1
Fair Work Act
2009
s.185—Enterprise agreement
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2016/3877)
DEPUTY PRESIDENT KOVACIC CANBERRA, 31 MARCH 2017
Application for approval of the JBU Enterprise Agreement 2016 - whether agreement
genuinely agreed to by employees covered by the agreement – agreement not approved.
[1] An application was made on 12 July 2016 for approval of an enterprise agreement
known as the JBU Enterprise Agreement 2016 (the Agreement). The application was made by
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum) pursuant to s.185 of
the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
Background
[2] In its Form F17 – Employer’s statutory declaration in support of an application for
approval of an enterprise agreement (other than a greenfields agreement) Broadspectrum
deposed inter alia that:
the date of notification time (i.e. the date on which it initiated bargaining) was 6 June
2016;
the date on which the last Notice of Employee Representational Rights was given to
an employee who would be covered by the Agreement was 9 June 2016;
voting for the Agreement commenced on 4 July 2016;
the Agreement was made on 5 July 2016;
four employees would be covered by the Agreement; and
three employees cast a valid vote in respect of the Agreement, with all three
employees voting to approve the Agreement.
[3] The Agreement was initially approved by the Fair Work Commission (the
Commission) on 18 November 20161, with that decision preceded by an earlier decision
setting out the Commissioner’s reasons for concluding that the Agreement should be
approved2. While United Voice (UV) was not a bargaining representative for the Agreement,
it participated in a conference convened by the Commissioner regarding the application
seeking approval of the Agreement. However, UV’s request to be heard in respect of the
application was never formally determined by the Commissioner. In the proceedings before
the Commissioner, UV opposed the approval of the Agreement on the basis that the group of
employees covered by the Agreement was not fairly chosen and the Agreement had not been
genuinely agreed to3.
[2017] FWC 1818 [Note: An appeal pursuant to s.604 (C2017/2070) was
lodged against this decision.] - refer to Full Bench decision dated 8 August
2017 [[2017] FWCFB 3202 for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3202.htm
[2017] FWC 1818
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[4] UV subsequently appealed the decision to approve the Agreement, with the appeal
Full Bench in its decision of 14 February 20174 quashing the decision to approve the
Agreement and referring the application for approval of the Agreement to the Commission as
currently constituted for determination. In its decision the Full Bench found that it was
unnecessary to determine whether permission to appeal should be granted and whether the
appeal should be upheld by reference to the two grounds of appeal initially advanced by UV.
Instead, the Full Bench decided to grant permission to appeal and to uphold the appeal on
procedural fairness grounds based on previously undisclosed ex parte communications
passing between the Commissioner’s chambers and Broadspectrum which traversed material
facts in dispute and appeared to have had a material effect on the outcome of the application
for the approval of the Agreement5.
[5] In light of the Full Bench decision, the application seeking approval of the Agreement
was listed for mention and directions on 27 February 2017. At the directions hearing UV
sought and was granted the right to be heard in respect of the application on the basis that it
would assist the Commission in determining the matter. The Transport Workers Union of
Australia (TWU) attended the directions hearing and requested that it also be heard regarding
the application. The TWU’s request is discussed further below. Directions were issued by the
Commission on 28 February 2017, with the application heard on 10 March 2017.
[6] On 1 March 2017 Broadspectrum filed its material in accordance with the Directions
issued by the Commission. The material comprised copies of the contracts of employment of
the four employees involved in making the Agreement6 and two position description
documents7. In forwarding that material to the Commission and UV, Broadspectrum made an
application under s.594 of the Act that the documents “be maintained as confidential to the
parties to the proceedings strictly for the purposes of these proceedings only given the
sensitive commercial-in-confidence nature of all the contractual information to the Applicant
and the respective employees.”8 The Commission issued an Order9 to that effect on 7 March
2017.
[7] At the hearing on 10 March 2017, Mr John Snaden of Counsel appeared with
permission for Broadspectrum and Mr Stephen Bull, an Industrial Coordinator/Legal
Practitioner with UV, appeared for UV. Ms Amanda Lawton, Broadspectrum’s General
Manager, Human Resources Development, Bids and Transitions, gave evidence for the
Applicant, while Mr Rhys Barker, Broadspectrum’s General Manager, Innovation and
Transformation, gave evidence as a result of an Order to Attend issued by the Commission
following an application by UV.
Request to be heard by the TWU
[8] On 15 February 2017, i.e. the day after the appeal decision was handed down, the
TWU sent an email to the Commission requesting that it be heard in respect of the application
seeking approval of the Agreement. In support of its request, the TWU relied upon the reasons
it advanced in the appeal proceedings as to why it should be heard in those proceedings,
though the Full Bench declined to grant the TWU’s request.
[9] As noted above, the TWU attended the directions hearing convened by the
Commission on 27 February 2017. The Directions issued by the Commission on 28 February
2017 required the TWU “to file with the Commission and serve on the all other parties more
[2017] FWC 1818
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detailed reasons in support of its request to be heard in the matter by close of business
Friday, 3 March 2017” (emphasis as per original). By way of background, the TWU had not
been a bargaining representative for the Agreement.
[10] In its more detailed reasons the TWU contended that it should be heard because,
among other things:
it would be able to provide information on how the Agreement would operate in
practice;
the Serco WA CS & CS & TWU Agreement 201510 (the Serco Agreement) would be
overtaken by the Agreement if approved; and
it had rights under the Serco Agreement which would be lost if the Agreement were
to be approved.
[11] The Commission advised the parties on 7 March 2017 that it was not prepared to grant
the TWU’s request with reasons for that decision to be set out in the Commission’s decision
regarding the application seeking approval of the Agreement. Those reasons are set out below.
[12] With regard to the first ground relied upon by the TWU, in this case the primary
objection to the Agreement being approved is that the Agreement was not genuinely agreed
to. While information as to how the Agreement would operate in practice might be of passing
interest, it would not in my view assist the Commission in determining that issue.
[13] As to the other grounds relied upon by the TWU, those issues were considered by the
Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal
Operations Pty Ltd11 (Collinsville) where the Full Bench observed:
“Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously
applied to work at the Collinsville coal mine is misconceived in that whatever else
might be said about the content of those agreements, they did not cover the employees
who are now covered by the Agreement when the agreement was made and they did
not cover Collinsville. Consequently the CFMEU had no particular right under those
agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is
affected by the approval of the Agreement.”12 (References not included)
[14] Drawing on the decision in Collinsville, I note that the Serco Agreement does not
cover employees covered by the Agreement, nor does it cover Broadspectrum or provide any
particular rights to the TWU in respect of Broadspectrum’s employees (including those
employees covered by the Agreement). Accordingly, no right of the TWU would be affected
by approval of the Agreement.
[15] In the absence of any compelling reasons, I therefore declined the TWU’s request to
be heard in the matter.
[2017] FWC 1818
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The Applicant’s case
[16] As previously mentioned Ms Lawton gave evidence for Broadspectrum. Key aspects
of Ms Lawton’s oral evidence were that:
she started work on Broadspectrum’s bid for the Western Australian Government’s
court security and custodial services contract (the CS&CS contract) in January
201613;
Mr Barker was brought in as acting General Manager Justice in early to mid-April
2016 pending Mr David Denny’s commencement as General Manager in August
2016 (Mr Denny was relocating from Scotland) 14;
she sought approval to engage the four employees involved in bargaining for the
Agreement after considering the work involved in preparing Broadspectrum’s
various bids for correctional services work, including the CS&CS contract, adding
that there were “some 22 plus” online training modules which had to be developed15;
the four employees were doing pre-preparation work for the CS&CS contract bid
and understood they would transition to positions covered by the two position
descriptions tendered by Broadspectrum16 when it took over the CS&CS contract on
24 March 201717;
one of the four employees had a HRF endorsement (a particular form of vehicle
licence) and was suitable for Broadspectrum’s prisoner transport role, another had
operational experience and would transition to a Care and Custody Officer (CCO)
role probably in the control centre and another was a supervisor currently working in
that area18;
in respect of Contracts #3 and #419, the employees were internal applicants who were
employed by Broadspectrum on Nauru and who received a Justice Project
Allowance of $36,000 per annum as part of their Nauru package of terms and
conditions, adding that the Allowance was maintained while they worked on the
CS&CS contract bid in order to access their skills and that both employees were
aware that the Allowance would cease when the CS&CS contract work commenced
on 24 March 201720;
three of the four employees were based in Perth, with the other employee based in
Melbourne and in Perth intermittently21;
in respect of contract #122, the employee was an external candidate based in Perth
who was engaged on a part-time basis, adding that the person resigned around late
August 2016 to care for their daughter’s children as a result of an injury sustained by
their daughter23;
the person had not previously worked in a court, a prison or in court transport and
had no prior correctional experience24;
the duties performed by the employee while working for Broadspectrum involved
drafting training material and developing induction material, adding that the
employee had previously worked in the mining sector where she had a number of
rostering clerks reporting to her and that she had a Certificate IV in training as well a
strong safety background25;
in respect of contract #226, the employee was also an external candidate based in
Perth and was engaged on a part-time basis27;
she disagreed that she hired two part-time employees because it would be handy to
have additional persons to form a cohort to make an enterprise agreement, adding
that she offered two people jobs to capitalise on the intellectual property that they
each brought to their respective roles28;
[2017] FWC 1818
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the employee party to contract #2 had a safety background and a vehicle licence
which would enable them to drive persons in custody vehicles, worked casually
driving buses in Perth, had no prior experience in the justice system, had never
worked in a prison, court transport or a court, was still employed by Broadspectrum
working on the CS&CS contract, would be working as a driver under the CS&CS
contract in due course, and was currently undertaking a Certificate III in Correctional
Services so that they could work as a CCO29;
the employee commenced work on 3 June 2016 when assigned the task of preparing
drug and alcohol and safety behavioural training modules, with those modules
written in a generic way such that they could be used elsewhere (were
Broadspectrum successful in respect of other correctional services related bids)30;
she was not aware of the person’s terms and conditions of employment having
changed since contract #2 was signed31;
the person would work on a full time basis from 24 March 201732;
could not confirm when the Justice Unit referred to in Broadspectrum’s Form F17
was established33;
in respect of contract #334, the employee was an internal applicant who had been
working on Nauru, was based in Melbourne, came to Perth intermittently and had a
Certificate IV in Correctional Services35;
the employee assisted her with the community services side of the CS&CS contract
bid, researching the various indigenous communities which Broadspectrum would be
working with and making contact with the relevant communities in relation to people
which Broadspectrum would be hiring in the various regions, adding that the
employee’s work was also used in respect of another bid for correctional work36;
the employee had returned to Nauru around December 2016 having been offered and
accepted a promotion37;
contract #3 was offered on a temporary basis for the period 1 June to 30 November
2016 because at the time the employment offer was made Broadspectrum had not yet
been awarded the CS&CS contract38;
the reference to “Immigration Justice contract” in contract #3 was in her opinion an
error39;
the employees subject to contracts #1 and #2 both knew that if Broadspectrum did
not win the CS&CS contract there would be no justice work for them going
forward40;
in respect of contract #441, the employee was an internal candidate who was also
from Nauru, had a Certificate IV in Correctional Services, was originally based in
Melbourne but moved to Perth around late May 2016, remains in Perth working on
the CS&CS contract and would take up a supervisory role under the contract on 24
March 201742;
the employee was aware that payment of the Justice Project Allowance would cease
when they took up that supervisory role under the CS&CS contract43;
she was unable to say what the employee would be paid when working under the
CS&CS contract but agreed that it would not be $58,000 per annum44;
in respect of contracts #3 and #4, the remuneration provided for in those contracts
was reflective of what the individuals were paid while working on Nauru45;
the four employees were hired on common law agreements and were subsequently
made aware that Broadspectrum needed to put in place an enterprise agreement,
disputing that the employees’ capacity to participate in bargaining was one of the
reasons why they were hired46;
[2017] FWC 1818
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it was part of Broadspectrum’s commercial strategy to have in place an enterprise
agreement prior to the commencement of the CS&CS contract because it would
provide stability47;
Broadspectrum initiated bargaining in relation to the Agreement, initiated meetings
and information sessions in respect of the proposed agreement and produced a draft
of the Agreement48;
there was no disputation about what the base rates of pay in the Agreement should
be49;
she did not believe that the four employees would be paid exactly the same rates as
in the Agreement because they were bringing other skills to the table, adding that she
did not know what rates the employees would be paid going forward50;
the four employees appointed themselves as bargaining representatives shortly after
being engaged51;
she disagreed that Broadspectrum had suggested to the employees that they appoint
themselves as bargaining representatives to avoid the involvement of industrial
organisations in the bargaining process52;
the West Australian Government did not require a current enterprise agreement for
the CS& CS contract53; and
at the time they were engaged none of the four employees worked on anything other
than justice related business54.
[17] At the hearing Broadspectrum continued to rely on its Form F17 and tendered copies
of the ex parte emails exchanged between it and the Commissioner’s chambers55 prior to the
application being determined initially (those emails were set out in the Full Bench’s appeal
decision56). Key aspects of Broadspectrum’s submissions at the hearing were that:
in this case there were no issues in dispute regarding ss.186(2)(c), 186(2)(d), 186(4),
186(4A), 186(5), 186(6), 187(3) and 187(4) of the Act, it was unsure as to whether
UV had an issue regarding s.186(2) of the Act and it did not think that there was an
issue in respect of s.186(3) of the Act;
the Justice Business Unit (JBU) was in existence at the time the vote on the
Agreement took place, referring to Ms Lawton’s evidence that work on
Broadspectrum’s CS&CS contract bid commenced in early 2016 and Mr Barker’s
evidence that he was appointed acting General Manager of the JBU in April 2016;
it had always been true that the four employees who were eligible to vote on the
Agreement did not at the time of their engagement perform mainstream conventional
corrections type work, contending nevertheless that the employees were employed
for the purposes of performing corrections related work;
the fact that none of the four employees were involved in performing prisoner
transport or welfare at the time of their engagement was not enough to conclude that
none of them had been engaged to perform correctional work that fell within one of
the classification descriptors set out in Schedule B of the Corrections and Detention
(Private Sector) Award 201057 (the Corrections Award) which were called up by
clause 17.2 of the Agreement, adding that Ms Lawton’s evidence was that all four
employees were engaged for the purposes of being deployed to such work;
even if the view was taken that the preparation of training modules and other
operational documents fell outside the work contemplated by the classification
descriptors in the Corrections Award, drawing on Ms Lawton’s evidence that the
Care and Custody Officer (Inc Escorts) position description58 applied to three of the
employees while the Court Supervisor position description59 applied to the other
[2017] FWC 1818
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employee, one could not automatically conclude that the employees were not
corrections employees;
there was no doubt in this case that each of the four employees were employed to
perform tasks of a kind falling within the classification descriptors of the Corrections
Award;
in the alternative, if the work performed by the four employees did not come within
the classification descriptions of the Corrections Award then the four employees
most certainly qualified for coverage under the Clerks – Private Sector Award
201060 (the Clerks Award);
the Commission should therefore conclude that all four employees were employees
to whom the classifications and Agreement applied;
the circumstances in this case were very different from those which existed in Re
KCL Industries Pty Ltd61 (KCL);
there was no decision where the Commission had found that an agreement had not
been genuinely agreed to, or that there might be reasonable grounds for believing
that it had not been genuinely agreed to, merely because the employees who voted
on the agreement were paid more than the remuneration provided for in the
particular agreement;
the employees’ consent in this case should not be swept aside as inauthentic just
because they have employment contracts under which they get paid more than under
the Agreement;
the four employees’ employment was precarious because the business was in its
infancy and it did not have any work, adding that their employment was precarious
regardless of how the employees voted on the Agreement;
UV’s contention that the employees’ work was not correctional work because the
CS&CS contract was not in place was not consistent with the decision in Carpenter
v Corona Manufacturing Pty Ltd62 (Carpenter); and
the Full Federal Court decision in Shop, Distributive & Allied Employees
Association v ALDI Foods Pty Ltd63 (ALDI) had nothing to do with this case.
[18] Beyond this, Broadspectrum disputed a number of aspects of UV’s submissions and
also referred to a number of other authorities, including Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and
the Australian Manufacturing Workers’ Union v Sustaining Works Pty Ltd64, Construction,
Forestry, Mining and Energy Union v John Holland Pty Ltd65, Construction, Forestry, Mining
and Energy Union v Sparta Mining Services Pty Ltd66 and BGC Contracting Pty Ltd67.
UV’s case
[19] UV submitted that the Commission should not approve the Agreement. More
specifically, UV submitted among other things that:
there was no clear evidence that the JBU existed well prior to 6 June 2016 or that the
cohort were employees of the JBU at the commencement of bargaining and up to the
vote for the Agreement;
the employment of the employee covered by contract #168 appeared to commence
after the bargaining period had commenced;
contract #269 was dated 7 June 2016 and appeared to have been accepted by the
employee on 8 June 2016, adding that as a result the employee was potentially not
properly part of the cohort;
[2017] FWC 1818
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contract #370 appeared to indicate that the employee was not engaged to work within
the JBU as it referred to a full-time temporary position “at our Immigration Justice
contract”;
in respect of contract #471 it was reasonable to question whether the employee was
non-managerial and therefore potentially not properly part of the cohort;
all members of the cohort had significant unresolved questions concerning their
status;
in circumstances where a person was employed in some capacity by a facilities
management company seeking to win tenders from government to manage
correctional facilities or core transport functions, such work was not covered by the
Corrections Award;
with the exception of the supervisor, none of the employment contracts supplied by
Broadspectrum were readily identifiable with the position that the employees
allegedly held during the making of the Agreement;
there was a disconnect between the cohort’s terms and conditions of employment
during bargaining and the substance of the bargain made;
in relation to contracts #3 and #4, it was problematic that the employees were paid a
significant additional allowance broadly to coincide with their participation in the
making of the Agreement;
a proper conclusion was that each of the cohort assumed that if their employment
continued that they would maintain their superior common-law arrangements; and
in addition to remuneration that was significantly in excess of the Agreement’s base
rates, the employment contracts provided for terms and conditions that appeared to
be in excess of the Agreement and related to conditions enjoyed by Broadspectrum
employees generally, e.g. contracts #1 and #2 referred to “additional paid parental
leave for eligible employees”.
[20] At the hearing, UV contended, inter alia, that an analysis of the Corrections Award
classification descriptors indicated that employees had to actually be working in or in
connection with a correctional facility, adding that the work of the four employees who made
the Agreement did not fulfil this requirement and that work of that nature did not exist as the
CS&CS contract had not yet been signed at the time the Agreement was made. As to the
alternative proposition put by Broadspectrum, i.e. that the employees were covered by the
Clerks Award, UV described that as an absurd suggestion on the basis that the employees
were disconnected from any meaningful participation in the bargaining process because they
literally would not know what they were bargaining for.
[21] In summary, UV submitted that the Commission should not approve the Agreement as
a result of concerns as to whether the Agreement had been genuinely agreed to as per
s.186(2)(a) of the Act in circumstances where, among other things, the remuneration paid to
the employees was well in excess of that provided for under the Agreement, the employees
were not properly classifiable as correctional workers, the cohort was small, the employees
were hired very close to the commencement of bargaining and the Justice Project Allowance
was paid to two of the employees.
[22] In support of its submissions, UV relied on several authorities, including KCL, ALDI,
AKN Pty Ltd t/a Aitkin Crane Services72 and Thiess Pty Ltd73.
[23] Finally, I would note that on 10 March 2017 prior to the hearing UV forwarded several
documents to the Commission and Broadspectrum, including a document issued by the
[2017] FWC 1818
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Western Australian Department of Corrective Services in November 2016 titled Project
Summary Report Court Security and Custodial Services Contract74. Among other things the
document included the following timetable regarding the CS&CS contract75:
Phase Description Date
Approval and
Planning Phase
Minister announced contract with Serco would
not be extended
16 JUNE 2015
Cabinet approved establishment of Project
Steering Committee and approved funding for
project costs
19 October 2015
RFT Phase
Cabinet approved procurement process 14 December 2015
RFT released 26 February 2016
Mandatory industry briefing session 14 March 2016
Site visits commenced 18 March 2016
Vehicle inspection 20 March 2016
Site visits completed 22 March 2016
Interactive tender workshops commenced 27 April 2016
Interactive tender workshops completed 3 May 2016
Deadline for lodging Proposals 17 June 2016
Contract
Negotiation
Phase
Minister approved Preferred Respondent 29 August 2016
Broadspectrum announced as Preferred
Respondent
31 August 2016
Negotiations commenced 16 September 2016
Minister approved final terms of the Agreement 27 October 2016
Transition
Phase
Contract executed/signed 27 October 2016
Transition commences 28 October 2016
Service
Commencement
Transition completed 23 March 2017
Barker’s evidence
[24] Key aspects of Mr Barker’s oral evidence were that:
he was aware of the JBU in February 201676;
he commenced as acting General Manager of the JBU in April 2016, adding that in
that role he had administrative responsibility for the staff working on preparing the
tender for the CS&CS contract77;
as acting General Manager of the JBU he did not work with JBU employees in a
day-to-day sense78;
he had no involvement in the preparation of Broadspectrum’s bid for the CS&CS
contract, the engagement of the employees to assist with the preparation of that bid,
setting the terms and conditions of employment for those employees, the preparation
of the Agreement or bargaining for the Agreement79; and
he had no knowledge of the processes that took place in the course of bargaining for
the Agreement80.
[2017] FWC 1818
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The statutory framework
[25] The relevant provisions of the Act are set out below.
186 When the FWC must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under
subsection 182(4) or section 185, the FWC must approve the agreement under
this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with
undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been
genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer
covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to
make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with
the interaction between the National Employment Standards and enterprise
agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees,
see section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better
off overall test if approval would not be contrary to the public interest (see
section 189).
Note 3: The terms of an enterprise agreement may supplement the National
Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the
agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding whether the
group of employees covered was fairly chosen, take into account whether the
group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any
unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) The FWC must be satisfied that the agreement does not include any
designated outworker terms.
[2017] FWC 1818
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Requirement for a nominal expiry date etc.
(5) The FWC must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which the FWC
approves the agreement.
Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another
person who is independent of the employers, employees or employee
organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement
for the purposes of that procedure.
Note 1: The FWC or a person must not settle a dispute about whether an employer had
reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2)
and 740(2)).
Note 2: However, this does not prevent the FWC from dealing with a dispute relating
to a term of an enterprise agreement that has the same (or substantially the same)
effect as subsection 65(5) or 76(4).
187 When the FWC must approve an enterprise agreement—additional
requirements
Additional requirements
(1) This section sets out additional requirements that must be met before the
FWC approves an enterprise agreement under section 186.
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) The FWC must be satisfied that approving the agreement would not be
inconsistent with or undermine good faith bargaining by one or more
bargaining representatives for a proposed enterprise agreement, or an enterprise
agreement, in relation to which a scope order is in operation.
Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred
to in subsection 184(2), the FWC must be satisfied that the bargaining
representative has complied with that subsection and subsection 184(3) (which
deals with giving notice of the variation).
Requirements relating to particular kinds of employees
(4) The FWC must be satisfied as referred to in any provisions of Subdivision
E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to
particular kinds of employees.
…
[2017] FWC 1818
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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.” (Underlining added)
Consideration of the issues
[26] With regard to the statutory considerations set out in ss.186 and 187 of the Act, based
on the material contained in Broadspectrum’s Form F17 and the other material before the
Commission I am satisfied that the requirements of ss.186(2)(c), 186(2)(d), 186(3), 186(4),
186(4A), 186(5), 186(6) and 187 of the Act are met (as the Agreement is not a multi-
enterprise agreement, s.186(2)(b) is not relevant in this case). What is in contest in this case is
whether or not the Commission can be satisfied that s.186(2)(a) of the Act, which requires
that the agreement has been genuinely agreed to by the employees covered by the agreement
(underlining added), is met. Section 188 of the Act sets out when employees have genuinely
agreed to an enterprise agreement. Based on the material before the Commission I am
satisfied that the requirements of ss.188(a) and 188(b) are met. However, as can be seen from
above, UV contends that there are reasonable grounds for believing that the Agreement was
not genuinely agreed to by employees. While UV cites a number of reasons for that view, the
two primary grounds that it relies upon are:
(i) the work performed by the four employees involved in making the Agreement was
not covered by the Agreement as it fell outside the classifications covered by the
Agreement; and
(ii) as all four employees were paid remuneration well in excess of that provided for in
the Agreement, they had no stake in the Agreement.
[27] An analysis of the material before the Commission indicates that:
work was underway on Broadspectrum’s CS&CS contract bid in January 2016;
Broadspectrum was also bidding for various other correctional services contracts in
2016;
Mr Barker was appointed as acting General Manager of the JBU in April 2016;
contracts #1 and #2 were both dated 7 June 2016, specify 3 June 2016 as the
commencement, were signed by the employees on 12 and 8 June respectively, and
state that the position title is “Care & Security Officer”;
contracts #3 and #4 were dated 24 May 2016 and 6 June 2016 respectively and were
signed by the respective employees on 25 May 2016 and 8 June 2016;
[2017] FWC 1818
13
contract #3 states the position title is “Care & Welfare Officer”, while contract #4
cites the position title as “Care & Welfare Supervisor”;
the position titles specified in the employment contracts, i.e. Care & Security
Officer, Care & Welfare Officer or Care & Welfare Supervisor, do not align with the
position descriptions tendered by Broadspectrum81 or the classifications in the
Agreement despite the latter being made shortly after the employment contracts were
signed;
the employment contracts do not specify the duties of the respective positions;
of the four employees, two continue to be employed by Broadspectrum in the JBU,
one resigned in late August 2016 and the other was promoted to a position on Nauru
(which is outside the JBU) in December 2016;
in terms of the employment backgrounds of the four employees, two were existing
Broadspectrum employees working on Nauru, one had a mining sector background
and the other worked as a casual bus driver;
based on Broadspectrum’s advice to the Commissioner who first determined the
application, the work undertaken by the four employees involved:
“… establishing the systems and processes that potential clients expect
Broadspectrum to have in place. They have worked on drafting, compiling and
reviewing policies and operating manuals to suit the day-to-day operational
requirements of tender requirements of the client as well as those required
legislative by the client. They have been involved with the technical
requirements of Broadspectrum bids for WA Court Security and Custody
Services, Wandoo (WA), John Morony Correctional Facility (NSW) and Mt
Gambier (SA). In addition to the processes and procedures for handling
persons in care (PICs), they have worked on rostering and staffing
requirements, methods for maximising staffing efficiencies, ways of ensuring
OHS compliance given the nature of the work. As Broadspectrum wins work
they will be engaged in their roles on those contracts.”82(underlining added);
based on Ms Lawton’s evidence, the work undertaken by the four employees
involved drafting training material, developing induction material, preparing drug
and alcohol and safety behavioural training modules, and assisting her with the
community services side of the CS&CS contract bid;
Broadspectrum was announced as the “Preferred Respondent” for the CS&CS
contract on 31 August 2016 with the contract executed/signed on 27 October 2016;
prior to being awarded the CS&CS contract, Broadspectrum had no correctional
services work;
it was intended that three of the four employees would transition to Care and
Custody Officer (Inc Escorts) positions, with the other employee to transition to a
Court Supervisor position when Broadspectrum commenced performing the CS&CS
work;
Broadspectrum was scheduled to commence the delivery of services under the
CS&CS contract on 24 March 2017;
the employees were each paid well in excess of the rates of pay in the Agreement,
with the premium ranging from around $28,000 per annum to over $50,000 per
annum (based on the Agreement’s minimum weekly wage and inclusive of the
Justice Project Allowance where applicable);
in respect of two of the four employees, the remuneration provided for in their
employment contract was to maintain their existing remuneration;
the Care and Custody Officer (Inc Escorts) position description83 set out the position
objective as follows:
[2017] FWC 1818
14
“Responsible for maintaining a safe and secure environment for the transfer of
PICs from police lock-ups to courts and Other Movement Services. To provide
custodial care of PICs at a court in a caring and humane manner, whilst
adhering to the requirements of good security, and to transport PICs to prisons
in accordance with the instructions of the court”;
the Care and Custody Officer (Inc Escorts) position description set out the primary
responsibilities and key deliverables under the headings “Court duties” and “Escort
duties” and states, inter alia, that “This person may also be required to undertake any
other activities as required”;
the Court Supervisor position description84 set out the position objective as follows:
“The Position of a Court Supervisor is that of a Senior Care and security
Officer who works full-time in uniform in a court and is personally responsible
for the safe, secure and efficient performance of a specific court.
The role is to ensure the correct deployment of staff to courts and additionally
to ensure the efficient performance of Care and Custody and Care and security
Officers under his/her control in his/her court and the efficient management of
custody areas within courts.”; and
the Court Supervisor position description also set out the primary responsibilities
and key deliverables of the position in greater detail and states that “This person may
also be required to undertake any other activities as required”.
[28] In ALDI Justice White stated:
“134 The matters listed in s 188 to which the FWC is to have regard in determining
whether there has been genuine agreement to an enterprise agreement seem, with the
possible exception of (c), to be of an objective kind. Nevertheless, it is the genuineness
of the agreement by particular persons which the FWC is to assess, these persons being
the employees “covered by” the agreement. There is, accordingly, an inherent
requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is
implicit in s 186(2)(a) that there be persons covered by the agreement whose
genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the
FWC. Persons who will become covered by the agreement only at some time in the
future do not answer that description, even if they did, by some means, vote to approve
it.
135 Further, in my opinion, the expressions “will be covered” and “covered by” in the
scheme established by Pt 2-4 are counterpoints. Sections 172 to 181 use the former
expression because they are concerned with the sequence of events until an enterprise
agreement is made and because a contemplated enterprise agreement cannot cover
anyone until it is made. The immediate change to the present tense following the final
step in the sequence, that is, the making of the agreement (s 182), is an indication that
those whom it was previously contemplated would be covered by the agreement are
now, on the making of the agreement, covered by it (subject of course to the approval
the FWC and the commencement of operation of the agreement pursuant to s 54). The
change in terminology occurs because the work done by the term “will be covered” is
complete. Because the two expressions are counterpoints, the expression “who will be
covered by the agreement” is a reference to those who, upon the making of the
agreement, are covered by it and is not a reference to those who, at some future time
will become covered by it.”
[2017] FWC 1818
15
[29] Drawing on the decision in ALDI and the analysis at paragraph [27] above, the fact
that the four employees were engaged by Broadspectrum in May and June 2016, the
Agreement was made on 5 July 2016, Broadspectrum was not announced as the “Preferred
Respondent” for the CS&CS contract until 31 August 2016, the CS&CS contract was not
executed/signed until 27 October 2016 and that Broadspectrum did not commence delivery
under the contract until 24 March 2017 when considered together, raise doubts as to whether
the employees were “covered by” the Agreement at the time at which it was made.
[30] Exploring that issue further, I note that Clause 2 – Coverage and Application of
Agreement states that the Agreement:
“… shall cover and apply to:
(a) Broadspectrum (Australia) Pty Ltd; and
(b) Employees of Broadspectrum (Australia) Pty Ltd engaged within the Justice
Business Unit in the classifications listed in Clause 17 in the Commonwealth of
Australia.”
[31] Clause 2.2 of the Agreement states that the Agreement “shall not cover or apply to any
managerial Employees.” Further, clause 17.2 of the Agreement provides that Schedules B of
the Corrections and Clerks Awards ‘will apply for the purposes of determining the appropriate
classification level for an Employee covered by this Agreement.”
[32] Schedule B of the Corrections Award includes the following classification descriptors
which appear to align with the classifications to which appear to align with the classification
descriptions tendered by Broadspectrum.
“B.5 Court Security Officer
B.5.1 A Court Security Officer is an employee who has fulfilled the training
requirements set down for a Trainee court security officer, or who has been assessed
as meeting these requirements through the employer’s RPL program, and whose
indicative tasks will be limited to those specified therein.
B.5.2 The primary objective of the Court Security Officer is to ensure, on a day-to-day
basis, the security of prisoners, staff, judiciary and the public within a court complex.
B.5.3 Indicative tasks for a Court Security Officer are to:
Escort prisoners within a centre to the court/s when they are required on a day-to-
day basis in accordance with approved routines and policies.
Assist the centre in the administration of legal visits.
Assist in searching of prisoners entering and leaving the centre, if required.
Escort prisoners from the centre to external venues as required.
Assist with the maintenance of the static security requirements of the centre,
reporting, orally and in writing, any unusual behaviours or occurrences which
could result in a breach of security.
[2017] FWC 1818
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Comply with the Occupational Health and Safety legislation, other relevant
legislation and EEO/EOWA requirements and contribute to the maintenance and
improvement of safety and equity in the workplace.
Organise for the repair of minor damage to furniture and fittings.
Other duties as directed by the Centre Manager.
B.5.4 Competencies of a Court Security Officer are:
Demonstrated knowledge of the Operating Manual and other policies and
procedures of the employer.
Demonstrated high level of communication skills, including the ability to negotiate
and interact with people from various ethnic backgrounds.
Ability to write comprehensive reports and correspondence.
Ability to initiate new ideas and apply creative solutions to the resolution of
problems.
Ability to be decisive and handle situations in a firm, fair and equitable manner.
Basic level of computer literacy.
Demonstrated knowledge of EEO, Affirmative Action Plan and Workplace Health
and Safety Principles.
B.6 Court Security Supervisor
B.6.1 A Court Security Supervisor is a person selected on merit to ensure on a day-to-
day basis, the efficient delivery of prisoners to court/s within the centre by scheduling
the prisoners in accordance with the court lists.
B.6.2 Indicative tasks for a Court Security Supervisor are to:
On a daily basis ensure the prisoners are available for escort to the appropriate
courts at the correct time.
Identify the number of officers required each day and ensure the rosters are
prepared, maximising the staffing efficiencies.
Comply with the Safe Work Australia Act 2008 (Cth), other relevant legislation and
EEO/EOWA and contribute to the maintenance and improvement of safety and
equity in the workplace.
Organise external escorts when required.
Monitor and maintain the dynamic and static security requirements of the centre
reporting, orally and in writing, any unusual behaviours or occurrences which
could result in a breach of security.
Supervise the Court Security Officers on a daily basis.
Participate in quality assurance teams as assigned by management, in order to assist
with the implementation of the quality standards in the centre.
Other duties as directed by the Operations Manager or Centre Manager.
B.6.3 Competencies of a Court Security Supervisor are:
Demonstrated knowledge of the Operating Manual and other policies and
procedures of the employer.
Demonstrated high level of communication skills, including the ability to negotiate
and interact with people from various ethnic backgrounds.
[2017] FWC 1818
17
Ability to write comprehensive reports and correspondence.
Ability to initiate new ideas and apply creative solutions to the resolution of
problems.
Ability to be decisive and handle situations in a firm, fair and equitable manner.
Basic level of computer literacy.
Demonstrated knowledge of EEO, Affirmative Action Plan and Workplace Health
and Safety Principles.
Ability to prepare rosters.
B.7 Custody Officer
B.7.1 A Custody Officer is an employee who has fulfilled the training requirements set
down for a Trainee court security officer and has experience as Court Security Officer,
or who has been assessed as meeting these requirements through the employer’s RPL
program, and whose indicative tasks will be limited to those specified therein.
B.7.2 The primary objective of the Custody Officer is to ensure, on a day-to-day basis,
the security and welfare of persons in custody in the centre.
B.7.3 Indicative tasks for a Custody Officer are to:
Supervise the behaviour and activities of the prisoner in the centre on a day-to-day
basis in accordance with approved routines and policies.
Interact with the prisoners and respond to their needs through the provision of
services in an appropriate manner in accordance with relevant legislation and the
Operating Manuals.
Monitor and maintain the dynamic and static security requirements of the centre
reporting, orally and in writing, any unusual behaviours or occurrences which
could result in a breach of security.
Participate in the reception, induction and transfer of prisoners in accordance with
client directions and centre policy and procedures.
Assist with the supervision of prisoner visits, including families, solicitors etc.
Comply with Occupational Health and Safety legislation, other relevant legislation
and EEO/EOWA requirements and contribute to the maintenance and improvement
of safety and equity in the workplace.
Participate in quality assurance teams as assigned by management, in order to assist
with the implementation of the quality standards in the centre.
Other duties as directed by the Shift Manager and/or Centre Manager.
B.7.4 Competencies of a Custody Officer are:
Demonstrated knowledge of the Operating Manual and other policies and
procedures of the employer.
Demonstrated high level of communication skills, including the ability to negotiate
and interact with people from various ethnic backgrounds.
Ability to write comprehensive reports and correspondence.
Ability to initiate new ideas and apply creative solutions to the resolution of
problems.
Ability to be decisive and handle situations in a firm, fair and equitable manner.
Basic level of computer literacy.
[2017] FWC 1818
18
Demonstrated knowledge of EEO, Affirmative Action Plan and Workplace Health
and Safety Principles.
B.8 Prisoner Escort Transport Officer
B.8.1 A Prisoner Escort Transport Officer is an employee who has fulfilled the
training requirements as set down by the applicable transport contract in which they
are employed. These requirements include as a minimum the successful completion of
a formal structured induction program and an appropriate vehicle licence.
B.8.2 The primary objective of the Prisoner Escort Transport Officer is to ensure the
humane and secure transportation (by road, rail and air) of prisoners.
B.8.3 Indicative tasks of a Prisoner Escort Transport Officer are to:
Ensure that prisoners are received and handed into and from their custody in
accordance with procedures concerning identification, documentation and receipt
of property and cash.
Ensure all property, cash and documents have been securely stored on the vehicle.
Ensure the safe transport of prisoners from the collection to delivery point and
primary responsibility for the security of prisoners during the escort.
Ensure that prisoners in their custody are treated with care and sensitivity at all
times including interacting with prisoners to their needs through the provision of
services and assistance in an appropriate manner in accordance with the relevant
legislation and the Operating Manual (or other procedures applying to the escort).
Deal with complaints in accordance with procedures.
Provision of timely incident reports in respect of all reportable incidents and follow
other reporting requirements.
Ensure that vehicles and equipment are in a safe and proper working order and are
searched and cleaned prior to leaving base.”
[33] As previously noted, the alternative proposition put by Broadspectrum was that the
employees were covered by the Clerks Award with clause B.5 and B.6 specifically referred to
at the hearing85. Schedule B of the Clerks Award sets out those classification descriptors as
follows:
B.5 Level 4
B.5.1 Characteristics
Employees at this level will have achieved a level of organisation or industry specific
knowledge sufficient for them to give advice and/or information to the organisation
and clients in relation to specific areas of their responsibility. They would require only
limited guidance or direction and would normally report to more senior staff as
required. Whilst not a pre-requisite a principal feature of this level is supervision of
employees in lower levels in terms of responsibility for the allocation of duties, co-
ordinating work flow, checking progress, quality of work and resolving problems.
They exercise initiative, discretion and judgment at times in the performance of their
duties.
[2017] FWC 1818
19
They are able to train employees in Levels 1–3 by personal instruction and
demonstration.
B.5.2 Typical duties/skills
Indicative typical duties and skills at this level may include:
(i) Secretarial/executive support services which may include the following:
maintaining executive diary; attending executive/organisational meetings and taking
minutes; establishing and/or maintaining current working and personal filing systems
for executive; answering executive correspondence from verbal or handwritten
instructions.
(ii) Able to prepare financial/tax schedules, calculating costings and/or wage and
salary requirements; completing personnel/payroll data for authorisation;
reconciliation of accounts to balance.
(iii) Advising on/providing information on one or more of the following:
employment conditions;
workers compensation procedures and regulations; and
superannuation entitlements, procedures and regulations.
(iv) *Applying one or more computer software packages, developed for a micro
personal computer or a central computer resource to either:
creating new files and records;
maintaining computer based management systems;
identifying and extract information from internal and external sources; or
using of advanced word processing/keyboard functions.
(v) Call centre customer contact team leader …
* Note: These typical duties/skills may be either at Level 3 or Level 4 dependent upon
the characteristics of that particular level.
B.6 Level 5
B.6.1 Characteristics
Employees at this level are subject to broad guidance or direction and would report to
more senior staff as required.
Such employees will typically have worked or studied in a relevant field and will have
achieved a standard of relevant and/or specialist knowledge and experience sufficient
to enable them to advise on a range of activities and features and contribute, as
required, to the determination of objectives, within the relevant field(s) of their
expertise.
[2017] FWC 1818
20
They are responsible and accountable for their own work and may have delegated
responsibility for the work under their control or supervision, including, scheduling
workloads, resolving operations problems, monitoring the quality of work produced
and counselling staff for performance and work related matters.
They would also be able to train and to supervise employees in lower levels by means
of personal instruction and demonstration. They would also be able to assist in the
delivery of training courses. They would often exercise initiative, discretion and
judgment in the performance of their duties.
The possession of relevant post secondary qualifications may be appropriate but are
not essential.
B.6.2 Typical duties/skills
Indicative typical duties and skills at this level may include:
(i) Apply knowledge of organisation’s objectives, performance, projected areas of
growth, product trends and general industry conditions.
(ii) Application of computer software packages within either a micro personal
computer or a central computer resource including the integration of complex word
processing/desktop publishing, text and data documents.
(iii) Provide reports for management in any or all of the following areas:
account/financial;
staffing;
legislative requirements; and
other company activities.
(iv) Administer individual executive salary packages, travel expenses, allowances and
company transport; administer salary and payroll requirements of the organisation.
(v) Call centre principal customer contact leader …
An employee who holds a Diploma—Front Line Management or equivalent is to
be classified at this level when employed to perform the functions
defined.”(Underlining added)
[34] A comparison of the evidence regarding the work undertaken by the four employees
who made the Agreement and the classification descriptors in the Corrections and Clerks
Awards indicates that the work performed by the four employees at the time the Agreement
was made bears little, if any, resemblance to the classification descriptors set out above. The
only possible exception is in respect of contract #4 on the basis of that employee’s potential
supervisory responsibilities, which would potentially bring that position within the coverage
of the Clerks Award.
[35] As to whether or not the work performed by the employees was covered by the
Agreement’s classifications, as previously mentioned, Broadspectrum relied on the decision
[2017] FWC 1818
21
in Carpenter. In that case a Full Bench of the then Australian Industrial Relations
Commission observed that:
“In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do the work with a view
to ascertaining the principal purpose for which the employee is employed. In this case,
such an examination demonstrates that the principal purpose for which the appellant
was employed was that of a manager. As such, he was not ‘‘employed in the process,
trade, business or occupation of . . . soliciting orders, obtaining sales leads or
appointments or otherwise promoting sales for articles, wares, merchandise or
materials’’ and was not, therefore, covered by the award.”86 (References not included,
underlining added)
Ms Lawton’s evidence was that she sought approval to engage the four employees after
considering the work involved in preparing Broadspectrum’s various bids for correctional
services work, including the CS&CS contract, and that there were “some 22 plus” online
training modules which had to be developed. This suggests that the primary purpose the
employees were engaged for was to undertake the necessary preparatory work relating to the
various tenders for correctional services work which Broadspectrum was pursuing rather than
work performed by the classifications listed in clause 17 of the Agreement. While I note
Broadspectrum’s email response to the Commissioner which stated that “As Broadspectrum
wins work they will be engaged in their roles on those contracts”87, I also note that employees
would not have transitioned to those operational roles until 24 March 2017 when
Broadspectrum commenced work under the CS&CS contract. This is some 260 days after the
Agreement was made. This does not support a finding that the principal purpose for which the
employees were employed was the positions specified in their contracts or that they were
therefore covered by the Agreement.
[36] In summary, the above analysis does not support a finding that the Agreement was
genuinely agreed to as the employees were not covered by the Agreement when it was made.
[37] Against that background, it is not necessary for me to consider whether the employees
had a stake in the Agreement given that their remuneration was well in excess of that
provided for in the Agreement.
[2017] FWC 1818
22
Conclusion
[38] For all the above reasons, I consider that there are reasonable grounds for believing
that the Agreement was not genuinely agreed to by the employees. As a result, I am not
satisfied that the Agreement was genuinely agreed to as required by s.186(2)(a) on the basis
that the employees who made the Agreement were not covered by the Agreement at the time
it was made. Accordingly, the Agreement cannot be approved. An Order dismissing the
application will be issued in conjunction with this decision.
Appearances:
J. Snaden of Counsel for the Applicant.
S. Bull for United Voice.
Hearing details:
2017.
Canberra and Sydney:
March 10.
Printed by authority of the Commonwealth Government Printer
Price code C, PR591462
THE FAIR WORK COMM DEPUN PRESIDENT SEAL NOIS THE
[2017] FWC 1818
23
1 [2016] FWCA 8209
2 [2016] FWC 7936
3 Ibid at [8]
4 [2016] FWCFB 871
5 Ibid at [11]
6 Exhibit 1
7 Exhibit 2
8 Exhibit 6
9 PR590781
10 AE416207
11 (2014) 246 IR 21
12 Ibid at paragraph 60
13 Transcript at PN97
14 Ibid at PN109-116
15 Ibid at PN130
16 Exhibit 2
17 Transcript at PN136
18 Ibid at PN141-143
19 Exhibit 1
20 Transcript at PN144-150
21 Ibid at PN161;
22 Exhibit 1
23 Transcript at PN179-191
24 Ibid at PN193-207
25 Ibid at PN212-215
26 Exhibit 1
27 Transcript at PN223-224
28 Ibid at PN225-228
29 Ibid at PN234-250
30 Ibid at PN251-269
31 Ibid at PN270-271
32 Ibid at PN273
33 Ibid at PN277-294
34 Exhibit 1
35 Transcript at PN295-301
36 Ibid at PN306-310
37 Ibid at PN311-316
38 Ibid at PN325
39 Ibid at PN329-333
40 Ibid at PN326-328
41 Exhibit 1
42 Transcript at PN349-363
43 Ibid at PN364
44 Ibid at PN372-375
45 Ibid at PN384
46 Ibid at PN401-403
[2017] FWC 1818
24
47 Ibid at PN412-415
48 Ibid at PN423-425
49 Ibid at PN434
50 Ibid at PN443
51 Ibid at PN461
52 Ibid at PN475-488
53 Ibid at PN500
54 Ibid at PN534
55 Exhibits 4 and 5
56 [2016] FWCFB 871 at [22] and [24]
57 MA000110
58 Exhibit 2
59 Ibid
60 MA000002
61 (2016) 257 IR 266
62 (2002) 122 IR 387
63 [2016] FCAFC 161
64 [2015] FWCFB 4422
65 (2015) 247 IR 55
66 [2017] FCFB 781
67 [2017] FWC 852
68 Exhibit 1
69 Ibid
70 Ibid
71 Ibid
72 [2015] FWCFB 1833
73 [2017] FWC 718
74http://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3914902a3b9a0ac141b2b4e74825806e0027de
d5/$file/4902.pdf
75 Ibid at page 12
76 Transcript at PN588
77 Ibid at PN596-598
78 Ibid at PN604
79 Ibid at PN631-635
80 Ibid at PN636
81 Exhibit 2
82 Exhibit 5
83 Exhibit 2
84 Ibid
85 Transcript at PN693
86 (2002) 122 IR 387 at paragraph 9
87 Exhibit 5
http://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3914902a3b9a0ac141b2b4e74825806e0027ded5/$file/4902.pdf
http://www.parliament.wa.gov.au/publications/tabledpapers.nsf/displaypaper/3914902a3b9a0ac141b2b4e74825806e0027ded5/$file/4902.pdf
