1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance
(AG2014/9788)
DEPUTY PRESIDENT ASBURY BRISBANE, 6 MARCH 2015
Application for approval of the BMA Daunia Mine Enterprise Agreement 2014.
BACKGROUND
[1] Central Queensland Mining Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance
(BMA) applies under s. 185 of the Fair Work Act 2009 (the Act) for approval of the BMA
Daunia Mine Enterprise Agreement 2014 (the Agreement). The Agreement is expressed to
cover and apply to the Construction, Forestry, Mining and Energy Union - Mining & Energy
Division (the CFMEU), the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) - Metal
and Engineering Division (the AMWU) and the Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical
Trades Division (the CEPU). Each Union was also a bargaining representative in respect of
the Agreement.
[2] The CFMEU and CEPU each filed a Form F18 - Statutory declaration of employee
organisation in relation to an application for approval of an enterprise agreement (Form
F18), indicating that they did not support the approval of the Agreement. Directions were
issued requiring parties to file submissions and witness statements to enable a hearing in
relation to the matter to be conducted. At that hearing the CFMEU appeared and pressed its
objection to the application for approval.
[3] The AMWU corresponded with the Commission prior to the hearing in relation to this
matter advising that it would not be appearing further in the matter and that it had not signed
the Agreement nor had it filed a Form F18 in relation to the Agreement. The CEPU did not
seek to be heard or otherwise participate in proceedings although it was notified of the
proceedings and hearing.
THE OBJECTION
[4] The CFMEU objected to the approval of the Agreement on two bases:
There are reasonable grounds for the Commission to believe that the agreement was
not genuinely agreed to; (the genuine agreement objection); and
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DECISION
E AUSTRALIA FairWork Commission
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The Agreement contains a number of provisions dealing with public holidays during
annual and long service leave said to be contrary to the Act and the Coal Mining
Industry (Long Service Leave) Administration Act 1992 and which could result in a
person being liable to pay a pecuniary penalty for breach of the Act (the contravention
objection).
[5] In relation to the genuine agreement objection, the CFMEU asserts that:
On numerous occasions during the pre-approval process for the proposed Agreement
senior representatives of BMA made comments to employees to the effect that if the
Agreement was not voted up the Mine would either be closed or employees would
lose their jobs; and
At the commencement of the voting process two “high profile CFMEU activists” – Mr
K and Mr H - were stood down while disciplinary investigations were undertaken and
this had a “chilling effect” on employees when they were deciding whether to approve
the Agreement.
[6] At the time this application was heard, the CFMEU had instituted proceedings in the
Federal Court of Australia seeking orders in relation to the stand downs of Mr K and Mr H.
BMA expressed concern that it would be inappropriate and prejudicial if the evidence in these
proceedings ventured into the reasons for the stand downs. BMA further pointed to the fact
that Mr K and Mr H were not being called to give evidence on behalf of the CFMEU in
relation to their assertions about the motive for the stand downs. Counsel for the CFMEU
agreed with the proposition that the case for the CFMEU in these proceedings was focused on
the effect of the standing down or Mr K and Mr H on employees at the mine rather than the
reasons for that action. Accordingly, I determined that evidence about the motivation or the
reasons for the stand downs would not be received.
[7] BMA submits that there is no basis, in law or fact, for the assertions made by the
CFMEU. Further, it is submitted that the terms of the Agreement do not contravene the Act;
namely s.55.
EVIDENCE AND SUBMISSIONS OF THE CFMEU
[8] Evidence was given on behalf of the CFMEU by Mr Rowan Anderson, Legal Officer,
and Mr Aaron Torrance, an Operator at the Daunia Mine. Mr Anderson and Mr Torrance
provided written statements and were cross-examined in relation to their evidence. Mr
Anderson gave evidence on the basis that Mr Stephen Smyth, the District President of the
CFMEU, was not in Australia at the time this matter was heard
[9] Mr Anderson’s evidence can be summarised as follows. Because Daunia is a new
mine with a fly in fly out workforce, the CFMEU does not have an established presence at the
mine and is in the process of recruiting members. A CFMEU Lodge has not yet been
established at Daunia and the structures usually put in place by the Union including the
formal election of Delegates, have not been implemented.
[10] The mine operates on the basis of a seven day on seven day off roster so that only half
the workforce is present at any time - A Crew or B Crew. The CFMEU has “activists” in both
crews. Mr K is the lead activist in A Crew and Mr H undertakes this role with respect to B
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Crew. These employees regularly organise meetings of employees at the camp and
representatives of the CFMEU speak at those meetings. The meetings are an important
opportunity for the CFMEU to recruit new members and provide information to employees
who are not members.
[11] The current enterprise agreement in place at Daunia is a “greenfields” agreement
negotiated before any workers were employed at the Mine - the BMA Daunia Mine Enterprise
Agreement 2010 (the current Agreement). The current Agreement passed its nominal expiry
date in December 2013. Bargaining for a replacement Agreement commenced in December
2013. The CFMEU is a bargaining representative for its members and Mr Smyth attended
negotiation meetings. Mr K was appointed as a bargaining representative by A Crew and Mr
H appointed himself as bargaining representative. Mr K was subsequently elected as the
spokesperson on behalf of other bargaining representatives and was a vocal participant in
negotiations.
[12] In April 2014 a proposed Agreement was put out to a ballot of employees. This
proposed Agreement was not supported by the CFMEU or the employee bargaining
representatives. The CFMEU organised a “No” campaign and Mr K and Mr H were essential
in organising that campaign. The proposed Agreement put to ballot in April 2014 was voted
down with 85% of the workforce voting against its acceptance.
[13] In the week of 16 October 2014, BMA again put a proposed Agreement out to ballot.
Voting by way of internet and telephone commenced on Thursday 16 October and concluded
on Wednesday 22 October. The CFMEU again conducted a “No” campaign in which Mr K
and Mr H played an essential role.
[14] On 13 October Mr H was stood down from duty pending an investigation into
allegations of misconduct and was flown back to Brisbane on the evening of 14 October after
being told that BMA could not finalise the investigation prior to Monday 20 October. Mr K
was stood down from duty on the same basis, on 16 October 2014. Throughout the period of
the investigation, Mr K was removed from the Camp accommodation. On or about 25
October Mr K was advised that the allegations against him had not been substantiated. On 5
November 2014, Mr H was advised that the allegations against him were substantiated and he
was given a first and final warning. Mr H returned to work on that date, after the vote for the
proposed Agreement.
[15] Under cross-examination, Mr Anderson agreed that not much of his statement dealt
with matters that were in his direct knowledge; that he had not attended any negotiation
meetings; and that he had never visited the Daunia Mine. Mr Anderson also agreed that the
CFMEU had the right to go to the Daunia Mine Site and that he had no reason to doubt the
proposition that the Union had exercised that right at least once. Further, Mr Anderson agreed
that the current Agreement provides for the CFMEU to have employee representatives and for
unpaid training time for those representatives. In relation to the proposed Agreement Mr
Anderson was not aware that BMA had paid for travel, accommodation and time off in lieu
for all bargaining representatives but said that he had no reason to believe that this was not the
case.
[16] In relation to the current Agreement, Mr Anderson agreed that the CFMEU is the only
Union party to it, and could have withdrawn its agreement at any time prior to the approval of
the current Agreement. Mr Anderson was not aware of how many members the CFMEU has
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on site at Daunia but said that the number is relatively small. Mr Anderson was also unsure
as to whether it would take 24 to 36 hours to access the entire workforce at Daunia as that
would be the changeover period on the seven on seven off roster. Mr Anderson maintained
that the term “lead activist” is a commonly used term among Unions. Mr Anderson agreed
that Mr H and Mr K had appointed themselves as bargaining representatives and that there
were no impediments to Mr Smyth having meetings and caucusing with bargaining
representatives during the negotiations.
[17] Mr Anderson maintained that in circumstances where there was no lodge structure at
Daunia Mine and a limited number of CFMEU members, that the absence of Mr K and Mr H
would have had a significant effect. Mr Anderson agreed that the CFMEU did not require the
approval of BMA to establish a lodge structure and that BMA has nothing to do with the
absence of such a structure.
[18] Mr Anderson was not aware of whether Mr K or Mr Smyth was the spokesperson for
the CFMEU in the negotiations but stated that Mr K was elected to speak on behalf of the
bargaining representatives, and Mr Smyth was probably active in the negotiations as well. Mr
Anderson said that he had no reason to doubt the evidence of BMA’s witnesses that they did
not know that Mr K was a lead bargaining representative. Mr Anderson also agreed that his
knowledge of Mr K and Mr H leading the “No” campaign against the proposed Agreement
and urging colleagues to vote no, was based on information members provided to Mr Smyth
who then provided that information to Mr Anderson.
[19] Mr Anderson agreed that a number of mines in the Bowen Basin are closed, in the
process of closing or under care and maintenance, including: Isaac Plains, Crinum, Gregory
and Wilkie Creek. Mr Anderson also agreed that BMA central mines had announced an
intention to seek 700 redundancies and that X-strata mines had ceased production for three
weeks over the Christmas period.
[20] Mr Anderson was cross-examined about a poster appended to his witness statement.
The poster states that: employees should not “fall for” BHP’s proposal; “Daunia is the jewel
in the Crown of BHP’s highly profitable Bowen Basin Coal Mines”; and that in August alone
the Daunia Mine generated company profits of $24 million. Mr Anderson stated that this
poster was authorised by Mr Smyth and represents the views of the CFMEU and the
employee bargaining representatives about the proposed Agreement. Mr Anderson said that
he had been informed that this was the case by Mr Smyth and could not indicate which
bargaining representatives held the views expressed in the poster or had approved the poster.
Mr Anderson did not know who had prepared the poster.
[21] The proposition was put to Mr Anderson that evidence for BMA would indicate that
for the Company to be making $24 million worth of profit it would have to be producing 5
million tonnes of coal per month and it is producing that amount of coal per year. Mr
Anderson said he did not know the annual capacity of Daunia Mine or whether the statements
set out in the poster are true.
[22] In relation to Mr K and Mr H, Mr Anderson said that he did not understand the
difference between the terms “stand down” and “stand aside” or why the Company was using
the latter term to refer to the action taken with respect to those employees. Mr Anderson
corrected a number of dates in his statement in relation to the sequence of events with respect
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to Mr K and Mr H and said that he did so after considering notes he had made while speaking
with Mr K and Mr H and after reading the material filed in this matter by BMA.
[23] Mr Anderson agreed that Mr H worked his last shift in his roster swing on 14 October
2014 and was scheduled to fly out on that date. In response to the Company’s evidence that
Mr K opted to leave the camp when he was informed that the investigation into his alleged
misconduct would take longer than anticipated, Mr Anderson maintained that this was not his
understanding and that Mr H was removed from the camp.
[24] Mr Torrance’s evidence was that he has been employed as an operator at the Daunia
Mine for 18 months. He works a 7 days on 7 days off roster and is allocated to B Crew. Mr
Torrens injured his knee at work in August 2014 and had surgery on 28 November 2014. At
the time this matter was heard Mr Torrance was not at work and was recuperating from the
surgery to his knee.
[25] Mr Torrance stated that BMA has previously put a proposed Agreement to a vote of
employees. The previous Agreement was not approved by a majority of employees and Mr
Torrance stated that approximately 15% of employees voted in favour of the Agreement.
[26] The Agreement presently under consideration, was put to a vote in October 2014. Mr
Torrance states that the Applicant sent an email after the vote which stated that approximately
57% to 59% of employees voted in favour of the Agreement. Mr Torrance stated that this was
surprising to him on the basis that the previous proposed agreement, which was voted down,
contained a 3% pay rise each year, whereas the Agreement for which approval is sought in
this case contains a 0% increase in the first year and a 2% increase for the following two
years, and in addition contains a number of reduced conditions.
[27] In relation to the statements he alleged were made by BMA managers at meetings of
employees, Mr Torrance said that approximately two weeks prior to the vote in relation to the
Agreement, two of BMA’s senior staff, Mr Lucas Dow, Asset President, and Mr Brendan
Lynn, General Manager of Daunia Mine, attended a “State of the Nation” meeting, involving
all employees currently on site. In his written statement, Mr Torrance said that he recalled Mr
Dow saying words to the effect that:
“Because of the price of coal, it is hard to keep the business afloat. We need this vote to
get up for security for the shareholders. If it doesn’t get up then it means that the
shareholders don’t have security and we will have to lock the gates.”1
[28] Mr Torrance also said in his written statement that Mr Lynn then said words to the
effect that:
“It is in your interests if you vote this up. I can’t guarantee what will happen if you
don’t. It is very likely that we would close the mine.”2
[29] Mr Torrance amended his written statement during his oral evidence in chief and said
that he could not remember whether Mr Lynn or Mr Dow made those statements.3 Mr
Torrance also gave evidence of a further instance which was said to have occurred at a pre-
start meeting in early October 2014. At that meeting the Mine Manager, Mr Fuller, spoke to
employees. Mr Torrance stated that he could not recall exactly what was said but that Mr
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Fuller spoke about the mine closing in the event that the Agreement was not approved by
employees.
[30] At another pre-start meeting in early October 2014, Mr Torrance asserted that Mr Les
Brown, Mining Superintendant, spoke to employees and said words to the effect of:
“If you don’t vote it up you won’t be here.”4
[31] And further:
“The mine will close because of the price of coal, the current market, the costs of
getting it out of the ground. If the EBA doesn’t get up, we will probably close the
mine.”5
[32] Mr Torrance stated that following this meeting he was approached by other employees
at the mine who advised they were considering voting yes to the agreement as they did not
want to lose their jobs.6
[33] Mr Torrance was unable to recall the exact dates of the meetings about which he gave
evidence. Further, Mr Torrance confirmed that where he had included statements in quotation
marks, those statements indicated his understanding of what was said and were not intended
to be direct quotes.7
[34] Mr Torrance also stated that the pre-start meetings where BMA representatives were
in attendance to discuss the proposed Agreement were stressful and that the comments made
by BMA’s representatives caused him to feel pressured to vote for the proposed Agreement
and to “second guess” how he was going to vote because of concern about how his colleagues
would find further employment if the mine was closed. At one pre-start meeting, Mr Fuller
approached Mr Torrance and started to talk to him about the proposed Agreement. Mr
Torrance did not engage with Mr Fuller in relation to the proposed Agreement. Mr Torrance
also said that during a performance review discussion, Mr Brown immediately started
speaking to him about the proposed Agreement but stopped when Mr Torrance stated that he
did not want to discuss that subject.
[35] Mr Torrance also gave evidence about his understanding of some matters from
discussions he had with others.8 Mr Torrance said that there were “a number” of employees
who were unwell and took sick leave because they were stressed about what was happening
on site with respect to the proposed Agreement. Mr Torrance did not provide names of
persons who told him that they were stressed or unwell and no other employees were called to
give evidence.
[36] Mr Torrance said that Mr H works on B Crew, the same Crew as Mr Torrance. Mr
Torrance was aware that Mr H was a bargaining representative for the proposed Agreement
and that he regularly organised meetings at the camp for the purpose of discussing the
proposed agreement. These meetings were attended by employees at the camp and one or two
officials of the CFMEU. Mr H also distributed posters opposing the Agreement and provided
these to Mr Torrance. Mr Torrance was aware that Mr H had been stood down prior to the
end of his Crew’s roster swing and in the days before the close of the ballot, before that crew
returned to the Mine. Mr Torrance did not see any other employee take Mr H’s position in
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respect of distributing posters or organising meetings in relation to opposition to the proposed
Agreement.
[37] Under cross-examination, Mr Torrance departed from his evidence that the second
version of the proposed Agreement put to ballot by BMA was less favourable than the first
version and said that he intended to refer to the current greenfields Agreement in his
comparison. Mr Torrance also said that by referring to Mr H as the lead bargaining
representative he meant that Mr H was the most outspoken at meetings. Mr Torrance agreed
that he had not attended bargaining meetings and was referring to meetings conducted by the
CFMEU at the camp.
[38] Mr Torrance also agreed that he was told by another employee that Mr H was stood
down and the reasons for BMA taking this action but could not recall who gave him that
information and did not know whether it was true or false. Mr Torrance also said that Mr H
was stood down on 15 October. When shown the B Crew roster, and his travel manifest for
that period, Mr Torrance agreed that he could not have been on night shift on 14 October and
could not have been at work on 15 October 2014. Mr Torrance further agreed, in relation to
his statement that after Mr H left the site he had not seen anyone handing out posters or
conducting meetings, Mr Torrance agreed that he was not at the site between 15 and 23
October.
[39] In relation to the comments made at a meeting addressed by Mr Lyn and Mr Dow, Mr
Torrance said that he could not remember which of those persons made the particular
comment but remembered that someone said that: “We’ll have to lock the gates”. Mr
Torrance also said that this comment may have been made after the meeting or on a different
day. Mr Torrance agreed that his evidence was that these words may have been said rather
than that the words were said.
[40] In relation to the discussion with Mr Brown, Mr Torrance agreed that Mr Brown’s
version of the discussion as reflected in the notes tendered by Mr Brown was accurate. In
particular, Mr Torrance agreed that Mr Brown asked what he liked and what he did not like
about the proposed Agreement. Mr Torrance also agreed that during that discussion Mr
Brown did not try to convince him of Mr Brown’s views about the proposed Agreement. Mr
Torrance declined to provide names of employees who he asserted were on stress leave due to
concerns about the process of approving the proposed Agreement.
[41] The CFMEU submitted that s. 188(c) provides a broad discretion to the Commission
in relation to an additional matter about which it is required to be satisfied. Genuine
agreement implies informed consent and an absence of coercion. While the CFMEU
concedes that there will be circumstances in which an employer is required to make “stark
comments”9 in relation to the effect of voting for or not voting for a proposed Agreement, in
such circumstances it is incumbent on the employer to properly explain and justify such
comments.
[42] According to the CFMEU the comments made by BMA managers could only have
had the effect alleged by Mr Torrance. It is further submitted that the “chilling effects” of the
public statements by senior BMA managers were furthered and compounded by BMA
standing down Mr K and Mr H. By instituting disciplinary proceedings against two high
profile activists who were actively opposing the approval of the Agreement, the CFMEU
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submits that BMA sent a clear and unambiguous message to employees and that conduct
could only have had the effect alleged by Mr Torrance.
[43] The effect of BMA’s conduct, both in isolation and cumulatively, is said to be that the
Commission would have reasonable grounds to believe that the Agreement was not genuinely
agreed to by the employees within the meaning of the Act.
[44] In relation to the contravention objection, the CFMEU asserts that:
Clause 18.2(c) of the proposed Agreement is contrary to s. 89 of the Fair Work Act
2009 and the National Employment Standards on the basis that s. 89 of the Act
requires that an employee must not be taken to be on paid annual leave where a public
holiday falls on a day during annual leave; and
Clause 18.4(i) of the Agreement is contrary to s. 39 AE of the Coal Mining Industry
(Long Service Leave) Administration Act 1992, which provides that where a public
holiday falls on a period of long service leave the employee is taken not to be on long
service leave on that day.
SUBMISSIONS AND EVIDENCE OF BMA
[45] Evidence for BMA was given by:
Brendan Lynn, General Manager of Daunia Mine until November 2014;
Leslie Brown, Production Mining Superintendent at Daunia Mine; and
Timothy Neil Fuller, Production Mining Manager of Daunia Mine.
[46] Mr Lynn stated that the Agreement was the second agreement put to a vote of
employees. The Agreement was put to a vote after several weeks of stalled negotiations and
following “Manager Once Removed discussions” with employees.10 According to the Form
F17 - Employer’s statutory declaration in support of application for approval of enterprise
agreement (Form F17) filed by BMA in this matter, employees were provided with access to
the written text of this Agreement from 2 October 2014 by email, and by distribution of
copies by leaving them in crib rooms.
[47] Mr Lynn’s evidence is that one of the catalysts for this was a desire to achieve
“certainty”. In cross-examination Mr Lynn was asked what he meant by the term “certainty"
and had the following exchange with Counsel for the CFMEU:
“You say in one of the paragraphs, just an example in paragraph 12, "After several
weeks of the impasse we needed to get some certainty." When you say that, what do
you mean by the word "certainty"? What did you want?---At about the time when we
reached this point in negotiation we were becoming uncertain as to what our
employees were looking for in the agreement because what we were hearing on site,
we as the leadership team, from informal conversations, in pre-start meetings and the
like was very, very different to what we were hearing from our bargaining reps and
from – in bargaining meetings about what people were looking for in terms of an end
to the negotiation period or what they were looking for inside the document when it
was finalised. So at that point in time we'd become somewhat concerned. We weren't
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sure that what the bargaining reps were seeking was the same as what the employees
in the workforce were seeking in terms of agreement content.
When you say, "We needed to get some certainty," certainty about what?
---Certainty about what content would make sense in the agreement to move it toward
a successful vote.”11
[48] And further:
“What certainty did you want from a new agreement?---The certainty that we were
looking for was in two aspects because, I guess, first and foremost we care for our
employees. We're looking for certainty for them that their conditions and the like are
in a current and agreed agreement and we're looking for certainty for ourselves that
we're not exposed to additional cost, additional inflexibilities or, you know, the risk of
industrial action at some point in the future.
That was one of the key certainties you wanted, that is, you wanted to be immunised
against the prospect of industrial action being taken for the purpose of securing an
agreement. Correct?---It's an aspect. I don't think I would characterise it as a key
aspect.”12
[49] Mr Lynn stated that he was in attendance at the “State of the Nation” meetings about
which Mr Torrance gave evidence. He denies that Mr Dow said words to the effect of “we
will have to lock the gates”.13 Mr Lynn’s evidence is that Mr Dow did say words to the effect
of:
“The owners have to accept uncertainty around two things: coal price and foreign
exchange. On other things they want certainty at Daunia.”14
[50] Mr Lynn stated that his view of Mr Dow’s presentation at these meetings was that Mr
Dow conveyed that voting yes to the agreement gave certainty that the “owners” were looking
for. Mr Lynn also denied that he said words as attributed to him by Mr Torrance. Mr Lynn’s
evidence is that he said words to the following effect:
“A vote “Yes’ is in both yours and the company’s best interests, it locks in our current
flexibilities and provides you with certainty. We can’t guarantee what will happen
following a “No” vote. There is no guarantee that any future offer will match the
current offer. What leads to security of employment is being a safe, low cost,
productive organisation.”15
[51] Exhibited to Mr Lynn’s statement was a copy of a bulletin regarding an update on
discussions about the Agreement, which stated that:
“Some of you may have seen recent commentary from the CFMEU relating to the
Daunia Enterprise Agreement.
I would like to reiterate to all employees the following.
1. Each employee needs to make their own decision on whether to vote for, or against,
the proposed agreement.
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BMA has high expectations of how employees behave in our business. While we
negotiate for the renewal of the Daunia Enterprise Agreement, it is important to
remember that this does not change the expected standards of behaviour.
BMA will not at any time tolerate behaviour that breaches these expectations.
2. If the agreement is voted up it will
Provide you and BMA with certainty; and
Preserve your existing conditions and flexibilities.
3. If the agreement is voted down there is
No guarantees of next steps or future offers; and
Continued uncertainty for you and BMA.
The future of Daunia is secured through ensuring we are a safe, reliable, low cost
producer of coal.”16
[52] Mr Lynn further disputed Mr Torrance’s evidence that performance reviews were
conducted by Mr Brown. Mr Lynn’s evidence was that the discussions involving Mr Brown
that Mr Torrance was likely referring to were “Manager Once Removed” discussions. As to
what was meant by the references to “no guarantees” in relation to what may occur as a result
of the Agreement being voted down, Mr Lynn stated during cross-examination:
“---What I meant by that is that on the subject of following a no vote I, as the lead
bargaining employer rep, don't have the authority to recommence bargaining without
going back to my line reporting structure to retest and revalidate the mandate for
future bargaining to occur. So from my perspective I can't state what the parameters
of future bargaining will or won't be.”17
[53] Mr Lynn does agree with Mr Torrance that there was an increase in the level of
tension at the mine following the commencement of bargaining. However, Mr Lynn stated
that in his view that was not unusual or excessive.18 Mr Lynn denies that managers of BMA
acted in a way that caused any stress as alleged by Mr Torrance.19
[54] As to the CFMEU’s allegations in relation to the stand down of Mr H and Mr K, Mr
Lynne denied that he had specific knowledge of the “lead activist” status attributed to Mr H
or the spokesperson role attributed to Mr K. Even if this were the case, Mr Lynn’s evidence is
that the Union utilised its right of entry to the site to run a “vigorous no case”.20
[55] In cross-examination the following exchange occurred between Mr Lynn and Counsel
for the CFMEU:
“And in terms of what was said, what was said about the consequence of the lack of
certainty resulting from not having the agreement voted up?---It was said very clearly
that not voting the agreement up would not lead to the closure of Daunia. It was
reinforced – I know because I said these words – that for Daunia to remain open it
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simply needs to be a safe, low-cost, productive producer of coal and that a no vote
can't and won't lead directly to the closure of the mine.”21
[56] In response to the proposition that this would have been an important matter to put in
his written statement of evidence for these proceedings or his evidence in chief, and that such
a statement if made would have been a complete answer to the CFMEU’s claim, Mr Lynn
said that when he constructed his statement he was responding to the evidence of Mr
Torrance.
[57] Mr Fuller gave evidence of the State of the Nation meetings that he attended, at which
Mr Dow presented. Mr Fuller denies that Mr Dow made any statement to the effect of
“locking the gates”.22 Mr Brown agreed with Mr Fuller’s evidence that Mr Dow did not say
words to that effect.23
[58] Mr Brown stated that he attends 99% of pre-start meetings and that of all the pre-start
meetings he has attended, Mr Fuller has not threatened closure of the mine in response to a no
vote for the proposed Agreement.24 Mr Brown also said that he did not have discussions with
Mr Torrance about the proposed Agreement during a performance review. Mr Brown
conducted a meeting with Mr Torrance in August 2014, after the first proposed Agreement
had been rejected by employees, and before the proposed Agreement, the subject of these
proceedings, was put to employees, during which he asked Mr Torrance what he liked and
disliked about the first proposed Agreement. Mr Brown tendered a copy of his notes of that
meeting which indicated that Mr Torrance had no comment in response to a question about
what he liked about the first proposed agreement and that he disliked working on Christmas
Day and Boxing Day, the stand down clause and a clause relating to roster changes.25
[59] BMA contended that the bulk of the evidence relied upon by the CFMEU was
“hearsay and unspecific”, and should not be admitted or given little weight. BMA disputes
that statements were made or the effect of those statements, as are attributed to Mr Fuller, Mr
Brown, Mr Lynn and Mr Dow. BMA contends that it is difficult to reconcile the evidence of
the witnesses for BMA and the CFMEU, given that Mr Torrance so significantly amended his
evidence during examination-in-chief to the point that any evidence he gave attributing
certain words to certain persons (namely Mr Fuller, Mr Brown, Mr Lynn or Mr Dow) were no
longer asserted as having been said by that specific person, or indeed at that general time.
This is particularly so because witnesses for BMA had prepared their witness statements on
the basis of Mr Torrance’s written statement of evidence which he significantly amended in
his oral evidence in chief.
[60] In response to the CFMEU’s assertion that the proposed Agreement contains terms
that contravene the National Employment Standards (NES), BMA submits that s. 89(1) of the
Act provides that if a period during which an employee takes paid annual leave includes a day
or part-day that is a public holiday in the place where the employee is based for work
purposes, then the employee is taken to not be on paid annual leave on that public holiday.
Given that the proposed Agreement provides for six weeks of annual leave – one week in
excess of the annual leave prescribed in the NES – the deduction from an employee’s leave is
only a deduction from entitlements above the NES. Therefore, clause 18.2(c) of the
Agreement does not exclude any provision of the NES and does not contravene s. 55 of the
Act.
[2015] FWC 1554
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[61] In relation to clause 18.4(1) of the Agreement, BMA submits that s. 39AE of the Coal
Mining Industry (Long Service Leave) Administration Act 1992 (the LSL Act) provides that if
a period, during which an employee takes long service leave, includes a day or part-day that is
a public holiday in the place where the employee is based for work purposes, that employee is
taken not to be on paid annual leave on that public holiday. While this provision is not in the
Fair Work Act, and clause 18.4(1) of the proposed Agreement cannot be said to contravene s.
55 of that Act, the LSL Act is a law of the Commonwealth for the purposes of s. 192 of the
Fair Work Act. If the Commission is not satisfied that clause 18.4(1) of the Agreement will
not lead to a breach of a law of the Commonwealth the Commission can note in the final
decision that the clause has no effect or seek an undertaking from BMA.
APPROACH TO DETERMINING WHETHER AGREEMENT OF EMPLOYEES IS
GENUINE
[62] Section 186(1) of the Act states the basic rule that if an application for approval of an
Agreement is made under s. 185, the Commission must approve the Agreement if it is
satisfied that the requirements in s. 186 and s. 187 are met. The Commission cannot require
more, or accept less than the matters set out in those sections and other sections stipulating the
basis for the Commission being satisfied that the requirements have been met. In the present
case the dispute centres on whether the Commission can be satisfied that the proposed
Agreement has been genuinely agreed to by employees as provided in s. 186(2)(a) and
whether its terms contravene s. 55 of the Act so that the requirements of s. 186(2)(c) are not
met.
[63] That the proposed Agreement has met the other requirements in s. 186 and s. 187 is
not in dispute. For the purposes of being satisfied that employees have genuinely agreed to an
enterprise agreement, the Commission must consider the requirements set out in s. 188 of the
Act. Section 188 of the Act is in the following terms:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied
with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to
approve an enterprise agreement until 21 days after the last notice of employee
representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or
(2) applies (those subsections deal with the making of different kinds of enterprise
agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not
been genuinely agreed to by the employees.”
[2015] FWC 1554
13
[64] In the present case, it is not in dispute that BMA has complied with all of the
provisions set out in s. 188(a) and (b). In relation to s. 188 of the Act, a Full Bench of the
Commission (by majority) held in Ostwald Bros Pty Ltd v Construction, Forestry, Mining and
Energy Union26 (Ostwald) that:
“[78] Fourth, the nature and terms of s.188 of the Act - When employees have
genuinely agreed to an enterprise agreement - supports the construction we have
applied. “Genuinely agreed”, in s.188 is expressed in terms of satisfaction that
particular bargaining provisions within the Act have been complied with (ss.188(a)
and (b)) and satisfaction of a more general criterion in s.188(c), rather than in terms
of a general consideration of whether in the circumstances of a particular agreement a
member is satisfied that the agreement has been genuinely agreed to by the employees.
[79] As the Full Bench in Galintel noted “Section 188 establishes a set of
requirements, each of which must be satisfied if the necessary finding is to be made
under s186(2)(a)”.
[80] Section 188 of the Act does not provide a wide general discretion for
determining whether employees have genuinely agreed to an enterprise agreement
focussed at the point of approval. Rather it requires specific actions to have been
undertaken (in ss. 188(a) and (b) at specified times in advance of approval), with s
188(c) then requiring satisfaction that there are no other reasonable grounds for
believing that the agreement has not been genuinely agreed to be the employees.
Section 188(c) of the Act, although itself a broad discretionary consideration, is an
additional matter about which [the Commission] needs to be satisfied and relates to
grounds other than those arising in relation to the ss. 188(a) and (b) matters.”27
[65] The approach to considering whether employees have genuinely agreed has been
discussed in a number of cases considering s. 188(c) and similar provisions in earlier versions
of the legislation and can be summarised as follows:
In deciding whether there are no other reasonable grounds for believing that an
agreement has not been genuinely agreed to be employees who will be covered, the
circumstances to be considered are those that existed when the agreement was voted
on.28
A consideration of all relevant circumstances revealed by the material before the
Commission, at the time the Commissions considers the application for approval is
required, in order to ascertain whether there are reasonable grounds for rejecting the
genuineness of the agreement;29
Circumstances including the provision of material or information to employees which
has the character of being misleading or intimidating,30 or where approval is affected
by a material non-disclosure, or there is a scheme underpinning the agreement about
which employees are not informed,31 will be relevant to the Commission’s assessment
of whether the agreement has been genuinely agreed by the employees;
Genuine agreement requires that the consent of employees was informed and that there
was an absence of coercion.32
Section 188(c) is only a basis for finding that an agreement is not genuinely agreed to
if there are found to be reasonable grounds for this belief. This requires a
consideration of the soundness of the agreement.33
[2015] FWC 1554
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The requirement for genuine agreement considered in conjunction with the objects of
the Act in relation to agreement making betokens a concern with the authenticity and
moral authority of an agreement.34
[66] The facts in the cases where the genuineness of the agreement of employees has been
brought into question are instructive. In Re Toys “R” Us (Australia) Pty Limited Enterprise
Flexibility Agreement 199435 it was found that the material supplied by the Company to
employees did not fully disclose the impact of the agreement when compared to the existing
award conditions. It was also found that the union with coverage of the employees was
hampered in its efforts to disseminate an alternative view, at least over two crucial days when
the ballot for approval of the Agreement was held. As a result it was found that the
employees had not genuinely agreed to the agreement.
[67] The Manfield Colair Enterprise Agreement36 involved circumstances where the
employer resisted the approval of an agreement that had been voted on and approved by
employees, on the ground that the final version of the agreement distributed to employees by
the employer contained a significant mistake. Vice President Lawler found that there was no
indication that the agreement was other than the product of a bona fide bargaining process. It
was also held that a unilateral mistake made by the employer in the version of the agreement
that was distributed, did not mean that the version of the Agreement voted on was not the true
agreement and that there was no question of there being some other agreement, different to
the one annexed to the application for approval that is the “true agreement”.37 On appeal38, a
Full Bench of the Commission upheld that decision and held that an employer who wishes to
propose an agreement to its employees has an obligation to ensure that the agreement reflects
its intentions.
[68] In Re MSS Security Pty Ltd Enterprise Agreement 201239 the matters that were held to
constitute reasonable grounds for the Commission to believe that the agreement was not
genuinely agreed to were that employees were incorrectly advised of the date upon which the
approval ballot would close and as the percentage of employees who cast a vote was small, it
was more probable than not that a significant number of employees did not vote because of
incorrect information about the closing date of the ballot. The version of the Agreement that
was voted on by the employees in that case was also missing pages.
[69] The Decision of the Federal Court in Construction, Forestry, Mining and Energy
Union v Australian Industrial Relations Commission and Others (Gordonstone)40 dealt with
the issue of whether an agreement was validly made in circumstances where the group of
employees who made it were not yet employed and may never have been employed in the
relevant single business. The Court concluded that the agreement had not been genuinely
made.
[70] In Grocon Pty Ltd Enterprise Agreement (Victoria)41 it was held that the employer had
created a structure or scheme involving employees being covered by a number of agreements
in circumstances where the employees who voted to approve an agreement had been
misinformed or had not been informed about the effect of the arrangements, and in particular
the fact that they could be the only employees bound by the conditions in the agreement while
other employees had different conditions. As a result, the vote of employees to approve the
agreement was not genuine.
[2015] FWC 1554
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[71] It can be seen from the cases that the question of whether the Commission is satisfied
that there are no other reasonable grounds for believing that an agreement has not been
genuinely agreed to by employees is not limited to a consideration of whether there has been
coercion or misinformation in relation to the agreement and its effect. The consideration
under s. 188(c) is not limited to these matters and incorporates all of the relevant
circumstances surrounding the process by which employees indicate their agreement.
[72] However, where the Commission finds that employees have been coerced into
approving an agreement it follows that there will be reasonable grounds upon which the
Commission could be satisfied that the agreement has not been genuinely agreed. In relation
to the test for coercion, BMA submits something in the nature of negation of choice is
involved,42 and that coercion cannot be said to have occurred where a person, having two
alternative courses, chooses to follow a course that is considered conducive to his or her own
interests.43 BMA also submits that influence, persuasion and inducement do not amount to
coercion.44 BMA submits that the test for coercion is that identified by Justice Merckel in
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia45 (Seven Network)
where his Honour said:
“The above cases establish that there must be two elements to prove “intent to coerce”
under s.170NV(1). First, it needs to be shown that it was intended that pressure be
exerted which, in a practical sense, will negate choice. Secondly, the exertion of the
pressure must involve conduct that is unlawful, illegitimate or unconscionable.”46
[73] In that case, Justice Merckel was considering a legislative provision that required
“intent to coerce”. I accept the proposition that a finding that employees have been coerced
into approving an agreement requires more than persuasion or inducement. In my view
persuasion and inducement are usual in the process of bargaining for and approval of
enterprise agreements. What is required to establish coercion is that the free will of
employees deciding whether or not to approve an agreement is overborne by force,
intimidation or a threat to dismiss, or otherwise injure the employees in their employment or
generally.
[74] I am also of the view that when considering whether employees have been coerced,
intimidated, mislead or misinformed in relation to agreeing to the terms of an agreement,
there is no requirement that the conduct of the person or persons involved was intentional.
All that is required is that the Commission be satisfied that, in addition to the matters in s.
188(a) and (b), there are other reasonable grounds for believing that the agreement has not
been genuinely agreed by employees.
CONSIDERATION
[75] The CFMEU’s objection to approval is not made - at least expressly - on the basis that
BMA intentionally set about to coerce, intimidate or otherwise misrepresent the
circumstances to employees for the purpose of securing a ‘Yes’ vote. As I understand the case
put by the CFMEU it is that BMA, through its managers, made statements that gave the
impression that a “No” vote in relation to the agreement would directly or indirectly lead to
the closure of the mine and consequently or independently the loss of jobs.
[2015] FWC 1554
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[76] The CFMEU also asserts that the effect of these statements, in combination with the
standing down of Mr K and Mr H, created an environment where the Commission has
reasonable grounds for believing that the proposed Agreement has not been genuinely agreed
by employees. The evidence upon which these assertions are based is problematic. Evidence
was called from only one employee - Mr Torrance. The proposed Agreement was provided to
employees on 6 October 2014 and the ballot for approval commenced on 16 October 2014.
Mr Torrance was absent from the site from 15 to 23 October.
[77] In relation to the statements alleged to have been made by BMA managers, I have
carefully considered the evidence of Mr Torrance. I have no reason to doubt that Mr Torrance
was other than truthful in his evidence to the Commission. However, that evidence is not
sufficiently cogent to provide a basis for a finding that the statements were made. Mr
Torrance was uncertain about the terms of the alleged statements, when they were made and
who made them.
[78] In particular, Mr Torrance gave evidence that, at a meeting two weeks before the
ballot to approve the Agreement, Mr Dow said that BMA would “have to lock the gates” or
“[C]lose the mine” if the Agreement was not approved. Mr Torrance later said that he could
not remember whether Mr Dow or Mr Lynne made the statement and that it might have been
made after the meeting rather than at the meeting. Mr Lynn, Mr Brown and Mr Fuller were
adamant that the alleged comments were not made.
[79] I accept that Mr Lynn gave evidence under cross-examination to the effect that he
specifically stated that the mine would not close if the Agreement was not approved, and it is
unusual that this statement was not referred to in Mr Lynn’s evidence in chief. This is
particularly so, given that BMA was legally represented in these proceedings and that
evidence was a direct answer to the CFMEU’s case. However, Mr Lynn’s explanation that he
did not include this in his evidence in chief because he was focused on responding to the
evidence of Mr Torrance, is not so improbable that I could disregard or give limited weight to
his evidence that he did not make the statements alleged by Mr Torrance.
[80] I do not accept Mr Torrance’s evidence about the effect of the stand down of Mr K
and Mr H on employees at the mine. I have reached this conclusion because on or around the
time that Mr H and Mr K left the site, Mr Torrance was also absent and could not give
evidence about any event after 15 October when he left the site and did not return until after
the ballot concluded. It is also the case that Mr Torrance’s evidence about the views and
feelings of other employees is hearsay. While hearsay evidence is at times accepted in
hearings before the Commission, the evidence of Mr Torrance about the views of other
employees is not sufficiently detailed for it to come within any of the exceptions to the
hearsay rule or for me to give it any weight.
Mr Torrance’s evidence about the comments made by Mr Brown was also not reliable. The
comments made by Mr Brown were taken out of context, and Mr Torrance agreed that the
record of discussion tendered by Mr Brown was accurate. The discussion took place after the
first proposed Agreement had been voted down and before the proposed Agreement subject of
these proceedings was disseminated to employees. There is nothing inappropriate about an
employer, through its managers and supervisors, having discussions with individual
employees about what those employees like and dislike about a proposed Agreement. The
discussion between Mr Torrance and Mr Brown is not relevant to the overall context of the
[2015] FWC 1554
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approval of the proposed Agreement being considered in this case, because that Agreement
had not been provided to employees when the discussion took place.
[81] I do not accept Mr Torrance’s evidence in relation to his surprise that the second
version of the Agreement was voted up. That evidence is clearly intended to imply that the
second version of the proposed Agreement contained lesser terms and conditions than the first
version and that for reasons not explained, this calls into question the genuineness of the
approval of the second version of the proposed Agreement by a majority of employees.
[82] In my view, it is clear from the evidence that when the first proposed Agreement was
rejected by employees, the Company reformulated it by reinstating items that it had removed
or by removing proposed clauses that had been the source of disagreement in the negotiations.
In that context, the fact that employees approved the second version of the proposed
Agreement is not of itself a reasonable ground on which to form a belief that the Agreement
has not been genuinely agreed to by employees.
[83] I am also of the view that the fact that an employer makes negative comments about
the economic environment in which it is operating in an attempt to persuade employees to
approve an enterprise agreement, is not of itself a reasonable ground on which to form a belief
that an agreement has not been genuinely agreed. That an employer may exaggerate
economic circumstances is also not of itself a sufficient basis to justify such a conclusion that
agreement is not genuine. In the present case, there is evidence that information disseminated
to employees by the CFMEU about the viability of Daunia Mine may have been exaggerated.
In the cut and thrust of bargaining, some conduct of this kind from the participants is not
inappropriate and it is certainly not a basis for finding that there are reasonable grounds for
believing that an agreement is not genuinely agreed to by employees.
[84] What an employer is not permitted to do is to mislead and misinform employees or
coerce or intimidate them in a way that interferes with their right to bargain or to be
represented by a person of their choice, or so that they do not have the freedom to choose to
approve or not to approve an enterprise agreement. I am unable to accept that this has
occurred in the present case.
[85] I accept that employees at Daunia Mine may have been under some stress when
considering whether to approve the proposed Agreement. They had previously voted to reject
an earlier iteration of the proposed Agreement and had been subjected to a “Yes” campaign
from BMA and its managers and a “No” campaign from the CFMEU and its members. It is a
matter of public record that the coal industry is confronting extremely difficult economic
conditions. Employees who work in the Coal industry and live in towns that depend on that
industry know first-hand of mine closures or retrenchments of mine workers. I do not doubt
that employees at Daunia who voted on whether to approve the Agreement would have
considered the possibility of the Mine closing and their jobs being at risk if the Agreement
was not approved.
[86] However, I am unable to accept that employees were threatened with the loss of their
jobs and the closure of the mine as a direct or indirect consequence of refusing to approve the
Agreement. For an employer to state that it requires certainty and that its shareholders view
labour costs as an area in which they are not prepared to accept uncertainty, is reasonable,
appropriate and undoubtedly factually correct. It is not inappropriate for an employer to state
that certainty about labour costs and industrial relations stability is needed in order for a
[2015] FWC 1554
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business to continue to operate. Neither is it inappropriate for an employer to state to
employees who are considering whether to approve an agreement, that if the agreement is
rejected it will not resume negotiations at the level of the rejected offer. These are the
statements that BMA managers made to employees and they do not provide reasonable
grounds for the Commission to believe that the agreement has not been genuinely agreed to
by employees.
[87] None of the matters asserted by the CFMEU, either individually or generally in the
context of all of the circumstances existing when the Agreement was agreed to by a majority
of employees, are reasonable grounds for the Commission to find that the Agreement was not
genuinely agreed to.
[88] I am satisfied that the Agreement was genuinely agreed to by employees as required
by s. 188 of the Act and I dismiss the objection of the CFMEU in this regard. In relation to
the contravention objection, I accept the submission of BMA in relation to clause 18.2(c) of
the Agreement and that any deduction from an employee’s leave is only a deduction in
entitlements above the NES. I also note that by virtue of s. 56 of the Act, to the extent that
any clause of the Agreement contravenes section 55 by excluding the NES or any of the
provisions of the NES, that clause has no effect.
[89] Clause 18.4(1) of the Agreement is a different matter. By virtue of s. 192 where the
Commission considers that compliance with an agreement may result in a person committing
an offence against a law of the Commonwealth or being liable to pay a pecuniary penalty in
respect of such a contravention, the Commission may refuse to approve an agreement. The
clause in question appears to provide for the absorption of public holidays into periods of long
service leave, contrary to the provisions of the Coal Mining Industry (Long Service Leave)
Administration Act 1992. Accordingly, out of an abundance of caution, I will consider any
undertaking that BMA seeks to offer, subject to the views of the bargaining representatives.
[90] Subject to this matter I am otherwise satisfied that all other requirements for approval
have been met.
[91] In the event that any undertaking offered by BMA is acceptable, and subject to
considering the views of the bargaining representatives, I will approve the Agreement.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR561696
WORK COMA SION AUSTRALIA THE SEAS OF FAIR
[2015] FWC 1554
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1 Statement of Aaron Torrance at paragraph 16.
2 Ibid at paragraph 17.
3 PN346 to PN351.
4 Ibid at paragraph 23.
5 Ibid at paragraph 24.
6 Ibid at paragraph 25.
7 PN318 to PN325.
8 For example Statement of Aaron Torrance at paragraphs 29 to 33.
9 CFMEU outline of submissions at paragraph 11.
10 Statement of Brendan Kevin Lynn at paragraph 13.
11 PN795 to PN796.
12 PN799 to PN 800.
13 Ibid at paragraph 22.
14 Ibid at paragraph 25.
15 Ibid at paragraph 29.
16 Ibid at Exhibit D.
17 PN837 to PN838.
18 Ibid at paragraph 36.
19 Ibid at paragraph 36.
20 Ibid at paragraph 47.
21 PN823.
22 Statement of Timothy Neil Fuller at paragraph 14.
23 Statement of Leslie Alan Brown at paragraph 8.
24 Ibid at paragraph 14.
25 Exhibit 5 Witness Statement of Leslie Alan Brown
26 [2012] FWAFB 9512 at [52] and [53] per Watson SDP and Gooley C.
27 Ibid at [80].
28 CJ Manfield Pty Ltd v CEPU PR522805 Per Watson VP, McCarthy DP and Jones C.
29 Manfield Coalair and CEPU Electrical Division Northern Territory Enterprise Agreement Gove Alumina Refinery and
Mine Site - 2010-2012 [2011] FWAA 9129 per Lawler VP at [22].
30 Peabody Moorvale Pty Ltd v CFMEU [2014] FWAFB at [7] (Although this observation was made in the context of
additional written material distributed at the same time as the Notice of Employee Representational Rights it is equally
relevant in circumstances where oral presentations are made to employees); Re MSS Security Pty Ltd [2010] FWA 3687.
31 Grocon Enterprise Agreement (Victoria) AIRC(2003) 127 IR 13 at 48; Manfield Coalair and CEPU Electrical Division
Northern Territory Enterprise Agreement Gove Alumina Refinery and Mine Site - 2010-2012 [2011] FWAA 9129 per
Lawler VP at [23].
32 Re Toys R Us (Aust) Pty Ltd Enterprise Flexibility Agreement 1994 Print L9066; Grocon Pty Ltd Enterprise Agreement
(Victoria) (2003) 127 IR 13 at 14.
33 Ostwald Bros Pty Ltd v CFMEU [2012] FWAFB 9512 at [154] per Watson VP (dissenting).
34 CFMEU v AIRC 93 FCR 317 at 357 per Wilcox and Madgwick JJ.
35 Print L9066 (C No 23663 of 1994).
36 [2011] FWAA 9129.
37 Manfield Coalair and CEPU Electrical Division Northern Territory Enterprise Agreement Gove Alumina Refinery and
Mine Site - 2010-2012 [2011] FWAA 9129 per Lawler VP at [25] and [36].
38 CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia [2012] FWAFB 3534.
[2015] FWC 1554
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39 [2010] FWA 3687.
40 [1999] FCA 847.
41 (2003) 127 IR.
42 Applicant’s outline of submissions at paragraph 27, referring to Hodges v Webb [1920] 2 Ch. 70 at pages 86-87.
43 Ibid referring to Lord Watson in Allen v Flood [1989] AC 1.
44 Applicant’s outline of submissions at paragraph 29 referring to Finance Sector Union of Australia v Commonwealth Bank
of Australia (2000) 106 FCR 16.
45 (2001) 106 IR 404.
46 (2001) 109 FCR 378; 106 IR 404 at [41].
