[2014] FWCFB 3858
The attached document replaces the document previously issued with the above code on 11
June 2014.
Paragraph two rectified to correctly identify the parties for whom counsel appeared.
Timothy Zahara
Associate to Vice President Catanzariti
Dated: 12 June 2014
1
Fair Work Act 2009
s.604—Appeal of decision
Maritime Union of Australia, The
v
Harbour City Ferries Pty Ltd
(C2014/3782)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER RIORDAN
MELBOURNE, 11 JUNE 2014
Appeal against decision [2014] FWC 1880 of Commissioner Cambridge at Sydney on 20
March 2014 in matter number C2014/3463.
[1] This is an appeal by The Maritime Union of Australia (the MUA) against a decision1
(Decision) and order2 (Order) of Commissioner Cambridge made on 20 March 2014 in
relation to an application that Harbour City Ferries Pty Ltd (the Respondent) made under
s.418 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal on 23 May 2014, Mr Slevin of Counsel sought
permission to appear for the MUA and Mr Darams of Counsel sought permission to appear
for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act,
permission was granted to both parties to be represented.
Background
[3] The factual background of this matter was not in dispute. On 17 March 2014, the
Respondent directed employees to sail a passenger ferry, the “Collaroy”, to a fuelling facility
at White Bay to collect fuel and then return to the Balmain Shipyard to discharge the fuel.
Fuel is usually supplied to the Balmain Shipyard by a third party petroleum transport
company. However, due to concerns about the contamination of fuel conveyed by a barge
used by that third party supplier, the Respondent was required to use different means for
supplying fuel to Balmain shipyard. The Collaroy is a “Freshwater Class” vessel that usually
operates the Manly Ferry Service. While it was unusual for a passenger ferry to be used in this
way, it was not the first time that the Collaroy had been utilised for this purpose due to
ongoing issues with the purity of fuel provided by the third party supplier.
[4] On the morning of 17 March 2014, the Collaroy was scheduled to discharge fuel at the
Balmain shipyard. A crew consisting of a master, engineer and three general purpose hands
was organised to engage in this refuelling. At approximately 8:30am on 17 March 2014, an
MUA delegate informed the Respondent that the Collaroy would not be departing for fuelling
[2014] FWCFB 3858
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 3858
2
unless the Respondent provided a fourth general purpose hand to work on board. The MUA
made the Respondent aware of concerns, including in relation to health and safety issues, that
it held in opposition to the Respondent’s plan to use the Collaroy for re-fuelling purposes.
[5] On the afternoon of 17 March 2014, the Respondent filed an application pursuant to
s.418 of the Act for an order to stop industrial action.
Decision at First Instance
[6] The Commissioner heard the matter on 18-19 March 2014, and made his decision in
transcript on 19 March 2014. The edited text of the Commissioner’s decision was published
on 20 March 2014.
[7] Section 418 of the Act provides as follows:
“418 FWC must order that industrial action by employees or employers stop
etc.
(1) If it appears to the FWC that industrial action by one or more employees or
employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be
organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who
is likely to be affected (whether directly or indirectly), by the
industrial action;
(ii) an organisation of which a person referred to in subparagraph (i)
is a member.
(3) In making the order, the FWC does not have to specify the particular industrial
action.
(4) If the FWC is required to make an order under subsection (1) in relation to
industrial action and a protected action ballot authorised the industrial action:
[2014] FWCFB 3858
3
(a) some or all of which has not been taken before the beginning of the stop
period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in
after the end of that stop period without another protected action ballot.”
[8] Section 19 of the Act defines industrial action as follows:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in
which it is customarily performed, or the adoption of a practice in relation to
work by an employee, the result of which is a restriction or limitation on, or a
delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee
or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to
perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the
employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union v The Age Company Limited, PR946290, the Full Bench of the Australian
Industrial Relations Commission considered the nature of industrial action and noted
that action will not be industrial in character if it stands completely outside the area of
disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the
employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of,
employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about
an imminent risk to his or her health or safety; and
[2014] FWCFB 3858
4
(ii) the employee did not unreasonably fail to comply with a direction of
his or her employer to perform other available work, whether at the
same or another workplace, that was safe and appropriate for the
employee to perform.
(3) An employer locks out employees from their employment if the employer prevents
the employees from performing work under their contracts of employment without
terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see
section 11).”
[9] The Commissioner considered the argument of the MUA that the industrial action that
was identified was excluded from the definition of “industrial action” in s.19 of the Act as it
was based on a reasonable concern about an imminent risk to health or safety and found as
follows:
“[8] The determination of the application can be distilled to a question as to
whether the MUA and its members have a reasonable concern about an imminent risk
to health and safety arising from particular work on the vessel Collaroy whilst that
vessel is involved in what has been referred to as fuelling or bunkering operations. It is
unnecessary to describe in detail the particular work in question except to note that the
contest involves the number of general purpose hand (GPH) employees who may be
required to be on the vessel in order for the work to be performed safely.
[9] The evidence provided during the Hearing has established that the alleged
health and safety concerns have been raised on the basis that the MUA and its
members assert that 4 GPH employees rather than 3 should be engaged on the
Collaroy when it undertakes the fuelling operations.
[10] The evidence presented during the Hearing does not support the assertions of
the MUA and its members. The various regulatory requirements in respect to safe
working have endorsed that the work in question is able to be performed safely with 3
GPH employees. The assertions of the MUA and its members are of the nature of a
staffing level dispute as opposed to any reasonable concern of an employee about an
imminent risk to his or her health and safety.
[11] Further, there has been no direct evidence provided that any employee of HCF
had any concern, reasonable or otherwise, about an imminent risk to his or her health
or safety. The evidence has been confined to an elaboration of the concerns raised by
an official of the MUA, Mr Garrett, when he advised representatives of HCF, inter
alia, “that the MUA would not be allowing the Collaroy to be released from Balmain
Shipyard for fuelling with only three GPH staff.”
[12] Consequently for the reasons set out above, I do not believe that the industrial
action is based on a reasonable concern of an employee about an imminent risk to
health or safety. The industrial action taken by the MUA and its members is not
excluded from the definition of industrial action by virtue of any operation of
subsection 19(2)(c)(i) of the Act.
[2014] FWCFB 3858
5
[13] It is irrelevant whether industrial action is continuing, or to contemplate the
probability or possibility of further industrial action. An applicant seeking Orders
under s.418 may do so as a preventative measure in circumstances where an
established recourse to unprotected industrial action occurred in one set of
circumstances and is likely to be taken again in a repeat set of those circumstances or
in a completely different set of circumstances. Essentially, if the evidence establishes
that unprotected industrial action occurred then the application is made out and the Act
entitles the applicant to Orders. Therefore, pursuant to s.418 of the Act, the
Commission must Order that the industrial action stop.
[14] The Orders [PR548814] as broadly sought by Harbour City Ferries are granted
and issued separately.”
(References omitted)
[10] The Order that the Commissioner made was in broad terms, and included orders that
the MUA, its officers and members:
(a) stop and not commence, engage in, or threaten to engage in any industrial action;
(b) immediately stop organising any industrial action involving any of the Employees;
(c) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any
of the Employees to engage in industrial action; and
(d) not facilitate any industrial action by any Employee.
[11] The term Employee was defined as an employee of the Respondent whose
employment was covered by the Sydney Ferries Maritime (AMOU and MUA) Enterprise
Agreement 2012. The Order came into effect on 19 March 2014 and expired on 1 May 2014,
22 days before the hearing of this appeal.
The Appeal
[12] The MUA submitted that the Commissioner applied the wrong test in coming to his
Decision. It submitted that the Commissioner’s reasoning that “if the evidence establishes that
unprotected industrial action occurred then the application is made out and the Act entitles the
applicant to Orders”3 was contrary to the terms of the Act and contrary to authority.
[13] The MUA submitted that s.418 does not require an order to be made if industrial
action has already occurred. Instead, an order must be made if it appears to the Fair Work
Commission (the Commission) that unprotected industrial action is happening; or is
threatened, impending or probable; or is being organised.
[14] The MUA relied on the Full Court of the Federal Court of Australia decision in
Transport Workers’ Union of New South Wales v Australian Industrial Relations
Commission4 in which s.496 of the Workplace Relations Act 1996 (the predecessor to s.418 of
the Act) was considered. The majority found as follows:
[2014] FWCFB 3858
6
“For present purposes, it is enough to say that, in the absence of any finding
other than that industrial action, not being protected action, by employees was
happening, the Commission had no power to go beyond the making of orders
that the industrial action stop. Without it appearing to the Commission that
industrial action was threatened, impending or probable, the Commission was
under no duty, and had no power, to make any order that the industrial action
not occur. Similarly, in the absence of a finding that the industrial action was
being organised, the Commission had no duty, and no power, to make an order
that the industrial action not be organised.”5
[15] The MUA also relied on the Full Bench of the Fair Work Commission decision in
AMWU v UGL Resources Pty Ltd6 in which the Full Bench stated:
“The wording of s.418(1) of the FW Act, while similar to the wording of s.496(1) of the
WR Act, contains material differences in its concluding words. Those differences - the
substitution of “or” for “and” and the addition of “(as the case may be)” - make the
distributive operation found by the majority of the Full Court in relation to s.496(1)
even clearer in the case of s.418(1). Indeed, those changes bring the language of
s.418(1) into line with the language used by the majority of the Full Court in paragraph
[16] of its decision suggesting that the legislature intended to confirm the approach of
the majority of the Full Court in that regard.
...
It follows that FWA has no jurisdiction to make an order under s.418 unless it is
satisfied that unprotected “industrial action by one or more employees”:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised.
If FWA is satisfied that one of these alternatives exists then “FWA must make an
order that the industrial action stop, not occur or not be organised (as the case may
be).” Putting aside issues around what may be described as incidental or ancillary
‘machinery’ orders, these are the only types of order that FWA has power to make. If
FWA finds that unprotected industrial action is happening it has a duty to make an
order that that action stop. If FWA finds that unprotected industrial action is
threatened, impending or probable, it has a duty to make an order that that action not
occur. If FWA finds that industrial action is being organised then it has a duty to make
an order that the industrial action not be organised. However, FWA is not empowered
to make an order that industrial action stop unless it is satisfied that industrial action is
happening. FWA is not empowered to make an order that industrial action not occur
unless it makes a finding that industrial action is threatened, impending or probable.
FWA is not empowered to make an order that industrial action not be organised unless
it makes a finding that industrial action is being organised.”7
[16] The MUA submitted that the Commissioner did not find that unprotected action was
happening, or that it was threatened, impending or probable, or that it was being organised,
and that therefore the Commissioner was not empowered to make the orders that industrial
action stop, not occur and not be organised.
[2014] FWCFB 3858
7
[17] The MUA submitted further or in the alternative that the orders made by the
Commissioner were excessive and that there was no evidence or findings to justify such
orders.
[18] In response, the Respondent submitted that the MUA’s submissions relied on an
erroneous characterisation of the statutory task required to be performed by the
Commissioner. Section 418 requires the Commission to make orders if it “appears to the
FWC” that industrial action by one or more employees that is not, or would not be, protected
industrial action is happening, or is threatened, impending or probable, or is being organised.
It was submitted that an appeal against what “appears” to a decision maker as to what is
happening or probable requires only a level of satisfaction that the conduct is occurring or
probable. It was submitted that an appeal against a decision of this nature may be challenged
where the decision maker “misdirected itself in law,” took “irrelevant matters into account” or
reached a decision “so unreasonable that no reasonable authority could have reasonably
arrived at it.”8
[19] The Respondent submitted that the Decision does not reveal any errors of this kind,
nor of the kind that are relevant when a decision maker exercises discretion.9 It submitted that
the Commissioner was allowed considerable latitude, the relevant consideration being
confined only by the subject matter (unprotected industrial action) and the object of the
legislation allowing the formation of an opinion or subjective satisfaction then imposing an
obligation to issue an order.
[20] The Respondent also submitted that it was open to the Commissioner to make a
finding of fact on the basis of circumstantial evidence.10 It was submitted that the
Commissioner clearly established that industrial action had happened, and that the facts of the
case established that industrial action was continuing to happen or was probable. This was
due to the MUA’s “standing position” that the Collaroy could not be used for re-fuelling. This
standing position would preclude work being performed in the manner directed by the
Respondent if the Respondent decided again to refuse to take a supply of fuel from its
supplier. Given the Respondent’s ongoing concerns about fuel contamination and its
“contingency plan” which involved the use of the Collaroy in those circumstances, it was
inevitable that the industrial action would occur again.
[21] The Respondent also submitted that the Commissioner made a finding that industrial
action that occurs or occurred in one set of circumstances is “likely to be taken again in a
repeat set of those circumstances.”11 Therefore, it was submitted, despite some “infelicities”
of expression, the Commissioner came to the conclusion that industrial action was happening
or was probable. It was further submitted that this conclusion was open to the Commissioner
on the basis of the evidence before him.
[22] With respect to the MUA’s submission in relation to the scope of the Order, the
Respondent submitted that the words used in the Order were “synonymous with or a subset of
the concept of the organisation of industrial action” and that while they may be “unnecessary
verbiage,” nothing of any significance turns on their inclusion in the Order.12
[2014] FWCFB 3858
8
Permission to Appeal
[23] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the
public interest to do so.13 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,14 a Full Bench
summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters...”15
[24] The Respondent submitted that permission to appeal should be refused as the appeal is
not in the public interest, the Decision was not attended with sufficient doubt to warrant its
reconsideration on appeal and no substantial injustice would result if permission to appeal
was refused. It was submitted that no principles of law had been raised, and that the
Commissioner applied s.418 to the facts as found on the evidence before him.
[25] The Respondent further relied on a recent decision of the Full Bench of the Fair Work
Commission in which the following observations were made:
“We observe from the outset that had the period of operation of the Order expired by the
time of the hearing of this appeal, it is doubtful that we would have granted permission
to appeal in respect of this submission. There being no suggestion of any non-
compliance with any part of the Order at all, let alone the parts of the Order impugned
by the MUA’s alternative submissions, such an appeal would have been lacking in
utility.”16
[26] The Respondent submitted that the Full Bench’s observations were apposite in this
matter and that there was no utility in allowing an appeal in circumstances where s.418 orders
have expired and there is no suggestion of non-compliance with the orders.
[27] The MUA submitted that it was in the public interest for the “significant errors” in the
Decision to be corrected, and that the Decision manifests an injustice. It also submitted that
permission to appeal was justified on the basis that the appeal raises issues going to the
jurisdiction of the Commission, the Decision is attended with sufficient doubt so as to warrant
its reconsideration and the terms of the Order are excessive.
[28] We are of the view that there is no public interest in allowing the MUA permission to
appeal the Commissioner’s Decision. In this instance, there is no utility in allowing
permission to appeal given that the Order has expired. Allowing permission to appeal could
serve no practical purpose.
The Operation of Section 418 of the Act
[29] Despite our finding that there is no utility in allowing permission to appeal, it is
appropriate to make a few comments about the Commissioner’s Decision. There can be no
doubt that s.418 requires a finding that unprotected industrial action is happening; is
threatened, impending or probable; or is being organised. The Commissioner’s reasoning did
[2014] FWCFB 3858
9
not identify with sufficient particularity that the correct test was applied. It was, however,
open to the Commissioner on the evidence before him to make a finding that unprotected
industrial action was happening, was threatened, impending, probable or was being organised.
[30] Given the significant consequences of making an order under s.418 of the Act, it is
essential that a decision maker identify with sufficient particularity the basis of such an order
by making explicit reference to the criteria set out in s.418(1)(a)-(c) of the Act. Even taking
into account the expedited timeframe mandated by the Act for dealing with applications under
s.418, any decision that fails to adequately address the legislative criteria for the making of an
order will be unlikely to withstand even the most cursory scrutiny.
[31] In MUA v Patrick Stevedores Holdings Pty Ltd17 the Full Bench considered the scope
of orders made under s.418 that included orders that the MUA and its representatives not
“‘aid, abet, direct, procure, induce, advise, authorise or encourage’ the taking of unprotected
industrial action, as well as not organise it.”18 The Full Bench stated:
“... As we have earlier concluded, his Honour found that the MUA, through its officials
and its delegates at Patricks, had organised industrial action. That meant that a “not
organise” order directed at the MUA was required. However his Honour did not find
that the MUA itself and its officials had engaged in industrial action, and it is unlikely
that any such finding could have been made in any event. As was pointed out by the
majority in TWU v Australian Industrial Relations Commission [(2008) 171 IR 84,
[22]]:
‘Manifestly, the kind of industrial action to which s 496(1) is directed is not
industrial action that a union can engage in by itself. The subsection is directed
to “industrial action by an employee or employees, or by an employer”.’
The above passage refers of course to s.496(1) of the former Workplace Relations Act
1996, but s.418(1) of the Act likewise refers to ‘industrial action by an employee or
employees, or by an employer’, so that the industrial action which may be the subject
of a ‘stop, not occur or not be organised’ order is necessarily industrial action engaged
in by employees or employers, as the case may be. Thus, while a union can plainly be
ordered not to organise industrial action, it is difficult to see how under s.418(1) it can
itself be ordered to stop and not engage in industrial action which is engaged in by
employees. That is not to say however that, under a s.418(1) order, a union may not be
ordered to take a specifically-identified action if that is considered to be essential or
necessary to make effective an order that industrial action by employees stop or not be
engaged in.
We note that in TWU v Australian Industrial Relations Commission the Full Court
majority contemplated the possibility, without determining the issue, that a ‘stop and
not engage in’ order could be made against a union involved in industrial action by
employees on the basis of s.4(5) of the Workplace Relations Act, which provided that
in that Act ‘a reference to engaging in conduct includes a reference to being, whether
directly or indirectly, a party to or concerned in the conduct’. As the MUA pointed out
and Patrick conceded, there is no equivalent to s.4(5) in the current Act which is
capable of application to s.418.
[2014] FWCFB 3858
10
The extension of the obligations under the Order on the MUA and MUA
representatives not to ‘aid, abet, direct, procure, induce, advise, authorise or
encourage’ the taking of unprotected industrial action, as well as not to organise it,
may be jurisdictionally problematic. Insofar as these types of conduct may be
synonymous with or a subset of the concept of the organisation of industrial action,
they constitute unnecessary verbiage. However, to the extent that they may go beyond
the organisation of industrial action, they are beyond power unless justifiable as
essential or necessary to make effective the ‘not organise’ order or incidental to or
consequential upon the making of the order.”
[32] After considering a number of other aspects of the s.418 orders made in that case, the
Full Bench continued to observe as follows:
“We would observe generally (by reference to TWU v Australian Industrial Relations
Commission) that any order made under s.418(1) must ‘be essentially an order that the
relevant industrial action stop, not occur or not be organised, as the case may be’, and
‘the Commission is not empowered to choose whatever means it thinks likely to
enhance the attainment of the object of its orders, when it formulates those orders’; the
Commission must therefore ‘focus its attention on the essence of the powers conferred
on it, when it formulates its orders’. Orders of a ‘catch all nature’ or based on a
‘template’ may not be appropriate; there is a need to ‘carefully tailor orders ... in a
practical way so that no one set of orders will be appropriate in all cases’. We note that
the standard form for an application for orders under s.418(1) (Form F14 at point 5)
requires the applicant to set out in draft form the orders sought, and that his Honour’s
Order was issued in substantially the manner and form sought by Patrick.”19
[33] Similarly, in this matter, the Order issued by the Commissioner was in substantially
similar terms to those requested by the Respondent. Given that the Commissioner ordered that
the MUA “immediately stop organising any industrial action involving any of the
Employees”, there is nothing to suggest that the further orders that the MUA “not organise,
aid, abet, direct, procure, induce, advise, authorise or encourage any of the Employees to
engage in industrial action” were necessary to prevent the MUA from organising industrial
action. While the Respondent submits that this form of words was not more than
“unnecessary verbiage,” orders that are made in such broad terms have a significant impact on
those that are subject to the orders. This impact is particularly acute in circumstances where
civil penalty provisions apply, as is the case with orders made pursuant to s.418. In this
matter, it seems unlikely that orders of that breadth were required in order to ensure that the
industrial action stop, not occur or not be organised.
[34] In making an order under s.418, it is imperative that the order be confined within the
ambit of s.418(1), which provides only for an order “... that the industrial action stop, not
occur or not be organised (as the case may be) ...”. Orders that go further than this cannot be
justified by reference to s.418 of the Act, and risk exceeding the Commission’s power.
[2014] FWCFB 3858
11
Conclusion
[35] As the Order has expired, there is no utility in allowing permission to appeal.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A Slevin of Counsel for The Maritime Union of Australia.
J Darams of Counsel for Harbour City Ferries Pty Ltd.
Hearing details:
2014.
Sydney:
May 23.
Printed by authority of the Commonwealth Government Printer
Price code C, PR551896
1 Harbour City Ferries Pty Ltd v Maritime Union of Australia & Australian Maritime Officers’ Union [2014] FWC 1880.
2 PR548814.
3 Harbour City Ferries Pty Ltd v Maritime Union of Australia & Australian Maritime Officers’ Union [2014] FWC 1880,
[13].
4 (2008) 171 IR 84.
5 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84, 98 (Gray
and North JJ).
6 [2011] FWAFB 4777.
7 AMWU v UGL Resources Pty Ltd [2011] FWAFB 4777, [17]-[20] (Lawler VP, Drake SDP and Roe C).
8 Buck v Bavone (1976) 135 CLR 110, 118-119; Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197
CLR 611, 653-654.
9 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 205 and House v
The King (1936) 55 CLR 499, 505.
10 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, 276.
11 Harbour City Ferries Pty Ltd v Maritime Union of Australia & Australian Maritime Officers’ Union [2014] FWC 1880,
[13].
THE FAIR WORK A ISSION THE SEAA
[2014] FWCFB 3858
12
12 MUA v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736, [46].
13 Fair Work Act 2009, s.604(2).
14 [2010] FWAFB 5343.
15 GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343, [27].
16 MUA v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736, [41].
17 MUA v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736.
18 Ibid [42].
19 Ibid [52].
