DECISION

[83] In accordance with the exception to the hearsay rule described in Subramaniam v The Public Prosecutor, 82 these business records were received on the basis that such a record had been made but not as evidence of the facts contained therein.

[84] APG tendered a copy of an APG Employee Handbook and an acknowledgement page which was signed by Ms Kumar on 9 November 2016. 83 The Handbook contained a section which indicated that APG would not tolerate a number of matters including ‘Failure to notify APG Contact if unable to attend any rostered shift for any reason.’ The Handbook also included a section titled ‘Attendance Policy’ which outlined the need to be punctual, recognising that some absences cannot be avoided. The section advised that APG employees needed to contact APG for approval two hours before any intended absence. The Handbook indicated that breaches of the above requirements may lead to a review of the employee’s employment.

[85] Ms Frost contends that Ms Kumar was not dismissed.

Jurisdictional matters

[86] Ms Kumar contends that the she was dismissed and is entitled to seek an unfair dismissal remedy.

[87] APG contends that Ms Kumar was not dismissed and has not completed the minimum employment period.

[88] Based on the evidence of Ms Frost that there are approximately 3,000 employees at APG, I find that APG is not a small business employer within the meaning of s.23 of the Act and that the relevant minimum employment period is 6 months.

[89] Based on the evidence of Ms Chalmers and Ms Kumar, I find that Ms Kumar was regularly engaged to work at Baiada for five days per week for an average of 37.5 hours per week and that Ms Kumar had been employed on a regular and systematic basis for a period exceeding 6 months prior to 23 June 2017.

[90] Ms Kumar’s work history (including frequency of engagement) combined with the requirement to advise APG and/or Baiada if she was unable to attend for work leads me to find that Ms Kumar had a reasonable expectation of continuing employment by APG on a regular and systematic basis.

[91] As a result of these findings, I determine that Ms Kumar has completed the minimum employment period required by s.382 of the Act.

[92] Ms Kumar submits that her employment is covered by the Poultry Processing Award 2010. This was not contested and in any event her annual rate of earnings is less than the high income threshold.

[93] I find pursuant to s.382 that Ms Kumar is a person protected from unfair dismissal.

Was Ms Kumar dismissed?

[94] I have found that APG regularly and systematically engaged Ms Kumar until 23 June 2017 after which Ms Kumar has not worked for APG. APG did not offer Ms Kumar any further work until 2 September 2017, a clear departure from Ms Kumar’s historical engagement.

[95] The effect of APG’s conduct was to deny Ms Kumar further engagements.

[96] APG contend I should adopt the approach take in Tse v Ready Workforce (A division of Chandler Macleod) Pty Limited 84 and find that Ms Kumar was not dismissed. As will be evident from the discussion of the recent case law in employer, host employer and employee arrangements below, the law has developed further since 2010 and I do not propose to follow the approach recommended.

[97] Ms Wells also submitted that Sherwin v Adesse Pty Ltd 85supported the proposition that with only 6 weeks having elapsed since Ms Kumar’s last engagement it was too soon to determine that Ms Kumar has been dismissed. In that case there was a change in operational requirements that resulted in a reduction of hours, this was not the position in this matter where the evidence indicates that there was work available. In my view Adesse is distinguishable on the facts.

[98] I find that APG’s conduct resulted in Ms Kumar’s dismissal occurring on 23 June 2017.

The Merits

Applicable case law

[99] In Kool v Adecco Industrial Pty Ltd T/A Adecco 86 which also involved an employer, host employer and employee arrangements, the Commission found that:

● the contract which formed the relationship between the employer and the host employer was not before the Commission;
● the employer simply acquiesced in the removal of the employee from the host employer’s site without having an independent view as to the capacity or conduct of the employee;
● the employer did not independently attempt to verify whether there was a valid reason for the removal of the employee from the host employer’s site; and
● the Commission did not accept that there was a lack of alternative placements for the employee or that she unreasonably refused an alternative placement so that it could be said to constitute a valid reason for dismissal.

[100] Although some of circumstances of this matter can be distinguished from those in Adecco, it is useful to set out the general principles that arise from that decision:

“[48] Where managers of a host employer inform a labour hire employee that he or she is to be removed from site on the basis of conduct, capacity or work performance, the actions of the host employer may be tantamount to dismissal. This is particularly so where managers or supervisors of the host employer have also been involved in disciplining the labour hire employee. A labour hire employee seeking to contest such action by making an application for an unfair dismissal remedy, faces considerable difficulty, principally because the host employer is not the employer of the labour hire employee. It is also the case that a labour hire company may face considerable difficulty preventing a host employer from taking disciplinary action against an employee of the labour hire company.

[49] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal.”

[101] I note that the Full Bench in Pettifer v MODEC Management Services Pty Ltd 87 endorsed the principle as set out in paragraph 49 of Adecco.

[102] The facts in MODEC are summarised as follows:

● the contract which formed the relationship between the labour hire employer and the host employer was before the Commission and it provided a contractual right for the company representative to direct to have removed from the site any person employed in connection with the work under the contract whose involvement the company representative considered as not being in the best interests of the project;
● MODEC formed an independent conclusion and did not support the severity of the host employer’s action of excluding the employee from the worksite; and
● MODEC endeavoured to obtain suitable alternative employment for the employee which included consideration of local and international employment opportunities and had discussions with the employee’s Union to explore alternative roles.

[103] The Full Bench in MODEC found the following in relation to s.387(a) of the Act:

“[32] We have concluded that the BHPB instruction that Mr Pettifer was not permitted to work on the BHPB Site represented a matter which went to Mr Pettifer’s capacity to work. Consequently, it was a matter that required consideration pursuant to subsection 387(a) to determine whether or not it was a valid reason for the termination of his employment. It has long been established that the Commission is required to consider and reach conclusions about each of the factors specified in section 387. In ALH Pty Ltd trading as a Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51], the Full Bench of the predecessor to the FWC (the Australian Industrial Relations Commission) said, in relation to section 170CG of the Workplace Relations Act 1996 (CTH) (WR Act), the precursor to section 387 of the FW Act, that:

“[51] Each of the paragraphs (a) to (d) of section 170CG(3) requires the Commission to have regard to ‘whether’ a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. A consequence of this construction of section 170CG(3) is that the Commission is obliged to make a finding in respect each of the circumstances specified in subsection 170CG(3)(a) to (d) in so far as each of these paragraphs is relevant to the factual circumstances of a particular case.”

[33] Consequently we have concluded that the Commissioner was in error in her conclusion that the circumstances of the termination of Mr Pettifer’s employment did not give rise to valid reason considerations. Mr Pettifer’s incapacity to work on the BHPB Site arose directly from the BHPB prohibition on his returning to work on that site, as distinct from any dispute over his conduct. As a consequence, Mr Pettifer was incapable of working on the BHPB Site in a manner which was akin to a bar or the loss of a form of licence, essential to his capacity to work. Hence Mr Pettifer’s capacity was a factor which required a conclusion in terms of whether it represented a valid reason for the termination of his employment.”

[104] In the recent Full Bench decision of Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee, 88 the Full Bench distinguished the employee, Mr Gee’s, case from that in MODEC on the following basis:

“(1) Tasports, apparently as the result of a deliberate forensic decision on its part, did not provide the Commission with a copy of the contract between it and Grange Resources, and thus did not establish that Grange Resources in fact had a legal right to require Mr Gee’s removal from the worksite or that Tasports had no recourse to preserve Mr Gee’s employment at the site once that step had been taken. The demonstration of the existence of that legal right was, as earlier explained, critical to the Full Bench’s conclusion in Pettifer that the employee was incapable of performing his substantive role.

(2) Tasports did not form its own independent conclusion as to whether Mr Gee had committed misconduct but instead essentially adopted the outcome of Grange Resources’ procedurally unfair investigation. That it did so is demonstrable in two ways: first, Mr Ralston’s email of 17 August 2015 indicated Tasports’ immediate support for the decision to remove Mr Gee from the site based on his alleged misconduct, without taking any steps whatsoever to investigate the matter itself including by asking Mr Gee about it; and, second, the dismissal letter of 28 August 2015 stated that the decision to revoke Mr Gee’s site access was “reasonably open” to Grange Resources based upon its findings of misconduct, a conclusion reached without any response to those findings having been obtained from Mr Gee. That is to be contrasted with Pettifer, where the labour hire employer formed the independent conclusion that removal from the worksite and dismissal was not justifiable on the basis of any conduct on the part of the employee. That meant that Mr Gee’s dismissal was capable of being characterised as substantially related to his conduct, with its validity to be assessed on that basis. This was not, as Tasports submitted, a case of assessing whether Grange Resources had a valid reason, but whether Tasports’ reasons for dismissal as stated in its own dismissal letter were valid.

(3) As the Deputy President found, and unlike the case in Pettifer, Tasports failed adequately to investigate options for Mr Gee’s redeployment. This had greater significance given that Tasports is not actually a labour hire business as such, but runs ports and other businesses in its own right and employs persons for that purpose. Although Mr Gee’s position description, which concerned his position as Port Latta, was put into evidence, what the actual terms of his employment contract were was left unclear. Insofar as the Deputy President referred in paragraph [54] of the Decision to Tasports having an obligation to “safeguard Mr Gee’s interests” in respect of its review of alternative work opportunities, we consider this is to be understood as reference to the contractual duty to do what is reasonably necessary to facilitate the performance of the employment contract, including to do such things as is required to enable the other party to have the benefit of the contract. The implied duty to co-operate in employment contracts is recognised in Australian law.” (citations omitted)

[105] The Full Bench in Tasports compared the differences in, and endorsed, the decisions of Adecco and MODEC and dismissed the contention that MODEC stood for the principle that a decision by a host employer in the context of a labour hire arrangement to have a worker supplied by a labour hire employer removed from its worksite meant that there was necessarily a valid reason for the worker’s dismissal by the labour hire employer based on the worker’s capacity for the purpose of s.387(a) of the Act. The Full Bench stated that this contention was “inconsistent with the statement of principle in Adecco which, like the Full Bench in Pettifer, we endorse.” 89

Consideration

[106] The Labour Supplier Agreement between APG and Baiada gave Baiada the right to end Ms Kumar’s assignment without reason.

[107] I find that Ms Kumar’s employment ceased by way of capacity, in that Baiada’s decision not to allow her to perform work at its Wingfield operation prevented APG from providing further assignments at Baiada at that location.

[108] I find that the reasons relied upon by Baiada (and in turn APG) to support the decision to cancel the assignment were not supported by the evidence before me.

[109] If the rules of evidence were strictly applied then most (if not all) of the evidence in respect to Ms Kumar’s conduct would have been rejected on the basis of hearsay. Whilst s.591 of the Act provides that the Commission is not bound by the rules of evidence, they provide appropriate guidance.

[110] APG’s allegations of lateness, leaving work early, and the issuing of warnings against Ms Kumar were not supported by any direct evidence and were disputed by Ms Kumar.

[111] In this matter the descriptions of the events contained in the records appears to be inaccurate. For example the complaints of leaving work early on 1 February 2017, 6 March 2017, 5 and 10 May 2017, are more accurately described as Ms Kumar not working as much overtime as other employees. In other cases, such as 15 and 16 November 2017, the lateness was either explained as a result of matters beyond Ms Kumar’s control.

[112] Other incidents recorded on the form are simply records of matters which would not represent a breach of the employment obligations; for example leave due to a workplace injury between 23 and 25 January 2017, a head cold on 30 January 2017, suffering from a knee injury on 23 February 2017, performing light duties in the APG office between 27 February 2017 and 3 March 2017, a reoccurrence of the knee injury between 7 and 10 March 2017, 8 June 2017 illness, 9 June 2017 illness (medical certificate provided).

[113] When the records are evaluated and considered against this information, I find that it would be dangerous to rely upon them to support the allegations of ‘ongoing issues with punctuality and attendance’ made against Ms Kumar.

[114] When I consider the denials of the alleged conduct by Ms Kumar and the explanations given, I am not convinced that Ms Kumar engaged in the conduct ascribed to her.

[115] The evidence before me does not support a finding that APG counselled or warned Ms Kumar in relation to her attendance, and if it did so it appears that APG’s Supervisors were merely parroting the allegations made by Baiada.

[116] APG should have sought more detailed information on, and properly investigated the basis upon which Baiada made its decision. APG should then have put that information to Ms Kumar for her comment. Had it done so, APG would have had an opportunity to raise the inconsistences presented to me at the hearing of this matter which would have resulted in APG discovering that most of the records contained in Baiada’s roll call document were incorrect.

[117] I find that APG did not investigate the reason for the termination of Ms Kumar’s Baiada engagement other than in the minimalist way detailed in the email trail between Ms Chalmers, Ms Frost and Ms Eichler dated 22 June 2017, such information referring to seven employees with no indication as to which reasons applied to Ms Kumar. APG appears to have simply acquiesced in the removal of the employee from Baiada’s site without having an independent view as to the capacity or conduct of Ms Kumar.

[118] The evidence does not indicate that APG took reasonable steps to engage with Baiada or other employers about alternative assignments. APG did not engage with Ms Kumar about alternative assignments until immediately before the hearing. In fact, APG appears to have reduced the roles considered as a result of Ms Kumar’s employment with the NUW without any discussion with her. It is not in dispute that Ms Kumar was not offered any alternative work until 2 September 2017, the Saturday night before the hearing, a period of approximately 10 weeks.

[119] There is no evidence before me that indicates that APG embarked on a genuine process to consider alternative roles which might be available to Ms Kumar to perform until shortly before the hearing commenced. Whilst it was argued that such an offer was a pretence designed to bolster the APG case, it is immaterial as a result of my decision that the dismissal occurred on 23 June 2017.

[120] I accept that the relationship between Ms Kumar, APG and Baiada has broken down post dismissal, in part due to Ms Kumar’s involvement with NUW organising activities at APG, but for the dismissal of Ms Kumar this may not have occurred.

[121] I accept that APG sought to secure the attendance of Mr Parrish to give evidence and I do not make any adverse inference about his failure to give evidence.

Was the dismissal harsh, unjust or unreasonable?

[122] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason - s.387(a)

[123] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd⁹⁰ which requires the reason for termination to be ‘sound, defensible or well founded.’

[124] I find that Ms Kumar was dismissed as a result of her incapacity to perform work at Baiada’s Wingfield operation.

Notification of valid reason - s.387(b)

[125] I find that Ms Kumar was notified of the reason for her dismissal.

Opportunity to respond - s.387(c)

[126] I find that APG did not provide an opportunity for Ms Kumar to respond to the allegations.

Any unreasonable refusal by the employer to allow Ms Kumar to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[127] Whilst Ms Kumar did not request a support person the process prevented such a request from being made.

Warnings relative to unsatisfactory performance - s.387(e)

[128] I find that Ms Kumar was not subject to any warnings in respect of the alleged unsatisfactory performance. I do not regard general advice provided to team meetings about punctuality as a warning.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[129] APG does not have a dedicated human resources management specialist located in its South Australia branch. Any human resources management is conducted via its interstate branch.

Other matters considered relevant - s.387(h)

[130] APG did not properly investigate the work performance allegations levelled against Ms Kumar, had they done so they would have found that most of the allegations could not be substantiated.

[131] APG did not take reasonable steps to engage with Ms Kumar and seek alternative work.

Conclusion

[132] The Explanatory Memorandum to the Act⁹¹ explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[133] In Byrne and Frew v Australian Airlines Pty Ltd,⁹² the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[134] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Ms Kumar’s employment was harsh, unjust and unreasonable.

Remedy

[135] The relevant provisions of Division 4 of Part 3-2 of the Act state:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

…

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[136] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[137] Ms Kumar did not seek reinstatement and I am satisfied that it is not appropriate in this case.

[138] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[139] I now turn to whether compensation in lieu of reinstatement is appropriate.

[140] A Full Bench in McCulloch v Calvary Health Care Adelaide⁹³ confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket⁹⁴ remains appropriate.

[141] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in subsections (a) to (g). Without detracting from the overall assessment required by the Act,⁹⁵ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

[142] There was no submission that any order of compensation would impact the viability of APG.

The length of Ms Kumar’s service with the employer - s.392(b)

[143] Ms Kumar was employed for a period of four years and five months. I reject APG’s contention that Ms Kumar resigned from her employment in the period where she contended she accessed maternity leave and had two children.

The remuneration Ms Kumar would have received, or would have been likely to receive, if she had not been dismissed - s.392(c)

[144] The allegations of poor attendance and punctuality made against Ms Kumar were not substantiated. Whilst the relationship deteriorated between Ms Kumar and APG, that occurred after her termination and arose from her protest at the way that she was treated and Ms Kumar’s work as a NUW Organiser at the Baiada workplace she previously worked, adversely impacted on the relationship.

[145] Based on the evidence before me, there was work available at Baiada that was given to other employees, and at a later time work was available with another waste management employer.

[146] It was submitted that at the time of her dismissal, Ms Kumar earnt $26.56 per hour and that her average earnings were $888.87 per week. 96 This was not disputed by APG.

[147] In my view, it would be reasonable to assume that Ms Kumar would have remained in employment for a further 12 weeks.

The efforts of Ms Kumar to mitigate the loss suffered by her because of the dismissal - s.392(d)

[148] Ms Kumar secured casual employment after the dismissal.

Remuneration earned by Ms Kumar during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Ms Kumar during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[149] Ms Kumar earned $2069.13 as a casual employee up to the date of the hearing.

Any other matter that the Commission considers relevant and the remaining statutory parameters - s.392(g)

[150] There are no other relevant matters.

[151] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[152] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.⁹⁷ The amount of compensation awarded is less than this limit.

[153] Taxation is to be paid on the amount determined.

[154] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.⁹⁸

[155] I award compensation in the amount of $8,597.31, which represents the amount Ms Kumar would have been paid if she had continued to work at APG for a period of 12 weeks following the dismissal subtracting her post dismissal income.

[156] An Order 99 reflecting this decision will be issued.

COMMISSIONER

Appearances:

A.Snowball of the National Union of Workers for the Applicant.

A.Wells of counsel for the Respondent.

Hearing details:

2017.

Adelaide:

September 4 & 5.

 1   [2011] FWA 2910

 2   [2013] FWCFB 8255 [36]

 3   Exhibit A1

 4   Exhibit A2

 5   Exhibit A5, noting that paragraphs 11-17 were struck out

 6   Original Statement Exhibit R12 and Supplementary Statement Exhibit R13

 7   Original Statement Exhibit R16, noting that paragraph 10 was struck out and Supplementary Statement Exhibit R1, noting that paragraphs 3 and 4 were struck out

 8   Transcript PN267-274

 9   Transcript PN442-447

 10   Exhibit R18

 11   Transcript PN174-175

 12   Exhibit R2

 13   Exhibit R3

 14   Transcript PN299-325

 15   Transcript PN327

 16   Transcript PN365-368

 17   Exhibit R8

 18   Transcript PN421

 19   Transcript PN685-689

 20   Transcript PN189-190

 21   Exhibit R1

 22   Exhibit A3

 23   Transcript PN213-221

 24   Transcript PN284

 25   MFI Exhibit R11

 26   Transcript PN621-PN644

 27   Transcript PN646

 28   Exhibit R9

 29   Transcript PN558

 30   Exhibit A6

 31   Exhibit A5, noting that paragraphs 11-17 were struck out

 32   Transcript PN748-752

 33   Transcript PN763

 34   Transcript PN765

 35   Transcript PN869

 36   Exhibit R17

 37   Exhibit R9

 38   Transcript PN922-923

 39   Transcript PN927-932

 40   Transcript PN947

 41   Transcript PN965

 42   Transcript PN1017

 43   Transcript PN1033-1038

 44   Transcript PN1045-PN1063

 45   Transcript PN1126

 46   Transcript PN1076-1082

 47   Transcript PN1106-1109

 48   Original Statement Exhibit R16, noting that paragraph 10 was struck out

 49   Exhibit R1 - noting that paragraphs 3 and 4 were struck out

 50   Transcript PN1208-1239

 51   Transcript PN1526

 52   Transcript PN1250-1251

 53   Exhibit R1, paragraph 5

 54   Transcript PN1268

 55   Transcript PN1281

 56   Transcript PN1462

 57   Transcript PN1267

 58   Transcript PN1307

 59   Transcript PN1308-1309, PN1373

 60   Transcript PN1408

 61   Exhibit R1, Annexure C

 62   Transcript PN1310

 63   Transcript PN1433 and 1440

 64   Transcript PN1450

 65   Transcript PN1467

 66   Transcript PN1492

 67   Transcript PN1475-1477

 68   Transcript PN1494-1496

 69   Transcript PN1376-1378

 70   Transcript PN1511

 71   Transcript PN1510

 72   Exhibit R16,Attachment A

 73   Exhibit R16, Attachment B

 74   Exhibit R16, Attachment C

 75   Transcript PN1417-1423

 76   Exhibit R18

 77   Exhibit R18

 78   Exhibit R16 Attachment D

 79   Exhibit R16 Attachment E

 80   Exhibit R16 Attachment F

 81   Exhibit R16 Attachment G

 82   [1956] W.L.R. 965

 83   Exhibit R2

 84   [2010] FWA 8751

 85   [2008] AIRC 900

 86   [2016] FWC 925

 87   [2016] FWCFB 5243

 88   [2017] FWCFB 1714

 89   [2017] FWCFB 1714 [34]

90 (1995) 62 IR 371 at 373

⁹¹ Explanatory Memorandum to the Fair Work Bill 2008

92 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

93 [2015] FWCFB 873

94 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431

95 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446

 96   PN2000

97 Section 392(5) of the Act

98 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32]

 99   PR597267

Printed by authority of the Commonwealth Government Printer

<Price code G, PR597266>