| [2020] FWC 3531 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.526—Stand down
Nicholas Van Der Linden
v
LDA Group Pty Ltd (ACN 164 779 051) as trustee for LDA Group Trust trading as Levitch Design Australia (ABN 91 292 021 844)
(C2020/2488)
COMMISSIONER BISSETT |
MELBOURNE, 16 JULY 2020 |
Application to deal with a dispute involving stand down - application for dismissal of substantive matter for reason of it having no reasonable prospect of success – principles associated with dismissal for no reasonable prospect of success – substantive matter dismissed.
[1] On 19 April 2020, Nicholas Van Der Linden (the Applicant) made an application pursuant to s.526 of the Fair Work Act 2009 (the Act) requesting that the Fair Work Commission (the Commission) deal with a dispute involving stand down.
[2] Mr Van Der Linden was stood down without pay on 25 March 2020 and disputed the stand down in the application made to the Commission on 19 April 2020.
[3] LDA Group Pty Ltd advised the Commission that the Applicant had incorrectly nominated Arconn Pty Ltd t/as Levitch Design Australia as the Respondent to the application instead of the correct employer. The Commission was advised that the correct employer is LDA Group Pty Ltd (ACN 164 779 051) as trustee for LDA Group Trust trading as Levitch Design Australia (ABN 91 292 021 844). 1 The Applicant conceded that he had named the incorrect employer on the Form F13 and that the Respondent has provided the correct details.2 An order3 correcting the name of the Respondent has been issued pursuant to s.586 of the Act.
[4] Levitch Design Australia is the trading name of one entity under the LDA Group Pty Ltd (the Group). 4 Its purpose is to design and construct fit outs for the medical, dental and healthcare industry.
[5] Mr Van Der Linden commenced employment with the Respondent on 11 June 2019 in the position of project manager. This was a full-time position. 5
[6] The stand down dispute arises against the backdrop of the COVID-19 pandemic. At the height of the pandemic in Australia, the Federal Government imposed restrictions to reduce the spread of the virus and these restrictions impacted on the Respondent’s clients in the medical, dental and healthcare industries. 6 Due to the impact of the restrictions many of the Respondent’s clients placed their projects with the Respondent on hold. Robert Loader, the Group’s General Manager gave evidence that 10 employees including the Applicant were stood down due to a 20% decrease in the Group’s sales in March 2020 compared to February 2020.
[7] The Applicant’s stand down commenced on 25 March 2020.
[8] On the evidence from the Respondent, the situation deteriorated even further in April 2020 with the Group’s sales reducing by 98.5% from the February 2020 sales, six projects were put on hold and several slowed down. 7 As a result, two positions within the Group, including the Applicant’s position, were made redundant. Mr Van Der Linden’s position was made redundant with effect from 27 April 2020, being the end of the notified stand down period.8 Mr Loader advised that Mr Van Der Linden “was paid all amounts owing to him as a consequence of the decision to make his position redundant, as well as all wages for the entire period he was stood down, being from 25 March 2020 to 27 April 2020.”9
[9] Mr Van Der Linden disputed the evidence of Mr Loader, however did not seek to be heard on this or other subjects. In his submissions, Mr Van Der Linden argued that it takes between six to eighteen months for a new client to progress through the initial design stages to the construction stage of a build. He submitted that he was engaged on three active projects at the construction stage at the time of the stand down and that his projects were not “affected by Government restrictions that had been instigated in response to Covid-19. In some cases, the dental work itself was affected but our construction work was not.” 10 Furthermore, he disputed the accuracy of measuring a downturn in revenue on a monthly basis:
“Month to month sales are not an accurate measure of sales (or revenue) within this type of business (design & construct business), as monthly sales have always been up and down like a yo yo, from when I first started with the company. A more accurate measure of sales would be quarterly sales. This quarterly measure of sales would provide a far more accurate picture, as to the impact of Covid 19 on the new sales of the business. This sales down turn would simply confirm a downturn in new customers and as mentioned earlier, my role was predominantly in delivery of projects some 6 months to 18 months after the initial sale, and my current allocated projects were at various stages of construction.” 11
[10] Mr Van Der Linden has steadfastly maintained that his stand down should not have occurred as there was still work available for him to complete. He asserted that his subsequent redundancy was forced and was a direct result of him filing the stand down application in the Commission. He also submitted that he should have been retained and placed on the JobKeeper subsidy provided by the Federal Government.
[11] The application was initially allocated to Commissioner Wilson and was the subject of a conference before Commissioner Wilson on 21 April 2020 which failed to resolve the dispute. The focus of conciliation was on whether the Applicant would accept a redundancy proposal put forward by Levitch Design Australia. Following the conference, Commissioner Wilson’s Chambers sent email correspondence to the parties on the subject of a proposed redundancy:
“Dear Parties,
RE: C2020/2488 - Van Der Linden, Nicholas v Arconn Pty Ltd T/A Levitch Design Australia
Commissioner Wilson confirms that the Respondent has agreed to change the response date and time for its redundancy proposal to 5 pm, Thursday 23 April 2020.
If Mr Van Der Linden chooses to accept the redundancy proposal, he needs to indicate such to the Respondent by 5 pm, Thursday 23 April 2020 as well as to return a signed copy of the Deed of Release previously provided to him. Because of one of the terms of the Deed, acceptance of the redundancy proposal will mean this application is at an end.
If the redundancy proposal is not accepted by Mr Van Der Linden, he needs to advise both the Respondent and the Commission of this, also by 5 pm, Thursday 23 April 2020, as well as to then indicate what further steps, if any, are sought by him in relation to this application.”
[12] Mr Van Der Linden indicated to Commissioner Wilson’s Chambers by email correspondence on 23 April 2020 that he would not accept the terms of the proposed redundancy and that he would continue to negotiate the terms of the proposal with the Respondent. Negotiations between the parties proved to be unsuccessful when Mr Van Der Linden sent further email correspondence to Commissioner Wilson’s chambers on 30 April 2020:
“Please note that I have been made redundant by Levitch Design Australia, as of Monday the 27 th of April.
As we could not come to a mutually beneficial arrangement, with regards to the Deed of Release document, it has not been executed by the parties.
I would kindly ask that a hearing date be set, for a mediation between the parties, as soon as possible.”
[13] After contact from Commissioner Wilson’s Chambers, Mr Van Der Linden advised the Commission that he pressed the stand down application and requested the matter be programmed for hearing. Before programming the matter, Commissioner Wilson invited the Respondent’s views on the matter being listed for hearing.
[14] On 8 May 2020, the Respondent through its legal representative, filed an application under two limbs of s.587 of the Act, which provides for the dismissal of applications in certain circumstances, seeking that Mr Van Der Linden’s stand down application be dismissed. The dismissal application was made primarily under s.587(1)(a), contending the application was not made in accordance with the Act, and in the alternative under s.587(1)(c), contending that the application had no reasonable prospects of success. After noting Mr Van Der Linden’s employment had been terminated for reason of redundancy with effect from 5 PM on Monday 27 April 2020, and that he had been “paid for the entire period of the stand down, as well as all amounts owing to him on termination” Levitch Design Australia argued:
“the Fair Work Commission does not have jurisdiction to deal with the Applicant’s dispute application under section 526 of the Fair Work Act 2009, because the Applicant is no longer an employee of the Respondent, and further, the Applicant is no longer stood down.
It is also the Respondent’s position that the dispute application has no utility because there is no possible remedy available to the Applicant, given that the stand down has already come to an end, and the Applicant has been paid for the entire period of the stand down.” 12
[15] It was submitted therefore:
“(a) that the application be dismissed under section 587(1)(a) of the Fair Work Act, on grounds that the application is not made in accordance with the Fair Work Act given that the requirements of section 526 are no longer satisfied, or
(b) in the alternative, that the application be dismissed under section 587(1)(c) as it has no reasonable prospects of success, because no remedy can be ordered given that the stand down has already come to an end, and the Applicant has been paid for the entire period of the stand down.” 13
[16] Mr Van Der Linden was afforded the opportunity to consider his position and to advise whether he pressed for the matter to proceed to a hearing.
[17] On 21 May 2020, Mr Van Der Linden responded pressing for the stand down application to be progressed and determined on the merits. He submitted that his was a “forced redundancy” and that:
“My view is that the only reason that I am no longer employed by the company, is due to the action taken by the company in terminating my position. A punishment for questioning the Stand Down and exercising my workplace right.
The back pay that was paid to me along with 1 weeks pay in lieu of notice, I believe was made by the company as they knew that they had contravened the Fair Work Act, in Standing me down illegally.” 14 (as per original)
[18] Filing Directions on the dismissal application were issued by Commissioner Wilson on 22 May 2020. In compliance with the Directions, the Respondent filed a witness statement by its Group General Manager, Robert Loader and Mr Van Der Linden provided email correspondence in reply on 9 June 2020. Mr Van Der Linden advised he did not seek to be heard unless the Respondent sought a hearing. 15 With no application on the subject of a hearing being made by Levitch Design Australia, Commissioner Wilson’s Chambers advised the parties on 16 June 2020 that the Respondent’s dismissal application would be determined on the papers. On 3 July 2020, Mr Van Der Linden requested the dismissal application be reassigned to another member of the Commission for determination.
THE STATUTORY FRAMEWORK
[19] The statutory provisions for stand downs are found in Part 3 – 5 of the Act and the sections relevant to this decision are ss.524 and 526 which provide as follows:
“524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
526 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part.
(2) The FWC may deal with the dispute by arbitration.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute only on application by any of the following:
(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));
(b) an employee in relation to whom the following requirements are satisfied:
(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));
(ii) the employee’s employer has authorised the leave;
(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);
(d) an inspector.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.”
[20] Section 587 of the Act provides a discretion to dismiss an application if, inter alia, the application has no reasonable prospect of success. Section 587, in its entirety, provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[21] There are four issues which the Commission needs to determine in a stand down dispute. They are:
1. Whether the application is within the Commission’s jurisdiction;
2. Whether an applicant has been stood down within the meaning of s.524 of the Act;
3. Whether any of the exceptions to the general circumstance of s.524(1) may be operative, which requires consideration of the applicability of the matters in either s.524(2) and s.525; and
4. Whether the Commission is satisfied it is appropriate to make the orders sought by an applicant or in another form.
[22] Without deciding these matters (since this decision is not about the merits of the application) prima facie the first two considerations have been met and the exceptions mentioned in the third consideration are not operative.
[23] The Commission’s jurisdiction to deal with a stand down dispute is set out within s.526(3), with it not being in contention that, at the time he made his application, Mr Van Der Linden was an employee stood down under, or purportedly under, s.524(1).
[24] For the circumstance to be a permissible stand down it must conform with the requirements of s.524(1) which sets out a number of key elements:
1. The employee must be stood down during a time in which they cannot be usefully employed;
2. One of the three sub-criteria of industrial action, breakdown or stoppage of work must be present; and
3. That the employer cannot reasonably be held responsible for any stoppage of work if this criterion is relied on.
[25] The meaning of “stoppage” was expressed by Deputy President Gostencnik in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v FMP Group (Australia) Pty Ltd 16 as involving a causal link between the occurrence of a circumstance and the absence of useful employment. Whether there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible is a matter to be interpreted strictly. It would “require identification of some event which involved work being consciously halted for some reason and ordinarily for some identified period of time.”17 It has been held that a mere reduction in available work can not constitute a stoppage; there will not be a stoppage where the work of those involved remains.18 To construe a stoppage as such would go against the ordinary definition of a ‘stoppage’ as is required by statutory interpretation.19 If a stoppage were to be interpreted as a mere reduction in available work it could lead to s.524(1)(c) being read so wide as to deprive employees of their fundamental entitlement to work under an employment relationship.20
[26] In determining if there is useful work to be performed, the decision in Re Carpenters and Joiners Award 21 sets out the general rule that no single employee cannot be usefully employed if there is a category of work available to be performed. However, this is not a hard and fast rule with the facts of a matter requiring balancing. In the context of a stand down for reason of industrial action, it was observed that the question of whether employees could be usefully employed involved questions of fact and degree and “if it is shown that an employer has acted upon proper principles and in good faith, “the evidence...will not...be gone through with a tooth-comb in order to apply to its actions a standard of perfection which in cases such as this will always be impossible to achieve”.22 The balancing of the questions of fact and degree “requires a consideration of the circumstances to determine whether the employees could have been usefully employed at the time they were stood down, taking into account fairness between the parties concerned as required by s526(4)”.23
[27] The need for balance is highlighted in a decision of the Commission within the context of the current COVID-19 pandemic. In Michael Marson v Coral Princess Cruises (N.Q.) Pty Ltd, Deputy President Lake held that the ambit of the general rule is limited to the amount of useful work available to be performed;
“[21] The approach above in Re Carpenters stipulates as a general rule that where there is a category of work available to be performed, no single employee cannot be usefully employed. However, the ambit of useful employment is then limited to the amount of useful work available to be performed. Where the available useful work does not extend to all employees, those remaining employees cannot be deemed to be capable of useful employment.
[22] In this way, the test of useful employment can be comprised of two parts. First, an assessment of the work available: it must be determined if there is useful work and then the number of employees required to perform that useful work. Second, a more general analysis of the conduct of the employer against notions of good faith and fairness must be undertaken. ‘It is a question of fact as to whether an employee “cannot usefully be employed” and in resolving that question regard may be had to the “economic consequences” to the employer.’” 24
[28] In the present case, the Respondent argued that the pandemic had significantly impacted their business operations. Because several projects had been put on hold indefinitely, were slowed down or were withdrawn it resulted in a significant reduction in available work to the Group causing a stoppage of work for many employees within the Group. 25
[29] Determination of whether that circumstance has engaged the s.524(1) criteria is beyond the scope of this decision. On the material before me there is at least an arguable case the criteria have been properly engaged. On the other hand, the evaluative exercise that is required to be conducted and which can only be done after all the facts and circumstances have been considered could well lead to an alternative decision, that the purported stand down is not consistent with the criteria in s.524(1).
[30] Ordinarily a finding that an applicant’s circumstances are consistent with that section would be the foundation of a decision for orders to be made under s.526 of the Act. Such orders, however, may not extend to a claim for payment of wages which would be beyond the power of the Commission to order. 26 At present, Mr Van Der Linden’s stated relief as set out in his application form is for “payment in full of all outstanding salary and reinstatement”. While it is the case that the nature of a dispute may move during the period in which it is dealt with by the Commission, Mr Van Der Linden is not understood to be seeking any other form of relief.
[31] As already referred to, Mr Van Der Linden was dismissed from his employment on 27 April 2020, the last day of the Respondent’s stand down notification.
[32] The Commission has considered extensively whether the private arbitration rights of an employee under an enterprise agreement may in certain circumstances survive the cessation of employment. 27 Without determining the matter, such is conceivably the case in this circumstance, since the Commission is specifically empowered to “deal with the dispute by arbitration.”
[33] While arbitration seems available to Mr Van Der Linden it is, of its nature, limited to a determination about matters other than his legal rights or payment of lost wages. Mr Van Der Linden’s employment has now ended and only a monetary order has been proposed by him. Further, there is likely no order capable of contemplation by the Commission that would be within its jurisdiction to make. There is not, for example, the capacity for an order to be made to the effect that the stand down did not conform with s.524(1) and that Mr Van Der Linden should return to work, since his employment has been terminated.
[34] While not pertinent to the subject of jurisdiction, it is to be noted both that the Respondent submitted it has now paid Mr Van Der Linden in full for the period up to and including 27 April 2020, and that subsequent to his termination, Mr Van Der Linden has made a general protections application to the Commission.
s.587 and the Commission’s power to dismiss an application
[35] In Spencer v The Commonwealth of Australia, 28 (Spencer) consideration was given to the meaning of the phrase, ‘no reasonable prospect’, in the context of s.31A of the Federal Court of Australia Act 1976. In that case the plurality (Hayne, Crennan, Kiefel and Bell JJ) held the following:
“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described with or without the additional intensifying epitaphs like “clearly”, “manifestly” or “obviously” as “frivolous”,” untenable”, “groundless” or “faulty” but none of these expressions alone or in combination should be understood as providing a sufficient chart of the metes and bounds of the powers given by section 31A nor can the content of the word “reasonable” in the phrase, “no reasonable prospect” be sufficiently, let alone completely illuminated by drawing some contrast with what would be a frivolous, untenable, groundless or faulty claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under section 31A if, and only if, satisfied that there is no reasonable prospect of success. Of course it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly but the elucidation of what amounts to no reasonable prospect can best proceed in the same way as content has been given through a succession of decided cases to other generally expressed statutory phrases such as “just and equitable” when it is used to identify the ground for winding up of a company. At this point in the development of the understanding of the expression and its application, it is sufficient but important to emphasise that the evident legislative power as revealed by the text of the provision would be defeated if its application is read as confined to cases of a kind which fell within the earlier different procedural regimes.” 29
[36] Noting that while Spencer is apt for the construction of s.587, “the answer to the question whether a particular application has no reasonable prospect of success in the context of s.587 may differ depending on the time at which the question is asked”. 30 The power though is to be sparingly employed and is not to be used except in a clear case.31
[37] The Respondent argued that Mr Van Der Linden’s application may be dismissed under either s.587(1)(a), contending the application was not made in accordance with the Act, or s.587(1)(c), contending that the application has no reasonable prospects of success.
[38] The contention regarding the enlivenment of s.587(1)(a) is simply that the application is not made in accordance with the Act “given that the requirements of section 526 are no longer satisfied”. This submission is taken to be connected with the fact that Mr Van Der Linden is no longer “an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1))”.
[39] For the reasons set out above, it is conceivable that an employee’s rights to dispute a stand down or purported stand down continue after their employment ends if an application is made prior to the cessation of employment. 32 It does not follow axiomatically from the fact that Mr Van Der Linden is no longer an employee affected in the way set out in s.526(3)(a) that a finding should be made that his application is not made in accordance with the Act (s.587(1)(a)). At the time the application was made it appears to have been within the Commission’s jurisdiction; there is a possibility the application could continue to be within jurisdiction and thereby conform with the need for the application to be made in accordance with the Act, albeit that the stated relief appears beyond jurisdiction.
[40] A different conclusion may be drawn in relation to the application for dismissal pursuant to s.587(1)(c), going to the question of whether Mr Van Der Linden’s application has no reasonable prospects of success.
[41] The situation of Mr Van Der Linden’s application connects directly with the observation of Deputy President Gostencnik that the answer to the question whether a particular application has no reasonable prospect of success in the context of s. 587 may differ depending on the time at which the question is asked. 33
[42] I am satisfied from the matters set out above that the Commission has no jurisdiction to make the order sought by Mr Van Der Linden. It has no jurisdiction to determine his legal rights or to make a monetary order. The fact that employment has ended likely means as well that there are no alternative orders that may be made even if it was found that Mr Van Der Linden’s stand down did not conform with the criteria in s.524(1) of the Act.
[43] The prospects of success must logically be interpreted to include an outcome the Commission is able to determine. The absence of such capacity means there would be no apparent utility for the Commission to continue to deal with Mr Van Der Linden’s application. It is also the case, but not determinative of the situation, that if the application were to continue it is likely an unnecessary burden would be placed on the parties. 34
[44] In the circumstances of this matter, I am persuaded to exercise my discretion to grant the application of the Respondent pursuant to s.587(1)(c) of the Act to dismiss the Applicant’s stand down application on the basis that it has no reasonable prospects of success. An order 35 dismissing the Applicant’s stand down application will be issued at the same time as this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR720761>
1 Witness Statement of Robert Loader, 2 June 2020, [2].
2 Email from Mr Van Der Linden to the Commission, 9 June 2020.
3 PR720816.
4 Witness Statement of Robert Loader, 2 June 2020, [1].
5 Ibid, [4].
6 Ibid, [5].
7 Ibid, [8].
8 Ibid, [10].
9 Ibid, [11].
10 Email from Mr Van Der Linden to the Commission, 9 June 2020.
11 Ibid.
12 Respondent’s Letter to the Commission containing the s.587 application, 8 May 2020.
13 Ibid.
14 Email from Mr Van Der Linden to the Commission, 21 May 2020.
15 Email from Mr Van Der Linden to the Commission, 12 June 2020.
16 [2013] FWC 2554, [31].
17 Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd [2016] FWC 8515, [62].
18 Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487, [45].
19 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656, [23], quoting Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, [26]-[28].
20 Vehicle Builders Employees Federation of Australia v British Motor Corporation (Aust.) Pty. Ltd. (1966) 8 FLR 70, 74-75.
21 (1971) 17 FLR 330, p.333.
22 Townsend & Anor v. General Motors-Holden's Ltd (1983) 4 IR 358, p.370.
23 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v McCain Foods (Aust) Pty Ltd [2011] FWA 6810, (2011) 214 IR 1, [17].
24 Marson v Coral Princess Cruises (N.Q.) Pty Ltd t/A Coral Expeditions [2020] FWC 2721, citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656, [21].
25 Witness Statement of Robert Loader, 2 June 2020, [5]; [8].
26 Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487, [55] – [57].
27 ING Administration Pty Ltd v Jajoo (2006) 158 IR 239, [38] – [41]; and Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269, (2017) 262 IR 122, [55] – [56].
28 (2010) 241 CLR 118.
29 Ibid, [59] – [60].
30 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408.
31 Resta v Myer Pty Ltd [2013] FWC 7080, [39], with reference to General Steel Industries Inc. v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125, pp.128-129, per Barwick CJ.
32 Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269, (2017) 262 IR 122, [56].
33 Resta v Myer Pty Ltd [2013] FWC 7080, [39].
34 Jackson [2015] FWC 402, [9].