| [2022] FWCFB 126 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Conrad John Corry
v
Australian Council of Trade Unions T/A ACTU
(C2022/1552)
VICE PRESIDENT CATANZARITI |
SYDNEY, 7 JULY 2022 |
Appeal against decision [2022] FWC 288 of Deputy President Masson at Melbourne on 15 February 2022 in matter number U2021/9032 – permission to appeal refused.
[1] Mr Conrad John Corry (the Appellant) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Masson (Deputy President) issued on 15 February 2022. The Decision dealt with an application made pursuant to s.394 of the Act for an unfair dismissal remedy.
[2] The Appellant alleged that he was unfairly dismissed from his employment with the Australian Council of Trade Unions (ACTU or the Respondent). In the matter at first instance, the Deputy President was not satisfied that Appellant’s dismissal was harsh, unjust or unreasonable and that the Appellant was unfairly dismissed within the meaning of s.385 of the Act.
[3] The matter was listed for hearing on 26 April 2022 for permission to appeal and the merits of the appeal. The Respondent sought and was granted permission to be legally represented pursuant to s.596(2)(a) of the Act and the Appellant represented himself.
[4] For the reasons that follow, permission to appeal is refused.
[5] The Appellant commenced employment with the Respondent on 15 June 2015. At the time of the Appellant’s dismissal, he was covered by the 2018 Agreement which was replaced on 16 November 2021 by the unregistered ACTU Staff Agreement 2021-2024 (2021 Agreement).
[6] The circumstances which led to the Appellant’s dismissal may be summarised as follows:
• On 21 September 2021, the Appellant made a Slack post (visible to all staff) saying: “my on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!” The context to the post was that a violent protest took place outside the CFMMEU’s Melbourne office in Melbourne, after the state government announced mandatory Covid-19 vaccinations for the construction industry. The Appellant’s immediate manager raised concern and the Appellant resultantly deleted the post but disputed that it was contrary to the ACTU’s public position on the subject.
• The Respondent subsequently reviewed the Appellant’s public personal Facebook account. The Respondent was concerned that several posts were offensive, derogatory, potentially constituted harassment and/or a risk to health and safety or had the potential to bring the ACTU into disrepute. The various Facebook posts are set out at paragraphs [51] – [69] of the Decision.
• On 21 September 2021, after discovering the Appellant’s Facebook posts, Alex White (ACTU Director of Growth) and Sarah Mitchell (ACTU General Manager) arranged a meeting with the Appellant to discuss the “statements/posts on social media, and the future of your employment.” The Appellant was invited to have a support person present at the meeting.
• The Appellant attended the meeting with a workplace delegate who acted as his support person. The Appellant requested that the meeting be recorded and that the ACTU allegations be put in writing, however these requests were declined. During the meeting, the Appellant was asked to outline how the various Facebook posts were compatible with his employment at the ACTU. The Appellant offered to delete the posts of concern but also sought to justify the posts based on his personal, political and religious views.
• Following the meeting, the Respondent agreed that the Appellant’s posts were inconsistent with his duties to the ACTU and that the Appellant had not been able to satisfy them that his behaviour did not constitute misconduct or that there would be no repeat of the conduct. A recommendation to dismiss the Appellant was then put to and accepted by the ACTU Executive Officer and a letter confirming the Appellant’s dismissal was sent to him on 22 September 2021.
[7] The Appellant refuted the Respondent’s understanding of the events leading to his termination and submitted that he was subject to a campaign of harassment, bullying and discrimination by leaders of the ACTU. He refers to the following allegations to support this:
• In 2017, he applied to undertake a graduate diploma in employment law and his application was declined.
• In 2018, in his capacity as an ASU delegate he initiated a claim in respect of ‘tea money’ which was “resisted for years” but was eventually addressed in 2021.
• On 8 March 2018, the Appellant received a warning concerning various disrespectful communications between the Appellant and other staff. He was advised that further misconduct may result in his termination.
• In 2021, there was a slack post exchange between Alex White, the Appellant and other staff where Alex White posed a question and thanked the staff for their replies but did not refer to the Appellant’s contribution when thanking the other staff. Alex White attributed this to a simple oversight.
• The Appellant claims he was subject to discrimination in respect of a medical exemption he had from wearing a face mask.
• On 9 August 2021, the Appellant received a further warning for failing to remove inappropriate posters and images from his workstation. This was described as a ‘final warning letter regarding this or any future unacceptable conduct’ and failing to remove the material by the specified date could result in termination of his employment. The Appellant also sought to escalate the matter and claimed there was no genuine discussion with him as to there being a credible alternative interpretation of the material.
• In mid-2021, the Appellant raised concerns as to how the ACTU would advocate for employees who were at risk of either losing or had lost their jobs due to their refusal to be vaccinated against Covid-19. He claims he was subsequently directed to provide unreasonable and/or unlawful advice to workers who may have held genuine concerns regarding vaccination.
Initial matters
[8] In the Decision, the Deputy President first made observations regarding the background and evidence. He then turned to consider the jurisdictional issues and was satisfied that they were met before moving to deal with each of the matters he was required to consider under s.387 of the Act.
Valid reason for dismissal – s.387(a)
[9] In relation to s.387(a), whether there was a valid reason for the Appellant’s dismissal, the reasons relied on by the Respondent in dismissing the Appellant was that he had engaged in serious misconduct through posts made on the Respondent’s internal Slack messaging platform and to his own social media Facebook account. This conduct was said by the Respondent to include the posting of highly offensive and discriminatory material that constituted a risk to health and safety as well as to the reputation of the ACTU.
[10] The Deputy President firstly made clear that in determining this issue the Appellant’s personal views were not ‘on trial’ but rather the relevant question was whether the expression of those views on his Facebook account and on the Respondent’s Slack platform were contrary to the explicit and/or implied obligations he owed to his employer and whether the conduct constituted serious misconduct and established a valid reason for his dismissal.
[11] The Deputy President considered the relevant authorities, particularly the principles set down in Rose v Telstra Corporation Limited 2 to determine whether the Appellant’s out of hours Facebook posts was a matter that bore upon his employment. Additionally, the Deputy President made findings as to which of the Respondent’s policies applied to the Appellant’s employment.3 The Deputy President rejected the Appellant’s submissions that the policies did not apply to him given he had received training relating to some policies, as a Level 3 employee he was required to contribute to policies, and he had been warned in 2018 that he needed to comply with the Code of Conduct. The Deputy President then made findings on the relevant obligations the Appellant had under each of the policies.
[12] The Deputy President then turned to each of the posts made by the Appellant to determine whether they breached his employment obligations:
• First, having regard to the Slack post made by the Appellant, the Deputy President accepted that the post may have been contrary to the public position of the Respondent but was not persuaded that the Appellant’s post posed a risk to the Respondent’s reputation, especially in circumstances where the post was made on its internal messaging platform.
• Next, he considered the ‘Fuck the Jab’ post. The Deputy President agreed with the Respondent that the post was unarguably inconsistent with the ACTU’s public position on vaccination. He found that the Appellant’s breach of several of his employment obligations, as it was inappropriate for an ACTU employee to publicly undermine government mandated public health measures, which the ACTU was on the record as supporting.
• Turning to the Rights Post, the Appellant justified the Post as being satirical and a critique of powerful interest and lobby groups. He resisted that the post could be seen as offensive in terms of its refences to domestic violence, racism and homosexuality. The Deputy President found that the post was contrary to the Appellant’s obligations under the Code of Conduct and the Harassment, Discrimination & Workplace Bullying Policy (June 2016). Further, he the found that the conduct was public, discriminatory, contrary to the Respondent’s value of respect and presented a risk to the Respondent’s reputation.
• The Police Assault Post was defended by the Appellant as being a satirical comment on government overreach and not intended to promote violence against law enforcement officers. The Deputy President rejected the Appellant’s defence of this post and found that Appellant was aware that the Police union was an affiliate of the Respondent. The Deputy President was satisfied that the post was contrary to the Respondent’s Code of Conduct and interests, and that the Appellant was conducting himself in public in a manner that reflected adversely on the ACTU.
• With respect to the Met Gala Post, the Deputy President was not persuaded that the post breached the values, policies, or public position of the ACTU.
• The Trans Gender Post was directed at persons identifying as transgender or transexual and uses language that is demeaning and belittling of that group. The post was made by the Appellant in full knowledge of the ACTU’s public support for the LGBTQI+ community and following training on the topic. The post was found to breach the Respondent’s Code of Conduct and the Harassment and Discrimination & Workplace Bullying Policy (June 2016). It was also found to be harassing and discriminatory with the potential to adversely impact the ACTU’s reputation.
• Finally, the Kyle Rittenhouse posts were not found to be contrary to the ACTU’s policies, public position or other terms of the Appellant’s contract of employment.
Appellant’s Position
[13] The Appellant contended that his posts did not constitute misconduct or serious misconduct. The Appellant submitted that his posts were well-grounded in his “lived reality” and can be justified as valid, credible, and sincere political, religious, and cultural exhortations and satirical commentary. The Deputy President found that the Appellant’s opinion as to how other persons might view his posts to be irrelevant if the views expressed are contrary to his obligations to the Respondent. The Appellant also contended that the posts were legal and protected both the Victorian Human Rights Charter (ss14 and 15) and the Act’s anti-discrimination provisions (s.351). The Deputy President rejected this submission.
[14] Further, the Appellant claimed that none of the posts ought to be considered wilful or deliberate behaviour inconsistent with the continuation of his employment, having regard to the absence of relevant express terms of his contract of employment, the 2018 Agreement and its incorporated policies and procedures. To this point, the Deputy President found the Appellant was covered by express provisions of various policies, which by posting certain content, he breached and even if the Appellant were correct regarding the application of the policies, he was nonetheless satisfied that he would also be in breach of his implied duty of fidelity towards his employer.
[15] The Deputy President accepted that the Appellant did not hold a senior role in the ACTU nor did he have a large Facebook group. However, he found that those factors do not mean there was no risk of reputational damage to the Respondent. Similarly, the Appellant’s claim that his Facebook account did not name his employer, identify his geographical location, or contain any posts critical of the ACTU or its affiliates, was found to have no merit.
[16] In terms of the Appellant’s submission that the Respondent engaged in a campaign of harassment and discrimination against him, the Deputy President was not satisfied on the evidence that such a campaign occurred. The Appellant also contended that other staff had made similar posts on Facebook and that the Respondent was singling out his posts while tolerating others. The Deputy President rejected this argument and noted that none of the examples given attacked minority groups, applauded violence or championed anti-pandemic restriction protests.
[17] The Appellant also said he was not directed to remove the Facebook posts of concern. The Deputy President accepted that there is some merit to this contention, although it is undermined by the conduct having already occurred whereby the removal of the posts may have avoided further potential harm but would not remedy the original breaches.
Conclusion of s.387(a)
[18] In assessing whether there was a valid reason for dismissal, the Deputy considered the gravity of the conduct in the context in which the Facebook posts were made. Specifically, that the Respondent placed critical reliance on their reputation and is active in publicly advocating for social issues, and this context was understood by the Appellant.
[19] In applying the principles of Rose v Telstra to the Appellant’s conduct, the Deputy President was satisfied that the conduct was likely to cause serious damage to the relationship between the Respondent and the Appellant and that the conduct was incompatible with the employee's duty to the Respondent.
[20] The Deputy President was satisfied that the conduct constituted serious misconduct as the Appellant breached policies that he was bound to comply with under his contract of employment. He was also satisfied that the Appellant’s conduct satisfied the definition of Serious Misconduct found under Fair Work Regulations 2009 reg 1.07, as the conduct was wilful and deliberate behaviour that was inconsistent with the continuation of the contract of employment. Further it was conduct that caused a serious and imminent risk to the Respondent’s reputation.
[21] In conclusion, the Deputy President found that the Appellant’s conduct established a valid reason for his dismissal and that this weighed in favour of a finding that the dismissal was not unfair.
Notification of the valid reason – s.387(b)
[22] The Deputy President was satisfied that that the valid reason for the Appellant’s dismissal was notified to the Appellant before a decision to terminate his employment had been taken. This weighed in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
[23] Having regard to s.387(c), the Deputy President found that Appellant was not given an opportunity to respond to the reason for his dismissal prior to the decision being made, and that this weighs against a finding that the dismissal was not unfair, for the following reasons:
[170] The Applicant was invited to respond at the meeting conducted on 22 September 2021 to the concerns held by the ACTU regarding his Facebook posts. This was done by Alex White sharing the posts of concern during the Zoom meeting and then inviting the Applicant to explain each of the posts and how they were compatible with his employment with the ACTU and its values. While it was stated to the Applicant at the outset of the meeting that the posts were incompatible with the ACTU values and could damage the ACTU’s reputation, Alex White did not provide or articulate to the Applicant which values the posts were said to be inconsistent with, how they were inconsistent with those values and which if any policies or contractual terms the conduct was said to be breach of.
[171] It is also the case that the Applicant’s request for the allegations be put in writing was declined by the ACTU on the basis, according to Sarah Mitchell, that the matter could not then have been dealt with in a timely manner. I found that explanation unsatisfactory. It is difficult to see how a short delay to allow for the allegations to be put in writing to enable a considered response by the Applicant would have been problematic, particularly in circumstances where the Applicant had offered to remove the Facebook posts of concern.
[172] Having regard to the above, I am not satisfied that the Applicant had a proper opportunity to respond. While not essential for misconduct allegations to be put in writing to render a dismissal process fair, it must be said that the time between the Facebook posts becoming known and the decision to dismiss being taken was less than 24 hours. While the time period is not necessarily critical, what is of greater significance in my view is the absence of detail put to the Applicant as to the applicable policies and values that the conduct was said to be in breach of. That detail should have been put to the Applicant and was not. The failure of the ACTU to put the detailed allegations to the Applicant denied the Applicant an opportunity to respond to the reason related to his conduct relied on by the ACTU to dismiss him.
Support person – s.387(d)
[24] The Deputy President noted that The Applicant was accompanied by a support person in the meeting and that this factor is a neutral consideration.
Subsections 387(e)-(g)
[25] The dismissal did not relate to unsatisfactory performance and therefore s.387(e) was not relevant. There was no evidence that the size of the Respondent’s organisation impacted on the procedures followed in dismissing the Appellant and s.387(f) was therefore a neutral factor. Furthermore, the ACTU is an organisation that includes legal and workplace relations specialists and s.387(g) was considered a neutral factor.
Other relevant matters – s.387(h)
[26] The Appellant submitted that there were other matters relevant to the harshness of the dismissal, namely:
• the failure of the Respondent to follow the implied terms of the 2018 Agreement in respect of procedural fairness;
• the Respondent has not applied the same level of scrutiny to other staff members and their social media behaviour thereby engaging in double standards;
• potential violation of s.351 of the Act;
• a dismissal at a time of economic upheaval, rolling lockdowns and vaccine mandates was clearly designed to be malicious;
• a summary dismissal over legally protected Facebook posts and a mild Slack post against a backdrop of adverse action and discrimination;
• a good work history; and
• a level of political bias held against the Appellant.
[27] The Deputy President considered each of these matters and found that each weighed against a finding that the dismissal was harsh in the circumstances.
Conclusion
[28] Having considered each of the matters specified in s.387 of the Act, the Deputy President was satisfied that Appellant’s dismissal was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal which outweighed the other factors he identified.
[29] In considering the merits of the appeal, it is relevant to observe that an appeal under s.604 of the Fair Work Act 2009 (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[30] This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[31] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[32] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[33] The Appellant has provided extensive submissions to the Full Bench. We have summarised and distilled the appeal grounds as follows:
1. The Deputy President erred in finding there was a valid reason for the Appellant’s dismissal, and this constitutes a significant error of fact. The Appellant submits that there was no breach of his employment contract and that the Respondent had no right to interfere with the private beliefs of their staff. Further, that there is no evidence that the posts had the potential to damage the ACTU’s reputation or that they would cause serious and imminent risk to health or safety.
2. The Deputy President erred by applying invalid policies that were not a part of the Appellant’s employment contract, particularly the 2016 policies which did not go through the consultative committee process pursuant to clause 5.2 of the ACTU Staff Agreement. The Appellant also submits that even if the policies did apply to his employment, they would not prohibit him from publishing his political and religious beliefs on Facebook.
3. The Deputy President made significant errors of fact regarding various timelines, processes, interpretations of words, definitions and events surrounding the Appellant’s termination of employment. Further, the Appellant made various submissions about the Facebook posts in question, in essence he contends that the Deputy President’s findings limit his right to share his own genuinely held beliefs on his personal social media page and that the ‘objective truth’ of the posts was not properly considered.
4. Regarding the ‘Police Assault Post’, the Respondent made false or misleading statements about the affiliation of the Police Associations to them during their cross-examination of the Appellant and the Appellant claims that the Deputy President erred by not watching the video clip associated with the post.
5. The Deputy President made a significant error of law by failing to consider relevant precedents and placed too much weight on other precedents. To this end, the Appellant references Cameron Little v Credit Corp Group Limited T/A Credit Corp Group, 9 O’Keefe v William Muirs,10 Nirmal Singh v Aerocare Flight Support Pty Ltd,11 Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design12 and Malcolm Pearson v Linfox Australia Pty Ltd13 as being irrelevant to his matter. Further, that the Deputy President’s reliance on Blyth Chemicals v Bushnell14 is an error of fact.
6. The Deputy President failed to consider evidence that showed the Respondent’s “motivation and reasoning was capricious, fanciful and spiteful as it was politically motivated and discriminatory against me [the Appellant] for my comments posted on FB.” 15
Ground 1
[34] Ground 1 alleges that the Deputy President erred in finding there was a valid reason for the Appellant’s dismissal.
[35] It is apparent from the Decision, that the Deputy President considered the relevant authorities on whether the Appellant’s out of hours social media conduct was a matter that bore upon his employment. The Deputy President's analysis included consideration of which of the Respondent’s policies applied to the Appellant’s employment and whether each of the social media posts breached any of the applicable policies or were contrary to the public position of the ACTU. Having considered the Appellant’s conduct, the Deputy President also took into account the Appellant’s submissions on this issue, as he was required to. Ultimately, the Deputy President was satisfied that the Appellant’s conduct constituted serious misconduct and that it caused a serious and imminent risk to the Respondent’s reputation.
[36] The Deputy President approached the task of assessing the Appellant’s conduct and whether it founded a valid reason for his dismissal in an orthodox manner. He weighed the contextual factors against the Appellant’s conduct and concluded that the conduct did give rise to a valid reason for dismissal. It was in our view a discretionary finding that was open on the evidence before the Deputy President and no appealable error is disclosed.
Ground 2
[37] The Appellant’s second ground of appeal asserts that the Deputy President erred by applying invalid policies that were not a part of the Appellant’s employment contract. We find that that the Deputy President’s consideration of the policies was orthodox and open to him on the evidence. We note for completeness, that even if the Deputy President applied the incorrect policies this would not change the outcome of the proceedings as he was nonetheless satisfied that the Appellant would also be in breach of his implied duty of fidelity towards his employer. 16
Ground 4
[38] Turning to appeal ground 4, that the Respondent mislead the Deputy President and the Appellant in respect of the Police Assault Post. We accept that the Respondent may have been mistaken about the affiliation of various Police Associations to the ACTU. However, having regard to our finding in respect of appeal ground 1, we do not consider the error to be material. It does not disclose a significant error of fact in the Deputy President’s reasoning as required by s.400(2) of the Act, or any other appealable error in the determination of whether the Appellant’s dismissal was harsh, unjust and unreasonable. We consequently decline to grant permission to appeal in respect of ground 4.
Ground 3, 5 and 6
[39] Finally, we will consider appeal grounds 3, 5 and 6 together as they all relate to whether the Deputy President properly considered certain material and authorities in the Decision. We acknowledge the Appellant has identified what he considers to be many significant errors of fact and law in the Decision. It is unnecessary for us to engage with the arguments advanced by the Appellant in relation to these grounds for the following reasons.
[40] Many of the purported errors of fact identified by the Appellant in these grounds are repetitions of his submissions already made before the Deputy President at first instance. The Deputy President dealt at considerable length with the substance of the allegations put in relation to the Appellant’s conduct. In particular, as raised by the Appellant in ground 3, the Deputy President considered the interpretation of relevant words, timelines, processes, and events surrounding the Appellant’s dismissal. Similarly, we find that the Deputy President considered the Appellant’s assertions in relation to ground 5 at [80], [155] and [180] of the Decision. Overall, the analysis and findings by the Deputy President in the Decision are consistent with the analysis that would be expected in proceedings of this type. To this end, and addressing ground 5, the Deputy President considered the appropriate authorities as he was required to.
[41] Taking the Appellant’s grounds at their highest, even if he is correct in that the Deputy President did not properly consider some material or authority in the Decision, it remains necessary for the Appellant to demonstrate that there was not a valid reason for his dismissal. The Appellant was unable to establish in the proceedings before the Deputy President that there was no valid reason for his dismissal. For the reasons set out in this decision, the Deputy President’s findings in relation to valid reason remain undisturbed on appeal. Relevantly, the Deputy President appropriately weighed the factors in s.387 of the Act to make his ultimate finding that the Appellant’s dismissal was not unfair. 17
[42] Permission to appeal is consequently refused in relation to appeal grounds 3, 5 and 6.
[43] Having regard to the above matters and in light of the conclusions reached, we are not satisfied that appealable error has been identified in the Decision. It is apparent that the Deputy President applied a thorough and orthodox approach to the determination of the Appellant’s unfair dismissal application.
[44] Further, we are not satisfied for the purposes of s.400(1) that this appeal attracts the public interest. In particular, we do not consider that:
• There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• The appeal raises issues of importance and/or general application;
• The Decision at first instance manifests an injustice, or the result is counter intuitive; or
• The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[45] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
VICE PRESIDENT
Appearances:
C J Corry, for the Appellant.
S Kemppi, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
26 April.
Printed by authority of the Commonwealth Government Printer
<PR743500>
1 Conrad John Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 (‘the Decision’).
2 [1998] AIRC 1592 (3 December 1998).
3 Decision, [39] and [114].
4 This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
6 [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
7 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
8 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
14 (1933) 49 CLR 66.
15 F7 Notice of Appeal, page 42.
16 Decision, at [144].
17 Ibid, at [190]-[191].