s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] On 19 June 2025, Guilherme Daniel (the Applicant) represented by the Australian Federation of Air Pilots, (AFAP) referred a dispute to the Commission for determination under s 739 of the Fair Work Act 2009 (Cth) (the Act) and the dispute resolution procedure at clause 12 of the Offshore Services Australasia Helicopter Pilots Enterprise Agreement 2023 (the Offshore Agreement)[1].

• [2] The Applicant commenced employment with Offshore Services Australasia Pty Ltd (the Respondent) (formerly Babcock Offshore Services Australasia Pty Ltd) as a First Officer Pilot on 1 January 2018. The Applicant is currently employed as a Captain performing work as a Touring Pilot and is covered by the Offshore Agreement.

• [3] The Applicant's work is performed on a touring basis over a 28-day cycle, usually consisting of a 15-calendar day tour (Tour) and 13 days of field leave. His daily duties are generally limited to 12 hours, except on the first and last days of a Tour when specific extensions may apply under clauses 42.5 and 42.8 of the Offshore Agreement.

• [4] The Applicant lives in Margaret River. It is approximately three (3) hours by car from Perth in circumstances where there are no traffic delays or stops. According to Schedule 1 of his employment contract, the Applicant's 'Home Base' is Perth Airport (home base).

• [5] The dispute centres on the Respondent's withdrawal of what the Applicant considers to be a preserved condition in terms of the Applicant's home base. It is uncontroversial that for the purpose of Appendix 4 of the Offshore Agreement, the Applicant is an 'Existing Employee' and that Appendix 4 of the Offshore Agreement provides:

Existing Employees (being Employees employed at the time of this Agreement comes into operation) shall have their conditions preserved in terms of their current domestic airport. This includes the Company paying DTA, accommodation and/or cost of airfare.

• [6] From around June 2019, the Applicant received overnight accommodation in Perth prior to commencing and on the completion of Tours (defined by the parties as the Accommodation Benefit). The parties dispute the nature and application of the Accommodation Benefit, but each accept (correctly or otherwise) it was provided by the Respondent from around June 2019 to 24 February 2025.

• [7] The Applicant's initial position was that he was entitled to the Accommodation Benefit at the Country Comfort Perth, located at 249-263 Great Eastern Hwy, Belmont WA 6104 (Country Comfort) in the following circumstances:

a) prior to flying to Karratha and Barrow Island to commence work;

b) prior to returning to his residence in Margaret River from Perth on completion of a Tour, and

c) during courses in Perth, while transiting through bases, and to/from simulator training overseas.

• [8] The Respondent's position is that the Accommodation Benefit commenced as an informal arrangement of overnight accommodation being provided in Perth after the Applicant

would arrive back to Perth from Karratha and for evening and or late arrivals in Perth.

• [9] On or about 24 February 2025, the Respondent withdrew the Accommodation Benefit, and on 19 June 2025, the Applicant lodged a Form F10 in the Fair Work Commission, disputing the withdrawal of the Accommodation Benefit.

• [10] It is uncontroversial that the Offshore Agreement was approved and commenced operation on 19 August 2024 and reaches its nominal expiry date on 30 April 2027. The 'Procedures to Avoid Industrial Disputes' within the Offshore Agreement applies to 'a grievance' or 'a dispute' arising in the workplace. If a grievance or dispute is unresolved, the employee may refer the matter to the Commission to settle it, as long as it is about matters arising under the Offshore Agreement or in relation to the application or operation of the NES. Clause 12.2.5 states that, in dealing with a dispute under clause 12, the Commission shall initially attempt to settle the dispute by conciliation and if that fails it may arbitrate the dispute. The matter had been listed for several conferences and by the time the matter proceeded to arbitration, the parties had resolved two of the five questions that were initially pressed for consideration and response. As those conciliation conferences did not resolve all issues and noting the parties wished to proceed to arbitration, I was satisfied that the Commission was authorised to determine the present dispute, and, in particular, that the parties were content for me to deal with the dispute in accordance with clause 12.4 of the Offshore Agreement.

• [11] The parties formulated five questions for determination which, in part, I considered were appropriate with the exception of Question 1.

a) Question 1: Was the Accommodation Benefit 'grandfathered' for the purposes of 'Appendix 4 - Primary / Secondary Domestic Airports' of the Agreement?

Response: an accommodation arrangement between the Applicant and the Respondent was grandfathered for the purposes of Appendix 4 of the Offshore Agreement. That accommodation arrangement was not the 'Accommodation Benefit' as defined in the Statement of Agreed Facts (SOAF).

• [13] Whilst the parties referred to an 'Accommodation Benefit' as defined in the SOAF, that definition was limited in its terms and, in my view, did not adequately reflect the nuanced arrangement entered into by the parties. Whilst the answer to Question 1 as framed by the parties, is, on the face of it, 'No', the appropriate question to have asked is as follows:

a) Whether an accommodation arrangement between the Applicant and the Respondent was grandfathered for the purposes of Appendix 4 of the Offshore Agreement, such that it existed as a preserved condition, and if so, what were the terms of that preserved condition in respect of the Applicant's current domestic airport.

• [14] As was correctly identified by the Respondent in its written submissions, the issue in dispute was what the 'legacy arrangement actually was'.[2] Therefore, Question 1 as drafted by the parties failed to reflect and address the dispute between the Respondent and Applicant in accordance with the appropriate characterisation of the dispute.

• [15] On 25 November 2025, directions issued to the parties regarding the issue identified with Question 1. Parties appeared to have accepted the Commission's reframing of Question 1, having provided supplementary submissions in response to the reframed question. Briefly stated, the Applicant is entitled to the preserved condition of an accommodation arrangement, as described at paragraphs [78]-[80] of this decision.

• [16] In respect to Question 2 the following was asked, and my response is provided accordingly:

Question 2: If the answer to Question 1 is "No", is the Applicant entitled to the Accommodation Benefit under clause 3.4.3(a) of the Applicant's employment contract dated 8 February 2025?

Response: Whilst the answer to Question 1 was initially 'No", on the reframing of Question of 1, I find that the Applicant is entitled to the preserved condition of an accommodation arrangement under the Offshore Agreement, as described at paragraphs [78] to [80] of this decision. It follows that it is unnecessary to consider a response to Question 2.

• [17] Question 3, or rather the 'sub-questions 'of Question 3, are relevant given the affirmative answer provided in respect of the reframed Question 1. However, I consider it first necessary to address Questions 3(iii) and (iv). Those questions were as follows:

(iii) At the commencement of a Tour, was there a defined period of time for departure from the home base that would trigger access to the Entitlement, and if so, what was the defined period?

(iv) At the conclusion of a Tour, was there a defined period of time for arrival at the home base that would trigger access to the Entitlement, and if so, what was the defined period?

• [18] The answers to Question 3 (iii) and (iv) are 'No'.

• [19] As to Question 3 (i), which is set out below, the Respondent is required to reimburse the accommodation booked by the Applicant for the period commencing 24 February 2025 up until the date of this decision:

(i) Is the Respondent required to reimburse accommodation booked by the Applicant for the period commencing 24 February 2025?

(ii) Should the Accommodation Benefit be specifically provided at the Country Comfort, or at any available accommodation in accordance with 'Appendix 2 - Accommodation Standards' of the Agreement?

• [21] The default position is that the accommodation arrangement between the Applicant and Respondent is such that it requires the Respondent to provide accommodation at the Country Comfort and if that is not reasonably available, then other suitable accommodation is to be arranged. The accommodation arrangement between the Applicant and the Respondent is not referrable to Appendix 2 - Accommodation Standards of the Agreement.

• [22] The parties initially disagreed as to the nature and application of the Daily Travel Allowance (DTA Benefit) but appear to have resolved that dispute. The parties now agree that the Applicant is entitled to a DTA Benefit in accordance with clause 25.6 of the Offshore Agreement. Therefore, in respect to questions 4 and 5 which follow, the parties have arrived at their own conclusions, and accordingly have informed the Commission it is unnecessary to contemplate a response to:

1. As per Schedule 2(1) of the Contract and clause 25.6 of the Offshore Agreement; or
2. As a "grandfathered" arrangement pursuant to Appendix 4 of the Agreement, when the Applicant overnight in Perth and for all simulator training and work-related courses in Perth?

e) Question 5: If the answer to Question 4 is (ii), is the Respondent required to pay the DTA Benefit for the period commencing 24 February 2025?

• [23] The following background information has been extracted from:

a) the SOAF;

b) the evidence of the Applicant and David Stephens, Senior Industrial Officer of the AFAP, on behalf of the Applicant; and

c) the evidence of Maretta Catlin (Catlin), Flight Operations Manager, on behalf of the Respondent.

• [24] It is uncontroversial that Catlin, as Flight Operations Manager, is responsible for the business and operation of the Flight Operations Department.

• [25] CHC Helicopter Group completed its acquisition of Babcock International's offshore oil and gas aviation business on 1 September 2021. Babcock formally changed its legal name to Offshore Services Australasia Pty Ltd on 21 September 2021 and continues to operate under this entity (the Respondent).

• [26] The Respondent currently provides offshore helicopter services from bases in Mungalalu-Truscott, Darwin, Karratha and Barrow Island.

• [27] To provide those services, the Respondent employs pilots (First Officers and Captains), engineers, operations and ramp officers, as well as administrative roles such as quality and safety and payroll personnel.

• [28] As noted, the Applicant is a Touring Pilot which means he is required to travel to and from work, from one of the abovementioned bases of the Respondent.

• [29] Pilots who tour to Karratha will travel to Karratha on a commercial flight from Perth, whilst Pilots who tour to Barrow Island travel on Charter flights. Indicative flight schedules to/from each of Karratha and Barrow Island are set out below.

• [30] The Respondent will book a pilot's travel from their from their home base. The particular flight that a pilot is booked on, both to and from their home base, will be determined by operational demands, considerations of the Respondent's industrial obligations, and flight availability each Tour.

• [31] It was the Applicant's evidence that he could not recall booking any accommodation before his Accommodation Benefit was suspended.[3] Further, he understood that there were not any hard rules which governed whether or not accommodation would be booked on a given occasion.

• [32] As to how the Accommodation Benefit arose in the first instance, the Applicant referred to an email dated 12 July 2019 from Mr Jonathon Bands (Bands), former HR Manager of the Respondent, to the pilot group (Bands' email). Bands' email set out, amongst other things, the following:

The issue of sensible/safe travel planning from Karratha at the end of a roster cycle has been reviewed. On the one hand we have a responsibility to ensure that everyone gets home safely, including management of fatigue while travelling. On the other hand we understand that everyone wants to get home as soon as possible and we have no intention of causing unnecessary delay. After consideration of the issue we have decided that the following measures will apply:

• Overnight accommodation will be available in Perth for anyone who wants it.
• For those that choose to travel through, you are required to use public transport (or be driven home by another person) on arrival at your destination airport. The Transfer Allowance provided in touring contracts is available to cover these costs.
• Where these options are not possible, you are required to overnight in Perth before travelling on. This is essential to ensure that you are not driving home while fatigued.

These provisions will be written up in a policy document and issued via Air Maestro.[4]

• [33] The Applicant held the view that Bands' email formed the basis for his Accommodation Benefit, that is, Bands' email gave rise to the Respondent providing to the Applicant an Accommodation Benefit. As to the standard of accommodation the Respondent would provide to the Applicant, the default was the Country Comfort. However, if the Country Comfort was not available then, according to the Applicant, any other accommodation would be suitable.

• [34] In respect of booking accommodation, it was the Applicant's evidence that the decision to provide the Applicant with accommodation was based on the exercise of common sense between the Applicant and Respondent. The Applicant did not agree with the proposition that the operations teams would book accommodation when it assessed it as being reasonably necessary in all the circumstances.

• [35] In respect of Bands' email, the Applicant detailed that the arrangement outlined in Bands' email was also extended to before his Tour to Karratha or Barrow Island, because the Respondent was aware that he resided in a regional are of Western Australia.[5] Furthermore, the Applicant stated that accommodation was provided when he had to overnight transiting from one base to another or to travel for simulator training and any course or work-related commitment in Perth for the same reason that he lived regionally.[6] It was the Applicant's evidence that these entitlements (inclusive of the DTA) ware given effect by verbal agreement and had been in place since 2019 (therefore the Applicant had been operating under these entitlements for six years).

• [36] The Applicant stated that around 2023, negotiations commenced for an enterprise agreement between the pilots' representatives and the Respondent.

• [37] Prior to voting on the enterprise agreement, the Applicant contacted the Respondent's HR Manager on 20 June 2024, to seek confirmation that his existing Accommodation Benefit and DTA would be kept and grandfathered. By email dated 20 June 2024, Helen Redmond (Redmond) responded that there was no intention to change existing arrangements so whatever was currently in place from the Applicant's home to Perth would continue.[7]

• [38] In June 2024, voting on Offshore Agreement took place. The Respondent's Head of Australia, Cameron Dixon, issued a 'Memo' to the pilots that explained, amongst other matters, the following:

After in excess of twelve months of bargaining, the Company, Pilot Representatives and the AFAP have finalised drafting of the above referenced EA. Please refer to Appendix 1 for terms in which in principle agreement was reached including applicable grandfathering arrangements.

In line with the requirements of the Fair Work Act 2009, the Company has an obligation to ensure that all employees who will be covered by the new Agreement have access to the new Agreement and any documentation referenced in the new Agreement.

The terms for reaching in principle agreement were as follows:...

Subject to the successful ballot of employees, the following grandfathering arrangements will apply for employees (where their current arrangements are either identical to or more advantageous than those contained within the new EA. Any allowances and overnight accommodation where applicable will continue to be paid by the Company from the current Home Base for those pilots under grandfathered arrangements. To be clear, most pilots under the new EA will as a result have a new home base that better reflects their actual domicile arrangements whilst some pilots may see no change as their contract with OSA already reflects the EA arrangements. Further, a small number of pilots who live regionally will retain any legacy arrangements as a result of grandfathering... [8]

• [39] Several months after the approval of the Offshore Agreement, in February 2025, the Applicant requested accommodation to be booked in Perth in the hotel he usually stayed in upon his arrival after his Tour. That email stated:

Can you please book me on the QF 1735 tomorrow, please? There's no flight at 1600, only this one at 1710.

Would you also please book me a hotel (Country Comfort if possible please) to overnight in Perth as I will be flying tomorrow on the line and will get to Perth tire to drive home with over 12 hour duty, this is part of the agreement I always had with the company and had been grandfathered.

• [40] That accommodation was denied by the Respondent. On 10 February 2025, the Applicant emailed the Operations Centre Analyst and the Operations Regional Manager and asked for the matter to be resolved on a more permanent basis. By email dated 11 February 2025, the Applicant received confirmation that accommodation had been booked for that night (whilst the Country Comfort was unavailable, alternative accommodation had been booked).[10]

• [41] Catlin gave evidence that the Respondent would provide and book accommodation for the Applicant before and after Tours, and when asked, Catlin confirmed that the reason for the Respondent doing so was, she assumed, fatigue related.[11] When it was proposed to Catlin that Bands' email represented the Respondent proactively mitigating fatigue to enhance pilot safety, Catlin agreed.[12] Similarly, Catlin agreed that Bands' email signified that the availability of accommodation was at anyone's discretion, with 'anyone' being the pilot.[13]

• [42] It was proposed to Catlin that in respect of Bands' email, a pilot's request for accommodation based on their personal assessment of fatigue or their risk of it would be consistent with that policy. Catlin agreed.

• [43] However, at paragraph 16 of Catlin's witness statement, Catlin explained that there 'certainly was never an absolute entitlement for Mr Daniel to have accommodation booked for him whenever he personally decided that he wanted it or that it was appropriate.'[14] In giving her evidence, Catlin noted that it was the Respondent's management that decided to book accommodation. However, on persistently being questioned on the matter by the Industrial Lawyer of the AFAP, Catlin acknowledged that having read Bands' email and understanding its nexus to safety, that paragraph 16 of her witness statement did not appear to be accurate.[15]

• [44] At paragraph 15 of Catlin's witness statement, Catlin gave evidence that she 'understood' that since around 2019, the Operations Team had booked accommodation for the Applicant in Perth on those occasions where, in the Respondent's view, the departure/arrival time of flights were such that it was unreasonable to require the Applicant to travel to/from Margaret River the same day as his flight. Catlin acknowledged that the Respondent's fatigue management protocols would need to be taken into account in that assessment (of whether accommodation would need to be booked).[16]

• [45] Annexed to Catlin's witness statement at Annexure MC-2 was a copy of the Respondent's Fatigue Risk Management System (FRMS). Catlin agreed that the Respondent and the Applicant were obliged to comply with the FRMS. Catlin was referred to part 4.4 of the FRMS (paragraphs one and three) and asked whether the paragraphs reinforced that a pilot's self-assessment of fatigue is paramount, which Catlin replied 'Yes, correct.'[17] Similarly, Catlin was taken to the Respondent's Fatigue Risk Management Policy at page 6 of that 'Policy' and was asked by the Industrial Lawyer of the AFAP whether it was fair to say that a particular passage strongly suggested or confirmed that a pilot holds discretion to determine their need for risk (fatigue-related), to which Catlin replied in the affirmative.[18] The passage in question included:

Offshore Services Australasia (OSA) provides helicopter services to support the offshore oil and gas industry. This role can provide unique challenges and requires Flight Crew Members to perform at the highest levels of competence and professionalism at all times. It also means that we can be exposed to elevated fatigue-related risks. It is important that fatigue-related risk is managed effectively in order that when decisions are made, they are consistently sound, particularly to balance the needs of clients with the requirement of safe operations. This can only be achieved through the shared responsibility and commitment of management and all employees to ensure that fatigue-related risks remain acceptable.[19]

• [46] Catlin was, in addition, taken to the third dot point in part 3.11 of the FRMS, which is set out below. It was pointed out to her that management's obligation to openly accept that the crew cannot be required to perform duty (in certain circumstances) was reiterated in the third dot point, and that the discretion for making the call was with the pilot and that the pilot must have reason to believe that they are suffering, or will likely suffer, from fatigue.[20] Catlin agreed with the proposition.[21] Part 3.11 reads:

...accepting that there may be occasions to displace crew from duty if the Flight Crew Members have reason to believe that they are suffering from or likely to suffer from fatigue which may impair their performance and affect the safety of the operation...[22]

• [47] On or about 24 February 2025, the Respondent withdrew the Accommodation Benefit. The letter to the Applicant set out the following:

I am writing to clarify your entitlements regarding home base travel requirements, specifically the provision of overnight accommodation when traveling between your residence and your home base airport (Perth).

As outlined in the Offshore Services Australasia Helicopter Pilot's Enterprise Agreement 2023 (OSA Pilots EA), any required overnight accommodation is to be covered by the employee. A recent review has identified that this provision has been incorrectly applied since 19 August 2024.

We acknowledge that an informal arrangement was in place prior to the commencement of the OSA Pilots EA. As a result, the company will not seek to recoup any overpayments made due to this misapplication.

We understand this change may be challenging. To support you, I am open to exploring options to base you out of Karratha to assist with the early travel requirements for Barrow Island crews.

Thank you for your understanding and cooperation. Please feel free to reach out if you would like to discuss this further.[23]

• [48] On 19 June 2025, the Applicant lodged a Form F10 in the Fair Work Commission, disputing the withdrawal of the Accommodation Benefit.

• [49] The issue between the parties centres on what conditions are preserved in terms of the Applicant's current domestic airport (or as described in the Memo, the legacy arrangements that remain in place as a result of grandfathering...) under the Offshore Agreement. This is ultimately a question of fact and therefore turns on the evidence before me. However, Appendix 4 of the Offshore Agreement is clearly of significance in this matter.

• [50] It has been said that in construing an award or an enterprise agreement the task is one of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted.[24]

• [51] The principles relevant to construing an enterprise agreement are well-known and uncontroversial. These were summarised by a Full Court of the Federal Court of Australia in WorkPac Pty Ltd v Skene as follows:

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).[25]

• [52] The interpretation of Appendix 4 will be informed by the Memo and in particular, the following text of the Memo, namely: 'a small number of pilots who live regionally will retain any legacy arrangements as a result of grandfathering'. It is accepted that the Applicant is an 'Existing Employee' and for the purpose of the Offshore Agreement, I find that he lives 'regionally'. As to the turn of phrase, 'shall have their conditions preserved in terms of their current domestic airport', I note that neither party endeavoured to give meaning to the word 'condition' in this context. The starting position is that the word assumes its ordinary meaning, that being, an essential part of an agreement. That meaning accords with the context in which the 'word' is found rather than attributing to it a meaning that extends to a breach of the 'condition' entitling a party to terminate a contract and claim damages.

• [53] As noted, the Applicant contends that he is entitled to the 'Accommodation Benefit' at the Country Comfort prior to flying to Karratha and Barrow Island to commence work and prior to returning from Perth to his residence in Margaret River, and also during courses in Perth, while transiting through bases, and to/from simulator training overseas. In circumstances where the Country Comfort is not available, at hearing the Applicant confirmed that any other accommodation would be suitable.

• [54] The Applicant submitted that he had historically requested the Operations Department to arrange accommodation when he considered himself at risk of fatigue and on early departures, such as the 5:40AM flight out to Barrow Island. According to the Applicant, the provision of that accommodation became a standing booking. The Applicant said that at other times the booking was determined in consultation with the Operations Department.

• [55] It is the Applicant's position that the genesis of the Accommodation Benefit was Bands' email. However, the Accommodation Benefit, as pressed by the Applicant, is broader in its terms than what was contemplated in Bands' email. It encompasses the provision of accommodation prior to a Tour and on completion of a Tour in addition to its provision in circumstances as described at paragraph [83] of this decision. According to the Applicant, he forged his own arrangements with the Respondent which resulted in the extension of the benefit since 2019. Whilst those arrangements were not reduced to writing within the one document the Applicant submits that the Respondent failed to impeach any of the paragraphs ([9]-[15]) in his witness statement dated 5 September 2025), and that the Respondent presented no credible evidence to the contrary that could withstand scrutiny during cross examination.

• [56] It is evident that over time, a verbal agreement or agreements were reached between the Applicant and the Respondent concerning an accommodation arrangement for the Applicant, and, in my view, the parties subsequently engaged in conduct which emulated that arrangement in respect of the provision of accommodation.

• [57] The Respondent for its part accepts that any legacy accommodation arrangement between it and the Applicant (prior to the operation of the Offshore Agreement) is preserved.

• [58] The Respondent submits that the legacy arrangement was not an absolute entitlement to accommodation in Perth prior to/at the conclusion of each Tour the Applicant was rostered to work - instead, it was an entitlement to be provided with accommodation when the departure time (or return time) of the flight the Respondent booked for the Applicant meant that it was, in the view of the Respondent, unreasonable to require the Applicant to drive from (or back to) his residence in Margaret River on the same day as his flight.

• [59] Whilst the Respondent accepts that an accommodation benefit was grandfathered, it highlights that Question 1, as framed by the parties, is concerned with the defined term 'Accommodation Benefit'. The defined term 'Accommodation Benefit' as agreed between the parties takes on the connotation of an entitlement to accommodation in Perth prior to and at the conclusion of all tours, without regard to the departure and arrival time of the Applicant's flights. The Respondent submitted that having regard to the breadth of the entitlement contemplated by the defined term 'Accommodation Benefit', the answer to Question 1 must be 'no'.

• [60] Regarding the newly framed Question 1, the Respondent continues to submit that the arrangement was described by Catlin at paragraphs [15] and [16] of her witness statement, and that it has endeavoured to develop a form of words to reflect that arrangement as expressed in paragraph [58] of this decision. That is, whilst the arrangement (as evidence by past practice) was not determined strictly by flight time, flight times were (entirely rationally) a significant consideration in the Respondent's assessment of whether it was reasonable to require the Applicant to undertake further travel on the relevant day.

• [61] The Respondent submits that the Applicant accepted that: (a) the accommodation arrangement was not an entitlement to accommodation before/after every Tour; and (b) whether accommodation was provided was not determined exclusively by scheduled flight times. The Respondent therefore asserts that there must have been some process by which it was determined whether accommodation would be provided in connection with a particular Tour - the decision was not one that made itself.

• [62] It is the Respondent's opinion that there are two theoretical alternative 'processes' by which that entitlement could have been determined; namely:

a) the Operations Department made an assessment on each occasion; or

b) the Applicant personally made an assessment as to whether accommodation should be booked for him.

• [63] The Respondent presses that the difficulty with the second of these alternatives is that there is absolutely no record of any evidence of any communication between the Applicant and the Respondent as to whether accommodation would be booked on each occasion. The Respondent contends that absent such communication, it plainly was not the Applicant making the decision.

• [64] The Respondent states that the past practice (and therefore, the arrangement that was grandfathered) was one that involved the Respondent assessing whether it was unreasonable to require the Applicant to drive to/from his residence in Margaret River on the same day as his flight and then booking accommodation for the Applicant when it formed the view that it was. This practice accords with the evidence of Catlin at paragraphs [15] and [16] of her statement, and Catlin was, says the Respondent, the only witness called who was in a position to depose to the Respondent's internal processes.

• [65] Essentially, the Respondent argues that the fetter that applied to the accommodation arrangement was never one that turned on the Applicant's subjective assessment - it was the Respondent that determined whether or not accommodation would be booked, and that turned on whether the departure time (or return time) of the flight the Respondent booked for the Applicant meant that it was unreasonable to require the Applicant to drive from (or back to) his residence in Margaret River on the same day as his flight.

• [66] The Respondent adds that whilst that assessment would of course be informed (and in many respects dictated by, in the sense that the Respondent would not act inconsistently with) considerations under work health and safety legislation and the Respondent's fatigue management policy, that is a different proposition from some arrangement which, as the Applicant suggests, turned simply on his own assessment of whether he should have accommodation on a particular occasion.

• [67] The Respondent's submissions as outlined in the preceding two paragraphs present a cogent proposition whereby the employer retains overall managerial prerogative informed by the requirement to not act inconsistently with work health and safety legislation. However, the facts do not align with the Respondent's proposition.

• [68] Fact finding in this matter is somewhat hampered by the paucity of evidence concerning the subject in issue. Further, the Applicant has asked me to draw an adverse inference about the absence of Mr Higgins (Higgins), Head of Flying Operations, who had informed the Applicant of the withdrawal of his accommodation arrangement.

• [69] Essentially, the Applicant appeared to contend that the Commission must draw an adverse Jones v Dunkel[26] inference. The rule in Jones v Dunkel has been described as a 'rule of common sense and fairness in relation to the fact finding process'.[27] In Hyde v Serco Australia Pty Ltd,[28] the Full Bench observed that the rule in Jones v Dunkel had been considered extensively in Tamayo v Alsco Linen Service Pty Ltd ('Tamayo')[29] and outlined the observations made in that case. Observing that the Commission was not bound by the rules of evidence, that it could inform itself in relation to a manner as it considers appropriate and that the Commission must perform its functions and exercise its powers in a manner that is 'fair and just', the Full Bench adopted the Tamayo observations. It continued that as the 'rule' in Jones v Dunkel is fundamentally concerned with issues of fairness, the Commission will give consideration to its application in an appropriate case. It is, of course, accepted that when exercising discretion concerning the rule in Jones v Dunkel, the discretion is to be exercised in accordance with the dictates of common sense and fairness.[30]

• [70] A Jones v Dunkel inference can be drawn where there is a conflict in the evidence on particular issues and there is an unexplained failure to call someone to explain that conflict. Whilst Higgins ultimately authorised the withdrawal of the accommodation arrangement, it is unclear, in my view, why Higgins' evidence would have illuminated the answer to the reframed Question 1. It is apparent from the Respondent's submissions that Catlin was the only witness called who was in a position to depose to the Respondent's internal processes. Whilst I do not agree with that proposition so far as it encompasses the evidence of the Applicant, I see no reason to depart from the proposition in respect of the Respondent's own employees. I therefore decline to draw an adverse inference in the circumstances.

• [71] In its closing submissions the Respondent similarly urged me to draw an adverse inference regarding the Applicant's failure to call Ms Karen Pienaar (Pienaar), Operations Manager, who it would seem previously worked in the Respondent's operations prior to the CHC Helicopter Group's acquisition of Babcock International's aviation business (and its move from Adelaide to Perth). The Applicant explained that having spoken to Pienaar in or around the time after his application was filed, Pienaar had expressed that she did not want to get involved. I accept the Applicant's explanation that Pienaar had expressed that she did not want to get involved. However, I do not accept that I should draw an adverse inference regarding Pienaar having not been called by the Applicant. The Applicant's submissions are suggestive that the genesis of the accommodation arrangement was Bands' email and that the arrangement was further forged and carried on by Pienaar. From the evidence, it would appear that were Pienaar to give evidence it would, at the most, be relevant in respect of the accommodation arrangement for the period of 2019 to 2021. Whilst the genesis of the accommodation arrangement is of interest and proves relevant, more pressing is the evidence of the arrangement prior to the Offshore Agreement coming into operation at a time when the Applicant sought confirmation that the accommodation arrangement would be maintained (June 2024). I simply observe that Redmond took no issue with, and it would seem undertook no further enquiry into the particulars of, the accommodation arrangement as explained by the Applicant in his email to her dated 20 June 2024.

• [72] Based on the evidence before me, I have arrived at the following factual findings.

• [73] As to whether the accommodation arrangement between the parties constitutes the Accommodation Benefit as defined by the parties, that is not the case. This is because the Applicant does not possess an unfettered entitlement to be provided accommodation before the commencement of a Tour and on the conclusion of a Tour that the Applicant is rostered to work whilst residing regionally in Margaret River.

• [74] The Respondent, incorrectly in my view, asserts that Catlin was the only witness called who was positioned to depose to the Respondent's internal processes. At paragraph [15] of Catlin's witness statement, Catlin refers to her 'understanding'. Whilst that understanding may have arisen from information provided to her, Catlin has not identified the personnel who have attested to this arrangement or contemporaneous documentation that supports her evidence. At paragraph [16] of Catlin's witness statement, Catlin asserts that there was certainly never an absolute entitlement for the Applicant to have accommodation booked for him. Again, there is little in the way of collaborating evidence that supports this view.

• [75] Insofar as Catlin is purportedly the only witness positioned to speak to the Respondent's internal processes, that is not the case. The Applicant details that the accommodation arrangement has been in place since 2019. There is no argument advanced to the contrary and it follows that his knowledge of the arrangement is comprehensive and prolonged. The Applicant presented his evidence in a forthright manner and made concessions where appropriate - particularly around the provision of the Country Comfort and alternative accommodation where that hotel was unavailable.

• [76] I prefer the evidence of the Applicant where identified, based on several factors. First, in the two circumstances referred to in the evidence where there was an issue in respect of booking accommodation at the Applicant's request, that is, the Respondent initially declined the Applicant's request to book the accommodation, those circumstances were rectified by the Respondent such that accommodation was booked (until such time as it was unilaterally withdrawn in February 2025). Second, the direct evidence adduced by the Applicant[31] and the evidence provided by Catlin, supports a finding of accommodation having been provided by the Respondent, and, in respect to Catlin's evidence, that accommodation was provided for each 5:40AM flight listed at the Country Comfort (or otherwise Quest East on 31 January 2024). Third, from the evidence provided by the Applicant, it appears that it was the Applicant who would make the request of the Respondent, who would then respond accordingly in booking the accommodation - until such time as it unilaterally stopped. Fourth, it was not the case that the end of every rostered Tour would attract the booking of accommodation, indicating that the provision of the accommodation at this time was not simply an automatic function, but evidently required, as noted, the Applicant's self-assessment of fatigue and consideration by both the Applicant and the Respondent as to whether the provision of accommodation in that context was reasonable. It appears that apart from the two occasions where the Applicant reports meeting some initial resistance from the Respondent in booking the accommodation, accommodation was provided on the Applicant's request or in accordance with the following arrangement:

It works for both Barrow Island on Mondays before my tour starts on Tuesdays or for Karratha upon my return to Perth late afternoon / evening after my tour.[32]

• [77] The Respondent's position is that the accommodation arrangement commenced as an informal arrangement of overnight accommodation being provided in Perth after the Applicant would arrive back to Perth from Karratha and for evening and or late arrivals in Perth. While that may have been the genesis of the arrangement, that informality evolved into a formal arrangement by the conduct of the parties and Redmond's confirmation that for the purpose of the Offshore Agreement, there was no intention to change the Applicant's existing arrangements so that what was currently in place prior to the operation of the Offshore Agreement would continue. That is, the accommodation arrangement would constitute a preserved condition for the purpose of Appendix 4.

• [78] There is an accommodation arrangement between the Applicant and the Respondent that includes that the Applicant will be provided accommodation prior to Tour commencement where the scheduled flight departure time is 5:40AM from Perth to Barrow Island and the Applicant has requested the provision of accommodation. This finding is borne out of the evidence of Catlin and the Applicant.

• [79] Where the scheduled flight departure time from Perth differs from 5:40AM (irrespective of the destination), the decision to provide the Applicant with accommodation when he has requested it, is based on the exercise of common sense by the Applicant and Respondent. This inevitably requires the parties to exercise reasonableness in making such decision, taking into account and giving weight to the Applicant's self-assessment of fatigue.

• [80] In respect of the provision of accommodation at the conclusion of a Tour, I am again persuaded by the evidence of Applicant that the decision to provide the Applicant with accommodation in this circumstance is based on the Applicant having returned from Karratha to Perth in the 'late afternoon / evening' after his Tour, the Applicant requesting accommodation and the parties exercising common sense in deciding whether accommodation is to be provided. Common sense in this respect would again involve taking into account and giving weight to the Applicant's self-assessment of fatigue.

• [81] The important factor here is not that the flight is incoming from Karratha, but rather the arrival time and the issue of fatigue. There are evidently some occasions where the Applicant has arrived from Karratha at 6:05PM and was provided accommodation at the Country Comfort (10 June 2024) and on another occasion was not (7 May 2024).

• [82] At this juncture, it is important to highlight that except for the reticence displayed by the Respondent from August 2024 to book the Applicant's flights (as reported by the Applicant) and the denial of accommodation to the Applicant on or around 10 February 2025, the accommodation arrangement between the Applicant and the Respondent had proceeded up until 24 February 2025 absent interruption. That accommodation arrangement consists of the conditions preserved in terms of the Applicant's current domestic airport as described at paragraphs [78]-[80] of this decision. Those preserved conditions have been 'grandfathered' for the purposes of 'Appendix 4 - Primary/Secondary Domestic Airports' of the Offshore Agreement. It is anticipated that rather than the parties adopting an adversarial and dogged approach to the accommodation arrangement such that the exercise of common-sense results in disputation, the parties will approach the accommodation arrangement in the cooperative spirit that clearly ensued for a period from some four to five years prior to August 2024 and thereafter until 10 February 2025.

• [83] I should add that the accommodation arrangement extends to the provision of accommodation to the Applicant when attending courses in Perth, while transiting through bases, and to/from simulator training overseas.

• [84] However, as is the case with the provision of accommodation to the Applicant before the commencement of, and after the conclusion of, Tours, the parties are to exercise common-sense regarding the provision of accommodation. Again, this would involve taking into account and giving weight to the Applicant's self-assessment of fatigue. This is because, it does not appear that the Applicant had an unfettered right to accommodation when undertaking training, transiting or attending courses. The evidence of Catlin shows that on 19 June 2024 the Applicant departed Perth for Singapore at 12:10PM for training and accommodation was not provided the night prior. In the circumstances, it may be inferred that the parties considered that the flight time from Perth of 12:10PM did not require the provision of accommodation in those circumstances.

• [85] In respect to Question 2 the following was asked, and my response is provided accordingly:

Question 2: If the answer to Question 1 is "No", is the Applicant entitled to the Accommodation Benefit under clause 3.4.3(a) of the Applicant's employment contract dated 8 February 2025?

• [86] Whilst the answer to Question 1 was initially 'No', on the reframing of Question of 1, I find that the Applicant is entitled to the preserved condition of an accommodation arrangement under the Offshore Agreement, as described at paragraphs [78]-[80] of this decision. It follows that it is unnecessary to consider a response to Question 2.

• [87] Before embarking on the consideration of sub-questions 3(i) to (iv), it is necessary to address the Respondent's submission that in circumstances where the Applicant was never entitled to the 'Accommodation Benefit' as that term is defined in the SOAF, such that each of Question 1 and Question 2 must be answered 'no', the matters the subject of Question 3 are not referred for arbitration. However, as will be apparent at this point, Question 1 has been reframed to address the correct characterisation of the dispute. An affirmative response to Question 1 has been arrived at, such that there was an accommodation arrangement between the Applicant and the Respondent that persists as a preserved condition under Appendix 4 of the Offshore Agreement. In those circumstances, I consider it appropriate to address the sub-questions of Question 3.

• [88] Questions 3(iii) and (iv) ask whether there a defined period of time for departure from the home base or for arrival at the home base that would trigger an entitlement to the preserved condition. The questions are as follows:

(iii) At the commencement of a Tour, was there a defined period of time for departure from the home base that would trigger access to the Entitlement, and if so, what was the defined period?

(iv) At the conclusion of a Tour, was there a defined period of time for arrival at the home base that would trigger access to the Entitlement, and if so, what was the defined period?

• [89] As will be evident from my response to Question 1, where the departure time from the home base is 5:40AM, then the preserved condition is triggered such that accommodation is to be provided prior to the commencement of the Tour. Otherwise, there is no definite period of time for departure or arrival, as referred to in Questions 3(iii) and (iv).

1. Should the Accommodation Benefit be specifically provided at the Country Comfort, or at any available accommodation in accordance with 'Appendix 2 - Accommodation Standards' of the Agreement?

• [91] As to whether the accommodation arrangement requires the provision to the Applicant of accommodation at the Country Comfort, I find that this is the default position. However, as acknowledged in the Applicant's evidence, I find that if the Country Comfort is not reasonably available, then any other accommodation would be suitable. However, it is to be appreciated that the Applicant's evidence in this respect was provided in circumstances where, in cross examination, he was confronted with many questions on the topic. It follows that when the Applicant confirmed that another hotel would be very much 'suitable', I am of the view he did so in circumstances where the hotel provided was considered to be 'suitable' - to the extent it essentially mirrored the accommodation of the Country Comfort. The accommodation arrangement between the Applicant and the Respondent was not referrable to Appendix 2 - Accommodation Standards of the Agreement.

• [92] Question 3(i) asked the following question:

1. Is the Respondent required to reimburse accommodation booked by the Applicant for the period commencing 24 February 2025?

• [93] The Respondent contends that there is no basis, or indeed mechanism, for the Applicant to be reimbursed in circumstances where the 'Accommodation Benefit' was denied. The Respondent asserts that even on the Applicant's case, the Accommodation Benefit was not for the payment of a monetary amount to the Applicant, but rather for the Respondent to book accommodation for the Applicant. The Respondent further contends that compliance with the 'legacy arrangement' and the Offshore Agreement therefore did not require the Respondent to pay the Applicant a monetary sum. It is the Respondent's position that the most the Commission could do is determine that the Applicant was indeed entitled to the Accommodation Benefit during the relevant period. If the Commission were to so find, then, says the Respondent, it is likely the parties would be able to resolve the matter between themselves. If not, any claim for monetary compensation for the failure to extend a non-monetary entitlement would need to be pursued in an appropriate forum.

• [94] As will be apparent from the preceding findings, an accommodation arrangement between the Applicant and the Respondent was grandfathered for the purposes of Appendix 4 of the Offshore Agreement, such that it existed as a preserved condition, and the terms of that preserved condition in respect of the Applicant's current domestic airport can be summarised as follows:

a) the Applicant will be provided accommodation prior to the Tour commencement where the scheduled flight departure time is 5:40AM from Perth to Barrow Island and the Applicant has requested the provision of accommodation;

b) where the scheduled flight departure time from Perth differs from 5:40AM (irrespective of the destination), the decision to provide the Applicant with accommodation when he has requested it, is based on the exercise of common sense by the Applicant and Respondent. This inevitably requires the parties to exercise reasonableness in making such decision, taking into account and giving weight to the Applicant's self-assessment of fatigue;

c) the decision to provide the Applicant with accommodation after the conclusion of a Tour, is based on the Applicant having returned from site to Perth in the 'late afternoon / evening', the Applicant requesting accommodation and the parties exercising common sense in deciding whether accommodation is to be provided. Common sense in this respect would again involve taking into account and giving weight to the Applicant's self-assessment of fatigue; and

d) the accommodation arrangement extends to the provision of accommodation to the Applicant when attending courses in Perth, while transiting through bases, and to/from simulator training overseas. However, as is the case with the provision of accommodation to the Applicant before the commencement of, and after the conclusion of, Tours, the parties are to exercise common sense in deciding whether the Applicant is to be provided with accommodation. Again, this would involve consideration of and giving weight to, the Applicant's self-assessment of fatigue.

• [95] The Respondent, for its part and as noted, argues that given the accommodation arrangement did not require the payment of a monetary amount to the Applicant, but rather that the Respondent book accommodation for the Applicant, there is no basis for, or indeed mechanism for, the Applicant to be reimbursed. However, it strikes me as a relatively simple exercise for the Applicant to quantify the amount he has spent on accommodation, which otherwise would have been booked and paid for by the Respondent in the relevant period. Further, there exists a mechanism to compel such payment from the Respondent to the Applicant.

• [96] The dispute before me arises under an enterprise agreement established under Part 2-4 of the Act, in which those covered by that agreement have agreed to resolve certain disputes in accordance with a dispute resolution procedure that was struck as part of the bargain in making the Offshore Agreement. That procedure clearly sets out the type of dispute that clause 12 lends itself to, the steps that those covered are required to take as part of the procedure and an acceptance that a party may refer a dispute to the Commission where ultimately, if the Commission is unable to resolve the dispute through conciliation, it has discretion to arbitrate the dispute and therefore make a determination that is binding on the parties. Clause 12.5 of the Offshore Agreement sets out that the 'decision of the Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench' of the Commission. It continues, '[i]n this respect the Commission is given the same powers that it would otherwise have in dealing with an appeal under the Act.'.

• [97] In my view, and as expressed in Construction, Forestry, Maritime, Mining and Energy Union v Falcon Mining Pty Ltd ('Falcon'),[33] the Commission's power to arbitrate disputes pursuant to applications under s 739 arises from the enterprise agreement and the terms of Act.

• [98] To explain further, in Falcon, the concepts and confusion regarding private arbitration were traversed, the Full Bench expressing:

The respondent's submission appears to proceed from a misunderstanding of the judicial characterisation of the power exercised under s 739(4) as being one of private arbitration. That characterisation has its source in the High Court decision in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (Gordonstone). Gordonstone was, for relevant purposes, concerned with the constitutional validity of s 170MH of the Industrial Relations Act 1988 (Cth) (IR Act), which provided that procedures in a certified agreement for preventing and settling disputes between employers and employees might, if the Australian Industrial Relations Commission (AIRC) approved, empower the AIRC to settle disputes over the application of the agreement or appoint a board of reference to settle such disputes. The Court rejected a contention that, by reason of s 51(xxxv) of the Constitution, a certified agreement can only validly provide for procedures for the resolution of disputes which are within the compass of the industrial dispute or situation which led to its making. In doing so, the Court distinguished between agreed and arbitrated dispute settlement procedures. The Court said:

"[30] There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.

[31] Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.[34]

• [99] At paragraph [72], the Full Bench continued:

The word "arbitration", according to its ordinarily understood meaning, is "a process by which disputes are settled by a third party, appointed for that purpose by the parties to the dispute" and thus encompasses the whole process of adjudication leading to the making of the final decision. In the context of the FW Act, once the Commission is authorised to arbitrate under s 739(4), it is permitted by s 595(4) to engage in the entire process of adjudication for which the FW Act provides, including interlocutory and procedural decision-making and the conduct of hearings as well as the making of the final decision, unless there is some limitation upon the exercise of powers contained in the relevant dispute resolution term to which effect must be given by virtue of s 739(3). The respondent pointed to no such limitation in clause 7 of the 2017 Agreement which would have affected the Deputy President's capacity to arbitrate the dispute before him. (citations omitted)

• [100] The concept of arbitration in the context before me necessarily implies an outcome which is binding upon the parties that have submitted to the arbitration, as the parties have done in this case.[35] As is apparent from s 595(2) and (3) of the Act and clause 12 of the Offshore Agreement, arbitration is intended to be more than simply 'expressing an opinion'.[36] The parties have agreed to submit their dispute as to their legal rights and liabilities for resolution by the Commission and to accept the Commission's decision as binding on them. In this respect, the Commission does not exercise judicial power but engages in its arbitral function in accordance with the terms of the Offshore Agreement and the relevant provisions of Part 5-1 and Part 6-2 of the Act.[37]

• [101] Turning to Part 5-1 of the Act, s 595(3) empowers the Commission, when expressly authorised to arbitrate, to make any orders it considers appropriate. In Falcon, the Full Bench observed that this provision would operate in respect of any arbitration conducted pursuant to s 739(4) provided that the relevant dispute resolution procedure did not prohibit or restrict the making of orders by the Commission and thus engage the limitation on the Commission's powers contained in s 739(5).[38] Any order made by the Commission under the Act is given legal effect by s 675.

• [102] As to whether the Respondent is required to reimburse the Applicant for accommodation booked by the Applicant for the period commencing 24 February 2025 to the date that this decision is issued, the answer to that question is yes. Whilst appreciative that there will have been circumstances in the relevant period where prior to the accommodation being booked the parties were required to exercise commonsense and have regard to the Applicant's self-appraisal of fatigue, that clearly has not occurred because of the unilateral action of the Respondent in withdrawing from the accommodation arrangement. Therefore, the Respondent's opportunity to provide input into the decision to arrange accommodation for the Applicant was removed by the Respondent itself. It is neither appropriate nor correct that the Applicant should be disadvantaged by the Respondent's unilateral action to withdraw itself from the accommodation arrangement given the accommodation arrangement is grandfathered for the purposes of Appendix 4 of the Offshore Agreement, such that it existed as a preserved condition.

[1] [2024] FWCA 2951, AE525761.

[2] Respondent's Outline of Submissions dated 8 October 2025, [6].

[3] Transcript of Proceedings, Guilherme Daniel v Offshore Services Australasia Pty Ltd (Fair Work Commission, C2025/5678, Beaumont DP, 3 November 2025), (Transcript) [PN102].

[5] Witness Statement of Guilherme Daniel dated 5 September 2025 (Daniel Statement), [10]; DHB (n 4) 23.

[6] Daniel Statement (n 5) [11]; DHB (n 4) 24.

[7] Daniel Statement (n 5) [Annexure 3]; DHB (n 4) 32.

[8] Daniel Statement (n 5) [Annexure 2]; DHB (n 4) 31.

[9] Daniel Statement (n 5) [Annexure 4]; DHB (n 4) 36.

[10] Daniel Statement (n 5) [Annexure 4]; DHB (n 4) 34.

[14] Witness Statement of Maretta Catlin dated 8 October 2025 (Catlin Statement), [16]; DHB (n 4) 139.

[16] Catlin Statement (n 14) [15]; DHB (n 4) 139.

[24] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) (2020) 298 IR 447, 455 [16]; Kucks v CSR Ltd (1996) 66 IR 182, 184.

[25] WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536, 580 [197].

[26] [1959] HCA 8; (1959) 101 CLR 298.

[27] Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989, [102] ('Hyde').

[29] (Australian Industrial Relations Commission, Ross VP, Drake DP and Commissioner Cargill, 4 November 1997).

[33] [2022] FWCFB 93.

[37] Ibid [60]-[63], [68]-[70].

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