Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Scott Ambrose, John David Bourke, Jamie Clifford, Andrew James Craker, Shelley Farr, Wayne Anthony Harris, Billy Jack, Leigh Moyle, Jonathon Neill, Breht Richardson, Scott Sawyer, Bradley Jon Smith, Deborah Wilson, Gera Brenda Wubs, Jason Lerch, David Haggath and Jamie Boulton
v
OS MCAP Pty Ltd
(U2022/10535, U2021/10536, U2021/1042, U2021/10543, U2021/10549, U2021/10550, U2021/10551, U2021/10554, U2021/10555, U2021/10556, U2021/10557, U2021/10558, U2021/10559, U2021/10560, U2021/10624, U2021/10628 and U2021/10630)

Application for relief from unfair dismissal – whether applicants were dismissed – applications dismissed.

Introduction

[1] The 17 applicants in these proceedings (Applicants) were employed by OS MCAP Pty Ltd (OS). The Applicants allege that they were dismissed by OS and their dismissals were unfair. OS denies both allegations.

[2] I heard all 17 unfair dismissal applications together because they arose from the same core factual matrix and the Applicants were all represented by Mr Walkaden, Senior National Legal Officer of the Mining and Energy Union (ME Union). Each of the Applicants gave evidence. They also tendered a witness statement by Mr Matthew Howard, Production Operator at the Mt Arthur coal mine (Mt Arthur), who was not required for cross examination. OS adduced evidence from Mr Timothy Witney, Production Manager at OS, Mr Jason Warea, former Superintendent at OS, Mr Simon Conley, former Line Engineer at OS, Ms Jessica Radisich, Specialist Production Analyst at OS, and Mr Kim Nguyen, former Production Manager at OS. The parties also tendered an agreed statement of facts, 1 an agreed tender bundle,2 and range of other documents.

Dismissal

[3] OS contends that the Applicants were not dismissed within the meaning of the Fair Work Act 2009 (Cth) (Act). It is appropriate to deal with this jurisdictional issue before any consideration of the merits of the applications.

[4] The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:

“(1) A person has been dismissed if:

(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

General principles

[5] The expression “termination at the initiative of the employer” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment 3 that is brought about by an employer and which is not agreed to by the employee.4

[6] In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. 5 

[7] Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship. 6 Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.7 The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited8 as follows (references omitted):

“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it… Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term … manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.” 9

[8] Abandonment of employment is an example of renunciation. It occurs where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. 10

[9] Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings. 11 Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.12

[10] The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. 13 The requisite employer conduct is the essential element.14

Relevant facts re dismissal

[11] OS provides production services at various assets in BHP’s Minerals Australia business.

[12] OS is part of the Operations Services business within the BHP Group.

[13] The services of OS are only provided at assets in the BHP Minerals Australia business, which includes coal and metalliferous mines.

[14] OS employs various categories of employees including Production Technicians to perform work to deliver its production services.

[15] OS provided production services at Mt Arthur.

[16] Mt Arthur is a large open cut coal mine producing thermal coal for export, with a small portion being sold domestically. It is located five kilometres south of the town of Muswellbrook in the Hunter Valley, New South Wales. The distance between Mt Arthur and the east coast of Australia is about 125km.

[17] Mt Arthur is a BHP Group asset.

[18] Mt Arthur is operated by Hunter Valley Energy Coal Pty Ltd (HVEC) and Mt Arthur Coal Pty Ltd (MAC Pty Ltd).

[19] Prior to 31 January 2022, and as at 1 November 2021:

•  BHP Group Limited, an incorporated Australian-listed company, and BHP Group Plc, an incorporated UK-listed company, were a dual listed company.

•  BHP Group Plc and BHP Group Limited had separate legal structures and share registers.

•  The BHP Annual report 2021 stated that:

“BHP Group Limited, an incorporated Australian-listed company, and BHP Group Plc, an incorporated UK-listed company, form a Dual Listed Company (DLC). These entities and their subsidiaries operate together as a single for-profit economic entity (referred to as 'BHP' or 'the Group') with a common Board of Directors, unified management structure and joint objectives.”

[20] Under the dual listed company structure:

•  MAC Pty Ltd and HVEC were wholly owned subsidiaries of BHP Group Plc; and

•  OS was a wholly owned subsidiary of BHP Group Limited.

[21] On 31 January 2022, BHP unified its corporate structure under BHP Group Limited, the incorporated Australian-listed company. As a result, OS, HVEC and MAC Pty Ltd are all currently wholly owned subsidiaries of BHP Group Limited.

[22] OS began production services at Mt Arthur in the first quarter of 2019 and ceased on 1 November 2021.

[23] OS began mobilisation of Production Technicians at Mt Arthur in or about March 2019.

[24] During 2019, OS held a number of engagement centres at which presentations were given to potential applicants for jobs with OS. The Applicants accept that it is not necessary for any findings to be made in these proceedings as to what was said at those engagement centres.

[25] Each Applicant was offered a written contract of employment by OS. The offer and contract of employment include the following relevant provisions:

“I am delighted to offer you the position of Operator Production in the OS Production team with Operations Services (the Company). The location of this position is outlined in Schedule 1 and will report to Supervisor Production (or such other person as nominated by the Company from time to time). Your employment will commence on 2 April 2019. You will be employed on a full time basis.

Please find enclosed with this Employment Agreement, the following sections and schedules:

•  Section 1: Employment Agreement Summary, which contains the terms and conditions that will apply to your employment in you accept this offer.

•  Section 2: Indicative Total Reward Statement, which sets out elements of the reward offering

Once you have read and understood these documents, you can accept the offer by confirming your acceptance with Avature within 5 working days.

I would like to take the opportunity to congratulate you on your selection and I am sure you will find this position both challenging and rewarding.”

“Section 1

Employment Agreement Summary

[26] Each Applicant accepted the offer of employment from OS on the terms set out in their written contract of employment.

[27] The contracts of employment accepted by the Applicants refer to their position as Operator Production. There is no difference between this position and the position referred to in other relevant documents as Production Technician.

[28] The Applicants commenced work at Mt Arthur at different times in the period between about 2 April 2019 and about 1 June 2020.

[29] On 20 July 2021, Mr Stephen Cole, General Manager of OS, made an announcement to OS Production Technicians, advising that a decision had been made that OS would not be required to provide production services at Mt Arthur after 1 November 2021. The announcement went on to provide the following information as to the future:

“Given the strong performance of the OS team at Mr Arthur Coal, we are extremely pleased that everyone will continue employment with OS as a result of this decision. All team member’s roles will continue with the OS Production team at another deployment.

This is the benefit of the OS model in action. We are in a fortunate position to offer continued employment with OS to manage these times that occur in the mining industry as out team members are employed to work on multiple sites across an East or West Coast Hub, rather than to work on a specific site.

…

Next steps

We will soon commence an employee preference process to assist you to identify opportunities to continue your career with OS and talk through the relocation package available to you. Your Superintendent will provide you with more information on this…” 15

[30] From commencement of the first shift on 20 July 2021, during pre-start meetings held on site at Mt Arthur, OS employees were notified of the cessation of production services at Mt Arthur and that OS would support and assist them and their families to relocate closer to their next placement. At these pre-start meetings, OS Production Technicians were provided with a copy of a Frequently Asked Questions (FAQ) document, which included a quick response code which provided them with access to an online Employee Preference Form (EP Form). The FAQ document included the following relevant information:

“Do we know when OS will no longer be required at Mt Arthur Coal?

Yes, a decision has been made to not renew the current Site Work Package. As a result, OS team members will not be required at Mt Arthur Coal past 1 November 2021. Between now and then we will work with everyone on options to continue employment with Operations Services. This is the benefit of the OS model; you are employed via an East Coast Hub to support multiple sites.

What does this mean for Operations Services employees?

We will continue to support stable jobs for our employees. All our employees will have ongoing employment with OS at an alternative deployment location.

You will have access to a relocation package to support you to continue employment.

We have commenced an Employee Preference Process with OS employees to work through your transition to an alternative location. We will be as open and transparent as possible throughout this process with our key focus being on the safety and wellbeing of our people. Our commitment is to communicate as regularly and as often as possible during this process.

What is the Employee Preference Process?

The Employee Preference Process (EPP) has been established to help us understand your preferred path through this change. The process will ask for your thoughts regarding:

1. Preferred alternate deployment locations (top 3);

2. Access to relocation support to reside closer to your next deployment;

3. Questions, concerns, and feedback you may have regarding the announcement; and

4. Any personal circumstances such as family and caring responsibilities we should take into consideration.

Through this change we are supporting OS employees to make decisions based on their

personal needs. We will seek to meet your preference of location, but we have to balance this with ensuring business requirements are met.

An eForm has been created for the EPP and will be made available from today for employees to complete. This can be accessed from any BHP or personal electronic device. A paper-based form is also available for those unable to complete this online. All forms must be completed by Friday, 6th August 2021.

The QR code below may be used to access the eForm. Open the camera on your phone or tablet and hold in front of the QR code. A link will appear for you to complete the survey.

[QR CODE]

What OS Production deployments could I transfer to?

Operations Services currently has a number of Production deployments operating across Queensland, Western Australia and South Australia. We are focusing transfer opportunities at the following locations. The closest townships are also listed as reference.

•  Blackwater, QLD (Blackwater, Emerald)

•  Caval Ridge, QLD (Moranbah, Clermont)

•  Olympic Dam, SA (Roxby Downs)

•  Peak Downs, QLD (Moranbah, Dysart)

•  Saraji, QLD (Dysart)

Each of the Queensland deployments currently operates on a 7/7 day and night shift roster (7 day shifts; 7 rostered off; 7 night shifts; 7 rostered off), commencing on either a Wednesday or a Thursday.

Our Olympic Dam deployment in South Australia currently operates a 2/1 day and night shift roster (7 day shifts; 7 nights shifts; 7 rostered off), commencing on a Thursday.

Will I be required to sign a new contract or agreement?

OS employees transferring to another OS role within the East Coast point of hire (Queensland and New South Wales inclusive), will not be required to sign a new contract or agreement. A letter confirming their next location will be issued to the employee as confirmation of this change.

OS employees transferring to another OS role outside of the East Coast point of hire, a new contract may be required. This will be discussed with you where applicable.

Where employees opt to access the relocation package, an addendum to their employment contract will be provided to detail and need to be signed to accept the terms and conditions associated with the relocation offer.

What occurs if I am due to transfer interstate but there are COVID-19 border restrictions?

Due to the dynamic nature of COVID-19 border closures and restrictions, we will work with you to avoid you being at a disadvantage wherever possible through this process.

In the event of a border closure impacting your ability to move interstate, we will address this with you at the time and accommodate you being able to continue working at Mt Arthur until 1 November 2021.

If you elect to commute from NSW to another state and are impacted by border closures, we will address this with you at the time and accommodate you being able to continue working wherever possible.

Can I stay at Mt Arthur Coal?

Operations Services is no longer required at Mt Arthur Coal past 1 November 2021. There are no options for Operations Services team members to remain working at Mt Arthur Coal with OS.

Can I get a job under the Mt Arthur EA? Or with the replacement Company/labour provider?

Mt Arthur is not currently offering roles. All OS team members will continue their role at other deployments across the East Coast hub. This means you can move to another deployment and continue working with OS.

I moved my family to the Hunter Valley after the last changes. I don’t want to move (or fly) to the Bowen Basin for work. What options do I have?

Your role as a production technician in the East Coast hub continues. There are roles available for all our team members at other deployments across the East Coast hub and OS will support you and your family to relocate to continue employment. This means you can move to another deployment and continue working with OS.

If you do not wish to continue employment with OS at another deployment or elsewhere with BHP, you will be required to resign. Where your resignation is aligned to or delayed until the end of the Site Work Package (1 November 2021) you may be eligible to receive a completion payment with your final pay. Further details will be provided during your 1:1 discussions.

What occurs if I decline the transfer with OS to an alternate deployment?

All OS employees are guaranteed ongoing employment with OS at an alternate location.

We appreciate though that, not all employees will wish to relocate or commute to an alternative OS deployment.

OS will continue to operate the MAC deployment through to 1 November.

For those not remaining with OS or BHP past this date, you will be required to resign. Where your resignation is aligned to or delayed until the end of the Site Work Package (1 November 2021) you may be eligible to receive a completion payment with your final pay. Further details will be provided during your 1:1 discussions.

If my role doesn’t exist at Mt Arthur anymore, why can’t I get a redundancy payment?

While you have been based at Mt Arthur Coal, you were employed within the East Coast hub and therefore can be directed to work at alternative locations as part of your role with Operations Services.”

[31] The EP Form included the following relevant information:

“Employee Preference Form | OS Production MAC – July 2021

As announced, the Site Work Package at Mt Arthur Coal will conclude on 1 November 2021. Commencing immediately, we have initiated the Employee Preference Process for all OS employees at this location.

The Employee Preference Process (EPP) has been established to help us understand your preferred path through this change. We are supporting you, our employees, to make decisions based on your personal needs. We will seek to meet your preference but we have to balance this with ensuring business requirements are met.

You are only required to complete this form once. Where an employee declines to participate in this process, Operations Services will be required to determine an outcome for the employee without the benefit of any preference information. Any personal information provided in this form will be used for the purposes described above and otherwise handled in accordance with the BHP Privacy Policy available publicly on the BHP website.

Should you have any questions regarding this form or the Employee Preference Process, please speak with your Leader.”

[32] On 20 July 2021, at around 8:30am Ms Allison Chauncy, on behalf of OS, informed Mr Jeff Drayton, District Vice President of the ME Union, of the cessation of services by OS at Mt Arthur. Ms Chauncy sent Mr Drayton an email later that same day which attached a copy of the announcement that had been sent to employees and a copy of the FAQ document.

[33] Commencing 20 July 2021, OS provided its Production Technicians with access to the EP Form, including in hard copy where requested, to complete and return to OS.

[34] On 22 July 2021, Mr Drayton sent a letter to Mr Cole. That letter included the following relevant statements:

“We note that the FAQ suggests that such an employee would be required to resign their employment. That is an incorrect statement of the legal position.

As explained above, such an employee is not required to resign. Rather, their employment with OS would come to an end by reason of their employment being terminated at the employer’s initiative. Consequently, such an employee would be entitled to redundancy pay.

We will be advising all of our members that don’t wish to accept a role with OS in Central Queensland that they should not resign from their employment.”

[35] On 28 July 2021, Ms Chauncy sent a letter to Mr Drayton. The letter states, in part:

“OS employees are employed in the role of Production Technician across the East Coast of Australia, not to work at one particular site. OS continues to require these roles to be performed and employees’ employment with OS will continue after the conclusion of the Site Work Package at Mt Arthur Coal.”

[36] On 4 August 2021, Mr Alex Bukarica, National Legal Director of the ME Union, sent a letter to Ms Chauncy referring to Mr Drayton's letter of 22 July 2021. Amongst other things, Mr Bukarica’s letter raised concerns about the requirement for OS Production Technicians to resign “in the event that they do not accept redeployment to a nominated mine site in Queensland”. 16

[37] On 18 August 2021, Ms Chauncy sent a letter replying to Mr Bukarica's letter of 4 August 2021. The letter states, in part:

“As you are aware, on 20 July 2021, OS Production communicated that it will no longer be required to provide the Services at Mt Arthur Coal Mine after 1 November 2021. OS Production also confirmed that it still requires OS Production employees to continue in their role and there will be no job losses for our employees.

On 20 July 2021, OS Production notified its employees currently working at the Mt Arthur Coal deployment about the conclusion of the Services and has provided those employees with information about what this means for them, including reinforcing to them that they will remain in their current roles after the conclusion of the Services (as OS Production still requires their roles to be performed), and options relating to their next deployment. OS Production has also commenced 1:1 discussions with the relevant employees and initiated an employee preference process to provide those employees with multiple avenues to provide feedback based on their personal circumstances and their preferences going forward. OS Production is continuing to engage in 1:1 discussions with its employees and to respond to any questions and feedback from employees. The CFMMEU is able to join these 1:1 discussions if invited by an employee to do so.

Shortly after OS Production commenced notifying employees about the conclusion of the Services, we sought to engage with Jeff Drayton, District Vice President, by providing to him notification and information regarding the conclusion of the Services and what this means for OS Production employees currently working at the Mt Arthur Coal Mine deployment. OS Production also invited Mr Drayton to engage in discussions regarding that notification and information. To date he has not sought to engage with us to discuss these matters.

Ongoing employment

OS Production employees are employed in the role of Production Technician across the East Coast of Australia, not to work at one particular site. As stated in their employment contract, during their employment as a Production Technician, they may be required to work on multiple sites across the East Coast of Australia as directed by OS Production.

Whilst the Services at Mt Arthur Coal Mine will end on 1 November 2021, OS Production continues to require Production Technician roles (including the relevant employees’ roles) to be performed across the East Coast of Australia, with currently operating deployments being in Queensland. Given this, there has been no decision to make any OS Production Technicians’ roles redundant (and therefore no obligation to consider redeployment opportunities or redundancy pay considerations arise) and we will be communicating with relevant employees about the location of their next East Coast deployment.

Although the nature of the OS Production employees’ roles is that they may be required to work across multiple sites on the East Coast of Australia, OS Production recognises the personal impact this may have on some employees currently residing in New South Wales. This is why OS Production has made an offer of relocation support to eligible employees and why it is seeking employees’ feedback based on their personal circumstances and their preferences going forward.

Given there has been no decision to make any OS Production Technicians’ roles redundant, it also follows that there has also been no misrepresentation to OS Production employees about their redundancy pay entitlements or other workplace rights as alleged in your correspondence.

Of course it is open to an OS Production employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason. OS Production would like to clarify that no employees will be forced, or asked, to resign. It is OS Production’s preference that all OS Production employees remain with OS Production after the conclusion of the Services.”

[38] On 24 August 2021, OS Production Technicians at Mt Arthur were informed that they had until 31 August 2021 to complete the Employee Preference Process. This was later extended to 2 September 2021. OS Production Technicians were also provided with a revised version of the FAQ document, which included the following relevant information:

“Will I be required to resign if I don’t agree to work at another OS deployment?

No, employees will not be forced, or asked, to resign. It is our preference that all employees remain with OS Production after the conclusion of the deployment at Mt Arthur Coal Mine on 1 November 2021 as we will continue to need you in your East Coast Production Technician role.

However, it is open to an employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason.

What is the Site Work Package (SWP) Completion Payment?

To ensure the completion of OS production services at Mt Arthur Coal, we will be introducing a SWP completion payment for eligible employees. The payment is a one-off lump sum payment made to an eligible employee at OS’ discretion, and will be paid to an eligible employee in the next full pay cycle following the conclusion of the SWP at 1 November 2021.

Do I need to resign in order to be paid the completion payment?

We had previously made you aware that you may be eligible to receive a completion payment, but that we had not finalised the details of that payment yet. We can now confirm that the completion payment is being offered by OS to eligible employees to secure the provision of OS Production’s services to the Mt Arthur Coal Mine up to and including on 1 November 2021.

Employees are not required to resign in order to receive the completion payment.

All OS Production employees who were working at the OS Production deployment at Mt Arthur Coal Mine on 20 July 2021 and who remain employed by OS as at 1 November 2021 will be entitled to receive the completion payment (subject to any unsatisfactory performance or misconduct).

What if I don’t want to move or travel to the Bowen Basin when OS concludes the provision of the Services at Mt Arthur Coal Mine?

Your role with OS Production as a Production Technician across the East Coast of Australia will continue after 1 November 2021. OS Production continues to require Production Technician roles to be performed across the East Coast hub, with currently operating deployments being in Queensland. OS Production will support you, and where applicable, your family to relocate closer to your next deployment should you wish to do so.

To the extent the previous FAQs may have suggested that employees would be required to resign in these circumstances, this is incorrect. We wish to clarify that no one will be required to resign. However, it is open to any employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason.

Currently the operating OS Production deployments within the East Coast hub are in Queensland. There is also an option for employees to consider a transfer to a South Australian role. If you do not wish to move or travel to another OS Production deployment within the East Coast hub, or transfer to a South Australian role, we will discuss your options and next steps during your 1:1 discussion.

What if I decide I am not going to transfer to another deployment on the East Coast?

Whilst OS will conclude the provision of the Services at Mt Arthur Coal Mine on 1 November 2021, all OS employees currently working at the OS Production Deployment at Mt Arthur Coal Mine are guaranteed ongoing employment with OS Production. OS Production continues to require Production Technician roles to be performed across the East Coast of Australia, with currently operating deployments being in Queensland.

Although the nature of your role is that you may be required to work across multiple sites within the East Coast hub, OS Production recognises the personal impact this may have on some employees currently residing in New South Wales. This is why OS Production has made an offer of relocation support to eligible employees and why it is seeking employees’ feedback based on their personal circumstances and their preferences going forward.

To the extent the previous FAQs may have suggested that employees would be required to resign in these circumstances, this is incorrect. We wish to clarify that no one will be required to resign. However, it is open to any employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason.

Currently the operating OS Production deployments within the East Coast hub are in Queensland. There is also an option for employees to consider a transfer to a South Australian role. If you do not wish to move or travel to another OS Production deployment within the East Coast hub, or transfer to a South Australian role, we will discuss your options and next steps during your 1:1 discussion.

What options do I have to keep living in New South Wales?

Operations Services does not dictate where team members live. You can live in the location that suits you and your family.

To the extent the previous FAQs may have suggested that employees would be required to resign if they wished to stay in New South Wales, this is incorrect. We wish to clarify that no one will be required to resign. However, it is open to any employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason.

Currently the operating OS Production deployments within the East Coast hub are in Queensland. There is also an option for employees to consider a transfer to a South Australian role. If you do not wish to move or travel to another OS Production deployment within the East Coast hub, or transfer to a South Australian role, we will discuss your options and next steps during your 1:1 discussion.”

[39] On 27 August 2021, Mr Drayton sent a letter to Ms Chauncy attaching 51 signed authorities by OS Production Technicians working at Mt Arthur. All of the Applicants, save for Mr Ambrose, signed one of these authorities. 17 The written authorities nominated Mr Drayton as the employee’s “representative in respect to all matters related to … The announced cessation of Operations Services (OS) work at the Mt Arthur mine … My legal rights and entitlements as an employee of Operational Services and/or BHP”.18

[40] In September 2021, OS initiated one-on-one discussions with the OS Production Technicians at Mt Arthur, either in person or by telephone, to discuss relocation arrangements. The Applicants accept that one-on-one discussions were held with them, but not all can recall the dates of their discussions.

[41] On 12 October 2021, Ms Chauncy emailed Mr Drayton responding to questions raised by him in a meeting they held on 23 September 2021. The email response was in the following terms:

“I refer to our discussion via Webex on 23 September 2021.

During this call, you requested a response from me in respect of the following two issues:

1. How OS intends to “lawfully sever” the employment relationship on 1 November with those employees who make the choice not to work at a Queensland Mine; and

2. You requested that OS speak with management of Mt Arthur Coal about directly employing OS employees to fill what you say are roles that will be left vacant following the conclusion of the Site Work Package for OS MCAP Pty Ltd (OS Production) for OS Production’s provision of production execution services at Mr Arthur Coal (Services).

As you know, OS Production employees are employed in the role of Production Technician across the East Coast of Australia, not to work at one particular site. As stated in their employment contract, during their employment as a Production Technician, they may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. Each of the employees with whom we have been discussing options for them, have netered contracts with OS on those terms.

Wilst the Services at Mr Arthur Coal Mine will end on 1 November 2021, OS Production continues to require Production Technician roles (including the relevant employees’ roles) to be performed across the East Coast of Australia. OS Production has work in Queensland that we wish the employees to perform. As such, OS Production has no wish to bring the employment relationship to end with any of its employees current working at the Mr Arthur Coal deployment. If, as you have said is the case for the employees you are representing, an OS Production employee withdraws their service and has no intention of complying with a fundamental term of their employment contract to work at other sites across the East Coast of Australia as directed by OS Production, that employee will be bringing their employment with OS Production to an end.

During our telephone discussion you stated that the employees, for whom you are the representative, will not work at a Queensland site where OS Production provides services and where it has work for them following the conclusion of the MAC Services. That is their choice of course, and OS respects that choice. It is open to an OS Production employee, as is always the case, to leave their employment with OS Production, if the role no longer suits their personal circumstances, or for any other reason. However, OS Production’s preferences is that all OS Production employees remain with OS Production after the conclusion of the Service.

To be clear, OS will not be bringing the employment to an end – it will end because of the employee’s own choice. OS Production hopes that it does not come to that. However, without prejudice of any other rights, OS will not insist on full notice from those employees in those cases.

In relation to your query about roles at Mr Arthur Coal, Mt Arthur Coal determines how it will resource the execution of its mine plan following the conclusion of the Services. If any OS Production employees are interested in pursing employment at Mr Arthur Coal or elsewhere within BHP, they are able to apply for any BHP roles currently advertised, which can be accessed on the Internal Jobs portal through the Digital Workspace. However, there is no requirement for OS Production to consider redeployment to Mr Arthur Coal as OS Production continues to require the relevant employees’ roles to be performed and its desire is for all OS Production employees currently working at the Mt Arthur Coal deployment to remain with OS Production.

OS Production is still engaging with relevant employees to finalise their position going forward. Please contact me if you wish to discuss.”

[42] From early October 2021, formal one-on-one conversations were had between those employees who had not yet engaged in the preference process and either Mr Waerea and/or Mr Witney (Phase 1 Conversations). For the Phase 1 Conversations, OS prepared FAQs.

[43] Phase 1 Conversations were conducted with each of the Applicants, excluding Mr Lerch who Mr Waerea was unable to contact by phone on 14 October 2021. The Applicants accept that one-on-one discussions were held, but not all can recall the dates of their discussions.

[44] At the conclusion of each Phase 1 Conversation, or in Mr Lerch's case after Mr Waerea was unable to contact him, each Applicant was provided with a letter in the same terms (Allocation Letter), save for personal details and commencement date for the deployment to the Blackwater mine (Blackwater). The Allocation Letter states:

“NOTIFICATION OF CONTINUING ROLE WITH OPERATIONS SERVICES

As you know, the OS production services at Mt Arthur Coal will conclude on 1 November 2021.

I refer to our 1:1 meeting on 20 September 2021 where you were advised of your options to choose on completion of the MAC services. At that meeting you indicated you did not wish to continue your role at another OS services location.

Nature of your role with OS across the East Coast of Australia

You are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.

This means that even though the OS production services at Mt Arthur Coal Mine will end on 1 November 2021, OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland.

The details of the continuing work we have available for you if you wish to reconsider your choice are as set out below for your reconsideration.

This work is available in accordance with your contract.

If you have changed your mind and have any concerns about the location or proposed roster, including the impact it will have on your family and caring responsibilities, please raise this with your current line leader for consideration by no later than 22 October 2021.

Of course if it is still your choice to leave your employment with OS Production on completion of its MAC services, and if the work at Blackwater Mine does not suit your personal circumstances, or for any other reason, we need to confirm that now. OS Production’s preference is that you, and all other OS Production employees, remain with OS Production after the conclusion of the OS production services at Mt Arthur Coal.

However I wish to make it clear, there has been and will be no decision to make you or your role redundant. This means you are not entitled to any redundancy pay and OS Production is not required to consider any redeployment opportunities with any other BHP entities.

What do you need to do now?

By 22 October 2021, please return a signed copy of this letter, to your line leader confirming either:

1. You still do not wish to continue your employment with OS.

2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at Blackwater Mine.

If you do not wish to continue your employment or you do not return a signed copy of this letter by 22 October 2021, this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021.

Should you have any questions or concerns, please direct these to your Line Leader. Thank you for your ongoing contribution and commitment to the Operations Services team.

Yours sincerely

Tim Witney
Manager Production

I, [Applicant’s Name] confirm the following:

[  ] I will commence work at {mine} as per the details set out in this letter.

[  ] I do not wish to continue my employment with OS Production

Signed: ________________________ Date: ________________________”

[45] Blackwater is a coal mine which forms part of the BHP Billiton Mitsubishi Alliance (BMA). 19 Blackwater is located about 200km west of Rockhampton. According to Google maps, the drive from Blackwater to Yeppoon, which is on the east coast and slightly further north from Blackwater, is about 237km.20

[46] By 22 October 2021, the impacted employees at Mt Arthur were required to return the Allocation Letter and indicate their work arrangement preference.

[47] Commencing on 22 October 2021, a second round of conversations were had between those impacted employees who had not yet replied to OS with either Mr Witney and/or Mr Waerea (Phase 2 Conversations). For the Phase 2 Conversations, OS prepared a document to assist the individuals conducting the Phase 2 Conversations.

[48] Phase 2 Conversations were conducted with each of the Applicants, excluding Mr Lerch who Mr Waerea was unable to contact by phone on 26 October 2021. The Applicants accept that one-on-one discussions were held, but not all can recall the dates of their discussions. At the conclusion of each conversation, or in Mr Lerch's case once Mr Waerea was unable to contact him, each Applicant was provided with a letter entitled “Your choice not to continue your employment with Operations Services”. That letter states:

“I refer to my previous letter to you on 12 October 2021 regarding your employment with OS Production.

As you know, you are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.

The OS production services at Mt Arthur Coal Mine, where you are currently working with OS Production, will conclude on 1 November 2021 as previously discussed with you. However, you were advised that OS Production continues to require your role to be performed at other sites currently operating services across the East Coast of Australia.

At the meeting held with you on 20 September 2021 you were advised of your options for other deployments on completion of the OS production services at Mt Arthur Coal. At the meeting or after that meeting you indicated you did not wish to continue your role at another OS services location.

My subsequent letter to you on 12 October 2021 advised you OS Production has provided you continuing work at Blackwater. You were asked to return a signed copy of that letter by 22 October 2021 confirming that either:

1. You do not wish to continue your employment; or

2. You will commence work at the mine allocated on the nominated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at the allocated mine.

My letter to you stated that if you did not return a signed copy of my letter by the time requested, this would indicate to OS Production that you do not intend to continue with your employment.

As you have not returned a signed copy of my letter, OS Production understands that you do not intend to continue with your employment.

Your employment with OS Production will come to an end in accordance by your choice with effect on 1 November 2021. Wages and any accrued but untaken leave will be paid up until that date.

Should you have any questions or concerns, please direct these to your Line Leader.”

[49] None of the Applicants returned a signed Allocation Letter to OS, nor did any of them attend for work at Blackwater in accordance with the Allocation Letter.

[50] Each of the Applicants informed OS that they were not prepared or willing to work at Blackwater.

[51] On 1 November 2021, OS ceased production services at Mt Arthur.

[52] On 1 November 2021, the employment of each Applicant with OS concluded.

Submissions re dismissal

Summary of Applicants’ submissions re dismissal

[53] The Applicants advance three separate arguments as to why they say they were dismissed within the meaning of s 386 of the Act. The first two arguments concern s 386(1)(a); the third argument concerns s 386(1)(b).

[54] The Applicants’ first argument proceeds on the footing that each Applicant was party to a contract of employment with OS that contained the Point of Hire Term. The Applicants contend that they were never given a direction by OS to work at Blackwater, with the result that their jobs remained at Mt Arthur. The Applicants say that the only direction contained in the Allocation Letter was a direction to return the signed letter to OS. Subject to the Applicants’ second and third arguments, they accept that if they were given a direction by OS to work at Blackwater, it would have been a lawful and reasonable direction.

[55] Secondly, the Applicants contend that even if they were given a direction by OS to work at Blackwater, Blackwater is not a “site across the East Coast of Australia” within the meaning of the Point of Hire Term. As part of this argument, the Applicants contend that there is ambiguity in the expression “multiple sites across the East Coast of Australia” and this ambiguity means that it is permissible to have regard to the following objective background facts as an aid to the task of interpreting the contracts:

(a) The job advertisements to which the Applicants responded clearly identified the job as being a job at Mt Arthur;

(b) The communications between the Applicants and OS/BHP in the period between when the Applicants applied for their jobs until they starting work with OS at Mt Arthur identified the job as being a job at Mt Arthur; and

(c) The covering email sent to each Applicant together with their contract of employment stated “We are delighted to confirm your offer of employment with BHP for the position of OS Production MAC…” [emphasis added by the Applicants]

[56] In their written outline of submissions filed before the commencement of the hearing, the Applicants contended that these objective background facts established that the jobs they were offered and accepted were jobs at Mt Arthur. 21 In closing oral submissions, Mr Walkaden contended, for the first time, that these objective background facts gave rise to an implied term in the contracts of employment made between each of the Applicants and OS that the job of each Applicant with OS was at Mt Arthur only.

[57] The Applicants contend that their jobs no longer exist because OS ceased work at Mt Arthur on 1 November 2021. The result, so the Applicants contend, is that they have been dismissed within the meaning of s 386(1)(a) of the Act.

[58] The Applicants’ third argument is premised on the footing that the job of each of the Applicants was not limited to Mt Arthur. The Applicants contend that the conduct of OS in changing the location where work was to be performed – from Mt Arthur to Blackwater – left each Applicant with no effective or real choice to resign. It is submitted that the Applicants’ conduct which constituted or demonstrated their resignation was not accepting the deployment to Blackwater. The Applicants submit that the resolution of the question of whether they were “forced” to resign is a question of fact and the answer may not be universal for each of the Applicants. That is because, so the Applicants contend, the issue requires consideration of each Applicant’s personal circumstances and reasons for being unable or unwilling to work at Blackwater, together with the common issue of COVID-19 related border closures between New South Wales and Queensland and the difficulties and cost associated with travel between the Hunter Region and Blackwater.

Summary of Respondent’s submissions re dismissal

[59] OS contends that the Applicants’ employment with OS ended because they renounced their contractual obligations by refusing to work at the new East Coast deployment at which OS required them to work, namely Blackwater. It follows, so OS contends, that the conduct of the Applicants terminated their employment relationships with OS.

[60] OS submits that the Applicants should not be permitted to run their argument that the expression “East Coast of Australia” in the Point of Hire Term is ambiguous because that argument was not advanced until the Applicants made their closing submissions, after the evidence was closed. It is submitted that the failure to advance or foreshadow this argument at an earlier time prevented OS from potentially adducing evidence of objective background facts to shed light on any ambiguity associated with the expression “East Coast of Australia”. Such evidence may have included what was said at the engagement centres. In any event, OS submits that the expression “sites across the East Coast of Australia” means any sites designated by OS to be across the East Coast of Australia, not a strict geographical area. Furthermore, OS contends that the Blackwater mine is plainly a “site across the East Coast of Australia” within the meaning of the Point of Hire Term.

[61] OS submits that the jobs of the Applicants were not jobs at Mt Arthur only, nor was there an implied term in the Applicants’ contracts of employment to that effect. It is submitted, among other things, that such contentions are inconsistent with the Point of Hire Term.

[62] As to the s 386(1)(b) argument, OS contends that the Applicants did not resign and, in the alternative, they were not “forced” to resign. It is submitted that the Applicants were expressly told they were not being asked to resign, they were being asked to continue working (at Blackwater) in accordance with their contracts of employment. OS contends that the Applicants had a choice to continue their employment in accordance with their contractual terms.

Consideration re dismissal

[63] The terms of an employee’s contract are important in determining the job in which the employee is or was employed and whether the employee has been terminated from that job. The issue was explained in the following way by a Full Bench of the Australian Industrial Relations Commission in Re Rubber, Plastic & Cable Making Industry (Consolidated) Award 1983 22 in the context of a redundancy situation:

“The reference to ‘the job’ is primarily a reference to the physical and mental tasks carried out for the employer, but aspects of the work, including location of the work, are not excluded from consideration as elements of the job. In a different statutory context there is a somewhat similar usage of the term under the United Kingdom Employment Protection (Consolidation) Act 1978 under which written particulars must be supplied to employees of the terms of employment, including "the title of the job which the employee is employed to do". There “‘job’ means the nature of the work which the employee is employed to do in accordance with his contract and the capacity and place in which he is so employed.”

For the location of employment to be accepted as an element of the job for the purposes of testing a redundancy situation, performance of work at a particular location needs to have been a term of the particular employment. A relocation of the work to be done in the course of employment may then justify a determination that the employer no longer wishes the job to be done if the relocation is unilaterally determined and is of such a degree that it is effectively a unilateral repudiation of the contract of employment. A relocation will not be in breach of the contract of employment if transferability within employment is an express or implied term of the original contract of employment, or if there has subsequently been a consensual variation of the terms of employment by agreement expressly made between the parties or able to be implied through conduct of the employer and employee.”

[64] Apart from a particular argument concerning Mr Moyle (which I address below), there is no dispute that (a) each Applicant was a party to a contract of employment with OS which included the Point of Hire Term and (b) the Point of Hire Term was enforceable and binding on the parties to the contract during their employment with OS. There is no suggestion in this case that the Applicants’ contracts of employment with OS have been vitiated by one of the recognised categories by which the law excuses parties from performance of a contract.

[65] The contracts of employment entered into by the Applicants with OS did not state that the Applicants would be employed at any particular location. However, the Point of Hire Term gave OS the right to require the Applicants to “work on multiple sites across the East Coast of Australia as directed by” OS. It also put the Applicants on notice that their deployment pursuant to this clause may be “inter-state”, in which case they would be provided with “advance notice of 4 weeks (unless a shorter period is mutually agreed)”. It follows that it was an element of the jobs the Applicants held with OS that they could be required to work at different locations “across the East Coast of Australia”. The other elements of the Applicants’ jobs with OS comprised the “collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation” to each Applicant. 23

[66] As to the interpretation of the Applicants’ contracts of employment with OS, including the Point of Hire Term, the proper approach to construction was explained by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited: 24

“[46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

[47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

[48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

[50] Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.

[51] Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption “that the parties ... intended to produce a commercial result”. Put another way, a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.

[52] These observations are not intended to state any departure from the law as set out in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales and Electricity Generation Corporation v Woodside Energy Ltd. We agree with the observations of Kiefel and Keane JJ with respect to Western Export Services Inc v Jireh International Pty Ltd.” (citations omitted)

[67] A further principle of construction is that an interpretation of a contract which accords with business common sense will be preferred to one which does not. 25

[68] On the topic of ambiguity and surrounding circumstances, the question of ambiguity is “not to be assessed by reading the words of the contract disembodied and removed from their context”. 26

[69] I accept that the Point of Hire Term is ambiguous in two respects. First, there is a constructional choice as to whether the “multiple sites” to which an employee may be deployed are (a) any work sites within the “East Coast of Australia” or (b) only sites owned or controlled by the BHP Group. Secondly, the expression “East Coast of Australia” is not defined in the contracts and there may be some doubt as to whether particular locations fit within that region. For example, there may be some real debate as to whether BHP’s mine at Olympic Dam in South Australia or a mine located in Broken Hill is within the “East Coast of Australia”.

[70] Although the Applicants’ outline of submissions dated 10 March 2022 included (at [31) the broad contention that there is ambiguity in the phrase “multiple sites across the East Coast of Australia”, it was not until closing submissions that the Applicants submitted that (a) there is ambiguity as to what is meant by the phrase “East Coast of Australia” and (b) Blackwater is not within the “East Coast of Australia” because it is not “on the coast”.

[71] The fact that these arguments were not raised until closing submissions caused prejudice to OS because it prevented OS from being able to potentially adduce evidence of additional surrounding circumstances which may have been able to shed light on what was objectively intended by the expression “East Coast of Australia”. For example, Mr Nguyen may have said something at the engagement centres to shed light on that matter. In any event, although I do not accept OS’s argument that the expression “sites across the East Coast of Australia” means any sites designated by OS to be across the East Coast of Australia, I am satisfied that Blackwater meets the description of a “site across the East Coast of Australia” within the meaning of the Point of Hire Term for the following reasons. First, the use of the word “across” in the expression “sites across the East Coast of Australia” suggests that the clause is referring to a region rather than a line following the east coast of Australia. Secondly, a reference to the “east coast” or “west coast” of a country is commonly understood, and would be understood by a reasonable person in the position of the parties, as a description of the eastern or western side of a country. Thirdly, all of the Applicants worked at Mt Arthur before they were deployed to Blackwater. Mt Arthur is not “on” the east coast of Australia. It is about 125km from the east coast. Blackwater is about 230km from the east coast. Looking at a map of Australia, Blackwater is relatively close to the east coast of Australia and comfortably fits within any common sense interpretation of a region described as “the East Coast of Australia”. These three reasons are sufficient to ground a firm conclusion that Blackwater is a “site across the East Coast of Australia” within the meaning of the Point of Hire Term. Although it is not necessary to do so, I add a fourth reason which further supports this interpretation. The fourth reason is that the interpretation I prefer is supported by objective background facts known to the parties before the contracts of employment were made. Those facts arise from a presentation given “at all the engagement centres conducted during the time there was an OS deployment at” Mt Arthur. 27 Each Applicant attended an engagement centre before commencing work with OS at Mt Arthur. The presentation given at all the engagement centres included a slide entitled “Where is Operations Services?”28 Beneath that heading is a map of Australia which shows the location of many BHP Group mines, including Mt Arthur and Blackwater, as well as the locations of “OS Production”, “OS Maintenance” and “OS Head Office”. It is clear from this map that none of the BHP Group mines are located “on” the east coast or west coast of Australia, but those mines, save for Olympic Dam, are plainly within the east coast region or the west coast region of Australia. The same applies for the locations where OS (referred to as “OS Production” on the map) was operating at the time those presentations were given. These objective facts support a conclusion that the proper construction of the expression “sites across the East Coast of Australia” includes Mt Arthur and Blackwater.

[72] As to the first ambiguity I identified in paragraph [70] above, namely that the expression “multiple sites” could arguably refer to either any work sites across the “East Coast of Australia” or only sites owned or controlled by the BHP Group across the “East Coast of Australia”, that question does not need to be resolved in this case. That is because Blackwater is a coal mine which forms part of the BHP Billiton Mitsubishi Alliance 29 such that it is a mine which is owned or controlled by the BHP Group. Accordingly, whether the narrower or broader interpretation of the expression “multiple sites” is preferred, Blackwater is clearly one of the “multiple sites across the East Coast of Australia” to which an Applicant could be deployed under the Point of Hire Term.

[73] As stated above, the Applicants seek to rely on the following three objective background facts to resolve the ambiguity which they contend is “inherent” in the Point of Hire Term:

(a) The job advertisements to which the Applicants responded clearly identified the job as being a job at Mt Arthur;

(b) The communications between the Applicants and OS/BHP in the period between when the Applicants applied for their jobs until they starting work with OS at Mt Arthur identified the job as being a job at Mt Arthur; and

(c) The covering email sent to each Applicant together with their contract of employment stated “We are delighted to confirm your offer of employment with BHP for the position of OS Production MAC…” [emphasis added by the Applicants]

[74] There is a factual question as to whether all the Applicants saw the job advertisement, or something like it, or received the communications and covering email relied on. However, I do not need to resolve those factual questions. That is because the objective background facts relied on do not shed any light on the ambiguities in the Point of Hire Term. They do not assist in the identification or resolution of ambiguity as to what is meant by one of the “multiple sites” or the “East Coast of Australia” in the Point of Hire Term. Further, the objective background facts relied on are equally consistent with the notion that the Applicants’ initial deployment was to Mt Arthur as they are with the jobs only being at Mt Arthur. The objective background facts say nothing about whether OS could deploy an Applicant to another work site pursuant to the Point of Hire Term, or where that other work site may be located.

[75] The Applicants seek to rely on the three objective background facts to ground two contentions. First, the jobs of the Applicants were at Mt Arthur only. Secondly, there was an implied term in the contract of employment of each Applicant with OS that the job of the Applicant with OS was at Mt Arthur only. As to this second argument, which was raised for the first time in closing submissions by the Applicant, it is rejected. An implied term must not contradict any express term of the contract. 30 An implied term that the job of an Applicant was at Mt Arthur only contradicts the Point of Hire Term, which permits OS to deploy the Applicant to “multiple sites across the East Coast of Australia”. Further, an implied term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it.31 The contracts for the Applicants with OS are clearly effective without a term limiting the job of each Applicant to Mt Arthur. The term sought to be implied into the contracts is not necessary to give business efficacy to the contracts. Finally, an implied term must be so obvious that it goes without saying.32 It is not obvious that the jobs of the Applicants must be limited to Mt Arthur only. OS plainly desired the flexibility to move its workforce around to a range of sites across the “East Coast of Australia” at which its services were required.

[76] As to the broad contention that the three objective facts relied on establish that the jobs of the Applicants were at Mt Arthur only, they constitute pre-contractual statements or representations which are “superseded by, and merged in, the contract itself”. 33 Where, as is the case here, the contracts of employment between each of the Applicants and OS are entirely in writing, the rights and obligations established in the contracts exclusively determine the relationship between the parties.34 The notion that the jobs of the Applicants were at Mt Arthur only is inconsistent with the Point of Hire Term. The extent to which the Applicants worked alongside and were integrated with other workers at Mt Arthur is an irrelevant consideration. One important aspect of the Applicants’ jobs with OS was that they could be deployed by OS to other “sites across the East Coast of Australia”. I reject the argument that the jobs of the Applicants were at Mt Arthur only.

[77] The Point of Hire Term is only engaged if an employee is “required” and “directed” by OS to work at another site “across the East Coast of Australia”. There is no debate between the parties as to what is meant by the words “required” and “directed” in the Point of Hire Term. Both words have their ordinary meaning. “Require” means “to ask for authoritatively or imperatively; demand”. 35 Justice Rangiah explained the difference between a “request” and a “requirement” in CFMMEU v OS MCAP Pty Ltd (No 2):36

“It can sometimes be difficult, to distinguish between a “request” and a “requirement”. There is an overlap and an area of difference between the two. The area of overlap is that both a request and a requirement can take the form of a question. The difference is that to “request” that a person do something is to leave the person with a choice as to whether or not to do the thing. On the other hand, to “require” involves asking or demanding that a person do something in a manner that indicates that there is no option but to comply…”

[78] The ordinary meaning of “direct” includes “to give authoritative instructions to; command, order or ordain (something): I directed him to do it, or that he do it”. 37

[79] I am satisfied on the written evidence before the Commission that OS “required” the Applicants to work at Blackwater and “directed” them to do so. The written evidence which supports this conclusion is the Allocation Letter, read in context with the written announcement made by Mr Cole on 20 July 2021, the FAQ documents issued to the Applicants, and the EP Form. I do not rely on the correspondence sent from OS to Mr Drayton and Mr Bukarica because the evidence does not reveal whether that correspondence was passed on to the Applicants, such that I could be satisfied that they received the instructions or information contained therein.

[80] I have read the whole of each of the documents on which I rely to be comfortably satisfied that OS “required” the Applicants to work at Blackwater and “directed” them to do so. I set out below some of the parts of these documents for the purpose of explaining my essential reasoning for reaching this state of satisfaction:

(a) In Mr Cole’s announcement, he informed the Applicants that “everyone will continue employment with OS as a result of this decision [for OS to cease work at Mt Arthur]. All team members’ roles will continue with the OS Production team at another deployment.” Mr Cole also emphasised that the Applicants were “employed to work on multiple sites across an East Coast or West Coast Hub, rather than to work at a specific site.”

(b) The EP Form advised the Applicants that:

“The Employee Preference Process (EPP) has been established to help us understand your preferred path through this change. We are supporting you, our employees, to make decisions based on your personal needs. We will seek to meet your preference but we have to balance this with ensuring business requirements are met.

You are only required to complete this form once. Where an employee declines to participate in this process, Operations Services will be required to determine an outcome for the employee without the benefit of any preference information.

…

Please note: Transfers between East/South hub deployments would only be initiated on the explicit request of an OS employee. OS will not require our employees to move from an OS deployment operating in New South Wales to an OS deployment operating in South Australia” 38

(c) The FAQ documents informed the Applicants that:

- OS “continue to need you in your East Coast Production Technician role.” 39

- “Your role with OS Production as a Production Technician across the East Coast of Australia will continue after 1 November 2021. OS Production continues to require Production Technician roles to be performed across the East Coast hub, with currently operating deployments being in Queensland.” 40

- “Through this change we are supporting OS employees to make decisions based on their personal needs. We will seek to meet your preference of location, but we have to balance this with ensuring business requirements are met.” 41

- “Individual circumstances will be taken into consideration in setting a transfer start date, as well as operational needs. All employees will receive a minimum of 4 weeks’ notice. Shorter notice periods may occur by mutual agreement between you and OS.” 42

- “Operations Services is no longer required at Mt Arthur Coal past 1 November 2021. There are no options for Operations Services team members to remain working at Mt Arthur Coal with OS.” 43

- “While you have been based at Mt Arthur Coal, you were employed within the East Coast hub and therefore can be directed to work at alternative locations as part of your role with Operations Services.” 44

(d) The Allocation Letter reminded the Applicants that they were “employed in a continuing role of Production Technician across the East Coast of Australia”. To further emphasise this point, the substance of the Point of Hire Term was set out in the Allocation Letter. The Applicants were then informed that “OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland” [emphasis added]. 45 Details of the “continuing work” available for each Applicant was then set out, including the “Site” (Blackwater Mine), “Crew”, “Proposed Initial Roster”, the name and title of the person to whom the Applicant would be “Reporting to”, “Commencement Date”, and “First Rostered Shift Commencement Date at Blackwater Mine”.46 The Allocation Letter went on to explain that the Applicants had a choice “confirming either … 1. You still do not wish to continue your employment with OS. 2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date” [emphasis added].47 Finally, the Allocation Letter informed the Applicants that if they did not return a signed copy of the letter to OS by 22 October 2021, “this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021.”48

[81] It was made pellucidly clear to the Applicants in the Allocation Letter, read in context with the other documents to which I have referred, that if they wished to remain in employment with OS they had no option other than to be deployed to Blackwater. The choice between cessation of employment and taking up the deployment to Blackwater did not give the Applicants a right to reject the deployment and remain employed with OS at Mt Arthur or some other location of their choosing. The Allocation Letter informed the Applicants that OS “continues to require you to perform your role at other sites” and then advised that they had been “allocated” to Blackwater, commencing on a particular date, in a particular crew, on a particular roster, and reporting to a particular supervisor. In my view, the allocation of Blackwater as each Applicant’s next deployment was an authoritative instruction. It was something which OS “required” to be done and was communicated to the Applicants by way of a “direction” within the meaning of the Point of Hire Term. The fact that the Allocation Letter spelt out in express terms what would happen if the Applicants did not agree to their deployment to Blackwater, namely the cessation of their employment with OS, did not render the “allocation” any less of a “direction” or a “requirement”.

[82] Because I am satisfied on the basis of the written evidence that OS “required” the Applicants to work at Blackwater and “directed” them to do so, I do not need to decide OS’s alternative argument that an oral direction was given to some of the Applicants in their conversations with Mr Witney and/or Mr Nguyen.

[83] None of the Applicants returned a signed Allocation Letter to OS, nor did any of them attend work at Blackwater in accordance with the directions given to them in the Allocation Letter. Each of the Applicants told OS that they were not prepared or willing to work at Blackwater. It follows that the Applicants failed to comply with a lawful and reasonable direction and refused to work at the new East Coast deployment at which OS required them to work in accordance with the Point of Hire Term. The Applicants’ conduct in this regard constituted a renunciation of their contractual obligations – specifically, of the fundamental obligation to work at East Coast sites as directed by OS. That obligation was fundamental because OS’s business is as a services provider to multiple mine sites in Australia, the Applicants’ jobs with OS were not site specific, and OS’s business requires that it be able to deploy its employees to work at multiple locations. The conduct of the Applicants conveyed a refusal to work in accordance with the promises given in their contracts of employment.

[84] Put another way, the Applicants abandoned their employment by refusing to work at their new deployments at Blackwater. 49

[85] OS accepted the Applicants’ repudiation of their contracts of employment. 50 However, it was the Applicants’ renunciation which effectively brought the employment relationship between them and OS to an end. This is not a case in which it was action on the part of OS that was the principal contributing factor which resulted, directly or consequentially, in the termination of the Applicants’ employment. Accordingly, the Applicants’ employment with OS was not terminated on OS’s initiative within the meaning of s 386(1)(a) of the Act.

[86] As to the Applicants’ argument under s 386(1)(b) of the Act, it is rejected on two grounds. First, the Applicants did not resign. Secondly and in the alternative, even if it was concluded that the Applicants resigned, they were not forced to do so because of conduct, or a course of conduct, engaged in by OS.

[87] None of the Applicants informed OS that they were resigning or had resigned. Their conduct in that regard is consistent with the advice given to most of the Applicants by the ME Union not to “resign from their employment” with OS and not to sign anything. 51

[88] The absence of an express statement of resignation is not fatal to the Applicants’ contention that they resigned, for the test is an objective one which depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances. 52

[89] OS points to the fact that none of the Applicants gave OS four weeks’ written notice of their resignation in accordance with the express terms of their employment contract. 53 I do not give much weight to the absence of four weeks’ written notice from the Applicants to OS of their resignation in determining whether or not the Applicants did in fact resign. There is no doubt that an employee or an employer can terminate their employment relationship without giving notice in accordance with the terms of any applicable contract of employment.

[90] It is contended by the Applicants that their conduct in not accepting the deployment to Blackwater demonstrated that they had resigned. I disagree. Their conduct in that regard, coupled with the fact that none of the Applicants returned the Allocation Letter to inform OS of their decision not “to continue … [their] employment with OS”, 54 would have demonstrated to a reasonable person in the position of the parties that they were not willing to comply with a direction given to them in accordance with their employment contract to be deployed to Blackwater. In my assessment, the objective position, based on what OS and each Applicant did and said, in light of the surrounding circumstances, was that none of the Applicants resigned from their employment with OS.

[91] One of the Applicants, Ms Wilson, said to Mr Witney, “I'm not quitting and I'm not resigning. And I'm not signing this [Allocation Letter]”. 55 Ms Wilson’s conduct in this regard further supports my finding that she did not in fact resign from her employment with OS.

[92] As to the Applicants’ contention that they were forced to resign, although the original FAQ document advised the Applicants that they would be “required to resign” if they did not wish to take up “ongoing employment with OS at an alternate site”, in later FAQ documents and the Allocation Letter OS advised the Applicants that they would not be “forced, or asked, to resign” if they did not agree to work at another OS deployment. 56 The Allocation Letter also informed the Applicants that they were required to continue to perform their role with OS in accordance with their employment contracts.57 I accept OS’s contention that the Applicants were not forced to resign any more than they were forced to accept employment with OS in the first place, and in doing so to accept the term of the contract which provided that they may be required to work at any “site across the East Coast of Australia”. The Applicants had a choice to continue to work with OS in accordance with those contractual terms.

[93] The Applicants point to their personal circumstances as reasons why they could not, or did not wish to, accept the deployment to Blackwater. In many cases, those same personal circumstances persisted when the Applicants commenced employment with OS. In any event, the personal circumstances of each Applicant were not caused by OS. The primary focus of the inquiry under s 386(1)(b) is on the employer’s conduct. 58 In this case, OS sought to hold the Applicants to the Point of Hire Term. The reliance by OS on its contractual rights to facilitate ongoing work is the antithesis of conduct which is intended or likely to have the effect of bringing the employment to an end.

[94] I accept OS’s contention that the Applicants were in the situation they were in, because:

(a) they chose to accept, and maintain, employment with a company that provided services to mine sites across the East Coast of Australia, on the basis that they could be required to work at any East Coast mine;

(b) there was no more work for OS or its employees at Mt Arthur after 1 November 2021, because the operator of the mine, not OS, decided not to engage OS’s services after that time; and

(c) the Applicants determined that their personal circumstances and preferences did not suit continuing to work for OS at a deployment based at a different East Coast mine site.

[95] A significant number of OS’s employees who had been deployed at Mt Arthur accepted a deployment to Blackwater or another BHP coal mine based in Queensland in about November 2021. There is no doubt that border closures between Queensland and New South Wales in late 2021 and early 2022 would have caused some logistical issues, inconvenience and likely cost to be incurred by those OS employees. However, I am not satisfied on the evidence that these types of issues, or the explanations given to the Applicants about how OS would support them in the event of border closures, 59 “forced” any of the Applicants to resign.

[96] For the reasons given, I am satisfied that OS did not intend to bring the Applicants’ employment to an end, nor was termination of employment the probable result of OS’s conduct such that any of the Applicants had no effective or real choice but to resign. In my assessment, the Applicants were not forced to resign from their employment with OS because of conduct, or a course of conduct, engaged in by OS within the meaning of s 386(1)(b) of the Act.

Mr Moyle

[97] In final closing submissions, Mr Walkaden contended, for the first time, that Mr Moyle was not bound by the Point of Hire Term because the written contract he signed was with OS ACPM Pty Ltd (OS Maintenance). Although Mr Moyle accepts that he was employed by OS, he says that he had no written contract with OS and therefore the Point of Hire Term did not form any part of his contract with OS.

[98] It is common ground that OS Maintenance is a separate legal entity to OS, OS Maintenance is involved in the provision of maintenance services, whereas OS is involved in the provision of production services, and OS Maintenance has never been engaged to provide maintenance services at Mt Arthur.

[99] The argument that Mr Moyle was not bound by the Point of Hire Term was not only raised for the first time in closing submissions, but it is contrary to the case being run on behalf of Mr Moyle at all times prior to final closing submissions. So much is clear from the following:

(a) In his Form F2 unfair dismissal application, Mr Moyle contended that he was employed by OS and then explained why he believed his dismissal was unfair:

“1. The terms of the employment contract between the Applicant and OS MCAP Pty Ltd (hereafter OS) (hereafter the Contract) specify that the Applicant was employed in the position of “Operator Production in the OS Production Department”.

2. OS is a wholly owned subsidiary of BHP Group Ltd (hereafter BHP), which is the ultimate BHP company incorporated in Australia and listed on the ASX. OS is self-described as an asset or team in the BHP group that provides production services. The services of OS are only provided to other BHP entities in the BHP Minerals Australia business, which includes BHP’s coal and metalliferous mines.

…

13. OS’ contentions are squarely based on the “point of hire” term of the Contract, which is set out below:

During your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed).

14. It is evident that term [sic] – at its highest – enables OS to direct the Applicant to work on any number of sites on the East Coast of Australia. Importantly, on the SWP coming to an end at the Mt Arthur Mine, OS never sought to direct the Applicant to transfer to the Blackwater Mine or any other site on the East Coast of Australia. Rather, as has been explained, OS merely sought to facilitate the Applicant transferring sites.

15. During the course of the Applicant’s employment with OS, the Applicant was only ever directed by OS to work at the Mt Arthur Mine. Plainly, that direction was consistent with the “point of hire” term in the Contract.

…

18. As emphasised above, the Contract plainly states the position of the Applicant. In doing so, there is no reference whatsoever to where work is to be performed. Rather, the relevant term of the Contract – at its highest – merely equipped OS with the capacity to direct the Applicant to work on multiple sites. As has been explained, the Applicant was only ever directed – consistent with the Contract – to work at the Mt Arthur Mine. Put simply, consistent with the terms of the Contract, work was only ever performed at the Mt Arthur Mine.

19. In other words, the fact that the Applicant was only ever directed to perform work at the Mt Arthur Mine means that the Applicant’s employment (and job) must be interpreted as being an Operator Production at the Mt Arthur Mine.

20. The “point of hire” term in the Contract must be read in that way to ensure that it has legal effect. Otherwise, if that term is to be read as having the effect that the Applicant’s employment (and job) is an Operator Production at any site on the East Coast of Australia it plainly disentitles the Applicant from redundancy pay in circumstances where the work made available by the employer is outside of the Applicant’s general locality…”

(b) The Form F3 response filed and served by OS made specific reference to the written terms of Mr Moyle’s contract of employment with OS, including the Point of Hire Term.

(c) Mr Moyle’s witness statement in chief dated 4 March 2022 60 includes the following relevant paragraphs:

“13. On 15 May 2019, I received a letter from Jared Waerea who was recorded as being the Superintendent Production with BHP – Operations Service. That letter was on BHP letterhead. Enclosed with that letter was a document entitled “Employment Agreement Summary” (hereafter the Contract).

14. The Contract records that the employing company was OS ACPM Pty Ltd (OS ACPM). I don’t believe this was ever corrected or that I later received a contract from OS MCAP Pty Ltd (OS).

15. After starting work at MAC, my wages were paid by OS ACPM.

16. The Contract records that I was employed in the position of “Operator Production in the OS Production Department”.

17. The Contract includes an item described as “Point of Hire”, which stated …”

(d) Mr Moyle’s reply witness statement dated 3 May 2022 61 does not include any information which is relevant to this issue.

(e) An outline of submissions dated 10 March 2022 was filed on behalf of all the Applicants. No specific mention was made of Mr Moyle, or the terms of his contract with OS, in those submissions. Instead, the submissions included the following contentions [emphasis added]:

“20. OS contends that the Applicants have not been dismissed within the meaning of s.386 of the FW Act. This contention rests exclusively upon the “point of hire” term in the OS boilerplate contract of employment that each Applicant was party to…

...

29. Each Applicant was party to a contract of employment with OS that was in identical terms. The “point of hire” term in each contract is reproduced below …

30. It is evident that the “point of hire” term provided OS with ability to direct the Applicants to work on any site across the East Coast of Australia.”

(f) OS’s outline of written submissions dated 19 April 2022 contends, amongst other things, (at [9]) that “Each of the Applicants’ contracts of employment with the Respondent contains a “point of hire” clause (East Coast Clause) that states …”

(g) The Applicants’ outline of submissions in reply dated 10 May 2022 does not take any issue with the contention by OS that each Applicant was party to a contract of employment that included as one of its terms the Point of Hire Term. To the contrary, the Applicants asserted in their outline of submissions in reply (at [6]-[7]) that “There was no renunciation for the simple reason that the respective contract of employment only imposed an obligation on each Applicant to work on literally any site on the East Coast of Australia where a direction to that effect was issued. The facts of this case clearly demonstrate that no such direction was issued.” [emphasis added]

(h) Mr Walkaden did not make any opening oral submissions relating to Mr Moyle or the terms of his contract with OS.

[100] Trial by ambush is not an acceptable or accepted feature of modern litigation in Australia. 62 Although the Commission is not a tribunal of strict pleadings, the purpose in requiring parties to file and serve applications, responses, outlines of submissions and witness statements before a hearing is to ensure that each party is aware of the case being pursued by the other party and has a fair opportunity to respond to it. By failing to disclose, prior to final closing submissions, that Mr Moyle was contending that he was not a party to a contract which included the Point of Hire Term, and indeed running a case to the contrary, Mr Walkaden sought to ambush OS. Not only was this procedurally unfair, it prejudiced OS from an evidentiary perspective because it prevented OS from adducing evidence that may have been capable of overcoming Mr Moyle’s argument. For example, had OS been on notice of Mr Moyle’s argument, it may have been possible for OS to adduce evidence, both from its witnesses and by cross examining Mr Moyle, and argue that there was a mutual mistake and it was the true intention of both parties to the contract of employment between OS and Mr Moyle that the Point of Hire Term be included as a term of the contract. It may also have been possible for OS to argue and lead evidence to support alternative arguments that the Point of Hire Term was an implied term of Mr Moyle’s contract or that the Point of Hire Term became a term of Mr Moyle’s contract of employment with OS when Mr Moyle’s roster and/or crew was changed in January 2021 and he received a letter which stated that “All other terms and conditions of your employment including remuneration, superannuation and leave entitlements remain unchanged as per your Employment Agreement.”63 Permitting Mr Moyle to pursue this new case in final closing submissions would have resulted in the proceedings being adjourned while OS prepared evidence and argument in relation to this issue. Mr Moyle would most likely have been needed to be recalled for further cross examination and OS’s witnesses on this new issue may have been required to give oral evidence and be cross examined. All of this would have inevitably resulted in a delay in the finalisation of Mr Moyle’s unfair dismissal case, which, together with the other 16 related applications for unfair dismissal, had been listed together, some months ago, for a seven day hearing before the Commission.

[101] In all the circumstances, I am not prepared to, and do not, permit Mr Moyle to change his case in his final closing submissions to argue that he was not bound by the Point of Hire Term. It would not be fair or just 64 to permit Mr Moyle to change his case in this way, nor would it ensure that a “fair go all around” was accorded to both the employee and employer in this case.65

Conclusion

[102] Because the Applicants were not dismissed, they cannot have been unfairly dismissed within the meaning of the Act. 66 Accordingly, the application made by each Applicant for relief from unfair dismissal is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr A. Walkaden, Senior National Legal Officer of the Mining and Energy Union, for the Applicants
Ms H. Blattman, Counsel, for the Respondent

Hearing details:

2022.
Newcastle
12, 13, 16, 17 and 18 May.

Printed by authority of the Commonwealth Government Printer

<PR742558>

 1   Ex A6

 2   Ex A7

 3   NSW Trains v James [2022] FWCFB 55 at [45]

 4   Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

 5   Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200

 6   Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [53]-[55]; NSW Trains v James [2022] FWCFB 55 at [62]; Abandonment of Employment [2018] FWCFB 139 at [21]

 7   Abandonment of Employment [2018] FWCFB 139 at [21]

 8   [2007] HCA 61

 9   At [44]

 10   Abandonment of Employment [2018] FWCFB 139 at [21]

 11   Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

 12   Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

 13   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

 14   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

 15   Ex A7 at pp 181-2

 16   Ex A7 at p 201

 17   Ex A7 at pp 213-263

 18   Ex A7 at p 213

 19   Ex R7 at JW-1, “Where is Operations Services?”

 20   I have taken judicial notice of these facts concerning the location of Blackwater. No evidence was adduced on the topic.

 21   Applicants’ outline of submissions dated 10 March 2022 at [42]

 22   [1989] AIRC 528; (1989) 31 IR 35 at 48-49; applied in DL Employment Pty Ltd v AMWU [2014] FWCFB 7946 at [41]

 23   Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308

 24   (2015) 256 CLR 104

 25   Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 437

 26   Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 at [45]

 27   Ex R7 at [17]

 28   Ex R7 at JW-1

 29   Ex R7 at JW-1

 30   BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26

 31   BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26

 32   BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26

 33   Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352

 34   CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 at [44]; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [8]-[9]

 35   CFMMEU v OS MCAP Pty Ltd (No 2) [2022] FCA 132 at [81]

 36   [2022] FCA 132 at [82]

 37   Macquarie Dictionary, Revised Third Edition

 38   Ex A7 at pp 190-191

 39   Ex A7 at p 205

 40   Ex A7 at p 206

 41   Ex A7 at p 207

 42   Ex A7 at p 209

 43   Ex A7 at p 210

 44   Ex A7 at p 210

 45   Ex A7 at p 279

 46   Ex A7 at p 279

 47   Ex A7 at p 280

 48   Ex A7 at p 280

 49   Abandonment of Employment [2018] FWCFB 139 at [21]

 50   Ex A7 at p 328

 51   Ex A7 at p 195

 52   Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]

 53   Ex A7 at pp 109-110

 54   Ex A7 at p 279

 55   Transcript at PN488-490; Ex A13 at [33]-[34]

 56   Ex A7 at p 205

 57   Ex A7 at p 279

 58   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]

 59   See, for example, Ex R6 at [62]

 60   Ex A11

 61   Ex A12

 62   Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [33]

 63   Ex A11 at LSM-2

 64   Section 577(a) of the Act

 65   Section 381(2) of the Act

 66   Section 385(a) of the Act