//
[169]
[2022] FWCFB 178
General information, not legal advice.
Fair Work Commission (Full Bench)
2022-10-04
Original judgment source is linked above.
s.604 - Appeal of decision
Appeal against decision [2022] FWC 1481 of Deputy President Saunders at Newcastle on 10 June 2022 in matter number U2022/10535, U2021/10536 and Others.
[1] Mr John Bourke and 16 others (the Appellants) seek permission to appeal and, if permission is granted, appeal a decision of Deputy President Saunders on 10 June 2022 (Decision)[1]. Until their employment ended each Appellant was employed by OS MCAP Pty Ltd (OS or the Respondent). In the Decision the Deputy President found that Mr Bourke and 16 others were not dismissed and did not resign from their employment as those terms are defined in the Fair Work Act 2009 (FW Act).
[2] The Appellants were represented by Mr Adam Walkaden of the Mining and Energy Union, a division of the Construction, Forestry, Maritime, Mining and Energy Union (MEU). We granted permission to the Respondent to be represented by lawyers in these proceedings, being Mr Ian Neil SC and Ms Holly Blattman both of Counsel, instructed by Herbert Smith Freehills.
[3] The matters of permission to appeal and, should it be granted, the content of the appeal were dealt with through submissions from each party and a hearing before us on 1 September 2022.
[4] For the reasons set out below we grant permission to appeal, however do not grant the appeal, which is dismissed by us.
[5] The Appellants advance four grounds of appeal which may be summarised as follows:
The Deputy President was in error in in finding that each Appellant's employment with the Respondent was not terminated on the Respondent's initiative within the meaning of s.386(1)(a) of the FW Act;
The Deputy President was in error in several findings about the Appellants' conduct, namely:
that each failed to comply with a lawful and reasonable direction, refusing to work in accordance with their contract of employment with that conduct constituting a renunciation of their contractual obligations; and
that each Appellant abandoned their employment and repudiated their contracts of employment.
The Deputy President erred in finding each Appellant was not forced to resign from their employment with the Respondent because of conduct, or a course of conduct, engaged in by the Respondent within the meaning of s.386(1)(b) of the FW Act; and
The Deputy President erred in findings made about one of the Appellants, Mr Bradley Smith, that he had not been dismissed despite being "party to a contract that specified Muswellbrook as the location where work was to be performed".
[6] An extensive factual background is set out in the Decision, however it is unnecessary for us to repeat the entirety of that background here. We do though note the following matters of importance:
• Before their employment ended each Appellant worked at the Mt Arthur coal mine commencing work there at different times in the period between about 2 April 2019 and about 1 June 2020.[2]
• Mt Arthur is a large open cut coal mine located about five kilometres south of Muswellbrook in the Hunter Valley, New South Wales. The mine is a BHP group asset, as is OS, which provides production services at the mine. OS employs various categories of employees to perform work to deliver its production services which are only provided at assets in the BHP Minerals Australia business, which includes coal and metalliferous mines. Each Appellant was employed as a Production Technician (although their contracts refer to their position as Operator Production) [3]
"During your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed)."[4]
• On 20 July 2021 the Appellants and others employed at Mt Arthur were informed that "a decision had been made that OS would not be required to provide production services at Mt Arthur after 1 November 2021".[5] The announcement included a statement that "everyone will continue employment with OS as a result of this decision" with each to be offered continued employment with OS;
"Given the strong performance of the OS team at Mr Arthur Coal, we are extremely pleased that everyone will continue employment with OS as a result of this decision. All team member's roles will continue with the OS Production team at another deployment.
This is the benefit of the OS model in action. We are in a fortunate position to offer continued employment with OS to manage these times that occur in the mining industry as out team members are employed to work on multiple sites across an East or West Coast Hub, rather than to work on a specific site.
We will soon commence an employee preference process to assist you to identify opportunities to continue your career with OS and talk through the relocation package available to you. Your Superintendent will provide you with more information on this..."[6]
• After the Respondent's decision was relayed to the Appellants each was provided with a Frequently Asked Questions (FAQ) document which included a link to indicate their employment preference. So far as is relevant to the matters involved in this decision, the FAQ document set out the following, with underlining added by us:[7]
"Do we know when OS will no longer be required at Mt Arthur Coal?
Yes, a decision has been made to not renew the current Site Work Package. As a result, OS team members will not be required at Mt Arthur Coal past 1 November 2021. Between now and then we will work with everyone on options to continue employment with Operations Services. This is the benefit of the OS model; you are employed via an East Coast Hub to support multiple sites.
What does this mean for Operations Services employees?
We will continue to support stable jobs for our employees. All our employees will have ongoing employment with OS at an alternative deployment location. You will have access to a relocation package to support you to continue employment. We have commenced an Employee Preference Process with OS employees to work through your transition to an alternative location. We will be as open and transparent as possible throughout this process with our key focus being on the safety and wellbeing of our people. Our commitment is to communicate as regularly and as often as possible during this process."
"What OS Production deployments could I transfer to?
Operations Services currently has a number of Production deployments operating across Queensland, Western Australia and South Australia. We are focusing transfer opportunities at the following locations. The closest townships are also listed as reference.
Each of the Queensland deployments currently operates on a 7/7 day and night shift roster (7 day shifts; 7 rostered off; 7 night shifts; 7 rostered off), commencing on either a Wednesday or a Thursday.
Our Olympic Dam deployment in South Australia currently operates a 2/1 day and night shift roster (7 day shifts; 7 nights shifts; 7 rostered off), commencing on a Thursday.
Will I be required to sign a new contract or agreement?
OS employees transferring to another OS role within the East Coast point of hire (Queensland and New South Wales inclusive), will not be required to sign a new contract or agreement. A letter confirming their next location will be issued to the employee as confirmation of this change.
OS employees transferring to another OS role outside of the East Coast point of hire, a new contract may be required. This will be discussed with you where applicable. Where employees opt to access the relocation package, an addendum to their employment contract will be provided to detail and need to be signed to accept the terms and conditions associated with the relocation offer."
Operations Services is no longer required at Mt Arthur Coal past 1 November 2021. There are no options for Operations Services team members to remain working at Mt Arthur Coal with OS."
"I moved my family to the Hunter Valley after the last changes. I don't want to
move (or fly) to the Bowen Basin for work. What options do I have?
Your role as a production technician in the East Coast hub continues. There are roles available for all our team members at other deployments across the East Coast hub and OS will support you and your family to relocate to continue employment. This means you can move to another deployment and continue working with OS.
If you do not wish to continue employment with OS at another deployment or elsewhere with BHP, you will be required to resign. Where your resignation is aligned to or delayed until the end of the Site Work Package (1 November 2021) you may be eligible to receive a completion payment with your final pay. Further details will be provided during your 1:1 discussions.
What occurs if I decline the transfer with OS to an alternate deployment?
All OS employees are guaranteed ongoing employment with OS at an alternate location. We appreciate though that, not all employees will wish to relocate or commute to an alternative OS deployment.
OS will continue to operate the MAC deployment through to 1 November.
For those not remaining with OS or BHP past this date, you will be required to resign. Where your resignation is aligned to or delayed until the end of the Site Work Package (1 November 2021) you may be eligible to receive a completion payment with your final pay. Further details will be provided during your 1:1 discussions.
If my role doesn't exist at Mt Arthur anymore, why can't I get a redundancy payment?
While you have been based at Mt Arthur Coal, you were employed within the East Coast hub and therefore can be directed to work at alternative locations as part of your role with Operations Services."
"Will I be required to resign if I don't agree to work at another OS deployment?
No, employees will not be forced, or asked, to resign. It is our preference that all employees remain with OS Production after the conclusion of the deployment at Mt Arthur Coal Mine on 1 November 2021 as we will continue to need you in your East Coast Production Technician role. However, it is open to an employee, as is always the case, to resign from their employment with OS Production if the nature of their role with OS Production no longer suits their personal circumstances or for any other reason."
[7] An appeal under s.604 of the FW 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.[8] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
[8] Section 400 of the FW Act applies to this appeal. It provides that:
(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.
[9] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the FW Act as "a stringent one".[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[11] In GlaxoSmithKline Australia Pty Ltd v Makin[12], 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..."[13]
[10] 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.[14] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[11] The matters determined in the Decision are matters of jurisdiction, turning on whether the Appellants had been "dismissed" as that term is defined in s.386. A finding that each had been dismissed makes them eligible for a finding they had been "unfairly dismissed" should one of the criteria in s.385 be satisfied. That section requires the Commission be satisfied for a finding of unfair dismissal that a person has been dismissed; that the dismissal was harsh, unjust, or unreasonable; that it was not consistent with the Small Business Fair Dismissal Code; and was not a case of genuine redundancy.
[12] Consideration of whether permission to appeal is granted though requires more than an assessment of whether the findings in each case were correct. Instead, it requires us to assess the public interest in accordance with the reasoning set out above with it clear that the "opinion or state of satisfaction as to a matter being "in the public interest" is "a jurisdictional fact or criterion to be satisfied before an appeal is heard and orders made on the appeal"".[15]
[13] The Appellants argue in support of a grant of permission to appeal that what had occurred to them was unusual if not unprecedented for an award covered workforce with their employment "coming to an end without the payment of redundancy pay because their employer has unilaterally shifted the location where work is to be performed by about 1,190 kilometers".[16] Such was an issue of importance and general application concerning "the right of an employer to take such action, and the consequences for an employee that is unable and/or unwilling to accept work in the changed location".[17] The Appellants argued that the Deputy President's findings amount to a failure by him to exercise jurisdiction in circumstances where there was jurisdiction because the Appellants had been dismissed.[18]
[14] For its part OS submit the public interest is not engaged and that none of the features identified in GlaxoSmithKline Australia Pty Ltd v Makin are present here. OS also submit the Full Bench should take account of the fact that Appellants did not challenge the statements of principle identified by the Deputy President for the operation of s.386(1) and that contrary to the Appellants' submissions "this is not an appeal about the validity of the Point of Hire Term" since they do not challenge the Deputy President's critical findings including that they were bound by the term and that they could be required to work at the Blackwater mine.[19] OS also submit that the "proposed appeal grounds concern findings of fact particular to this case, rather than matters of general application".[20]
[15] The Full Bench is satisfied that permission to appeal should be granted. The matters engaged by the Appellants in their case have importance in several respects. The case involves 17 individuals whose employment has ended through the same circumstance which, in itself, is outside of the norm. While that alone is insufficient to warrant importance, it becomes so when coupled with the unusual factual matrix pertaining to the end of work for OS and thereby the Appellants at Mt Arthur. The contest between the parties, of termination or forced resignation on the one hand and abandonment of employment on the other potentially raises matters of general application and we are satisfied there is at least an arguable case of error.
[16] The Appellants argue in respect of Grounds 1 and 2 that the Point of Hire Term could only be engaged if they were required and directed to work at Blackwater and that there was no direction by OS to the Appellants to do so.[21] Accepting the Deputy President's conclusion that "'Require" means "to ask for authoritatively or imperatively; demand"" and that "The ordinary meaning of "direct" includes "to give authoritative instructions to; command, order or ordain (something): I directed him to do it, or that he do it""[22] The Appellants contest any such requirement or direction was given.[23] They argue that neither the July 2021 announcement or subsequent discussions or documents amount to an authoritative instruction or command in respect of a direction to work at Blackwater,[24] although it is accepted each was "directed to return a signed copy of the letter to their line leader by 22 October 2021 confirming whether they would choose to select option 1 or 2".[25]
[17] By not directing the Appellants to work at Blackwater;
"... the Point of Hire Term was not engaged in respect of Blackwater. It follows that the job of each Appellant should have been confined to Mt Arthur, which was the only site where the Appellants had worked for the Respondent. The Respondent ceasing to provide production services at Mt Arthur meant that the Appellants had no more work to perform at Mt Arthur. This circumstance sits comfortably within the meaning of dismissed as defined by s.386(1)(a) of the FW Act."[26] (footnotes omitted)
[18] In relation to Ground 3, the Appellants argue that their actions in not accepting deployment to Blackwater amounts to a resignation[27] and a forced one at that. Despite the Deputy President finding that OS' reliance on its contractual rights was "the antithesis of conduct which is intended or likely to have the effect of bringing the employment to an end"[28], there was no engagement with the Appellants' personal circumstances and because of this the Deputy President "failed to ask whether those personal circumstances were such that termination of the employment was the probable result of the Respondent's actions in moving the location where work was to be performed by some 1,190 kilometers".[29] Scant regard was paid by the Deputy President to the impact of closed State borders, arising because of travel restrictions associated with the COVID-19 Pandemic; this had the impact of workers being unable to travel across the border, as well as "FIFO workers being "stuck" in a particular state away from their family for months on end".[30]
[19] Coupled with the conclusion there were forced resignations, the Appellants also argue the Deputy President was in error in finding that a "significant number of OS's employees who had been deployed at Mt Arthur accepted a deployment to Blackwater or another BHP coal mine based in Queensland in about November 2021".[31] We understand this contention to be advanced as pointing to the feasibility of relocation given the situation with closed State borders. The Appellants submit that the Decision does not point to the evidentiary foundation for the finding and submit that such evidence as is available "suggests that less than 1 in 3 of the Respondent's Mt Arthur workforce accepted an alternative deployment. Less than 1 in 3 is hardly a significant number and demonstrates a significant error of fact on the part of the Deputy President".[32]
[20] The Appellants submit that in combination it should be concluded OS conduct forced the outcome:
"... the Appellants various personal circumstances, plus the additional travel time, expense and fatigue and the serious issues associated with the closed state borders meant that termination of employment was the probable result of the Respondent's conduct in moving the location where work was to be performed by some 1,190 kilometers"
[21] Appeal Ground 4 deals with the individual circumstances of Mr Smith, about whom it is argued a jurisdictional error was made by the Deputy President with his finding there was no dismissal. Mr Smith was subject to two contracts of employment, with the second said to confine his location of employment to Mt Arthur. With OS ceasing to provide production services at Mt Arthur it meant Mr Smith had no more work to perform at Mt Arthur, which in turn meant he was dismissed within the meaning of s.386(1)(a).[33]
[22] Generally, as to Grounds 1, 2 and 3, OS contend that the Appellants have not been dismissed. Their employment has not been terminated on the employer's initiative and to the extent there may be a contention any resigned none was forced to do so because of conduct, or a course of conduct, engaged in by OS.
[23] Relevant to Ground 1, OS submit that since the Appellants concede they were directed to return the Allocation Letters, confirming their choice between the two identified options it then becomes "an impossible strain to construe the Allocation Letter as not also directing the Appellants to work at Blackwater. Properly construed, the direction to return the letter was subsidiary to and facilitative of the direction to work at Blackwater".[34] They further argue that the Deputy President's findings at [77] - [81] regarding the nature and effect of directions were correct. Preceding documents lent contextual support to the finding that the Allocation Letters constituted a direction, with those documents "reminding employees that their role was non-location specific, asserting [OS'] entitlement to require them to work at multiple sites, and foreshadowing that they would be transferred to another deployment following the cessation of services at Mount Arthur".[35] OS also draw attention to evidence given by one of its witnesses, Timothy Witney, OS Production Manager, that he had said to five of the Appellants during the Phase 1 Conversations "words to the effect that OS had allocated them to deployment where it required them to work from 1 November 2021",[36] with the MEU accepting at first instance that if the Deputy President found those words has been spoken that such would amount to a direction.[37]
[24] Noting that the Deputy President found that "[t]he respective contracts of employment did not state that the [Appellants] would be employed to work at any particular location or otherwise deal with the location where work was to be performed"[38] which was accepted by the Appellants,[39] OS argue the Deputy President "correctly construed the Appellants' employment as being non-location specific, and, further, found that it was an element of their jobs that they be required to work at multiple sites across the East Coast of Australia".[40]
[25] Relevant to the question of whether it was an implied term of the contracts of employment that the Appellants jobs were only at Mt Arthur, a matter argued by the Appellants below but not on appeal, OS argued the Deputy President's findings at [75] of the Decision were correctly decided, including that the "contracts for the [Appellants] with OS are clearly effective without a term limiting the job of each [Appellant] to Mt Arthur".[41]
[26] In relation to Ground 2, OS argue that no submissions of substance were made by the Appellants "other than to assert that "If Ground 1 is upheld, so must Ground 2. The opposite is also true"" and that the ground does not identify any alternative or additional source of error.[42]
[27] OS argue that Ground 3, put forward as an alternative ground to Ground 1 and dealing with the contention that the Deputy President was in error finding the Appellants were not forced to resign because of the employer's conduct, is logically untenable. If Ground 1 fails, the Deputy President's conclusion that the Appellants renounced their employment by refusing to work at Blackwater stands, which in turn excludes the operation of s.386(1)(b), which deals with forced resignations. OS also submit that the Appellants do not challenge the Deputy President's finding that none had informed OS they were resigning or had resigned.
[28] In relation to the question of any of OS' conduct that required examination consequent to a finding there had been a resignation, OS submit that since the Point of Hire Term was found at first instance to be enforceable[43] and that the Appellants do not challenge that finding on appeal, the factual basis of the Deputy President's findings also "do not permit a conclusion that any resignation arising out of the change of work location was forced".[44] The factual base pointed to by OS is summarised thus;
"8. The Appellants do not challenge the Deputy President's statements of principle as to the operation of section 386(1). Further, contrary to the Appellant's outline at [7], this is not an appeal about the validity of the Point of Hire Term. The Appellants do not challenge the Deputy President's critical findings that:
(a) they were bound by the Point of Hire Term and that it gave the Respondent the right to require the Appellants to work on multiple sites across the East Coast of Australia (including interstate) as directed by the Respondent;
(b) "it was an element of the jobs the [Appellants] held with OS that they could be required to work at different locations 'across the East Coast of Australia'";
(c) Blackwater was "a site across the East Coast of Australia";
(d) "one important aspect of the [Appellants]' jobs with OS was that they could be deployed by OS to other "sites across the East Coast of Australia"; and
(e) the obligation to work at East Coast sites as directed by OS, was "fundamental because OS's business is as a services provider to multiple mine sites in Australia, the [Appellants]' jobs were not site specific, and OS's business requires that it be able to deploy its employees to work at multiple locations".
9. Further, it was common ground, at least for the purposes of section 386(1)(a), that if the Appellants were given a direction by the Respondent to work at Blackwater, it would have been a lawful and reasonable direction."[45] (footnotes omitted)
[29] Further, OS submit the Appellants were expressly told they were not being asked to resign, with the Deputy President making findings of that nature.[46]
[30] In response to the Appellants' arguments the Deputy President was in error to find that a "significant number of OS's employees who had been deployed at Mt Arthur accepted a deployment to Blackwater or another BHP coal mine based in Queensland in about November 2021",[47] OS point to evidence from two of its witnesses on the subject. Prior to the events that are the subject of these proceedings about 40 Mt Arthur production employees redeployed to mines in Queensland. Later, between September and October 2021, a further 30 to 40 redeployed to Queensland. OS argued that this "was strong evidence that relocation was feasible despite the uncertainty posed by the closed Queensland border"[48] and that there was:
"... an obvious choice available to employees uncertain as to consequences of an ongoing border closure, was to await any such eventuality and then decide whether to keep their employment. The Respondent had committed to providing a relocation package and to work with employees to avoid them being at a disadvantage wherever possible. Uncertainty as to the specifics of that support did not force the Appellants to resign."[49] (footnotes omitted)
[31] As to Ground 4, in relation to Mr Smith, OS argue the ground should not be entertained:
"51 ... The Appellants did not raise this point at first instance. A party should not be permitted to argue a case on appeal which it did not raise at first instance, and permission to appeal should not be granted to permit this to occur.
52. There is no pure question of law on which to found an exception to this usual principle. Rather the appeal ground seeks to agitate against what was common ground before the Deputy President: that every Appellant was subject to a contract of employment which included the Point of Hire Term, and that this term was binding on them".[50] (footnote omitted)
[32] Pertinent to the merits of the ground, OS argue the updated offer of employment in October 2020 did not vary or remove the Point of Hire Term and that there is no inconsistency between the updated offer and the Term.[51]
[33] The meaning of the term "dismissed" is defined in s.386(1) of the FW Act, which is in the following terms:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
[34] Subsections 386(2) and (3) do not have relevance to the matters in consideration in this decision, with the subject matter of those subsections relating to persons employed under various limited term arrangements.
[35] We will consider Grounds 1, 2 and 3 together, followed by Ground 4.
Grounds 1, 2, and 3 - Termination on the employer's initiative/Failure to comply with direction, abandonment/Forced resignation
[36] Ground 1 argues that the Deputy President erred in finding that each Appellant's employment with OS was not terminated on the Respondent's initiative within the meaning of s.386(1)(a). Ground 2 argues about concomitant findings in the Decision that the Deputy President was in error to find there had been a failure by the Appellants to comply with a lawful and reasonable direction from OS and communicated such to OS; that such conduct was a renunciation of their contractual obligations, an abandonment of their employment and a repudiation of their contracts of employment. Ground 3, put as an alternative to Ground 1, argues the Deputy President was in error to find the Appellants were not forced to resign because of conduct, or a course of conduct, engaged in by OS.
[37] The Decision makes the following relevant findings:
• As to the contracts of employment: "[t]he contracts for the [Appellants] with OS are clearly effective without a term limiting the job of each Applicant to Mt Arthur" with the contracts of employment entirely in writing such that "the rights and obligations established in the contracts exclusively determine the relationship between the parties".[52]
• The Point of Hire Term is only engaged if an employee is "required" and "directed" by OS to work at another site "across the East Coast of Australia".[53]
Employees were informed of the consequences of not making a choice about their future role; "The Allocation Letter went on to explain that the [Appellants] had a choice "confirming either ... 1. You still do not wish to continue your employment with OS. 2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date" [emphasis added].
Finally, the Allocation Letter informed the Appellants that if they did not return a signed copy of the letter to OS by 22 October 2021, "this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021"
"[82] Because I am satisfied on the basis of the written evidence that OS "required" the [Appellants] to work at Blackwater and "directed" them to do so, I do not need to decide OS's alternative argument that an oral direction was given to some of the [Appellants] in their conversations with Mr Witney and/or Mr Nguyen.
[83] None of the [Appellants] returned a signed Allocation Letter to OS, nor did any of them attend work at Blackwater in accordance with the directions given to them in the Allocation Letter. Each of the [Appellants] told OS that they were not prepared or willing to work at Blackwater. It follows that the [Appellants] failed to comply with a lawful and reasonable direction and refused to work at the new East Coast deployment at which OS required them to work in accordance with the Point of Hire Term. The [Appellants]' conduct in this regard constituted a renunciation of their contractual obligations - specifically, of the fundamental obligation to work at East Coast sites as directed by OS. That obligation was fundamental because OS's business is as a services provider to multiple mine sites in Australia, the [Appellants]' jobs with OS were not site specific, and OS's business requires that it be able to deploy its employees to work at multiple locations. The conduct of the [Appellants] conveyed a refusal to work in accordance with the promises given in their contracts of employment.
[84] Put another way, the [Appellants] abandoned their employment by refusing to work at their new deployments at Blackwater.
[85] OS accepted the [Appellants]' repudiation of their contracts of employment. However, it was the [Appellants]' renunciation which effectively brought the employment relationship between them and OS to an end. This is not a case in which it was action on the part of OS that was the principal contributing factor which resulted, directly or consequentially, in the termination of the [Appellants]' employment. Accordingly, the [Appellants]' employment with OS was not terminated on OS's initiative within the meaning of s 386(1)(a) of the Act.
[86] As to the [Appellants]' argument under s 386(1)(b) of the Act, it is rejected on two grounds. First, the [Appellants] did not resign. Secondly and in the alternative, even if it was concluded that the [Appellants] resigned, they were not forced to do so because of conduct, or a course of conduct, engaged in by OS.
[87] None of the [Appellants] informed OS that they were resigning or had resigned. Their conduct in that regard is consistent with the advice given to most of the [Appellants] by the ME Union not to "resign from their employment" with OS and not to sign anything.
[88] The absence of an express statement of resignation is not fatal to the [Appellants]' contention that they resigned, for the test is an objective one which depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.
[89] OS points to the fact that none of the [Appellants] gave OS four weeks' written notice of their resignation in accordance with the express terms of their employment contract. I do not give much weight to the absence of four weeks' written notice from the [Appellants] to OS of their resignation in determining whether or not the [Appellants] did in fact resign. There is no doubt that an employee or an employer can terminate their employment relationship without giving notice in accordance with the terms of any applicable contract of employment.
[90] It is contended by the [Appellants] that their conduct in not accepting the deployment to Blackwater demonstrated that they had resigned. I disagree. Their conduct in that regard, coupled with the fact that none of the [Appellants] returned the Allocation Letter to inform OS of their decision not "to continue ... [their] employment with OS", would have demonstrated to a reasonable person in the position of the parties that they were not willing to comply with a direction given to them in accordance with their employment contract to be deployed to Blackwater. In my assessment, the objective position, based on what OS and each Applicant did and said, in light of the surrounding circumstances, was that none of the [Appellants] resigned from their employment with OS." (footnotes omitted)
[38] We accept the Appellants' contracts of employment as exclusively determining the relationship between the parties (noting that Mr Smith's circumstances require consideration in the context of Ground 4). The Point of Hire Term is explicit, providing that "[d]uring your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed)". There is no evidence that any of the employment contracts were varied to remove or limit the term. As it is, the relevant construction of the Term is clear; there may be a requirement on an employee to work on multiple sites across the East Coast of Australia; that requirement may be the subject of a direction from OS; and if a deployment is inter-State (presumably from the employee's current work location) they are entitled to be provided with advance notice of 4 weeks, unless a shorter period is agreed.
[39] We have considered the debate had below and dealt with in the Decision, but not relied upon by the Appellants in these proceedings, as to whether there was an implied term in the contracts of employment that the Appellants' jobs were at Mt Arthur only.[54] The Decision, at [75], correctly records how the tribunal should analyse the situation; the term must not contradict any express term and must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it. The Decision proceeds to find, correctly in our view, that no term is to be implied:
"The contracts for the [Appellants] with OS are clearly effective without a term limiting the job of each Applicant to Mt Arthur. The term sought to be implied into the contracts is not necessary to give business efficacy to the contracts. Finally, an implied term must be so obvious that it goes without saying. It is not obvious that the jobs of the [Appellants] must be limited to Mt Arthur only. OS plainly desired the flexibility to move its workforce around to a range of sites across the "East Coast of Australia" at which its services were required."[55]
[40] The Decision found, and the Appellants do not say otherwise, that "Blackwater is clearly one of the "multiple sites across the East Coast of Australia" to which an Applicant could be deployed under the Point of Hire Term".[56]
[41] There were the following relevant interactions between OS and the Appellants.
20 July 2021 - from the commencement of the first shift employees were notified of the cessation of production services at Mt Arthur and that OS "would support and assist them and their family to relocate closer to their next placement". In pre-start meetings the FAQ document was distributed which included statements that:
Mt Arthur team members "will not be required at Mt Arthur Coal past 1 November 2021";
"All our employees will have ongoing employment with OS at an alternative deployment location";
With reference to an Employee Preference Process, the process "will ask for your thoughts" regarding the employee's top 3 preferred alternate deployment locations, their access to relocation support; questions, concerns and feedback; and any "personal circumstances such as family and caring responsibilities we should take into consideration". Further,
"Through this change we are supporting OS employees to make decisions based on their personal needs. We will seek to meet your preference of location, but we have to balance this with ensuring business requirements are met.
An eForm has been created for the EPP and will be made available from today for employees to complete. This can be accessed from any BHP or personal electronic device. A paper-based form is also available for those unable to complete this online. All forms must be completed by Friday, 6th August 2021."
"As explained above, such an employee is not required to resign. Rather, their employment with OS would come to an end by reason of their employment being terminated at the employer's initiative. Consequently, such an employee would be entitled to redundancy pay."
The Allocation Letter is in largely the same terms to each Appellant, although the nominated shift roster varied for each person (with this letter being the one sent to Scott Ambrose);
NOTIFICATION OF CONTINUING ROLE WITH OPERATIONS SERVICES
As you know, the OS production services at Mt Arthur Coal will conclude on 1 November 2021.
I refer to our 1: 1 meeting on 20 September 2021 where you were advised of your options to choose on completion of the MAC services. At that meeting you indicated you did not wish to continue your role at another OS services location.
Nature of your role with OS across the East Coast of Australia
You are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.
This means that even though the OS production services at Mt Arthur Coal Mine will end on 1 November 2021, OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland.
The details of the continuing work we have available for you if you wish to reconsider your choice are as set out below for your reconsideration.
Proposed Initial Roster 7 Days, 7 Off, 7 Nights, 7 Off; Thursday start.
Reporting to Linda Hamlin, Supervisor Production
** Date recorded in HR SAP system only, in alignment with OS Payroll Cycles.
This work is available in accordance with your contract.
If you have changed your mind and have any concerns about the location or proposed roster, including the impact it will have on your family and caring responsibilities, please raise this with your current line leader for consideration by no later than 22 October 2021.
Of course if it is still your choice to leave your employment with OS Production on completion of its MAC services, and if the work at Blackwater Mine does not suit your personal circumstances, or for any other reason, we need to confirm that now. OS Production's preference is that you, and all other OS Production employees, remain with OS Production after the conclusion of the OS production services at Mt Arthur Coal.
However I wish to make it clear, there has been and will be no decision to make you or your role redundant. This means you are not entitled to any redundancy pay and OS Production is not required to consider any redeployment opportunities with any other BHP entities.
By 22 October 2021, please return a signed copy of this letter, to your line leader confirming either:
1. You still do not wish to continue your employment with OS.
2. You have changed your mind and will commence work at the Mine allocated in this letter on the allocated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at Blackwater Mine.
If you do not wish to continue your employment or you do not return a signed copy of this letter by 22 October 2021, this indicates to OS Production that you do not intend to continue with your employment. In these circumstances, your employment with OS will come to an end in accordance with your choice with effect on 1 November 2021.
Should you have any questions or concerns, please direct these to your Line Leader. Thank you for your ongoing contribution and commitment to the Operations Services team.
�� I will commence work at {mine} as per the details set out in this letter
�� I do not wish to continue my employment with OS Production
Signed: ________________________ Date: ________________________"
YOUR CHOICE NOT TO CONTINUE YOUR EMPLOYMENT WITH OPERATIONS SERVICES
I refer to my previous letter to you on 12 October 2021 regarding your employment with OS Production.
As you know, you are employed in a continuing role of Production Technician across the East Coast of Australia. You were not employed to work at only one particular site. As stated in your employment contract with OS Production, during your employment as a Production Technician, you may be required to work on multiple sites across the East Coast of Australia as directed by OS Production. This is a fundamental term of your employment contract.
The OS production services at Mt Arthur Coal Mine, where you are currently working with OS Production, will conclude on 1 November 2021 as previously discussed with you. However, you were advised that OS Production continues to require your role to be performed at other sites currently operating services across the East Coast of Australia.
At the meeting held with you on 20 September 2021 you were advised of your options for other deployments on completion of the OS production services at Mt Arthur Coal. At the meeting or after that meeting you indicated you did not wish to continue your role at another OS services location.
My subsequent letter to you on 12 October 2021 advised you OS Production has provided you continuing work at Blackwater. You were asked to return a signed copy of that letter by 22 October 2021 confirming that either:
1. You do not wish to continue your employment; or
2. You will commence work at the mine allocated on the nominated commencement date and will contact your line leader within 24 hours to arrange discussions for commencing at the allocated mine.
My letter to you stated that if you did not return a signed copy of my letter by the time requested, this would indicate to OS Production that you do not intend to continue with your employment.
As you have not returned a signed copy of my letter, OS Production understands that you do not intend to continue with your employment.
Your employment with OS Production will come to an end in accordance by your choice with effect on 1 November 2021.
Wages and any accrued but untaken leave will be paid up until that date.
Should you have any questions or concerns, please direct these to your Line Leader.
[42] The Appellants contend that the deployment to Blackwater was presented as a choice in the Allocation Letters and that such direction as may be contained within the letters was limited;
"... the authoritative instruction or command contained in the Allocation Letter was expressly set out under the heading ''What do you need to do know?''. Plainly, there was no authoritative instruction or command to work at Blackwater. Rather, the Appellants were directed to return a signed copy of the letter to their line leader by 22 October 2021 confirming whether they would choose to select option 1 or 2."[57]
[43] It is then argued that because there was no direction to work at Blackwater the Point of Hire Term was not engaged,
"It follows that the job of each Appellant should have been confined to Mt Arthur, which was the only site where the Appellants had worked for the Respondent. The Respondent ceasing to provide production services at Mt Arthur meant that the Appellants had no more work to perform at Mt Arthur. This circumstance sits comfortably within the meaning of dismissed as defined by s.386(1)(a) of the FW Act."[58] (footnotes omitted)
[44] Several things spring from the letters; such choice as was invited was in the context of the indication given by each Appellant in the Phase 1 Conversations (with the exception of Mr Lerch who could not be contacted for such a meeting) to the effect that they did not wish to continue their role at another OS location. The correspondence though did not merely accept that indication as the end of the matter but reminded each Appellant of the requirement of their employment contract and set out the work proposed for each.
[45] The context of the complete Allocation Letter as well as the steps taken by OS before it was sent and after, and including the letters sent after the Phase 2 conversations, from 22 October 2022 leave little doubt about the parties' situation as viewed by OS; the work of OS at Mt Arthur would finish on 1 November 2021; the Appellants' contract required them to be available for work "on multiple sites across the East Coast of Australia as directed by the Company"; each was informed that after work at Mt Arthur ends, "OS Production continues to require you to perform your role at other sites across the East Coast of Australia, with currently operating services being in Queensland". Reasonably viewed the correspondence requires the Appellants to be available for work in Queensland and to confirm to OS in writing that they either do not wish to continue their employment with OS or that they will be available to commence work at Blackwater.
[46] The principles associated with abandonment of employment are well settled, set out thus by the Full Bench in Re: Abandonment of Employment;
"[21] "Abandonment of employment" is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee's conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee's fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee's renunciation of the employment obligations."[59]
[47] The High Court, in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd, noted in respect of repudiatory breaches, including those termed renunciation, that a breach triggering remedial termination may be of the whole contract or merely a part. It held that the "test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it"[60]
[48] Application of the test for abandonment of employment requires an objective assessment, of "whether the employee's conduct is such to convey to a reasonable person in the position of the employer and based on the facts as reasonably known to the employer at the time, that the employee had repudiated their duty to meet their obligations under the contract of employment".[61]
[49] In this case the Appellants nominated the MEU to be their representative which duly made various representations to OS about the accuracy of its statements including; whether OS was obliged to consult with the union and employees; whether redundancy payments were due; and whether employees should be offered jobs with Mt Arthur Coal Pty Ltd. The MEU also advised "[w]e will be advising all of our members that don't wish to accept a role with OS in Central Queensland that they should not resign from their employment".[62] The Appellants, with the exception of Mr Lerch, participated in the Phase 1 Conversations at which OS records each as having "indicated you did not wish to continue your role at another OS services location".
[50] The Appellants, including Mr Lerch, also received but did not return as directed the Allocation Letters with the same correspondence asserting that OS regarded the Point of Hire Term as meaning that they may be required to work on multiple sites across the East Coast of Australia and that this was a fundamental term of their employment contract. The correspondence was in each case specific, setting out "details of the continuing work we have available for you" - in each case at Blackwater.
[51] We accept the above conduct of the Appellants as evincing their intention to not comply with the obligation under their employment contract to work at Blackwater.
[52] We accept the Deputy President as correct when he found the "choice between cessation of employment and taking up the deployment to Blackwater did not give the [Appellants] a right to reject the deployment and remain employed with OS at Mt Arthur or some other location of their choosing" and that "the allocation of Blackwater as each [Appellant's] next deployment was an authoritative instruction. It was something which OS "required" to be done and was communicated to the [Appellants] by way of a "direction" within the meaning of the Point of Hire Term". We accept as well that the "fact that the Allocation Letter spelt out in express terms what would happen if the [Appellants] did not agree to their deployment to Blackwater, namely the cessation of their employment with OS, did not render the "allocation" any less of a "direction" or a "requirement"".[63]
[53] By failing to return a signed copy of the Allocation letter to OS by 22 October 2022 confirming their choice of alternatives the Appellants failed to comply with OS' requirement. In direct consequence OS was entitled to state to the Appellants the things said in letters sent to each after the Phase 2 Conversations, namely that "[a]s you have not returned a signed copy of my letter, OS Production understands that you do not intend to continue with your employment" and "[y]our employment with OS Production will come to an end in accordance by your choice with effect on 1 November 2021". We discern no error with the Deputy President's findings that in not returning a signed Allocation Letter to OS or to attend for work at Blackwater that such was an abandonment of each Appellant's employment and that while OS purported to accept the repudiation of their contracts of employment the situation was better described as "the [Appellants]' renunciation which effectively brought the employment relationship between them and OS to an end".
[54] Appeal Ground 3 posits that the Deputy President was in error to find that the Appellants' were not forced to resign. We have difficulty with the very foundation of the Ground, since there is no evidence that any of the Appellants resigned their employment. It is well settled that "[t]he question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position".[64]
[55] The Decision found that none of the Appellants resigned, with none of them informing OS that they were resigning or had resigned. Noting that the absence of an express statement of resignation was not "fatal" to the Appellants' contention they had resigned the Deputy President then analysed the available objective evidence. He noted, but put to one side, the absence of written notice of resignation from the employees, with there being "no doubt that an employee or an employer can terminate their employment relationship without giving notice in accordance with the terms of any applicable contract of employment". He then considered whether the Appellants' conduct in not accepting deployment to Blackwater demonstrated resignation and disagreed since,
"Their conduct in that regard, coupled with the fact that none of the [Appellants] returned the Allocation Letter to inform OS of their decision not "to continue ... [their] employment with OS", would have demonstrated to a reasonable person in the position of the parties that they were not willing to comply with a direction given to them in accordance with their employment contract to be deployed to Blackwater. In my assessment, the objective position, based on what OS and each Applicant did and said, in light of the surrounding circumstances, was that none of the [Appellants] resigned from their employment with OS".[65] (footnote omitted)
[56] We concur with this analysis. There were no express statements of resignation from any of the Appellants. For there to be resignation implied objectively from all the circumstances it could be expected that some or all Appellants engaged with and returned the Allocation Letter or otherwise communicated matters to OS that would have required consideration or response, failing which resignation may be inferred. Koutalis v Pollett provides a case example of where resignation may be objectively inferred,
"In my opinion, the proper inference, having regard to all of the circumstances, is that Mr Pollett resigned in the conversation he had with Mr Koutalis on the morning of 5 May 2014. I am satisfied that what happened was set out, in substance, in the evidence of Mr and Mrs Koutalis. That is because immediately after his conversations with his employers, Mr Pollett went across the road and confirmed, in unequivocal terms, that he had resigned to Mr Malovini. Mr Malovini's evidence satisfied me that, among other things, Mr Pollett had decided over the previous two weeks of his leave to start up his own business and that he had had enough of dealing with Mr and Mrs Koutalis."[66]
[57] These are positive findings about actual events about which the Court had evidence.
[58] In the context of the matters before him, it was not available to the Deputy President to find that the Appellants were dismissed within the meaning of either limb of s.386; none had their employment terminated on the employer's initiative and none resigned from their employment let alone resigned through being forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[59] It is unnecessary in this context for us to engage with the submissions made by the Appellants that the distance of Blackwater from Muswellbrook or the closure of State borders forced their circumstances.
[60] It follows from the above reasoning that we do not find either of Grounds 1, 2 or 3 to be established by the Appellants.
[61] The Appellants raise in respect of Mr Smith only that the Deputy President was in error in finding he had not been dismissed within the meaning of s.386 since he was party to a contract which specified his work location as Muswellbrook. While being party to a contract containing the Point of Hire Term he was given an "updated offer" which changed the location aspect of his employment to Muswellbrook, the effect of which is that his "employment" for the purposes of s.386(1)(a) is confined to Mt Arthur. The Appellants concede that this matter was not a matter put to the Deputy President, however, argue that since the subject is potentially a jurisdictional error it requires consideration by the Full Bench.[67]
[62] The evidence in respect of Mr Smith includes:
On 12 September 2019 he was provided with an offer of employment in the OS Production team of OS Services. The employment was to commence on 3 October 2019 and "[t]he location of this position is outlined in Schedule 1", with that schedule stating as relevant only the Point of Hire Term, that is;
"During your employment you may be required to work on multiple sites across the East Coast of Australia as directed by the Company. If your deployment is inter-State, you will be provided with advance notice of 4 weeks (unless a shorter period is mutually agreed)."[68]
Following recent discussions, we are pleased to offer you the following changes in your employment conditions:
Work Schedule: 4 days on, 3 nights on, 7 off working 12.5 hour shifts.
Reporting to: Jason Waerea, Superintendent Production
Your terms and conditions of employment will align to your location and roster, including remuneration, superannuation and leave entitlements. For other ongoing terms and conditions please refer to your latest contract of employment. You must comply with the policies and procedures applicable in your new location.
No additional correspondence will be sent by Global Asset Services beyond this notification. If you have any further questions about your terms and conditions, refer to your latest contract of employment or discuss with your leader.
Thank you for your contribution and commitment, we look forward to your continued contribution to the success of the Company.
[63] During submissions in the matter at first instance, and in response to a question from the Deputy President about Mr Smith having two contracts, Mr Walkaden confirmed there were two, but that he did not know why or whether there was any material difference between them.[72]
[64] The correspondence set out above does two things of relevance; it refers to Mr Smith's location as being Muswellbrook, the location of the Mt Arthur mine; and it states that "[f]or other ongoing terms and conditions please refer to your latest contract of employment". According to the available evidence, the latest contract of employment is the letter of offer accepted by him dated 12 September 2019. The circumstances that led to the 12 October 2020 letter being issued are not in evidence before the Commission. The correspondence is short and to the point; being clearly the summary of some discussions about particular (and unknown) circumstances of Mr Smith. It states briefly his title, work department, location, roster schedule and reporting arrangements. It is not known which of those are "changes" in his employment conditions.
[65] It is also stated that Mr Smith must "comply with the policies and procedures in your new location" (underlining added). While on its face the statement of a new location appears to be an error, since Mr Smith had worked at Mt Arthur since October 2019, the error suggests the correspondence was adapted from a form letter, dealing with circumstances in which an employee might change location. There is no evidence before the Commission that would suggest that the summary was prepared with the intention that it override the greater content of the 12 September 2019 letter of offer and we do not accept that it was so intended.
[66] We conclude therefore that the Point of Hire Term continued to apply to Mr Smith and that there was no error in the Deputy President's reasoning that he too had not complied with OS' directions and that his employment ended through abandonment of employment. It follows we do not uphold Ground 4 of the appeal.
[67] For the reasons set out above we order that:
(a) Permission to appeal is granted; and
(b) The appeal is dismissed.
Mr A Walkaden, Senior National Legal Officer of the Mining and Energy Union, for the Appellants.
Mr I Neil SC and Ms H Blattman, of Counsel, for the Respondent.
[8] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ
[10] O'Sullivan v Farrer and Another [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 207 IR 177.
[11] See: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089; (2010) 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 207 IR 177; New South Wales Bar Association v Brett McAuliffe [2014] FWCFB 1663; (2014) 241 IR 177.
[13] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; [2010] FWAFB 5343; (2010) 197 IR 266.
[14] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481, [30].
[15] Knowles v BlueScope Steel Limited [2021] FCAFC 32, per Logan J, citing with approval Australian Postal Corporation v D'Rozario [2014] FCAFC 89 at [14], [2014] FCAFC 89; (2014) 222 FCR 303, 309.
[16] Appellants' Outline of Submissions, 1 August 2022, [7].
[19] Respondent's Amended Outline of Submissions, 31 August 2022, [8].
[21] Appellants' Outline of Submissions, [8].
[22] [2022] FWC 1481, [77] - [78].
[23] Appellants' Outline of Submissions, [13].
[28] [2022] FWC 1481, [93].
[29] Appellants' Outline of Submissions, [31].
[31] [2022] FWC 1481, [95].
[32] Appellants' Outline of Submissions, [34].
[34] Respondent's Amended Outline of Submissions, [16].
[37] Respondent's Amended Outline of Submissions, [20] - [21]; see also Appeal Book, 280.
[38] [2022] FWC 1481, [65].
[39] Appellants' Outline of Submissions, [10].
[40] Respondent's Amended Outline of Submissions, [20].
[43] [2022] FWC 1481, [64].
[44] Respondent's Amended Outline of Submissions, [46].
[47] [2022] FWC 1481, [95].
[48] Respondent's Amended Outline of Submissions, [49].
[52] [2022] FWC 1481, [76].
[54] [2022] FWC 1481, [61].
[57] Appellants' Outline of Submissions, [24].
[60] [2007] HCA 61, 233 CLR 115, [44], per Gleeson CJ, Gummow, Heydon and Crennan JJ.
[61] Shamrock Consultancy Pty Ltd v Norma Ah San [2021] FWCFB 274, [17].
[62] Correspondence from MEU to OS, 22 July 2021, Appeal Book 783 - 785.
[63] [2022] FWC 1481, [81].
[64] Koutalis v Pollett, [2015] FCA 1165, [43] - [44]; followed in Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704, [30].
[65] [2022] FWC 1481, [90].
[66] [2015] FCA 1165, [46].
[67] Appellants' Outline of Submissions, [36].
[68] Agreed Statement of Facts, item 13(q), Appeal Book, 584.
[72] First instance Transcript, PN 2440 - 2447; Appeal Book p.272.
Printed by authority of the Commonwealth Government Printer
John David Bourke & Jamie Clifford and Others
OS MCAP Pty Ltd [2022] FWCFB 178
(2000) 203 CLR 194
(2011) 192 FCR 78
(2011) 207 IR 177
(1989) 168 CLR 210
(2011) 243 CLR 506
(2010) 202 IR 388
(2014) 241 IR 177
(2010) 197 IR 266
(2001) 116 FCR 481
(2014) 222 FCR 303