[2018] FWCFB 1772

The attached document, replaces the document previously issued with the above code on 26 March 2018.

Endnote 8 has been amended to:

“…CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [5] – [7]…”

Associate to Vice President Catanzariti

Dated 26 March 2018

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
Shamrock Civil Pty Ltd
(C2017/5529)

Appeal against decision [2017] FWCA 4831 of Commissioner McKinnon at Melbourne on 15 September 2017 in matter number AG2017/2918.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner McKinnon on 15 September 2017 1(the Decision) to approve the Shamrock Civil Pty Ltd Enterprise Agreement 2017 (the Agreement).

[2] The Commissioner set out comprehensive reasons for her decision. The reasons for the decision include a reference to the history of the involvement of the CFMEU in the approval application. The CFMEU Queensland/NT branch and the WA Branch sought and consistent with the Full Bench decision in CFMEU v Ron Southon Pty Ltd 2 were provided with copies of the Form F16, Form F17 and Notice of Employee Representational Rights (NERR) filed by the Applicant before the matter was allocated to Commissioner McKinnon. The CFMEU then indicated that they wished to make submissions. The Commissioner subsequently sought information from the CFMEU as to whether they were a bargaining representative for the purposes of s.176 of the Act. The response, or rather lack thereof from the union to the request for this information led the Commissioner to form the preliminary view that the CFMEU was not a bargaining representative. Nevertheless, the Commissioner elected to allow the CFMEU to provide submissions in respect to the consideration of the Better off Overall Test (BOOT) as she considered the CFMEU likely to be in a position to assist the Fair Work Commission (the Commission) in consideration of this issue, having regard to its particular knowledge of the Building and Construction General On-site Award 2010.³ The bulk of the reasons for the decision dealt with the application of the BOOT to the Agreement.

[3] Ultimately, having accepted a number of undertakings from the Applicant, the Commissioner determined “on balance” that she was satisfied the Agreement passed the BOOT. 4 Further, the Commissioner was satisfied the undertakings provided did not cause financial detriment to any employee covered by the agreement nor result in substantial change to the Agreement.

[4] There is no detailed consideration in the decision of the other additional requirements to which the Commission is to have regard but there is a general statement which indicates that the Commissioner was satisfied that the additional requirements in ss.186, 187, 188 and 190 as are relevant to this application for approval had been met.

CFMEU’s standing to appeal

[5] The CFMEU submit that they represent workers in the building and construction industry and that the Respondent’s employees are members or are eligible to be members of the CFMEU; that approval of the agreement and its effect concern the CFMEU; it is likely that members of the CFMEU will be engaged by the Respondent in the future and that the Agreement will cover their employment. On that basis, the CFMEU submit that they are a person aggrieved by the decision for the purposes of s.604(1) of the Act and therefore have standing to bring this appeal. The CFMEU referred to the decisions in Tweed Valley v Ross 5 and Construction, Forestry, Mining and Energy Union v Concrete Constructions (WA) Pty Ltd6 in support of their submission for standing.7

[6] The Respondent rejects the CFMEU’s submission that Shamrock Civil employees are members of the CFMEU but acknowledges that its employees are eligible to be members of the CFMEU, as are future employees. Beyond that the Respondent noted the decisions referred to by the CFMEU but offered nothing further on the point.

[7] There is no dispute that the CFMEU rules permit it to enrol the Respondent’s employees as members and we consider that there is the prospect that members of the CFMEU will be engaged by Shamrock Civil in the future and will be covered by the Agreement. This is sufficient to confer standing on the CFMEU to appeal the decision. 8

Grounds of appeal

[8] The CFMEU’s grounds of appeal, as contained in its amended notice of appeal, were as follows:

“The Commissioner erred in law by approving the Shamrock Civil Pty Ltd Enterprise Agreement 2017 (Agreement”) by:

(a) being satisfied that the Agreement passed the better off overall test, subject to the undertakings provided by the Respondent, given amongst other things:

(i) the Agreement does not make provision for payment of new permanent employees who present for work but are not required, whereas clause 19.4 of the Building and Construction General On-Site Award 2010 (Award) does make such provision;

(ii) the Agreement does not make provision for several expense related allowances, including meal allowances and compensation for clothes and tools, whereas clause 20 of the Award does make such provision;

(iii) the Agreement does not make provision for several site and general wage related allowances, including amongst others, special allowance, industry allowance, underground allowance, multistory allowance, laser operation allowance, first aid allowance, whereas clause 21 of the Award does make such provision;

(iv) clause 5.10 of the Agreement makes provision for fortnightly payment of wages whereas clause 31 of the Award makes provision for weekly payment of wages; and

(v) clause 7.1 of the Agreement provides that the ordinary hours of work will be worked Monday to Friday between 6:00a.m. and 6:00p.m., whereas clause 33.1 of the Award provides the ordinary hours of work for non-shiftworkers are Monday to Friday between 7:00a.m. and 6:00p.m.;

(b) accepting undertakings which resulted in substantial changes to the Agreement contrary to section 190(3) of the Fair Work Act 2009 (Cth); and

(c) amending clause 2.1(b) of the Agreement under section 586 of the Fair Work Act 2009 (Cth); and.

(d) being satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement.”

[9] During the hearing, the Full Bench raised the issue of genuine agreement and a decision of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd (One Key). 9 Subsequent to the hearing, directions for the filing of further submissions were issued. Further submissions were filed by both the Appellant and the Respondent and the Full Bench queried of the Appellant if, in light of the submissions, they sought to amend their grounds of appeal.

[10] The Appellant sought to do so and seeks to add a further ground of appeal as follows:

“The Commissioner erred in law by approving the Shamrock Civil Pty Ltd Enterprise Agreement 2017 (Agreement) by:

“… (d) being satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement.”

[11] In summary, the Appellant submits that the Commission should grant leave to include the additional ground as:

•  The decision of Justice Flick in One Key was handed down after the lodgement of the appeal and consequently it was not open to the CFMEU to include the additional ground in its grounds of appeal at the time of lodgement;

•  The additional ground concerns the Commissions capacity and jurisdiction to approve the Agreement under the Act;

•  The additional ground is confined to a question of law; and

•  The additional ground should be upheld and that the length of the delay from Justice Flick issuing his reasons in One Key and the CFMEU filing an amended notice of appeal is 2 months and 22 days. 10

[12] The Respondent objects to the further ground of appeal being added. In summary, the Respondent submits that:

•  At the point of time when the Agreement was approved the Commissioner was satisfied that it passed the genuine agreement test under the Act, as was the Appellant;

•  It has reservations as to the fairness and applicability of raising this matter on appeal when the Respondent could not have had knowledge or be guided by the decision in One Key; and

•  Further, that the Respondent’s communication and involvement with its employees stands in stark contrast to the situation in One Key. 11

[13] Having considered the submissions we allow the amendment to the appeal grounds to add the additional ground of appeal. There is a serious question as to whether the Agreement was genuinely agreed. This a key requirement going to the jurisdiction of the Commission to approve an Agreement. We have considered the submission of the Respondent that the decision of His Honour Justice Flick was not handed down prior to the approval of the Agreement by the Shamrock employees. This is not a relevant consideration. The decision deals with, among other things, the statutory construction of a requirement of the Act which the Respondent was required to observe at the time of approval. We therefore allow the amendment to the grounds of appeal in the manner sought by the CFMEU.

Consideration

Permission to appeal

[14] An appeal under s.604 of the Fair Work Act 2009 (FW Act) is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 12 There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 13 The public interest is not satisfied simply by the identification of error, or a preference for a different result.14 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 15

[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 16

[17] In determining whether permission to appeal should be granted we have reviewed and considered all material filed by the parties including all submissions, correspondence and relevant authorities.

[18] The CFMEU’s amended notice of appeal contains four grounds of appeal: (a), (b), (c) and (d). For the reasons set out below, we have decided to grant permission to appeal and uphold the appeal in relation to appeal ground (d), the amended ground, which contended that the Commissioner erred in being satisfied that the Agreement had been genuinely agreed to by the employees covered by the agreement. In the circumstances it is unnecessary for us to deal with the remaining grounds of appeal.

Ground 4(d) – being satisfied that the Agreement had been genuinely agreed to by the employees covered by the agreement

[19] Section 186(2)(a) provides as follows:

“(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”

[20] Section 188(a)(i) provides as follows:

“…An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval steps).”

[21] Section 180(5) provides as follow:

“(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”

[22] Satisfaction under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise agreement. If s.180(5) is not satisfied, then the Commission cannot be satisfied re: s.188 (a)(i) and consequently the Commission cannot be satisfied that the Agreement has been ‘genuinely agreed’ as required by s.186(2)(a).

[23] The meaning of s.180(5) and what is required, particularly in regards to s.180(5)(a) was subject to detailed consideration in the recent decision of his Honour Justice Flick in the One Key decision and reasoned as follows:

“[91]… A failure to comply with a “[p]re-approval requirement”, in this case the failure to “take all reasonable steps” for the purposes of s 180(5), precluded the proposed Agreement from being an agreement susceptible of subsequent approval by the Commission. And a failure to take the necessary steps to secure the agreement of those “employees covered by the agreement” (s 186(2)(a)) – be it genuine agreement or otherwise – again precluded the proposed Agreement from being an agreement in respect to which the Commission need reach any state of satisfaction.”

…

[97]… Section 180(5) is not a section which is expressed in terms of whether the Commission is “satisfied” that “all reasonable steps” have been taken. That subsection is expressed as a statement of objective fact as to that which must occur before approval is sought. If “all reasonable steps” have not in fact been taken, the Commission lacks power to “approve” the agreement.”

…

[103] The requirement imposed by s 180(5) to “take all reasonable steps to ensure that … the terms of the agreement, and the effect of those terms, are explained” is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case; but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee.”

[24] We agree and with respect, adopt his Honours reasoning.

[25] The CFMEU submit that the only evidence before the Commissioner as to the steps taken to explain the terms of the Agreement, and the effect of those terms, to relevant employees were the answers to the questions 2.6 and 3.5 of the Form F17. The answer provided by the Respondent to this question in the Form F17 at 2.6 was as follows:

“A meeting was held on 03/07/2017 whereby the employer and all employees discussed the Enterprise Agreement in detail, reviewing each clause of the Agreement. Prior to the meeting held on the 03/07/07, the Corporate Services Manager was available via email, office phone, mobile phone and in person to discuss any queries that the employees may have of the Agreement.”

[26] Question 3.5 of the Form F17 statutory declaration filed with the application for approval of the Agreement asks the employer the following question “does the agreement contain any terms that are less beneficial than equivalent terms and conditions in the reference instrument(s) listed in questions 3.1 and 3.2 and/or does the agreement confer any entitlements that are not conferred by those reference instruments?” to which the employer answered “No”.

[27] Having regard to this information, the CFMEU submitted the following:

“The Commission at first instance could not have been satisfied that the Respondent complied with section 180(5) of the Act because the only evidence before the Commission was that the Respondent and its employees had reviewed each clause of the Agreement. There was no evidence to suggest that the Respondent:

(a) explained the effect of any of the clauses in the Agreement;

(b) expressly identified any clauses of the Agreement which had particular application to the employees who were going to be covered by the Agreement;

(c) expressly identified provisions of the Agreement which varied from the Award; and

(d) provided any guidance as to how the Agreement would affect the personal interests of the employees who were going to be covered.

Further, in its F17, the Respondent declared that the Agreement did not contain any terms less beneficial than the Award. As submitted previously, there are a number of terms in Agreement which are less beneficial than the Award. The Respondent’s declaration at paragraph 3.5 of the F17 demonstrates a lack of understanding by Respondent about how the terms of the Agreement would work. As such, it was impossible for the Respondent to have been able to accurately explain the effect of the terms of the Agreement to its employees.

Accordingly, in being satisfied that the requirements of section 186 of the Act were met, the Commission fell into error.” 17

[28] As to whether the Agreement was genuinely agreed to by the employees covered by it, the Respondent submitted the following:

“The Respondent truly believes that it was (genuinely agreed). In support of its notion that it was not, the Appellant makes reference to the evidence of steps taken as stipulated in the Form F17, Employer Statutory Declaration….. “During a meeting held on 04/07/2017 the employer and employees discussed the Enterprise Agreement in detail, reviewing each clause of the agreement. Prior to the meeting on the 04/07/17, the Corporate Services Manager was available by email, phone and in person to discuss any queries that the employees may have of the Agreement”.

The pre-approval process is not disputed; but the issue is around ‘reasonable steps’. Perhaps the Respondent was too succinct in answering the question on the F17 form, so to elaborate…

The meeting was held at the employees’ worksite, which at the time was in Karratha – there were no employees in Perth at the time. The Corporate Services Manager (CSM) flew from Perth to Karratha to meet with the employees face to face. As previously mentioned the employees’ classification ranged from CW1(d) to CW4L/H and all had considerable experience in their fields of expertise. This was also not the first time they had been involved in an Enterprise Agreement Approval process. This was, however, not taken for granted by the Respondent but seen as an added advantage. The employees had all received a copy of the Enterprise Agreement beforehand to review. The Agreement was ‘discussed’ and ‘reviewed’ – this was a two-way collaborative conversation. By its very nature the terms ‘discussed’ and ‘review’ mean to debate, examine thoroughly, talk through, investigate etc, etc. And this is exactly what took place – a robust discussion and review of the Agreement. The CSM did not merely read the Clauses of the Agreement to the employees without any input. The clauses were read, reviewed, discussed and clarified. Was the Agreement reviewed clause by clause against the Award v Agreement and can the CSM remember every single detail of the conversation and discussions? No – it was a lengthy discussion and minutes were not taken. The employees knew that they were covered under the Building and Construction General On-Site Award 2010 (MA000020). They knew this from previous knowledge/experience and from the discussion that took place around the Agreement at the meeting. Some clauses were compared Award to Agreement - one in particular that stands out, around which a lot of discussion did take place, was concerning the Wage Rates and Allowance Entitlements. The CSM did mention that the Award and NES formed the baseline and that nothing in the Agreement would be less than what they were entitled to under the Award or NES. And at the time the CSM believed this to be the case.” 18

[29] Further, the Respondent submits, in effect, that the circumstances in the One Key decision can be distinguished from the facts in this matter as the action of the Applicant in One Key involved the executive assistant emailing and then phoning employees and reading the agreement. In One Key this was considered a mere formality which did not satisfy the requirements. In contrast the Respondent submits that at the time they thought it was appropriate and sufficient to:

“(i) provide the employees with a copy of the Agreement;

(ii) allow them to peruse it at leisure and contact the CSM if they had any queries;

(iii) meet with the employees face to fact [sic] to review and discuss the Agreement;

(iv) be satisfied that the employees’ concerns had been dealt with and that they were satisfied with the content of the Agreement.” 19

[30] The Respondent also submits that in the One Key decision there were three employees who had limited employment experience and were covered by a limited number of Awards yet they approved an agreement that would cover employees falling within a diverse range of Awards and classifications of which they had no experience. In contrast, in this matter, the workforce was representative of all the job classifications to be covered by the Agreement and had extensive knowledge of all of the job classifications to be covered by the Agreement. In contrast to One Key, the Shamrock Civil employees were knowledgeable and experienced in the classifications they were voting on and there was only one Award that was applicable.

Consideration

[31] The Respondent’s answer to question 2.6 of the Form F17 as to the steps taken to explain the terms of the Agreement, and the effect of those terms, to relevant employees is extracted above at paragraph [25]. Depending on the circumstances, this could well be enough to satisfy the statutory requirement. As his honour Justice Flick said, whatever steps may be necessary will depend upon the facts and circumstances of each particular case. 20

[32] In this matter, the Applicant answered “no” in respect to questions 3.5 and 3.6 of the Form F17 stating that there were no more beneficial terms or less beneficial terms in the Agreement compared to the Award. It is patently clear that both answers do not accord with the factual situation. The reality is that there are some more beneficial terms in the Agreement, for example higher base rates of pay. It is also apparent that there are a significant number of less beneficial terms. In the Decision at first instance the Commissioner considered a number terms of the Agreement which the CFMEU considered to be less beneficial and other issues identified by the Commission in its initial assessment of the Agreement. 21 The Commissioner did not consider a number of the terms identified by the CFMEU to be a detriment to employees. However, the Commissioner found that no requirement in the consultation term to provide written information, entitlements for shiftworkers, redundancy, meal breaks and rest periods, the absence of a minimum engagement on Saturdays and public holidays, reduced notice of annual shut down and averaging of hours over a 12 month period were either detrimental to employees or may result in scenarios where employees may be worse off under the Agreement. A number of undertakings were sought to satisfy the Commissioners concerns in relation to the BOOT.

[33] It is important to note that the Form F17 is a statutory declaration as to what the Applicant declares that they have done to satisfy the various requirements of the legislation. While in some circumstances an Applicant will incorrectly answer question 3.4 and/or question 3.5 because they have omitted one or some items from the list, and because the omitted items are not particularly significant this may not necessarily be a cause for concern. However, in this case a declaration that there are no less beneficial terms does give rise to concern as it is apparent that in fact there were a significant number of less beneficial terms. Aside from the obvious concern that the declarant has made a declaration which is untrue, it gives rise to a further concern as to the nature of the explanation given to employees as to terms of the Agreement and the effect of those terms. That is, it at least raises a real question as to the explanation to employees about the terms of the Agreement and in particular the effect of those terms, in circumstances where the employer is attesting that the agreement has no less beneficial terms.

[34] We are of the view that where the answer to the question less beneficial terms’ was so clearly at odds with the factual situation, this should have led to the Commissioner to make further enquiries. While we understand the focus of the CFMEU during the proceedings was not on that aspect, this does not alter the fact that the Commissions statutory obligation is to properly assess all of the approval requirements, to the standard set by Justice Flick. We have sympathy for the fact that the decision in One Key was not handed down until after the approval of this Agreement.

[35] As we have mentioned, the Respondent has made further submissions regarding the explanation provided to the relevant employees in this case. Those submissions are set out above. We note that the Respondent submits and we accept that the employees were aware that they were covered by the Building and Construction General On-Site Award 2010. We also accept that some Award clauses and Agreement clauses were compared. We also accept that the knowledge and experience of employees is relevant when determining whether the employer has taken ‘reasonable steps’. However, importantly, the Respondent concedes that “The CSM [Corporate Services Manager] did mention that the Award and NES formed the baseline and that nothing in the Agreement would be less than what they were entitled to under the Award or NES. And at the time the CSM believed this to be the case”. 22

[36] However, it is apparent that there are in fact a number of significant reductions in the Award entitlements. In light of the concession, it is apparent that the explanation to employees was quite simply, wrong. We accept that an explanation of the terms of the Agreement and the effect of those terms to employees may not be perfect and may, depending on the circumstances, still satisfy the requirement of s.180(5) of the Act. However, an explanation which is clearly misleading (as in this case) cannot possibly meet the requirement. We note that the Commissioner did not have the benefit of the additional submissions and the concession.

[37] Where the Commission is provided with a statutory declaration which is at odds with the real position in important respects, a number of practical difficulties can be raised in determining an application for approval. The applicant stated in its application 23 that there were no reductions on the award when in fact there were, which gradually became apparent during the proceedings at first instance. Such an employer understanding would presumably lead it to provide the same misleading explanation to employees, and it is now conceded by the employer that this was the case. As in this present matter this may well have implications in many proceedings for the question of whether or not there was genuine agreement within s.186(2)(a), and therefore whether the agreement can be approved, which the Commission must endeavour to examine in greater detail as the real facts become apparent.

[38] In the circumstances we conclude that the Commissioner erred in concluding that the requirements of s.180(5) of the Act were met. Satisfaction of the requirements under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise agreement. If s.180(5) is not satisfied, then the Commission cannot be satisfied of the requirements of s.188(a)(i). Consequently the Commission cannot attain satisfaction of the requirement at s.186(2)(a). For these reasons we uphold this ground of appeal.

[39] Accordingly, we grant permission to appeal. For the reasons given we are satisfied the Commissioner erred in concluding that the requirements of S.180(5) were met. We have therefore determined to uphold the appeal and quash the Decision.

[40] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld in respect to the fourth ground of appeal.

(3) The Decision ([2017] FWCA 4831) is quashed.

VICE PRESIDENT

Appearances:

K Singh for the Construction, Forestry, Mining and Energy Union

V Guild for the Respondent

Hearing details:

2017

Melbourne:

14 November

Final written submissions:

13 February 2018

Printed by authority of the Commonwealth Government Printer

<PR601491 >

 1   [2017] FWCA 4831.

 2   [2016] FWCFB 8413.

3 [2017] FWCA 4831 at [5].

 4   [2017] FWCA 4831 at [72].

 5   Tweed Valley v Ross (1996) 137 ALR 70.

 6   Construction, Forestry, Mining and Energy Union v Concrete Constructions (WA) Pty Ltd [2017] FWCFB 3912.

 7   Appellant’s Outline of Submissions, filed 24 October 2017 at [7] – [8].

 8   [2017] FWCFB 3912 at [4]; citing CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [5] – [7], MUA v Toll Energy Logistics Pty Ltd [2015] FWCFB 7272; 254 IR 353 at [95]-[98], CFMEU v MGI Piling (NSW) Pty Ltd [2016] FWCFB 2654; 260 IR 244 at [4] , TWU v ALDI Foods Pty Limited,[2016] FWCFB 91; 255 IR 248 at [22] – [23] CFMEU v CSRP Pty [2017] FWCFB 2101 at [8] – [13].

 9   Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd, [2017] FCA 1266.

 10   Appellant’s Submissions in relation to leave to add an additional ground of appeal, filed 30 January 2018, [4] – [13].

 11   Respondent’s Submissions in relation to leave to add an additional ground of appeal, filed 13 February 2018, [2] – [3].

 12   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 13   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].

 14   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 15   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

 16   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.

 17   Appellant’s Further Submissions, filed 22 November 2017 at [14] – [16].

 18   Respondent’s Further Submissions, filed 13 December 2017 at [7].

 19   Respondent’s Further Submissions, filed 13 December 2017 at [9] (a) (i) - (iv).

 20   [2017] FCA 1266 at [103].

 21   [2017] FWCA 4831 at [7] – [8].

 22   Respondent’s Further Submissions, filed 13 December 2017 at [7].

 23   Question 2.6 on the Form F17