Fair Work Act 2009

s.120 - Redundancy pay

• [1] BGIS Pty Limited conducts a business under which it provides, amongst other things, facilities management services to its clients. One of its clients was Edith Cowan University ("ECU").
• [2] Graham Clements-Jewery commenced employment with BGIS on 24 November 2014. As at February 2025, he was employed as a Technical Facilities Manager at the ECU ("University Position").
• [3] On 14 February 2025, BGIS informed Mr Clements-Jewery that the ECU had not renewed its contract with BGIS and that the contract would come to an end on 30 April 2025. The letter informed Mr Clements-Jewery that the change placed his role "at risk of redundancy".
• [4] On 23 April 2025, BGIS offered Mr Clements-Jewery redeployment to the position of Estate Services Manager (Facility Manager) at the Perth Stadium ("Stadium Position"). Mr Clements-Jewery declined that offer.
• [5] Mr Clements-Jewery's employment with BGIS came to an end due to redundancy on 30 April 2025. In the circumstances, under section 119 of the Fair Work Act 2009[1] he was entitled to 12 weeks redundancy pay.[2]
• [6] However, BGIS contends that it had obtained acceptable alternative employment for Mr Clements-Jewery, namely the Stadium Position. On that basis, it has applied to the Commission under section 120 for an order to reduce Mr Clements-Jewery's redundancy pay to nil.
• [7] Mr Clements-Jewery opposes the application.

• [8] Section 120 is in these terms:

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

• [9] The approach that I should take to BGIS's application is well established:[3]

(1) I must first determine whether the preconditions for the application of section 120(1) are satisfied - that is, that Mr Clements-Jewery has an entitlement under section 119 to redundancy pay, and (relevantly for this case) that BGIS obtained other acceptable employment for him.

(2) Relevantly for the purposes of the second precondition:

(a) An employer "obtains" other acceptable employment when it acquires or gets the employment by its conscious, intended acts.

(b) Whether the alternative employment is "acceptable" is to be determined objectively, not by reference to whether Mr Clements-Jewery considered that it was subjectively acceptable. The determination of whether alternative employment is acceptable requires me to make an assessment and value judgment

(3) If I determine that the preconditions in section 120(1) are satisfied, my discretion under section 120(2) to reduce the amount of redundancy pay to be paid to Mr Clements-Jewery is enlivened. As a result, it will be necessary for me to determine whether to make such a reduction and, if so, by how much. This requires the exercise of a broad discretionary power.

(4) By reason of section 120(3), any determination I make for a reduced amount of redundancy pay becomes Mr Clements-Jewery's entitlement under section 119.

• [10] As I have already stated, the first precondition to the application of s 120(1) is met: Mr Clements-Jewery has an entitlement under section 119 to redundancy pay.
• [11] As to the second precondition, there was no controversy that BGIS "obtained" the Stadium Position for Mr Clements-Jewery. In any event, it is clear from the evidence that I will come to explore that BGIS did so. I find accordingly.
• [12] The question which remains for me to determine is whether the Stadium Position was "acceptable alternative employment".

• [13] I am satisfied that BGIS obtained acceptable alternative employment for Mr Clements-Jewery, and that I should exercise my discretion to reduce his redundancy pay to nil. My reasons follow.

• [14] Bruce Henderson is BGIS's Account Director & General Manager Contracts WA. On 14 February 2025, he sent a letter to Mr Clements-Jewery which included the following:

"The purpose of this letter is to advise you of changes within the business which may affect your ongoing working arrangements. Specifically, the BGIS contract with the ECU client has not been renewed and will subsequently cease as of 30 April 2025. This change consequently places your role at risk of redundancy.

Before reaching an outcome, we would like to provide you with an opportunity to respond and ask questions. Please know that our first priority for team members is to consider all options and alternatives to redundancy such as any reasonable redeployment opportunities within your skillset and capacity."

• [15] On 25 February 2025, Mr Henderson interviewed Mr Clements-Jewery for the Stadium Position. Mr Clements-Jewery was one of three candidates for the role. The other candidates were also BGIS employees working at the ECU, and BGIS was similarly looking for redeployment opportunities for them.

• [16] On 27 March 2025, Mr Henderson sent a letter to Mr Clements-Jewery, which included the following:

"Following on from recent discussions, the purpose of this letter is to confirm that due to the BGIS contract with Edith Cowan University ceasing effective 30 April 2025, your current role of Technical Facilities Manager for Edith Cowan University is no longer required by BGIS and will conclude on 30 April 2025.

Our first priority is to explore suitable redeployment opportunities which is currently underway. If we are unable to provide you with a redeployment, then you will receive redundancy entitlements in accordance with your contract and the National Employment Standards.

Please take this letter as advice that your notice period has commenced effective immediately, any notice that you do not work will be paid to you in lieu."

• [17] Following Mr Clements-Jewery's interview on 25 February 2025, BGIS determined that the other two employees were stronger candidates for the Stadium Position. They were each offered the role in turn, but declined it. That left the Stadium Position available for Mr Clements-Jewery.

• [18] On 23 April 2025, Mr Henderson sent an email to Mr Clements-Jewery, which included the following:

"I am reaching out to inform you about a direct redeployment opportunity that is available as a Facilities Manager with Perth Stadium. After reviewing your skills and experience we believe this position would be a great fit for you and would allow you to continue contributing meaningfully within the company. You do not have to apply for the role, and if you choose to accept this offer we would provide a new contract of employment confirming the change. Additionally, the position would match your current salary and is located at 333 Victoria Park Drive in Burswood, Western Australia.

The role with BGIS offers the opportunity to manage Service Delivery for Hard Services in a dynamic Stadium environment and would include management of diverse hard services disciplines as well specialized equipment used in a high technology entertainment context. In addition the role provides you with exposure to live entertainment and sporting events and a dynamic team environment. A Position Description is attached to this email for your information.

We are happy to provide more details and support you through the transition process if you choose to accept the role. Should you not wish to accept this opportunity please advise us in writing by return mail including your reasons for declining the opportunity."

• [19] There followed an exchange of emails between Mr Clements-Jewery and Mr Henderson on 23 April 2025. Mr Clements-Jewery responded to Mr Henderson's email in these terms:

"I would like to express my serious concern and frustration regarding the redeployment offer made to me on 23/04/25, just less than 5 working days before my end date - after I've already received my redundancy notice, final payment breakdown, and confirmation of my termination date.

To receive this offer so late in the process - and only because two other employees declined it - feels like an afterthought rather than a genuine attempt at redeployment. Frankly, I find the timing and circumstances quite unbelievable.

Over the past five weeks, I've been operating under the very clear understanding that my role was being made redundant. That understanding has led to significant personal stress, financial uncertainty, and the urgent need to look for new employment. Now, at the last minute, it appears I may no longer be entitled to the redundancy payment I was expecting - a payment that, up until now, I had every reason to believe I would receive.

This entire situation feels poorly handled and incredibly unfair. The offer has not been made in good faith or with sufficient notice for me to properly consider it, and it certainly does not reflect any meaningful consultation. It's difficult not to feel that this offer has been made purely to avoid a redundancy payout rather than to genuinely support my employment.

I would like clear and immediate answers to the following:

1. How does this eleventh-hour offer affect my right to receive a redundancy payment?

2. Why was this role not offered to me earlier in the consultation period?

3. What consideration is being given to the impact this has had on my wellbeing, financial planning, and job search?

4. Am I within my rights to decline this offer on reasonable grounds and still receive redundancy?

I expect a prompt and transparent response in writing. I am extremely disappointed with how this has been handled and am currently considering my options."

• [20] Mr Henderson's response included the following:

"We acknowledge that this may be a challenging time for you, and we understand your concerns. Please know that we value your contributions to BGIS and are committed to supporting your continued career success with us.

As part of our obligations under the Fair Work Act, we are required to explore all reasonable redeployment opportunities before proceeding with a redundancy. Our aim is always to retain valued team members where possible, and to that end, we are offering you a suitable redeployment opportunity in the form of the Facilities Manager role with Perth Stadium.

As outlined in the attached letter provided to you on 27 March of this year, should we be unable to identify a suitable redeployment, your redundancy entitlements will be paid in accordance with your employment contract and the National Employment Standards. However, given that a role is now available that we believe meets the criteria for suitable redeployment, we are offering it to you to support your ongoing employment.

If you do not believe this role is a suitable redeployment opportunity, we kindly ask that you provide us with the reasons why. We will carefully consider your feedback. Please be aware that if we believe the role is suitable and it is declined, we may be required to apply to the Fair Work Commission to seek a variation to any redundancy payment which may result in zero payment being owed."

"Before formally replying to your below email, please can you answer the below questions as originally requested:

• Why was this role not offered to me earlier in the consultation period?

• What consideration is being given to the impact this has had on my wellbeing, financial planning, and job search?"

"The role was not offered to you earlier because it had been accepted by another party who subsequently declined it. We only learned of this late last week and offered it to you after confirming it was appropriate. I appreciate the notice is short but unfortunately this was outside of our control.

In terms of your second question we are aware that the redundancy process can be stressful and have followed the Fair Work requirements to minimise the impact. We would expect however the job offered would be net positive as it would ensure financial stability and ongoing career certainty. That said EAP is available via the B Well Hub for any issues not captured in the above."

• [23] Mr Clements-Jewery decided to reject the offer. On 29 April 2025, he sent an email to Mr Henderson in these terms:

"I am writing to formally reject the recent redeployment offer, which I find entirely unsuitable and, frankly, insulting given the circumstances.

The role requires significantly more travel, as well as availability on weekends and after hours - expectations that are completely unreasonable when compared to my current working conditions.

As said previously I am the third person to be offered this position, after it was declined by two others. That alone makes it abundantly clear that this is not a meaningful or appropriate alternative. Presenting this role as a viable redeployment option appears more like a procedural formality than a genuine effort to meet your obligations under the Fair Work Act.

To receive this offer just five working days before the end of my notice period - after nearly five weeks of complete silence - reflects extremely poorly on the management of this process. Frankly, it is disrespectful. The suggestion that accepting a last-minute, unsuitable position would be a net positive due to the promise of financial stability and ongoing career certainty is not only misguided - it's frankly absurd. It underscores the broader mishandling of this entire situation.

Since receiving notice of redundancy, I have been forced to take the initiative in finding new employment on my own, as BGIS has provided no genuine support or viable alternatives. There has been no sincere effort to redeploy me - only last-minute scrambling and a lack of meaningful communication that speak volumes about the way this process has been managed. As a result, I have secured a suitable role elsewhere.

After seeking legal advice, I will expect prompt written acknowledgment of this rejection, along with confirmation that the redeployment process is now concluded and that my redundancy will proceed as scheduled.

This entire experience has been deeply disappointing not just for me but other team members on the ECU account. I hope BGIS will take the time to reflect on the absence of empathy and professionalism that has marked its handling throughout this process."

• [24] On 30 April 2025, Sarah Thompson, an HR Business Partner with BGIS, sent an email to Mr Clements-Jewery in these terms:

"I write to confirm that your role will cease on 30 April 2025 as previously formally communicated to you, as the role is no longer required.

We respect your decision should you choose not to accept the role identified for redeployment, however BGIS will apply to the Fair Work Commission to seek a variation to any redundancy payment if this is the case. Subsequently, any payments made to you or not will be in line with Fair Work Commission directions.

The role remains open to you should you wish to accept this and if we don't hear back from you by close of business today, 30 April 2025, we will take this as a declinature of the role.

If you have any further feedback regarding why you do not believe this role is a suitable redeployment opportunity, we welcome this feedback."

• [25] The same day, Mr Clements-Jewery responded to Ms Thompson by saying that BGIS's position was "very disappointing".

• [26] Mr Clements-Jewery's employment with BGIS came to an end on 30 April 2025. BGIS submitted that he "obtained employment externally with CBRE as a Contract Manager, which commenced immediately after his employment with BGIS concluded resulting in no loss of income". Mr Clements-Jewery did not dispute that submission.

The Stadium Position was acceptable alternative employment

• [27] The onus rests on BGIS to demonstrate that the Stadium Position was acceptable alternative employment. The determination of that issue may involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and travelling time. However, as I have stated, whether the alternative employment is "acceptable" is to be determined objectively, not by reference to whether Mr Clements-Jewery considered that it was subjectively acceptable.[4]
• [28] BGIS submitted:

"BGIS lodged this application on the basis that the redeployment opportunity offered to the respondent was suitable, the role and duties are substantially similar to their prior role, however the title varies. It is BGIS' view that the job title does not form a substantive difference in the role offered noting that a job should be reviewed on it's collection of functions, duties and responsibilities. The offer had no impact on their salary or level of responsibility and offered an opportunity to grow further within BGIS, in a similar client-site environment. BGIS has made genuine efforts to redeploy the respondent into a suitable role as soon as one became available." (Cross-references to BGIS's evidence in the proceedings removed)

• [29] In its application, BGIS provided a table containing a "side by side" comparison of the terms of the University Position against those of the Stadium Position ("Comparison Table"). A copy of that table is Appendix A to this decision.
• [30] Mr Clements-Jewery did not dispute that the University Position and the Stadium Position were comparable in most respects. He contended, however, that the Stadium Position was "materially different" to the University Position for two reasons: first, it "would result in significantly increased travel time"; and second, it would require him to be available on weekends and after hours, which was not required in the University Position.

• [31] BGIS accepted in the Comparison Table that there would be an increase in travel time associated with Mr Clements-Jewery accepting the Stadium Position. It estimated that the distance Mr Clements-Jewery travelled to work in the University Position was 17.2km with a trip time of 15 minutes. It estimated that this would increase to 44.8km and 35 minutes in the Stadium Position. I infer that the estimated trip durations assume that Mr Clements-Jewery drives to and from work.

• [32] Mr Clements-Jewery contended that the trip duration would in fact increase from approximately 31 minutes to 70 minutes, resulting in an additional 80 minutes of travel a day. This was based on him catching the train to and from work. He relied on information provided by Transperth that showed his routes and travel times from his home to, respectively, the ECU Student Village and Perth Stadium.

• [33] There was no direct evidence as to how Mr Clements-Jewery gets to and from work. I infer from his evidence that he takes the train. BGIS did not contend otherwise.

• [34] Mr Clements-Jewery submitted that the extra travel time was an "added burden [which] does not support a healthy work-life balance". However, he did not offer any evidence as to how his work-life balance would have been impacted. There is nothing to demonstrate that the extra travel time would have caused any disruption to his family, domestic or other personal arrangements. There is also no evidence that the extra travel time would have resulted in Mr Clements-Jewery incurring additional costs.

• [35] I also have regard to the fact that the potential for Mr Clements-Jewery to be relocated by BGIS was a term of his employment. His employment contract provided:

"2.3 You will initially be based at the office Level 26, Central Park, 152-158 St Georges Terrace , PERTH, Western Australia or such other locations as reasonably determined by the Company. ..."

• [36] I can readily accept that an increase in travel time of 80 minutes a day is significant. I also accept that Mr Clements-Jewery considered it to be an unacceptable change. However, looked at objectively in light of the information available to me, I do not consider it to have been unreasonable in the circumstances. I am not satisfied that it would have been a change of such consequence as to render the Stadium Position anything other than acceptable alternative employment.

• [37] I am also not persuaded that the Stadium Position would have required Mr Clements-Jewery to be available on weekends and after hours such as to make it "materially different" to the University Position, as he contended.

• [38] In saying that, I am mindful that the position description for the Stadium Position included a requirement that the incumbent "perform reactive services as part of a First Response Team during Events as agreed or required by roster". There was no such requirement in the position description for the University Position.

• [39] However, in the Comparison Table, BGIS stated in relation to the University Position:

"The Client has a requirement for after-hours on-call work. After-hours on-call work was rotated among all team members, ensuring a fair distribution of responsibilities."

• [40] This would suggest that even were the Stadium Position to have required Mr Clements-Jewery to perform after-hours work, it would not necessarily have been inconsistent with his responsibilities in the University Position.

• [41] But there is room to doubt the extent to which the Stadium Position would have required Mr Clements-Jewery to be available on weekends and after hours. Mr Henderson gave the following evidence of the interview he conducted with Mr Clements-Jewery in relation to the Stadium Position on 25 February 2025:

"In the course of the interview, we discussed the working hours of the role which were communicated to Graham as being from 9 to 5 Monday to Friday. We did discuss the interface of the role with the Event Schedule and I stated that we recommended that the Estate Services Manager attend one game a month in order to understand how Event Operations affected the management of the building infrastructure. It was communicated during this meeting that this was not a hard and fast requirement but it was beneficial to the role and to management of the team generally that the Estate Services Manager understand the implications of their work on Event management. It was also explained at the time that it was common for team members to select convenient days to attend these events so their personal time was not affected. It was also made clear that any attendance on an event day would be compensated by a TOIL (Time of in lieu) day the following week. We explained that we did not have an on-call requirement for the role as they did at ECU and we all pitched in to manage any out of hours anomalies that came up." (My emphasis)

• [42] Mr Clements-Jewery did not challenge that evidence.

• [43] On the evidence, I am not satisfied either that the Stadium Position would have required Mr Clements-Jewery to perform after hours or weekend work or, to the extent that it did so, that this would have represented a significant departure from the requirements of the University Position.

• [44] I am satisfied that BGIS has discharged its onus of demonstrating that the Stadium Position was acceptable alternative employment. I find that it was.

Should I exercise my discretion to reduce the amount of redundancy pay payable?

• [45] It follows from that finding that the preconditions in section 120(1) are met. I must now consider whether to exercise my discretion to reduce the amount of Mr Clements-Jewery's redundancy pay. In doing so, it is appropriate to balance my findings above against any considerations that might tell against the exercise of the discretion. I must exercise the discretion having regard to all of the relevant circumstances, including the apparent purpose of section 120, the objects of the Fair Work Act[5] and what is fair and just.[6]

• [46] Mr Clements-Jewery placed significant reliance on what he contended was the unfair process by which BGIS offered him the Stadium Position and then sought (and now seeks) to avoid making a redundancy payment to him. This is reflected in his emails to Mr Henderson of 23 and 29 April 2025 referred to above. In these proceedings, he submitted:

"Furthermore, the redeployment offer was presented less than five business days before my end date, which did not provide sufficient time for thoughtful consideration. This approach falls short of demonstrating meaningful consultation or a genuine commitment to redeployment on the part of BGIS Pty Ltd. Additionally, it is important to highlight that between 25 February 2025 and 23 April 2025, despite BGIS's references to support measures, no communication or assistance regarding redeployment opportunities was provided. This indicates that the support offered was inadequate in facilitating a genuine transition during the redundancy process.

In light of the above, I respectfully submit that the redeployment process undertaken by BGIS was neither fair nor reasonable. The offer extended to me was made at the eleventh hour, lacked sufficient time for genuine consideration, and involved a role that was materially different from my previous position - both in responsibilities and working conditions. The absence of meaningful consultation, the lack of timely communication regarding redeployment opportunities, and the failure to uphold the company's stated values of fairness and integrity further underscore the inadequacy of the process."

• [47] In support of those submissions, Mr Clements-Jewery relied on a statement from a former colleague at BGIS who was also impacted by the loss of the ECU contract. That statement outlined and criticised BGIS's handling of her situation. I have considered that statement, but find it to be of little assistance.

• [48] By 23 April 2025, Mr Clements-Jewery had received details of the redundancy payment that BGIS would make to him on the termination of his employment. He had found another job, which he expected to take up immediately or soon after his employment with BGIS came to an end. He was, on any analysis, in a happy position. However, the offer of alternative employment with BGIS put that position at risk.

• [49] To my mind, it is clear from Mr Clements-Jewery's emails to Mr Henderson that he was considerably upset at the prospect of losing the redundancy payment he had come to expect. This appears to have been his primary concern. The criticism that Mr Clements-Jewery levelled (and levels) at BGIS's conduct, and the umbrage expressed in his emails to Mr Henderson, must be viewed in that light.

• [50] It is uncontroversial that the offer of the Stadium Position came reasonably late in the day. However, BGIS explained why that was the case. Mr Henderson gave evidence that he decided that the other two candidates for that role were to be preferred over Mr Clements-Jewery. His reasons included that during his interview for the role, Mr Clements-Jewery expressed a preference to take up employment with the new provider to the ECU if that were offered to him. (This evidence was unchallenged.) It was only after the other employees had declined the Stadium Position that BGIS could offer it to Mr Clements-Jewery.

• [51] It is significant that Mr Clements-Jewery was obviously aware of developments in this regard. In his material, he provided the dates on which each of the other employees had been offered and declined the Stadium Position. That information was not contained in BGIS's material.

• [52] In the circumstances, I do not accept that the late receipt of the offer of the Stadium Position caused Mr Clements-Jewery any prejudice. He had interviewed for the role on 25 February 2025. He was apparently aware that it had been offered to, and declined by, his co-workers. BGIS had made it clear from the outset that it would seek to redeploy him. It cannot be said that the offer of the Stadium Position came completely "out of the blue".

• [53] Further, on Mr Clements-Jewery's evidence, the second co-worker to turn down the offer of the Stadium Position did so on 17 April 2025. There was no undue delay between that date and the position being offered to him.

• [54] I do not accept that BGIS can be criticised for offering the Stadium Position to Mr Clements-Jewery when it did. It is of no consequence that Mr Clements-Jewery was the third of three to be offered the role; it was a position available to be filled. I reject Mr Clements-Jewery's submission that the lateness of the offer demonstrated that BGIS did not have a "genuine commitment to redeployment".

• [55] To the contrary, BGIS's conduct is consistent with the Fair Work Act. Section 120 creates an incentive for an employer to obtain acceptable alternative employment for an employee, namely the opportunity to avoid having to make a redundancy payment under section 119, in whole or in part. BGIS cannot be criticised for availing itself of the opportunity for which the Act provides.

• [56] I give little weight to Mr Clements-Jewery's submission that he did not have "sufficient time for thoughtful consideration" of the offer of the Stadium Position. This is for three reasons. First, for the reasons already stated, he can be taken to have been aware since 25 February 2025 that the position might be offered to him. He had ample time to consider whether he would accept it or not, were it offered to him. Second, there was a week between the date on which the offer was made to him and that on which his employment was due to come to an end. This was sufficient time for him to consider his position. However, and third, it is clear from the evidence, and in particular Mr Clements-Jewery's emails to Mr Henderson of 23 and 29 April 2025, that he had no intention of taking the job. He did not need time for consideration.

• [57] I am mindful that the purpose of redundancy pay is to compensate an employee for matters such as the trauma associated with the termination of employment, loss of seniority and the loss of non-transferable credits such as sick leave.[7] Mr Clements-Jewery made no submissions in relation to such matters.

• [58] There is no basis on which I could find that there was any trauma associated with him losing his employment, or that he has suffered a loss of seniority. BGIS submitted that it was not reasonable to take into account non-transferrable credits, as Mr Clements-Jewery had the opportunity to remain employed by BGIS and maintain access to those accruals had he elected to accept the Stadium Position. Mr Clements-Jewery did not respond to that submission.

• [59] In any event, the evidence suggests that on the termination of his employment, Mr Clements-Jewery received payment of his accrued but untaken annual leave and long service leave. He did not suggest otherwise. While Mr Clements-Jewery had accumulated 331.41 hours of personal leave at BGIS, I do not consider that this is material to the exercise of my discretion.

• [60] Overall, I see nothing in the circumstances of the case to suggest that Mr Clements-Jewery has suffered any loss, other than the expectation that he would receive a redundancy payment from BGIS. This does not weigh heavily in favour of a finding against BGIS.

• [61] Mr Clements-Jewery has an entitlement under section 119 to redundancy pay. I have found that BGIS obtained other acceptable employment for him. It follows that the pre-conditions for the application of section 120(1) are satisfied.
• [62] I do not consider there to be any significant considerations telling against the exercise of my discretion. I consider that it is fair and reasonable in the present circumstances to reduce Mr Clements-Jewery's redundancy entitlement to nil.
• [63] An order will be issued separately reflecting this decision.[8]

[1] In this decision, all references to legislative provisions are references to provisions of the Fair Work Act

[2] This was not a matter of controversy. I note for completeness that the exclusions in s 121(1) do not apply in Mr Clements-Jewery's circumstances.

[3] See Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia; Marcelia Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [35]- [38] and the cases there referred to

[4] Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 at 230-231, cited with approval in Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia; Marcelia Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [37]

[5] Section 3

[6] Section 577

[7] National Union of Workers v Employers' Chamber of Commerce and Industry (Vic) (2004)129 IR 155 at [152]

[8] PR790260

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