he said, there have been long-standing demarcation arrangements in place between the various unions in the home care sector. In particular, he referred to a statement issued by Mr Justice Fisher, then President of the NSW Industrial Relations Commission, on 16 December 1997, following a reference from the NSW Minister for Industrial Relations. In that statement, Fisher J made wide-ranging recommendations to resolve a series of demarcation disputes that were between the PSA/CPSU and the HSU/Health and Research Employees Association of NSW (HREA). The recommendation included the following:

[74] Mr McLeay gave evidence that orders were subsequently made by Schmidt J generally to give effect (with some minor variations) to this recommendation on 29 May 1998. 73 The orders were made under the NSW Industrial Relations Act and dealt with rights to represent under that Act.

[75] Mr McLeay described the arrangement as seeing:

[76] Mr McLeay continued:

[77] Mr McLeay also gave evidence that the HSU has had a relationship with Australian Unity for many years, 76 and that the HSU was covered by the Australian Unity Home Care Enterprise Agreement 2014.77 The agreement covers a range of classifications, including some administrative and clerical roles (for example, Administration Assistant, Allocations Coordinator, Community Liaison Officer).

[78] In considering the test in s.158(4), it is first necessary to identify those employees who would be affected by the application. There was considerable evidence and submissions about the potential for this group to become blurred and unclear in the future, if Australian Unity was to change the way it delivered home care services, and if the Commonwealth Government was to change the way it funded such services. I deal with this issue further in my consideration of s.158(8). However, following NTEU v CPSU78 the point in time at which the test in s.158(4) is to be applied is the time of this decision. I am satisfied that the identity of those employees who would be affected by the application, as of today, is quite clear and is properly reflected in the (amended) application. It is that class of employees who worked at Home Care and who were – prior to the transfer – represented by the PSA and covered by the Crown Employees (Home Care Service of New South Wales – Administrative Staff) Award 2012, and who are now employed by Australian Unity Home Care Services Pty Ltd as a result of the transfer.

[79] The next issue to consider is whether there are any other organisations which already have coverage of the affected employees. Ms Gatfield’s evidence is that United Voice does not cover the affected employees. It is not in contention that the employees would be eligible to join the ASU. There was however some disagreement about whether the employees would be eligible to join the HSU.

[80] I have some difficulty in understanding how the HSU would have coverage of the relevant employees. The HSU appears to rely on Paragraph A of Rule 3 (concerning conditions of eligibility for membership) which refers to persons employed, inter alia:

[81] While the phrase ‘industrial or other homes’ might conceivably be read as including aged care residential facilities, it would still be necessary to establish that the employment of the relevant employees was ‘in or about or in connection with the carrying on’ of such residential facilities. Home Care did not generally operate from nursing homes or aged care facilities. 79 While Australian Unity does operate such homes, it would be a stretch to suggest that the employees that have transferred from Home Care are now employed ‘in or about or in connection with the carrying on’ of these homes. However, I lack the evidence on how Australian Unity is now running its home care services to provide a definitive ruling on the issue, and I am willing to accept for the purposes of this decision that the HSU has coverage of the relevant employees.

[82] The issues I need to consider therefore are whether the relevant employees could more conveniently belong to the ASU and/or the HSU, and whether the ASU and/or the HSU could more effectively represent the relevant employees.

[83] Both the ASU and the HSU have a significant presence in the aged care industry, and (leaving aside the issue of the HSU’s rules) both would be capable of representing the relevant employees. Moreover, I am satisfied that the relevant employees could conveniently belong to either of those two organisations. However, it is important to have regard to the CPSU’s long history of effectively representing the relevant employees, a substantial proportion of whom are members of the CPSU. The CPSU gave evidence of its extensive work on behalf of those employees, and the existence of a significant delegate structure. I see no reason, at least in the immediate future, why the CPSU would not be capable of continuing to represent those employees. Nor am I in any doubt that those employees could conveniently belong to the CPSU. Overall, I am not satisfied on the evidence before me that the relevant employees could more conveniently belong to either the ASU or the HSU. Nor am I satisfied that either of those two unions could more effectively represent the relevant employees.

Discretionary considerations: ss.158(6), 158(7), 158(8)

[84] Section 158(6) is only relevant if there is an agreement or understanding to which the CPSU is a party that deals with the CPSU’s right to represent the industrial interests of a particular class or group of employees under the FW Act and the RO Act. There is no persuasive evidence of any such agreement or understanding. Mr McLeay’s evidence on an understanding about demarcations is essentially concerned with the State system – not the FW Act or the RO Act. Moreover, it was made in very different circumstances, a long time before there was any suggestion of privatising Home Care.

[85] Section 158(7), likewise, is only relevant if the Commission has made an order under s.133 about the CPSU’s right to represent the industrial interests of a particular class or group of employees under the FW Act and the RO Act, and the proposed change to the rules would give rise to a serious risk of a demarcation dispute. I am satisfied that no such order exists.

[86] As previously noted, s.158(8) makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent. There was considerable evidence of forthcoming changes that are expected to affect the home care sector. For example, Ms Gatfield referred to the likelihood that the Commonwealth would alter the funding model in the future:

[87] Ms Gatfield expanded on this during her oral evidence.

[88] It is clear from the evidence that proposed changes in the way that aged care is funded from 2017 may mean that some of the funding that has traditionally gone to Home Care will end up with other providers. They could be regarded as providing services that would be similar to the role traditionally performed by Home Care in NSW. It is much less likely however that they could be characterised as ‘successors’ to Home Care, as it would be unlikely, for instance, that they would be taking over any assets etc. that had once belonged to Home Care.

[89] Ms Gatfield also drew attention to the potential impact of new technology which could be expected to affect roles performed by employees in home care. 82 This could lead to job roles merging and changing.83 For example, using new technology, direct care workers might take on some of the functions traditionally performed by office-based staff.84 Ms Gatfield indicated that her union had had no difficulties in dealing with such issues with the ASU.85 While she agreed that similar cooperation could take place with the CPSU, ‘they have not had the expertise in this sector.’86

[90] In Ms Wright’s supplementary statement, she said:

[91] I would not be surprised if, at some time in the future, Australian Unity seeks to integrate its home care services. Nor would I be surprised if, at some time in the future, Australian Unity seeks to change the way jobs are delineated so that the traditional demarcation between ‘office-based’ work and direct care (as reflected in the proposed rule change) becomes blurred. This could conceivably lead to demarcation disputes between the CPSU and United Voice or the HSU (though the same could be said of the potential for disputes between the ASU and those unions). However, such changes are hardly uncommon in the modern workplace. I do not consider that such possible future changes provide a good basis for me to exercise my general discretion to refuse to approve the proposed rule change. The relevant unions would normally be expected to resolve any difficulties that might arise from any such developments by discussion. If agreement could not be reached there are mechanisms in the FW and RO Acts to resolve any disputes. Finally, I have had regard to the Full Bench decision in SDA v NUW, concerning the decline in significance of traditional assumptions about the undesirability of competition between unions for membership.

[92] I do not consider there are any grounds for me to refuse consent to the alteration under s.158(8).


[93] The (amended) application to alter the eligibility rules of the CPSU is granted, with effect from 29 April 2016.

al of the Fair Work Commission with Member's signature.



T Wright for CPSU, the Community and Public Sector Union.

L Doust of counsel for the Australian Municipal, Administrative, Clerical and Services Union.

A Howell of counsel for the Health Services Union of Australia.

S Bull for United Voice.

Hearing details:



February 18, 19.

March 10, 11.

<Price code C, PR577056>

 1   Exhibit CPSU13; PN1319-PN1323.

 2   Exhibit CPSU1.

 3   Exhibit CPSU2.

 4   Exhibit CPSU3.

 5   Exhibit CPSU4.

 6   Exhibit CPSU5.

 7   Exhibits CPSU6, CPSU7, CPSU8, CPSU9, CPSU10, CPSU11 and CPSU12.

 8   Exhibit UV3.

 9   Exhibit ASU5.

 10   Exhibit ASU7.

 11   Exhibit HSU6.

 12   Exhibit HSU7.

 13   Exhibit HSU8.

 14   Exhibit HSU6.

 15   http://www.adhc.nsw.gov.au/sp/tenders_and_contracts/transfer-of-the-home-care-service-of-nsw.

 16   Exhibits CPSU16 and CPSU17.

 17   Exhibit CPSU1 paras 5-7.

 18   Exhibit CPSU1 para 8.

 19   PN230-PN235.

 20   PN105.

 21   (1974) 157 CAR 623.

 22   Ibid 627-8.

 23   Re: Australian Workers’ Union; Ex Parte Construction, Forestry, Mining and Energy Union [2002] FCAFC 150 [43] (Gray & Moore JJ).

 24   Ibid [142] (Merkel J).

 25   Ibid [51] (Gray & Moore JJ).

 26   Re CPSU (2000) 100 IR 296 [95].

 27   NTEU v CPSU (1999) 93 IR 365 [204].

 28   Ibid [213].

 29   Re Australian Licenced Aircraft Engineers Association [2014] FWC 3658 [14].

 30   Ibid [15].

 31   Shop, Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461 [28].

 32   Ibid [57].

 33   PN24-PN28; PN992.

 34   PN1044-PN1095.

 35   PN1196.

 36   PN1193-PN1195.

 37   Exhibit CPSU6.

 38   Exhibits CPSU7, CPSU8, CPSU9, CPSU10, CPSU11, CPSU12.

 39   Exhibit CPSU2 para 7.

 40   Exhibit CPSU1 para 19.

 41   Exhibit CPSU1 para 30.

 42   Exhibit CPSU1 paras 33-40; PN183-PN200.

 43   Exhibit CPSU1 paras 31-32.

 44   Exhibit CPSU2 para 8.

 45   Exhibit CPSU3 paras 7-9.

 46   Exhibit CPSU5 paras 27-30.

 47   Exhibit CPSU2.

 48   Exhibit CPSU14.

 49   Exhibit UV3 paras 33-34.

 50   Exhibit UV3 para 62.

 51   PN1610.

 52   PN1563-PN1566.

 53   PN1567.

 54   PN1568.

 55   Exhibit ASU5 para 8.

 56   Exhibit ASU5 para 9.

 57   Exhibit ASU5 paras 12, 20.

 58   Exhibit ASU5 para 28.

 59   Exhibit ASU5 para 32.

 60   Exhibit ASU7 para 63.

 61   Exhibit ASU7 paras 63-4, 72.

 62   Exhibit ASU7 para 69.

 63   PN1764.

 64   PN1766-PN1771.

 65   PN1770.

 66   PN1747.

 67   Exhibit ASU7 para 76.

 68   Exhibit ASU7 para 50.

 69   Exhibit HSU8 paras 11-12.

 70   Exhibit HSU8 paras 35-36.

 71   Exhibit HSU8 para 50.

 72   Exhibit HSU8 appendix MM7.

 73   Exhibit HSU8 appendix MM8.

 74   Exhibit HSU8 para 101.

 75   Exhibit HSU8 paras 103-105.

 76   Exhibit HSU8 para 84.

 77   Exhibit ASU8 para 90.

 78   (1999) 93 IR 365.

 79   However, there was some evidence that Home Care did have at least two centres which operated from a hospital: PN2646.

 80   Exhibit UV3 para 51.

 81   PN1573-PN1578.

 82   PN1599.

 83   PN1607.

 84   PN1630-PN1632, PN1701-PN1707.

 85   PN1635.

 86   PN1643.