2. The submissions continued that the applicant was under no legal obligation to perform work for the respondent on 2 December 2019 as he was on delegate's leave under clause 84 of the enterprise agreement - and "leave is leave": Chambers v Toll Transport Pty Ltd[6] at [75](a). The applicant did not take unlawful industrial action and this aspect of the respondent's case is based on a false premise and must be rejected.

[99] The submissions referred also to matters concerning the warning issued to the applicant in connection with release to attend Commission proceedings on 13 September 2019, which I do not summarise, contending that the direction to attend work before attending the Commission was unlawful and unreasonable and the applicant's non-adherence to it cannot ground a valid reason for dismissal.

[100] As to the applicant's failure to immediately sign the toolbox attendance forms in 2018, the applicant outlined reasons why it was impermissible for the respondent to issue the warnings of 27-28 September 2018 while a dispute was on foot. In any event, the circumstances of the applicant (and other drivers) not signing were of no practical consequence as the purpose of the sheets was for employees to acknowledge attendance only, albeit the concern was that in signing would mean acceptance of the impugned technology which was in dispute at the time.

1. As to procedural fairness-related matters, the applicant referred to Stanley Sully v CBMG North Pty Ltd[7] at [61]-[62], citing the well-known Crozier v Palazzo Corporation Pty Ltd[8] at [73]. The closing submissions in relation to procedural fairness were that the applicant was notified of the reasons for termination only in the letter of termination. The submissions continued that while the applicant was "generally aware that the respondent was concerned about the 2 December 2019 protest", he was not notified of the conclusions that had been drawn about his conduct on that day, nor that it was going to rely on the 13 September 2019 and 27-28 September 2018 incidents. The applicant was not, appositely in consideration of s.387(b) and s.387(c) of the Act, notified of the reasons for dismissal prior to dismissal - but simply asked why he should not be dismissed.

[102] As to other matters, the applicant adverted to matters including differential treatment as between the applicant and employees who were rostered to perform work from 5.00am and 7.00am on 2 December 2019 and not rostered to perform work until after the end of the protest on 2 December 2019. The applicant referred to other matters also in contending that dismissal was disproportionate to the gravity of any misconduct.

1. As to the remedy of reinstatement, referred to recent authority reaffirming it as the primary remedy: Scott Tracey v BP Refinery (Kwinana) Pty Ltd[9] at [36]. Here, the applicant submitted, there was no evidence that the respondent had lost trust and confidence in the applicant. Moreover, the unexplained failure of the respondent to call Mr Irvine who was the applicant's direct report can and should result in the Commission drawing a Jones v Dunkel[10] inference that Mr Irvine's evidence would not have assisted the respondent in this matter: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[11] at [47].

[104] The respondent submitted that, contrary to the submissions for the applicant, the decision to dismiss the applicant was a decision that was sound, defensible and well founded. The applicant "failed in the simplest of his obligations he had as an employee which was to comply with the instructions of his managers with respect to the performance of his duties while being paid." The respondent noted the three prior written warnings (two concerning the signing of an attendance sheet, and one concerning the release to attend Commission proceedings) and the circumstances surrounding the issuing of those warnings. The respondent submitted these incidents demonstrated the applicant's "pattern of behaviour in disregarding his obligations to comply with management's reasonable and lawful instruction which was an express term" of the enterprise agreement. The respondent noted that no formal steps eventuated in relation to disputing these warnings through Commission processes, and these warning letters remained on the applicant's file. Given this, the respondent submitted it can only be fair to conclude that the applicant accepted the warning letters because the respondent did not withdraw or expunge these from his personnel file.

[105] As to the events of 2 December 2019, the respondent submitted the applicant (and the other employees) took unprotected industrial action notwithstanding attempted justification on the basis of an imminent risk to health and safety and noting also that, when the employees returned to work around 8.20am, nothing had in fact changed concerning the working conditions said in the applicant's case to have involved an imminent risk.

[106] With respect to the applicant's involvement, the applicant agreed that he was released from his driving duties on 2 December 2019 to attend a meeting at the union office only. The applicant had approval to hold a TWU/Safety Meeting the morning of 2 December 2019; he attended the meeting and led the meeting as an HSR and union delegate. After the employees refused to commence work, the applicant stayed at the Chullora site and continued to act as the employees' representative and led the conversation between the employees and management. The applicant agreed that there were five instructions issued to the group to stop what the respondent considered to be unprotected industrial action. Further, the applicant confirmed that Mr Collins had advised the group to go back to work and what the consequences could be if they did not. The reasons relied upon by the employees, including the applicant, to trigger the events of 2 December 2019 did not justify the taking of industrial action. All the issues raised could have been dealt with by using the various dispute settlement avenues. Reference was made again to Petrunic, submitting that the circumstances go one step further than those in Petrunic in that the applicant was not on personal or annual leave, this was not outside of work hours and the applicant was present at the workplace. The applicant was on site at Chullora and he was being paid wages; he was at the workplace and therefore had an obligation to comply with the instructions of management. The applicant was authorised to hold a meeting until its conclusion at 5.15am and then leave the site to begin his delegate's leave to attend his meeting with the union. However, the applicant chose not to commence his delegate's leave and decided to stay on site and be an active "agitator" and participant in the unprotected industrial action, where he refused to comply with reasonable and lawful instructions of management on five separate occasions. The signing of warning letters by other employees, and the absence of disputation or escalation in the Commission about them, is indicative of acceptance that unprotected industrial action was involved.

[107] In relation to process, the respondent submitted the applicant at all times was shown procedural fairness with respect to his conduct on 2 December 2019, including through support by Mr Collins. Including by reference to the transcript, the respondent submitted that neither the applicant nor his representative asked for more time to consider the preliminary view of the respondent on 6 April 2020 when the matters being considered were put to him. The applicant put forward matters for the respondent to consider and it was only after this point that the final dismissal decision was made, being an approach consistent with the approach in Royal Melbourne Institute of Technology v Geoffrey Asher[12].

1. The respondent drew attention to the previous warnings and the events on 2 December 2019. Citing Woolworths Limited t/as Safeway v Cameron Brown[13], the respondent submitted that given the history of not complying with reasonable and lawful instructions of management, the respondent had a valid reason to dismiss the applicant and the decision was not harsh, unjust or unreasonable. In the event that the Commission considers that the termination of the applicant's employment was harsh, unjust or unreasonable, the respondent reiterated that reinstatement would not be an appropriate or a viable remedy on the basis of loss of confidence in the applicant's readiness to follow management's directions and conduct himself in accordance with policies and procedures - and the potential for reoccurrence. The respondent referred also to evidence matters of a medical nature related to the (contested) workers' compensation claim.

2. As to the applicant's reliance on Australian Building and Construction Commissioner v Ingham[14], the respondent drew attention to what was said in the judgment by Rangiah J:

"[9] The basis of this argument is that it was raining on 17 and 18 and part of 19 October 2017 and, under the provisions of the Building and Construction General On-site Award 2010 (the Award) and the custom and practice at the site, the workers were entitled to not work during inclement weather." (Italics in original)

[110] The respondent submitted the employees had a "statutory right" under the relevant award to not commence their duties or continue with their duties with respect to inclement weather. This is in "stark contrast" to what occurred on 2 December 2019, as the employees refused to commence work in an environment where they perceived there was an imminent risk to their health and safety and then returned to work at 8.20am to the same work environment that existed at 5.15am when they initially refused to commence duties. Here, "the employees did not have a statutory right in these circumstances to cease and not commence for work". Moreover, there was no disputation before the Commission to withdraw the written warnings issued or pay the four hours' wages which was deducted from the employees who participated in the unprotected industrial action.

[111] With respect to the applicant, he was not on leave arising from the National Employment Standards on 2 December 2019. The applicant attended the Chullora site prior to his leave commencing, to lead a meeting that was approved to take place in paid time. This meeting was approved to conclude at 5.15am at which point the applicant was authorised to leave the site and commence his delegate's leave, but he did not leave the site at 5.15am. Rather, the applicant deliberately and wilfully chose to remain at his place of work. By these actions, the applicant was both physically and emotionally invested; he chose not to commence his delegate's leave and encouraged and participated in the taking of unprotected industrial action. The applicant's actions were not protected; he was not on leave; he was on site, being paid by the respondent and, as such, was obligated to comply with management's reasonable and lawful instructions. Having regard to the matters outlined, the respondent submitted the application should be dismissed.

[112] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain criteria specified in s.387 of the Act. Section 387 reads:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[113] Before turning to a consideration of those matters in s.387 of the Act, it is apposite to first make some comments. The dismissal of the applicant was said in the respondent's case to be the result of a cumulative number of incidents. Most relevantly, these matters were the two immediately successive September 2018 warnings in relation to signing the record/s of attendance at a meeting; the September 2019 warning in relation to the period of time the applicant took off work in connection with attendance at Commission proceedings; and, most significantly, what unfolded on 2 December 2019 concerning the stoppage of work or the failure of certain employees to commence rostered work in the time period between about 5.15am and 8.20am, or thereabouts. What unfolded on 2 December 2019 was the salient matter that resulted in the eventual dismissal on 6 April 2020, with the warnings of September 2018 and 2019 forming part of the fabric in reasons for the decision-making. That is, the matters surrounding the warnings of September 2018 and 2019 were not considered by the respondent, around those relevant dates in 2018 and 2019, to be such as to proceed at that time to the disciplinary outcome of dismissal. Obviously, the applicant was not dismissed in September 2018 or September 2019; but he was dismissed in the wake of the stoppage on 2 December 2019. In the circumstances, it is relevant to examine matters concerning the events on 2 December 2019 - for it is the case that, but for what occurred in relation to that day and the respondent's consideration of matters, the applicant's employment would have (absent any other exigencies) continued indefinitely with the previous warnings lying dormant on the applicant's personnel file.

[114] I am bound to note that much of the evidence in this case seemed to me really to involve the airing of the underlying issues of disagreement about matters concerning: (a) industrial rights and obligations as between the employees generally and the respondent; (b) workplace health and safety; and (c) whether the stoppage of work on 2 December 2019 constituted unprotected industrial action. Some matters in dispute have been the subject of dispute proceedings before the Commission (and, it appeared at the time of the hearing, were still the subject of proceedings before the Commission) and other matters were in dispute, but were not escalated to the point of formal lodgement of a dispute notification with the Commission. It is not the role of the Commission in relation to an unfair dismissal application under s.394 of the Act to determine the disputed question of whether the stoppage on 2 December 2019 constituted unprotected industrial action by various employees, who were not party to these proceedings. What is known is that the respondent contends it was, whereas the applicant contends it was not. For the reasons that follow, I find that even if the stoppage did involve unprotected industrial action by various employees on 2 December 2019 the applicant was not himself personally engaged in any such alleged unprotected industrial action for the reason he was on approved leave and had no relevant duties that day that he refused to perform.

Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

[115] Section 19 of the Act deals with the meaning of "industrial action" in the following terms:

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

[116] I find, and this really is an uncomplicated conclusion derived from evidence that is common ground, that the applicant did not personally engage in industrial action of any of the kinds described in s.19(1)(a), (b) or (c) of the Act. It is immaterial to this unfair dismissal application whether the stoppage by certain other employees was unprotected industrial action or otherwise. The fact of the matter is that on 2 December 2019 the applicant had a day of respondent-approved leave and he was not rostered to perform any work at all. In consequence, it follows that the applicant could not, thereby, properly be considered to have failed or refused to perform work, return to work, or similar, in the manner contended for in the respondent's evidence and submissions, and in the dismissal letter. The applicant attended the workplace given the meeting had been arranged by him in his representative roles as union delegate and HSR (and some other employees attended who were not rostered for work relevantly scheduled to commence at or after approximately 5.15am that day), but given the pre-approved leave and consequential absence of rostered work there could have been none of the alleged failures by him personally to comply with what were described as reasonable and lawful management instructions for him to perform work. This is so notwithstanding (a) the various references in the recount provided in Mr Turnbull's evidence as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work; and similarly (b) the various references in the dismissal letter dated 6 April 2020 as to all employees, including the applicant, failing to comply with reasonable and lawful instructions to return to work.

[117] For completeness, I should add that the evidence indicated the applicant did not organise the stoppage. True it is that the applicant organised the meeting itself, but matters then took their own course, being a collective member-driven course rather than a course driven by the applicant. The evidence in such respects was uncontested, as Mr Turnbull, the only witness in the respondent's case, was not present during the meeting when matters were being propositioned (by another employee or employees) and put to a vote, and the like. If anything, the evidence indicated the applicant was effectively trying to defuse the situation in acting as a go-between in relaying the members' concerns to management. Moreover, it was the applicant's role which brought the fractious circumstances of that particular morning to a conclusion involving an end to the stoppage - because it was the applicant's discussions with Mr D'Apice, and the assurances the applicant then relayed to the members, which in fact appeared to have brought about the end of the stoppage involving certain employees.

[118] I find a valid reason for the dismissal related to the applicant's conduct did not exist in relation to the events on 2 December 2019. Given the complete falling-away of the respondent's reliance on the applicant's conduct on 2 December 2019 (i.e. as addressed in the penultimate paragraph of the dismissal letter, being the alleged withdrawal of labour constituting unlawful industrial action by the applicant and repeated failure by the applicant to comply with management's reasonable and lawful instructions to cease the taking of unprotected industrial action in breach of the provisions of clause 22 of the enterprise agreement) it is unnecessary to consider whether the circumstances concerning the earlier warnings of September 2018 and 2019 constituted a valid reason for dismissal. That is, the respondent cannot reasonably rely on these matters as stand-alone valid bases for the dismissal. As I noted earlier, the warning letters concerning these (historical) matters would have lain dormant on the applicant's personnel file but for the circumstances that unfolded on 2 December 2019 and the respondent's reliance on them in the dismissal that ensued.

[119] I find there was no valid reason for the dismissal of the applicant.

Whether the person was notified of that reason and Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

1. Having dealt with the criterion concerning valid reason, I turn now to the other criteria in s.387 of the Act. Before doing so, I note the applicant's reference to Crozier v Palazzo Corporation Pty Ltd[15] which has been again affirmed in the recent decision of the Full Bench in Mark Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services[16] which conveniently describes the established operation of s.387(b) and s.387(c) of the Act (reference not reproduced):

"[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of "that reason" - that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) - prior to the decision to dismiss being made.

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant's dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal." (Italics in original)

[121] As to s.387(b) of the Act, I find the applicant was on effective notice about the reasons related to matters concerning 2 December 2019, but there was a denial of procedural fairness concerning notification of the reasons concerning the earlier September 2018 and 2019 warnings.

[122] As to s.387(c) of the Act, I find the applicant was given an opportunity to respond to reasons related to matters concerning 2 December 2019 (and did respond), but there was a denial of procedural fairness concerning an opportunity to respond to the reasons concerning the earlier September 2018 and 2019 warnings.

[123] Although the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond in relation to the older warnings, I consider that notice and discussions around those matters would not have resulted in the possibility of a different outcome in terms of avoiding the dismissal - for the reason that the respondent appeared to have entrenched views about the events on 2 December 2019 and those views were the motivators for the dismissal rather than the older matters. I incline to the view that the outcome of dismissal was effectively preordained, regardless of matters that may have been raised by or on behalf of the applicant.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[124] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present to assist with discussions relating to the dismissal. Mr Collins of the union was present for such discussions.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[125] This dismissal did not relate to unsatisfactory performance and so warning/s about unsatisfactory performance before the dismissal do not relevantly arise.

The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal and The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[126] The respondent is a sizeable employer with in-house human resource management specialists or expertise. It was common ground that matters around the s.387(f)-(g) were effectively neutral considerations.

Any other matters that the Commission considers relevant

[127] It seems to me that the matter of most significance in relation to other matters of relevance was the markedly differential treatment of the applicant in terms of his dismissal. The applicant's evidence and submissions indicated, in sharp relief, that no disciplinary action was taken concerning certain employees (such as the Erskine Park employees); the Chullora employees who were rostered to work received written warnings; and the Chullora employees who were not rostered to work received no warnings. The applicant, alone among all his colleagues, was dismissed - and this was in circumstances where on 2 December 2019 he had pre-approved leave and was not rostered to perform any duties. I have considered the matters advanced in the respondent's case concerning the more lenient approach to employees other than the applicant, but I am not persuaded by those matters in relation to the differential approach. I infer the applicant was not afforded the leniency of the type afforded to the other employees for reasons which, on the balance of probabilities and as the submissions for the applicant contended, were more likely attributable to the applicant's role as a union delegate and/or HSR.

[128] I am satisfied the applicant has been unfairly dismissed as the dismissal was, as the applicant submitted, harsh; I am also satisfied that the dismissal was unjust and unreasonable. The decision to dismiss had elements both of substantive and procedural unfairness, and the differential treatment of the applicant was quite pronounced. I am also satisfied the applicant should have an unfair dismissal remedy. Reinstatement is the remedy that has been sought by the applicant and that is the primary remedy under the Act. I am satisfied that reinstatement is the appropriate remedy in all the circumstances of this case having regard to my consideration of all the matters advanced by the applicant together with an order to maintain continuity and, subject to the comments that follow, an order concerning lost pay. I am not persuaded (indeed there was a dearth of evidence thereto) that matters of loss of trust and confidence, or other matters relied upon by the respondent, would militate against ordering the primary legislative remedy.

[129] In view of the foregoing, the disposition of the application as to remedy is as follows.

[130] The respondent shall reappoint the applicant to the position in which he was employed immediately before the dismissal (that is, at the same grade and at the same location the applicant formerly was based at Chullora) by no later than 21 days after the date of this decision.

[131] Given that, at the time of the hearing, steps were being taken in relation to a contested workers' compensation claim involving past incapacity and the like, it seems to me that the following is appropriate. The order as to reappointment should take effect regardless of the status of the contested workers' compensation claim. If it is the case that the applicant is now fit to resume ordinary, pre-dismissal duties, any issues concerning the return-to-work under the order self-resolve regardless of the outcome of any disputed workers' compensation-related matters. If the matter of the contested workers' compensation claim results in (however described) acceptance of the workers' compensation claim and the applicant is unable to return to work within the time frame specified in the order, the physical return to work will then need to be dealt with in accordance with usual workers' compensation processes involving, for instance, a return-to-work plan with the involvement of an accredited rehabilitation provider. The Commission's order will require the reappointment; I wish to emphasise that any workers' compensation-specific arrangements or exigencies will have their own processes, and the Commission will not be involved in any of them, or dispute about them, as that would be jurisdictionally-inapt.

[132] In connection with the reappointment, I consider it is appropriate that the reappointment should be effected with continuity of the applicant's employment.

[133] In connection with the reappointment, I consider it is appropriate to make an order causing the respondent to pay to the applicant an amount of remuneration lost, or likely to have been lost, by the applicant because of the dismissal. That matter is complicated here because of the contested workers' compensation claim. For instance, if it transpires that the applicant is found to have been unfit due to a workers' compensation-related injury in the period following the dismissal, it cannot be contended that he would have been earning wages over the same period - and hence an order to restore lost pay could not relevantly arise for the particular period or periods in question. Moreover, there was no evidence before the Commission concerning:

(a) the amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[134] I direct the parties to confer on the matter of an order for lost wages and superannuation, more specifically in the context of the outcome of the contested workers' compensation claim (being an outcome which was not known at the time of the hearing). The payment in lieu of notice will also need to be taken into account, together with any payments on termination of accrued but untaken leave. If the parties are unable to reach agreement on the amount in question concerning lost pay, the matter will be relisted in 2021 to give the parties the opportunity to be heard. I will then determine the discrete matter of the amount, if any, to restore lost pay.

[135] The parties are to confer on the settlement of draft minutes of an order to give effect to these conclusions, and lodge the draft order by no later than 5.00pm on Monday 21 December 2020.

1. [1] Loata Petrunic v Q Catering Limited T/A Q Catering [2019] FWC 3981.
2. [2] Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 696.
3. [3] Rabbi Pinchas Ash v Chabad Institutions of Victoria Limited [2020] FWCFB 4448.
4. [4] Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("The North Queensland Stadium Case") [2020] FCA 947; 297 IR 151.
5. [5] Australian Building and Construction Commissioner v Ingham [2020] FCA 1632.
6. [6] Chambers v Toll Transport Pty Ltd [2020] FWC 5819.
7. [7] Stanley Sully v CBMG North Pty Ltd [2020] FWC 3509; 298 IR 1.
8. [8] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
9. [9] Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 820.
10. [10] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
11. [11] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2010] FCA 784; 187 FCR 293.

[12] Royal Melbourne Institute of Technology v Geoffrey Asher [2010] FWAFB 1200.

1. [13] Woolworths Limited t/as Safeway v Cameron Brown (PR963023).
2. [14] Australian Building and Construction Commissioner v Ingham [2020] FCA 1632.
3. [15] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.
4. [16] Mark Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429.

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