Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2017] FWC 718 of Commissioner Roe at Melbourne on 6 February 2017 in matter number AG2016/7396; whether the Commissioner erred in finding that employees who voted to approve an enterprise agreement were not covered by it; whether the Commissioner erred in concluding s.186(2)(a) had not been satisfied; construction of coverage provision of enterprise agreement; error established; permission to appeal granted; appeal upheld; decision quashed; application remitted for determination by another Member.

Background

[1] On 29 November 2016 an enterprise agreement titled the MTP Enterprise Agreement 2016 (Agreement) was purportedly made when three employees of Thiess Pty Ltd (Thiess) who are said to be covered by the Agreement approved the Agreement by voting for it. By application lodged on 1 December 2016 Thiess applied to the Fair Work Commission (Commission) under s.185 of the Fair Work Act 2009 (Act) for the approval of the Agreement.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) was not a bargaining representative for the Agreement but it was given an opportunity to make submissions and to be heard by Commissioner Roe, the Member of the Commission to whom the application for approval had been allocated, in relation to the question whether the Agreement should be approved.

[3] The Commissioner determined by a decision published on 6 February 2017 (Decision) that the application be dismissed. 1 By its notice of appeal lodged on 27 February 2017 Thiess seeks permission to appeal and appeals the Decision.

[4] The notice of appeal sets out seven grounds of appeal, which variously deal with:

● the Commissioner’s conclusion that the employees who voted to approve the Agreement were not at that time covered by the Agreement with the consequence that the Commissioner was not satisfied that the Agreement (not being a greenfields agreement) was genuinely agreed to by the employees covered by the Agreement, as required by s.186(2)(a) of the Act 2 (coverage issue);

● the Commissioner’s conclusion that he was not satisfied the group of employees covered by the agreement was fairly chosen; 3 and

● the Commissioner’s view that there were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees. 4

[5] The Commissioner’s Decision is succinctly set out at [41] – [42] of the Decision as follows:

“[41] I am not satisfied that the employees who voted for the Agreement were covered by it. Section 186 (2)(a) is therefore not met and I cannot approve the Agreement. The Application for approval of the Agreement is therefore dismissed.

[42] If I am wrong about this then I am not satisfied that the scope of the Agreement was fairly chosen, having regard to the issue of geographical, operational and organisational distinctiveness and other factors. Section 186(3) and (3A) are therefore not met and I cannot approve the Agreement. I would also not be satisfied that the Agreement has been genuinely agreed to by the employees. If Section 188(c) is not met I could not approve the Agreement”. 5

[6] Although the Commissioner devoted many paragraphs of the Decision to the question whether the group of employees covered by the Agreement was fairly chosen, and also a few paragraphs to the question whether there are reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees, it seems to us, on the basis of the paragraphs set out above that the Commissioner decided to dismiss the application on the basis that the employees who voted for the Agreement were not covered by it. Once he had dismissed the application, as the Commissioner apparently did at [41] there was nothing more to consider so far as the application was concerned. It ended there. We therefore propose to deal with the question of whether permission to appeal should be given, and if so whether the appeal should be upheld by reference to the one ground of appeal raised by Thiess relating to the coverage issue.

[7] The scope or coverage of the Agreement is dealt with in clause 3 and provides the following:

“3 Coverage

3.1 The Agreement covers and, subject to the provision of Part 2-1 of the Fair Work Act 2009 (Cth) (the FW Act), applies to:

(a) Thiess Pty Limited (The Company); and
(b) Employees of The Company who are engaged to work at, or in connection with, the Mt Pleasant Mine Project (including any work necessary for and preparatory to work at the Mt Pleasant Mine Project), and for whom classifications are contained in the Agreement (Employees).

3.2 The Agreement does not cover, or apply to, employees who are engaged to principally perform managerial, professional, supervisory and or administrative duties”. 6

[8] It is uncontroversial that at the time the employees voted to approve the Agreement, Thiess did not have a contract to perform any work at the Mt Pleasant Mine and so none of the employees who voted to approve the Agreement were working at the Mt Pleasant Mine. It has since entered into a contract to perform work at Mt Pleasant Mine. 7

[9] The Commissioner commences his consideration of the question whether the three employees who voted to approve the Agreement were covered by it at [17] of the Decision. At [18] and [19] the Commissioner refers to the statutory provision concerning coverage and the provision in the Agreement which sets out coverage, and at [20] the Commissioner sets out, the submissions of Thiess concerning the work performed by the three employees. It appears on the face of the Decision that the Commissioner accepted the matters set out at [20].The Commissioner thereafter sets out his analysis and conclusion as to the coverage issue as follows:

“[22] For the following reasons I am not satisfied that the work performed by the three employees in the lead up to and at the time of the vote falls within the ordinary meaning of the words “work at, or in connection with, the Mt Pleasant Mine Project” read in conjunction with the words “including any work necessary for and preparatory to work at the Mt Pleasant Mine Project”.

● Thiess has not secured work at or in connection with the Mt Pleasant Mine Project. It is hopeful of achieving a contract for such work and decided to undertake maintenance and planning for that eventuality.
● The three employees have not been employed specifically for this purpose. The F17 Statutory Declaration confirms that the three employees are not casual or part time employees but are full time on-going employees of Thiess. They were already employees of Thiess and they will remain employees of Thiess regardless of whether Thiess does obtain a contract to perform mining work at the Mt Pleasant Mine Project or not.
● The three employees were employed to perform, scope and schedule maintenance work on heavy machinery utilising their trade skills as boilermakers and diesel fitters. They performed this work prior to November 2016 and they have continued to perform this work after November 2016. The associated work described by Thiess related to training or familiarisation and planning and scheduling are normal tasks associated with the work of tradespersons.
● It makes little difference to the employees what particular mine or civil construction project the equipment is to be used for. Tradespeople need to apply their skills to different equipment and different requirements. Obviously there are some regulatory requirements which vary depending upon the use the equipment is destined for but the tradespeople are expected to be able to meet these varying requirements. The change from the workshop to work on equipment in other locations is not a fundamental change in the employment.
● The equipment is existing equipment owned or controlled by Thiess which has been utilised for other mining or civil construction work in the past. The requirement to maintain this equipment would exist at any time the equipment was required for further use. The possibility of the Mt Pleasant Mine Project may have influenced the timing of this particular maintenance but other business reasons could have arisen from time to time leading to the maintenance of the equipment.
● If Thiess do not achieve a contract for work at or in connection with the Mt Pleasant Mine Project then the work the employees have performed could not reasonably be described as having been at or in connection with the project. The owners and managers of the Mine Project will not pay for the work performed by the three employees. If Thiess does not achieve the contract then the work could not in any way be described as necessary for work at the Mt Pleasant Mine Project. Nor could it reasonably be described as preparatory to work at the Mt Pleasant Mine Project. The work could be fairly described as the normal work of Thiess maintenance employees in maintaining equipment owned and/or controlled by Thiess.

[23] I am satisfied that the work would fall within the scope of the Agreement should Thiess obtain the contract but given all of the factors described above it would be more accurate to say that the employees who made the Agreement may be covered by the Agreement at some date in the future. It is not accurate to say that “the agreement has been genuinely agreed to by the employees covered by the agreement” as required by Section 186(2)(a). The Full Federal Court has recently found that the expression “covered by the agreement” in Section 186(2)(a) and Section 188 is about employees who are actually covered by the agreement and not those who would potentially or probably become covered by it at a date in the future.

[24] In Shop Distributive & Allied Employees Association v ALDI Foods Pty Ltd  Justice White of the Federal Court considered in detail the time at which employees were required to be “covered by the agreement” for the purposes of determining whether to approve an Agreement. Justice White and Justice Katzmann supported this construction of Sections 186 and 188 of the Act.

[25] Justice White at paragraphs [134] and [135] relevantly stated:

“134 The matters listed in s 188 to which the FWC is to have regard in determining whether there has been genuine agreement to an enterprise agreement seem, with the possible exception of (c), to be of an objective kind. Nevertheless, it is the genuineness of the agreement by particular persons which the FWC is to assess, these persons being the employees “covered by” the agreement. There is, accordingly, an inherent requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is implicit in s 186(2)(a) that there be persons covered by the agreement whose genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the FWC. Persons who will become covered by the agreement only at some time in the future do not answer that description, even if they did, by some means, vote to approve it.

135 Further, in my opinion, the expressions “will be covered” and “covered by” in the scheme established by Pt 2.4 are counterpoints. Sections 172 to 181 use the former expression because they are concerned with the sequence of events until an enterprise agreement is made and because a contemplated enterprise agreement cannot cover anyone until it is made. The immediate change to the present tense following the final step in the sequence, that is, the making of the agreement (s 182), is an indication that those whom it was previously contemplated would be covered by the agreement are now, on the making of the agreement, covered by it (subject of course to the approval the FWC and the commencement of operation of the agreement pursuant to s 54). The change in terminology occurs because the work done by the term “will be covered” is complete. Because the two expressions are counterpoints, the expression “who will be covered by the agreement” is a reference to those who, upon the making of the agreement, are covered by it and is not a reference to those who, at some future time will become covered by it.”

[26] I am not satisfied that Section 186(2)(a) is met because I am not satisfied that the employees who voted for the Agreement are in fact covered by it”. 8 [Endnotes omitted]

Ground of appeal and contentions

[10] The ground of appeal raising the coverage issue is essentially as follows.

[11] The Commissioner’s conclusion that he was not satisfied that the employees who voted for the Agreement were covered by it, with the consequence that he was not satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement, as required by s.186(2)(a) of the Act is wrong because the Commissioner:

● wholly failed to understand and consider the evidence and the effect of the evidence which he had accepted and found;

● wrongly failed to determine that the employees who voted for the Agreement were covered by the Agreement as provided under s.53(1) of the Act, because the Agreement is expressed to cover the employees; and

● wrongly held that because Thiess had not obtained a contract in relation to the Mt Pleasant Mine Project, the terms of the application clause of the Agreement did not yet apply to the employees, despite the clear words of the clause itself.

[12] In summary, Thiess contends that the Commissioner erred at [22] of the Decision in concluding that the three employees who voted for the Agreement were not covered by the Agreement for the purposes of s.186(2)(a) of the Act. 9 It says that pursuant to s.53(1) of the Act, an enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee.10 By clause 3 of the Agreement, it expressed to cover the three employees because the employees were engaged to work in connection with, the Mt Pleasant Mine Project on work necessary for or preparatory to work at the Mt Pleasant Mine Project.11 It maintains that the description in clause 3 of the Agreement of “work necessary for or preparatory to work at the Mt Pleasant Mine Project” is not limited to work that it is necessary for or preparatory to, work at the project in relation to which Thiess has a contract.12 Rather, it includes work carried out before the primary work occurs, and work in anticipation or expectation of that work (or in anticipation or expectation of entering into a contract to perform work).13 Such work is described by the Agreement by its purpose as necessary or preparatory work.

[13] Thiess contends that the evidence accepted by the Commissioner, as is apparent from his reasons at [20] and [22], was that:

● Thiess decided to undertake planning and maintenance work including the use of a pre-mobilisation team of employees to do the work necessary to be in the best position to deliver on the Mt Pleasant Mine Project for which they were then working towards preferred contractor status; 14

● Thiess compiled an equipment list for the project, identified where that equipment was situated throughout Australia, and evaluated its readiness (or lack thereof) for use on the Project. It appointed a pre-mobilisation team to do the identified work required for deployment to the Project; 15 and

● Thiess inducted the three employees on pre-mobilisation requirements at Brisbane, transported them to Nebo and Burton Mine in North Queensland to inspect and assess equipment for potential use on the Project where they completed condition reports for maintenance planning to meet the Project development schedule, and transferred them to Mt Thorley in New South Wales to continue pre-mobilisation preparation activities for the Project. 16

[14] Thiess contends that on the accepted evidence, the work conducted by the three employees appointed to the mobilisation team was ‘necessary for and preparatory to work’ at the Project and on its construction clause 3 of the Agreement it was not necessary for Thiess to have secured the work by entering into a contract and it is sufficient for the work performed by the three employees to fall within clause 3 if the work in relation to which the employees were engaged to perform was carried out in anticipation or expectation that Thiess would secure the work at the Project. 17

[15] The CFMEU contends the Commissioner’s Decision was correct and that on proper construction of clause 3 of the Agreement, the assignment by Thiess of the three employees who voted to approve the Agreement to carry out the pre-mobilisation work, did not have the result that the employees were “engaged to work at, or in connection with, the Mt Pleasant Mine Project (including work necessary for and prepatory to work at the Mt Pleasant Mine)”. 18 This is because as no contract to carry out work at the Mt Pleasant Mine had been signed when the vote occurred, there were no employees who could be said to be engaged to work at, or in connection with, the project, whether such work was prepatory or otherwise.19

[16] The CFMEU contends that the Commissioner’s consideration of the nature of the employees’ employment was also relevant in the context of considering whether the three employees were engaged in accordance with clause 3 of the Agreement. 20 The nature of the employees’ employment and its context included the following:

● Thiess decided to appoint a pre-mobilisation team to perform the work identified above. A team of three was considered appropriate. 21

● With a focus on mechanical maintenance work, the maintenance team at the Brisbane-based Thiess Component Rebuild Centre (TCRC) was targeted. 22

● Expressions of interest were sought from the maintenance team at the TCRC on 28 October 2016. Three employees were selected during the week commencing 31 October 2016. The work requirements and the nature of the project were described to each of the three employees. The three employees transferred to the Mt Pleasant Mine Project pre-mobilisation team from 7 November 2016. 23

[17] It says that these matters were clearly relevant to a consideration of whether there had been the requisite engagement under clause 3 of the Agreement. It says that the three employees were otherwise engaged by Thiess and appointed to perform work on pre-mobilisation duties pending the work being secured and contends that the best that could be said was that the employees may become covered by the Agreement once a contract awarding work at the Mt Pleasant Mine had been awarded. 24 However at the time when the three employees voted to approve the agreement they were not covered by it.

Consideration

[18] At [23] of the Decision the Commissioner said as follows:

“[23] I am satisfied that the work would fall within the scope of the Agreement should Thiess obtain the contract but given all of the factors described above it would be more accurate to say that the employees who made the Agreement may be covered by the Agreement at some date in the future. It is not accurate to say that “the agreement has been genuinely agreed to by the employees covered by the agreement” as required by Section 186(2)(a). The Full Federal Court has recently found that the expression “covered by the agreement” in Section 186(2)(a) and Section 188 is about employees who are actually covered by the agreement and not those who would potentially or probably become covered by it at a date in the future”. 25

[19] Three things are apparent from the passage above. First, the Commissioner construed the words “Mt Pleasant Mine Project” in clause 3 of the Agreement as meaning a state of affairs which required Thiess to have a contract for work at the Mt Pleasant Mine. Secondly, if work at the Mt Pleasant Mine had been secured, the pre-mobilisation work in which the three employees were then engaged would fall within the scope of clause 3 of the Agreement with the consequence that the three employees would be covered by the Agreement. Thirdly, its seems to follow on the evidence accepted by the Commissioner, which was not challenged by the CFMEU on appeal, that if clause 3 of the Agreement did not require a contract to perform work at the Mt Pleasant Mine to have been secured, the pre-mobilisation work in which the three employees were engaged fell within the scope of clause 3 with the consequence that these employees were covered by the Agreement when they voted for it.

[20] Accordingly the issue that falls for determination is whether the words “work at, or in connection with, the Mt Pleasant Mine Project” read with the words “including any work necessary for and preparatory to work at the Mt Pleasant Mine Project” require there to have been a contract in existence for Thiess to carry out work at the Mt Pleasant Mine in order for the three employees to be covered by the Agreement at the relevant time. That is an exercise of agreement construction.

[21] Without reciting at length the principles applicable to the construction of an enterprise agreement, much like the approach to construing a statute, the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which particular provisions might have been derived.

[22] Part 2-4 of the Act regulates making, approval and variation of enterprise agreements. The objects of that Part include “to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements to deliver productivity benefits”. 26 “Enterprise” is defined broadly as meaning “a business, activity, project or undertaking”.27 The scheme established by Part 2-4 contemplates, inter alia, the making of “single enterprise agreements” made with employees who are employed at the time the agreement is made and who will be covered by the agreement, or with one or more relevant employee organisations, the later described as a greenfields agreement.28 It is thus apparent that as an enterprise is a “business, activity, project or undertaking”, the legislative scheme contemplates that a single enterprise agreement may be made covering employees in respect of work undertaken in contemplation of or as part of the process to enable, work for which a tender has been or will be submitted, to be secured. The same Agreement may also cover employees performing work on a project won through the tender. So much, we think is not controversial.

[23] Requirements concerning the giving of a notice of employee representational rights to employees are set out in ss.173 and 174 of the Act, while provisions governing the appointment and revocation of appointment of bargaining representatives are to be found in ss.176 to 178A. Section 180 of the Act contains a number of preapproval requirements with which an employer must comply before making a request that employees approve an agreement. Section 181 sets out when and by what means the employer may request employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

[24] Section 182 of the Act relevantly provides that an enterprise agreement that is a single enterprise agreement but not a greenfields agreement is made when a majority of employees that will be covered by a proposed single enterprise agreement who had been asked to approve the agreement under subsection 181(1) cast a valid vote approving the agreement.

[25] Section 185 of the Act regulates the process by which an application for approval of an enterprise agreement by the Commission is to be made and ss.186 and 187 are the provisions by which the Commission has power to approve an enterprise agreement. These provisions set out the various matters about which the Commission must be satisfied before approving an agreement. One of these matters is whether the agreement, the subject of the approval application, has been genuinely agreed to by the employees covered by the Agreement. 29

[26] As the recent decision of a Full Court of the Federal Court in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd 30(Aldi) makes clear, the matter with which the enquiry in s.186(2)(a) of the Act is concerned:

“ . . . is the genuineness of the agreement by particular persons which the FWC is to assess, these persons being the employees “covered by” the agreement. There is, accordingly, an inherent requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is implicit in s 186(2)(a) that there be persons covered by the agreement whose genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the FWC. Persons who will become covered by the agreement only at some time in the future do not answer that description, even if they did, by some means, vote to approve it”. 31

[27] How and when an enterprise agreement “covers” (as distinct to “applies” to) an employee, is relevantly set out in s.53(1) of the Act as follows:

“53 When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

. . .”

[28] Section 256A of the Act makes provision for the description in an enterprise agreement of, relevantly, employees as follows:

“256A How employees, employers and employee organisations are to be described

(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

(2) The employees may be specified by class or by name.

(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade”.

[29] A reference in the Act to an enterprise agreement covering an employee is, as s.53(6) makes clear, a reference to the agreement covering the employee in relation to particular employment.

[30] Putting to one side the question of whether the group of employees covered by an enterprise agreement was fairly chosen, there is nothing in the legislative scheme that we have described above, which would limit an enterprise agreement in expressing, for example that the agreement covers particular classes of employees who are engaged to work at a particular location and as well as those classes of employees who are engaged to perform work in connection with a bid or tender for work to be carried out at that location (or in anticipation of the work the subject of the tender, being secured). In essence this is how Thiess says clause 3 of the Agreement operates.

[31] We have earlier set out the full terms of clause 3 of the Agreement. The manner in which that clause describes the employees covered by the Agreement is first, by reference to their engagement in work at a particular project, or work in connection with that project. Secondly, by reference to that work falling within a classification for which provision is made. Clause 3 also describes the employees who are not covered by the Agreement by reference to the principal nature of the duties in which an excluded employee is engaged.

[32] There is nothing in clause 3 of the Agreement which suggests that work “in connection with, the Mt Pleasant Mine Project” requires Thiess to have entered into a contract to carry out work at the Mt Pleasant Mine. The words “in connection with” are notoriously of wide import, but are subject to the context in which they are used and to words with which they are associated. 32 We consider that these words used in the context of clause 3 can, and do, describe work carried out in furtherance of securing work at the Mt Pleasant Mine. Although Mt Pleasant Mine is an identifiable location, the word “Project”, though capitalised in the Agreement, is itself not defined. Contextually, the word “Project” used in conjunction with Mt Pleasant Mine is a noun and there is no reason apparent to us that it should not carry its ordinary meaning. The ordinary meaning of “project” when used as a noun is “something that is contemplated, devised, or planned; a plan, a scheme, an undertaking”.33

[33] It seems to us therefore that that description in the Agreement of the “Mount Pleasant Mine Project” is capable of including the work associated with winning work, work undertaken in anticipation of winning work and work in readying or preparing for the commencement of work at Mt Pleasant Mine in the event that work for which a tender was submitted, is awarded. Such work is necessarily limited to work capable of being carried out by employees in classifications for which the Agreement provides and the exclusion of work carried out by employees by reason of the principal functions of duties in which they are engaged identified in clause 3.

[34] Whilst it is clear that in order that an employee is “engaged to work…the Mt Pleasant Mine Project” that employee must be physically working at that Mt Pleasant Mine location, that is not the case in respect of an employee engaged to work “in connection with the Mt Pleasant Mine Project”, because as we have discussed above, that description is apt to include work readying or preparatory work to enable the commencement of work at the Mt Pleasant Mine in the event of a successful tender.

[35] On this construction the words in brackets “including work necessary for and preparatory to work at the Mt Pleasant Mine” are unnecessary. However it seems apparent that the words are included for the avoidance of doubt as to the class of employee covered by the Agreement. The words serve to underscore the construction we discuss above.

[36] For these reasons we consider that the Commissioner erred in concluding that the employees who voted to approve the Agreement were not covered by it because they were not engaged in “work . . . in connection with, the Mt Pleasant Mine Project”. On the facts accepted by the Commissioner as constituting the work undertaken by the three employees, they were covered by the Agreement when voting to approve it.

Disposition

[37] As is apparent from our reasons above we have concluded that Thiess has made good the first ground of its appeal. We are persuaded that permission to appeal should be granted because error in the Decision has been established and the nature of the error identified raises for consideration the proper administration of the agreement approval powers of the Commission. The erroneous construction of the coverage provision of the Agreement resulted in an incorrect conclusion that the requirements in s.186(2)(a) of the Act had not been met. The error is jurisdictional in nature in that satisfaction of that requirement is, amongst other matters, a precondition to the exercise of the enterprise agreement approval power.

[38] For the reasons given we would uphold the appeal and quash the decision. We propose to remit the application for the approval of the Agreement to Commissioner Lee.

Order

We order that:

(a) permission to appeal is granted;

(b) the appeal is upheld;

(c) the Decision to dismiss the application for approval the Agreement ([2017] FWC 718) is quashed; and

(d) the application for the approval of the Agreement is remitted to Commissioner Lee.

DEPUTY PRESIDENT

Appearances:

Mr A Herbert, Counsel with Mr M Moy and Ms S Fryer for Thiess Pty Ltd.

Mr T Slevin, Counsel with Ms J Short for the CFMEU.

Hearing details:

2017.
Brisbane.
2 May.

 1   [2017] FWC 718.

 2   Form F7 – Notice of Appeal, dated 27 February 2017 at question 2.1.1(a) – (c); see also Appellant’s Outline of Submissions dated 31 March 2017 at [11] – [41].

 3   Ibid at question 2.1.2(a) – (d); Ibid at [42] – [55].

 4   Ibid at question 2.1.5(a) – (b); Ibid at [63] – [70].

 5   [2017] FWC 718.

 6   MTP Enterprise Agreement 2016, at clause 3.

 7   Transcript PN12.

 8   [2017] FWC 718.

 9   Appellant’s Outline of Submissions, dated 31 March 2017 at [11].

 10   Ibid at [13].

 11   Ibid at [12].

 12   Ibid at [16]; see also Transcript PN41 – PN46.

 13   Ibid; see also Transcript PN47.

 14   Ibid at [15(a)].

 15   Ibid at [15(b)].

 16   Ibid at [15(c)].

 17   Ibid at [16]; see also Transcript PN47 – PN48.

 18   Respondent’s Outline of Submissions, undated at [14]; see also Transcript PN272 and PN285 – PN286.

 19   Transcript PN272, PN285 – PN286 and PN296.

 20   Respondent’s Outline of Submissions, undated at [15]; see also Transcript PN321 – PN322.

 21   Appellant’s Outline of Submissions, dated 24 January 2017 quoted in 2017 FWC 718 at [20].

 22   Ibid.

 23   Ibid.

 24   Respondent’s Outline of Submissions, undated at [14]; see also Transcript PN296.

 25   [2017] FWC 718.

 26   Fair Work Act 2009 (Cth) s.171(a).

 27   Fair Work Act 2009 (Cth) s.12.

 28   Fair Work Act 2009 (Cth) s.172.

 29   Fair Work Act 2009 (Cth) s.186(2)(a).

 30   [2016] FCAFC 161.

 31   Ibid at [134] per White J, with whose reasons on this point Katzmann J expressly agreed (see at [54]).

 32   See for example, Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Burswood Management Limited and Others v Attorney-General (Cth) and Another (1990) 23 FCR 144; and Collector of Customs v Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280.

 33  Susan Butler, Macquarie Dictionary (^MacquarieMacquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).

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