DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
v
Townsville Marine Logistics Pty Ltd & Ors
(C2019/1646)

Appeal against decision [2019] FWCA 1147 of Commissioner McKinnon at Melbourne on 21 February 2019 in matter number AG2018/7310 – application for approval of enterprise agreement – permission to appeal refused.

Introduction and background

[1] On 24 December 2018, Townsville Marine Logistics Pty Ltd (TML) made application to the Fair Work Commission (Commission) under s 185 of the Fair Work Act 2009 (Act) for the approval of the Townsville Marine Logistics Enterprise Agreement 2018 (Agreement), which was made on 14 December 2018.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) accepts that it was not, at any time, a bargaining representative for the Agreement. At first instance the CFMMEU requested permission to be heard and to make submissions about the application for approval of the Agreement. However, on 15 February 2019 the CFMMEU notified the Commission that it did not wish to press its request to be heard in relation to TML’s application for approval of the Agreement. Commissioner McKinnon proceeded to determine the application for approval of the Agreement on the basis of the material filed by TML and the five employee bargaining representatives. The Commissioner was satisfied that “each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met”, and approved the Agreement on 21 February 2019, to commence operating on 28 February 2019 (Decision). 1 The Agreement has a nominal expiry date of 20 February 2023.

[3] The Agreement covers TML and its employees who are in engaged in the classifications of Marine Tech 2, Marine Tech 3 and Marine Tech 4. Those classifications are equivalent to Grades 2, 3 and 4 respectively of the Stevedoring Industry Award 2010 (Award). The descriptions of Grades in the Award are incorporated into the Agreement. Employees in each classification under the Agreement may be required to undertake work relevant to their skills and position as directed from time to time in support of TML’s operations and development of its stevedoring business. 2

[4] At the time the Agreement was made, there were five employees covered by the Agreement. Four of those employees cast a valid vote and voted to approve the Agreement. 3 Each of the five employees covered by the Agreement at the time it was made filed in the Commission a Form F18A – statutory declaration of employee representative in relation to application for approval of an enterprise agreement, declaring that:

•  they were a bargaining representative for the Agreement because one or more employees appointed them in writing to represent their industrial interests in accordance with s 176(1)(c) of the Act;

•  the employees they represent support the approval of the Agreement by the Commission; and

•  they agree with the matters contained in TML’s statutory declaration (Form F17) that are within their knowledge.

[5] On 14 March 2019, the CFMMEU lodged an appeal against the Decision pursuant to s 604 of the Act. The notice of appeal filed by the CFMMEU sought an order that the Decision be stayed, pending determination of the appeal. The stay application was subsequently abandoned by the CFMMEU on 28 March 2019, the day before it was scheduled to be heard by the Commission.

[6] We heard the application for permission to appeal, together with full argument on all grounds of appeal, on 18 April 2019. In addition, we have considered the supplementary submissions filed by the parties (with leave) following the hearing of the appeal.

Standing to appeal

[7] Section 604(1) of the Act permits a “person aggrieved” to make an application for permission to appeal a decision of the Commission.

[8] In CEPU and AMWU v Main People Pty Ltd, 4 a Full Bench of the Commission considered whether a union which was not a bargaining representative in relation to the negotiation of an enterprise agreement had standing under section 604(1) of the Act to prosecute an appeal of a decision to approve the enterprise agreement:

“[7] The appellants have the right to represent employees under the terms of the Agreement. Moreover, given the nature of the respondent’s business, and the industry within which it operates, we are satisfied that it is likely that some members of the appellants will be employed by the respondent in the future, in classifications covered by the Agreement. In the circumstances of this case we consider that this gives the appellants an interest in the decision to approve the Agreement beyond that of an ordinary member of the public. Accordingly, we are satisfied that the appellants have standing to appeal the decision to approve the Agreement.”

[9] The CFMMEU submits that it is a “person aggrieved” by the Decision to approve the Agreement because it has the right to represent employees who will be employed to perform work under the terms of the Agreement and, given the industry within which the Agreement will operate, it is likely that some members of the CFMMEU will be employed by TML in the future, in classifications covered by the Agreement.

[10] TML contends that the CFMMEU does not have standing to appeal the Decision. TML relies on the requirement to consider the particular circumstances of the case, as explained in CEPU and AMWU v Main People Pty Ltd at [7], and contends that the CFMMEU’s election not to be heard at first instance in relation to the application for approval of the Agreement means that it is not now a “person aggrieved” in the relevant sense.

[11] We accept that although the CFMMEU was not a bargaining representative in relation to the negotiation of the Agreement, it has the right to represent employees who will be employed to perform work under the terms of the Agreement and, in light of the industry within which the Agreement will operate, it is likely that some members of the CFMMEU will be employed by TML in the future, in classifications covered by the Agreement. We also accept that the CFMMEU is a “person aggrieved” by the Decision within the meaning of s 604 of the Act. The CFMMEU is aggrieved by the Decision because it believes the Agreement should not have been approved and the approval will have a negative impact on any of its members who are employed by TML in the future, in classifications covered by the Agreement. In that broad sense, the approval of the Agreement prejudices the CFMMEU’s interests. Notwithstanding the CFMMEU’s decision not to press its request to be heard in relation to the application for approval of the Agreement, we are satisfied that the CFMMEU’s grievance in relation to the Decision is genuine.

Permission to appeal

[12] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 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 ...” 6

[13] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified in the Act. 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 permission is refused. 7 These considerations should not be seen as fetters on the broad discretion conferred by s 604(2), but as examples of circumstances which will usually be treated as justifying the grant of permission.8 It will rarely, if ever, be appropriate to grant permission unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error.

Should permission to appeal be granted?

CFMMEU’s conduct at first instance

[14] On 30 December 2018, the CFMMEU sent the following request to the Brisbane registry of the Commission:

“Good Morning

The MUA kindly requests all documentation in regards to the below agreement, as lodged, including but not limited to the F16, F17, NERR Agreement. The MUA has an interest in the Agreement.

AG2018/7310

Townsville Marine Logistics Pty Ltd

Application for approval of the Townsville Marine Logistics Enterprise Agreement 2018

Stevedoring industry

Thank you”

[15] On 4 January 2019, an Agreement Assessor from the Commission’s Agreements Team responded as follows to the CFMMEU’s request:

“Dear Mr Cope,

Please find attached the F16, F17 and Notice of Employee Representational Rights lodged for the above mentioned Agreement as requested. It is noted that the MUA is not listed as a Union Bargaining Representative at question 4.2 of the Form F16 application in this matter.

Should the MUA not be able to establish their status as a bargaining representative for this enterprise agreement or the MUA is not otherwise permitted by the presiding Member to be heard or to make submissions, you are reminded that the MUA will not be included in any correspondence including notification of the Member’s intention to determine the application.

You should refer to the Agreements in Progress page of the Commission’s website for information on current agreement approval applications. If no person contacts the Commission wishing to be heard, applications may be approved or refused no earlier than seven business days from the date that the application was lodged.”

[16] On 21 January 2019, a solicitor for the CFMMEU sent the following correspondence to the Commission:

“Dear Agreements Team

We act for the Maritime Union of Australia Division of the CFMMEU in relation to the proposed Agreement in AG2018/7310.

The MUA is not a bargaining representative for this proposed Agreement. The MUA requests permission to be heard and to make submissions about the determination of this Agreement.

We request directions be issued to identify a process for our client [to] seek permission to be heard and, if permission is granted, to make submissions about the approval of the proposed Agreement.”

[17] On 22 January 2019, an Agreement Assessor from the Commission’s Agreements Team responded as follows to the solicitor for the CFMMEU:

“Dear Mr Quinn,

Thank you for your e-mail.

We confirm that the matter has not yet been allocated to a Member of the Commission.

We acknowledge receipt of your request and confirm that we have placed a copy of it on the file for this matter.”

[18] On 11 February 2019, a Notice of Listing was sent by the Commission to the solicitor for the CFMMEU, informing the CFMMEU that the application for approval of the Agreement “is listed for Hearing regarding the Union’s right to be heard, before Commissioner McKinnon” in Melbourne at 10am on Monday, 18 February 2019 with a video link to the Commission in Brisbane.

[19] At 5:15pm on Friday, 15 February 2019, the CFMMEU’s solicitor sent an email to the Commissioner’s Associate (cc TML’s solicitor) in the following terms:

“Dear Associate

Could you please inform the Commissioner that the MUA (CFMMEU) does not wish to press its request to be heard in relation to the above application and gives notice to the Commission that it does not require the hearing listed for Monday to proceed. Our apologies for the late provision of this notice.

Our client, however, anticipates surely providing correspondence to the Commission (and the respondent) identifying issues it considers important to bring to the attention of the Commission as it conducts its assessment of the proposed agreement.”

[20] The Commissioner’s Associate responded as follows to the CFMMEU’s solicitor at 3:28pm on Monday, 18 February 2019:

“Dear Mr Quinn,

Thank you for your email of 15 February 2019 advising that the CFMMEU does not press its request to be heard in relation to the application.

Given the advice, there is no need to provide any further correspondence to the Commission in relation to the application.”

[21] The CFMMEU did not provide any further correspondence or submissions to the Commission in relation to the application for approval of the Agreement before it was approved on 21 February 2019.

[22] No evidence was filed in the appeal to explain why the CFMMEU decided, at the last moment, not to “press its request to be heard in relation to the application” for approval of the Agreement. Counsel for the CFMMEU submitted that her client took this course because it was aware of a practice by the Commissioner of only permitting a non-bargaining representative to make submissions about the better off overall test (BOOT), but this does not explain why the CFMMEU did not either request to be heard only in relation to the BOOT or press its request to be heard in relation to all issues concerning the application for approval of the Agreement and attempt to persuade the Commissioner to adopt a different approach to her usual practice in this matter.

[23] We consider that it is strongly in the public interest for interested persons to raise issues at first instance when they have been given an opportunity to do so and not to hold back for an appeal arguments they should have made at first instance. It is not the function of an appeal process to provide a further opportunity for an unsuccessful party to redress deficiencies in the case the party advanced (or failed to advance) at first instance. As the High Court observed in Metwally v University of Wollongong: 9

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

[24] In Coulton v Holcombe, 10 Gibbs CJ, Wilson, Brennan and Dawson JJ considered these issues in the context of public interest considerations (references omitted):

“… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …

The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:

‘the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court’.

… the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.”

[25] Gibbs CJ, Wilson, Brennan and Dawson JJ also addressed the exception to this general principle (references omitted): 11

“… In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards. In O'Brien v. Komesaroff, Mason J., in a judgment in which the other members of the Court concurred, said:

‘In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided. However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.’ ”

[26] In the present case, the CFMMEU was given an opportunity to present its case as to why the Commissioner should exercise her discretion under s 590 of the Act to hear from the CFMMEU in relation to the application for approval of the Agreement. At 5:15pm on the business day prior to the hearing, the CFMMEU, through its solicitors, notified the Commission that it did not “wish to press its request to be heard”. In circumstances where it is apparent from the correspondence from the CFMMEU’s solicitors dated 21 January 2019 that the CFMMEU appreciated it needed permission to be granted in order “to make submissions about the approval of the proposed Agreement”, there was no proper basis for the CFMMEU’s solicitors to make the following statement in the final paragraph of their email dated 15 February 2019:

“Our client, however, anticipates shortly providing correspondence to the Commission (and the respondent) identifying issues it considers important to bring to the attention of the Commission as it conducts its assessment of the proposed agreement.”

[27] In any event, no further correspondence or submissions were received from the CFMMEU prior to the Agreement being approved on 21 February 2019.

[28] If the CFMMEU had taken its opportunity to argue why it should be heard at first instance, the Commissioner would have been in a position to consider any submissions and evidence put forward by the CFMMEU, together with any response by TML. It is clear from the appeal grounds relied on by the CFMMEU in this appeal that many of the arguments raised by the CFMMEU would have been met with further evidence from TML, had those issues been raised at first instance. For example, there is little doubt that the numerous appeal grounds relating to the adequacy of the explanation given by TML to its employees about the terms of the Agreement, and the effect of those terms, would have been met with further evidence from TML about the explanation it gave to its employees and the relevant characteristics and circumstances of those employees, had those issues been raised by the CFMMEU at first instance. This is not a case where the relevant facts are, or could be, admitted by the CFMMEU and they are not beyond controversy. 12 There are no exceptional circumstances which warrant issues being raised for the first time on appeal.

[29] Further, if the CFMMEU had taken up the opportunity afforded to it to be heard on its application pursuant to s 590 of the Act, the matter could have been disposed of in a manner consistent with the Commission’s statutory obligation to perform its functions and exercise its powers in a way that is both “fair and just” and “quick, informal and avoids unnecessary technicalities”. 13

Grounds of appeal

[30] In its amended notice of appeal, the CFMMEU relies on the following grounds of appeal:

1. The Commissioner erred in that she failed to give reasons or adequate reasons for her findings that the Agreement met each of the relevant requirements of ss. 186, 187, and 188 of the Fair Work Act 2009 (Cth) (FW Act).

2. The Commissioner erred in finding that the requirements of s. 180(5) had been complied with, in circumstances where the employer had not taken all reasonable steps to explain the terms of the Agreement, and the effect of the terms, to the relevant employees.

Particulars

No steps or no reasonable steps were taken by the employer to explain the effect of a number of the terms of the Agreement to employees. The terms in respect of which all reasonable steps were not taken include those listed at Schedule A to this notice of appeal.

3. The Commissioner erred in failing to inform herself of, and/or to take into account, relevant characteristics and circumstances of the employees who voted on the Agreement for the purpose of s. 180(5), including:

(a) the category of employment under which each employee was engaged;

(b) whether the employees had qualifications or training in the stevedoring industry;

(c) whether the employees had previous experience working in the stevedoring industry;

(d) whether the employees had knowledge of or understanding of industrial conditions in the stevedoring industry;

(e) the extent to which the employees had experience of bargaining processes and industrial knowledge and expertise in order to evaluate the difference between the Award and the Agreement, and to engage effectively in the bargaining process; and

(f) the fact that the employees were acting as their own bargaining representatives;

for the purpose of assessing whether the requirements of s. 180(5) of the FW Act were met.

4. The Commissioner erred in finding that s. 186(2)(d) was satisfied in that the Agreement satisfied the requirements of the better off overall test (BOOT) in
s. 193 of the FW Act.

Particulars

See Schedule B to this Notice of Appeal. Having regard to the terms and effect of clauses in the Agreement which are listed in Schedule B, the Agreement did not satisfy, and was not capable of satisfying, the BOOT.

5. The Commissioner constructively failed to exercise her jurisdiction in that she failed to consider whether the Agreement was genuinely agreed by the employees covered by the Agreement within the meaning of s 186(2)(a) and 188(c) in circumstances where:

(a) clause 2 of the Agreement creates categories of employment differing from the Award, being Full Time Employee, Guaranteed Wage Employee, and Supplementary Casual Employee as defined;

(b) each of the new categories each has significantly different terms of employment both compared to the award and compared to each other;

(c) the Commissioner did not ascertain which of the employment categories in clause 2 of the Agreement the five employees belonged to and whether, as a consequence, those employees were sufficiently representative of the future workforce so as to be capable of genuinely agreeing to the Agreement.

6. [Withdrawn]

7. The Commissioner erred in the exercise of her jurisdiction, and exceeded her jurisdiction, in purporting to approve the Agreement in circumstances where there was no genuine agreement within the meaning of s. 188 of the FW Act because:

(a) the requirements of s. 180(5) were not met;

(b) the requirements of s. 186(2)(d) were not met; and

(c) the requirements of s. 188(c) were not met.

[31] In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 14 We heard full argument on each of the grounds of appeal. We are not satisfied that any of the grounds of appeal are strong. The Commissioner had detailed information available to her in the form of an application for approval of the Agreement (Form F16), a detailed statutory declaration (Form F17) made by Mr Mark Pope, Operations Director of TML, in support of the application for approval, and five statutory declarations made by the employees who were covered by the Agreement at the time it was made. Each of those employees declared that the information contained in Mr Pope’s statutory declaration was correct, insofar as it was within their knowledge. Relevantly, that included information concerning the steps taken by TML to explain the terms of the Agreement, and the effect of those terms, to employees; the other steps taken by TML to ensure the Agreement was genuinely agreed by the employees; and the detailed explanation given by Mr Pope in relation to the improvements and reductions in the Agreement compared to the Award. The information available to the Commissioner provided the foundation for her conclusion that “each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met”.15 Further, having regard to the fact that the application for approval of the Agreement was not contested, we do not consider there is an arguable case that the Commissioner erred by failing to give reasons or adequate reasons for her findings.

Other considerations relevant to the application for permission to appeal

[32] The CFMMEU’s grounds of appeal raise an issue as to the proper construction of
s 193(1) of the Act. This issue arises in relation to clause 5.1(h) of the Agreement, which provides:

“The Flat Hourly Rates are intended to provide Employees with a benefit as compared with the Award and have been calculated taking into account the matters stated in clause (e) above. TML is committed to monitoring the amounts payable to Employees to ensure that each Employee receives payments that are greater than what they would have received if the Award applied to them, on the hours actually worked. The review will be conducted:

(i) for FTEs and GWEs, at the end of each twelve (12) week period or at the time of termination of the FTE's or GWE's employment if their employment ends at an earlier time; and

(ii) for SCEs, at the end of each six (6) week period or at the time of termination of the SCE's employment if their employment ends at an earlier time.

If the total amount payable under this Agreement to an Employee in respect of the review period is less than two (2) % greater than the amount that would be payable to them if the Award had applied to them during that time, TML will make a top-up payment to the Employee. If required, the top-up payment will result in the total payment to the Employee in respect of the review period being two (2) % greater than the amount they would have received if the Award had applied to them.”

[33] The “Award” is defined in clause 1.5(c) of the Agreement to mean “the Stevedoring Industry Award 2010 as at the date the application for approval of this Agreement is made to the Fair Work Commission.”

[34] The CFMMEU submits that the assessment of the BOOT under s 193 of the Act requires consideration of the position of employees over the life of the Agreement. 16 The CFMMEU also submits that Award rates will in all probability rise during the four year nominal term of the Agreement by significantly more than 2%, with the result that it is probable that employees will be worse off by operation of clause 5.1(h) of the Agreement than they would have been under the Award because there is no requirement under the Agreement for rates of pay to increase during the operation of the Agreement and the comparison required by clause 5.1(h) is with Award rates of pay as at 24 December 2018.17

[35] The proper construction of s 193(1) of the Act was considered by a Full Bench of the Commission in the Loaded Rates Agreements decision at [111]: 18

“The submission made by the ARA that the requirement to assess the BOOT as at the “test time” (being the time at which the application for approval of the relevant agreement is made) means that only the operational circumstances of the employer (such as its work rosters) as at that time may be considered is also rejected. The requirement to assess the BOOT in respect of prospective as well as existing employees tells against the adoption of such an approach. Because, as the Full Court decision in John Holland made clear, it is open to make an enterprise agreement covering classifications, occupations and work locations that are not part of the employer’s operations as at test time, the requirement to assess the BOOT with respect to prospective employees who might fall within such future classifications, occupations and/or work locations must necessarily take into account how the agreement might in practice apply when such employees are engaged in the future. The application of the BOOT would be rendered nonsensical and ineffective with respect to such prospective employees if only the employer’s existing operations, which did not involve the use of prospective employees in the categories permitted by the agreement, could be taken into account. The statutory purpose of the requirement to assess the BOOT as at the test time is, we consider, to permit rates of pay and other conditions of employment in the agreement and the relevant award to be compared at a fixed point of time when the terms of both are known. Absent such a temporal requirement, the application of the BOOT would require speculation about future changes to the provisions of the award, in circumstances where the agreement to be assessed may also involve agreed changes such as increases in rates of pay at defined intervals, and would involve the impossible task of making multiple comparisons for the whole of the period in which the agreement remains in operation.”

[36] We agree with these observations by the Full Bench in the Loaded Rates Agreements. It follows that the BOOT analysis does not require there to be speculation about what might happen to Award rates of pay during the four year nominal term of the Agreement.

[37] In addition, we do not consider that this appeal raises issues of importance and general application, nor is the Decision at first instance counter intuitive, it does not manifest an injustice, it is not attended with sufficient doubt to warrant its reconsideration, and the legal principles applied by the Commissioner do not appear disharmonious when compared to other recent decisions dealing with similar matters.

Conclusion

[38] Our broad evaluative judgment is that permission to appeal is not in the public interest and should not be granted in this case. The failure of the CFMMEU to take up the opportunity afforded to it to be heard on its application pursuant to s 590 of the Act weighs heavily against the proposition that granting permission to appeal is in the public interest. Further, there are no other considerations, whether considered in isolation or together, which warrant the exercise of our discretion to grant permission to appeal.

[39] Accordingly, permission to appeal is refused and the appeal is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

C Howell of counsel for the Appellant.

F Parry QC and M Minucci of counsel for the Respondent.

Hearing details:

2019.

Sydney:

April 18.

Printed by authority of the Commonwealth Government Printer

<PR708644>

 1   [2019] FWCA 1147.

 2   Agreement at Schedule 1.

 3   Form F17 – statutory declaration made by Mark Pope, Operations Director, on 21 December 2018 at [2.10].

 4   [2014] FWCFB 8429; see, too, AWU v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501 at [21]- [23].

 5   O’Sullivan v Farrer (1989) 168 CLR 210, 216-217 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].

 6   [2010] FWAFB 5343 at [27].

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

 8   Wan v AIRC (2001) 116 FCR 481; Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [80]-[81].

 9   (1985) 60 ALR 68 at [7].

 10   (1986) 162 CLR 1 at 7-11.

 11   (1986) 162 CLR 1 at 7-8.

 12   Coulton v Holcombe (1986) 162 CLR 1 at 8, adopting O’Brien v Komesaroff (1982) 150 CLR 310 at 319.

 13   Section 577 of the Act.

 14   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

 15   Decision at [2].

 16   CFMMEU’s outline of submissions dated 29 March 2019 at [15].

 17   Ibid at [16].

 18   [2018] FWCFB 3610.