Fair Work Act 2009

s.604 - Appeal of decision

MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust

Appeal against decision [2020] FWC 488 of Commissioner Williams at Perth on 7 February 2020 in matter number U2019/4962.

[1] On 26 February 2020, Mr Hayden Richardson (the Appellant) lodged an appeal against a Decision[1] and Order[2] issued by Commissioner Williams on 7 February 2019. In the Decision, the Commissioner dismissed the Appellant's unfair dismissal application (Application) on the basis that the dismissal was not harsh, unjust or unreasonable under s.387 of the Fair Work Act (Cth) (the Act). The Commissioner ordered that the Application be dismissed.

[2] Subsequent to the appeal being lodged, on 23 March 2020, the Chambers of Vice President Catanzariti contacted the parties and the parties were advised on 19 March 2020 that in light of the COVID-19 pandemic it was proposed that the matter be dealt with by telephone hearing or on the basis of the written submissions filed. The matter was determined on the papers.

[3] MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust (the Respondent) sought permission to be legally represented on 16 March 2020. The Appellant also sought permission to be legally represented and relied on the reasons set out in the Respondent's application. The Full Bench granted the parties' applications for permission to be represented pursuant to s.596(2)(a) of the Act. The Full Bench have heard the parties on permission to appeal and the substantive appeal.

[4] In short, we note the following observations and findings in the Decision:

• The Appellant was first employed by the Respondent in July 2012.[3] The Respondent operates a commercial laundry business providing laundry services to a range of businesses.[4] Around December 2018 the Respondent's operations moved from its original site to a new plant at a new location (New Plant).[5] The New Plant was more advanced than the old plant and was run by a mechanised conveyor system.[6] This resulted in changes to the Appellant's role and duties.[7]

• The Appellant was trained by Jensen Laundry Services (Jensen) in how to operate the new more automated system.[8]

• The Commissioner found that the Appellant broke a console screen as a result of not following instructions as to how to properly use the screen, costing the Respondent $8000.00 to replace.[9]

• The Commissioner found that the Appellant was not performing his role to the standard required by Mr Miles, the owner and Managing Director of the Respondent, even after further training was provided to the Appellant and an additional staff member was allocated to help the Appellant.[10]

• As a consequence of the Appellant's underperformance in early April 2019, Mr Miles moved the Appellant to a different role.[11] Due to performance based issues in the Appellant's new role, Mr Miles said to the Appellant that he must do his job properly or he would be dismissed.[12]

• The Commissioner found that shortly thereafter, the Appellant caused damage to the shelves on which he had stacked with linen and that the Appellant never accepted his performance was unsatisfactory or that he was responsible for any problems that had occurred.[13]

• Mr Lee, the Operations Manager of the Respondent, met with the Appellant and said to the Appellant that his performance had been unsatisfactory and that this was the reason he was being terminated.[14]

[5] The Commissioner then considered the criteria that the Fair Work Commission (Commission) must take into account in determining whether a dismissal is harsh, unjust or unreasonable.[15]

[6] The Commissioner stated that the Appellant's unsatisfactory performance over a four-month period was a valid reason for his dismissal related to his capacity[16] and that the Appellant was notified of the reasons for his dismissal.[17]

[7] Under the heading 'Opportunity to respond' the Commissioner stated:

" [100] Whilst Mr Richardson did have an opportunity to respond to the unsatisfactory performance complaints that Mr Lee spoke to him about on the day he was dismissed, this was in fact after the Respondent had made the decision to dismiss Mr Richardson.

[101] Mr Lee had been told by Mr Miles to meet with Mr Richardson and terminate his employment. Mr Lee as directed did so. Mr Lee was not provided with any discretion by Mr Miles in the matter. Mr Miles the owner and Managing Director had made the decision to dismiss Mr Richardson before Mr Lee met with Mr Richardson.

[102] Consequently, Mr Richardson had no opportunity to respond to the reasons the Respondent was considering dismissing him, before the decision to dismiss him was made."

[8] The Commissioner stated that there was no unreasonable refusal by the Respondent to allow the Appellant to have a support person present to assist at any discussions and that the Appellant did not request to have a support person involved at any time.[18]

[9] The Commissioner agreed with Mr Miles' evidence that the Appellant was warned about the Appellant's unsatisfactory performance.[19] Furthermore, the Commissioner stated that the Respondent's business was of a sufficient size to have had an understanding of appropriate procedures to follow when effecting a dismissal.[20] The Commissioner also considered that the lack of clarity from the evidence as to whether the Respondent had dedicated Human Resource Manage expertise rendered that issue as neutral.[21]

[10] The Commissioner noted that the Appellant had over six and a half years' service and that during that time and prior to the New Plant becoming operational, the Appellant was not subject to any warnings and nor were there blemishes on his employment record.[22]

[11] In his conclusion, the Commissioner had regard to the 'shortcomings in the procedure followed by the Respondent in dismissing [the Appellant]'[23]. The Commissioner noted that the context surrounding the warning that Mr Miles gave to the Appellant about the Appellant's unsatisfactory performance was such that the Appellant may have 'failed to grasp that his job was seriously at risk'[24]. Additionally, the Commissioner stated that the Appellant 'had no opportunity to respond to the reasons for which he was dismissed by Mr Miles'[25] before the decision was made to dismiss the Appellant.

[12] Notwithstanding the 'procedural deficiencies'[26] in the way in which the Appellant was dismissed, the Commissioner ultimately decided that even if best practices were adopted, no different outcome would have resulted and the Appellant would have been dismissed 'as he was'[27].

[13] The appeal involves two grounds of appeal.

[14] The Appellant submitted that the Commissioner erred in law and fact in determining that the dismissal of the Appellant was not harsh and oppressive on the basis of conclusions of fact as to which there was no evidence. This ground of appeal is particularised by two further arguments:

1. There was no evidence that the Appellant was provided the required training to enable him to perform satisfactorily; and

2. There was no evidence that the Appellant was responsible for causing the stoppages of machinery which was a reason taken into account to justify the Appellant's dismissal for unsatisfactory conduct.[28]

[15] Further, the Appellant submitted that the Commissioner erred in law and fact in determining that the dismissal of the Appellant was not harsh and oppressive in circumstances where there was no process which involved even any contemplation by the employer of allowing the employee a support person to assist the employee in discussions relating to the dismissal.[29]

[16] The Appellant submitted that there was no evidence before the Commission that the Appellant was trained sufficiently in the mechanised plant that he worked from between December 2018 until 26 April 2019.[30]

[17] The Appellant submitted that there was no evidence that the Appellant was responsible for the stoppage of the machinery.[31] The lack of evidence of training or responsibility for stoppage of the machinery negates the validity of a reason for dismissal being based on the Appellant's lack of capacity to perform his duties as an employee.[32]

[18] The Appellant submitted that there was no evidence in the hearing of any consideration of even a possibility that a support person for the employee be present to assist any discussions relating to dismissal of the employee or that any time was allowed for that possibility. That is a sufficient circumstance to render the dismissal harsh, unjust or unreasonable.[33]

[19] The Appellant submitted that given the peremptory way in which the dismissal occurred, the process did not even get to the point where an opportunity arose for the employee to request or the employer to 'refuse' a support person being present.[34] Further, 'the lack of the issue arising is indicative of harshness, oppressiveness or unreasonableness despite there being no positive obligation on the employer to offer the opportunity to have a support person present when considering dismissal.'[35]

[20] The Respondent submitted that the Commissioner made his decision based on the uncontroverted evidence of Mr Paul Miles in relation to the circumstances of the employment of the Appellant, the ongoing poor performance of the Appellant and the circumstances of the termination.[36]

[21] In relation to the contention that there was no evidence that the Appellant was provided with the training required to perform satisfactorily, the Respondent submitted that there was extensive evidence that the Respondent provided the Appellant with such training, and that this evidence was accepted by the Commissioner.[37] The Respondent made reference to the evidence of Mr Miles and the Appellant's own admission that he undertook training on the operation of the New Plant.[38] Further, the Respondent referred to the evidence that another staff member in January 2019 was moved from the washroom to provide the Appellant with more training.[39] The Respondent also made reference to the Appellant's training in respect of the collection of lint in February 2019.[40] Accordingly, the Respondent submitted that there was evidence which supported the Commissioner's findings of fact in relation to the Appellant's training. Further, that even if there was such an error, it was not insignificant.[41]

[22] In relation to the Appellant's contention that there was no evidence that the Appellant was responsible for causing the stoppages of machinery, the Respondent referenced various parts of Mr Miles' evidence relating to the reason for the stoppages. The Respondent submitted that the evidence supported the Commissioner's findings of fact in relation to the Appellant's responsibility for the stoppages in the machinery.[42]

[23] Regarding the second ground of appeal regarding the contemplation by the employer of allowing the employee a support person to assist the employee in discussions relating to the dismissal, the Respondent referenced Mr Miles' evidence that the Appellant never asked for a support person.[43] The Respondent made reference to the Commissioner's finding that there was no unreasonable refusal by the Respondent to allow the Appellant to have a support person.[44] Further, it was argued that s.387(d) of the Act does not impose a positive obligation on an employer to offer an employee the opportunity to have a support person present when they are considering dismissing them.[45] Accordingly, the Respondent submitted that there was no demonstrated appealable error.[46]

Permission to appeal submissions and principles

[24] In addition to the grounds of appeal above, the Appellant submitted that it is in the public interest for permission to be granted for the following reasons:

• In circumstances where the Appellant had been employed from July 2012 to December 2019 in a labour intensive workplace with no issue arising as to his performance, and issues relating to the Appellant's performance arising when the employee had been moved to a more mechanised workplace:

  • The Commissioner's decision manifests an injustice; and

o The result of the Commissioner's decision is counterintuitive.[47]

[25] The Appellant further submitted that the manifest injustice and counterintuitive elements of the decision arise from the failure to give adequate weight to the employee's full work history and lengthy unblemished record.[48]

[26] The Respondent submitted that none of the matters set out in the Appellant's submissions demonstrate that it is in the public interest to grant permission to appeal. None of the matters put by the Appellant shows that the Commissioner's decision was manifestly unjust and counterintuitive and that the Commissioner's factual findings were in line with the evidence and no appealable error has been demonstrated.[49]

[27] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[50] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[28] Section 400 of the Act applies to this appeal. It provides:

"(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact."

[29] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as "a stringent one".[51] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[52] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[53]

[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.

[31] In support of their first ground of appeal, the Appellant submitted that there was no evidence that the Appellant was provided the required training to enable him to perform satisfactorily. We do not agree with this submission.

[32] The Commissioner made findings of fact regarding the training that the Appellant received for the New Plant. Relevantly, the Commissioner found that (emphasis added):

"[81] The Applicant was trained by Jensen in how to operate the new more automated system. Other staff were similarly trained by Jensen.

[82] After the initial training of the Applicant, in February when it became apparent there were problems with how he was performing further training was provided. In addition, the Respondent next arranged for an additional staff member to assist the Applicant on morning shift.

[84] I find on the evidence that the Applicant was not performing his role on the morning shift to the standard required by Mr Miles even after further training had been provided and additional help for the Applicant, in the form of an additional staff member, had been provided. Multiple attempts had been made to assist the Applicant improve his performance to no avail."

[33] The evidence demonstrates that the Commissioner's findings above were reasonably open to him. The Commissioner's findings were made on the basis of dispositions made by Mr Miles in his Witness Statement[54] and the oral evidence he provided to the Commission[55]. Further, Mr Richardson conceded in cross-examination that he was provided with the training by Jensen and staff.[56] Therefore, there was plain evidence to support the Commissioner's findings of fact in relation to training.

[34] Accordingly, the Commissioner made no error of law or fact on the issue of whether the Appellant was provided with the required training.

[35] In support of the first ground of appeal, the Appellant also submitted that there was no evidence that the Appellant was responsible for causing the stoppages of machinery, which was a reason taken into account to justify the Appellant's dismissal. Accordingly, the Appellant argued that this negates the validity of a reason for dismissal being based on the Appellant's lack of capacity to perform his duties. We do not agree with this submission.

[36] Relevantly, the Commissioner found that (emphasis added):

"[82] After the initial training of the Applicant, in February when it became apparent there were problems with how he was performing further training was provided.

[84] I find on the evidence that the Applicant was not performing his role on the morning shift to the standard required by Mr Miles even after further training had been provided and additional help for the Applicant, in the form of an additional staff member, had been provided. (emphasis added)"

[37] The Commissioner's reference to the 'problems' with the Appellant's performance at [82] in the Decision demonstrate that the Commissioner considered the evidence that the Appellant was, amongst other things, responsible for causing the stoppages of machinery.

[38] The evidence demonstrates that the Commissioner's findings above were reasonably open to him. The Commissioner's findings were made on the basis of dispositions made by Mr Miles in his Witness Statement.[57] Furthermore, Mr Miles gave oral evidence that stoppages and error messages occurred less in the afternoon shift[58] (when the Appellant was not working) and that Jensen wanted Mr Miles 'to move Hayden off the role and put someone else in there'[59].

[39] Accordingly, the Commissioner made no error of law or fact on the issue of whether the Appellant was provided with the required training.

[40] The Appellant contends that the Commissioner erred in law and fact in finding that the Appellant's dismissal was not harsh given that the Respondent did not allow the Appellant to have a support person to assist in discussions relating to the Appellant's dismissal.

[41] The Appellant argued that in Victorian Association for the Teaching of English Inc v Debra de Laps[60] the Full Bench was not dismissing the Commission's obligation 'to consider whether the absence of an opportunity to allow the employee to have a support person present to assist in discussions relating to the dismissal led to it being harsh...'[61]. The Appellant suggests that the 'peremptory way in which the dismissal occurred' meant that an opportunity was not available for the Appellant 'to request or the employer to refuse a support person being present'[62].

[42] The Explanatory Memorandum of the Fair Work Bill 2008 provides guidance on the way in which s 387(d) of the Act is to be construed:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[63]

[43] In this matter, the Appellant did not request to have a support person in the meeting leading to his dismissal and the Respondent had no positive obligation to offer one. In the circumstances of the Appellant's dismissal, there were no evidentiary findings that the Respondent, by words or conduct, unreasonably refused to allow the Appellant to have a support person in the meeting that led to his dismissal. Section 387(d) of the Act expressly contemplates a situation where an employer commits a positive act, by words or conduct, that constitute an 'unreasonable refusal'.

[44] The Commissioner made no error of law or fact on the issue of whether the Respondent unreasonably refused to allow the Appellant to have a support person to assist in the discussions relating to his dismissal. In any event, we note that the presence of a support person would have made no difference to the Commissioner's findings regarding whether or not the Appellant was unfairly dismissed, as demonstrated at [124] in the Decision.

Is it in the public interest to grant permission to appeal?

[45] When the Commissioner's Decision and findings therein are read fairly and as a whole, it is clear that the Commissioner recognised the shortcomings in the procedure followed by the Respondent in dismissing the Appellant.[64] Critically, the Commissioner contemplated at [120]:

" Mr Miles made the decision to dismiss Mr Richardson without explaining to him that he was considering doing this and explaining why he was considering dismissing him."

[46] The Commissioner had regard to the failure of the Appellant to accept responsibility for his underperformance and that the Appellant had not suggested that, if he had been advised of the reasons for why he was being dismissed before Mr Miles had made the final decision to dismiss him, he had information to put to Miles that may have changed his mind.[65]

[47] It was open for the Commissioner to conclude that even if the Respondent adopted best practice procedure prior to dismissing the Appellant, no different outcome would have resulted.

[48] The Appellant submitted that the Decision manifests an injustice and is 'counterintuitive' when considering the employee's full work history and lengthy unblemished history. However, the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application in balancing all factors relevant under s.387 of the Act. The Commissioner's decision was sound in principal, having regard to the Commission's task to consider all factors under s.387 of the Act 'in totality', in assessing whether a dismissal was unfair, and the consideration that 'no factor alone will necessarily be determinative'[66]. Furthermore, we are not satisfied that there is an arguable case of error or other basis relied upon warranting the grant of permission to appeal.

[49] In considering whether this appeal attracts the public interest, we are not satisfied that:

• there is a diversity of decisions at first instance for which guidance from a Full Bench is required;

• the appeal raises issues of importance and/or general application to the Commission's unfair dismissal jurisdiction;

• the Decision manifests an injustice, or the result is counter-intuitive; or

• the legal principles applied by the Commissioner were disharmonious when compared with other Commission decisions dealing with similar matters.

[50] For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal.

[51] Permission to appeal is refused.

[52] The Respondent submitted that the grounds of appeal are unmeritorious, untenable and have no reasonable prospect of success.[67] The Respondent seeks an order for the payment of its costs pursuant to subsections s.611(2)(a) and (b) of the Act, relying on the decision in E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810 (Church)[68]. The Respondent submitted that the application for leave to appeal should be refused, with costs[69].

[53] Section 611 of the Act provides:

(1) A person must bear the person's own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person ) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1)."

[54] Section 611(1) of the Act enshrines a prima facie assumption that a person will bear their own costs in relation to a matter before the FWC. Pursuant to s.611(2) of the Act, our discretion to override this prima facie assumption and order a party to bear some or all of the costs of another party in relation to an application to the FWC is enlivened only if the application was made:

• Vexatiously (s.611(2)(a));

• without reasonable cause (s.611(2)(a)); or

• in circumstances in which it should have been reasonably apparent to the Appellant that the application had no reasonable prospects of success (s.611(2)(b)).

[55] First, it is necessary to determine whether the Appellant made his application 'vexatiously'. In determining whether the Appellant made the application 'vexatiously' it is necessary to examine the Appellant's motive in instigating the appeal. The authorities confirm that relevant considerations in construing the word 'vexatious' include:

• The concept of vexatiousness is to be narrowly construed[70];

• The motive of the party in instituting the proceeding, and whether the predominant purpose was to harass or embarrass the other party, or to gain a collateral advantage[71];

• The motive of a party can be inferred from the surrounding circumstances, a party's conduct and the merits of the application itself[72]; and

• The concept of vexatiousness extends to proceedings that are seriously or unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment[73].

[56] We are unable to form the view, based on the Respondent's submissions in relation to ordering costs, the circumstances of the appeal, the Appellant's conduct and the merits of the Appeal, that the appeal was one that was instigated for the purpose of harassing or embarrassing the Respondent, or to gain a collateral advantage. We do not accept that the Appellant made their appeal application vexatiously.

[57] We will now consider the question of whether the application was made 'without reasonable cause'. The decision of Keep v Performance Automobiles Pty Ltd [2015] FWCFB 1956 approved the approach in Church[74] and helpfully summarised the principles relevant to determining whether an application is made without reasonable cause:

"(i) The power to order costs pursuant to s.611(2)(a) should be exercised with caution and only in a clear case.

(ii) A party cannot be said to have made an application 'without reasonable cause' within the meaning of s.611(2)(a), simply because his or her argument proves unsuccessful.

(iii) One way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.

(iv) The test imposed by the expression 'without reasonable cause' is similar to that adopted for summary judgment, that is, 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless' or 'discloses a case which the Court is satisfied cannot succeed.'"

[58] In Kanan v Australian Postal and Telecommunications Union, Wilcox J stated:

"It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause."[75]

[59] We would not stigmatise the Appellant's appeal as being 'without reasonable cause', notwithstanding that we found the Commissioner did not err in law or fact on any basis. The appeal application is not one where, upon the facts known to the Appellant at the time of instituting the proceeding, there would be no substantial prospect of success. We do not perceive the appeal application as being manifestly groundless. Overall, the appeal application is not one that can be characterised as being made 'vexatiously' or 'without reasonable cause' and therefore this first limb of the costs application fails.

[60] We now turn our minds to the question of whether, under s.611(2)(b) of the Act, 'it should have been reasonably apparent' to the Appellant that the appeal application was one that had 'no reasonable prospect of success'. In Baker v Salva Resources Pty Ltd (2011) 211 IR 374, the Full Bench summarised the operation of s.611(2)(b) of the Act as follows (footnotes omitted):

"The concepts within s 611(2)(b) "should have been reasonably apparent" and "had no reasonable prospect of success" have been well traversed:

• "should have been reasonably apparent" must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and

• a conclusion that an application "had no reasonable prospect of success" should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable."

[61] For the considerations mentioned at [59] of this decision, we are not satisfied the appeal application was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. Having regard to these considerations, and the extreme caution that should be exercised before finding that no reasonable prospects of success existed, we are not satisfied that it should have been reasonably apparent to the Appellant that the appeal application had no reasonable prospect of success.

[62] For the reasons stated above, there will be no order for costs.

Appellant's written submissions dated 17 March 2020 and supplementary submissions dated 24 March 2020.

Respondent's written submissions dated 27 March 2020.

[1] Richardson v MBP (WA) Pty Ltd as trustee for the Sun Laundry Services Unit Trust [2020] FWC 488 (the Decision).

[30] Appellant's submissions dated 17 March 2020 [9].

[31] Appellant's submissions dated 17 March 2020 [10].

[32] Appellant's submissions dated 17 March 2020 [11].

[34] Appellant's supplementary submissions [7].

[35] Appellant's supplementary submissions [7].

[38] Respondent's submissions [16(a)].

[39] Respondent's submissions [16(b)].

[40] Respondent's submissions [16(c)].

[48] Appellant's supplementary submissions [1].

[50] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.

[51] [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 [43].

[52] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 [216] - [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46].

[53] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

[60] [2014] FWCFB 613.

[63] Explanatory Memorandum, Fair Work Bill 2008 1542.

[66] Explanatory Memorandum to the Fair Work Bill 2008 [1541].

[70] Nilson v Loyal Orange Trust [1997] IRCA 267; (1997) 76 IR 180, 181.

[72] E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

[73] Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502.

[74] E. Church v Eastern Health t/as Eastern Health Great Health and Wellbeing [2014] FWCFB 810.

[75] [1992] FCA 539; (1992) 43 IR 257, 265.

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