Transport Workers' Union of Australia v K&S Freighters Pty Ltd - [2010] FCA 1225 - FCA 2010 case summary — Zoe

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Transport Workers' Union of Australia v K&S Freighters Pty Ltd

[2010] FCA 1225

Federal Court of Australia|2010-11-12|Before: Cowdroy J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2010-11-12

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (139 paragraphs)

[1]

Background 5 The second applicant, Mr James Sidney Lee ('Mr Lee') is a truck driver, having been so engaged for approximately 35 years, and is a member of the Transport Workers' Union of Australia ('the TWU'), who is the first applicant in these proceedings. 6 The respondent, K&S Freighters Pty Ltd ('K&S'), is a company operating a road freight transport business across several states of Australia. Among other contracts, K&S hold a contract with Coca-Cola for the delivery of Coca-Cola products in Queensland. 7 In mid to late August 2008 Mr Lee commenced employment with K&S as a truck driver working in Brisbane. 8 On the afternoon of 11 February 2009, Mr Lee was required in the course of his duties with K&S to make a delivery of Coca-Cola products to a Woolworths distribution centre at Larapinta in Brisbane. 9 The loading dock at the distribution centre in Larapinta was what is known in the industry as a 'finger-dock', the design of which surrounds the truck on three sides at the same height as the trailer deck when the truck is reversed into it for the purpose of loading and unloading. Such dock was approximately two feet wider than the truck itself, allowing for approximately one foot of space on either side of the vehicle when using the dock. 10 In the course of making the delivery and in manoeuvring the truck into the dock, the vehicle struck a low bollard located at the entrance to the loading dock ('the accident'). Such accident caused the steps on the cab of the truck and the fuel tank to be damaged. Mr Lee immediately called Mr Gavin Gurr, his shift supervisor, and reported the accident. He was told to complete an incident report when he returned to the depot, which he duly did. 11 On 16 February 2009, Mark Ticehurst ('Mr Ticehurst'), a K&S employee employed as the Operations Manager at the Coca-Cola depot at Richlands, informed Mr Lee that K&S had found him to be negligent with respect to the damage to the truck which had occurred on 11 February 2009. 12 Mr Ticehurst then provided Mr Lee with a document headed 'RE Negligent Damage to Company Property' ('the deduction authorisation form') which stated that the accident of 11 February 2009 had resulted in damage amounting to $4,016.70 to K&S property and that it had been determined after investigation that Mr Lee had been negligent in performing his duties. The document stated that K&S proposed to recover the cost of the repair of the vehicle from Mr Lee by an agreed payment plan of a minimum $100 per week, and purported to create an arrangement whereby $100 per week would be deducted from Mr Lee's wages until the purported debt of $4,016.70 was fully satisfied. The document stated: 'Failure to repay this cost may result in the termination of your employment'. 13 Mr Ticehurst demanded Mr Lee sign the deduction authorisation form. Mr Lee declined to do so. 14 The following day, namely 17 February 2009, Mr Lee's employment with K&S was summarily terminated. 15 Mr Lee claims that he has suffered loss and damage as a result of his summary dismissal by K&S including a period of unemployment.

[55]

Formation of the Contract 52 The parties could not agree upon the date when the contract of employment between Mr Lee and K&S had been formed. 53 The applicants submitted that in early August Mr Lee had attended an interview with a representative of K&S and had discussed conditions of the job and rates of casual pay. Later that day Mr Lee had accepted the offer of employment by telephone. Accordingly, the applicants submitted that the contract was formed prior to 18 August 2008, the date that Mr Lee commenced his induction period at K&S. Such interpretation has the consequence that the terms of the various workplace documents such as the Handbook and Vehicle Policy are precluded from incorporation into the contract of employment. The Court notes that the casual driver rates of pay apparently discussed by Mr Lee and K&S at the interview would presumably not apply to a permanent driver such as Mr Lee. 54 K&S submit however that on the proper construction of the employment contract, Mr Lee's employment commenced on 25 August 2008. K&S support this submission by reference to the fact that Mr Lee commenced paid employment on such date (see above at [16]). On this construction, the incorporation of the Handbook and the Vehicle Policy is at least possible given the fact that the Handbook had by that stage been distributed to Mr Lee. 55 The Court finds that it is unlikely that any agreement reached between the parties prior to 18 August 2008 could be said to constitute an entire employment contract, particularly in circumstances where an induction period was undertaken and introductory material was to be provided. The proper characterisation of the contractual negotiations and relationship between the parties must include the circumstances of Mr Lee's induction and the Court must assess whether the material distributed to Mr Lee during his induction period was of a contractual nature. 56 On the evidence before the Court, the Court prefers the respondent's construction and finds that the contract of employment commenced on 25 August 2008. This finding results from the fact that Mr Lee commenced paid employment on this date and because the alternative finding would require the recognition of a contractual employment relationship between Mr Lee and K&S with almost no relevant contractual terms.

[85]

BREACH OF CONTRACT 107 The Court has found that Mr Lee's employment contract is properly understood to include the terms of the Vehicle Policy. It provides that an employee 'may be required to meet part or all of the cost of repairing any damage caused to a Company vehicle, where the employee or a driver authorised by the employee was negligent'. It does not state, as does cl 4.20 of the Handbook, that 'Negligent damage will be costed to the employee'. 108 K&S submitted that although cl 4.20 did not outline the 'mechanism' of the repayment, such clause put an employee on notice that there was a possibility that employees may be required to pay for any vehicle damage caused by their negligence. K&S submit that the reasonable person referred to by the High Court of Australia in Toll at [40] (see above at [61]) would have understood the clause to mean as much. 109 K&S submitted that the negligence policy directive sent by Mr Winser on 11 February 2009 constituted a direction to Managers of the way in which K&S would thereafter exercise its 'unfettered discretion' to render negligent drivers liable for the repairs of damaged vehicles. Such submission relies on an acceptance that the various terms incorporated from the Handbook and the Vehicle Policy establish an unfettered discretion to recoup money from employees found to be negligent in damaging their vehicles. 110 The Court has found at [86] that cl 4.20 of the Handbook has no contractual force in respect of the employment of Mr Lee. K&S's purported 'unfettered discretion' to recoup vehicle repair costs from drivers found to be negligent must then, if it exists, arise by force of the Vehicle Policy itself. 111 The applicants however submit that even if the terms of the Vehicle Policy are incorporated into the employment contract, such terms simply do not authorise the specific regime that K&S sought to enforce in demanding Mr Lee sign the deduction authorisation form or be summarily terminated. Accordingly, the applicants submit that K&S breached Mr Lee's contract by terminating him. 112 The applicants point to the fact that the regime pursuant to which Mr Lee was terminated, that is the regime outlined by the negligence policy directive, required a mandatory repayment by negligent employees of the total costs of repair to damaged vehicles at a minimum rate of $100.00 per week on pain of automatic summary dismissal. The applicants claim that the terms of the Vehicle Policy cannot support such an exercise in that the policy only provides that drivers: … may be required to meet part or all of the cost of repairing any damage caused to a company vehicle, where the employee of driver authorised by the employee was negligent. [Emphasis added]

[92]

125 Despite these observations, the Court considers that the Vehicle Policy did not, on its proper interpretation, entitle K&S to implement regime mandated by the negligence policy directive of 11 February 2009. The text of such policy is not sufficiently specific to support the mandatory enforcement required by the regime proposed by the negligence policy directive. The text does not refer to a minimum payment of $100 per week nor does the regime proposed by the negligence policy directive reflect the discretionary nature of the Vehicle Policy in respect of the repayment amount, the entitlement of K&S to terminate and even the requirement that repayment be made. The Vehicle Policy likewise makes no provisions for the determination of negligence on the part of the employee. 126 The Court is fortified in this conclusion by the evidence given by Mr Ticehurst and Mr Winser regarding the company's old driver negligence policy. According to such evidence, the old driver negligence policy had never been enforced so as to require a negligent driver to pay for vehicle repair, nor had employees been terminated under its terms. 127 The Court considers on the evidence before it that Mr Lee was not aware of the negligence policy directive sent by Mr Winser, nor was he aware of the new negligence policy that the directive sought to implement. If K&S was to rely on the Vehicle Policy to justify the enforcement of the new driver negligence policy on Mr Lee it was required to take appropriate action before 11 February 2009 to ensure its employees were not only made aware of the Vehicle Policy but also aware of how K&S proposed to exercise their rights under it, particularly in circumstances where there had been a fundamental change in the implementation of the policy from past practice. 128 The Court notes as above at [46]-[47] that Mr Ticehurst gave evidence regarding the distribution of the Vehicle Policy to employees on 13 February 2009 which conflicted with the testimony of Mr Lee. In any event such action was apparently undertaken after Mr Lee's accident of 11 February 2009 and as such is of no consequence to the current proceedings.

[93]

Breach of Contract Finding 129 It follows from the above that a requirement that employees repay the cost of the repair associated with negligent damage to a vehicle was not a condition of employment of Mr Lee at the time of the accident. The Handbook indicated that K&S might introduce new policies or vary, change or alter its existing policies, and this is not an unusual provision (see McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 at [66]). However, since no notice was given prior to the accident of the fundamental change in both the policy and its application, K&S had no contractual basis for relying upon it to justify the termination of Mr Lee. 130 It follows that there was no basis entitling K&S to require Mr Lee to agree to meet the costs of repair to the vehicle nor to agree to deductions from his wages to meet such costs. Mr Lee was entitled to refuse to agree to the deduction. 131 A breach of a contract of employment may entitle an employer to terminate the agreement without notice: see Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [238]. However, the only ground available to K&S to summarily terminate Mr Lee's employment under his employment contract was on the basis of serious misconduct. Such entitlement could be said to have been incorporated into the contract by the common law, cl 2.23 of the Handbook or cl 9.6 of the Queensland Agreement which incorporated the termination provisions of the WR Act. 132 On the evidence before the Court, grounds for a finding of serious misconduct do not exist. It follows that the dismissal was unlawful. 133 Although in view of the above finding it is unnecessary to make any further finding on this issue, the Court observes that by attempting to impose the regime outlined by the negligence policy directive of 11 February 2009, the respondent thereby became the sole arbiter in respect of whether an employee had been guilty of negligence. 134 The Court observes that the Queensland Agreement contains provision relating to the taking of disciplinary action. Clause 9.5(c) provides: All incidents or accidents potentially involving disciplinary action will be thoroughly investigated and during such investigation an employee may be stood down. If as a result of the investigation, the allegation is not substantiated, the employee will be reinstated without loss of ordinary pay.

[99]

(1) If: (a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise. (2) … 142 The Applicants submit that Mr Lee's termination constitutes a breach of the WR Act in that his dismissal occurred as a result of his refusal to sign the deduction authorisation form. Such form purported to authorise K&S to make weekly deduction from his wages which would have, in effect, reduced his weekly pay to a level below that stipulated by the Queensland Agreement. The applicants maintain that Mr Lee's dismissal was a direct result of his refusal to accept an amount less than full pay and as such was a contravention of the WR Act. Alternatively, the applicants submit that K&S have not rebutted the presumption contained in s 809 of the WR Act. 143 In reply, K&S submit that the proviso contained in s 792(4) of the WR Act has application. Section 792(4) provides: Dismissal etc. of members of industrial associations etc. … (4) An employer does not contravene subsection (1) because of paragraph 793(1)(i) unless the entitlement described in that paragraph is the sole or dominant reason for the employer doing any of the things described in paragraphs (1)(a), (b), (c), (d) and (e) of this section. 144 The predecessor to s 792(4) of the WR Act was first introduced as a Senate amendment to the Workplace Relations Amendment (Work Choices) Bill 2005 and was then incorporated into the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)('the Work Choices Amendment Act')as s 253(3A). Such Act received Royal Assent on 14 December 2005. By operation of Schedule 5 of the Work Choices Amendment Act,s 253(3)(A) was subsequently re-numbered and commenced operation as s 792(4) of the WR Act on 27 March 2006. 145 K&S submit that Mr Lee's refusal to accept pay less than his full entitlement under the award was not the sole or dominant reason for his termination but rather was an outcome of an attempt to 'change the culture' of those employed as drivers at K&S. K&S submit that the negligence policy directive from Mr Winser contained two intrinsically linked components. The first component proposed that there were to be deductions made to employee wages in cases of negligent damage and the second component proposed that if an employee refused to agree to such deductions their employment would be terminated.

[114]

DAMAGES 170 In view of the finding that K&S has wrongfully terminated Mr Lee's contracted employment, the question of loss and damage arises. 171 The evidence establishes that Mr Lee has been successful in mitigating his loss of wages by engaging in employment of a part-time nature. During the 24 weeks that he was employed by K&S Mr Lee received the amount of $45,479.00 gross. Projecting such income forward for 66 weeks (until the hearing of this application) he estimates that he would have earned a further $125,067.25. After his termination, Mr Lee was able to obtain short engagements with the result that he submits his loss of income has been reduced to the amount of $45,952.39. 172 The applicants submitted that Mr Lee, who was aged 65, expected to work for a further 12 months. Accordingly the applicants' claim for future economic loss in the amount of $40,227.80. Such amount has been discounted using a multiplier of 5% to bring the value of his projected earnings to present day values. Accordingly, his total claim for economic loss is $86,180.19. 173 K&S denied from the outset any breach of the contract of employment. However K&S submitted that should the Court find it to be in breach of contract K&S would be entitled to avail itself of the 'least burdensome performance' principle as considered in Gunton v Richmond-Upon-Thames London Borough Council[1981] 1 Ch 448 at 469. K&S submits that if breach is found, damages should be assessed on the basis that K&S had an entitlement to terminate Mr Lee's employment without cause on the provision of reasonable notice. K&S submit that accordingly any damages flowing to Mr Lee would be limited to an amount reflecting Mr Lee's wages for the period of that reasonable notice. 174 K&S submitted that the relevant statutory notice period for dismissal without cause where an employee has been employed for less than 6 months is one week up to a maximum of 12 months. The Queensland Agreement incorporates the notice provisions of the WR Act and accordingly provides the same range. K&S submit that such fact is relevant in assessing reasonable notice in the particular case of Mr Lee.

[117]

177 For the expression of such principle in Australian law see Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 32. See also Dyer v Peverill (1979) 2 NTR 1. 178 K&S submit that according to such principle, the damages to which Mr Lee is entitled arising from any breach of contract are limited to the amount due to him had he been terminated subject to reasonable notice on the day of his unlawful summary termination. 179 K&S acknowledge that the calculation of reasonable notice is dependent upon the particular circumstances of the employee and is a question of fact. Such circumstances include the availability of alternate employment, the nature of the employment, degree of responsibility and dedication required in the role, size of the salary, importance of position, length of the employee's service and the employee's age, experience, qualifications and professional standing: see Rankin at[219] to [224]. 180 In assessing such circumstances, K&S submit that taking into account the short period of time that Mr Lee was employed (less than six months), the nature of his employment, his remuneration received and the statutory minimum which in this case consisted of one week, the applicable term of reasonable notice 'would have been no more than a month or two'. 181 The applicants submitted that the Court should not accept K&S's contention that damages should be limited to the sum that would have been payable had K&S sought to terminate Mr Lee with reasonable notice, and claim that the 'least burdensome performance principle' is not to be applied mechanically in every case.The applicants referred to TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 wherein Hope JA at 154 addressed the 'least burdensome performance principle' as follows: In the first place the question of what is the least burdensome mode of performing the contract for the defendant is not to be tested by isolating the particular contractual provision and the defendant's rights under it from the rest of the relevant circumstances.

[123]

187 The evidence before the Court suggests, consistent with the intention underlying the negligence policy directive, that had K&S not terminated Mr Lee summarily, the company would have most likely proceeded to terminate Mr Lee with notice. Accordingly, the circumstances of this case are very different to those that were considered in TCN Channel Nine and Amman. 188 Such a result is not, in the Court's view, 'an improbable factual hypothesis' but rather reflects a realistic assessment of a scenario in which K&S was seeking to enforce their new driver negligence policy with a view to 'change the culture' of K&S drivers. The fact that K&S summarily dismissed Mr Lee on 17 February 2009 demonstrates that K&S no longer wished to employ Mr Lee if he refused to accede to the requirements of the new driver negligence policy. It is open to the Court to assume that had K&S been informed that they could not summarily dismiss Mr Lee for refusing to authorise deductions, the company would have taken steps to exercise their entitlement to terminate Mr Lee with notice. 189 The applicants have submitted that such a course would 'have borne no relationship to [the] objective [of] changing the culture'. The Court rejects such submission. Clearly the decision of K&S to pursue summary dismissal of negligent drivers who refused to authorise deductions from their salary was a decision made in furtherance of a wider policy that could have been effectively enforced even if non-consenting drivers possessed the entitlement of reasonable notice. Mr Winser testified that one of the purported aims of using a system of wage reduction to recoup repair costs arising from negligent damage to vehicles was to change the behaviour of K&S drivers while at the same time keeping them employed. Such a policy could still be enforced through the use of termination with notice instead of summary dismissal. 190 K&S did not have the legal entitlement to summarily terminate Mr Lee for his failure to sign the deduction authorisation form. K&S did however possess the right to terminate Mr Lee with or without cause, with appropriate notice. It stands to reason that in implementing their wider driver negligence policy, K&S, if informed of their inability to summarily terminate Mr Lee, would have availed itself of its contractual right to terminate him with reasonable notice. 191 The Court emphasises that such conclusion is predicated upon the facts surrounding Mr Lee's employment. The fact that Mr Lee had been engaged as an employee for less than six months and as such had no recourse to an unfair dismissal claim is critical in this finding. Had Mr Lee been engaged for a longer period, thereby increasing the period of notice due and exposing K&S to an unfair dismissal claim, alternative remedies may have been available.

[134]

199 The Queensland Agreement is an example of a pre-reform certified agreement in that it was certified before the commencement of Schedule 1 to the Work Choices Amendment Act. Accordingly the Court has the power, on application by a company or a subjected employee, to make an interpretation of the Queensland Agreement that will be binding on K&S and its employees employed under such agreement.Additionally, the Court has power under s 21 of the Federal Court of Australia Act 1976 (Cth) to make declarations of right. 200 K&S oppose the making of such an order. K&S submit that the making of such an order is discretionary: see Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd (1997) 79 FCR 96 at 113. K&S further submit that it is not for this Court under the guise of interpretation to undertake a factual investigation, make findings of fact and then determine whether those facts give rise to a particular construction: Mount Thorley Operations Pty at 106. See also The Amalgamated Engineering Union v The Metal Trades Employers Association (1944) 52 CAR 23 at 24; The Clerks (Shipping) Award; Ex parte Lloyd Timber Mills Ltd (1954) 78 CAR 201; and Media Entertainment and Arts Alliance v John Fairfax Group Pty Ltd (1993) 49 IR 374. 201 K&S submit that in formulating the Queensland Agreement the parties did not turn their minds to the issues addressed by the declarations sought. 202 K&S submit that the parties' intention to leave the issue of termination unaddressed in the Queensland Agreement is apparent on the face of cl 9.6 which specifically defers the issue of termination to the terms of the WR Act. K&S submit that the Court's task is not to imply a term into the Queensland Agreement but rather to interpret it and determine whether any declaration of that interpretation is appropriate. Accordingly K&S submit that the Court cannot interpret the Queensland Agreement in respect of a matter not considered by the parties. 203 K&S also submit that the proposed declaration would be invalid as it seeks to capture any circumstances in which an employee is dismissed for a refusal to authorise deductions for negligent damage. K&S submit that in certain circumstances, authorised deductions from the wage of a worker found to be negligent may be eminently appropriate and the proposed declaration would prevent such procedures from being undertaken. K&S further submit that the consideration of the Court should be directed to the Queensland Agreement itself and further to the general effect of the proposed declaration as opposed to the specific circumstances of Mr Lee: see Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358 at 360-363. 204 The applicants submit in reply that the specific references to vehicle accidents and termination of employees in cl 9.5 and cl 9.6 of the Queensland Agreement are an indication that the parties did in fact turn their minds to the matters addressed by the proposed declaration and thus the Court may make an interpretation of the Queensland Agreement in relation to such matters. 205 The applicants further submit that while the declaration sought is of a more general nature than the specific circumstances of Mr Lee's accident and termination, such declaration is nevertheless only concerned with deductions of a coercive nature and accordingly is not so wide as to preclude the parties from creating genuinely consensual arrangements where deductions to wages may be appropriate in the given circumstances.

[138]

Finding 211 Before the Court can make the declaration sought, it must be satisfied that the Queensland Agreement was intended to regulate the subject matter of the declaration, in this case wage reduction, negligent vehicle damage and employee termination. If the Queensland Agreement can be said to 'cover the field' in this respect, the Court is empowered to make the declaration sought. Alternatively if such agreement is silent on the relevant matters and relevant terms cannot be implied, it cannot be said that the parties have reached agreement in regard to such matters and accordingly it would not be open to the Court to make the declaration sought. 212 The Court concurs with the applicants' submission that there is no provision contained in the Queensland Agreement which requires an employee to authorise deductions from their weekly wages in order to pay for the repair costs of a K&S vehicle which has been damaged negligently. Nor is there any provision within the Queensland Agreement authorising K&S to dismiss an employee for a refusal to authorise such deductions. These are the undisputed facts. 213 The Court is of the opinion however that the Queensland Agreement did not adequately address the issues of vehicle damage and termination of employees so as to enable the Court to make the declaration as sought. 214 Any declaration made by the Court would be binding on all future circumstances governed by the Queensland Agreement. K&S provided to the Court, by way of example, details of scenarios in which an employee's contribution toward repayment of repair costs caused by negligence might be entirely appropriate. Without making any specific finding on the examples provided, such examples sufficiently demonstrate the disparity between the specific facts regarding Mr Lee's termination and the terms of the declaration sought. 215 The Court is satisfied that in the particular circumstances of Mr Lee's case, the various agreements and policy documents governing his employment did not authorise the requests that were made of him and his subsequent termination. The Court is not however satisfied that such result would necessarily apply in all cases under the Queensland Agreement, particularly in circumstances where the Court is satisfied that the parties to the agreement did not contemplate the prospect of employee wage-deductions for the payment of repairs in respect of negligent damage. 216 The Court is satisfied that the parties to the Queensland Agreement did not turn their minds to the prospect of employee contributions for the repayment of negligent damage. Accordingly, the Court finds that a declaration in the terms sought would not be appropriate, and declines to make the declaration sought.

Parties

Applicant/Plaintiff:

Transport Workers' Union of Australia

Respondent/Defendant:

K&S Freighters Pty Ltd

Legislation Cited (6)

Industrial Relations Act 1999(Qld)s 391

Workplace Relations Act 1996(Cth)ss 16, 792, 792(4), 793, 809, 824

Workplace Relations Amendment (Work Choices) Act 2005(Cth)

Conciliation and Arbitration Act 1904(Cth)

Workplace Relations Regulations 2006(Cth)

Federal Court of Australia Act 1976(Cth)

Cases Cited (23)

malgamated Engineering Union v The Metal Trades Employers Association (1944) 52 CAR 23 Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Byrne v Australian Airlines (1995) 185 CLR 410 John Fredrick Causer v Austral Bronze Crane Copper Pty Ltd (1970) 25 Industrial Information Bulletin 1715 City of Wanneroo v Holmes (1989) 30 IR 362 The Clerks (Shipping) Award; Ex parte Lloyd Timber Mills Ltd (1954) 78 CAR 201 The Commonwealth v Amann Aviation Pty. Limited (1991) 174 CLR 64 Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd (1997) 79 FCR 96 Crofter Hand Woven Harris Tweed Company Ltd and Others v Veitch and Another (1942) AC 435 Dyer v Peverill (1979) 2 NTR 1 The Employment Advocate v National Union of Workers and Another (2000) 100 FCR 454 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union and Another (2001) 112 FCR 232 Gunton v Richmond-Upon-Thames London Borough Council [1981] 1 Ch 448 Kucks v CSR Limited (1996) 66 IR 182 Maritime Union of Australia and Others v Geraldton Port Authority and Others (1999) 93 FCR 34 Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1981) 54 FLR 358 McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 Media Entertainment and Arts Alliance v John Fairfax Group Pty Ltd (1993) 49 IR 374 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Robinson v Harman [1843-60] All ER Rep 383 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Thorby and Others v Goldberg and Others (1964) 112 CLR 597 Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165

(2003) 126 IR 165

(2010) 193 IR 251

(1992) 36 FCR 20

(1995) 185 CLR 410

(1989) 30 IR 362

(1991) 174 CLR 64

(1997) 79 FCR 96

(2000) 100 FCR 454

(1976) 12 ALR 605

(2001) 112 FCR 232

(1996) 66 IR 182

(1999) 93 FCR 34

(1981) 54 FLR 358

(2007) 168 IR 375

(1993) 49 IR 374

(2001) 107 IR 117

(1989) 16 NSWLR 130

(1964) 112 CLR 597

(2004) 219 CLR 165

(2000) 177 ALR 193

(1979) 26 ALR 430

[2007] FCAFC 120