[2019] FWCFB 6212

The attached document replaces the document previously issued with the above code on 6 September 2019.

“The” inserted at beginning of paragraph [63]

Associate to Vice President Hatcher

Dated 9 September 2019.

Fair Work Act 2009
s.604—Appeal of decision

Transport Workers’ Union of Australia
v
Viva Energy Australia Ltd
(C2019/2582)

Appeal against decision [2019] FWCA 2070 of Senior Deputy President Hamberger at Sydney on 29 March 2019 in matter numbers AG2018/7189, AG2018/7190, AG2018/7191 and AG2018/7192.

Decision of Vice President Hatcher and Deputy President Gostencnik

Introduction

[1] On 19 December 2018, Viva Energy Australia Pty Ltd (Viva Energy) filed applications under s 320 of the Fair Work Act 2009 (Cth) (FW Act) to vary a number of enterprise agreements, each of which contained a term requiring that employees be paid wages on a weekly basis. The proposed variation of each agreement would alter the frequency of payment of wages to employees covered by the instrument from weekly to monthly or, at the employer’s discretion, on a more frequent basis. Viva Energy is not covered by any of the agreements. In making the applications, Viva Energy maintained that each of the agreements was a “transferable instrument” that was likely to cover it because of the operation of s 313 of the FW Act.

[2] By the time the applications came on for hearing, the Commission had approved the ZIP Airport Services Pty Ltd - Brisbane Airport Enterprise Agreement 2019, 1 which makes provision for monthly payment of wages. When that agreement came into operation it resulted in one of the five agreements, the ZIP Airport Services Pty Ltd – Brisbane Airport Enterprise Agreement 2016,2 ceasing to operate. Consequently, Viva Energy did not press the application with respect to that agreement.

[3] ZIP Airport Services Pty Ltd (Zip) is covered by each of the other four agreements and is an associated entity of Viva Energy. Zip provides aviation fuel services to airlines operating at various airports throughout Australia.

[4] Viva Energy has proposed, as part of a business strategy that includes a rebranding, to employ Zip’s employees covered by the agreements. To this end, it has offered relevant Zip employees employment in the same position, on the same remuneration arrangements and conditions of employment which apply to their employment with Zip, and with full service continuity. 3 The employment would commence three months after the Commission issues orders varying the agreements in accordance with Viva Energy’s applications.4 The employment offers are however entirely conditional on the variation orders sought being made by the Commission, so that Zip employees will not be employed by Viva Energy pursuant to the offers if the orders are not made.5

[5] The Transport Workers’ Union of Australia (TWU) is entitled to represent the industrial interests of employees covered by the agreements the subject of the applications made by Viva Energy and is covered by each of the instruments. The TWU opposed the grant of Viva Energy’s applications to vary the agreements.

[6] By a decision published on 29 March 2019 (Decision), 6 Senior Deputy President Hamberger granted the applications and made orders varying the four remaining agreements in the manner sought by Viva Energy.7 The TWU seeks permission to appeal and appeals the decision and the orders. Its notice of appeal, in summary, contends that the Senior Deputy President erred in the following three respects:

(1) in finding that there was likely to be a transfer of business from Zip to Viva Energy entitling Viva Energy to apply under s 320(3)(a) of the FW Act to vary the transferable instruments, and accordingly that there was power to make the orders sought;

(2) in finding that the variations to the frequency of payment provisions of the instruments related to the “working arrangements” of the new employer’s enterprise for the purpose s 320(2)(c)); and

(3) in the exercise of his discretion by proceeding on erroneous findings as to:

•  productivity under s 320(4)(d);

•  economic disadvantage under s 320(4)(e); and

•  the public interest and the bargaining process under ss 320(4)(c) and (g).

Statutory framework

[7] Section 320 of the FW Act is part of a scheme of provisions concerning transfers of business contained within Pt 2-8. The object of Pt 2-8 is set out in s 309 as follows:

309 Object of this Part

The object of this Part is to provide a balance between:

(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and

(b) the interests of employers in running their enterprises efficiently;

if there is a transfer of business from one employer to another employer.

[8] What constitutes a “transfer of business” for the purpose of Pt 2-8 is defined in s 311(1) as follows:

311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;

(b) within 3 months after the termination, the employee becomes employed by the new employer;

(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;

(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

[9] Section 311(3)-(6) sets out the various types of “connection[s]” which are capable of meeting the requirement in s 311(1)(d). Viva Energy contended that the relevant connection existed pursuant to s 311(6), which provides:

New employer is associated entity of old employer

(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.

[10] Section 312(1) defines the expression “transferable instrument” as it is used in Pt 2-8. Relevantly, the definition includes an enterprise agreement approved by the Commission. Section 313(1) prescribes the circumstances in which a transferring employee and the employee’s new employer will be covered by a transferable instrument:

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

[11] Division 3 of Pt 2-8 empowers the Commission to make orders which have the effect of displacing the operation of s 313(1). Relevantly, ss 317 and 320(1)-(4) provide:

317 FWC may make orders in relation to a transfer of business

This Division provides for the FWC to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.

320 Variation of transferable instruments

Application of this section

(1)  This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

(2)  The FWC may vary the transferable instrument:

(a)  to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

(b)  to remove an ambiguity or uncertainty about how a term of the instrument operates if:

(i)  the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii)  the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or

(c)  to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer's enterprise.

Who may apply for a variation

(3)  The FWC may make the variation only on application by:

(a)  a person who is, or is likely to be, covered by the transferable instrument; or

(b)  if the application is to vary a named employer award -an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that the FWC must take into account

(4)  In deciding whether to make the variation, the FWC must take into account the following:

(a)  the views of:

(i)  the new employer or a person who is likely to be the new employer; and

(ii)  the employees who would be affected by the transferable instrument as varied;

(b)  whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(c)  if the transferable instrument is an enterprise agreement--the nominal expiry date of the agreement;

(d)  whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

(e)  whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

(f)  the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g)  the public interest.

The Decision

[12] After setting out some relevant background, evidentiary matters and statutory provisions, the Senior Deputy President concluded in the Decision that Viva Energy “is likely to be covered by the transferable instruments” 8 and therefore had standing to make the applications. In this regard, the Senior Deputy President reasoned as follows:

“[57] Whether the applicant is, or is likely to be, covered by the transferable instruments is a jurisdictional fact. In the circumstances of this case, the issue can be seen as whether it is likely that there will, in fact, be a transfer of business (for without such a transfer there will be no transferable instruments).

[58] The TWU submitted that the evidence discloses that if the orders to vary the enterprise agreements are not made, then the applicant will not proceed with the transfer of business. It referred in particular to the letters of offer to the transferring employees which provided that the employment with Viva Energy would only commence three months after any orders are made by the Commission under s 320 of the FW Act and was conditional upon such orders being made.

[59] On this basis, the TWU submitted, the transferable instruments were not likely to cover the applicant based on the terms of those instruments as they currently stand. The transferable instruments would only be likely to cover the applicant if the relevant orders were made and the transferable instruments varied.

‘If the transfer of business is dependent upon the applications being successful, the applications must fail, as the transferable instruments are not likely to cover the Applicant as at the date of the application, as the transfer of business will not take place without the orders being made. Put simply, the transferable instruments cannot be likely to cover the Applicant in circumstances where, in the absence of the variations being sought, the transfer will not occur.’ 

[60] In determining whether the transferable instruments are likely to cover the applicant, one must have regard to the totality of the evidence. Clearly the applicant would prefer that the variations it is seeking occur prior to any transfer of employment taking place. There is an obvious business rationale for having all the applicant’s employees on one payroll system. That is, I infer, the reason why it made the letters of offer conditional on the orders being made. However, it is equally clear that the applicant’s motivation for the transfer of employment from Zip to Viva Energy is not solely or even primarily to establish a single payroll system. I see no reason to believe that Mr Neville was being disingenuous when he wrote to the Zip employees about the benefits in creating ‘one, united aviation business’. These included presenting a uniform ‘face’ to the customer, and operating as a single organisation sharing common goals and values. Transferring Zip employees into the Viva Energy organisation also makes sense when one considers the history of the Zip business, its separation as a part of the Shell organisation and then its subsequent purchase by the Viva Energy group.” 9 [Endnote omitted]

[13] Next, the Senior Deputy President considered whether the proposed variations related to the working arrangements of Viva Energy’s enterprise. He concluded that the proposed variation to the frequency of payment provisions of the transferable instruments “related to” the “working arrangements” of Viva Energy’s enterprise for the purposes of s 320(2)(c) of the FW Act. 10

[14] The Senior Deputy President then gave consideration to the matters set out in s 320(4) which are to be taken into account and which inform the exercise of discretion to vary transferable instruments under s 320(2). Relevantly, for the purposes of matters raised in this appeal, the Senior Deputy President determined that it was appropriate to exercise his discretion to vary the transferable instruments in the manner sought by Viva Energy and, in so doing, the Senior Deputy President concluded that:

•  a majority of the employees who would be affected by the orders opposed them, primarily because the employees believed that the change to monthly pay would disadvantage them financially; 11

•  some disadvantage would be caused to employees as a result of changing payment frequency although that would be ameliorated in part by provision of a $250 Visa card; 12

•  Viva Energy did not deliberately mislead employees while it was negotiating the ZIP Airport Services Pty Ltd - Sydney ITP Enterprise Agreement 2018 and that the differing nominal expiry dates of the transferable instruments would greatly complicate accomplishing the goal of establishing a single payroll system for all Viva Energy employees through enterprise bargaining; 13

•  without the variations proposed, the transferable instruments would have a negative impact on the productivity of the new employer's workplace because it would require Viva Energy to incur the additional costs of operating a separate payroll system for transferring employees; 14

•  the cost impost of $280,000, together with the increased administrative complexity and inefficiency, with no offsetting benefit, in maintaining separate payroll systems would cause Viva Energy to incur significant economic disadvantage. This was despite the evidence of Viva Energy that the payroll system costs could not be considered a significant economic disadvantage in the context of its total operations; 15

•  there was a clear lack of “business synergy” between the transferable instruments and those instruments that currently apply to Viva Energy which would lead to additional costs and administrative inefficiencies; 16 and

•  although it is generally preferable and consistent with the objects of the FW Act to vary the provisions of an enterprise agreement through enterprise bargaining, it was not contrary to the scheme of the Act or otherwise contrary to the public interest to vary the transferable instruments in the manner sought. 17

Submissions

[15] In relation to the first appeal ground the TWU contended, in summary, that Viva Energy was not a person likely to be covered by the transferable instruments and therefore did not have standing to make the applications and the Senior Deputy President erred in concluding to the contrary. This was because, inter alia, the offers of employment that were made by Viva Energy to Zip’s employees were conditional. Employment would only commence, and consequently the transferable instruments would only cover Viva Energy, if the Commission acceded to Viva Energy’s application and made orders varying the transferable instruments. In these circumstances, the TWU contended that it could not be said, given the nature of the condition, that Viva Energy was likely to be covered by the transferable instruments at the time it made its applications.

[16] Viva Energy submitted, in summary, that the TWU’s contentions should be rejected because:

•  its argument proceeded on a narrow view of the operation of s 320, which was not warranted by the text, context, purpose and policy of the provisions;

•  its contentions sought to delimit the range of factual assessments and considerations that the Commission may take into account in finding the likelihood of the event occurring. Section 320(3) of the FW Act does not impose any statutory limitations on the matters that the Commission may, or may not, take into account when determining whether a person is likely to be covered by a transferable instrument;

•  there is nothing in the text, context or purpose of the provisions of the FW Act (or their subject matter and scope) which prohibits the Commission, in making an assessment of the likelihood of a transfer, assessing the likelihood that an order may be made under those provisions;

•  sections 320(1) and (3)(a) of the FW Act are concerned with a transferable instrument that covers, or is likely to cover, the new employer. The Commission may make a variation to a transferable instrument only on an application made by, inter alia, a person who is, or is likely to be, covered by the transferable instrument;

•  relevantly therefore, the Commission is empowered to vary a transferable instrument if it finds (as part of its fact-finding process) that it is likely that the transferable instrument will cover a new employer;

•  the word “likely” has its ordinary meaning and is one which has “various shades of meaning”, 18 and may mean “more probable than not”;19

•  there was evidence before the Senior Deputy President to support a finding that it is likely – in the sense of it being more probable than not, might well happen, a real or not remote chance – that Viva Energy will be covered by the transferable instrument, and specifically:

◦  the finding at [21]-[22] of the Decision which is not challenged by the TWU and which support his conclusions that Viva Energy is likely to be covered the transferable instruments;

◦  Ms Haydon’s evidence about the competitive advantage provided by the integration of the aviation business, a major growth area, into the Viva Energy Group; 20 and

◦  Viva Energy’s commitment to providing interest free loans, gift cards and other financial services to support Zip’s employees with the transition; 21

•  the Senior Deputy President was persuaded, on the evidence, that Viva Energy wanted or intended the transfers of employment to take place and so found that the proposed transfer was likely to take place;

•  the Senior Deputy President’s fact-finding process in this regard was unremarkable. It was an orthodox means of assessing the existence of the fact as to the likelihood of the event occurring; and

•  it was open to the Commission to consider the jurisdictional and merits issues of an application made under s 320(3)(a) at the same time and, where a condition was attached to the employment of the transferring employees by the new employer of the type which existed in this case, the Commission was in doing so entitled to reach a view about the prospects of success of the application in order to inform its consideration as to whether the new employer was likely to be covered by the relevant transferable instrument.

[17] In support of the second appeal ground, the TWU contended that, in the context of s 320(2)(c), the reference to the “working arrangements of the new employer's enterprise” must be understood to be a reference to the arrangements in place at the new employer's enterprise for the actual performance of the duties and responsibilities of employees. It contended the Senior Deputy President erroneously approached s 320(2)(c) on the basis that it was only necessary that the proposed variations “relate to” the working arrangements of the new employer or that they be “connected with” work or working. It contended that s 320(2)(c) requires that a variation enable a transferable instrument to operate in a way that is better aligned with the working arrangements of the new employer's enterprise, and it is not sufficient that a provision “relates to” or has a “connection” with work.

[18] Viva Energy contended that the expression “working arrangements” is one of widest application and import and should not be construed narrowly. It said that the subject “working arrangements” are those of the new employer's enterprise. “Enterprise” is defined in the Act as a “business, activity, project or undertaking”. It contended that this deliberate linking of the phrase “working arrangements” to the new employer's “enterprise” is a textual and purposive indicator that the provision is to be interpreted broadly, and extends beyond the terms and conditions of the method or performance of actual work. It submitted that the Senior Deputy President was correct to conclude that how employees are paid for their work is captured by the expression ‘working arrangements’, at least in the context of transfers of business. 22

[19] The TWU contended in relation to the third appeal ground that the Senior Deputy President erred in the exercise of his discretion under s 320(2) by misconstruing or misapplying a number of the mandatory considerations in s 320(4). In respect of productivity (s 320(4)(d)), the Senior Deputy President had wrongly treated the costs associated with maintenance of Viva Energy’s payroll system as relevant to the conception of productivity. The Senior Deputy President also found that significant economic disadvantage (s 320(4)(e)) would result to Viva Energy if the variations were not granted, a finding which was simply not open on the evidence and was expressly contradicted by Viva Energy’s own witness. As to the bargaining process and the public interest (s 320(4)(c) and (g)), the TWU submitted that the Senior Deputy President failed to take into account that the issue of pay frequency could have been dealt with in enterprise bargaining, and that employees were misled in such bargaining by a representation that they would be given the opportunity to vote on any proposal to change their conditions of employment if they were transferred from Zip to Viva Energy.

[20] In response, Viva Energy submitted that the TWU’s third ground of appeal only amounted to a complaint about the outcome rather than demonstrating any appealable error in the exercise of the discretion. In relation to productivity, the Senior Deputy President’s consideration was not confined to an assessment of cost but also took into account a freeing up of resources and other intangible benefits. It was also open to find that the costs impost to Viva Energy of running two payroll systems amounted to a significant economic advantage. In relation to the public interest and the bargaining process, Pt 2-8 expressly contemplated that the Commission might vary enterprise agreements despite it being possible for the employer and employees to bargain for the same variations, and the Senior Deputy President took into account that the variations sought could have been bargained for. In relation to the alleged misrepresentation, the Senior Deputy President found in paragraph [43] of the Decision that there was insufficient evidence to establish this, and he took into account that it was preferable that variations to agreements be bargained for and voted upon. This, it was submitted, represented a proper exercise of the discretion and no error was disclosed.

Consideration

Permission to appeal

[21] The notice of appeal raises important questions about the proper construction of ss 317 and 320(1), (2)(c) and (3) of the FW Act and, in particular, the standing of a person to bring an application under s 320(3)(a) and the circumstances in which a variation of a transferable instrument may be made for the reason set out in s 320(2)(c). These questions have not previously been considered by a Full Bench of the Commission and are affected by disharmonious decisions made by single members of the Commission under s 318. 23 We therefore consider that it is in the public interest to grant the TWU permission to appeal and we do so.

First ground of appeal

[22] It is necessary that we consider the proper construction of ss 317, 320(1) and 320(3)(a) of the FW Act in order to deal with this ground of appeal. These provisions are part of a scheme established by Pt 2-8 containing the circumstances in which there will be a transfer of business from one employer to another and the consequence for coverage by industrial instruments of transferring employees and of both the old and new employer. Broadly, the effect of the provisions in Pt 2-8, particularly those in Division 2, is to make provision that enterprise agreements and other identified industrial instruments, described as transferable instruments, that covered employees of the old employer will continue to cover those employees in their employment with the new employer if there is a transfer of business. Part 2-8 is not however concerned with whether a transfer of business should take place or not.

[23] The question of whether there has been a transfer of business within the meaning of s 311(1) focuses, inter alia, on whether there is a connection of a particular kind between the old and the new employer. The relevant kinds of connections are identified in s 311(3) – (6). In this case, the relevant connection that is invoked by Viva Energy applications is that it is an associated entity of Zip, and will remain so if Zip employees become employees of Viva Energy. As earlier stated, Zip employees will only, according to the condition in the letters of offer made to such employees, become employees of Viva Energy if the applications to vary the transferable instruments are granted pursuant to s 320.

[24] Division 3 of Pt 2-8 confers discretionary powers on the Commission to make certain orders in relation to transferable instruments if there is, or is likely to be, a transfer of business from an old employer to a new employer. Section 318 enables the Commission to make orders relating to instruments covering a new employer and transferring employees. Section 319 enables the Commission to make orders relating to instruments covering a new employer and non-transferring employees. Section 320 enables the Commission on application, relevantly, by a person who is, or is likely to be covered, by a transferable instrument, to vary the instrument.

[25] The exercise by the Commission of the powers in Division 3 results in a departure or modification of the general rule or default position in s 313 that, when there is a transfer of business, the transferring employees and the new employer are covered by the transferable instrument that covered the old employer and the transferring employees immediately before the termination of the transferring employees’ employment with the old employer. The operation of that general rule is predicated on the relevant employees having their employment with the old employer terminated and then being employed by the new employer.

[26] Section 317 provides that the Commission may make orders under Div 3 of Pt 2-8 “if there is, or is likely to be, a transfer of business from an old employer to a new employer”. The application of s 320 is, as s 320(1) provides, “in relation to a transferable instrument that covers or is likely to cover, the new employer because of a provision of” Part 2-8. The exercise of the Commission’s power to vary a transferable instrument under s 320 is conditioned by s 320(3)(a) on an application relevantly by “a person who is, or is likely to be covered by the transferable instrument.”

[27] There is no issue that Viva Energy was not covered by any of the relevant transferable instruments at the time of the hearing, so it is necessary to focus on the second limb of the condition which appears in each of ss 317, 320(1) and 320(3)(a). The word “likely” as it appears in each such provision carries its ordinary meaning that it is more probable than not, or it is expected to happen. The power to exercise the discretion under s 320(2) to vary a transferable instrument is conditioned upon that transferable instrument being one to which, in accordance with s 320(1), s 320 applies. In the circumstances of this case, that required satisfaction that it was more probable than not or to be expected that each transferable instrument would cover Viva Energy. The power to exercise the discretion under s 320(2) was also conditioned on there being an application before the Commission in accordance with s 320(3)(a) (s 320(3)(b) not being relevant in this case). That required the Commission to be satisfied that, at the time the application was made, it was more probable than not or to be expected that Viva Energy would be covered by the relevant transferable instruments.

[28] The requirements in ss 320(1) and (3)(a) are in the nature of jurisdictional preconditions to the exercise of power, so that the Commission had to be satisfied that they were met prior to the exercise of the discretion under s 320(2). For the reasons which follow, we do not consider that it was reasonably open for the Senior Deputy President to conclude that these preconditions were satisfied.

[29] We have earlier set out the matters relied upon by the Senior Deputy President in paragraph [60] of the Decision to conclude that Viva Energy was likely to be covered by the transferable instruments. In an ordinary case, such matters would be relevant and might be capable of supporting a conclusion that it was likely that a transferable instrument would cover the relevant new employer. However it was uncontroversial, on the evidence before the Senior Deputy President, that there would be no transfer of business, and the transferable instruments would not cover Viva Energy, unless the condition stipulated in the offers of employment was met. As earlier stated, that condition was that the Commission made the variation to each transferable instrument sought by Viva Energy. The matters relied upon by the Senior Deputy President were incapable of causing that condition to be satisfied, and thus were incapable of supporting a conclusion that it was “likely” that Viva Energy would be covered by the transferable instruments.

[30] We do not accept, as Viva Energy contends, that the factors in s 320(4) and in particular ss 320(4)(e) and (f) provide contextual support for an approach whereby the matters relied upon by the Senior Deputy President were capable of supporting the conclusion that he reached. The matters in s 320(4) are to be taken into account by the Commission in determining whether to make a variation, relevantly, for which application is made by a person who is already “likely to be covered by the transferable instrument”. The matters are concerned with whether the variation sought in a valid application should be made, not with whether a person applying for a variation has satisfied the prior condition attaching to standing to make the application. As earlier stated, that condition must be satisfied prior to the exercise of the discretion by the Commission.

[31] In our view, the Commission could not be satisfied that the preconditions for the exercise of power under s 320(2) were met where such satisfaction was entirely dependent on an assessment as to the likelihood of it exercising such power. In relation to s 320(3)(a) in particular, the condition attaching to who may make an application under the section is one that must be met at the time that the application is made. Although the question as to whether that condition is met by reference to the future likelihood of the applicant being covered by a transferable instrument is one of fact and degree, the assessment required must be made on the basis of objective facts existing at the time the application is made.

[32] As earlier set out, Viva Energy submitted that it was open to the Commission to consider any preliminary question as to jurisdiction simultaneously with the substantive merits of an application made pursuant to s 320(3)(a) and, in doing so, to make an assessment as to the application’s prospects of success such as might support a conclusion that it was more probable than not that the condition attaching to the offers of employment here would be satisfied and accordingly that it was likely that a transfer of business would occur. We accept the first part of that submission. As Spigelman CJ said in Woolworths Ltd v Pallas Newco Pty Ltd, “[a] decision-maker may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision-making process”, 24 and this is a procedural course often adopted in this Commission. However, the remainder of the submission is flawed. The formation of an opinion by a member of the Commission as to an application’s prospects of success arising from a hearing as to the merits of the application cannot satisfy the jurisdictional fact requirement that operates at the time the application is made. Viva Energy’s submission would involve the Commission engaging in the logical fallacy of assessing whether it is likely it will exercise jurisdiction in order to determine whether it has jurisdiction in the first place. Further, it would for practical purposes place the Commission in the position of determining whether the transfer of business occurs or not, when it is apparent that the intended purpose and effect of s 320, and Pt 2-8 in general, is to consider whether to act in relation to a transfer of business which, it is independently established, has actually occurred or is actually likely to occur.25

[33] It may be added that even if Viva Energy’s submission in this respect was accepted, it would not save the Decision here, because the Senior Deputy President did not find that he had jurisdiction on the basis of an assessment of the prospects of success of Viva Energy’s applications.

[34] Nothing we have stated should be taken to mean that any unmet or unfulfilled conditions in relation to a prospective transfer of business existing at the time an application to vary a transferable instrument is made will necessarily stand in the way of a conclusion that a person is likely to be covered by the relevant transferable instrument. Numerous commercial conditions might attach to the finalisation of a transfer of business. The Commission is able to make an assessment, on appropriate evidence as to the objective facts in existence at the relevant time, as to the likelihood of those conditions being met. Similarly, the mere existence of an offer of employment to employees of the old employer does not necessarily mean that any employees will accept the offer, or that a transferring employee who accepts an offer of employment will become employed by a new employer, but an assessment as to the likelihood that the new employer will be covered by the transferable instrument nevertheless may be made. However the condition here is of an entirely different character, for the reasons we have earlier expressed. Viva Energy could not retrospectively be conferred with standing under s 320(3)(a) to make a valid application by the subsequent formation of an opinion by a member of the Commission that its application was likely to succeed and was therefore validly made. Nor, for the purpose of s 320(1), could s 320 be rendered applicable to a transferable instrument on the basis of the formation of an opinion that jurisdiction under s 320 was likely to be exercised.

[35] For these reasons, we uphold the first appeal ground.

Second appeal ground

[36] The power to vary a transferable instrument is not at large. Its exercise is confined to the three circumstances identified in s 320(2)(a)-(c). The first two of these circumstances are not presently relevant. The third concerns a variation “to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise”. It is necessary to construe the expression “working arrangements” in order to determine the second appeal ground.

[37] The task of ascribing meaning to the words of the statute is concerned with interpreting the relevant statutory provision(s) consistently with the intended purpose or objects of the legislature as disclosed by the text of the statute and begins with an examination of the ordinary grammatical meaning of the words used in the context of the statute as a whole in which they appear. 26

[38] The expression “working arrangements” is not defined in the FW Act. The expression is used in s 65, also without definition, but the legislative note under s 65(1) identifies, as examples of changes in working arrangements, changes to “hours of work . . . patterns of work and . . . locations of work.” Although the expression used is the same in s 65 and in s 320(2)(c), one contextual distinction is that s 65 is concerned with an individual employee’s right to request flexible working arrangements whereas s 320(2)(c) is more likely to be concerned with collective working arrangements.

[39] It is significant in discerning the meaning “working arrangements” to observe that the legislature has chosen to use that expression, instead of, for example, “terms and conditions of employment” or simply “arrangements”. Each of these latter two descriptions would comfortably embrace the frequency of payment of wages. Indeed, the FW Act deals with the method and frequency of payment of wages in Division 2 of Part 2-9 which is titled “Other terms and conditions of employment”. Part 2-9 is part of Chapter 2 of the FW Act, which is entitled “Terms and conditions of employment” and encompasses all the provisions of the FW Act concerning the National Employment Standards, modern awards, enterprise agreements, workplace arrangements, minimum wages and transfer of business.

[40] The ordinary grammatical meaning of the noun “arrangement” means the action, process, or result of arranging or being arranged. It is apt to describe a plan, preparation, method or system for the doing of a thing. In s 320, “arrangements” is combined with the word “working” to form a composite noun. Its ordinary grammatical meaning in the context of s 320 is the action of doing work or undertaking tasks, duties and responsibilities. Thus, the phrase “working arrangements” read in the context of s 320 and the FW Act as a whole seems to us to mean plans, preparations, methods or systems for the performance of work, tasks, duties and responsibilities undertaken by employees. “Working arrangements of the new employer’s enterprise” therefore describes plans, preparations, methods or systems in place at the new employer’s enterprise for the performance or work, or the undertaking of tasks, duties and responsibilities by employees already employed in the new employer’s enterprise. This will include, without limitation, such things as rosters, hours of work, shift arrangements, leave arrangements, location of work, job descriptions, qualifications, skills and experience required for the performance of work and the classification or description of employees who may perform particular work, tasks, duties or responsibilities. These are all matters which bear upon the performance of work at the enterprise. A variation to one or more terms of a transferable instrument need not itself be to terms which are concerned with working arrangements, but the variation to the term must have the purpose of enabling the instrument to better align with the working arrangements at the new employer’s enterprise.

[41] In this case, Viva Energy did not seek to vary the frequency of payment provisions of the relevant instruments for any purpose connected with the better alignment with its existing working arrangements. It is not in contest that the only purpose of the variations was to ensure that any transferring employees were paid at the same frequency as Viva Energy’s existing employees. Pay frequency simpliciter has no connection with the arrangements for the performance of work. The position might be different if, for example, the change to pay frequency provisions were sought for the purpose of better aligning with the working arrangements in place for the performance of payroll duties. But that is not the case here. Accordingly the Senior Deputy President erred in making the variations sought for a purpose other than those identified in s 320(2)(c) and in doing so exceeded his jurisdiction.

[42] It follows that the second ground of appeal also succeeds.

Third appeal ground

[43] It is not necessary to deal with the remaining ground of appeal given our earlier conclusions.

Conclusion

[44] The appeal is upheld on the first and second appeal grounds, and accordingly the Decision must be quashed.

Rehearing

[45] On a rehearing, for the reasons given we would dismiss the applications.

Order

[46] We order as follows:

(1) Permission to appeal is granted

(2) The appeal is upheld.

(3) The Decision ([2019] FWCA 2070) is quashed.

(4) The applications in matters AG2018/7189, AG2018/7190, AG2018/7191 and AG2018/7192 are dismissed.

Decision of Deputy President Saunders

[47] I have had the benefit of reading the joint reasons of Vice President Hatcher and Deputy President Gostencnik. I adopt the same abbreviations as used in those joint reasons.

[48] I agree with the orders proposed by Vice President Hatcher and Deputy President Gostencnik, on the basis that the variations sought by Viva Energy were not for the purpose of enabling the transferable instruments to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise within the meaning of s 320(2)(c) of the FW Act. In particular, I agree with majority’s interpretation of the expression “working arrangements” in s 320(2)(c) of the FW Act, together with their reasons for concluding that Viva Energy did not seek to vary the frequency of payment provisions of the relevant instruments for any purpose connected with the better alignment of the operation of the instruments with its existing working arrangements.

[49] I have, with respect, come to a different view to the majority in relation to the proper construction of ss 320(1) and (3) of the FW Act. I set out below my analysis of those provisions. Notwithstanding my opinion in relation to those provisions, the fact that the variations sought by Viva Energy were not for the purpose of enabling the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise means that the appeal must be upheld, the Decision quashed, and the applications dismissed on a rehearing.

Part 2-8 of the FW Act

[50] Part 2-8 of the FW Act provides for the transfer of enterprise agreements and other industrial instruments if there is a transfer of business from one national system employer to another national system employer. The FW Act recognises that there are many ways in which a business, or part of it, may transfer from one employer to another. So much is clear from sections 311(3) to (6) of the FW Act.

[51] If there is a transfer of business within the meaning of s 311 of the FW Act, then any transferable instrument such as an enterprise agreement which covered the old employer and one or more transferring employees immediately before the transfer of business will cover the new employer and the transferring employees after the transfer of business, assuming the transferring employees perform the same, or substantially the same, work for the new employer as they did for the old employer. That is the effect of s 313(1)(a) of the FW Act.

[52] However, the statutory scheme which operates in Part 2-8 of the FW Act recognises that the effect of s 313(1)(a) in imposing the coverage of a transferable instrument such as an enterprise agreement on a new employer and the transferring employees as a result of a transfer of business from the old employer to the new employer may, in some circumstances, be problematic for the new employer and/or the transferring employees. To that end, Division 3 of Part 2-8 of the FW Act confers on the Commission discretionary powers to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer. The effect of such orders may be to alter what would otherwise be the operation of s 313 (or s 314) of the FW Act. For example, the Commission may make orders that:

•  an enterprise agreement that would otherwise cover the new employer and the transferring employees after a transfer of business does not cover the new employer and the transferring employees (s 318(1)(a));

•  an enterprise agreement that covers the new employer will cover the transferring employees (s 318(1)(b));

•  an enterprise agreement that would otherwise cover the new employer and a non-transferring employee after a transfer of business does not cover the non-transferring employee (s 319(1)(a));

•  an enterprise agreement that will cover the new employer after a transfer of business will cover a non-transferring employee who performs the transferring work for the new employer (s 319(1)(b));

•  an enterprise agreement that will cover the new employer after a transfer of business will not cover a non-transferring employee who performs the transferring work for the new employer (s 319(1)(b));

•  vary the terms of an enterprise agreement that covers the new employer after a transfer of business in order to (s 320(2)):

◦  remove terms that the Commission is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

◦  remove an ambiguity or uncertainty about how a term of the enterprise agreement operates if the ambiguity or uncertainty has arisen because of the transfer of business to the new employer; or

◦  enable the enterprise agreement to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

[53] Before making any such orders, the Commission must take into account and weigh up a range of matters. 27 It is apparent from the nature and breadth of these mandatory considerations that they are directed at achieving the object of Part 2-8 of the FW Act, which is to provide a balance between the protection of employees’ terms and conditions of employment under enterprise agreements and other industrial instruments and the interests of employers in running their enterprises efficiently in circumstances where there is a transfer of business from one employer to another.28

The proper construction of ss 320(1) and 320(3)(a) of the FW Act

[54] This appeal gives rise to questions concerning who has standing to make an application to vary a transferable instrument under s 320 of the FW Act and whether the Commission has jurisdiction in relation to such an application. Standing and jurisdiction are distinct concepts. In essence, standing involves the identification of a legal entity who is entitled to invoke the jurisdiction of a court or tribunal. Jurisdiction involves a determination as to whether a court or tribunal is invested with power to determine proceedings instituted in it and, having made such a determination, what, if any, orders or relief the court or tribunal is empowered to make. 29

[55] Subject to constitutional limitations, Parliament can confer and remove either or both standing and jurisdiction in respect of a given controversy or species of controversy. 30 Whether a statute confers on particular persons rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute.31

[56] Parliament has plainly conferred standing and jurisdiction in relation to applications for orders under Division 3 of Part 2-8 of the FW Act. Section 320(3) of the FW Act governs the question of who has standing to apply for an order varying a transferable instrument. Sections 320(1) and (2) of the FW Act govern the jurisdiction of the Commission to make such orders.

[57] Section 320(3)(a) of the FW Act provides that the Commission may make the variation only on application by a person who is, or is likely to be, covered by the transferable instrument. If an application is made by such a person, the Commission has jurisdiction to vary a transferable instrument if it covers, or is likely to cover, the new employer because of a provision of Part 2-8, but the variation must be for one or more of the three specific purposes set out in s 320(2)(a), (b) and (c) of the FW Act.

[58] Central to the controversies as to standing and jurisdiction in the present appeal is the question of when a transferable instrument such as an enterprise agreement is likely to cover a person. That issue of construction arises under both s 320(1) and (3) of the FW Act.

[59] The starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose. 32 Context includes other provisions in the FW Act. Relevantly, the various types of applications which may be made under Division 3 of Part 2-8 of the FW Act confer standing, inter alia, on a person who is likely to be a new employer33 or transferring employee,34 a non-transferring employee who is likely to perform the transferring work for the new employer,35 and a person who is likely to be covered by the transferable instrument.36

[60] By allowing the various applications permitted under Division 3 of Part 2-8 of the FW Act to be made by a person who is likely to be covered by a transferable instrument, the FW Act clearly envisages that such applications may be made and determined before a transfer of business occurs within the meaning of s 311 of the FW Act. The evident purpose of this scheme is to enable there to be certainty as to the terms and conditions of employment which will apply to employees in the event that a proposed transfer of business takes place. This provides an obvious benefit to both employers and employees.

[61] In addition, there are likely to be some potential transfers of business which will be uneconomic or otherwise undesirable unless orders are made under Division 3 of Part 2-8 of the FW Act. Permitting such applications to be heard and determined before any transfer of business occurs enhances the prospects of such transfers of business taking place because the potential acquirer of the business can apply for, and have determined, an application under Division 3 of Part 2-8 of the FW Act before being bound to acquire the business.

[62] Further and importantly, there is protection for all parties concerned in the event that a transfer of business which is likely to occur does not in fact occur; any orders made by the Commission under Division 3 of Part 2-8 of the FW Act do not take effect unless and until the transfer of business occurs. 37 Accordingly, if a transfer of business which is likely does not in fact take place, the only detriment associated with the making and determination of an application under Division 3 of Part 2-8 of the FW Act prior to the transfer of business occurring is the time, inconvenience and any cost associated with the Commission hearing and determining the application.

[63] The word “likely” has different meanings in different statutory contexts. 38 It may mean mean probably in the sense of more likely than not or more than a 50 per cent chance. It can also, in an appropriate context, mean some possibility or a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent.39

[64] Having regard to the relevant context and the fact that the evident purpose of allowing applications for orders under Division 3 of Part 2-8 of the FW Act to be made by a person who is likely to be covered by a transferable instrument is to enable there to be certainty as to the terms and conditions of employment which will apply in the event that the proposed transfer of business goes ahead, I am of the opinion that the word “likely” in sections 318, 319 and 320 of the FW Act means real and not remote.

[65] Accordingly, a transferable instrument such as an enterprise agreement is likely to cover a person within the meaning of ss 320(1) and (3) of the FW Act if there is a real and not remote chance of the enterprise agreement covering the person. The relevant likelihood (of coverage) must exist at the time an application is made under s 320 of the FW Act to vary the instrument. So much is clear from the use of the present tense (“is”) in sections 320(3)(a) and 320(1). However, the assessment of the relevant likelihood (of coverage) may be determined by reference to potential future events or circumstances. By way of example, if a transfer of business is conditional only on the Australian Competition and Consumer Commission (ACCC) approving the transaction, then the likelihood of the transfer of business taking place and an enterprise agreement which covers the vendor covering the purchaser and the transferring employees from the time of the transfer of business must be determined as at the time the application was made under s 320 of the FW Act but by reference to the chance of the ACCC making a decision in the future to approve the transaction.

[66] In some applications under Division 3 of Part 2-8 of the FW Act it may be possible to determine questions of standing and/or jurisdiction as preliminary matters, but in many cases they will be best determined at a final hearing, at the same time as the decision maker carries out the substantive decision-making process, when all the facts are before the Commission and the Commission has had the benefit of full argument on the matter. 40 That is the approach the Senior Deputy President took in this case.

[67] It follows from this analysis that, provided there is something more than a remote chance of a transfer of business occurring, the Commission has jurisdiction to hear and determine an application for orders under Division 3 of Part 2-8 of the FW Act, including an application to vary a transferable instrument under s 320 of the FW Act. The requirement that there be something more than a remote chance of a transfer of business occurring will prevent the Commission and any parties involved in a potential transfer of business having to deal with a purely hypothetical question concerning a transfer of business or a hopeless application for orders under s 320 of the FW Act, whilst at the same time providing certainty to employees and employers where the possibility of the transfer happening is more than remote. In the event that the proposed transfer of business does not take place, any orders made by the Commission under Division 3 of Part 2-8 of the FW Act will not take effect. 41

[68] There may be many reasons why a proposed transfer of business has not taken place or is otherwise uncertain. For example, the transfer of business may be conditional on finance being approved by a financial institution, the ACCC approving the transfer, a market condition being satisfied (eg the share price of company X reaching $1.50), or the Commission making an order under Division 3 of Part 2-8 of the FW Act. So long as there is more than a remote chance of the relevant event occurring, then the Commission has jurisdiction to hear and determine the application.

[69] On the TWU’s argument, the Commission would be obliged to assess and determine the likelihood of satisfaction of conditions such as finance being approved, the ACCC approving the transaction and a share price reaching a particular level, but it would not be permitted to assess and determine the likelihood of the Commission making an order under Division 3 of Part 2-8 of the FW Act. It is significant that there are no explicit or implicit indications in s 320 of the FW Act that such a result was intended. Neither s 320(1) nor s 320(3) of the FW Act imposes any statutory limitations on the matters that the Commission may, or may not, take into account when determining whether a person is likely to be covered by a transferable instrument. On one view of it, the Commission is better placed to determine the likelihood of it making an order under Division 3 of Part 2-8 of the FW Act than it is to determine the likelihood of some external event, such as finance being approved, the ACCC approving a proposed transaction, or a market condition being satisfied. In my opinion, there is nothing in the text, context or purpose of Part 2-8 of the FW Act which would warrant the construction of s 320 of the FW Act for which the TWU contends.

[70] I do not, with respect, agree that granting an application under s 320 of the FW Act in circumstances where a transfer of business is conditional on an order being made by the Commission would “require a form of circular reasoning” or involve a “logical fallacy”. 42 The premise of this reasoning is that the “Commission is not empowered to exercise jurisdiction in relation to a transfer of business which will only occur if it exercises jurisdiction”.43 However, as Viva Energy submits, making an assessment as to the likelihood that there will be a transfer of business, including by reason of the likelihood that the Commission’s jurisdiction may be exercised, is distinct and separate from actually exercising jurisdiction.

[71] The process of determining standing and/or jurisdiction at the same time as carrying out a substantive decision-making process is a familiar one under the FW Act. Consider, for example, an unfair dismissal application made in accordance with s 394 of the FW Act. Some questions concerning standing or jurisdiction in unfair dismissal proceedings are determined as preliminary matters, while many others are dealt with at the same time as the member carries out the substantive decision-making process. A member of the Commission may conduct one hearing in relation to an unfair dismissal application in order to determine whether the applicant was dismissed and therefore has standing to make an unfair dismissal application under s 394 of the FW Act, together with jurisdictional questions such as whether any dismissal was a genuine redundancy, at the same time as considering, if the applicant has standing and jurisdiction is found, whether the dismissal was harsh, unjust or unreasonable. Particular jurisdictional questions, including whether the dismissal was a case of genuine redundancy, must be decided before the Commission considers the merits of the application, 44 but that can, and does regularly, happen following a single hearing at which all issues are addressed.

[72] Further, there are other circumstances under the FW Act (apart from those under s 320 of the FW Act) which require the Commission to determine a jurisdictional question by reference to the likelihood of the Commission finding in favour of the applicant in the substantive application. By way of example, in deciding whether or not to extend the time for making an unfair dismissal application, the Commission must take into account the merits of the application. 45 That calls for the Commission to make an assessment, if possible, of the likelihood of it finding in favour of the applicant in their unfair dismissal application. If a member of the Commission hearing an application for an extension of time determines that the substantive application is of sufficient merit, that factor will weigh in favour of a finding of exceptional circumstances and the exercise of discretion to extend time.46 Of course, the substantive unfair dismissal application may ultimately be dismissed on the basis that it was not meritorious, but that does not give rise to any illogicality or circular reasoning concerning the antecedent finding of the application being of sufficient merit to warrant, or contribute to, a finding of exceptional circumstances and the exercise of discretion to grant an extension of time, thereby giving the Commission jurisdiction to hear and determine the merits of the application.

[73] Similarly, in an application under s 606 of the FW Act for a stay against the whole or part of a decision pending the outcome of an appeal, either the Full Bench or (more commonly) a single presidential member of the Commission (who does not necessarily need to be a member of the Full Bench which ultimately hears and determines the appeal) will decide whether or not to grant the stay. In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in relation to both the question of permission to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the stay being granted. 47 Although the question of whether the appeal has reasonable prospects of success in a stay application is not relevant to the question of whether the Commission has jurisdiction to hear and determine the stay application, it is a useful analogy to the task of considering whether an application for an order under s 320 of the FW Act has more than a remote chance of success. Neither task is particularly difficult. They each involve an evaluative assessment in relation to which the decision-maker is allowed some latitude as to the choice of the decision to be made.48 Such decisions are capable of being appealed, like any other discretionary decision made under the FW Act.49

[74] It follows from this analysis of the relevant provisions of Part 2-8 of the FW Act that if an application is made for an order under s 320 of the FW Act by an employer that will be covered by an enterprise agreement if a transfer of business takes place and the transfer of business is conditional on the Commission making an order under s 320, then the likelihood of the transfer of business taking place and the employer being covered by the enterprise agreement will be determined, as at the time the application is made, by the likelihood of the Commission making an order under s 320. In my view, ss 320(1) and 320(3)(a) of the FW Act require the Commission to make a determination as to whether there is something more than a remote chance of such an order being made, in the same way that the Commission would be required to consider whether there is something more than a remote chance of any other conditional aspect of a proposed transfer of business being satisfied. If a finding of jurisdiction is made and the applicant has standing to bring the application, the merits of the application will be determined and in doing so the Commission will be obliged to take into account the various mechanisms in Part 2-8 of the FW Act which are aimed at protecting employees’ terms and conditions of employment under transferable instruments on the transfer of a business. 50 In the context of an application to vary a transferable instrument under s 320 of the FW Act, those protections are found in ss 320(2) and 320(4) of the FW Act.

VICE PRESIDENT

Appearances:

M Gibian SC for the Appellant.

Y Shariff and J Braithwaite of Counsel for the Respondent.

Hearing details:

2019.

Sydney:

June 21.

Printed by authority of the Commonwealth Government Printer

<PR712072>

 1   AE501666

 2   AE417572

 3   Appeal Book at p.173

 4   Ibid

 5   Ibid

 6   Viva Energy Australia Pty Ltd [2019] FWCA 2070

 7   AE501024, PR706340, AE500229 PR706343, AE418751 PR706383 and AE428048 PR706385

 8   [2019] FWCA 2070 at [61]

 9   Ibid at [57]-[60]

 10   Ibid at [67]

 11   Ibid at [69]

 12   Ibid at [70]

 13   Ibid at [74] – [75]

 14   Ibid at [76]

 15   Ibid at [77]

 16   Ibid at [78]

 17   Ibid at [81] – [82]

 18   Citing Bowen CJ in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors [1979] FCA 132; 42 FLR 331 at 339; 27 ALR 367 at 375

 19   Citing Australian Telecommunications Commission v Kreig Enterprises Pty Ltd (1976) 14 SASR 303; 27 FLR 400

 20   Appeal Book at pp.120-121, [28]-[30]

 21   Appeal Book at p.123, [39] and at p.180, [4]-[5]

 22   [2019] FWCA 2070 at [67]

 23   Re Lend Lease Building Pty Ltd [2014] FWC 5499; Re Qantas Airways Limited [2016] FWC 4913

 24   Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422, 61 NSWLR 707 at [47]

 25   See Re Lend Lease Building Pty Ltd [2014] FWC 5499 at [22]

 26   See for example Project Blue Sky Inc & Ors v Australian Broadcasting Authority  [1998] HCA 28; 194 CLR 355 at [69]; See also SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14]; WorkPac Pty Ltd v Skene [2018] FCAFC 131, 362 ALR 311, 280 IR 191at [105]; and Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223, 363 ALR 343

 27   See, for example, ss 318(3), 319(3) & 320(4) of the FW Act

 28   Section 309 of the FW Act

 29   Haughton v Minister for Planning and Macquarie Generation [2011] NSWLEC 217; 185 LGERA 373 at [64]

 30   Ibid at [65]

 31   Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615; 162 FCR 313 at [26]

 32   SAS Trustee Corporation v Miles [2018] HCA 55; 361 ALR 2016 at [20]

 33   Sections 318(3)(a)(i) and 319(2)(a) of the FW Act

 34   Section 318(2)(b) of the FW Act

 35   Section 319(2)(b) of the FW Act

 36   Section 320(3)(a) of the FW Act

 37   Sections 318(4), 319(4) and 320(5) of the FW Act

 38   Jane Doe v Fairfax Media Publications Pty Limited [2018] NSWSC 1996 at [184]-[201]; Huntsman Chemical Company Australia Pty Limited [2019] FWCFB 318 at [106]-[110]

 39   Ibid

 40   Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 135; 36 ALR 64;54 FLR 421 at 437; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615; 162 FCR 313 at [65]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at 718

 41   Sections 318(4), 319(4) and 320(5) of the FW Act

 42   Lend Lease Engineering Pty Ltd [2014] FWC 5499 at [21]-[22] per Hatcher VP

 43   Ibid at [22]

 44   Section 396(d) of the FW Act

 45   Sections 394(3)(e) of the FW Act

 46   Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [74]-[76]

 47   DesignInc (Sydney) Pty Ltd v Xu [2012] FWA 1088 at [3]

 48   Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194 at [18]-[22]

 49   Ibid

 50   Section 309 of the FW Act