1
Fair Work Act 2009
s.739—Dispute resolution
Robert Battye
v
John Holland Pty Ltd
(C2017/4132)
COMMISSIONER BISSETT MELBOURNE, 20 JUNE 2019
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)].
[1] Mr Robert Battye notified the Fair Work Commission (Commission) of an industrial
dispute with John Holland Pty Ltd (John Holland) on 27 July 2017. The dispute is said to
arise under the Territoria Collective Agreement 20131 (2013 Agreement). The Form F10 filed
by Mr Battye says that the dispute is in relation to the correct classification of Mr Battye and
the payment of particular allowances to Mr Battye.
[2] Mr Battye commenced employment with John Holland on 1 January 2016. His
employment ended on 16 October 2017.
[3] The matter was first listed for conference in August 2017 in Darwin. The dispute was
not resolved at that conference. Following the conference Mr Battye had no correspondence
with the Commission until 20 December 2018 when he requested that his application be re-
listed for the purpose of programming in 2019.
[4] The application was listed for conference on 18 February 2019 by telephone. At that
conference I requested that the parties have further discussion to determine if the matter could
be resolved. John Holland indicated that it had a jurisdictional objection to the dispute
proceeding but indicated it was prepared to have further discussions with Mr Battye.
[5] On 27 February 2019 the Commission received advice from Mr Battye that further
discussions had been unsuccessful in resolving the dispute and requested that the
jurisdictional matter be dealt with.
[6] The parties have consented to the Commission dealing with the jurisdictional
objection on the basis of submissions filed in accordance with directions issued by the
Commission.
[2019] FWC 4122 [Note: An appeal pursuant to s.604 (C2019/4194) was
lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 4122
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The dispute
There are three aspects to the dispute notified by Mr Battye. These are:
1. The classification dispute
Mr Battye claims that he should have been classified (and paid) at Level 5 and not
Level 4 on and from his commencement date with John Holland (clause 13.3 of
the 2013 Agreement).
2. The demotion dispute
Mr Battye claims that he was unilaterally and improperly demoted from Level 5
duties to Level 4 duties on 27 April 2017 by the actions of Mr Aaron Sacagio
(Project Manager).
3. The multi-skilled allowance dispute
Mr Battye says he was entitled to receive the multi-skilled allowance from his
commencement date with John Holland (clause 19 of the 2013 Agreement).
[7] To the extent necessary I am satisfied that these are matters that arise under the
2013 Agreement.
The jurisdictional objection
[8] John Holland submits that as of 16 May 2018 the Commission ceased to have
jurisdiction to deal with the dispute subject to the application currently before the
Commission because on this date the 2013 Agreement ceased to operate because the
Territoria Collective Agreement 20172 (2017 Agreement) had commenced to operate.
[9] John Holland submits that the Commission will no longer have jurisdiction to deal
with a dispute if the agreement under which the dispute arose ceases to operate while the
dispute is on foot unless the successor agreement allows the dispute to continue through a
savings provision.
[10] In this case John Holland submits that clause 45 of the 2013 Agreement empowered
the Commission to deal with disputes in relation to the 2013 Agreement; the 2013 Agreement
ceased to operate on 16 May 2018 when the 2017 Agreement commenced; the
2017 Agreement does not have a savings clause and the dispute notified to the Commission
was in relation to matters arising under the 2013 Agreement and not the 2017 Agreement.
[11] Further, John Holland submits that even if the 2017 Agreement was not limited to
dealing with disputes arising under that agreement, Mr Battye was not employed at the time
the 2017 Agreement commenced to operate, the 2017 Agreement never applied to Mr Battye
and he therefore could not raise a dispute pursuant to the 2017 Agreement.
[12] John Holland also submits that even if Mr Battye did have a right to have his dispute
dealt with under the 2013 Agreement after his employment ended this right was extinguished
when the 2013 Agreement ceased to operate.
[2019] FWC 4122
3
[13] John Holland submits that even if the Commission finds that it does have jurisdiction
to deal with the dispute it should, as a matter of discretion, decline to do so. It submits that
Mr Battye has taken no action to prosecute this application between August 2017 and
December 2018 and he should not be permitted to make an application, “warehouse” it and
enliven it then at some time of his choosing. It says that the conduct of Mr Battye undermines
the purpose and effectiveness of the dispute settlement procedure in the 2013 Agreement.
[14] John Holland submits that s.739(4) of the Fair Work Act 2009 (FW Act) does not
confer an unqualified, indefinite jurisdiction on the Commission to arbitrate a but that this
dispute arising under an agreement where that agreement has ceased to operate. John Holland
says that s.595 of the FW Act is the source of the Commission’s power to arbitrate a dispute
but that this is limited by s.739. Section 739(1) of the FW Act states that the section applies if
a term referred to in s.738 “requires or allows” the Commission to deal with a dispute.
Section 738 of the FW Act refers to terms in an enterprise agreement that provide procedures
for dealing with a dispute. From 16 May 2018 the 2013 Agreement ceased to operate (see
s.54(2)(b), s.54(3) and s.58(2)(e) of the FW Act) so from that point in time the 2013
Agreement did not require or allow anything. Because the 2013 Agreement has ceased to
operate there is, therefore, no operative term of the 2013 Agreement that would allow the
Commission to arbitrate the dispute under the 2013 Agreement.
[15] The argument that John Holland gave “advanced consent” to have disputes arbitrated
by the dispute settlement procedure of the 2013 Agreement must fail because the dispute
settlement procedure of the 2013 Agreement remains subject to the limitations imposed by the
FW Act.
[16] Mr Battye says that:
He made his application to the Commission to deal with a dispute pursuant to
the 2013 Agreement before he resigned his employment;
The Commission has power to deal with the dispute even though his
employment has ended;
His dispute has not been settled by the making of the 2017 Agreement;
In making the 2013 Agreement John Holland gave advanced consent through
clause 45.1.4 of the 2013 Agreement to having a dispute under that
2013 Agreement settled by arbitration;
The 2017 Agreement never covered his employment and therefore could not
have extinguished his rights pursuant to the 2013 Agreement;
Only s.58(1) and s.58(2)(a) of the FW Act apply in this case and s.58(2)(b),
s.58(2)(d) and s.58(e) do not apply.
[2019] FWC 4122
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Undisputed facts
[17] There are a number of factual matters that are not in dispute between the parties. These
are:
1. Mr Battye commenced employment on 1 January 2016;
2. Mr Battye resigned from his employment on 16 October 2017;
3. Mr Batty made his application to the Commission on 27 July 2017, before his
employment ended;
4. The 2013 Agreement ceased to operate on 16 May 2018 when the 2017 Agreement
commenced operation;
5. Clause 45 of the 2013 Agreement is the dispute settlement procedure. It relevantly
states:
45. DISPUTES AND GRIEVANCE PROCEDURE
45.1 If there is a dispute arising from a matter dealt with by this
Agreement or the National Employment Standards (except
s.65(5) and s.76(4) of the FW Act), it shall be dealt with in the
following manner:
45.1.1 as soon as practicable after the dispute or claim has
arisen, the Employee concerned shall notify his or her
immediate supervisor, affording that supervisor the
opportunity to remedy the cause of the dispute or
claim;
45.1.2 if no resolution for the Employee's grievance is
reached, then the Employee shall seek further
discussions and attempt to resolve the grievance with
the Project Manager as prescribed by the Company
from time to time;
45.1.3 if the matter is still unresolved, the Employee's
grievance may be referred to the Company's Human
Resources Manager and/or the relevant Business
Manager, for resolution;
45.1.4 If the matter is not resolved at this stage, the matter
may be referred to Fair Work Commission for
conciliation and/or arbitration for resolution. The
decision made by Fair Work Commission shall be
binding to both the Company and affected
Employee(s).
[2019] FWC 4122
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45.1.5 The Company reserves the right to be legally
represented for all matters before FWC.
45.2 It is agreed that during the time when the affected Employee(s)
and the Company attempt to resolve the matter:
45.2.1 work shall continue as normal in accordance with this
Agreement;
45.2.2 no industrial action shall be commenced or taken;
45.2.3 nothing in this Clause shall effect the ability of the
Company to terminate an Employee pursuant to the
termination Clause(s) in this Agreement.
45.2.4 the affected Employee(s) and the Company must co-
operate to ensure that the dispute resolution
procedures are carried out as expeditiously as is
reasonably possible.
45.3 Safety issues shall be isolated from industrial matters and any
issue or dispute relating to safety shall be dealt with in
accordance with Company policy, procedure and relevant safety
legislation.
45.4 Final settlement of the dispute will not be prejudiced by
continuance of work under the dispute and grievance procedure
in this Agreement.
45.5 An Employee may choose to be represented at any stage of this
procedure or in relation to any matters dealt with under this
procedure.
45.6 Any decision or suggested resolution of a grievance under this
Clause shall not be inconsistent with the Fair Work (Building
Industry) Act 2012 (Cth) or legislative obligations.
6. Mr Battye does not seek to progress his dispute under the 2017 Agreement.
Authorities
[18] Both parties put substantial authorities before me. The power of the Commission to
arbitrate a dispute in the circumstances before me has been widely canvassed by the
Commission such that some consideration of the authorities is necessary. I have only
considered below those authorities relevant to the matters I need to determine so that I have
not considered, for example, authorities in relation to the power to make an application once
employment has ended (as Mr Battye made his application before his employment ended).
[2019] FWC 4122
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[19] The authorities in relation to jurisdiction of the Commission in circumstances where
an agreement under which a dispute is notified ceases to apply are clear. The Commission
does not have jurisdiction to deal with a dispute in circumstances where the agreement to
which the dispute relates ceases to operate. Stephenson v Senator the Honourable Eric Abetz
(Special Minister of State)3 (Stephenson) remains Full Bench authority for this proposition.
This decision was endorsed and followed by subsequent Full Benches in Pulle v
Commonwealth4 (Pulle) and de Jong v Australian Broadcasting Corporation.5 That authority
has not been disturbed. In Stephenson the applicant was covered by the 2001 agreement at the
time he made his application for the Commission to deal with a dispute. The 2001 agreement
was replaced soon after the dispute was notified by the 2003 agreement. It was in these
circumstances it was determined that the Commission no longer had jurisdiction to deal with
the application.
[20] In The Association of Professional Engineers, Scientists and Managers, Australia v
Jemena Asset Management Pty Ltd6 (Jemena) I considered the application of the principles in
Stephenson in circumstances where a dispute had been notified under an agreement which
applied to the employee concerned at the time it was notified but no longer applied at the time
the dispute went to hearing. The issue to be determined was if the Commission had
jurisdiction to deal with the dispute under an agreement which no longer applied.
[21] In Jemena I set out the relevant considerations as follows:
[29] In Stephenson the Full Bench determined that it was not possible to arbitrate
under the dispute settling provisions of an enterprise agreement unless that agreement
existed. In that case the enterprise agreement under which the dispute had been
notified had been replaced by a new agreement and the later agreement made it
explicit that the previous agreement was excluded from operation.
[30] The Full Bench in Stephenson concluded that:
...if a certified agreement empowering the Commission to settle disputes over
the application of the agreement ceases to operate because of the provision of
s.170LX of the Act, then the Commission no longer has jurisdiction to exercise
that private arbitration power in the agreement.
[31] The relevant principle to be drawn from Stephenson is that the Commissions
jurisdiction to deal with a dispute over the application of an agreement is a jurisdiction
that must be conferred by the agreement itself and any limits imposed by the Act.
[32] Section 170LX in the Workplace Relations Act 1996, as applied at the time of
the decision in Stephenson, states:
170LX When a certified agreement is in operation
(1) A certified agreement comes into operation when it is certified and,
subject to this section, remains in operation at all times afterwards.
[2019] FWC 4122
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(2) The agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.
[33] Section 58 of the FW Act states:
58 Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
(1) Only one enterprise agreement can apply to an employee at a particular
time.
General rule—later agreement does not apply until earlier agreement passes its
nominal expiry date
(2) If:
(a) an enterprise agreement (the earlier agreement) applies to an
employee in relation to particular employment; and
(b) another enterprise agreement (the later agreement) that covers
the employee in relation to the same employment comes into
operation; and
(c) subsection (3) (which deals with a single-enterprise agreement
replacing a multi-enterprise agreement) does not apply;
then:
(d) if the earlier agreement has not passed its nominal expiry date:
(i) the later agreement cannot apply to the employee in relation to
that employment until the earlier agreement passes its nominal
expiry date; and
(ii) the earlier agreement ceases to apply to the employee in relation
to that employment when the earlier agreement passes its
nominal expiry date, and can never so apply again; or
(e) if the earlier agreement has passed its nominal expiry date—the
earlier agreement ceases to apply to the employee when the
later agreement comes into operation, and can never so apply
again.
[2019] FWC 4122
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[34] Section 58(2)(e) of the FW Act has the same effect as 170LX(2)(b). That is,
once an agreement which has passed its nominal expiry date is replaced, the old
agreement ceases to operate (or, in the new parlance, the old agreement ceases to
apply and can never apply again).
[35] In this case the earlier agreement (the JAM Agreement) had passed its nominal
expiry date at the time the later agreement (the Zinfra Agreement) came into
operation. By virtue of s.58(2)(e) the JAM Agreement ceased to apply to Mr Hardy at
the time the Zinfra Agreement came into operation and can never apply again.
[36] Section 51 of the FW Act states:
51 The significance of an enterprise agreement applying to a person
(1) An enterprise agreement does not impose obligations on a person, and a
person does not contravene a term of an enterprise agreement, unless
the agreement applies to the person.
(2) An enterprise agreement does not give a person an entitlement unless
the agreement applies to the person.
[37] Once the JAM Agreement ceased to apply to Mr Hardy any entitlements
available to Mr Hardy pursuant to that agreement ceased to exist.
[38] There is nothing discernible in the FW Act that suggests any general savings
provision with respect to an application made pursuant to a dispute settling procedure
once the agreement that contains that procedure ceases to apply. In this respect the
general limits in the FW Act have not changed from those in existence in the
Workplace Relations Act 1996. As such, the principles in Stephenson remain apposite.
[39] There is no savings provision in the Zinfra Agreement such that a dispute
raised under the JAM Agreement can continue to be prosecuted once the
JAM Agreement ceased to apply. [Footnotes omitted]
[22] I adopt the reasoning in Jemena in this matter.
[23] In Queensland Services, Industrial Union of Employees v Ergon Energy Corporation
Ltd7 (Ergon Energy) Deputy President Asbury considered an application to deal with a
dispute in relation to the operation of an agreement which had, at the time the dispute was
notified, been replaced and was no longer in operation pursuant to the provisions of the
FW Act. The Deputy President considered a number of decisions including Stephenson and
Pulle and concluded that a number of principles could be drawn from these cases:
[53] The principles set down in the cases are that:
Absent a savings provision in either the legislation dealing with an
agreement ceasing to operate or in the successor agreement, or a provision
in relation to the same matter in a successor agreement, a right does not
survive the cessation of an agreement.
[2019] FWC 4122
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Where a dispute clause in an agreement empowers the Commission to
settle a dispute in relation to that agreement, and a dispute is commenced,
the Commission will no longer have jurisdiction to deal with the dispute if
the agreement ceases to operate while the dispute is on foot, unless the
successor agreement has a savings clause, or the legislation preserves
rights in this respect.
Where a series of agreements contains the same provision, the
Commission may have jurisdiction to deal with a dispute about that
provision in accordance with a dispute procedure in a current agreement,
notwithstanding that the dispute also relates to a period of time where
predecessor agreements containing the same or a similar provision,
operated.
The terms of a dispute procedure, including whether it is expressed to
apply to all disputes or those arising under the current agreement, are
critical, and may limit the jurisdiction of the Commission to deal with a
dispute that relates to a provision that has been included in both the current
and predecessor agreements.
[24] I respectfully agree with the principles as outlined by the Deputy President.
[25] Mr Battye relies on the decision of Commissioner Lee in Michael Stevens v Australian
Federal Police8 (Stevens). I consider that decision distinguishable from the case before me on
the facts. In Stevens the Commissioner found that he had jurisdiction to deal with the matter
even though the old agreement no longer had effect. He, importantly, found that he did not
have power to arbitrate the matter under the dispute settlement procedure of the old agreement
as it no longer had legal effect.9 Rather, the Commissioner found that the new agreement
incorporated the relevant provisions of the old agreement and he found that he therefore had
jurisdiction under the new agreement to arbitrate the dispute.10
[26] It was precisely because of the incorporation of provisions of the old agreement into
the new agreement that the Commissioner found he could arbitrate the matter in dispute. It
would be erroneous to see this decision as providing authority for the proposition that the
Commission generally retains the power to arbitrate under an agreement which has ceased to
apply.
[27] Mr Battye also relies on the Full Bench majority decision in BlueScope Steel (AIS)
Port Kembla v The Australian Workers’ Union & the Australian Manufacturing Workers’
Union & the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia11 (BlueScope) in which he suggests the majority
decision supports the proposition that a dispute notified under an earlier agreement could
continue to be dealt with subsequent to the making of a later agreement.
[28] I consider the decision in Bluescope distinguishable on the facts to the matter before
me. In Bluescope the Commissioner at first instance had dealt with a dispute under the
2012 Agreement and issued a decision in relation to that dispute. Subsequent to the
Commissioner’s decision the 2015 Agreement commenced operation and the 2012 Agreement
ceased to operate by virtue of s.58 of the FW Act. A review contemplated in the decision of
the Commission had not been undertaken prior to the 2015 Agreement commencing to
[2019] FWC 4122
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operate. The unions sought to have the review occur and the employer objected on
jurisdictional grounds. The Commissioner subsequently found he could conduct the review
and the employer appealed that decision. In refusing permission to appeal the Full Bench
majority said that:
It would be premature to grant permission given that all that flowed from the
later decision of the Commission was the conduct of a review;
It was not considered the appeal had practical utility;
The contemplated review was a part of the outcome of the first decision and the
decision was conditional on the review;
The critical question was complex and the majority had not been provided with
the degree of assistance necessary to correctly resolve that question.12
[29] The majority in BlueScope did not ultimately address the question before me. To the
extent that Deputy President Colman found, in the minority, that there was no jurisdiction for
the Commission to continue to deal with the dispute, this is of no benefit to Mr Battye and
supports the submissions of John Holland.
[30] Mr Battye also seeks to rely on the decision of the High Court in Westralian Farmers
Limited v Commonwealth Agriculture Service Engineers Limited13 in support of his
proposition that John Holland had given “advanced consent” to the arbitration under the 2013
Agreement but has not taken me to the reasoning of that decision or its application in
circumstances where the power to arbitrate is conditioned by the terms of an agreement and
legislative limitations as outlined in Jemena.
[31] On the basis of the authorities outlined above it is readily apparent that, on its face, the
Commission lacks jurisdiction to deal with Mr Battye’s application because the
2013 Agreement, from which the Commission draws the power to deal with the dispute, has
ceased to operate.
Has the 2013 Agreement ceased to apply to Battye?
[32] In a novel argument Mr Battye contends that, because he ceased employment prior to
the commencement of the 2017 Agreement, s.58(2)(b), s.58(2)(d) and s.58(2)(e) of the
FW Act do not apply in his case and, for this reason, he still has a valid application before the
Commission. Mr Battye also suggests that his case can be distinguished from the authorities
set out above as those cases are all based on a factual matrix that includes the employee still
being employed by the same employer at the time they sought to have their dispute arbitrated.
He was not so employed.
[33] Section 58 of the FW Act states as follows:
58 Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
(1) Only one enterprise agreement can apply to an employee at a particular time.
[2019] FWC 4122
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General rule—later agreement does not apply until earlier agreement passes
its nominal expiry date
(2) If:
(a) an enterprise agreement (the earlier agreement) applies to an employee
in relation to particular employment; and
(b) another enterprise agreement (the later agreement) that covers the
employee in relation to the same employment comes into operation;
and
(c) subsection (3) (which deals with a single-enterprise agreement
replacing a multi-enterprise agreement) does not apply;
then:
(d) if the earlier agreement has not passed its nominal expiry date:
(i) the later agreement cannot apply to the employee in relation to
that employment until the earlier agreement passes its nominal
expiry date; and
(ii) the earlier agreement ceases to apply to the employee in relation
to that employment when the earlier agreement passes its
nominal expiry date, and can never so apply again; or
(e) if the earlier agreement has passed its nominal expiry date—the earlier
agreement ceases to apply to the employee when the later agreement
comes into operation, and can never so apply again.
Special rule—single-enterprise agreement replaces multi-enterprise agreement
(3) Despite subsection (2), if:
(a) a multi-enterprise agreement applies to an employee in relation to
particular employment; and
(b) a single-enterprise agreement that covers the employee in relation to
the same employment comes into operation;
the multi-enterprise agreement ceases to apply to the employee in relation to
that employment when the single-enterprise agreement comes into operation,
and can never so apply again.
[34] Mr Battye says that the 2013 Agreement (the earlier agreement) applied in relation to
his employment with John Holland but, because he left his employment before the
2017 Agreement (the later agreement) commenced operation, the 2017 Agreement never
[2019] FWC 4122
12
applied to him such that there is no “later agreement” that displaces the 2013 Agreement in
his case. Mr Battye suggests therefore that the 2013 Agreement continues to apply to him.
[35] Mr Battye can only gain comfort from this line of reasoning if he is still an employee
of John Holland. This is because an agreement covers an employee (or employer) only if it is
expressed to cover the employee or employer (s.53(1) of the FW Act). An agreement cannot
therefore cover a person who is not an employee even if that person was previously an
employee.
[36] The scope and application clause of the 2013 Agreement states that it is binding on
John Holland and employees employed by John Holland carrying out specified works and in
the classifications listed.
[37] By virtue of s.52(1) of the FW Act an agreement applies to an employee only if the
agreement is in operation, and it covers the employee and it is not otherwise excluded from
applying. Mr Battye is not an employee of John Holland such that any agreement of John
Holland cannot apply to him. Lest there be any confusion the FW Act is clear at s.52(2) that a
reference to an agreement applying to an employee “is a reference to the agreement applying
to the employee in relation to particular employment.” Mr Battye was no longer in the
“particular employment” to which the 2013 Agreement applied (even if it had continued to
operate).
[38] Mr Battye’s submissions with respect to s.58 of the FW Act must therefore fail.
[39] Once Mr Battye ceased employment with John Holland the 2013 Agreement ceased to
apply to him when he resigned his employment on 16 October 2017. By virtue of s.58 of the
FW Act the 2013 Agreement ceased operating on 16 May 2018.
Does the 2017 Agreement contain any accrued rights?
[40] The Disputes and Grievance Procedure clause of the 2017 Agreement states that it
applies to “a dispute arising from a matter dealt with by this Agreement…”. Neither the
procedure or any other provision of the 2017 Agreement contain any savings provision that
suggest Mr Battye can continue to prosecute his dispute under the 2017 Agreement.
Conclusion
[41] On the basis of the authorities considered and the factual circumstances of this case I
am satisfied that the Commission does not have jurisdiction to deal with Mr Battye’s
application.
[42] The 2013 Agreement covered Mr Battye’s employment for the period he was an
employee of John Holland. It applied at the time Mr Battye made his application for the
Commission to deal with his dispute. It ceased to apply to him when he resigned his
employment.
[43] These circumstances alone would not have been fatal to Mr Battye’s application had
he pursued it at the time he first made his application to the Commission in 2017. On 16 May
2018 the 2017 Agreement commenced operation and by virtue of the FW Act the
[2019] FWC 4122
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2013 Agreement ceased operation at that time. Having ceased operation the 2013 Agreement
ceased to apply (if Mr Battye was an employee at that time).
[44] Mr Battye finds himself in these circumstances purely of his own making. He made
his application in July 2017. It was first dealt with by the Commission in August 2017. He
then chose to take no action in relation to the matter until December 2018, and then only
because of a follow up note from my chambers. His dispute clearly was not of such a pressing
nature that he gave it anything but scant attention.
[45] For these reasons the application of Mr Battye is dismissed for want of jurisdiction.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR709341
Endnotes:
1 AE404581.
2 AE428192.
3 PR952743 (20 October 2004).
4 (2009) 190 IR 365.
5 (2010) 196 IR 145.
6 [2013] FWC 5617.
7 [2013] FWC 7025 cited in Freeman v State of Victoria [2018] FWC 212 at [27].
8 [2013] FWC 5592.
9 Ibid at [33].
10 Ibid at [46].
11 [2018] FWCFB 856.
12 Ibid at [59].
13 (1936) 54 CLR 361.
THE FAIR WORK MMISSION THE SEAL
