Fair Work Act 2009

s.418 - Industrial action

Order to stop industrial action at Viva Energy Refining Pty Ltd

[1] On the morning of Tuesday 13 March 2018, an application was made by Viva Energy Refining Pty Ltd (Company) under s.418 of the Fair Work Act 2009 (the Act). The application sought an order from the Commission that unprotected industrial action not occur. The proposed order was directed at eighty-three[1] employees of the Company who are members of its Fire Auxiliary Team at the Company's refinery in Geelong, Victoria. The employment of the eighty-three employees is covered by the Viva Energy Refining Enterprise Agreement 2014 - Geelong Operator Employees (Agreement). The nominal expiry date of the Agreement is 14 June 2018.

[2] Section 420(1) of the Act requires that as far as practicable, an application under s.418 be determined within 2 days after it is made. I listed the matter for hearing on Wednesday, 14 March 2018, at 13.00. The Company was represented, with the Commission's permission under s.596, by Ms Gaspar of Herbert Smith Freehills. Mr Stephen Jones, one of the named respondents, appeared on his own behalf. Mr Sam Wood appeared on behalf of the Australian Workers' Union, which was not named as a respondent, but intervened in the proceedings.

[3] On the evening of 14 March 2018, after considering the evidence and the submissions of the parties, I made an order under s.418(1) that unprotected industrial action not occur (Order). I indicated to the parties that I would provide written reasons for making the Order in due course. This decision sets out those reasons.

[4] The background to the present matter was not in contest and is set out in Viva Energy's application and the witness statement of Mr Glenn Lyons, the operations manager of the refinery.

[5] The Company operates an oil and gas refinery plant in Geelong, Victoria. The refinery is a 'major hazard facility' for the purposes of the Occupational Health and Safety Regulations 2017. Such facilities require a licence to operate from WorkSafe Victoria. According to the evidence of Mr Lyons, which I accept, the licencing process requires the operator of a facility to demonstrate its operational safety through a 'safety case', including that its safety management system provides a comprehensive and integrated system of risk control.[2] Further, the operator of a major hazard facility must have in place an emergency plan, which identifies the allocation of personnel and the responsibilities of those personnel for implementing the plan.[3]

[6] The eighty-three respondents work as operational employees at the refinery plant. They are also members of the Fire Auxiliary Team, and are required by the Company to undertake emergency fire response in the event of an emergency or incident at the refinery, in accordance with clause 32.10 of the Agreement. The employees (also called 'auxiliaries') have been provided with fire training and are paid an allowance. Clause 32.10(iv) of the Agreement requires that on each shift there must be a minimum of twenty-five auxiliaries to ensure that minimum safety requirements are met.

[7] The auxiliaries support the Company's Emergency Response Operators (EROs), who are a separate group of emergency specialists. In an emergency, the auxiliaries operate under the direction and control of the shift controller, and the ERO Team Leader.

[8] As part of an operational review, the Company has recently sought to restructure some of its personnel arrangements at the refinery. This has involved a 'management of change process' (MOC) which comprises various stages. In connection with the restructure, the Company offered certain voluntary redundancy packages to EROs. As of Saturday, 10 March 2018, two EROs had accepted redundancy packages. The Company intends to deploy contractors to perform the ERO work previously undertaken by these two employees. Historically there have been two Company EROs (EROs employed by Viva Energy) rostered on each shift to respond to any incidents. There will now be one Company ERO and one contractor ERO for each shift.[4]

[9] On Monday, 12 March 2018, the Company received an email from Mr Stephen Jones, a member of the Fire Auxiliary Team. The message stated that it was sent on behalf of health and safety representatives, operators and the 'Emergency Response Group'. It further stated that employees of the Company who were engaged in operational roles believed that the proposed changes to the Emergency Response Group increased the risk to the health and safety of the Company's employees. In this regard it referred to the proposed use of contractor EROs in place of company EROs, as well as certain other matters. The message stated that it attached a 'letter of resignation from the Fire Auxiliary team'. This attached letter was signed by 103 employees, including the eighty-three named employees. It relevantly stated:

'We the undersigned are not willing to compromise on our health and safety and deem this an unacceptable and unnecessary risk. We the undersigned therefore put the company on notice that in the event of either of the following:

1. Any of the changes being made before the training of Auxiliaries is at the standard necessary to be deemed safe by the workforce

2. Any changes are made before all the suite of MOC's are completed

We the undersigned resign from the Fire Auxiliary team as per clause 32.10 Emergency Response (fire) Auxiliary Allowance.'

[10] It will be apparent that the resignation referred to is contingent on either of the two specified events occurring. It became clear during the hearing that the resignation letter was prepared some months ago. It is not necessary for present purposes to expand upon the circumstances surrounding the preparation of the letter and the two contingencies. Mr Wood, Mr Jones, and Mr Lyons all agreed that the second contingency referred to in the letter had occurred; that is, a change was made before all of the 'Management of Change items' had been completed, namely the replacement of two ERO employees with contractors.

[11] The Company contended that employees who have been provided with the requisite fire training by the Company and who form part of the Fire Auxiliary Team can be lawfully and reasonably directed to provide emergency fire response at the refinery plant, and can only seek to withdraw from the Fire Auxiliary Team in the circumstances outlined in clause 32.10 of the Agreement. The Company said that the resignations had not complied with this clause. It further submitted that the resignation of employees from the Fire Auxiliary Team falls within the definition of industrial action in s.19 of the Act, constituting either the performance of work by employees in a manner different from that in which it is customarily performed; the adoption of a practice in relation to work by employees, the result of which is a restriction or limitation on, or a delay in, the performance of work; or a ban or restriction or limitation on the performance of work by employees.

[12] Mr Jones and Mr Wood opposed the Company's application. First, they contended that it had not been established that employees were failing to comply with a direction to remain available to work and respond to emergencies, and that Mr Jones had encouraged them to comply with any such direction.

[13] In this regard, Mr Jones submitted that on 13 March 2018, he sent to Mr Lyons an email, setting out the text of an earlier message he had sent to the employees in the Fire Auxiliary Team. As Mr Jones explained in his evidence, the message he sent to the team contained a suggested script of how employees should respond to questions from the Company about their action. The following is an extract of Mr Jones' email to Mr Lyons (the italicised passages are to be understood as text from Mr Jones' earlier message to employees):

"As per our telephone conversation at 1130 today, I advised you of the information sent to Operators in regard to their Fire Auxiliary resignation and the expectations of them if they were lawfully instructed to carry out the duties of fire auxiliary. For clarity below is the wording they received. As far as we are aware no Fire Auxiliary has refused to comply, thus no unprotected action has occurred.

I have resigned from the Fire Auxiliary team as per the EBA. I reasonably believe that by removing one of the Viva full time ERO's with many years' experience and replacing them with a contractor with little to no experience, would put my safety at risk if I were to attend an emergency.

If my resignation from the Fire Auxiliary Team is not accepted by the company and the company is lawfully instructing me to perform Fire Auxiliary duties, I will comply with the company's instruction and also seek advice from the AWU as to whether the instruction is lawful. If an emergency scenario was to unfold that required my attendance, I will assess the situation and if I feel that my safety is in danger I will withdraw to a safe distance.

As stated during our conversation, this is a health and safety matter, not industrial. As a HSR I am requesting the company set up a meeting with Worksafe, HSR's & Viva to discuss the concerns of the Fire Auxiliary team."[5]

[14] Mr Wood and Mr Jones further contended that any action taken by employees fell within the 'safety' exception to the definition of industrial action in s.19 of the Act, namely that it does not encompass action by an employee if that action is 'based on a reasonable concern of the employee about an imminent risk to his or her health or safety', and the employee did not unreasonably fail to comply with directions to perform other available work.

Are the employees required to work in the Fire Auxiliary Team?

[15] Before it can be established that the resignation of the employees from the Fire Auxiliary Team amounts to industrial action for the purposes of the Act, it is necessary to consider whether there is any obligation on those employees to remain members of the team.

[16] Clause 32.10 of the Agreement concerns the Fire Auxiliary Team. Clause 32.10(i) addresses the requirement of employees to be members of the team. It states:

"(i) Following commencement of employment, once an employee has been provided with basic fire training, and is deemed competent and is required by the Company to undertake the duties, they are eligible for the allowance. New employees must maintain competency and are required to be on the Fire Auxiliary Team for a minimum of 3 years. The Operations Manager must approve any exception to this."

[17] Clause 32.10(ii) requires employees to attend certain training. Clause 32.10(iii) states that the allowance afforded to team members is paid 'for their obligation to participate in all related activities including training, as well as the requirement to attend training off site ...'

[18] Clause 32.10(iv) then states that each shift 'must have a minimum of 25 employees (subject to any change by the company to ensure Major Hazard Facility minimum safety requirements are met) who are part of the Fire Auxiliary team and as such are in receipt of the allowance.'

[19] The clause also regulates the circumstances in which an employee may leave the team. It provides that employees who have served at least 3 years and no longer wish to participate, 'may remove themselves if the numbers on their shift are over 25.' Employees who cannot meet the physical requirements of the role have 'first priority, followed by other employees in order of years of service' (clause 32.10(v)).

[20] In my view, a plain reading of this provision establishes that there is a requirement for employees to serve in the Fire Auxiliary Team from the commencement of their employment and that they must remain members under clause 32.10 until such time as they withdraw from it in accordance with the requirements of that clause.

[21] It may be that some of the eighty-three employees are able to resign from the team in accordance with the requirements of clause 32.10. I asked Mr Lyons about this during his evidence, and he confirmed that this may be the case. He noted however, that it would be necessary to ascertain that the resignation of a particular employee or employees would not offend the requirement of clause 32.10(iv) that each shift have a minimum of 25 Fire Auxiliary Team members. The resignation of eighty-three members en masse is contrary to this requirement. Nor have the priority rules established by the clause been observed.

[22] The purported resignations did not occur in conformity with the clause. The 'resignation letter' states that the resignations are 'as per' clause 32.10, but plainly in my view this is not so.

[23] Next it is necessary to consider the contention of Mr Wood and Mr Jones that the employees concerned have not refused to comply with any direction that they remain available for work.

[24] As noted earlier, it was common ground that one of the 'contingencies' or triggers for the resignations had occurred. Further, the email message by which Mr Jones sent the 'resignation' letter to Mr Lyons described it as a 'resignation letter'. It was not seriously contended that the employees in question had not in fact resigned from the Fire Auxiliary Team, however it is appropriate that I briefly address this question.

[25] The Fire Auxiliary Team employees whose signatures appear on the letter subscribed to a statement that the undersigned 'resign from the Fire Auxiliary Team' in the event of either of the two contingencies occurring, stating that they 'do so as a last resort'. The language of the document clearly conveys that the resignation is self-executing; no further steps to effectuate it are contemplated. The document does not say that employees will or might resign, but simply 'resign' in the event of either situation arising. The resignations were communicated to the Company by Mr Jones, after he consulted with approximately fifty of the Fire Auxiliary Team employees whose signatures appear on the letter.[6]

[26] Mr Jones' evidence was that he had recommended in his email to employees in the Fire Auxiliary Team that, if the Company did not accept their resignation, and the Company lawfully and reasonably instructed employees to perform Fire Auxiliary Team duties, they should comply. He said that none had refused to do so.

[27] It is not clear what authority Mr Jones has to make a recommendation to employees or otherwise how persuasive such a recommendation might be. It is not known what practical effect his message has had on Fire Auxiliary Team employees. Furthermore, although Mr Jones may have suggested in his email to employees that they comply with a lawful and reasonable direction from the Company to perform fire auxiliary duties, he also appeared to question whether any direction to perform this work would be lawful.

[28] Mr Lyons' evidence was that no employees had advised him that they had withdrawn their resignation. Indeed Mr Jones confirmed that he had not withdrawn his own resignation.[7] Further, Mr Lyons gave evidence that, since the resignation letter was received, employees had not been nominating as auxiliaries at the start of each shift. He said that on 13 March 2018 he wrote to all employees about the 'resignation letter,' stating that the Company requires them to remain on the Fire Auxiliary Team and to provide emergency response as required. His letter further stated that failure to comply could result in disciplinary action, and noted that the resignation had threatened the emergency response capability of the site.

[29] In my opinion, the Company has clearly rejected the employees' resignations, and by its letter of 13 March 2018 issued a direction that it 'requires (employees to) remain on the Fire Auxiliary Team.'[8] The Company has 'tested' the ban. But even if it had not, the fact remains that employees have, by their resignations, imposed a ban on duties that are required of them under the Agreement. 'Testing' a ban can provide evidence of a ban's existence. However, in the present case, there is already clear evidence that the ban is in place.

[30] In my view, the eighty-three employees who are members of the Fire Auxiliary Team and whose signatures appear on the resignation letter have purported to resign from the Fire Auxiliary Team - 'purported' in the sense that the resignations were not in compliance with clause 32.10 of the Agreement. By this, employees have indicated to the Company that they are not ready and willing to undertake these duties. It may be that following Mr Jones' email, and the letter of Mr Lyons, some of them have reconsidered their position. But the evidence does not establish that any of them, including Mr Jones, has retracted the resignation or otherwise indicated that they are ready and willing to perform the work required of them under clause 32.10 of the Agreement.

[31] Mr Wood and Mr Jones contended that, if employees had resigned from the Fire Auxiliary Team, this action fell within the 'safety' exception to the definition of industrial action in s.19 of the Act. This objection goes to the heart of what appears to be the disagreement between the parties, namely whether the use by the Company of a contractor to perform the role of an ERO compromises safety. It was evident during the hearing that Mr Wood and Mr Jones have broader safety-related concerns about various matters at the site however none of these appeared to me to be relevant to the present proceedings.[9]

[32] The resignation letter refers to the Company's proposal to replace employee EROs with contract emergency response employees, and states that this is an 'unacceptable increase in risk' to the employees' safety. It states that the undersigned 'reasonably believe' that the company may be in breach of s.21 of the Occupational Health and Safety Act, which requires an employer to provide and maintain a working environment that is safe and without risks to health. The resignation letter further states that the undersigned 'are not willing to compromise on our health and safety'. It ends with the words 'we do this [resign] to protect our health and safety'.

[33] Mr Jones gave evidence that, as an operator and member of the Fire Auxiliary Team, he considered that he had a reasonable fear for his safety, should he be required to work alongside an ERO who is a newly appointed contractor, rather than an employee of the Company. However, neither in the resignation letter nor in Mr Jones' evidence was there any convincing explanation of what the nature of the alleged safety risk was said to be. It is not sufficient that an employee characterise a safety concern as reasonable. The reasonableness of the concern must be explained, or at least be explainable.

[34] In response to a question from me, Mr Lyons stated that the level of testing and approvals to which a contractor ERO is subjected is of the same standard as that applied to employees.[10] Mr Jones and Mr Wood contended that contractors would not be 'as good' as the direct ERO employee because the two employees who have accepted voluntary redundancy are more familiar with the site than newly engaged contractors. However, such an argument would apply equally to a newly appointed direct employee. The fact that a new operator (employee or contractor) is not as familiar with the site as another operator does not establish a safety risk. I note that Mr Lyons gave evidence that the contractors have met all of the relevant competency requirements.[11]

[35] To fall within the safety exception in s.19, the action of an employee must be based on a 'reasonable concern of the employee about an imminent risk to his or her health or safety'. In my assessment, there is no evidence before the Commission that the deployment of a contractor in the role of ERO poses any safety risk to employees who are members of the Fire Auxiliary Team, or to other employees or any other person. Mr Jones and his colleagues evidently do not have confidence in the contractors with whom they might be required to work in the event of an incident at the refinery. But no objective basis for any safety concern has been established. Nor is there anything to suggest that any safety concern, real or perceived, poses an imminent risk.

[36] As noted above, the Geelong Refinery is a major hazard facility. It is highly regulated and subject to licensing requirements. The change that is the subject of the alleged safety concern relates to the fact that, whereas previously two employees in the Emergency Response team would be rostered on each shift to respond to incidents, there is now one Viva Refinery ERO and one contractor ERO. The same approval standards apply to contractor and employee alike. The fact that there may be some unease among members of the Fire Auxiliary Team about this change does not mean that it poses an imminent safety risk.

[37] I appreciate that there are various disagreements between the Company, employees and the union as to safety-related issues at the site, including in relation to the use of ERO contractors. It is not my role in these proceedings to resolve those matters. However, for the purposes of the present application, I have considered Mr Jones' and Mr Wood's contention that the resignations fall within the 'safety exception' to the definition of industrial action in s.19. In my view they do not. The evidence does not make good the claim. No objective basis has been offered as to why the alleged safety concern is reasonable, nor have I been able independently to ascertain any such basis.

[38] Finally, there was a suggestion on the part of Mr Wood and Mr Jones that the present matter was purely safety-related, and therefore not industrial in character. In considering whether particular action constitutes industrial action, it is relevant to consider (although it is not a determinative consideration) whether the action is taking place outside the area of disputation and bargaining.[12] In my view the action taken by employees does have an industrial character. Two employees of the Company have accepted voluntary redundancies. The employees in the Fire Auxiliary Team consider that these employees ought not to be replaced with contractors. This is a matter of workplace disputation. I note that the email message of Mr Jones to Mr Lyons and others dated 12 March 2018 states that 'we the operations group demand that we have the same or better level of emergency response available to us prior to the changes that have just been made' (emphasis added). The presence of a demand underscores the industrial character of the action.

[39] Before setting out my conclusions, it is appropriate to make some observations on the question of procedural fairness.

[40] The application sought orders against eighty-three named employees. Although Mr Jones attended the proceedings, and appears to have assumed something of a leadership role, or acted as spokesperson for the employees, he is not necessarily to be taken as their representative. Similarly, although the AWU intervened in the proceeding, evidently to support the interests of the employees, many of whom are its members, it cannot be assumed that through the union all named employees have a voice.

[41] It is well-established that the Commission is bound to observe the rules of procedural fairness and that this obligation extends to the exercise of its powers under s.418.[13] Procedural fairness requires that persons who may be affected by a decision be informed of the case against them and that they be given an opportunity to answer it, such opportunity being reasonable.[14]

[42] The issuing of orders under s.418 is a serious matter, particularly when such orders are made against individuals who may have no or little experience of proceedings of this kind and their implications. Pursuant to s.421 of the Act, a person to whom an order under s.418 applies must not contravene a term of the order. Section 421 is a civil remedy provision. Breach of the provision may expose a person to penalties and injunctions. Furthermore, under s.675 of the Act, if an order of the Commission applies to a person, and the person engages in conduct which contravenes the order, the person commits an offence punishable by imprisonment for up to 12 months.

[43] On Tuesday 13 March 2018, I issued a notice of listing for the following day, together with a direction that the Company personally serve employees with the application and notice of listing. Although the rules of the Commission provide for service by email, I was concerned that, in the setting of an urgent application listed for the following day, and in the absence of any organisation or person formally representing the eighty-three employees, some or all of them might not have notice of the proceedings unless they were personally served. At the commencement of the hearing, counsel for the applicant tendered a document[15] indicating that all bar five of the named individuals had been personally served with the application and notice of listing by courier. The five who had not been personally served had been sent a copy of the documents by email to their employer-provided work email addresses, and received a text message from the Company adverting them to the documents and the proceedings. I am satisfied that the proceedings were brought to the attention of the employee respondents.

[44] As was noted in CEPU v Abigroup Contractors Pty Ltd,[16] the Act does not require expedition of s.418 applications at any cost. At the hearing, I asked Mr Wood and Mr Jones whether they were aware of any named employee who wanted, but was unable, to attend the proceedings for the purpose of being heard. Mr Wood stated that there were employees who would have liked to attend the proceedings, but chose instead to work. I asked Mr Wood and Mr Jones whether they were seeking an adjournment of the proceedings to afford any employee a further opportunity to attend and be heard, noting the possibility that this might require me to issue an interim order under s.420. No adjournment was sought. No employees were identified who were not able to attend the proceedings. As noted above, Mr Wood and Mr Jones do not necessarily speak for or represent all of the employee respondents. However, I am satisfied that in all the circumstances, the proceedings having been brought to their attention, the named employees have been afforded a reasonable opportunity to be heard, and at least one has in fact been heard.

Conclusions in relation to section 418 requirements

[45] Section 418(1) of the Act provides as follows:

If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[46] I have concluded, based on my consideration of the evidence and submissions, that industrial action is happening, and that it is unprotected industrial action.

[47] In my view the evidence of Mr Lyons establishes that the eighty-three employees who are members of the Fire Auxiliary Team have purported to resign from their role as members of that team. I consider that, under clause 32.10 of the Agreement, it is part of the duties of those team members to hold themselves ready and willing to act as Fire Auxiliary Team members, subject to the requirements of that clause. Their resignation from the group did not accord with the processes stipulated in clause 32.10. It is a ban or limitation. It does not fall within the safety exemption in s.19 of the Act.

[48] The fact that employees have not been called upon to respond to an emergency at the site does not mean that the industrial action is merely threatened. By removing themselves from the Fire Auxiliary Team, otherwise than in accordance with clause 32.10 of the Agreement, the employees are no longer holding themselves ready and willing to undertake the duties of Fire Auxiliary Team members. Their ban or limitation is currently in place.

[49] There is no doubt about the fact that the action is unprotected. The employment of the employees in the Fire Auxiliary Team is covered by the Agreement, the nominal expiry date of which has not passed. Legally protected industrial action cannot occur until after that date. The common requirements for protected industrial action set out in s.413 have not been met, including in particular s.413(6).

[50] In these circumstances, the Act requires that I issue an order that the industrial action stop. Unlike the position that obtained under previous legislation, there is no residual discretion conferred on the Commission to consider the broader setting of the industrial action and whether an order ought to be issued.

[51] It remains for me to consider the form of the order that I must issue.

[52] Although s.418(3) provides that the Commission does not have to specify the 'particular industrial action', the Commission's order is made on a particular evidentiary foundation, and the Act requires that an order be issued against the industrial action.[17] In my view, the Commission's order should go no further than is necessary. The scope and duration of the order should be appropriately tailored to the findings of the particular case.

[53] The industrial action that is subject to the order, and which must cease and not recommence, should be action constituted by any refusal by employees to remain ready and willing to undertake the duties of a member of the Fire Auxiliary Team as required by clause 32.10 of the Agreement; and any refusal by employees to comply with a lawful and reasonable direction of the company to provide emergency fire response at the Geelong Refinery.

[54] In the circumstances, I also consider it appropriate to include in the order a requirement that the named employees confirm in writing to the Company, by the end of Wednesday 21 March 2018, that they will perform the duties of a member of the Fire Auxiliary Team, in accordance with clause 32.10 of the Agreement. The Company agreed at the hearing that, if such a provision were included in the order, the term of the order could end on 21 March 2018, rather than on 13 June 2018 as the Company had originally sought.

[55] The order should reflect the fact that clause 32.10 contemplates a lawful process for employees to withdraw from the team. Further, the order should exclude action by employees that is authorised by the company, or which is based on a reasonable concern of the employee about an imminent risk to his or her health or safety. In this regard, consistent with my findings above, the mere fact that a contractor will be performing an ERO role, rather than a company employee, would not give rise to a reasonable safety concern.

[56] It is also appropriate that the order contain a provision allowing a person affected by it to have liberty to apply to the Commission to vary, extend or rescind the order.

[57] The order I issued on 14 March 2018 in PR601176 reflects the above considerations.

[1] The application originally sought orders against 84 named employees. At the hearing the company amended its application to omit one of the employees as a respondent.

[2] Witness statement of Mr Glenn Lyons at paragraphs 8 - 9

[3] Witness statement of Mr Glenn Lyons at paragraph 9

[4] Witness statement of Mr Glenn Lyons at paragraph 24

[5] Witness statement of Mr Glenn Lyons at paragraph 35

[8] Sixth dot point in the letter from Mr Lyons to employees dated 13 March 2018; see GL3 to the Statement of Mr Lyons.

[9] For example, as noted in his email message to Mr Lyons and other dates 12 March 2018, Mr Jones is concerned that training provided to fire auxiliaries in the operation of fire trucks has been inadequate; however, as Mr Lyons explained, this particular change has not yet been implemented.

[12] See Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228 at [54]

[13] Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 at [44]

[14] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; Ian Menzies v Lindsay Australia Limited T/A Lindsay Brothers Management P/L [2018] FWCFB 1037 at [61]

[16] [2013] FCAFC 148

[17] See Esso Australia Pty Ltd v AWU [2016] FCAFC 72, per Buchanan J at [33]

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