[2017] FWCFB 3659
The attached document replaces the document previously issued with the above code on 2
August 2017.
This decision has been amended to correct the typographical error at paragraph [24] by
replacing the reference to “Section 193(3)” with the correct reference to “Section 193(7)”.
Danielle Mezzatesta
Associate to Justice Ross
16 August 2017
1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
SESLS Industrial Pty Ltd
(C2017/2631)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT COLMAN
COMMISSIONER CIRKOVIC MELBOURNE, 2 AUGUST 2017
Appeal against decision [2017] FWCA 2308 of Commissioner Lee at Melbourne on 28 April
2017 in matter number AG2017/1060 – procedural fairness – ‘better off overall’ test –
agreement provides for casual employment – no provision in award - appeal dismissed.
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an
appeal, for which permission to appeal is required, against a decision issued by Commissioner
Lee on 28 April 2017 (Decision) to approve the SESLS Industrial Pty Ltd Employee Black
Coal Mining Industry Enterprise Agreement 2017 (Agreement). In the Decision, the
Commissioner concluded that he was satisfied that ‘each of the requirements of ss. 186, 187
and 188 as are relevant to this application for approval have been met’.1
[2] The CFMEU’s grounds of appeal, as contained in its amended notice of appeal, were
as follows:
1. The Commissioner erred in failing to afford the Appellant procedural fairness by not giving
the Appellant an opportunity to be heard as to why the Commissioner should hear from the
Applicant, pursuant to s590 of the Fair Work Act 2009 in relation to the Respondent’s
application for approval of the SESLS Industrial Pty Ltd Employee Black Coal Mining
Industry Enterprise Agreement 2017 (‘SESLS Agreement’).
2. The Commissioner erred in finding that the SESLS Agreement satisfied all of the provisions
of s186 of the Fair Work Act 2009.
3. The Commissioner erred in being satisfied that the SESLS Agreement met the Better Off
Overall Test in s186(2)(d) of the Fair Work Act 2009.
4. The Commissioner erred in approving the SESLS Agreement.
[3] An appeal under s604 of the Fair Work Act 2009 (FW Act) is an appeal by way of
rehearing and the Commission’s powers on appeal are exercisable only if there is error on the
[2017] FWCFB 3659
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3659
2
part of the primary decision maker.2 There is no right to appeal and an appeal may be made
only with the permission of the Commission. Subsection 604(2) requires the Commission to
grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to
appeal may otherwise be granted on discretionary grounds.
[4] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.4 In GlaxoSmithKline Australia Pty
Ltd v Makin a Full Bench of the Commission identified some of the considerations that may
attract the public interest:
‘... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that guidance
from an appellate court is required, or where the decision at first instance manifests an
injustice, or the result is counter intuitive, or that the legal principles applied appear
disharmonious when compared with other recent decisions dealing with similar matters...’5
[5] Other than the special case in s604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant
its reconsideration and that substantial injustice may result if leave is refused.6
Procedural fairness
[6] The CFMEU contends that it was denied procedural fairness on the basis that it was
not afforded an opportunity to be heard as to why the Commissioner should hear from it in
relation to the approval of the Agreement. It is first necessary briefly to set out the sequence
of events that give rise to this contention.
[7] On 30 March 2017, the company filed an application for approval of the Agreement.
On 5 April 2017, Ms Melanie Mitchell of the CFMEU sent an email to ‘Member Assist’,
stating:
‘Dear Member Assist, the CFMEU Mining and Energy Division have concerns about the
content of the SESLS Industrial Pty Ltd Employee Black Coal Mining Industry Enterprise
Agreement 2017 which has been listed on the Fair Work Commission website as waiting for
approval. We wish to have our concerns heard. In order to assist us with making complete
submissions we would be grateful if we could obtain the Form 16 and Form 17 that were
lodged by the employer in this matter. Can you please acknowledge receipt of this email.
Please do not hesitate to contact us should you wish to discuss further.’
[8] Later that day, an employee from the Commission’s Member Support Research Team
responded to Ms Mitchell to acknowledge receipt of her email. She advised that the request
would be provided to the Commission member for consideration, and that she would be in
contact once she received the Member’s instructions. On 7 April 2017, the Commission’s
Member Support Research Team sent Ms Mitchell another email, which stated: ‘As per the
below request, please find attached the F16 and F17 for the agreement matter number
AG2017/1060.’ The documents were attached.
[9] Over the course of the following week, there was correspondence between the
Chambers of Commissioner Lee and the representatives of the company, HR Legal,
[2017] FWCFB 3659
3
concerning various matters relating to the Agreement and the approval requirements in the
Fair Work Act 2009 (Act).
[10] On 28 April 2017, the Commissioner approved the Agreement. This occurred by way
of ‘e-hearing’. The matter was listed on the Commission’s website for hearing on 28 April
2017 at 11:00 am before Commissioner Lee in Chambers. Details of hearings and conferences
for any given day and the week ahead are published daily on the Commission’s website.
[11] The Commission did not notify the CFMEU of the e-hearing. The last correspondence
from the Commission to the CFMEU was the message of 7 April 2017 attaching the F16 and
F17.
[12] The CFMEU submits that it received no further advice, confirmation or instructions
from the Commission on the application for approval of the Agreement.7 The union became
aware that the Agreement had been approved when perusing the daily list of enterprise
agreements approved by the Commission, a list that is emailed each weekday to subscribers.8
[13] The union submits that, despite advising the Commission of its concerns about the
Agreement, and requesting to be heard, the Commission ‘failed to give the Appellant any
opportunity to be heard in accordance with s590’.9 It refers to the decision of the Full Bench
in CFMEU v Collinsville Coal Operations,10 where the Bench stated: ‘We accept that the
CFMEU (as with any person seeking to be heard) is entitled to be given a proper opportunity
to develop its argument on the question whether it should be heard’.11
[14] It was not contended in these proceedings that the CFMEU was a bargaining
representative. As was noted in Collinsville, the question of whether an organisation that is
not a bargaining representative has a right to be heard in respect of the application for
approval of an enterprise agreement will depend on the circumstances of each case.12 In the
present case, the union did not contend that it had a right to heard. Rather, it contends that the
Commission should have afforded it an opportunity to be heard on the question of whether it
should be heard.
[15] Returning to the sequence of events set out above, it is evident that the Commission
responded promptly to the CFMEU’s message of 5 April 2017, and shortly afterwards
provided it with the F16 and F17 documents, consistent with the decision of the Full Bench in
CFMEU v Ron Southon.13 The Commission answered the question that had been asked of it.
The union did not request to be notified of the date when the Agreement would be approved
or considered for approval. It foreshadowed that it would make ‘complete submissions’ on its
concerns, but did not ask the Commission whether it could make a submission. Nor did the
Commission indicate that it would not accept any submissions. A period of three weeks
passed between the provision of the F16 and F17 and the decision to approve the Agreement.
The union did not make any submission or other approach to the Commission in this period.
[16] In our opinion, during this three week period, the union had an opportunity to address
the Commission on why it should be heard. The CFMEU did not avail itself of this
opportunity. However, it argues that in the circumstances, it did not receive a proper
opportunity, because it assumed it would receive notice of the listing date.
[17] At the hearing, the CFMEU submitted that there is a practice within the Commission
that, where a union has raised a concern about an agreement, the Commission will seek
[2017] FWCFB 3659
4
further submissions from the union as to why it wishes to be heard.14 However, if there is any
such practice, it is not a formal practice or procedure of the Commission and reflects no more
than the approach of individual members.
[18] Members of the Commission must generally act in a judicial manner and observe
procedural fairness in carrying out functions and exercising powers under the Act.15 The
requirements of procedural fairness are not prescribed in a fixed body of rules; what is
required is judicial fairness.16 The content of the requirement to accord procedural fairness
will depend on the facts and circumstances of each case.17 As Gleeson CJ explained in Ex
parte Lam:
‘Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of
procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’18
[19] In considering the application of procedural fairness to the present case, it is relevant
to note that the union was afforded a practical opportunity to make submissions on why it
should be heard. It was provided with the material that it had requested. The Agreement was
not approved for a further three weeks. The Commissioner’s intention to determine the
application was made public in the notices of listing for Melbourne in respect of 28 April
2017. Further, it is relevant to note that the union is a sophisticated organisation with
extensive experience in industrial law and practice. Taking into account all of the
circumstances, we do not consider that the union was denied a proper opportunity to develop
its argument on the question of whether it should be heard. No practical injustice arose. We
reject the first ground of appeal.
[20] We further note that the CFMEU has had an opportunity to develop before this Full
Bench its argument as to why it should be heard on the approval of the Agreement. The
hearing of this appeal has therefore enabled the union to advance its case against the approval
of the Agreement, which we deal with further below. Accordingly, even if we had accepted
the first ground of appeal, any failure at first instance to afford the union procedural fairness
would now have been rectified.
The ‘better off overall’ test
[21] Grounds 2, 3 and 4 are directed at the union’s contention that the Commissioner erred
in finding that the Agreement passed the better off overall test (BOOT). Section 186(2)(d) of
the FW Act provides:
(2) The FWC must be satisfied that:
…
(d) the agreement passes the better off overall test.
[22] The BOOT, in respect of non-greenfields agreements, is explicated in s193(1) as
follows:
(1) An enterprise agreement that is not a greenfields agreement passes the better off
overall test under this section if the FWC is satisfied, as at the test time, that each
award covered employee, and each prospective award covered employee, for the
agreement would be better off overall if the agreement applied to the employee
than if the relevant modern award applied to the employee.
[2017] FWCFB 3659
5
[23] It is well established that the test requires the identification of terms which are more
beneficial for an employee, terms which are less beneficial for an employee, and an overall
assessment of whether an employee would be better off under the agreement.19 The overall
assessment involves a global comparison.20 However, it is clear from s193(1) that this global
comparison must be undertaken in relation to ‘each’ award covered and prospective award
covered employee.21 The test is not directed at whether most employees or most classes of
employees are better off.
[24] Section 193(7) permits the Commission to assume that, if a particular class of
employees is better off under an agreement, an employee who belongs to that class would also
be better off. But the Commission may only make this assumption ‘in the absence of evidence
to the contrary’. This provision only serves to underscore what is evident in the language of
s193(1); the test must be conducted in relation to each employee.
[25] The modern award for the purposes of assessing the BOOT in this matter was the
Black Coal Mining Industry Award 2010 (Award). The Agreement covers and applies to
‘production and engineering staff’ who are covered by the Award.22 The terms of the
Agreement provide that the Agreement is to be read in conjunction with the Award except
where there is an inconsistency, in which case the Agreement applies.23
[26] The essence of the union’s concern about the BOOT is that the Agreement allows for
the employment of any employees on a casual basis.24 By contrast, the Award contemplates
casual employment only for staff employees; production and engineering employees can only
be employed on a full-time or part-time basis25. The union contends that the Commissioner
erred by failing to take into account this material consideration.26
Comparing casuals under the Agreement with permanents under the Award?
[27] The application of the BOOT in the present case has a peculiar complexity.
[28] The union proceeds on the basis that the BOOT, as applied to a casual production or
engineering employee under the Agreement, requires a comparison with full-time or part-time
employment under the Award. Ordinarily, one would assess the BOOT for a casual employee
by reference to casual employment under both the agreement and the award. However, the
union, in essence, contends or assumes that one cannot compare ‘like for like’ in the present
case, because the Award does not permit the use of casual employment for production and
engineering employees. This position has a certain attraction, and the respondent did not
contest it. However, it is necessary to consider the application of the BOOT to this particular
situation.
[29] Section 193(1) requires one to consider the position of each existing ‘award covered
employee’ and each ‘prospective award covered employee’ under the agreement and the
award. Section 193(4) defines ‘award covered employee’ to mean an employee who would be
covered by the agreement and:
‘(b) at the test time, is covered by a modern award … that
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under
the agreement; and
[2017] FWCFB 3659
6
(iii) covers his or her employer.’
[30] From the F17, it is evident that 3 employees voted on the Agreement. There is no
indication as to their mode of engagement however they were presumably not casual
production or engineering employees; the award does not allow for it, and the Agreement,
which would permit it, is not yet in operation. The concern relating to the BOOT does not
appear to affect award covered employees.
[31] Section 193(5) defines ‘prospective award covered employee’ in terms similar to
‘award covered employment’, but employs the subjunctive mood - a person who, if he or she
were an employee at the test time, would be covered by the agreement, and would be covered
by a modern award that would cover the person in relation to the relevant work under the
agreement.
[32] It should be noted that s.193(5) relates to a hypothetical situation. It directs us to
contemplate a person who, if he or she were an employee, would be covered by an agreement
and an award etc. On one view at least, this direction can be read as requiring that one simply
assume that a person (including a casual production worker) has been employed.
[33] If a prospective employee were to be employed as a production worker on a casual
basis under the Agreement, would that person be ‘covered’ by the Award? Coverage is dealt
with in s48 of the Act. An award covers an employee if the award ‘is expressed to cover’ the
employee.27 Clause 4 of the Award states that it covers ‘coal mining employees’, who are
defined as including employees employed in the black coal mining industry and whose duties
are directly connected with the day to day operation of a black coal mine, and are employed in
classifications covered by the award.28
[34] If a prospective casual production or engineering employee were employed under the
Award, such an employee would fall within the coverage provision in clause 4 of the Award.
The employer would evidently be in breach of the limitation on casual employment in clause
10.1 – it is only ‘in the case of classifications in Schedule B – Staff Employees’ that casual
employment can be used. However, this does not necessarily mean that the casual employee
would not be covered by the award.
[35] Returning again to the wording of s193(1), the next question is whether this employee
would be better off overall if the agreement applied to him or her than if the relevant modern
award applied. Section 47 of the Act explains when an award applies to an employee, namely
if the award covers the employee, is in operation, and no other provision of the Act has the
effect that the award does not apply (for example, by virtue of an agreement applying to the
person). It appears then that the Award could apply to a prospective casual production
employee. The above suggests that, at least on one analysis, the BOOT could be conducted in
relation to a prospective award covered casual employee.
[36] The BOOT, in relation to prospective employees, addresses a hypothetical scenario. It
is established for the purposes of comparing the position of the notional employee under the
agreement on the one hand and the award on the other. The hypothetical scenario is a
construct. It does not require that one work backwards to construct a realistic narrative about
the employer’s hypothetical decision to engage an employee either under the award or the
agreement.
[2017] FWCFB 3659
7
[37] Against this, it could be contended that, because of the limitation on the use of casual
employment for production and engineering employees in the Award, the prospective casual
employees is not covered by the Award. On this argument, the question of coverage is defined
not simply by the ‘coverage clause’, but by the terms of the Award as a whole. The presence
of a prohibition on the use of casual employment should inform the construction of award in
relation to the question of whom it covers. However, if this argument is correct, the
consequence is that the casual employee is not covered by the Award at all, and the BOOT
test cannot be undertaken.
[38] The union’s position is that the BOOT test can be undertaken, and that the appropriate
comparator is the position of a full time or part time employee under the Award. This may
seem reasonable. But is it right? We have some difficulty in identifying how the analysis of
s193 leads to this outcome. Perhaps the hypothetical scenario requires a reasonable
accommodation to be made of the practical circumstances that might underpin the hypothesis,
and that such an accommodation could go so far as to assume that the employee had been
employed on some other lawful basis under the Award – that one compare casuals under the
agreement with whatever is possible under the award.
[39] We were not addressed on these issues at hearing. Given the conclusions we have
reached further below, it is not necessary for us to decide them. We proceed to consider the
union’s contentions in relation to the BOOT assuming (but not necessarily accepting) that the
BOOT test for prospective casual employees requires a comparison between casual
employment under the Agreement and part-time or full-time employment under the Award.
Detriments and benefits
[40] The union contends that various forms of detriment arise in connection with the
employment of a production or engineering employee as a casual under the Agreement.
[41] The CFMEU contends that inherent in full-time or part-time employment is a
relatively high level of job security,29 which is not reflected in casual employment. We were
taken to a decision of Commissioner Saunders in which the proposition was accepted that
casual employment provisions under an enterprise agreement were less beneficial to
employees than those under the Award, essentially for this reason.30 Casual employment
provides an additional mode of engagement which some employees may prefer; there may be
less job security, but there is correspondingly less commitment, and higher (loaded)
remuneration, albeit to compensate for leave and other benefits of permanent employment not
being available. New employees would presumably agree to casual employment upon their
engagement and there is no suggestion of existing permanent employees being forced onto
such arrangements. Further, as to the question of security of employment, full-time and part-
time employees can be engaged on fixed term contracts;31 it is not necessarily the case that
their employment is more secure, although this will often be the case.
[42] At the hearing, the union relied on the recent decision of the Full Bench in the 4 yearly
review of modern awards in relation to casual and part-time employment32 in which the
Bench decided not to include a casual provision in the Award.33 However, the Bench also
noted that the introduction of a casual provision in the Award for production and engineering
employees had ‘merit as a matter of broad principle,’ but that the lack of evidence before it
had meant that it ‘could not formulate a provision that would achieve the modern award
objective’.34
[2017] FWCFB 3659
8
[43] The union also contended that full-time and part-time employees receive various
benefits under the Award that exceed those in the National Employment Standards in the Act.
Such benefits include enhanced notice of termination, redundancy pay, annual leave and
personal leave entitlements.35 Of course, as the Award is incorporated into the Agreement,
permanent full and part-time employees covered by the Agreement receive these benefits too.
However, casual employees would not receive them, by virtue of their casual status.36
[44] The union further submits that, whilst the Agreement provides for a 25% loading for
casuals, this is not sufficient to offset the detriments referred to above. In particular, it says
that a 25% loading has not been independently assessed, in terms of being an appropriate
recompense for casual status in the context of the Award, because no casual employment
exists under that Award (except for staff employees). Whilst such a loading might be
appropriate for the Metal, Engineering and Associated Industries Award 1998, this does not
mean it is appropriate for the Award, which has the higher benefits referred to earlier. Any
casual loading in the Award would, it is said, need to be higher than 25%.37 The union relied
on the decision in Site Fleet Services,38 where Commissioner Roe accepted that a casual
loading greater than 25% would be required in the industry in order to compensate for
relevant detriments.39
[45] We recognise that the Award provides for benefits that exceed those in the NES, and
that in important respects the conditions in question are those which do not apply to casual
employees (leave, notice of termination, and redundancy). However, it is also the case that the
Award provides for casual employment of employees in staff classifications,40 and that a
casual loading of 25% is provided. This does not necessarily mean that a 25% loading would
necessarily be appropriate, as an award standard, for production and engineering employees;
as the Full Bench noted in the Modern Award review case referred to above, this is a question
that needs to be resolved by reference to an appropriate evidentiary merit case. However, for
the purposes of the BOOT, we consider that the presence in the Award of a 25% loading for
casual staff employees is a matter which can be taken into account in considering the
adequacy of the 25% loading in the Agreement for BOOT purposes.
[46] In addition, as to detriment, the union submits that casual employees do not have
access to the unfair dismissal provisions of the Act, other than in the limited circumstances
provided for in the Act.41 Production and engineering employees employed on the Award,
being permanent or part-time employees would have greater unfair dismissal rights. This
contention can be seen as an adjunct to the job security argument.
[47] On the beneficial side of the BOOT equation, the union contends that the Agreement
provides only for a wage rate that is ‘at least 1% more remuneration than what [employees]
would receive under the Modern Award’.42 This is said to be insufficient to offset the
detriments that the union says accrue to casual employees under the Agreement.43
[48] For its part, the employer contended that the Agreement incorporates the Award,
applies all relevant penalties and loadings, assigns a 25% loading for casuals, and affords an
additional 1% remuneration. In this last mentioned respect, the company emphasised that the
commitment in clause 5.1 was that employees would receive 1% more remuneration than
what they would have received under the Award, applied not just to the rate of pay, but also to
other Award benefits. Whatever the total payments under the Award would have been, at least
1% more is paid under the Agreement.44
[2017] FWCFB 3659
9
[49] At the hearing, the employer adverted to a further benefit arising under the Agreement,
namely a travel allowance that is provided through clause 11.2(b). Employees receive $20 a
day where transport is not provided by the company to the work site in certain circumstances.
However, this is a contingent benefit, and there was no evidence as to the expected or likely
incidence of its use. The scale of the benefit is small, and we do not think it has any bearing
on the BOOT.
[50] Satisfaction of the BOOT under s186(2)(d) is a jurisdictional prerequisite for the
approval of an enterprise agreement. It also is a matter that involves the exercise of discretion,
and involves a degree of subjectivity or value judgement.45 The issue before us is whether the
Commissioner made an error of the kind described in House v The King46 in making his
decision.
[51] We do not consider that any such error was made in the Commissioner’s application of
the BOOT, or his decision to approve the Agreement. The Agreement incorporates the
Award, and guarantees that employees will receive 1% more than the remuneration they
would have received under the Award. The casual engagement of production and engineering
employees is not permitted under the Award; it is permitted under the Agreement, but affords
a 25% loading. In our view, the Commissioner’s conclusion that the Agreement satisfied the
BOOT was not affected by appealable error.
Disposition of the appeal
[52] As we have not identified any error in the Decision, we are not persuaded on public
interest grounds or otherwise to grant permission to appeal.
[53] Permission to appeal is refused.
PRESIDENT
Appearances:
Mr A Thomas appeared for the Construction, Forestry, Mining and Energy Union
Mr J Dwyer appeared for SESLS Industrial Pty Ltd
Hearing details:
2017.
Melbourne:
10 July
ORK THE SEAL OF THE
[2017] FWCFB 3659
10
Printed by authority of the Commonwealth Government Printer
Price code C, PR594464
1 [2017] FWCA 2308, at [2]
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne
JJ.
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal &
Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] - [46]
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal &
Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR
388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78;
NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663 at [28]
5 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
7 Outline of Submissions of the CFMEU at [18]
8 Ibid, at [20]
9 Ibid, at [21]
10 [2014] FWCFB 7940
11 Ibid, at [76]
12 Ibid, at [72]
13 [2016] FWCFB 8413
14 Transcript at PN27, PN32
15 See Appeal by Construction, Forestry, Mining and Energy Union [2014] FWCFB 174 (29 January 2014); Coal
and Allied Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at 83; see also Kioa v Minister
for Immigration & Ethnic Affairs [1985] HCA 81; (1985) 62 ALR 321 at 347 per Mason J; R v
Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re
Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513;
29 IR 148.
16 Appeal by CFMEU, [2014] FWCFB 174 (29 January 2014) at [22] and [23]
17 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), [1963] HCA 41; (1963) 113 CLR 475 at [504]
per Kitto J
18 Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [37]
19 See AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; Armacell Australia Pty Ltd [2010] FWAFB
9985
20 CFMEU v TR Construction Services Pty Ltd, [2017] FWCFB 1928 at [20]
21 Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited; Australasian Meat Industry Employees
Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 (31 May
2016); at [33]
22 Clause 1.2(b) of the Agreement
23 Clause 1.4 of the Agreement
24 Clause 9.2 of the Agreement
[2017] FWCFB 3659
11
25 See clause 10.1 of the Award
26 Outline of Submission, paragraph 35
27 Section 48(1) of the Act
28 Black Coal Mining Industry Award 2009, clause 4.1 and following
29 Outline of Submission, paragraph 36
30 Moolarben Coal Operations Pty Ltd [2017] FWCA 2010, at [26] item (h), and [38]
31 Respondent’s Outline of Submission, paragraph 33
32 [2017] FWCFB 3541 (5 July 2017)
33 Transcript at PN59, 85-95
34 [2017] FWCFB 3541, at [879]
35 Outline of Submission, paragraph 37 and 39
36 Clause 92 of the Agreement: a casual employee is one engaged and paid as such
37 Outline of Submission, paragraph 40
38 [2017] FWC 2163
39 [2017] FWC 2163, at [30] item (c)
40 Black Coal Mining Industry Award 2009, clause 10.1(c)
41 Outline of Submission, paragraph 36
42 Clause 5.1 of the Agreement
43 Outline of Submission, paragraphs 41 to 44.
44 Transcript at PN121-124
45 Transport Workers' Union of Australia v Jarman Ace Pty Ltd [2014] FWCFB 7097 (28 October 2014)
46 [1936] HCA 40; (1936) 55 CLR 499, 404–405
