s.137A RO Act - Orders about representation rights of organisations of employees

Applications for orders for production of documents - Whether documents sought have an apparent relevance to issues in the proceedings - Whether unduly burdensome to produce documents sought - Documents that are likely to reveal matters of industrial strategy - Orders made.

• [1] This decision concerns an application by Bechtel Construction (Australia) Pty Ltd (Bechtel) for orders to produce against a number of registered organisations in related proceedings being heard together before the Commission. The proceedings concern two applications made by Bechtel. The applications arise from bargaining which is ongoing involving Bechtel and a number of unions for a new enterprise agreement to cover employees of Bechtel engaged on the construction of an LNG pipeline near Karratha in Western Australia (the Pluto 2 Project).

• [2] On 17 November 2025, Bechtel made an application for a representation order pursuant to s 137A of the Fair Work (Registered Organisations) Act 2009 (the RO Act). One week later, on 24 November 2025, Bechtel filed a second application being an application for a bargaining order under s 229 of the Fair Work Act 2009 (the FW Act). On 1 and 3 December 2025, Bechtel applied for the Commission to make orders to produce directed at the AWU, the CFMEU (MUA Division), the AMWU, the CFMEU (Construction & General Division) and the CEPU. This decision deals with Bechtel's application for orders to produce.

• [3] Section 590 of the FW Act sets out the Commission's power to require the production of documents:

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC

• [4] The power of the Commission to require the provision of copies of documents, records or any other things is a broad discretionary power.[1] The power to require that documents or other material be produced is an important part of the Commission's ability to inform itself in relation to matters before it as well as providing a mechanism for parties to proceedings to investigate facts and assemble evidence to prove their case.[2]

• [5] In the exercise of the discretion in s 590, the Commission has said it may have regard to the practice followed in courts in deciding whether to issue or set aside a subpoena, namely, whether the documents sought have apparent relevance to the issues in proceedings. Whilst the Commission may have regard to the practice followed in courts and will generally be guided by what applies in courts in civil proceedings when compelling a person to produce documents, records or other things,[3] the ultimate question is whether the Commission considers it appropriate to inform itself by means of making an order in the form sought.[4]

• [6] That question will generally involve a consideration of whether the material sought has an apparent relevance to the issues in the proceedings. In Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847, a Full Bench of the Commission described the significance of apparent relevance to the discretion exercised under s 590 at [23]:

" ... The documents sought must have apparent relevance to the issues in the proceedings. Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced. The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive."

• [7] Apparent relevance is tested by asking whether it is "on the cards" that the documents sought will assist the party's case or the documents have the potential to "throw light on the issues".[5] Relevance "may lie in giving rise to a line of enquiry which is relevant to the issue before the trier of facts" and documents "will frequently be relevant for the purpose of meeting the opposing case, as for example, by way of cross examination".[6] However, there must be a sufficient basis to believe that the documents sought will assist a party's case. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, for example, Bell P said (at [65]):

It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

• [8] In the context of Commission proceedings, whether an order for production should be issued will be subject to an overall assessment as to whether requiring the production of the documents represents an appropriate way for the Commission to inform itself. The broader obligation on the Commission to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities may also be relevant.[7]

• [9] On 1 December 2025, Bechtel filed five Form F52 applications. The applications ask the Commission to make orders to produce directed to the AMWU, the AWU, the CFMEU (Construction & General Division), the CFMEU (MUA Division) and the CEPU. On 3 December 2025, Bechtel filed an amended notice to produce in respect of the AWU. The documents sought in respect of each of the unions are contained in Schedule A annexed to each F52 as follows:

1. Information confirming, or in the alternative a copy of any documents establishing:
   1. the number of employees of Bechtel Construction (Australia) Pty Ltd (Bechtel) who were members of The Australian Workers' Union (AWU) and performing work on the Pluto Train 2 Project (Project), on a monthly basis, since January 2023; and
   2. a correlating number of those persons referred to in 1(a) above who became, or who completed a form expressing interest in becoming, a member of the AWU through the Offshore Alliance website or otherwise by completing application forms which bore 'Offshore Alliance' branding.
2. A copy of:
   1. any standard template(s)/proforma(s) membership forms used by the Offshore Alliance in relation to employees of Bechtel working on the Project since January 2023 through to the date of this order; or
   2. in the alternative, if no document meeting the description in 2(a) exists, a copy of all membership forms received by the Offshore Alliance in respect of any person who is working, or has worked, on the Project as an employee of Bechtel.
3. A copy of all documents evidencing or recording any agreement, arrangement, understanding or similar between the AWU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and/or the Electrical Trades Union, or any other branch or division thereof, as to the industrial representation and/or industrial membership of any person(s) who previously, presently, or may in the future work on the Project.
4. A copy of any correspondence from 1 May 2025 to the date of this Order, between the AWU and either:
   1. the Protect Severance Scheme No 2 Pty Ltd as trustee for Protect Severance Scheme No 2 (trading as Protect), or its representatives; or
   2. the CEPU and/or the Electrical Trades Union, or any other branch or division thereof,

concerning the AWU's continued involvement as a beneficiary in the Protect scheme.

1. A copy of any correspondence from the AWU or its representatives, including on behalf of AWU officials, organisers or employees, to the CEPU and/or the Electrical Trades Union, or any other branch or division thereof, regarding allegations of defamation from 1 May 2025 to the date of this Order.
2. The following:

1. a copy of any contract of employment which any of Doug Heath, Ross Kumeroa, Jason Lipscombe or Lawrence Duff has entered into with the AWU; 2. in the period 1 May 2025 to the date of this order, every written communication (email, text message, WhatsApp, social media message or otherwise) passing between any or all of the four individuals referred to in 4(a) above, relating to: 1. the Project; 2. the claims to be pursued in bargaining by the Offshore Alliance and/or the AWU for the Project in 2025 and following and/or the reasons for those claims; and 3. the recruitment of employees performing work on the Project as members of the Offshore Alliance and/or the AWU.

1. information confirming, or in the alternative a copy of any documents establishing, the hours worked each week by Mr Heath for the AWU in the period 1 May 2025 and the date of this order; and

1. information confirming, or in the alternative a copy of any documents establishing, any payment(s) made by the AWU to Mr Heath in the period 1 May 2025 and the date of this order.
2. A copy of any document recording the memorandum of understanding between the AWU and the then CFMMEU (now CFMEU - MUA Division) in or around 2018 concerning the Offshore Alliance and any subsequent variations, additions or amendments to that document.

1. Information confirming, or in the alternative a copy of any documents establishing:
   1. the number of employees of Bechtel Construction (Australia) Pty Ltd (Bechtel) who were members of The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and performing work on the Pluto Train 2 Project (Project), on a monthly basis, since January 2023.

1. Information confirming, or in the alternative a copy of any documents establishing:
   1. the number of employees of Bechtel Construction (Australia) Pty Ltd (Bechtel) who were members of The Construction, Forestry and Maritime Employees Union (Construction and General Division) and performing work on the Pluto Train 2 Project (Project), on a monthly basis, since January 2023.

1. Information confirming, or in the alternative a copy of any documents establishing:
   1. the number of employees of Bechtel Construction (Australia) Pty Ltd (Bechtel) who were members of The Construction, Forestry and Maritime Employees Union (Maritime Union of Australia Division) (MUA) and performing work on the Pluto Train 2 Project (Project), on a monthly basis, since January 2023; and
   2. a correlating number of those persons referred to in 1(a) above who became, or who completed a form expressing interest in becoming, a member of the MUA through the Offshore Alliance website or otherwise by completing application forms which bore 'Offshore Alliance' branding.
2. A copy of:
   1. any standard template(s) /proforma(s) membership forms used by the Offshore Alliance in relation to employees of Bechtel working on the Project since January 2023 through to the date of this order; or
   2. in the alternative, if no document meeting the description in 2(a) exists, a copy of all membership forms received by the Offshore Alliance in respect of any person who is working, or has worked, on the Project as an employee of Bechtel.
3. A copy of all documents evidencing or recording any agreement, arrangement, understanding or similar between the MUA and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and/or the Electrical Trades Union, or any other branch or division thereof, as to the industrial representation and/or industrial membership of any person(s) who previously, presently, or may in the future work on the Project.
4. A copy of any correspondence from 1 May 2025 to the date of this Order, between the MUA and either:
   1. the Protect Severance Scheme No 2 Pty Ltd as trustee for Protect Severance Scheme No 2 (trading as Protect), or its representatives; or
   2. the CEPU and/or the Electrical Trades Union, or any other branch or division thereof,

concerning the MUA's continued involvement as a beneficiary in the Protect scheme.

1. A copy of any correspondence from the MUA or its representatives, including on behalf of MUA officials, organisers or employees, to the CEPU and/or the Electrical Trades Union, or any other branch or division thereof, regarding allegations of defamation from 1 May 2025 to the date of this Order.

1. Information confirming, or in the alternative a copy of any documents establishing:
   1. the number of employees of Bechtel Construction (Australia) Pty Ltd (Bechtel) who were members of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and/or the Electrical Trades Union, or any other branch or division thereof and performing work on the Pluto Train 2 Project (Project), on a monthly basis, since January 2023.
2. A copy of all documents evidencing or recording any agreement, arrangement, understanding or similar between the AWU and the CEPU and/or the Electrical Trades Union, or any other branch or division thereof, as to the industrial representation and/or industrial membership of any person(s) who previously, presently, or may in the future work on the Project.
3. A copy of any correspondence from 1 May 2025 to the date of this Order, between the Australian Workers' Union and either:
   1. the Protect Severance Scheme No 2 Pty Ltd as trustee for Protect Severance Scheme No 2 (trading as Protect), or its representatives; or
   2. the CEPU and/or the Electrical Trades Union, or any other branch or division thereof,

concerning the AWU's continued involvement as a beneficiary in the Protect scheme.

1. A copy of any correspondence from the CEPU and/or the Electrical Trades Union, or any other branch or division thereof or its representatives, including on behalf of CEPU/ETU officials, organisers or employees, to the AWU (including AWU officials, organisers or employees), regarding allegations of defamation from 1 May 2025 to the date of this Order.

• [10] Each of the unions opposed an order for production being made with respect to each of the categories of documents sought by Bechtel. In the circumstances, it is necessary to deal with each of the categories. It is possible to do that by category.

Membership numbers (AWU, AMWU, CEPU, CFMEU and MUA - Category 1)

• [11] The AWU indicates that it will provide evidence of its membership numbers on the Project on a month-by-month basis from January 2023 and, on that basis, it is unnecessary to make an order for the production of documents in relation to that question. The other unions submit that the number of members they have on the Project is not relevant to any of the matters raised in support of Bechtel's applications under either s 137A of the RO Act or s 229 of the FW Act.

• [12] I accept that the number of members of the AWU working on the Project is potentially relevant to the contentions sought to be advanced by Bechtel. Although I note that the AWU says it will put on evidence in relation to that issue, I consider it is appropriate to make an order that an affidavit or statutory declaration be filed by the AWU setting out its members of a monthly basis from January 2023. Bechtel also seeks documents which set out the number of persons who have become members through the Offshore Alliance website or an application form with Offshore Alliance branding. This should also be subject to the affidavit or statutory declaration I intend to order the AWU to provide.

• [13] The membership of the other unions is probably less relevant to the applications. However, Bechtel seeks to contend that the AWU has been attracting members away from the other unions. There will no doubt be contentions as to the merits of that submission. Nonetheless, Bechtel is entitled, within reason, to pursue the argument and seek documents that could assist in demonstrating that there has been a transfer of members to the AWU. I am satisfied it is appropriate to also order the other unions to file an affidavit or statutory declaration setting out their membership on the Project since January 2023 with the exception of the MUA. Bechtel accepts that the MUA does not have members working on the Project.

• [14] The AWU says that it will adduce evidence of the standard membership form used in relation to employees on the Project since January 2023. In light of the contentions proposed to be advanced by Bechtel, I consider it is appropriate to make an order requiring the production of any template or standard membership forms used for persons who wish to become members of the AWU through the Offshore Alliance banner. I consider it is sufficient to make such an order directed at the AWU. It is unnecessary to make the same order directed at the MUA.

Arrangement between the AWU or MUA and the CEPU (AWU and MUA - Category 3; CEPU - Category 2)

• [15] Bechtel seeks that an order for production be made requiring the production of any documents evidencing or recording any agreement, arrangement, understanding or similar between the AWU or the MUA and the CEPU regarding the industrial representation and/or membership of persons working on the Project. Bechtel says that one of the matters the Commission is required to take into account in relation to the application under s 137A of the RO Act is "any agreement or understanding of which the FWC becomes aware that deals with the right of an organisation of employees to represent under this Act or the FW Act the industrial interests of a particular class or group of employees" (s 137B(1)(d)).

• [16] I do not, at present, have any knowledge as to whether there is any agreement or understanding in relation to representation involving the AWU, the MUA and the CEPU. However, I accept that the documents sought are apparently relevant to the matters the Commission is required to consider in determining Bechtel's application brought under s 137A of the RO Act. The AWU, the MUA and the CEPU submit that s 137B(1)(d) is directed at an agreement or understanding as to the right to represent the industrial interests of a class or group of employees and it is not alleged that any understanding with the CEPU could have affected the right of persons to be members of the AWU. It appears to me that this proposition is contestable and not a matter about which I can now form an opinion. The existence of that argument does not mean the terms of any agreement or understanding between the AWU or the MUA and the CEPU are not apparently relevant, although the relevance of any documents, or the extent of their relevance, may be affected by the ultimate resolution of the legal argument.

• [17] An order will be made requiring the production of these documents directed at the AWU, the MUA and the CEPU.

Documents relating to the Protect Severance Scheme and allegations of defamation (AWU and MUA - Categories 4 and 5; CEPU - Categories 3 and 4)

• [18] Bechtel seeks that an order for production be made requiring the production of communications relating to the AWU's role as a beneficiary of the Protect Severance Scheme No 2 Pty Ltd or relating to allegations of defamation each from 1 May 2025.

• [19] In its written submissions, Bechtel suggested it has a basis to believe that the agreement or understanding between the AWU, the MUA and the CEPU entailed the AWU and the MUA continuing to have involvement in something known as the Protect Severance Scheme and that the arrangement or understanding was precipitated by an allegation of defamation made by persons associated with the AWU with respect to the CEPU. In oral submissions, Bechtel further submitted that the documents would potentially demonstrate the fractious relations between the unions involved in the Project and, for that reason, are of central relevance to its representation order application.

• [20] It cannot be said that Bechtel does not have any basis for believing that some disputation relating to the Protect Severance Scheme and allegations of defamation has taken place. Its belief in that respect appears to be substantially derived from media reports, particularly an article published in the Australian Financial Review on 4 August 2025 under the headline "Redundancy fund threatens to expel MUA as inter-union war blows up". The Commission will generally be reluctant to order the production of documents based on media reports. In the circumstances of this particular case, however, I accept that there is a reasonable basis to believe that a dispute occurred involving the Protect Severance Scheme and allegations of defamation arising from the conduct of the Offshore Alliance on the project and that documents may exist recording communications relating to those matters.

• [21] I have more doubt about whether it is appropriate to order the production of the documents sought in these categories. However, on balance, I accept that documents which evidence disputation between the respective unions in relation to the representation of employees on the Project might be capable of being relevant to the contentions sought to be put forward by Bechtel. I have also taken into account that the documents sought in the categories are narrow in scope. The documents extend only to communications between named entities concerning the continued involvement of the AWU and the MUA as beneficiaries of the Protect scheme and correspondence from the AWU to the CEPU in relation to allegations of defamation and any response. I do not consider it is appropriate to order the CEPU to produce communications from the AWU which can be produced by the AWU.

Documents relating to the employment of officials by the AWU (AWU - Categories 6a, c and d)

• [22] Bechtel seeks that an order for production be made requiring the production of the employments contracts of individuals involved in the bargaining on the Project being Doug Heath, Ross Kumeroa, Jason Lipscombe and Lawrence Duff. Bechtel intends to contend that Mr Heath, Mr Kumeroa, Mr Lipscombe and Mr Duff have been holding themselves out to be representatives of the Offshore Alliance. Bechtel says that the employment contracts of these individuals are relevant to assessing whether they are actually representatives of the AWU. I accept those documents are potentially relevant to the matters raised by Bechtel in relation to the representation order and bargaining order applications.

• [23] Bechtel also seeks the production of documents evidencing the hours of work performed by Mr Heath for the AWU and payments made to Mr Heath by the AWU. Bechtel submits that an issue which arises as to whether a true employment relationship exists between the AWU and Mr Heath. It is not presently clear to me how this is relevant to the representation order or bargaining order applications. Bechtel says that this question is relevant because they will cast light on the extent to which the named individuals are, in truth, acting on behalf of the AWU in their actions relating to the Project and the extent of the AWU's actual involvement in, and interest in, representing employees working on the Project.

• [24] As presently advised, I have some doubt that the Commission will ultimately be assisted by an extensive investigation of the employment arrangements of Mr Heath. However, given the matters intended to be advanced by Bechtel, it is appropriate to require the production of some documents relating to the work undertaken by Mr Heath for the AWU. I will make an order in relation to these matters but in somewhat narrower terms thann proposed by Bechtel.

Communications between Mr Heath, Mr Kumeroa, Mr Lipscombe and Mr Duff (AWU - Category 6b)

• [25] Bechtel seeks that an order for production be made requiring the production of all communications after 1 May 2025 between Mr Heath, Mr Kumeroa, Mr Lipscombe and/or Mr Duff relating to the Project, the claims pursued in bargaining by the Offshore Alliance or the AWU and the recruitment of employees performing work on the Project as members. Bechtel says that these communications are apparently relevant because they will establish the motivations and objectives of the Offshore Alliance and AWU in bargaining. This is said to be relevant to whether the AWU is giving genuine consideration to proposals advanced by other bargaining representatives.

• [26] I am not satisfied that it is appropriate to make an order requiring the production of all communications involving Mr Heath, Mr Kumeroa, Mr Lipscombe and/or Mr Duff relating to the Project or bargaining. First, this aspect of the application is, in my view, in the nature of a fishing expedition and overly broad. Bechtel does not have a firm basis to suggest that the communications between these individuals will assist its case. It appears to me that Bechtel hopes to uncover communications of unknown content which might benefit its case rather than that it has a basis to believe that the communications will contain information of any particular nature. The category, as drafted, would also capture any communications that relate to the Project. The order as sought is likely to capture a great volume of communications which have nothing at all to do with the issues in contest in these proceedings.

• [27] In oral submissions, Bechtel submitted that the communications sought would be discoverable in any court proceedings. I do not accept that is the case. To be discoverable pursuant to an order for standard discovery, documents must be directly relevant to issues raised in pleadings or affidavits in the sense that the documents are those on which the party intends to rely, adversely affect the party's own case, support another party's case or adversely affect another party's case.[8] Given that Bechtel seeks the production of all communications between Mr Heath, Mr Kumeroa, Mr Lipscombe and/or Mr Duff relating to the Project, an order in those terms would require the production of documents beyond those that are directly relevant to the issues raised in the proceedings.

• [28] Second, I accept that the order for production would place a significant burden on the AWU. The order sought by Bechtel would require the AWU to review all communications involving each of Mr Heath, Mr Kumeroa, Mr Lipscombe and Mr Duff from 1 May 2025 whether by email, text message, WhatsApp, social media or otherwise for the purposes of identifying communications which relate to the three topics referred to in the order. This would likely be a substantial exercise. The National Legal Officer of the AWU, Zach Duncalfe, made a witness statement stating that it would take 4 to 5 days of his time to review the communications and substantial time on the part of Mr Heath, Mr Kumeroa, Mr Lipscombe and Mr Duff. I do not consider that, given the overly broad nature of the order sought, it is appropriate to make an order having that impact on the AWU.

• [29] Third, Mr Heath, Mr Kumeroa, Mr Lipscombe and Mr Duff are officials engaged in the ongoing bargaining relating to the Project. As the AWU submits, the communications sought to be subject to an order will likely disclose matters touching upon the industrial strategy of the AWU. Whilst confidentiality or commercial sensitivity is not itself ordinarily a ground for refusing to make an order for production, the Commission and its predecessors have traditionally been cautious in ordering a party to produce documents which would reveal internal deliberations as to its industrial strategy or policy. That is not, of course, an absolute rule. In Finance Sector Union of Australia v Comsec Trading Limited [2004] AIRC 718, Lawler VP said (at [27]):[9]

The Commission has a particular sensitivity in relation to attempts to obtain documents that will reveal internal deliberations of employers or unions in relation to their industrial relations strategy. The draft summonses seek the production of such documents. This sensitivity does not mean that a summons for such documents will never be issued. Rather, it underscores the need for a clear basis for the issue of such a summons. For the reasons given that clear basis has not been demonstrated.

• [30] The likelihood that documents sought to be produced might disclose matters relating to industrial strategy or planning to other parties involved in an industrial situation does not confer an immunity from their production. No form of privilege attaches to such documents, at least unless the documents disclose the content of legal advice or were prepared for the purposes of the provision of legal services in relation to litigation. However, the fact that documents or information sought to be produced may disclose matters of industrial strategy may be a burden which is relevant in considering whether the order sought would be unduly onerous. Whether that is the case will need to be assessed in light of the whole of the circumstances, including the state of any bargaining or industrial disputation, the relevance of the communications sought to the bargaining or dispute, the importance of the documents to the matters in issue in proceedings and the general relationship between the parties. In this matter, bargaining is ongoing involving Bechtel and the AWU which is plainly contentious and controversial. Bechtel itself contends that the relationship between the AWU and other unions is contentious.

• [31] In the present circumstances and in exercise of the broad discretion under s 590(1) and (2)(c), I do not consider that it is appropriate to require production of all communications between Mr Heath, Mr Kumeroa, Mr Lipscombe and/or Mr Duff concerning the Project, the claims being pursued in bargaining or the recruitment of employees as members having considered all of the matters to which I have referred. The likelihood that the communications will disclose sensitive information in relation to the objectives and strategies of the AWU is a component of that assessment.

• [32] It may be that, particularly after the AWU files its evidence, Bechtel may seek the production of a narrow set of documents within the class sought in the present application. That is a matter for it to consider.

• [33] Finally, Bechtel seeks the production of any document recording the memorandum of understanding between the AWU and the then CFMMEU in or around 2018 concerning the Offshore Alliance and any variations, additions or amendments to that document. The existence of a memorandum of understanding executed by the AWU and the CFMMEU concerning an AWU-CFMMEU Offshore Alliance on 29 October 2018 appears to be confirmed by the decision of Gostencnik DP in Applications by The Australian Workers' Union [2019] FWC 4733.[10] Given the contentions that Bechtel intends to advance, I am satisfied this document and any amendments to it are apparently relevant and that it is appropriate to order the production of the documents to the Commission.

• [34] Orders will be made consistent with this decision. The parties have liberty to apply if they wish to raise any issues with the terms of the orders or the timing of production or if any party submits that there should be limitations on access to any document produced or seeks the making of confidentiality orders.

M Follett KC and J McLean, of counsel, instructed by Mills Oakley for Bechtel Construction (Australia) Pty Ltd.

P Boncardo, of counsel, for the AWU, the CFMEU (MUA Division) and the CEPU.

J Liley, Senior National Legal Officer, for the CFMEU (Construction & General Division).

[1] See, for example, Application by Australian Nursing Federation [2011] FWA 8756 at [10] (Jones C) and Application by Australian Rail, Tram and Bus Industry Union [2018] FWC 198(Sams DP), quoting submissions from Mr Y Shariff of counsel (as his Honour then was).

[2] Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [84] (Brereton J).

[3] Re Clerks' (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 (Print H2892, 2 June 1988) at p 2; Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460 at [19]; Esso Australia Pty Ltd v Australian Workers' Union (AWU) [2017] FWCFB 2200 at [6]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd (t/as Fredon) [2021] FWCFB 128 at [19].

[4] Woodside v The Australian Workers' Union [2022] FWCFB 168 at [25]; OSM Australia Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FWCFB 77 at [29]- [30].

[5] Attorney General v Stuart (1994) 34 NSWLR 667 at 681; Portal Software v Bodsworth [2005] NSWSC 1115 at [25] (Brereton J).

[6] Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350 at 374 and see also National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385.

[7] Fair Work Act 2009 (Cth), s 577.

[8] See, for example, Federal Court Rules 2011 (Cth), rule 20.14.

[9] See also Clermont Coal Pty Ltd v Brown [2015] FWCFB 2460 at [23].

[10] Applications by The Australian Workers' Union [2019] FWC 4733 at [5].

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