1. The FAAA may file and serve a response to any proposed undertakings and submissions of the applicant by 16 January 2023.

1. The applicant may file and serve any reply by 23 January 2023.

Mr R. Dalton KC with Mr A. Pollock of counsel, for the applicant

[21] [2015] FCAFC 16; (2015) 228 FCR 297 at [33], [83]

[22] ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593; (2017) 270 IR 459 at [84] and [87]; One Key Workforce Pty Ltd v Construction, Forestry, Mining, and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [154]

[23] Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [19]

[24] [2017] FWCFB 5826

[26] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [34]- [41]

[28] Ibid at [60]-[62]; Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139 at [8]

[29] Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139 at [10]

[31] Ibid at [15] and [20]; The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 at [31]

[32] Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139 at [16]

[34] Ibid at [21] - [22]; Construction, Forestry, Mining, and Energy Union v Resco Training and Labour Pty Ltd [2012] FWAFB 8461; (2012) 228 IR 5 at [34]

[35] QGC Pty Ltd v Australian Workers' Union [2017] FWCFB 1165 at [44]

[36] Ibid; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[37] United Firefighters' Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009; (2010) 193 IR 293 at [60]; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[38] QGC Pty Ltd v Australian Workers' Union [2017] FWCFB 1165 at [44]- [45]; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[39] Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476; 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [15]- [16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd [2017] FWC 4158 at [68]- [71] as examples of where the employer's organisational structure was used to determine organisational distinctiveness; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[40] See also QGC Pty Ltd v Australian Workers' Union [2017] FWCFB 1165 at [42]; See also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised at [42] above as persuasive

[41] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [33], [83]

[43] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [32]

[45] FAAA outline of submissions at [26]

[47] See for example, Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [19]

[48] [2016] FWCFB 1151

[50] ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593; (2017) 270 IR 459

[51] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [142]

[52] See KCL Industries Pty Ltd [2016] FWCFB 3048 at [29]- [36]; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [163]- [165]; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Ors [1999] FCA 847; (1999) 93 FCR 317 at [126]

[53] See KCL Industries Pty Ltd [2016] FWCFB 3048; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Ors [1999] FCA 847; (1999) 93 FCR 317];

[54] See for example Exhibit 4, annexure MA-1

[56] [2018] FCAFC 77; (2018) 262 FCR 527

[58] FAAA Outline of Submissions at [29] last sentence, [32] second sentence

[64] [2015] FWC 1302 at [11]

[68] Exhibit 1, annexure GU-22, GU-22-2

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