Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022] FWC 1892 of Deputy President Binet at Perth on 20 July 2022 in matter number B2022/530.

[1] On 20 July 2022, Deputy President Binet issued a decision[1] in which she refused an application by Woodside Energy Ltd (Woodside) for an order for the production of documents. Woodside's application was made in connection with an application made by the Australian Workers' Union (AWU) for a majority support determination pursuant to s 236 of the Fair Work Act 2009 (Cth) (FW Act). Woodside lodged an appeal against this decision on 21 July 2022. Permission to appeal is required under s 604 of the FW Act. Pursuant to directions made by the Commission, Woodside and the AWU lodged written outlines of submissions in relation to the appeal on 8 August 2022 and 22 August 2022 respectively. The hearing of the appeal was conducted on 26 August 2022. At the conclusion of Woodside's oral submissions at the hearing, we delivered our decision to refuse permission to appeal and indicated that we would issue our reasons for this decision at a later date. We now publish our reasons.

[2] The factual background is as follows. The AWU filed its application for a majority support determination on 3 June 2022. The determination sought was in relation to a proposed enterprise agreement to apply to employees of Woodside engaged to work on three specified offshore natural gas platforms. In its application, the AWU stated that it had collected signed individual petitions from a majority of employees who would be covered by its proposed agreement, and copies of these petitions would be provided to the Commission on a confidential basis. It appears that some of the petitions were obtained using "DocuSign", an online platform which facilitates the electronic signing of documents.

[3] Woodside filed its response to the AWU's application on 6 June 2022. In this response, Woodside stated, among other things:

"[The] applicant relies upon documents it calls 'petitions' to establish that a majority of employees within the relevant cohort, want to bargain. WEL has not seen the petitions. When it does so, it will assess them. At present, it is concerned that they may have been unfairly procured from employees by reason of a campaign involving fundamental and material misrepresentations. In those circumstances WEL does not admit that the so called 'petitions' evidence an informed choice about majority support."

[4] Woodside's response particularised its concerns that the petitions had been secured by "fundamental and material misrepresentations" made by Mr Heath, an employee of the AWU, in communications to employees, and foreshadowed that it intended to make an application for an order for the production of documents, including original unredacted copies of the petitions and copies of all communications between Mr Heath, any other persons representing the AWU, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and employees, including emails sent to employees' private email addresses.

[5] The application was the subject of a conference before the Deputy President on 29 June 2022, but this was not successful in resolving the matters in contest. On 12 July 2022, the Deputy President issued directions for the further progress of the matter. Paragraph [6] of these directions stated:

"[6] It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows:

• the AWU files with the FWC and serves on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022;

• the AWU files the Petitions with the FWC on a confidential basis and serves a redacted version on Woodside by 4pm, Thursday 21 July 2022;

• Woodside files with the FWC on a confidential basis a list of Employees employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the Employee[s'] employment by 4pm, Thursday 21 July 2022 (List of Employees); and

• the FWC compares the Petition signatures to the List of Employee[s] in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement.

[6] Paragraph [8](a) of the directions required Woodside to file an outline of submissions by 21 July 2022 which addressed, among other things, "whether it opposes the process for determining Employee support for the Application proposed in paragraph [6] above and, if so, what alternative method Woodside proposes...". The balance of the directions required, among other things, that the AWU file an outline of submissions in reply by 28 July 2022, that the AWU and Woodside jointly prepare and file an agreed statement of facts by the same date, and that the parties advise by 4 August 2022 whether they wished to make oral submissions in the matter.

[7] On 15 July 2022, Woodside filed its foreshadowed order for the production of documents. The documents sought to be produced were as follows:

"1 Each of the 'petitions' referred to [in] paragraph 2.4 of the Application.

1. Each Certificate of Completion issued by DocuSign in respect of the 'petitions' referred to in paragraph 2.4 of the Application.

2. Every communication sent to each employee referred to in paragraph 1.2 of the Application, between 1 February 2022 and 1 July 2022, including to their private email addresses, from:

1. Mr Doug Heath; 2. any person on behalf of the Applicant;

1. any person on behalf of the Construction, Forestry, Maritime, Mining and Energy Union; and

1. any person on behalf of the 'Offshore Alliance'."

[8] The order sought in the application was styled as an order under s 590(2)(c) of the FW Act requiring a person to produce documents to the Fair Work Commission, but the draft order in the application required production of the documents at the address of Woodside's lawyers in Perth rather than to the Commission. The application contended that the production of the documents had apparent relevance in the proceedings, and therefore there was a legitimate forensic purpose for their production, because they were likely to show:

"a. the terms of the petitions (including any information contained in them);

1. the precise dates the petitions were circulated and signed, and some indication of the chain of custody of the petitions after being signed;

1. the whole content of the representations made by the Applicant to the relevant employees, and the dates when those representations were made;

1. whether all employees who signed the petitions were entitled to be represented by the AWU;

2. whether all employees who signed the petitions will be covered by the proposed agreement;

3. the circumstances in which the petitions were circulated and signed (including the manner in which the petitions were prepared and presented to the employees), the means upon which the Applicant came into possession of WEL employee emails, and whether, and to what extent, WEL's employees were misled prior to them signing the petitions and/ or properly understood the significance and purpose of any petition that they signed)."

[9] The intended recipients of the order were Mr Heath, the AWU, the CFMMEU and the office of the "Offshore Alliance" (an informal partnership between the AWU and the CFMMEU in the offshore oil and gas industry).

[10] Woodside's application was accompanied by a witness statement made by Ms Georgia Manuel, Woodside's Human Resources Manager - Australian Operations on 15 July 2022. This statement identified what Ms Manuel considered to be misrepresentations or false statements contained in communications between Mr Heath and Woodside employees or posted on the "Offshore Alliance" Facebook page. The communications/posts referred to were appended to Ms Manuel's statement.

[11] On 19 July 2022, the AWU filed a submission in which it opposed the orders for production of documents sought by Woodside. On 20 July 2022, as earlier stated, the Deputy President issued her decision refusing Woodside's application.

[12] On 21 July 2022, pursuant to paragraph [6] of the directions, the AWU filed a statutory declaration made by Mr Heath and an unredacted copy of the petitions. Woodside did not comply with the directions applicable to it in paragraph [6]; rather, it contended by email that the directions and the decision of 20 July 2022 had given rise to a reasonable apprehension that its foreshadowed request to access unredacted copies of the petitions, its "serious and substantive concerns about the reliability of the petitions", and its opposition to the proposed method in paragraph [6] of the directions for determining whether a majority wanted to bargain, had been pre-judged or pre-determined in such a way that the Deputy President was not open to persuasion. Accordingly, Woodside applied for the Deputy President to recuse herself from further dealing with the matter. This application was heard by the Deputy President on 30 August 2022.

[13] In setting out the background to the matter in her decision, the Deputy President characterised Woodside's application as one for an order for production of documents to the Commission, but went on to note that orders sought required the production of the specified documents "to Woodside".[2] The Deputy President commenced her consideration by stating that "the Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer" was the most common mechanism used in the determination of applications for majority support. She noted that it was the Commission and not the respondent employer who had to be satisfied that a majority of employees were in favour of bargaining, that Commission members typically had the expertise to accurately assess the credibility of petition data provided on a confidential basis to the Commission and that they would not grant an application if they were not satisfied that the petitions demonstrated a contemporaneous and clear desire of a majority of employees to bargain.[3] The Deputy President referred to the decision in National Union of Workers v Lovisa Pty Limited[4] (Lovisa) for the proposition that it will usually be sufficient, in dealing with an application for a majority support determination, for unredacted petitions to be supplied to the Commission and a redacted version supplied to the employer.[5] The Deputy President then said:

"[27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know[n] credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities.

[28] Furthermore, the Directions require the AWU to provide a statutory declaration as to the circumstances in which the petitions were collected. If this evidence is contested by Woodside when it is filed by the AWU, Woodside have the opportunity to cross examine the declarant as to the contents of the statutory declaration at the hearing of the Application."

[14] The Deputy President noted that Woodside's case focused on various statements made by the AWU or its representatives with which it disagreed and stated that Woodside had submitted that this justified "an unprecedented invasion into the privacy of employees" by seeking the third category of documents in its proposed order.[6] The Deputy President said that it was arguable whether the statements identified by Woodside were "fundamental and material misrepresentations" as alleged, and Woodside had provided no evidence that any employee had read the material on the Facebook page or the emails sent by Mr Heath, or had been misled by it, or had executed a petition as a consequence.[7] She also said that the order sought was inappropriate because:

• it required the production of documents which were completely irrelevant to the AWU's application (including if an employee was not employed by a different employer during the specified period, or the information from the union was about unrelated matters);

• the unlimited scope of the production request meant that it was potentially oppressive;

• the CFMMEU was not a party to the application and had no opportunity to oppose production;

• the use by employees of their private email addresses indicated a concern about their employer viewing the correspondence; and

• the order was in part unnecessary since Woodside would presumably have access to some communications sent and received via its servers.

[15] The Deputy President went on to say that the alleged statements were "not so egregious to justify such extensive invasion of privacy or difficult to redress to the extent that it [is] necessary or appropriate to do so",[8] pointed out that Woodside had the ability to communicate its position on bargaining with its employees, and concluded by saying:

"[35] If Woodside believe that the Petition information was tainted by incorrect information and if properly informed Employees would not support bargaining, then this can be addressed by Woodside proposing, as they have been invited to, an alternative method of assessing whether a majority of employees wish to bargain. This assessment can be timed to occur after Woodside has provided further information to its Employees to address any incorrect information which it alleges has been provide[d] to its Employees.

[36] To the extent that Woodside assert[s] that Employees are not freely expressing their views, to the extent such evidence exists, Woodside can call witnesses to attest to this at the Hearing or tender evidence of the outcome of its own employee surveys.

[37] Furthermore, the Directions require Woodside to circulate to Employees the materials filed by the parties and an invitation to be heard in relation to the Application. This provides Employees with access to the submissions of both parties side by side and gives them an independent voice before the FWC."

[16] Woodside brought its appeal on seven grounds. The first ground is that the Deputy President misconceived the nature of the jurisdiction or power being exercised, in that she did not address or apply the legal principles relevant to whether an order under s 590(2)(c) should be made, reversed or mischaracterised the legal onus of Woodside in respect of its application, and misunderstood the circumstances in which recipients of production orders may seek to have them set aside. The seventh ground is that the Deputy President erroneously held that the order sought would require the production of documents which would involve an "extensive invasion of privacy" and thereby conflated the issues of production and access. In relation to these grounds, Woodside submitted that:

• the failure to apply the correct legal test was a material error, since Woodside had consistently articulated the relevance of the documents to the case it sought to advance, being that the petitions may not be an appropriate method by which to determine majority support because they may not be reliable indicators of employee preferences, and the documents sought had the requisite apparent relevance and had been identified with sufficient particularity such that production of them would not have been oppressive;

• it was irrelevant that Woodside had access to its own employees and was able to correct representations made by the AWU, since the petitions had already been obtained and, in any event, Woodside could not be in a position to know the nature and extent of the misrepresentations that were, or may have been, made to its employees without the documents;

• the Deputy President's requirement that Woodside provide evidence that the petitions were fraudulently completed or that the employees who signed petitions were actually misled was unduly onerous and misconceived, since Woodside only bore the onus of demonstrating that the order sought could have a legitimate forensic purpose and that the documents sought could possibly throw light on the issues in the proceeding;

• the Deputy President misunderstood that the CFMMEU, although not a party to the proceeding, was at liberty as a recipient of an order for production to apply to have it set aside or varied, as was stated in the draft order;

• the Deputy President, in finding that the production of the documents sought would amount to an extensive invasion of privacy, failed to understand that a party making application under s 590(2)(c) does not have access as of right to documents produced in response to an order, and a party producing documents can apply to have the documents withheld from other parties;

• the Deputy President relied on the decision in Lovisa, but failed to have regard to the proposition in that decision that the supply of a redacted copy of petitions to the employer will usually be sufficient only "in the absence of some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support"; and

• the Deputy President made serious errors of fact, including that she described Woodside's application as seeking an order only for production of documents by the AWU, and as to the third category of documents said that they were sought in respect of a six-month period when in fact only a five-month period was specified.

[17] The second ground of appeal was that the decision was vitiated by apprehended bias arising from paragraph [8] of the directions and paragraphs [20]-[23] and [28] of the decision, which would reasonably appear to indicate a concluded view about the appropriateness of the Deputy President's proposed method for determining majority support. It was submitted that although paragraph [8] of the directions purports to give Woodside an opportunity to make written submissions by 4:00 pm on Thursday 21 July 2022 about the appropriateness of the so-called proposed method, the identified paragraphs of the decision appear to state a concluded view about this issue. These matters, it was submitted, would cause a fair-minded lay observer to reasonably apprehend that the Deputy President had pre-judged or pre-determined, adversely to Woodside, its serious and substantive concerns about the reliability of the petitions and Woodside's opposition to the so-called proposed method in paragraph [6] of the Directions, in such a way that her mind was not open to persuasion.

[18] The third ground of appeal is that the Deputy President erred by not giving consideration to serious and substantial submissions made by Woodside concerning the procedural unfairness to which it would be subjected if it were excluded from accessing and inspecting unredacted copies of the petitions and other relevant documents. The fourth ground is that the effect of the decision is to give rise to procedural unfairness as Woodside would not be given an opportunity to see for itself what evidence is given to the Commission and will consequently not be given a fair opportunity to correct or contradict the evidence in circumstances where legitimate concerns about the methodology used have been raised. In relation to these grounds, Woodside submitted that natural justice requires that a party know the substance of the case against it and be given the opportunity to respond, and Woodside would need to know the names of the employees who signed the petitions in order to be able to test whether they were freely expressing their views and the circumstances in which the petitions were obtained. It also submitted that the prejudice to Woodside is not addressed by the proposal of an alternative method by which to determine majority support since Woodside should first be afforded a fair opportunity to assess for itself whether the proposed method in paragraph [6] of the directions was appropriate by accessing the documents sought, and if following this it considered that the method was not appropriate, it had a statutory entitlement to adopt this position without being required to propose some alternative method.

[19] Woodside's fifth ground of appeal is that the Deputy President failed to consider, adequately or at all, the evidence contained in the witness statement of Ms Manuel, which concerned the serious and material misrepresentations made by Mr Heath. The sixth ground of appeal is that the Deputy President's reasoning was unreasonable, in that it was illogical, irrational and circular, because she suggested that Woodside had not provided evidence of employees who signed petitions being actually misled and Woodside was able to call employees as witnesses to give evidence that the petitions are not a free expression of their views in circumstances where, in the absence of the production orders being made, Woodside would not know which employees had signed petitions from whom it could then lead the relevant evidence.

[20] Woodside submitted that it was in the public interest for permission to appeal to be granted because:

• the decision was attended by sufficient doubt to justify a grant of permission;

• each ground of appeal raises issues of jurisdictional error;

• grounds 1, 4 and 7 involve important principles of general application as to the conditions for a proper exercise of discretion under s 590(2)(c);

• grounds 2, 3 and 4 involve substantial injustice to Woodside, in that if the refusal to make the production orders stands uncorrected Woodside will never have an opportunity to access and inspect unredacted copies of the petitions relied upon by the AWU, and may never have a fair and adequate opportunity to determine whether any of its employees who signed petitions were subjected to undue pressure or misrepresentations, or whether any of the petitions are affected or vitiated by some irregularity through the use of electronic signature software; and

• the general position stated in Lovisa, which represented a frequent way in which the Commission dealt with applications for majority support determinations, necessarily involved a denial of procedural fairness to the employer.

1. The decision under appeal is one of a discretionary interlocutory procedural nature. Permission to appeal against a decision of this nature would not usually be granted, for the reasons stated in the Full Bench decision in Hutton v Sykes Australia Pty Ltd:[9]

"[3] The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings. Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile."

1. This above principle has been applied in appeals from decisions concerning applications for orders for the production of documents under s 590(2)(c) of the FW Act. For example, in You v CSIRO,[10] the Full Bench said:

"[23] ...the appeal is concerned with a discretionary interlocutory procedural decision made by the Deputy President as part of the case management of the matter before him. It would not normally be in the public interest to grant permission to appeal from a decision of this nature. Because Dr You's unfair dismissal application has yet to be determined by the Deputy President, it is not possible to conclude at this stage that the Deputy President's refusal of the orders for production of documents sought by Dr You has had any prejudicial effect on his capacity to advance his case. If Dr You is ultimately unsuccessful in his application, it will be open for him then to appeal the final decision and any interlocutory decisions which affected the final result. Any challenge to the refusal to order production of the documents might then be considered in the proper context and any alleged prejudice to Dr You's case (for example, by the admission of illegally-obtained evidence adverse to Dr You's case) properly understood."[11]

[23] The propositions stated in the above decision are, of course, not absolute, and there may be cases where permission to appeal an interlocutory procedural decision is granted because the decision involves jurisdictional error or will result in irreversible prejudice to the appellant if permission to appeal is not granted and the appeal not upheld, or if the appeal raises an issue of law or principle that is of general application. However, for the reasons which follow, we concluded that none of these considerations applied to this appeal and that it was not otherwise appropriate to grant permission to appeal either in the public interest or on discretionary grounds.

[24] First, Woodside's contentions that the Deputy President erred by making a finding that the grant of the order sought would involve an "extensive invasion of privacy" and by conflating the production of documents to the Commission with a party being granted access to those documents are advanced against a background whereby its application for production of documents had been made in terms that would have required the production of the relevant documents to its lawyers and after the Deputy President had already directed the AWU to file the unredacted petitions with the Commission. The order sought would have required disclosure to Woodside of the names of employees who indicated, in what was intended to be a confidential petition process, that they supported bargaining for an enterprise agreement, as well as the disclosure of communications sent to all employees' private email addresses, regardless of whether they had signed a petition. Further, it was unaccompanied by any proposal for a regime to protect employees' confidentiality. In these circumstances, that the Deputy President took into account and assigned weight to privacy considerations was not without foundation and we are not persuaded by the submission now advanced on appeal that her doing so constitutes appealable error.

[25] Second, contrary to Woodside's submissions, its appeal does not raise any genuine issue of jurisdiction. The power conferred by s 590(2)(c) to require the production of documents to the Commission is entirely discretionary in nature and is unfettered by any requirement to take any particular matter into account. Section 590(2)(c) itself is an incident of the Commission's general power under s 590(1) to inform itself in relation to any matter before it in such manner as it considers appropriate. It is well established that, in the exercise of the discretion, the Commission will be guided by the practice followed by courts in civil proceedings when issuing subpoenas, which includes the application of the test of apparent relevance.[12] However, this proposition cannot be elevated to the level of a jurisdictional prerequisite. The particular context of this matter whereby Woodside sought the production of documents to its lawyers brought different considerations into play, such that we consider it was open for the Deputy President to take into account issues of privacy and necessity having regard to the overriding criterion of appropriateness in s 590(1).

[26] Insofar as Woodside alleges jurisdictional error based on a denial of procedural fairness, that is entirely premature. The Deputy President has not yet made a majority support determination, nor has she taken the prerequisite step of making a finding pursuant to s 237(2)(a) that a majority of employees want to bargain nor even decided upon the method by which the existence or otherwise of majority support may be determined. In these circumstances, it is impossible to say that any denial of procedural fairness has yet occurred or that the decision under appeal has irreversibly prejudiced Woodside's interests in the matter.

[27] Woodside's case of jurisdictional error based on an apprehension of bias is misconceived. As earlier outlined, Woodside contends that paragraph [8] of the directions read together with the decision discloses a reasonable apprehension that the Deputy President may have predetermined the issue of the method to determine majority support. That contention appears to us to be weak, given that the Deputy President reiterated in paragraph [35] of the decision that Woodside had the opportunity of proposing an alternative method to determine majority support, and that Woodside has yet to take advantage of that opportunity. However, the main difficulty with the contention is that the decision under appeal did not determine the issue of the method to be used to assess whether the requisite majority support exists, and therefore any alleged apprehension of bias in respect of that issue does not properly arise in this appeal. Woodside does not contend that there is a reasonable apprehension that the Deputy President might have prejudged the issue actually determined in the decision, namely whether the order for production sought should be made. The matters raised by Woodside properly arise only in the separate application it has made for the Deputy President to recuse herself from further dealing with the AWU's application. That application is, at least in the first instance, for the Deputy President to decide, and we do not propose to pre-empt her decision in that regard.

[28] Third, insofar as Woodside now asserts in its appeal that it only ever sought the production of the unredacted petitions to the Commission (with any question of access to be determined later), its appeal is entirely inutile. As stated above, the unredacted petitions have already been produced by the AWU to the Commission on 21 July 2022 pursuant to paragraph [6] of the Deputy President's directions of 12 July 2022.

[29] Fourth, the categories of documents in Woodside's proposed order for production appear to us to be sought for the purpose of exploring if there is a supportable basis for a case that might potentially be advanced, and not for the purpose of supporting a case which is actually being advanced - that is, the order sought in our view constitutes fishing. In respect of the first two categories of documents, namely the unredacted petitions and the DocuSign certificates of completion, Woodside has advanced no positive contention in its response to the AWU's application or in its subsequent submissions that the petitioning process utilised by the AWU was unreliable or affected by fraud. The "legitimate concerns" which Woodside contends it has raised about the methodology used by the AWU have to date risen no higher than speculation, and its submission that it should be given access to the petitions to "assess for itself" whether the method of determining majority support in paragraph [6] of the directions is appropriate plainly discloses the fishing nature of Woodside's request for production of these documents. When, at the hearing of the appeal, a query was raised with counsel for Woodside as to how the disclosure of the names of those who signed the petition would advance its case concerning alleged misrepresentations, it was indicated in response that this would give Woodside the opportunity to call evidence from each of these employees (who are well over 100 in number), or seek that they be required to give evidence, for the purpose of testing the extent to which they may have been affected by the alleged misrepresentations in expressing their desire to collectively bargain. This leaves Woodside open to the charge that it wishes to embark upon a not insignificant fishing expedition.

[30] In relation to the third category of documents sought, this bears no reasonable or proportionate relationship to Woodside's case concerning alleged misrepresentations. The witness statement of Ms Manuel identifies what are said to be the alleged misrepresentations. No persuasive explanation has been proffered as to why there is a legitimate forensic purpose, in advancing the misrepresentation case disclosed in Ms Manuel's statement, in seeking the production of every email sent by the AWU and the other specified persons to the private email addresses of every employee to be covered by the proposed agreement (whether they signed a petition or not) over a five-month period. There has been no attempt to narrow the third category by reference, for example, to the subject matter of the emails. In those circumstances, we are inclined to infer that Woodside is engaged in fishing in respect of this category also.

[31] Fifth, an appeal from a decision concerning an application for an order for production of documents is not an appropriate vehicle for the reconsideration of the propositions stated in Lovisa. The applicability of Lovisa to this case is not yet even known given that the Deputy President has not to this point determined the method she will use to assess majority support.

[32] Sixth, the other contentions raised in Woodside's appeal, to the extent that we have not already dealt with them, have insufficient prospects of success to justify the grant of permission.

I Neil SC and R Kumar of counsel for the appellant.

[1] [2022] FWC 1892

[4] [2019] FWC 2571

[5] [2022] FWC 1892 at [24]- [25]

1. [9] [2014] FWCFB 3384
2. [10] [2020] FWCFB 3804

[11] Note that this was an appeal to which s 400(1) of the FW Act applied.

[12] Kennedy v Qantas Ground Services Pty Ltd [2018] FWCFB 3847 at [23]; Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19]

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