What happened

This Full Bench decision (Deputy Presidents Gostencnik, Colman and Saunders) allowed an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) against part of a decision of Deputy President Asbury dated 28 February 2020. The original dispute concerned a roster change proposal advanced by Smit Lamnalco Towage (Australia) Pty Ltd under the Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2016. The CFMMEU contended the roster proposal was, in substance, a variation of the Agreement and so could only be effected by processes set out in Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act). Deputy President Asbury rejected that contention. The Union appealed. The Full Bench granted permission to appeal (accepting the issue's public importance) and held the Deputy President erred in law by concluding that an enterprise agreement could be varied by means other than Division 7 (permission to appeal at [11]; principal reasoning at [12]-[21]). The Full Bench quashed that part of the earlier decision and remitted the matter to the Deputy President to determine whether the roster proposal is a permitted intra-agreement change or an impermissible variation requiring Division 7 processes (orders at [28]).

The Full Bench reached two central conclusions:

Division 7 of Part 2-4, read with the Full Court’s decision in Teys, establishes that an enterprise agreement is a statutory artefact which cannot be varied by means for which the FW Act does not provide; hence, as a general proposition, variations must be effected under Division 7 (paragraphs [17], [20]).
There is an important legal distinction between (a) an alteration to working arrangements effected pursuant to express, pre-existing terms and procedures in an enterprise agreement (which does not amount to a variation to the agreement) and (b) a change that in effect alters the terms of the agreement itself (which is a variation and must be effected under Division 7). That characterisation must be carried out in the remitted proceedings (paragraphs [16], [22]-[24]).

The Full Bench therefore allowed the appeal on the limited legal ground that the Deputy President incorrectly concluded Div 7 was not a statutory code for variation and remitted the question of characterisation back for determination.

Why the court decided this way

Two linked legal propositions underpinned the Full Bench’s decision.

Enterprise agreements are statutory artefacts and Division 7 is the statutory route for variation.
- The Full Bench adopted and applied the Full Court’s language in Teys that an enterprise agreement is a statutory artefact which takes its form from the instrument approved by the Commission and cannot be varied by means that the FW Act does not provide (citing Teys at [17]). On that basis, Div 7 is, “subject to the matter of timing”, a comprehensive code for variations (paragraph [17]). The Full Bench concluded the Deputy President should have applied that authority rather than conclude Div 7 was non‑exclusive.
Characterisation is decisive: variation versus intra-agreement change.
- The Full Bench emphasised the legal distinction between: (a) a variation to the agreement and (b) changes to working arrangements effected pursuant to the agreement’s existing terms and processes. If a change occurs within parameters the agreement establishes (for example, an agreed spread of hours which can be altered within specified limits by notice or agreement), then implementing the change does not vary the agreement itself (paragraphs [16], [22]-[23]). However, where a purported “variation” falls outside those parameters and would create new terms not previously scrutinised under the statutory approval process, the change is a variation that must be processed under Div 7. The Full Bench found the Deputy President failed to undertake that essential characterisation and, having assumed the roster proposal was a variation, then wrongly held it could be effected outside Div 7 (paragraphs [16], [21], [24]).

Additionally, the Full Bench made several observations about limits on intra-agreement variation clauses. It noted that unconstrained unilateral variation clauses would be unlikely to pass the better off overall test (s 193) and so remain constrained in practice (paragraph [15]).

For those reasons the Full Bench overturned that part of the Deputy President’s decision which held an enterprise agreement could be varied by other means, and remitted the factual and legal characterisation question back to the Deputy President for determination in light of the proper legal principles (orders at [28]).

Before and after state of the law

Before this Full Bench decision:

Deputy President Asbury had taken the view (at least for the purposes of the October 2019 s 739 application) that the Agreement’s internal provisions might authorise certain roster changes and that the Act did not evidence intent for Div 7 to operate as a comprehensive code prohibiting other variation mechanisms (see summary at [4], Asbury’s reasoning as recited at [13]-[15]).
The Full Court in Teys had earlier held that enterprise agreements are statutory artefacts and that Div 7 is the statutory mechanism for variations; that authority was apparently not referred to the Deputy President in the earlier proceedings ([17]).

After this Full Bench decision:

The Full Bench reinforces and applies Teys: enterprise agreements cannot be varied otherwise than under Div 7 (paragraphs [17], [20]). The decision clarifies that while an agreement can include procedures that effect changes within its expressly set parameters (and these are not variations), any change that in substance varies the agreement must go through the Div 7 machinery.
The decision requires tribunals to undertake the correct characterisation exercise (variation vs intra‑agreement change) before concluding whether Division 7 is engaged; failing to do so is legal error (paragraphs [16], [21], [24]).

The critical legal shift is not that Div 7 was newly recognised as exclusive, but that the Full Bench emphasised Teys and required decision-makers to apply it and to distinguish properly between permitted intra-agreement changes (operating inside the agreement) and true variations (changing the agreement).

Key passages with plain-English translation

Paragraph [16]:
- Text: "There is a clear distinction between a variation to an enterprise agreement and a change to working arrangements that occurs pursuant to the terms of the agreement. The latter is not a variation to the agreement."
- Plain English: If the agreement already sets out how work is to be changed and you follow those steps, you have not 'changed the agreement', you have only implemented what the agreement itself allows.
Paragraph [17] (quoting Teys):
- Text: "An enterprise agreement is a 'statutory artefact' ... It cannot be varied by means for which the FW Act does not provide. Subject to the matter of timing, Div 7 is a comprehensive code with respect to the variation of an enterprise agreement."
- Plain English: An enterprise agreement is created by and exists under the statute. You cannot vary that statutory product except by using the statutory variation procedures, namely Division 7 (there are some timing qualifications the court notes in Teys but, generally, Div 7 is the route).
Paragraph [23]:
- Text: "Just as a term of an agreement which would preclude the exercise of rights under Division 7 of Part 2-4 of the Act is invalid, so too is a term which permits variation of the agreement without recourse to Division 7 of Part 2-4 of the Act."
- Plain English: Any contract clause that tries to stop people using the statutory variation process, or that tries to let people change the agreement outside the statutory process, will not be effective.
Paragraph [15]:
- Text: "An 'agreement which provides for unilateral variation of its terms without constraint is unlikely to pass the better off overall test ...'"
- Plain English: Even if an agreement contains sweeping power to vary terms, the statutory approval process (including the better off overall test) serves as a safeguard that usually prevents unconstrained unilateral variation powers from being valid.

What fact patterns trigger this precedent

This Full Bench's reasoning and its reliance upon Teys becomes central whenever:

A party seeks to implement a change that the other party characterises as a variation of an approved enterprise agreement (for example, fundamental changes to pay rates, ordinary hours, rostering, overtime entitlements, or other core terms).
Tribunal decision-makers must decide whether a disputed employer proposal is (a) an exercise of management rights or an exercise of rights given by pre-existing agreement terms (not a variation), or (b) a change that amends the substance of the agreement (a variation requiring Div 7).
An enterprise agreement contains a clause that purports to permit amendments to terms by a specified (internal) process, and there is a contest whether that process validly produces a new, binding term of the agreement without referral to Division 7.
A party contends that a procedure in an agreement produces change in the agreement (a legal variation) rather than merely operating within fixed contractual parameters.

In short, any dispute over whether a proposed change alters the statutory instrument (the agreement) or simply operates within it will trigger this precedent and require the characterisation exercise mandated by the Full Bench.

How later courts have treated it

This judgment itself applies Teys and does not catalogue later treatment by other authorities. Within the text, the Full Bench notes that Teys was not cited to Deputy President Asbury and that Teys is decisive on the proposition that Div 7 is the route for variation ([17], [18]). The Full Bench does not discuss subsequent authorities applying its ruling, because this decision is an instance of applying the Full Court’s Teys authority. To see how later tribunals or courts treat this Full Bench decision, one must check post-2020 decisions and practice, this judgment does not contain that material.

Still-open questions

The Full Bench leaves important questions to be decided on remittal rather than resolving them in this interlocutory appeal:

Characterisation: Was the Respondent's roster proposal, properly characterised on the evidence and the Agreement's wording, an intra-agreement change (permitted by the Agreement’s parameters) or a variation of the Agreement (requiring Div 7)? The Full Bench remitted that question (paragraphs [21], [24], [28(4)]).
Where an agreement provides internal processes to alter rostering or hours, what features of those processes or the proposed changes push a particular proposal beyond being an implementation of existing terms into being a substantive variation? The judgment gives examples (paragraph [22]) but leaves the specific thresholds and factual analysis to the Deputy President.
Interaction with statutory change mechanisms: the Full Bench acknowledges other statutory mechanisms (ss 190-202, individual flexibility arrangements, model terms) can alter the operation or effect of agreement terms (paragraph [19]). The precise boundaries between those statutory devices and Div 7, as applied to complex fact patterns, will need further fact-specific analysis on remittal or in later cases.
Timing qualification from Teys: Teys recognised a timing nuance ("subject to the matter of timing"); the Full Bench does not elaborate here how that nuance might operate in practice. That aspect remains an open, technical question for application to particular facts.

The Full Bench has therefore established the legal framework and sent the core factual question back for decision under that framework.

This is general legal information only, not legal advice. I can make mistakes. Before you rely on this analysis, act on it, or use any draft documents that might follow from it, get a qualified Australian lawyer to check everything.

Judgment (59 paragraphs)

[1]

Construction, Forestry, Maritime, Mining and Energy Union v Smit Lamnalco Towage (Australia) Pty Ltd [2020] FWCFB 3611 (16 July 2020)

[2]

[2020] FWCFB 3611

[3]

Fair Work Act 2009

[4]

s.604 - Appeal of decisions

[5]

Construction, Forestry, Maritime, Mining and Energy Union

[6]

Appeal against decision [2020] FWC 1115 of Deputy President Asbury at Brisbane on 28 February 2020 in matter number C2019/6161.

[7]

[1] The Appellant, the Construction, Forestry, Maritime, Mining and Energy Union, applies for permission to appeal and if granted, appeals a decision of Deputy President Asbury made on 28 February 2020[1] rejecting the Appellant's contention that a roster change proposal purportedly to be implemented pursuant to provisions of the Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2016 (Agreement) was in essence invalid because it amounted to a proposal to vary the Agreement other than in accordance with the provisions of Division 7 of Part 2-4 of the Fair Work Act 2009 (Act). In October 2019 the Appellant applied under s.739 of the Act for the Commission to deal with a dispute about a roster change proposed by the Respondent, Smit Lamnalco Towage (Australia) Pty Ltd, in accordance with the dispute settlement procedures of the Agreement.

[8]

[2] The Appellant raised two objections to the Respondent's roster change proposal. Relevantly, the Appellant contended that the roster change proposal amounted to a proposal to vary the Agreement which could only be accomplished by processing the variation in accordance with the provisions of Division 7 of Part 2-4 of the Act. The application, together with two other dispute applications concerning the Respondent's roster change proposal prosecuted by other unions under separate but substantially similar enterprise agreements, were allocated to Deputy President Asbury and dealt with concurrently.

[9]

[3] The Deputy President determined to deal with certain issues raised by the other unions in connection with their applications as "threshold/jurisdictional issues" in a hearing on 15 November 2019. She also determined to deal, in the same hearing, with the Appellant's contentions as to an 'impermissible variation' (variation contention) described by the Deputy President as a "broader issue" and later as "the jurisdictional objection advanced by" the Appellant.

[10]

[4] As to the Appellant's variation contention, the Deputy President determined, relevantly, that:

[11]

Division 7 of Part 2-4 of the Act was not a code;[2]

[12]

an enterprise agreement could contain provisions allowing terms of the agreement to be varied in a manner and/or in circumstances set out in the agreement;[3]

[13]

the effect of the provisions at issue in the Agreement is to provide a mechanism by which it can be varied and there is no prohibition in the Act on an enterprise agreement containing such a mechanism;[4]

[14]

the Agreement provides that rosters may be changed and establishes a process by which this can occur including a consultative process;[5]

[15]

changes to rosters are conditioned on changes to service, operational and port requirements as provided in clause 12.2 of the Agreement;[6] and

[16]

employees have a right under the Agreement to dispute a roster change including by seeking arbitration by the Commission.[7]

[17]

[5] Accordingly, the Deputy President rejected the Appellant's variation contention and left for consideration in later proceedings the issue whether the Respondent's roster change proposal was authorised by the provisions of the Agreement.

[18]

[6] The notice of appeal contains 10 appeal grounds. These may conveniently and broadly be grouped as follows.

[19]

[7] Grounds 1-5, 8 and 10 (impermissible variation grounds) variously contend error in the Deputy President's conclusion that an enterprise agreement (and relevantly the Agreement) could be varied including that:

[20]

the Agreement could be varied by means other than the mechanisms in Division 7 of Part 2-4 of the Act;

[21]

the provisions of Division 7 of Part 2-4 of the Act do not operate as a code, governing variations to an enterprise agreement; and

[22]

an enterprise agreement could contain provisions allowing terms of the agreement to be varied in a manner or in circumstances set out in the agreement.

[23]

[8] The Appellant's central contention is that the Deputy President's conclusions are erroneous and contrary to law. It says that, contrary to the Deputy President's conclusion, an enterprise agreement cannot be varied other than by recourse to Division 7 of Part 2-4 of the Act. As to these appeal grounds the Respondent says that although it accepts that an enterprise agreement may only be varied through the mechanisms in Division 7 of Part 2-4 of the Act, there is no principle that an employer cannot pursue change in a manner provided for in an enterprise agreement. It contends that this is what the Deputy President determined.

[24]

[9] Grounds 6, 7 and 9 (agreement construction grounds) variously contend that the Deputy President erred in construing the Agreement as permitting a variation to rosters established by Appendix 1 of the Agreement.

[25]

[10] For reasons that will shortly be made clear, it is necessary only to deal with the first category of appeal grounds.

[26]

[11] We accept, as the Appellant contends, that the appeal grounds raise important questions about the manner in which an enterprise agreement might be varied and whether a variation of an enterprise agreement outside the scheme that Division 7 of Part 2-4 of the Act establishes is permitted. We also consider that the impermissible variation grounds advanced by the Appellant establish an arguable case of appealable error. We are therefore satisfied that it is in the public interest that permission to appeal be granted, and we do so.

[27]

[12] We consider the Appellant has made good the errors for which it contends and that underpin the impermissible variation appeal grounds. Our reasons for that conclusion follow below.

[28]

[13] The Deputy President began her analysis by summarising the Appellant's contentions, which amounted to two propositions:

[29]

". . . On the one hand the Union asserts that the changes to rosters proposed by Smit are so radical that they are beyond the scope of the kinds of amendments contemplated by the provisions of the Agreements. On the other hand, if the CFMMEU's case is taken to its logical conclusion, what the Union is actually asserting is an all or nothing proposition that the terms of an enterprise agreement made and approved under the provisions in Part 2 - 4 of Division 7 of the Act cannot be varied other than by the provisions in Division 7 of that Part and that a provision that purports to allow for such variation is invalid and of no effect."[8]

[30]

[14] As to the first proposition the Deputy President observed that it "is one for another day".[9] The Deputy President did not accept the second proposition because:

[31]

". . . the proposition that an enterprise agreement cannot be varied other than in accordance with the scheme in Part 2 - 4 of Division 7 of the Act, is inconsistent with the terms of those provisions and the provisions of the Act dealing with the making and approval of enterprise agreements. The provisions in Part 2 - 4 of Division 7 of the Act dealing with variations to enterprise agreements, do not indicate any intent on the part of the legislature that those provisions operate as a code. Rather, those provisions are mechanisms which may be used in certain circumstances."[10]

[32]

[15] The Deputy President reasoned as follows:

[33]

Although the provisions in Division 7 of Part 2-4 of the Act make provision for variation to enterprise agreements through a process of agreement between employers and employees, or on application by a person covered by an agreement, to vary the agreement to remove an ambiguity or uncertainty, "...there is no indication that these provisions are the only mechanisms by which an enterprise agreement can be varied";[11]

[34]

The provisions of the Act dealing with the effect of an individual flexibility arrangement made under a flexibility term of an enterprise agreement (s.202(2)) and the consequences of an enterprise agreement not including a flexibility term (s.202(4)) provided "...a further indication that there is no general prohibition in the Act on variations to enterprise agreements other than in accordance with Part 2 - 4 of Division 7";[12]

[35]

Enterprise agreements "may also contain a provision that allows the employer and a majority of employees affected to agree to vary the spread" within which ordinary hours are worked[13] or allow "... terms of the agreement to be varied in a manner and/or in circumstances set out in the agreement".[14] "The effect of these provisions is that the enterprise agreement provides a mechanism by which it can be varied. There is no prohibition in the Act on an enterprise agreement containing such a mechanism";[15]

[36]

A term of an enterprise agreement which allows for its variation did not allow "...new terms to be created which have not been subject to scrutiny or ousts the operation of the Act with respect to ensuring agreements pass the better off overall test"[16] nor did it ". . . give employers carte blanche to vary agreements in any manner they choose..."[17] because the "better off overall test acts as a mechanism to avoid such outcomes";[18]

[37]

An "agreement which provides for unilateral variation of its terms without constraint is unlikely to pass the better off overall test particularly where provisions which can significantly affect the wages of employees, such as hours of work and overtime, are permitted to be varied."[19]

[38]

[16] It is clear from the decision that the Deputy President's reasoning proceeds upon an uncritical acceptance of the underlying premise of the Appellant's contention - that the Respondent's roster change proposal was a variation to the Agreement. This may be because the Respondent did not cavil with that characterisation and instead focussed on its right under the Agreement to make the roster changes.[20] However, the correctness of the premise needs to be determined. If, in truth, the Respondent's roster change proposal amounted to a variation of the Agreement, it could only be made through the agreement variation scheme for which provision is made in Division 7 of Part 2-4 of the Act. If the Respondent's roster change proposal involves a change to working arrangements that are regulated by the Agreement in a manner permitted by the terms of the Agreement, but the terms of the Agreement remain unchanged, this would not be a variation to the Agreement. There is a clear distinction between a variation to an enterprise agreement and a change to working arrangements that occurs pursuant to the terms of the agreement. The latter is not a variation to the agreement.

[39]

[17] The proposition, accepted by the Deputy President, that the provisions in Division 7 of Part 2-4 of the Act dealing with variations to enterprise agreements do not indicate any intent on the part of the legislature that those provisions operate as a code is incorrect and inconsistent with authority. As a Full Court of the Federal Court of Australia made clear in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union:[21]

[40]

". . . To the extent, however, that it is suggested that the relevant employer and a union having a sufficient interest could vary a previously approved enterprise agreement without recourse to Subdiv A and that such a "variation" would be effective, the submission must be rejected. An enterprise agreement is a "statutory artefact" (Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152, 180 [90]) which takes its form from the instrument approved by the Commission under s 186. It cannot be varied by means for which the FW Act does not provide. Subject to the matter of timing, Div 7 is a comprehensive code with respect to the variation of an enterprise agreement.

[41]

It follows . . . from the circumstance that the agreement was a statutory artefact which was not the property, as it were, of particular "parties", that the only way that an enterprise agreement might be varied was in compliance with the specific provisions of the legislation which permitted, and regulated, a variation, that is to say, the provisions of Div 7 of Pt 2-4 of the FW Act."[22] [Emphasis added]

[42]

[18] It is unfortunate, to say the least, that neither party referred the Deputy President to the Full Court's judgment in Teys.

[43]

[19] It is correct, as the Deputy President noted, that other provisions of the Act operate to vary the terms, or the effect of terms, of an enterprise agreement. An undertaking that is accepted by the Commission as meeting a concern about one or more of the matters in s.186 or s.187 of the Act may have the effect of making changes to an enterprise agreement which are not substantial changes (s.190(3)(b)) and will be taken to be a term of the agreement (s.191(1)). Model flexibility and consultation terms will be taken to be terms of an enterprise agreement if the agreement does not contain complying mandatory terms (s.202(4), s.205(2)). An individual flexibility arrangement made by an employer and an employee pursuant to a flexibility term of an enterprise agreement has effect in relation to the employer and the employee as if the enterprise agreement were varied by the arrangement (s.202(2)(a)). The arrangement is also taken to be a term of the agreement (s.202(2)(b)).

[44]

[20] However, these "variations" or changes to an enterprise agreement operate according to the provisions of the Act which permit or give effect to them. The existence of these provisions lends no weight to the proposition that a person covered by an enterprise agreement, whether alone or by agreement with other persons covered by the agreement, can effect a variation to the agreement other than in accordance with Division 7 of Part 2-4 of the Act. This, in essence, is the ratio in Teys - those covered by an enterprise agreement cannot vary the agreement except in accordance with Division 7 of Part 2-4 of the Act.

[45]

[21] As the Deputy President proceeded on the basis that the Respondent's roster change proposal was a variation to the Agreement and concluded the variation could be made without recourse to Division 7 of Part 2-4 of the Act, the Deputy President was in error. The appeal on these grounds must succeed.

[46]

[22] In upholding the appeal, we make the following observations. Not every change to the working arrangements that are regulated by an enterprise agreement will amount to a variation of the agreement. Self-evidently, an enterprise agreement may make provision for changes in, for example, working hours and the spread of those hours, or to rostering arrangements. Doubtless this is what the Deputy President had in mind in the example discussed at [121] of the decision.

[47]

[23] An enterprise agreement may provide for ordinary hours to be worked within a spread of hours between 6:00am and 6:00pm Monday to Friday. It may also provide that this spread of hours may be altered by one hour either side by agreement with the majority of employees affected or perhaps by an employee affected. That enterprise agreement might also provide that an employer may alter the spread of hours by one hour either side by giving seven days' notice to affected employees of the alteration. Alterations to working conditions of this kind made in accordance with the terms of an enterprise agreement are not a variation to the agreement. Both the status quo and the outer limits of the alteration are known and fixed by the agreement, as is the means by which the alteration is to be advanced. This is not a variation of any term of the agreement. It is a change permitted by the agreement within the parameters established by the agreement. But a term of an enterprise agreement that provides for the agreement to be varied by following a particular procedure will not validly support a variation of the agreement if the variation has not been processed in accordance with Division 7 of Part 2-4 of the Act. Just as a term of an agreement which would preclude the exercise of rights under Division 7 of Part 2-4 of the Act is invalid, so too is a term which permits variation of the agreement without recourse to Division 7 of Part 2-4 of the Act.

[48]

[24] The relevant question that required determination here was whether, properly characterised, the Respondent's roster change proposal was an alteration to working arrangements in a manner permitted by the Agreement of the kind discussed above or whether it was a variation which could only be achieved through Division 7 of Part 2-4 of the Act. By accepting the Appellant's premise that the Respondent's roster change proposal was a variation to the Agreement, the Deputy President did not properly engage with the question. In the result the Deputy President erred in her conclusion that a variation to the Agreement could be made without recourse to Division 7 of Part 2-4 of the Act.

[49]

[25] The Deputy President observed at [138] of the decision that "...there are issues raised by the CFMMEU in relation to the proposed roster changes such as whether they exceed the scope of changes permitted by the Agreements or whether the change process has been undertaken in a manner that is consistent with the terms of the Agreements..." and that she would leave these issues for another day. However, these issues were central to the question whether the Respondent's roster change proposal is merely an alteration to working arrangements within permissible bounds established by the Agreement or a proposal to vary the Agreement and thus achievable only through Division 7 of Part 2-4 of the Act. This was the essence of the dispute. It required determination.

[50]

[26] Given the foregoing it is not necessary to deal with the Agreement construction grounds advanced by the Appellant.

[51]

[27] For the reasons stated, the appeal is upheld. In the circumstances we propose to remit the matter to the Deputy President for determination in accordance with these reasons.

[52]

1. Permission to appeal is granted in respect of the impermissible variation grounds of appeal;

[53]

3. That part of the decision in Construction, Forestry, Maritime, Mining and Energy Union v Smit Lamnalco (Towage) Australia Pty Ltd [2020] FWC 1115 which concerns the CFMMEU's variation contention is quashed; and

[54]

4. The matter is remitted to the Deputy President to determine the Appellant's contention that the Respondent's roster change proposal is an impermissible variation of the Agreement, in accordance with our reasons.

[55]

By consent, determined on the papers without a hearing.

[56]

[1] Construction, Forestry, Maritime, Mining and Energy Union v Smit Lamnalco (Towage) Australia Pty Ltd [2020] FWC 1115

[57]

[20] Appeal book 126 at [5] and 128 at [15]-[16]; Appeal Book 90 - 93 at Transcript PN426-PN453

[58]

[21] [2016] FCAFC 122; (2016) 247 FCR 394

[59]

Printed by authority of the Commonwealth Government Printer

Construction, Forestry, Maritime, Mining and Energy Union v Smit Lamnalco Towage

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