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[2020] FWC 3159
Fair Work Commission
2020-06-29
Original judgment source is linked above.
Given the advance notice the Commissioner expects all parties to attend in person.
[154] Thereafter there was an exchange between the parties and my chambers as to whether Mr Tucker could argue that he was entitled to progression pay for the year ending 30 June 2019 (discussed above). As a result of that exchange, on 29 January 2020 my chambers sent an email to parties which stated:
I refer to the below email received from the lawyers for the State of Victoria in the above matter.
The Commissioner has carefully considered the matter raised in that correspondence. She has decided that the issue raised is one that is best addressed in the context of the total dispute currently before the Commission in relation to progression payments.
The Commissioner expects the matter of the extension of the claim to the 2019 financial year be dealt with in submissions and/or evidence in accordance with the directions issued on 24 January 2020.
[155] Arising from the directions issued Mr Tucker filed with the Commission a witness statement and further submission with substantial embedded documents such that it amounted to over 2,700 pages. The documents include:
the Classification Decision, transcript and materials considered in dealing with that part of the current dispute;
all submissions and witness statements filed by Mr Tucker in relation to his application pursuant to s.394 of the FW Act for relief from unfair dismissal including statements of third parties;
submissions of the State and Mr Tucker in relation to the claim of the State in regard to undertakings as to damages given by Mr Tucker in Supreme Court proceedings;
Correspondence of Mr Tucker to the Premier of Victoria and State Opposition Leader;
A witness statement which was marked as relating to both this application and Mr Tucker's unfair dismissal application, dated 25 March 2020 with 230 pages of attachments including transcript from Supreme Court proceedings.
[156] To the extent it might be argued by Mr Tucker that he filed a witness statement and submissions only, the volume of material was incorporated into those documents by hyperlink. There is no indication that Mr Tucker does not seek to rely on all of the material so filed in the matter currently before the Commission.
[157] The State seeks a ruling on the admissibility of additional material filed by Mr Tucker in March 2020. Related to that it says is a question as to whether the matter can proceed fairly on the basis of the current material if I determine that Mr Tucker's further material be admitted.
[158] The State objects on the basis of whether the material filed should be accepted and, separately, the nature of the material filed.
[159] The State submits that to accept the material filed will create an injustice to the State. The State says that, in filing its material in October 2018, it answered the case it was required to meet by Mr Tucker's evidence and submissions at that time. Mr Tucker now seeks to change that case. The State submits that if the Commission does accept the material filed by Mr Tucker it should be given an opportunity to file a reply to that material.
[160] Specific details of the State's objections are set out below.
1. Unfair dismissal material - confidentiality and implied Harman undertaking
[161] The State objects to the admission in these proceedings of the materials filed by Mr Tucker in relation to his unfair dismissal application.
[162] The State objects for three reasons. Firstly, it says that there is a confidentiality order on the material that has not been lifted. That confidentiality order was issued by me in separate proceedings following a hearing of the parties. At the conclusion of the hearing I issued my decision:
...In terms of the question of orders for non-publication, it's my intention to grant the orders on an interim basis only. I think that there are some matters in there that require fulsome consideration, and I think that that can be done more appropriately by the Presiding Member, who can hear argument and will have access to all of the materials and the evidence and will be able to make a much better, clearer call on that. I am concerned, and I say this purely on an interim basis, Mr Tucker, the submissions of the respondent raise some issues. I'm not prepared at this point to leave the file potentially open, if I can use that expression, and for that reason I will issue the interim orders in the form sought by the state with respect to paragraphs (a), (b) and (c).[27]
[163] Mr Tucker applied to have that Confidentiality Order set aside. This was rejected by Deputy President Young on the grounds that, at the time the application to set aside the Order was made, the unfair dismissal application had not been resolved (either by final settlement or decision) such that the circumstances that pertained when the Order was made remained.
[164] Second, the State submits that the material subject to the Order is subject to an implied Harman undertaking.[28]
[165] The State submits that the implied undertaking remains until such time as the materials are received into evidence in open court. This has not occurred as Mr Tucker has entered into settlement discussions of the unfair dismissal application.
[166] Third, the State submits that Mr Tucker has the opportunity to test the fairness of the disciplinary action taken by the State against him in his application for unfair dismissal. Mr Tucker did make an application for relief from unfair dismissal but chose to settle that matter without having the validity of the reason for the dismissal (that is, his conduct at work) tested. It is an abuse of process for him to seek to have what is essentially an unfair dismissal issue ventilated through these proceedings.
[167] The State also objects to the nature of this material. It submits that the material seeks to adduce evidence based on material filed in other proceedings where those witnesses are not being called in these proceedings.
2. The material filed is outside the directions issued by the Commission
[168] The State submits that the permission granted to Mr Tucker was explicit in terms of the material that he could file. The material filed by Mr Tucker extended well beyond the directions issued by the Commission in January 2020. The apparent purpose of the filing of the additional material by Mr Tucker is a collateral attack on the findings of misconduct made some time ago.
3. Mr Tucker has not sought to challenge the findings of misconduct
[169] The State submits that it has, to date, done no more than meet the case as put by Mr Tucker. It submits, in particular, that Mr Tucker has at no stage to date sought to challenge the validity of the findings of misconduct made against him.
[170] The State submits that it specifically raised this in its submissions of October 2018 when it submitted:
In the Applicant's Submissions and evidence, the Applicant has failed to disclose the various misconduct findings against him - a notable material omission.
The Respondent has queried whether the Applicant, at the hearing, intends to challenge the validity of the misconduct findings in the course of advancing his claims for Progression Pay. To date, the Applicant has not provided a clear response to this enquiry.
Given the above, the Respondent's evidence and submissions have been prepared on the assumption that the Applicant does not intend to challenge the validity of the misconduct findings against him. The Respondent reserves the right to make further submissions and file further evidence in the event that the Applicant clarifies his position on this issue. [Footnote omitted]
[171] The State submits that one line in the submissions of Mr Tucker where he denies the misconduct is not evidence that goes to the issue. Rather, it submits that Mr Tucker has now sought, in March 2020, to put substantial material before the Commission in support of what he now seeks to argue.
[172] The State submits that it relies on the fact of the misconduct to deny Mr Tucker progression payments in accordance with clause 24 of the 2016 Agreement.
[173] The State also submits that there is also an issue of issue estoppel. It submits that Mr Tucker had sought to attack the investigation and findings in relation to his dismissal in the Supreme Court proceedings and he ought to be estopped from bringing the same attack in the Commission. The State submits that Mr Tucker's actions give rise to "potential embarrassment for the Commission if it was to reconsider the matter [dealt with by the Supreme Court] and deal with matters that have already been dealt with."[29]
[174] Mr Tucker submits that the progression dispute goes to two matters - the interpretation of clause 24 of the 2016 Agreement and then whether there was a valid basis on which the State could hold that he had engaged in misconduct.
[175] Mr Tucker submits that it would be a denial of procedural fairness to not allow him to challenge the basis on which the State has denied him progression pay - that is, the validity of the allegations and the findings with respect to those allegations. Mr Tucker submits that he has directly challenged those findings in his witness statement dated 30 August 2018.[30]
[176] Whilst there have been proceedings in other places and an application for unfair dismissal, Mr Tucker submits that there has not been a finding as to credibility of the allegations or findings with respect to the misconduct. In this respect he submits that there can be no "embarrassment" for the Commission in coming to different findings to the Supreme Court or other Commission proceedings as there have been no findings on this issue in the Supreme Court and the unfair dismissal proceedings are subject to settlement negotiations (although Mr Tucker "expressly reserves" his right to reinstate those proceedings[31]). Mr Tucker submits that it would be "a vitiating error" to "avoid...the big elephant in the room of whether these allegations have any substance or not."
[177] Mr Tucker also submits that the basis for the allegations are relevant to the matters currently before the Commission.
[178] Mr Tucker accepts that there were no directions issued that invited the material he filed on 20 March 2020 but submits that the Commission has a broad discretion to accept additional material and the Commission has the power to inform itself as it sees fit.
[179] Of the confidentiality order that exists in relation to the unfair dismissal material filed in these proceedings (which replicates material filed by Mr Tucker in the unfair dismissal proceedings), Mr Tucker submits that it is "perfectly permissible" to have the unfair dismissal material filed in these proceedings as the parties are the same and there is no prejudice to either party. Further, Mr Tucker submits that he would not oppose a confidentiality order on the unfair dismissal material filed in these proceeding should the State make such an application.
[180] Mr Tucker also submits that the confidentiality order "surely wouldn't apply" to the same party filing the same material before the "same" Commission.
[181] With respect the Harman undertaking Mr Tucker submits that there is no case that suggests such an undertaking applies in the Commission but, in any event, it would not apply to a document he creates himself. Further he submits that such an undertaking could not possibly apply to transcript from his Supreme Court matter and the State has not demonstrated that it does.
[182] Mr Tucker indicated that he would not object for the State to be given the opportunity to file material in reply to that filed by him in March 2020 as long as he is given an opportunity to file material in reply.
[183] In correspondence to the Commission post the hearing of this application Mr Tucker took issue with the submissions of the State on the issue estoppel. In particular, Mr Tucker suggested that the comments of the State were inaccurate.[32]
[184] Mr Tucker submits that in the Supreme Court matter Ierodianconou AsJ "expressly denied any analysis of the merits of the allegations and findings" in reaching her decision. Mr Tucker therefore submits that the "State's attempts to raise a last minute judicial estoppel is entirely baseless."[33]
[185] The State responded to Mr Tucker's email and said:
The State's case for denying Mr Tucker progression pay for relevant years is premised on the objective fact that findings of misconduct have been made against him.
The proceedings before the Supreme Court of Victoria involved an attack by Mr Tucker on the investigative process adopted by the SRO. By virtue of this, the findings made at the conclusion of the investigations were also challenged (because if the process was found to be defective the findings could not be relied upon). The Supreme Court proceedings did not involve consideration of the merits of the allegations or the substance of the investigation or findings.
The Supreme Court did not find that the investigative process was defective, and therefore, the findings made by the State remain undisturbed.
In his unfair dismissal claim, Mr Tucker had the opportunity to challenge both the investigative process, and the merits of the allegations and findings, if he wished to. Instead, Mr Tucker chose to agree to settle that proceeding, thereby leaving the findings made by the SRO undisturbed.
Because those findings of misconduct have not been disturbed, despite that being a possibility in both the Supreme Court proceedings and the unfair dismissal proceeding, the State submits that Mr Tucker is estopped from now seeking to challenge the validity of the misconduct findings in the context of the progression pay dispute.
[186] Mr Tucker further responded to the State's email. He said:
The Commission is seized with determining whether or not Mr Tucker engaged in misconduct as defined in clause 21.3 the 2016 Agreement;
The onus rests with the SRO to substantiate if Mr Tucker engaged in that misconduct;
It is wrong of the State to rely on the objective fact of the making of a finding of misconduct. Such an argument would allow the SRO to "conjure baseless findings of misconduct to terminate and discipline employees";
By claiming Mr Tucker is estopped the State "continues to mislead the Commission" in its description of the Supreme Court matter as Mr Tucker did not challenge the findings of the SRO in the Supreme Court and did not seek to have the findings otherwise set aside or quashed. In any event Mr Tucker submits that no issue of estoppel arises from decisions of the Commission;
It would be a denial of procedural fairness if Mr Tucker was deprived of the opportunity to challenge the SRO's findings.
[187] Mr Tucker says that no issue of estoppel arises, or could arise, in this matter.
Was the material filed in accordance with the leave granted?
[188] The leave granted by the Commission to Mr Tucker in relation to the filing of additional material was limited based on the leave sought. The leave sought by Mr Tucker was to "file short submissions...essentially running through each year [2015]-2019 (incl) setting out basis relied on by SRO to deny progression and my bullet point submissions in return. I will also very briefly run through jurisdictional issue [sic] relevant to the [2015] year..."
[189] Mr Tucker has taken substantial liberty with the leave granted to him. The material is well beyond the permission granted. The submissions filed were not "short" and did not do as he described. The volume of material is, to the extent he seeks to rely on it and it is to be taken into account, counter intuitive to his plea that "this matter [be] determined by the Commission as expeditiously as possible, given the well known maxim: "justice delayed is justice denied" (Tilley v The Queen [2008] HCA 58, [8] per Hayne J)."
[190] It is difficult to disentangle the material filed by Mr Tucker such that I could say what should and should not be accepted except that the material in relation to the 2015 and 2019 progression years, to the extent it is discernible, is accepted. The remainder of the material is not accepted. It was not filed in accordance with the leave granted to Mr Tucker. Mr Tucker has no one to blame for this but himself.
Unfair Dismissal material and the Confidentiality Order
[191] Whilst this material is included in that generally rejected above, I will comment on this material in relation to the Confidentiality Order.
[192] I granted, in sperate proceedings to these, an interim Confidentiality Order on the material filed by Mr Tucker in his application for unfair dismissal. That Order was issued on an interim basis as I was not the member who would preside over the unfair dismissal application. It was appropriate that final argument on the confidentiality of that material be left to the Presiding Member who could "hear argument and...have access to all of the materials" prior to making a decision.
[193] That Order has not yet been lifted. By decision, Deputy President Young declined Mr Tucker's application to do so. The Deputy President noted that the filed documents subject to the Order had "not been received into evidence, they do not form part of the record of the hearing and the Commission has not ruled on the SRO's objections to Mr Tucker's materials."[35]
[194] I do not accept the arguments of Mr Tucker that it is the same parties in this matter as the unfair dismissal matter such that the materials may be used. Mr Tucker could have filed the witness statements and so on that he did file in the unfair dismissal matter in this matter. Had he chosen to do so the appropriate time was August 2018 when he was required to file in relation to the application subject to this decision. He instead chose to wait until 2020 and file the material in his unfair dismissal application. That material is subject to a Confidentiality Order that must mean something, and Mr Tucker's decision as to when he would file it and in which proceedings must amount to something.
[195] I would also observe that the Commission as presently constituted to deal with the dispute is not the same Commission as constituted to deal with Mr Tucker's unfair dismissal application.
[196] I am not satisfied that I should accept in this matter the material filed by Mr Tucker in his unfair dismissal application of these reasons.
[197] The State submits that it has prepared its case on the basis that Mr Tucker had not denied the conduct said to have amounted to misconduct. Mr Tucker says he has denied the conduct since filing submissions and evidence in 2018.
[198] In his witness statement filed on 30 August 2018,[36] under the heading of "Observations on 'Professionalism' at the SRO", Mr Tucker gives evidence that:
From on or about October 2015 to present I have been subjected to criticisms from SRO management regarding my alleged "inappropriate" behaviours in the workplace.
I deny that I have engaged in inappropriate behaviour at the SRO.
The SRO alleges that these behaviours infringe the VPS's "Code of Conduct" and "Public sector Values". I have been admonished for 'behaviours' including:
(a) the 'tone' of my written internal legal advices and professional opinions;
(b) taking my tie off in the office when returning from Court;
(c) my wearing of 'Zara' brand footwear and woollen jumpers in winter months; and
(d) being observed, on one occasion, having a beer outside SRO core hours at a bar on Bourke St during late December 2015.
Whilst these criticisms appear trivial or ill-founded, they have been used to deny me progression.[37]
[199] This is not a denial of the misconduct Mr Tucker is alleged to have engaged in. It is no more than a suggestion that some matters were trivial and unfounded and, presumably should not have been the basis of a denial of progression.
[200] I understand that it is in the material filed on 20 March 2020 where Mr Tucker has provided an expanded attack on the allegations against him and findings of misconduct. Whilst this might be remedied by allowing the State to provide submissions and evidence in reply to that material I am of the view that Mr Tucker should be required to file in accordance with the leave granted and the State should be granted leave to respond to that material.
[201] As to the issue estoppel I have considered the outcomes sought by Mr Tucker in the Supreme Court. In that matter I understand that Mr Tucker sought:
Injunctions prohibiting the State and/or SRO reaching a final decision as to the discipline outcomes in relation to two investigations carried out;
Declarations that the State and/or SRO breached clauses 21.6, 21.8, 21.10(a) and 21.11(a) of the 2016 Agreement;
Declarations that the State and/or SRO breached specific provisions of the Public Administration Act 2004 (Vic).
[202] The Supreme Court did not deal with, and specifically rejected that it was dealing with, the merits of the claims of misconduct.
[203] I am not satisfied that the proceedings before me, to the extent they deal with the conduct issue directly, seek to traverse the issues dealt with in the Supreme Court although I recognise a consideration of the merits of Mr Tucker's application before me is directed to that which he did not achieve in the Supreme Court matter. This final issue I am being asked to determine is whether there were grounds for the finding of misconduct. Should Mr Tucker seek to stray into the area of matters considered by the Supreme Court (for example, procedural issues) he will not be so permitted.
[204] I am not satisfied that Mr Tucker is estopped by the Supreme Court proceedings from pursing the findings of misconduct.
[205] As mentioned above Mr Tucker has made an application seeking relief from unfair dismissal. That proceeding will determine if the decision to dismiss Mr Tucker was harsh, unjust or unreasonable, taking into account, amongst other things, if there was a valid reason for his dismissal based on his conduct. In order to make such a determination the Commission as constituted in that matter will need to determine, on the basis of the evidence presented, if the misconduct occurred. That matter has yet to be finalised.
[206] In the matter before me Mr Tucker seeks the "opportunity to challenge the SRO's allegations and findings" with respect to the misconduct.
[207] To undertake such a task I understand I will be asked to consider if the conduct occurred. To that extent I will be asked to determine the same matter before the Presiding Member in the unfair dismissal matter. While I understand that settlement discussions are occurring in the unfair dismissal matter it is still on foot and has not been discontinued such that I can make no assumption as to its outcome.
[208] Mr Tucker therefore has two separate proceedings in the Commission. In each of these the Commission is required to determine (in part) if the conduct Mr Tucker is said to have engaged in did, in fact, occur. Beyond that question the proceedings go on different paths. Whilst the final outcomes differ (was he entitled to progression pay/was he unfairly dismissed) both require a determination of whether the conduct occurred.
[209] On its face it is not appropriate that two members of the Commission be asked to determine the same question in relation to the same factual circumstances. The unfair dismissal application is still on foot. Mr Tucker needs to decide where he wants the issue of the merits of his claim determined - in the unfair dismissal proceedings or in this proceeding but not both. One or the other should be discontinued.
[210] Alternatively, I might accept that the unfair dismissal proceedings continue on the basis of settlement discussions not yet finalised. It is open to me to adjourn further consideration of the merits question currently before me pending the finalisation of that matter which will then allow a consideration as to whether that settlement presents any bar to these proceedings or otherwise resolves the merits question also before me.
[211] This issue has not been put squarely before the parties so each will be given an opportunity to provide submissions on this question.
[212] A further issue arises given my comments above which I consider requires further attention and submissions of the parties and that is the question of the utility of these proceedings.
[213] On Mr Tucker's submissions, if I find in his favour, he would be eligible for a payment of approximately $26,700.
[214] As a result of an undertaking as to damages in the Supreme Court matter, Mr Tucker has orders against him for almost $200,000[38] in favour of the State.
[215] Further submissions are sought from the parties as to whether a question of utility arises and, if it does, what should be considered in resolving that question.
[216] It is apparent from my findings and comments in relation to the merits that there are matters yet to be resolved or further considered in conjunction with the finalisation of the merits. I deal with these below.
[217] For the reasons and decisions given above I consider that the following course of action is appropriate:
The State is to identify all misconduct findings against Mr Tucker that effect progression pay including the date the misconduct occurred and the date of the determination of the discipline outcome under clause 21.12(a) of the 2016 Agreement.
The State is to identify year by year the cumulative effect of the misconduct findings and other matters detailed in this decision on progression pay otherwise due.
The parties are to provide further submissions in relation to the unfair dismissal proceedings and the utility questions as posed above.
Mr Tucker is to file brief submissions and evidence with the Commission in line with the leave previously granted on 24 January 2020. The evidence and submissions should not extend beyond 40 pages in total.
The State will be given an opportunity to file material in reply.
Submissions and material from parties in relation to items 1, 2, 3 and 4 (Mr Tucker only) are to be filed with the Commission and served on the other party by 4.00pm Monday, 20 July 2020.
Reply submissions in relation to the material filed is to be filed with the Commission and served on the other party by 4.00pm Monday, 10 August 2020.
Mr Tucker may provide brief reply submissions in relation to the State's submissions in reply in relation to item 4 by 4.00pm Monday, 24 August 2020.
[218] Upon receipt of this material a further decision will be issued as to the course of the proceedings.
(a) Within each Value Range of Grades 1 to 4 there are progression steps (expressed salary points) as detailed in the table at Schedule B.
(b) Within Grades 5 to the Senior Technical Specialist Grade there are standard progression amounts as detailed in the table at Schedule B. The progression amounts are expressed in terms of dollars and are common to all Employees within a given Grade/Value Range.
(c) Progression steps or amounts within Value Ranges are not points of defined work value. Progression within the salary structure will not be automatic, consistent with wage fixing principles.
(d) Progression between progression steps or amounts will occur when an Employee is assessed at his or her annual performance review as meeting the "progression criteria" outlined in the Employee's performance plan.
(a) An Employee at the top of their Grade or Value Range will receive a top of Grade or Value Range payment where the Employee is assessed at their annual performance review as meeting the "progression criteria" outlined in the Employee's performance plan.
(b) The top of Grade or Value Range payment will be equal to one per cent of the Employee's salary as at 30 June of the relevant performance cycle.
(c) Top of Grade or Value Range payments will commence from the 2016/17 performance cycle.
(a) The performance cycle is twelve months (1 July to 30 June).
(b) All Employees must participate in the performance development and review process, including in the development of performance plans and conduct of performance discussions and reviews.
(c) The "progression criteria" are to be agreed with each Employee at the start of the performance cycle or upon the Employee's commencement in a role. The "progression criteria" may be adjusted by agreement during the performance cycle.
(d) The "progression criteria" for an individual Employee are to be developed using the performance standards outlined in clause 24.4 (Performance Standards).
(e) All Employees can expect informal and formal feedback about their performance throughout the performance cycle with their supervisor or manager.
(f) A performance review is undertaken at the end of each performance cycle. The Employee's performance against the "progression criteria" is assessed by their supervisor or manager at that time. Employees must meet all of the elements of their individual performance plan to be eligible for progression or a top of Grade or Value Range payment.
(g) An Employee will be eligible to access progression or a top of Grade or Value Range payment, if the Employee has been in his or her role for 3 months or more, except in the following circumstances:
(i) the Employee has been appointed on probation under clause 15.4 and has been in his or her role for less than 6 months at the time the performance review is undertaken;
(ii) the Employee has been appointed to a role with a new Employer and has been in his or her role for less than 6 months at the time the performance review is undertaken;
(iii) the Employee has completed a formal underperformance process or subject to one under clause 20 at 30 June;
(iv) the Employee is subject to proven misconduct as per clause 21 during the course of the performance cycle; or
(v) subject to the terms of clause 8.9 of Schedule C for Community Corrections Practitioners.
(i) Where an Employee has been acting in a higher position for a period of twelve months, the Employee will be eligible for consideration of progression or a top of Grade or Value Range payment for continued performance of the higher duties beyond 12 months.
(ii) In the event an eligible Employee acting in a higher position is progressed to the next progression step/ amount in that higher position, on returning to their substantive position they will be deemed to have progressed to the next progression step/ amount within their substantive Grade (if applicable).
(a) The performance standards detailed below may be weighted and combined, appropriate to the role, to make up an individual Employee's "progression criteria".
(b) Performance standards for all Grades are as follows:
(ii) demonstrating public sector values and behaviours; and
(c) Management should facilitate an individual Employee's ability to undertake appropriate learning and development. An individual Employee must actively pursue appropriate learning and development to meet their performance standard.
(d) An Employee will not be disadvantaged where learning and development opportunities are not available. It is acknowledged that within Grades 1 to 4 the progression criteria will not be as onerous as those which will be required for Grades 5 to Senior Technical Specialist. Whilst Grades 3 and 4 are clearly seen as transition points to higher levels of management within the structure and carry additional responsibility, this does not mean work at all lower levels will not be important and demanding. However, it is expected that in setting agreed progression criteria the overwhelming majority of persons within Grades 1 to 4 will achieve the objectives and should move through the salary points. This is to be contrasted with persons in Grades 5 to Senior Technical Specialist. In these Grades agreed objectives will include measures of excellence and skill acquisition commensurate with the high level of responsibility. It is expected that progression at these levels will be both more challenging and difficult to achieve.
(e) Central to progression is the need for supervisors and managers, in consultation with Employees, to determine what should, and can, be delivered to warrant progression through a combination of increasing capability, productivity, performance and professionalism. This interaction between managers and Employees gives authority and integrity to the structure and its sustainability in the long term.
[3] Tucker v State of Victoria [2019] VSC 420.
[4] References to clause numbers will be to clauses in the 2016 Agreement unless otherwise stated.
[5] See generally transcript, 29 April 2020, PN10-25, 29-30.
[12] Macquarie Dictionary online. Accessed 20 May 2020.
[16] AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [23].
[18] MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters' Union v Metropolitan Fire and Emergency Services Board PR973884.
[19] MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 at [21]- [22].
[20] United Firefighters' Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].
[23] [2018] FWC 212 at [45]- [46].
[24] Victorian Public Service Enterprise Agreement 2016, clause 24.3(g)(iv).
[25] Mr Tuckers submissions, 25 March 2020, paragraph 23-26.
[26] See Tucker v State of Victoria (Undertaking as to Damages) [2020] VSC 121, [3]-[4].
[27] Transcript of interim orders hearing, quoted in Tucker v State of Victoria (State Revenue Office) [2020] FWC 2593 at [24].
[28] Home Office v Harman [1983] 1 AC 280.
[32] Email of Mr Tucker to the Fair Work Commission dated Tuesday, 12 May 2020.
[33] Email of Mr Tucker to the Fair Work Commission dated Friday, 8 May 2020.
[34] Email of the State to the Fair Work Commission dated Monday, 11 May 2020.
[35] [2020] FWC 2593, [26].
[38] [2020] VSC 121, [135].
Printed by authority of the Commonwealth Government Printer
Toby Tucker
State of Victoria [2020] FWC 3159