1 Fair Work Act 2009 s.604—Appeal of decision Construction, Forestry, Mining and Energy Union and Others v Bechtel Construction (Australia) Pty Ltd and Another (C2014/6453) VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT GOOLEY COMMISSIONER SPENCER SYDNEY, 18 FEBRUARY 2015 Appeal against decision [2014] FWC 5900 of Commissioner Booth at Brisbane on 18 September 2014 in matter number RE2012/1068. [1] On 18 September 2014, Commissioner Booth issued a decision1 (the Decision) in relation to an application to deal with a right of entry dispute that had been made by Bechtel Construction (Australia) Pty Ltd and Bechtel Australia Pty Ltd (collectively, Bechtel). The Commissioner simultaneously made 12 orders2 (Orders) suspending the right of entry permits of a number of officials of the Construction, Forestry, Mining and Energy Union and The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (collectively, CFMEU). [2] The CFMEU and each of the individual respondents at first instance have filed an appeal against the Decision and Orders. At the hearing of this appeal in Brisbane on 12 December 2014, Mr W Friend of counsel sought permission to appear with Mr C Dowling for all of the appellants with the exception of Mr Loakes. Mr F Parry sought permission to appear for Bechtel with Mr C Murdoch. Permission was granted to both parties on the basis that the matter would be dealt with more efficiently were the parties to be legally represented. [3] After the hearing of the matter, Mr Ben Loakes, the seventh respondent at first instance, advised through his representative that his employment with the CFMEU had been terminated on 10 November 2014 and that he no longer wished to continue with this appeal. Background [4] Bechtel is the head contractor for a number of liquefied natural gas (LNG) projects being constructed on Curtis Island. On a number of occasions between 20 March 2012 and 8 April 2013, various CFMEU officials sought access to Curtis Island pursuant to s.117 of the Work Health and Safety Act 2011 (Qld) (the WHS Act) and s.484 of the Fair Work Act 2009 (the FW Act). [5] Section 484 of the Act provides as follows: [2015] FWCFB 946 DECISION f_p_n_1_ [2015] FWCFB 946 2 “484 Entry to hold discussions A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (a) who perform work on the premises; and (b) whose industrial interests the permit holder’s organisation is entitled to represent; and (c) who wish to participate in those discussions.” [6] Section 117 of the WHS Act provides as follows: “117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.” [7] The powers conferred on permit holders by these provisions are subject to ss. 491 and 499 of the FW Act which provide as follows: “491 Occupational health and safety requirements The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises. ... 499 Occupational health and safety requirements A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.” [8] It is sufficient to note that entering a workplace pursuant to s.117 of the WHS Act is an OHS right for the purposes of s.499 of the FW Act. [9] Should a dispute arise between an employer and a permit holder in relation to these provisions, s.505 of the FW Act provides a mechanism by which such disputes can be dealt with: “505 FWC may deal with a dispute about the operation of this Part f_p_n_2_ [2015] FWCFB 946 3 (1) The FWC may deal with a dispute about the operation of this Part, including a dispute about: (a) whether a request under section 491, 492A or 499 is reasonable; or (b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c). (2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders: (a) an order imposing conditions on an entry permit; (b) an order suspending an entry permit; (c) an order revoking an entry permit; (d) an order about the future issue of entry permits to one or more persons; (e) any other order it considers appropriate. (3) The FWC may deal with the dispute: (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates: (i) a permit holder; (ii) a permit holder’s organisation; (iii) an employer; (iv) an occupier of premises. (4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned. f_p_n_3_ [2015] FWCFB 946 4 (5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about: (a) whether a request under section 491, 492A or 499 is reasonable; or (b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or (c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or (d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or (e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).” [10] On 11 May 2012, Bechtel applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.505 of the FW Act. The application was amended on 9 May 2013. The Commissioner outlined the basis for the application as follows: “Examples of the complained-of conduct, detailed below for Individual Respondents, include: ● avoided normal entry requirements, in place for reasonable occupational health and safety (OHS) purposes; ● walked on roads when it was dangerous to do so, including the heavy vehicle “haul road”; ● left their escorts; ● conducted meetings at times and in places they were not authorised to do so; ● claimed to have permits they did not in fact have; ● disrupted employees in their duties; ● abused Bechtel employees; ● entered places without proper authority; ● entered places in dangerous ways; ● removed protective equipment they were required to wear.”3 [11] At first instance, the CFMEU raised a jurisdictional objection in relation to the application. The CFMEU submitted that the Commission had no jurisdiction to hear the dispute as the application was concerned with past conduct. The CFMEU asserted that the Commission’s jurisdiction was solely to deal with a dispute about the operation of Pt. 3-4 of the FW Act, and that such a dispute must relate to an ongoing dispute about entry in the future, as opposed to the determination of past rights and obligations. [12] The Commissioner rejected the CFMEU’s jurisdictional objection, accepting Bechtel’s arguments that the dispute was about the regulation of future rights of entry in relation to past f_p_n_4_ [2015] FWCFB 946 5 conduct, and that there was no cogent evidence that the respondents at first instance had acquired an understanding of the proper use of rights of entry or that the CFMEU had taken steps to improve its training in this respect. [13] The Commissioner went on to dismiss a further jurisdictional objection that is not subject to appeal. The Commissioner then considered the conduct of each of the individual permit holders, and proceeded to make certain findings, including that the conduct of some of the permit holders gave rise to a dispute with Bechtel and that in order to deal with the dispute the Commissioner ordered that the permit be suspended for a period.4 Some of the individual respondents at first instance may not have been permit holders, in relation to whom the Commissioner found that a period of suspension would commence from the date that the CFMEU or another organisation next applied for a permit pertaining to that person.5 For some of the individual respondents at first instance, the Commissioner found that there was insufficient evidence to make any findings.6 The appeal [14] The appellants’ grounds of appeal can be summarised as follows: The Commissioner erred in finding that the matters raised in the initial application were capable of constituting a dispute or disputes about the application of Part 3-4 of the FW Act for the purposes of s.505 of the FW Act. The Commissioner erred in failing to take into account the following significant relevant considerations:  The conduct of the Bechtel employees on the days of each entry the subject of the application;  The evidence of unsafe work practices found by the CFMEU officials during each of the entries the subject of the application; and  Each of the entries the subject of the application were undertaken by the CFMEU officials in response to requests by Bechtel employees complaining about inadequate safety at work. Having found that disputes existed about the application of Part 3-4 of the FW Act, the Commissioner erred in dealing with those disputes by suspending permits of some of the respondents at first instance and by imposing sanctions on individuals who did not hold permits. The Commissioner erred in, having correctly stated that the role of the Commission was not to sanction for past conduct, imposing sanctions for past conduct for varying periods determined by the nature of the past conduct. Characterisation of the dispute [15] The appellants submitted that the Commissioner characterised the dispute before her in a number of ways. At paragraph 30, the Commissioner said as follows: “I accept Bechtel’s argument that there is a dispute about how in future the CFMEU and the Individual Respondents will exercise rights of entry under the Act and therefore, a dispute about the operation of Pt. 3-4.” [16] At paragraph 67 the Commissioner said: f_p_n_5_ [2015] FWCFB 946 6 “Disputes under s.505 are not limited to the matters stated in s.505(1)(a) to (e) and may be any dispute about the operation of Part 3-4. In this case, the dispute encompasses whether the CFMEU’s and Individual Respondents’ rights of entry should be conditioned, revoked, suspended or otherwise limited as a result of the complained-of conduct. Bechtel says the rights should be so limited in various ways; the CFMEU argues they should not, although it submits recommendations may be appropriate. No details of what recommendations may be appropriate are given.” [17] At paragraph 74 the Commissioner said: “In the case of the Individual Respondents, I have made findings about the conduct engaged in on the evidence (if any). Where that conduct is inconsistent with reasonable OHS requirements or of unacceptable conduct otherwise, it follows there is a dispute with Bechtel. If in my discretion I considered suspension a proper order to deal with the dispute, I then considered what period of suspension is appropriate to deal with the dispute in that individual’s case.” (References omitted) [18] The appellants submitted that in dealing with each of the individual respondents at first instance the Commissioner made findings based on past conduct, asserted that this conduct gave rise to a dispute and ordered a suspension of some of the permits, the length of which was determined by the view the Commissioner took of the nature of the unacceptable conduct that had been found. The appellants submitted that it could be observed that the manner in which the Commissioner truly approached the issue was that set out at paragraph 74 of the Decision, and therefore there was no dispute about Part 3-4 of the FW Act, but rather a dispute about past conduct that was said to have occurred. [19] Bechtel submitted in response that the dispute between the parties was wide-ranging and multi-faceted and that there were a number of different aspects to the dispute. It was submitted that it was unremarkable that the Commissioner made findings based on past conduct, and that the Commissioner’s decision was in line with previous decisions of the Commission. [20] In oral argument, the CFMEU conceded that there was an ongoing dispute in 2012 about whether permit holders could access the island by their own transport rather than transport provided by Bechtel, but Mr Friend submitted for the CFMEU that this was resolved by 2013. Mr Friend also submitted that while there may at one time have been a dispute about whether or not CFMEU officials were entitled to walk on certain roads, such a dispute would have been apt for resolution at the time and would not last two years and would be handled in a different manner to the course undertaken by the Commissioner. [21] We are satisfied that the dispute before the Commissioner was properly characterised as one falling within the jurisdiction of the Commission to deal with pursuant to s.505 of the FW Act. We do not agree that there was any inconsistency in the manner in which the Commissioner characterised the dispute. The Commissioner’s comments on the nature of the dispute must be read in the context of her comments in paragraphs 27–30, which frame the dispute as one about the future conduct of CFMEU officials in light of their past conduct. In this context, there is no inconsistency in dealing with the dispute by examining the past conduct of permit holders. f_p_n_6_ [2015] FWCFB 946 7 Relevant Considerations [22] The CFMEU submitted that the Commissioner ignored a substantial part of its case at first instance by not explicitly considering the conduct of Bechtel officers in her Decision led to an error of the kind described in House v The King.7 The Commissioner said at paragraph 62: “At a more general level, I considered the passage of time and the fact that there was no evidence put to me demonstrating that there had been, or would be, steps taken by the CFMEU to ensure the complained-of conduct would not be repeated. While the CFMEU suggested that some conduct by Bechtel officers’ may have contributed to the way the Individual Respondents behaved, that was not the subject of any application.” (footnotes omitted, emphasis added) [23] It was submitted that while the Commissioner did not expressly disavow the relevance of the material relating to the conduct of the Bechtel officers, her failure to deal with it and her observation that it was not the subject of an application can only be read as demonstrating that she considered it as being irrelevant to her task. The CFMEU took this Full Bench to various aspects of the evidence that the CFMEU alleged were “directly relevant to the nature of the conduct of the Appellants themselves.”8 [24] The CFMEU provided the following example in its submissions: “For example Messrs Taylor, Ingham and Ramsay are criticised for walking along the respondents’ road on 20 March 2012 in an effort to get to the respondents’ ATCO camp. However, the evidence established that the respondents’ Mr Knight was, upon the arrival of that group, immediately and deliberately obstructive. Despite the group telling him they were entering under s 117 of the WHS Act he was angry and repeatedly told them they were ‘illegal’ and could not enter until he was told the details of the breaches that the group suspected. The group asked for transport to the ATCO camp but Mr Knight initially refused them entry to the workplace. Mr Knight next refused entry on the basis that the group had not undergone induction. When cross-examined about the induction Mr Knight accepted that the induction: only contained 6 dot points of information; that he was able to get someone to do the induction; the reason he didn’t provide the induction was because he didn’t want to let them on until they told him what the issues were; and he had no intention of giving an induction. Mr Knight next raised the issue of PPE as a reason for not permitting the group on site in a similarly obstructive way. By reason of the above the group was delayed by Knight for nearly an hour. That was the important context for the next steps taken by Messrs Taylor, Ingham and Ramsay. None of that conduct was considered by the Commissioner. f_p_n_7_ [2015] FWCFB 946 8 Mr Knight was equally obstructive when the next group of officials arrived at the site on the same day at approximately 8am. Again, none of that conduct was considered by the Commissioner.” (References omitted) [25] In the CFMEU’s grounds of appeal, two further issues are identified as relevant factors that were not considered by the Commissioner, namely evidence of unsafe work practices found by the CFMEU officials during each of the entries the subject of the application and that each of the entries the subject of the application were undertaken by the CFMEU officials in response to requests by Bechtel employees complaining about inadequate safety at work. These two issues are not referred to in the CFMEU’s written outline of submissions nor were they addressed in oral argument. It is not clear whether or not the CFMEU intended to press these grounds of appeal, but we will deal with them below in any event. [26] We are not satisfied, having considered the Commissioner’s Decision in its entirety, that the Commissioner did not take into account any material considerations such that her Decision led to an error of the kind described in House v The King.9 It is clear from the Commissioner’s Decision that she took into account the CFMEU’s argument that some conduct by Bechtel officers’ may have contributed to the behaviour of the individual respondents at first instance, but that this behaviour was not relevant to their refusal to comply with the reasonable OHS related requests made of them.10 The Commissioner stated that the conduct of Bechtel’s officers was not the subject of any application.11 The plain implication of this statement is that the Commissioner did not consider that the conduct of the Bechtel officers was relevant to the application before her. It was open to the Commissioner, in all of the circumstances, to find that the conduct of Bechtel’s officers did not impact on the reasonableness of the OHS requests. [27] In P R Barach v University of New South Wales [2010] FWAFB 3307 a Full Bench stated: “The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” (References omitted) [28] Given the approach that the Commissioner took in relation to the dispute before her, we are not satisfied that it was necessary for her to explicitly address the evidence of unsafe work practices found by the CFMEU officials nor the basis for the entries undertaken by the CFMEU officials. Nor is it clear the impact that this failure could have had on the Commissioner’s decision. No appealable error arises from the Commissioner’s Decision in relation to these two issues. f_p_n_8_ [2015] FWCFB 946 9 Suspension of Permits [29] The appellants submitted that the Commissioner erred in her approach to dealing with the dispute by suspending the relevant right of entry permits and determining the period of suspension by reference to the seriousness of the misconduct engaged in by the holder. It was submitted that this approached revealed that the Commissioner misconstrued her role as one of sanctioning past misconduct, despite her comments at paragraph 21 that: “The Commission’s jurisdiction is therefore concerned with the reasonableness of the request made by the occupier, not whether the permit holder was in breach or is liable to sanction, which are matters for a Court.” (References omitted) [30] In response, Bechtel submitted that the legislature expressly empowered the Commission to deal with disputes by way of suspending an entry permit, and that such suspension would operate for a period of time. It was submitted that the Commissioner considered that a suspension was a proper order to make in order to deal with the dispute and that she took into account the relevant individual’s conduct as a way of assessing the nature of the dispute between Bechtel and that individual, which in turn would affect the future conduct that would need to be controlled by an order in order to resolve the dispute. [31] The Commission’s power to make an order suspending a permit in the context of a dispute brought under s.505 of the Act is set out at s.505(2): “(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders: (a) an order imposing conditions on an entry permit; (b) an order suspending an entry permit; (c) an order revoking an entry permit; (d) an order about the future issue of entry permits to one or more persons; (e) any other order it considers appropriate.” [32] Thus, the Commission’s power to make an order suspending a permit in such a dispute is predicated on the basis that the order is made in order to resolve the dispute. We accept that past conduct is a relevant consideration in determining how to resolve a dispute that is about future conduct. An order made under s.505, however, must be able to be characterised as an order that deals with the dispute at hand in order to be validly made. In this instance, we are not satisfied that the orders made by the Commissioner were validly made. We accept that the characterisation of the dispute as set out by the Commissioner in paragraphs 27-29 of the Decision: “Is there a dispute? The Commission’s jurisdiction is to deal with a dispute about the operation of Pt. 3-4. The CFMEU argues there is no dispute, but if there is a dispute it is not about the operation of Pt. 3-4. In essence, the CFMEU’s argument is that there must be an f_p_n_9_ [2015] FWCFB 946 10 ongoing dispute about entry in the future, not determination of past rights and obligations. I agree with that limb of the CFMEU’s proposition, but not the conclusion reached. The mere fact that past conduct is described by Bechtel in its application does not mean the dispute itself has passed. Bechtel says it is obvious there is an ongoing dispute, made apparent by this application and the CFMEU’s own evidence and submissions. The dispute, it says, is about how the CFMEU and its officials exercise their Pt. 3-4 rights on Curtis Island and that while past conduct is directly relevant to a dispute for s.505, the dispute is not about the past but about the future. The orders sought reveal the dispute to be about future rights of entry and how future conduct might be regulated in light of past conduct. Further, there is no cogent evidence before the Commission that the CFMEU and the Individual Respondents have acquired understanding of the proper use of rights of entry that would give confidence that similar conduct will not again occur or that the CFMEU has taken steps to improve its officials understanding or conduct. That apparent lack of awareness, in the face of accusations of unsafe and unacceptable past conduct and the strong possibility of future entries, is indicative of the parties being in dispute. I accept Bechtel’s argument that there is a dispute about how in future the CFMEU and the Individual Respondents will exercise rights of entry under the Act and therefore, a dispute about the operation of Pt. 3-4. Past conduct Bechtel presented evidence of, and relied in its application on, a number of facts that were said to show breaches of various provisions of the Act and of the WHS Act. I note that the CFMEU led evidence suggestive of Bechtel delaying entry and hindering or obstructing permit holders. In contrast to the overwhelming majority of decided cases under s.505, this dispute is not about the reasonableness of requirements to use particular rooms, coverage of employees by a particular industrial association or right of entry provisions in industrial instruments. This dispute concerns how the CFMEU parties are to conduct themselves in future, in light of past conduct. The examination of that past conduct cannot be about breaches of the Act or the WHS Act being matters for other tribunals entirely. Nor can I concern myself with past misuse of entry rights under s.508 being matters only for a Vice President, Deputy President or Full Bench.”12 (references omitted) [33] Accepting this characterisation of the dispute, the question becomes whether or not a suspension of the relevant individual’s right of entry permits deals with this dispute. In this matter, it is not clear how making an order suspending the permits of the relevant individuals could be said to deal with the dispute at hand. It is clear from her reasoning that the Commissioner determined the length of the suspension for each individual solely on the basis of that individual’s past conduct. What is not clear, however, is the nexus between that past conduct, the ongoing dispute between the parties and the way in which a suspension could deal with that dispute. We are of the view that the suspension of permits, in the circumstances f_p_n_10_ [2015] FWCFB 946 11 of the dispute before the Commissioner, was intended as a sanction for past conduct as opposed to an order for the purposes of dealing with an ongoing dispute. This is particularly the case given that the suspension of a permit goes beyond the projects that were the subject of the dispute. Given the far-reaching consequences of such an order, significant care is required in order to determine that it is a suitable means of dealing with any dispute that arises under s.505 of the FW Act. [34] There are circumstances in which an order suspending a permit will be appropriate to deal with an ongoing dispute. It is not necessary to exhaustively deal with the situations that such an order might be suitable, but it is sufficient to note that a suspension order could be appropriate in a situation where a finding is made that it is likely that the permit holder will repeat the behaviour that gave rise to the dispute unless the permit is suspended. [35] Despite the Commissioner’s findings that there was no evidence that the CFMEU or its officials had acquired an understanding of the proper use of rights of entry that would give confidence that similar conduct would not occur again, the Commissioner made no finding that it was likely that the dispute would continue unless the permits were suspended, nor an explanation of how a suspension of the permits would deal with the dispute. We are satisfied that the Commissioner had an insufficient evidentiary basis to deal with the dispute by way of suspending the entry permits, and that this gives rise to error. [36] Further, we are not satisfied that the orders made relating to the individuals who may not have been in possession of an entry permit could be characterised as orders to deal with the dispute at hand. The orders made in relation to these individuals imposed a period of suspension from the time that any organisation makes an application for a right of entry permit pertaining to that person. It is unclear how such an order could deal with the dispute that was before the Commissioner. It was submitted by counsel for Bechtel that such orders were necessary in order to ensure that these individuals did not simply apply for a right of entry permit subsequent to the Commissioner’s decision. However, as was the case in relation to the suspension of the permits that were held by the other individual respondents at first instance, there is no evidentiary basis to ground a finding that the suspension of an entry permit would deal with the dispute at hand. Conclusion [37] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker.13 An appeal may only be made with the permission of the Commission; there is no right to appeal. [38] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal. In GlaxoSmithKline Australia Pty Ltd v Colin Makin14 a Full Bench summarised the concept of public interest in the following terms: “Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” f_p_n_11_ [2015] FWCFB 946 12 [39] We are satisfied that this matter raises issues of importance and general application. The proper exercise of the Commission’s power pursuant to s.505 of the FW Act is an issue that is the subject of few authorities, and we are of the view that a Full Bench decision on this issue will provide some guidance in relation to this issue. [40] We are also satisfied that the Commissioner erred in making orders suspending permits and orders suspending permits that individuals may apply for in the future. An order will be issued with this decision quashing these aspects of the Orders. To avoid doubt, we have not made any findings in relation to the recommendations made by the Commissioner, and will make no orders in relation to this aspect of her Decision. VICE PRESIDENT Appearances: W. L. Friend QC with C. W. Dowling for the Construction, Forestry, Mining and Energy Union and Others. F. Parry QC with C. Murdoch for Bechtel Construction (Australia) Pty Ltd and Another. Hearing details: 2014. Brisbane: 12 December. Printed by authority of the Commonwealth Government Printer <Price code C, PR560865> 1 Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2014] FWC 5900. 2 Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Shaun Taylor PR554884; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Jade Ingham PR554885; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Andrew Ramsay PR554886; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Michael Ravbar PR554887; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Ben Loakes PR554888; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Michael Robinson PR554889; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Michael Huddy PR554890; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Laurie Genrich PR554891; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr William Kane Lowth PR554892; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia f_p_n_12_ [2015] FWCFB 946 13 Pty Ltd v Mr Chad Bragdon PR554893; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr John Schieber PR554894; Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Mr Brett Harrison PR554895. 3 Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2014] FWC 5900, [11]. 4 See, eg, Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2014] FWC 5900, [90], [95], [103], [111], [115], [126], [129] and [132]. 5 Ibid [120], [125], and [136]. 6 Ibid [139] and [142]. 7 (1936) 55 CLR 499, 504-505. 8 Appellants’ Outline of Submissions, [45]. 9 (1936) 55 CLR 499, 504-505. 10 Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2014] FWC 5900, [31] and [62]. 11 Ibid [62]. 12 Ibid [27]-[32]. 13 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ. 14 [2010] FWAFB 5343 at [27]. f_p_n_13_