[2010] FWA 4829

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Joy Bradbury
v
Interact Australia (Victoria) Ltd
(C2009/280)

COMMISSIONER CRIBB

MELBOURNE, 8 JULY 2010

Termination of employment – general protections claim – extension of time.

[1] Ms Joy Bradbury (the applicant) has made an application under s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a dispute relating to her dismissal which is said to be in contravention of Part 3-1 of the Act (general protections). The applicant was dismissed by Interact Australia (Victoria) Ltd (the respondent) on 3 September 2009.

[2] The application has been lodged outside of the legislative timeframe, prescribed in Section 366(1) of the Act, of 60 days. The application was lodged on 24 November 2009 which was 18 days outside the 60 day time limit. The matter was listed for conciliation. However, the respondent objected to conciliation prior to determination of the extension of time.

[3] The applicant then sought an extension of time which was opposed by the respondent. Directions were issued to the parties regarding the filing of submissions, witness statements and any other material. The hearing took place on 17 February 2010.

[4] The applicant was represented by Ms K Wischer from the Health Services Union (the union) and the respondent by Ms F Anderson, solicitor.

[5] The applicant and Ms G Moore, State Organiser with the union, gave evidence on behalf of the applicant. Ms S O’Neil, Learning Manager, Ms C Woods, Human Resources Manager and Ms L Greenwood, Assistant Program Manager, Croydon appeared for the respondent.

THE EVIDENCE

Applicant

Ms Bradbury

[6] The applicant gave oral evidence and also provided a written statement. 1

[7] Ms Bradbury commenced work with the respondent on 9 June 2009. In addition, she was employed with the Department of Human Services (DHS) on a casual basis. 2 Prior to commencing with the respondent, Ms Bradbury received a letter from them confirming the offer of employment and enclosing an employment contract which included details of her remuneration.3

[8] It was recalled that, about the third week of her employment with the respondent, she realised that she was not being paid the rate contained in her contract. She telephoned Human Resources and was told that they had made an error in her contract in that the contract rate of pay was that for a full time employee and not a part time employee which she was. 4 Ms Bradbury proposed to the respondent that she work full time at Croydon only at the rate set out in her contract.5 The applicant indicated that she had had numerous discussions with Ms O’Neil about the issue and that Ms O’Neil had told her that she was waiting for a decision from Head Office.6 It was the applicant’s view that the respondent’s letter of 29 July 20097 advising her of her salary (the pro-rata part time rate) did not resolve the matter.8

[9] Ms Bradbury stated that, on 3 September 2009, she was advised that her contract was to be terminated because she was not suited to working with the company because of the issues that had happened earlier (questioning the contract). She recalled that she was also told that she did not seem happy working with high support needs participants. 9

[10] With respect to when she had contacted the union, Ms Bradbury said that, as the meeting had ended after working hours on 3 September 2009, she had rung the union first thing on 4 September 2009. The applicant recalled speaking to Ms Moore and telling her what had happened. Ms Moore told her to send her all the documentation. This was done on 7 September 2009. 10 The applicant indicated that she had spoken to the union again on 14 and 28 September 2009. On 1 October 2009, Ms Bradbury said that Ms Lovell advised her that her application would be a general protections application rather than an unlawful termination application. She stated that she had rung the union again on 12, 20, 23 October and 12 November to check on the progress of her claim. The applicant indicated that, on 19 November she was advised by the union that her application was out of time. She recalled being advised, at that time, that the time limit was 60 days but that the union had believed, incorrectly, that it was six months. She was also told that there had been uncertainty within the union as to who was preparing her application and that it had been inadvertently overlooked for a period of time.11 It was stated by the applicant that she had contacted the union about 16 times in the first two months after her dismissal.12

[11] It was recalled by the applicant that Ms Moore had told her several times that there was a six month time period for lodgement of the application. 13 Ms Bradbury stated that she had accepted the advice from the union regarding the timeframe as she had contacted the union to get advice regarding her dismissal.14

[12] During cross examination, the applicant indicated that, when she had run her own company, she had attended to all of the regulatory requirements herself including taxation. Ms Bradbury stated that she used the internet frequently. 15 She also confirmed that, prior to joining the respondent, she had had prior contact with the union.16

[13] With respect to her employment with the respondent, the applicant agreed that her preference, right from the beginning, was to work at Croydon for location reasons. 17

[14] In terms of the meeting with Ms O’Neil on 3 September 2009, it was the applicant’s evidence that:

Ms Moore

[15] Ms Moore, State Organiser with the union, gave oral evidence and also provided a written statement together with a number of attachments. 31 Ms Moore confirmed that she was first contacted by Ms Bradbury on 4 September 2009 and that she had advised her, at least once, that the time period for lodging the application was six months. She said that the advice she was given was that the timeframe for a general protections dispute application was six months.32

[16] With respect to her discussions with Ms Bradbury, Ms Moore recalled that the applicant felt that she had been terminated as a repercussion for some controversy over inaccuracies in her contract. She had wanted the union to take up her case industrially. 33

[17] Ms Moore spoke to the emails, commencing on 12 November 2009, between herself and Ms Svendsen asking about the status of Ms Bradbury’s application 34 and also to the union’s telephone log of calls between the applicant and the union.35

[18] It was Ms Moore’s recollection that the purpose of Ms Bradbury’s application was to seek a remedy for what the applicant believed was her unfair dismissal. She said that Ms Bradbury was a person who had faith in the union’s advice and who took it on board. She also stated that the applicant was very concerned to ensure that the application was made. Ms Moore recalled that the applicant was fully accepting of the union’s advice regarding the timeframe. 36

Respondent

Ms O’Neil

[19] Ms O’Neil, Learning Manager with the respondent gave oral evidence and provided a written statement. 37 It was Ms O’Neil’s evidence that she had been approached by Ms Tibari and Ms Greenwood regarding the applicant’s performance. She recalled them having concerns about Ms Bradbury’s skill set and also the way she presented to the clients. It was said that the applicant had also commented to other staff, on a number of occasions, that she would prefer to be working at Croydon.38 It was indicated that her conversation with Ms Tibari and Ms Greenwood had occurred after the applicant had queried her rate of pay and it was her understanding that the issue had been completely resolved.39

[20] Ms O’Neil denied absolutely saying to the applicant that the respondent “did not want to lose you but if you question this…” She indicated that it was likely she had suggested that the applicant seek the assistance of the union – which was her standard of practice. 40 Ms O’Neil also stated that she had not told the applicant during the meeting on 3 September 2009 that she did not fit into the company’s structure because of the issue earlier on regarding her contract.41

[21] It was confirmed that the applicant had contacted her about her contract and that she had referred the applicant to Human Resources as she had played no part in the preparation of her contract. Ms Bradbury had raised her contract with her on two occasions and she had also proposed that she work full time at her contract rate. Ms O’Neil said that, as she had referred the applicant to Human Resources, she had assumed that they would have got back to the applicant. 42 It could not be recalled by O’Neil as to whether or not she had referred the applicant’s proposal regarding working full time to Head Office.43

[22] Ms O’Neil stated that the applicant’s performance issues, which had been raised with her by Ms Tibari and Ms Greenwood, had not been raised directly with the applicant although they were the basis on which her contract had been terminated. It was confirmed that, at the final meeting, the applicant was told she had excellent skills. 44

[23] With respect to the handwritten notes of the meeting on 3 September 2009, it was Ms O’Neil’s recollection that “negativity” referred to Ms Bradbury’s attitude towards the high support participants at Balwyn. She said that “values” may have been a better description. Ms O’Neil advised that the comments about her attitude during the meeting were not in relation to questioning her contract. 45

[24] It was confirmed by Ms O’Neil that she was aware that the applicant was dissatisfied with Human Resources and the response she had received. As she had then heard nothing further from either the applicant or Human Resources, she had assumed that the matter had been resolved. 46

Ms Woods

[25] Ms Woods, Human Resources Manager with the respondent, gave oral evidence and provided a written statement with a number of attachments. 47 Ms Woods acknowledged that Ms Bradbury’s letter of engagement48 indicated that regular assessments would occur but, to her knowledge, up to 3 September 2009, the applicant had not been given any feedback regarding her performance.49

[26] It was confirmed by Ms Woods that, after she was briefed by Mr Doyle about the applicant’s pay queries, she had asked Ms O’Neil whether there was any connection between her recommendation to dismiss the applicant and the salary issue. 50 The reason for this was that it was in her mind – she had been briefed on the issue a week earlier.51 It was Ms Woods’ decision that it would be appropriate to terminate the applicant’s employment.52

[27] With respect to the discussion notes prepared for the meeting on 3 September 2009 53 compared with the handwritten notes of the meeting,54 Ms Wood agreed that there were differences in terms of the content.55

Ms Greenwood

[28] Ms Greenwood, Assistant Program Manager Croyden with the respondent gave oral evidence together with a written statement. 56 Ms Greenwood stated that her role during the meeting on 3 September 2009 had been to take notes of what was discussed and she confirmed her notes as an accurate summary of what was said.57

[29] It was Ms Greenwood’s recollection that there had been no discussion about the applicant’s contract. She said that the only things that were discussed were those set out in her notes. Ms Greenwood summarised the reason for the applicant’s dismissal as the applicant not fitting in with the whole of the organisation – not just one site. It was said that the applicant was negative towards the organisation, that she did not particularly like working at Balwyn because of the high needs participants and that she regularly stated that she would prefer to be working at Croydon. 58

[30] Ms Greenwood explained that, prior to the meeting on 3 September 2009, the applicant had raised concerns with her about the contract and she had referred her to Human Resources. 59

[31] In terms of her notes of the meeting, Ms Greenwood stated that “attitude issues” meant the applicant stating a number of times that she would prefer to work at Croydon rather than at Balwyn. She had written “location is the issue” because, from the applicant’s perspective, Balwyn was the problem not Croydon. This was because of where the applicant lived and access to her family. Ms Greenwood stated that the impression the respondent had was that it was because of the participants at Balwyn that she preferred Croydon. Ms Greenwood also stated that the applicant was not told that she was being dismissed due to earlier issues she had raised. 60

[32] In comparing the discussion notes for the meeting and her contemporaneous notes, Ms Greenwood stated that there were inconsistencies between the two documents. 61

SUBMISSIONS

Applicant

[33] Ms Wischer, on behalf of the applicant, submitted that the reason for the delay in the lodgement of Ms Bradbury’s application was due entirely to representative error. 62

[34] It was contended that it was clear from the evidence of the applicant that she had pursued the issue of her contract and that, at the time of her dismissal, she did not believe that the matter had been resolved. Further, Ms Wischer argued that it was the applicant’s evidence that she believed that the respondent was not happy with her pursuing the contract issue. It was also stated that there was merit in Ms Bradbury’s application. 63

[35] With respect to Ms Moore’s evidence, the union indicated that it had not been contested and that it showed that:

[36] It was submitted by the union that the evidence showed that the applicant did not lose interest in pursuing her application or delay unnecessarily. The delay in lodging the application was said to rest solely with union office and a series of administrative errors. It was stated that the key error was the belief by the union that the timeframe was six months which contributed to a lack of urgency in responding to the applicant’s repeated requests for updates. 65

[37] Ms Wischer argued that the applicant had relied on the advice of the union regarding the legislative time limit. It was stated that it was unreasonable to expect applicants to know fine legal details. The union contended that it was not unreasonable for the applicant to have relied on the advice of the union. 66

[38] With respect to the authorities referred to by the respondent, the union submitted that they generally related to the applicants’ particular personal circumstances. In this matter, it was a case of representative error with numerous cases under the predecessor body which had found that the errors of the representative should not be visited on the applicant. 67 The union submitted that the exceptional circumstance was the extent of the unfairness that would be visited on the applicant if the extension of time was not granted. It was stated that the applicant had not contributed in any way to the delay – responsibility for this lay with the organisation which was representing her.68 The union also contended that the circumstances were unusual and not common place and that, when all of the grounds were considered, the circumstances relating to the applicant were sufficient to demonstrate exceptional circumstances.69

[39] In terms of prejudice to the employer, the union argued that it was not aware of any prejudice as a result of the delay in lodging the application. 70

[40] It was submitted by the union that the substantive application demonstrated the key grounds for a general protections claim and has prima facie merit. 71

[41] With regard to the consideration of fairness as between the person and other persons in a like position, it was argued by the union that the applicant was in a particular position with respect to the application in terms of which union would ordinarily represent her. The union stated that it was not aware of other employees of the respondent who had been dismissed and who had not been able to pursue a general protections application due to late lodgement. 72

[42] In terms of the phrase “exceptional circumstances”, the union highlighted Gleeson CJ, who was quoted in Parker v Department of Human Resources, Southern Metropolitan Region. 73 Branson J’s description of exceptional circumstances as circumstances sufficient to render it just or equitable to grant relief was also referred to.74 Further, attention was drawn to the description of the Full Court of the Federal Court in Mann v Minister for Immigration and Citizenship (2009) FACFC 180 where “exceptional” was construed as “out of the ordinary course, on unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”75

[43] Finally, the union argued that there was no evidence to support the respondent’s suggestions that the general protections application was made as an afterthought. Ms Wischer indicated that the first question that had been asked was whether it could be an unfair dismissal claim. The answer was no because the applicant was on probation. However, when the matter had been properly assessed by the union, the appropriate application was a general protections application. 76

Respondent

[44] On behalf of the respondent, Ms Anderson submitted that the applicant should not be granted an extension of time as the circumstances surrounding the delay were not exceptional in that there was nothing “unusual” or “special” in the nature of the error made by the union. 77

[45] It was highlighted by Ms Anderson that there was no contact between the respondent and the applicant or the union between 3 September 2009 and when it received a copy of the application on 20 November 2009. It was said that there had been no attempt to notify the respondent once the error had been discovered. In addition, the respondent argued that the 60 day time period was, in itself, very generous. It meant that the applicant had two months within which to make an application but nothing had happened during that time. 78

[46] With respect to the legislation, it was submitted that any further periods beyond the 60 day timeframe can only be granted if there are exceptional circumstances. Further, s.336(2) sets out an exhaustive list of factors which the Tribunal must take into account in considering whether there are exceptional circumstances. 79

[47] It was stated by the respondent that the onus is on the applicant to persuade the Tribunal to extend time. In addition, it was argued that “exceptional circumstances” set a higher threshold compared with the Workplace Relations Act, thereby restricting the Tribunal’s discretion. Two authorities were referred to in support of this contention. 80

[48] Ms Anderson argued that “representative error” was not the absolute yardstick for judging whether exceptional circumstances existed, despite the previous cases under the Workplace Relations Act. In addition, based on those cases, it was said that they embodied four key principles which included a distinction between the delay apportioned to the representative where the applicant is blameless and where the delay had been due to the applicant’s conduct. The respondent submitted that, with respect to the union’s telephone log, there were only nine communications between the applicant and the union over the 78 day period. Further, it was stated that only three of the nine contacts were initiated by the applicant in relation to this matter. 81

[49] The respondent also contended that the applicant was not entitled to assume that she could hand over all responsibility regarding this matter to the union. It was said that the applicant should have been aware that time periods applied – ignorance has never been an acceptable excuse. Further, it was submitted that Fair Work Australia had a user-friendly web site, that the applicant had run her own business and that she was an experienced adult working in the health sector who had a history of membership with the union and previous contact with them. 82

[50] Whereas representative error may have been sufficient as a valid reason under the previous legislation, the respondent argued that, under the current Act, it would not suffice. In this matter in particular, it was contended that facts do not amount to exceptional circumstances. 83

[51] In terms of the issue of prejudice to the employer, Ms Anderson stated that there had already been prejudice due to having had to deal with this matter. The respondent is a not for profit organisation and so should not have been put to the cost and inconvenience of defending the extension of time application. As well, there had been changes to the circumstances of some of the respondent’s key witnesses. 84

[52] With respect to the merits of the application, the respondent submitted that there was considerable evidence already before the Tribunal. It was stated that the evidence demonstrated that there was no merit in the applicant’s case. The applicant was surmising and imagining that she wanted to draw a line between her complaint and her dismissal. It was stated that the reason for the applicant’s dismissal had been clearly explained to her during the meeting on 3 September 2009. 85

[53] Further, the respondent contended that the dispute had nothing to do with the exercise of a workplace right. It was said that the applicant’s concerns about her contract rate were dealt with quickly and expeditiously. The applicant had also been invited to contact Human Resources or Ms Killmeyer if she had any further questions but she did not do so. The respondent was therefore entitled to believe that the matter had been resolved. 86

[54] The respondent also submitted that the application had been brought as an afterthought when it was realised that an unfair dismissal claim was not an option because she was on probation. It was said that the application was an abuse of process. 87

[55] In terms of fairness between the applicant and other persons in a like position, the respondent contended that it would be unfair to grant the application when others in a similar position to the applicant have not been permitted to do so. As well, it was argued that granting the application would open the door to anyone saying that the union had made a mistake. 88

CONCLUSIONS

[56] Section 366(1) provides for an application under section 365 to be lodged within 60 days after the dismissal took effect. Section 366(2) provides for Fair Work Australia to allow a further period ‘if FWA is satisfied that there are exceptional circumstances’ taking into account the following:

[57] Ms Bradbury’s employment was terminated by the respondent on 3 September 2009 and her application was lodged by the union on 20 November 2009. It was therefore eight days outside the 60 day time limit.

[58] I will deal with each of the factors set out in section 366(2) in turn.

Reason for the delay – s.366(2)(a)

[59] It was the applicant’s submissions that the reason for the delay was representative error due to mistakes made by the applicant’s representative, the union. These mistakes included advising the applicant that the time period was six months and her application being overlooked for a period of time. It was also argued that the applicant had not contributed in any way to the delay and had, instead, actively followed up progress with her application with the union.

[60] On the other hand, the respondent contended that representative error was no longer sufficient to establish a valid reason for the delay. It was also argued that, based on the union’s telephone log, the applicant had only initiated three of nine contacts during the 78 day period. The respondent was also of the view that the applicant was not entitled to assume that she could hand over the complete responsibility for her application to the union. Ignorance was said to have never been an acceptable excuse. The respondent submitted that the applicant had not provided an acceptable reason for the delay and also one which would meet the threshold of “exceptional circumstances”.

[61] It is clear from the evidence that following her dismissal, the applicant immediately sought the advice and assistance of her union regarding what remedy she could seek for what she believed to be the reason for her dismissal – her having raised issues regarding her contract. The telephone log which was submitted by Ms Moore, together with Ms Moore’s evidence regarding her contact with the applicant and the applicant’s evidence, suggest that the applicant did follow up the progress of her claim with the union on more than one occasion.

[62] The evidence also indicates that the union made a number of errors. The most serious one was advising the applicant, more than once, that the statutory time limit was six months rather than 60 days. As well, it appears that there were internal administrative mistakes including a breakdown in communication and the inadvertent overlooking of the applicant’s application. As soon as the file was located and the union became aware of the correct timeframe, the application was lodged.

[63] Taking all of this into account, I find that the reason for the delay in filing this application was representative error and that the applicant bears no responsibility for the delay.

Any action taken by the employee to dispute the application – s.366(2)(b)

[64] It was the applicant’s evidence that, up to the time of her dismissal, she was still pursuing the issue of the contract rate of pay with the respondent. As soon as she could after she was dismissed, the applicant contacted the union for advice and assistance. An application was finally lodged but there is no material before me to suggest that the applicant took other steps to dispute her dismissal other than by lodging this application. It does not appear that there was any contact made by the applicant with the respondent between her dismissal and 20 November 2009 when they received a copy of the application.

Prejudice to the employer – s.366(2)(c)

[65] The union argued that it was not aware of any prejudice to the employer as a result of the delay in lodging the application.

[66] On the other hand, the respondent submitted that they were prejudiced, least of all from having to defend the application. The fact was also highlighted that the respondent is a not for profit organisation and that the Division where the applicant was employed is reliant on government funding. Also stated was that one of the respondent’s key witnesses was on maternity leave whilst another resides and works in rural Victoria. It is not clear from the evidence whether or not both these personnel changes occurred prior to or during the eight day delay period.

[67] I have considered carefully all of the submissions but I have not been persuaded that the respondent has been prejudiced by the delay of eight days, over and above the usual prejudice that may accompany any grant of an extension of time.

The merits of the application – s.366(2)(d)

[68] It appears from the evidence before me that there are conflicting recollections of what was said during the meeting on 3 September 2009 and also the content of prior conversations between Ms O’ Neil and the applicant. In addition, the evidence seems to portray two different pictures regarding whether or not the issue concerning the applicant’s wage rate had been resolved at the time of her dismissal. Given these conflicts as to key facts in this matter, it is not possible to say that the application is without merit.

Fairness as between the person and other persons in a like position – s.366(2)(e)

[69] Both parties made submissions regarding this factor. There is no evidence before me that there were other persons in a like position to the applicant with respect to the respondent. I therefore do not consider that this factor has any relevance in this matter.

[70] Taking account of all of these factors and findings, it is necessary that I be satisfied that exceptional circumstances exist in order to grant the application and extend the 60 day time limit.

[71] Both parties made detailed submissions regarding what is meant by “exceptional circumstances” and the Tribunal was referred to a number of decisions by Fair Work Australia. The respondent contended that, under the Fair Work Act, there is a more restricted discretion for the Tribunal to grant such applications as the new Act sets a higher threshold for the applicant to satisfy, compared with the Workplace Relations Act. It was argued that representative error may have been sufficient under the previous Act but that it does not meet the new (higher) test of “exceptional circumstances”. The respondent submitted, further, that the representative error that has occurred in this case, did not provide an acceptable explanation for the delay. The Tribunal was taken to a number of authorities to this effect.

[72] On the other hand, the union argued that there were exceptional circumstances in this matter in that they were “unusual” and not “common place”. It was contended that, taking into account all of the factors, they provided the basis upon which exceptional circumstances could be found. The union stated that it would be unfair to the applicant if the application was not granted as the delay was not due to any fault by the applicant. Ms Wischer referred to a number of authorities and submitted that the application met the description of “exceptional circumstances” set out by Lord Bingham of Cornwell CJ and referred to by Gleeson CJ in Baker v R. 90

[73] It was common ground between the parties that the words “exceptional circumstances” have set the bar higher than it used to be under the Workplace Relations Act with respect to the exercising of discretion to grant an extension of time application. I concur with this view as did Whelan C in Parker v Department of Human Services Southern Metropolitan Region (Parker) 91 and Lawler VP in Johnson v Joy Manufacturing Co. Pty Ltd (Johnson).92

[74] Lawler VP in Johnson, quoted with approval the analysis of Whelan C as to what constituted “exceptional circumstances”. 93

[75] Whelan C, in Parker, said:

[76] Further to that, Lawler VP found that:

[77] The expression “special reasons” was considered by a Full Court of the Federal Court in Jess v Scott and Others (Jess) 95 in the context of an application for an extension of time for filing a notice of appeal on the grounds of representative error. The representative error was that of a misunderstanding on the part of the applicant’s solicitor as to the date of delivery of judgement which resulted in late lodgement of the notice of appeal.96

[78] With respect to “special reasons”, the Full Court said that:

[79] The Full Court went on to find that:

[80] I respectfully adopt the analysis of Lawler VP and Whelan C regarding the meaning of the word “exceptional” and am guided by the decision in Jess.

[81] The construction of “exceptional circumstances” that was adopted by Whelan C and Lawler VP is, as set out in paragraph 75 above, namely:

[82] In applying this construction to this matter I find that the circumstances of the errors by the union (the applicant’s representative), with no contribution by the applicant to the delay, meets the test of “an exception, which is out of the ordinary course, or unusual, or special, or uncommon.” 100 It could not be said that the representative error in this matter “is regularly, or routinely, or normally encountered.”101

[83] Therefore, I am satisfied that, taking into account my earlier findings regarding the factors set out in s.366(2), in all of these circumstances, there are exceptional circumstances as required by s.366(2) of the Act.

[84] Accordingly, I am prepared to exercise my discretion to allow a further period for the filing of Ms Bradbury’s application. An order to this effect will be issued separately.

[85] As a conciliation conference has not yet been held with respect to this matter, it will be listed for 10.30am on Monday 9 August 2010.

COMMISSIONER

 1   Exhibit A2

 2   Ibid at paragraphs 1 and 8

 3   Ibid at paragraph 7

 4   Transcript PN 130

 5   Ibid PN 131

 6   Ibid PN 132

 7   Exhibit R3 at Attachment CW4

 8   Transcript PN 133 - 134

 9   Ibid PN 140 and 143 and Exhibit A2 at paragraph 11

 10   Transcript PN 145 – 146 and Exhibit A2 at paragraph 14

 11   Exhibit R3 at paragraphs 15 - 20

 12   Transcript PN 154

 13   Ibid PN 147 and 152

 14   Ibid PN 153

 15   Ibid PN 170 - 174

 16   Ibid PN 193 - 196

 17   Ibid PN 197

 18   Ibid PN 198 - 208

 19   Ibid PN 209 - 210

 20   Ibid PN 213

 21   Ibid PN 218 - 221

 22   Ibid PN 222 - 233

 23   Ibid PN 234 - 236

 24   Ibid PN 243 - 257

 25   Ibid PN 262 - 263

 26   Ibid PN 264 - 265

 27   Ibid PN 267 - 268

 28   Ibid PN 279 - 282

 29   Exhibit R2

 30   Transcript PN 317 - 334

 31   Exhibit A3

 32   Transcript PN 430 - 432

 33   Ibid PN 451 - 453

 34   Ibid PN 465 and Exhibit A3 at Attachment GM3

 35   Exhibit A3 at Attachment GM2

 36   Ibid PN 467 - 469

 37   Exhibit R1

 38   Transcript PN 50

 39   Ibid PN 69

 40   Exhibit R1 at paragraph 4 and Transcript PN 58 and 73

 41   Exhibit R1 at paragraph 5 and Transcript at PN 61 - 62

 42   Transcript PN 64 - 68

 43   Ibid PN 91

 44   Ibid PN 70 – 72, 94 and 97 - 98

 45   Ibid PN 81 - 82

 46   Ibid PN 84 - 87

 47   Exhibit R3

 48   Ibid at Attachment CW1

 49   Transcript PN 515 - 519

 50   Exhibit R3 at paragraph 12 and Transcript PN 520

 51   Transcript PN 521

 52   Exhibit R3 at paragraph 13

 53   Ibid at Attachment CW5

 54   Exhibit A2

 55   Transcript PN 532

 56   Exhibit R4

 57   Transcript PN 552 - 556

 58   Ibid PN 559 - 561

 59   Ibid PN 563 - 565

 60   Ibid PN 566 - 576

 61   Ibid PN 577 - 580

 62   Exhibit A1 at paragraph 11

 63   Transcript PN 597

 64   Ibid PN 598 - 599

 65   Ibid PN 599

 66   Ibid PN 601

 67   Exhibit A1 at paragraph 14

 68   Transcript PN 602 – 603 and Exhibit A1 at paragraphs 19 - 21

 69   Transcript PN 605

 70   Exhibit A1 at paragraphs 23 - 25

 71   Ibid at paragraphs 26 - 28

 72   Ibid at paragraph 29

 73   Ibid at paragraph 34

 74   Ibid

 75   Ibid

 76   Transcript PN 606

 77   Exhibit R5 at paragraphs 63 - 64

 78   Ibid at paragraphs 16, 43 – 44 and Transcript PN 613 and 627 - 628

 79   Ibid at paragraphs 17 – 19 and Ibid PN 614

 80   Ibid at paragraphs 23-28 and Ibid PN 615 - 618

 81   Ibid at paragraphs 31 – 32 and ibid PN 619 - 621

 82   Ibid at paragraphs 33 – 34 and Ibid PN 622 - 624

 83   Ibid at paragraphs 39 – 42 and Ibid PN 627

 84   Ibid at paragraphs 45 – 52 and ibid PN 629

 85   Transcript PN 630 - 631

 86   Ibid PN 633 and Exhibit R5 at paragraphs 54 - 56

 87   Ibid PN 634 – 637 and ibid at paragraphs 59 - 61

 88   Ibid PN 637 – 638 and ibid at paragraph 62.

 89   Fair Work Act 2009, section 366(2).

 90   Baker v R (2004) HCA 45 at paragraph 13

 91   [2009] FWA 1638 at paragraph 28

 92   [2010] FWA 1394 at paragraph 28

 93   Ibid at paragraphs 27 - 28

 94   Ibid at paragraph 28

 95   (1986 – 87) 70 ALR 185

 96   Ibid at p.185

 97   Ibid at p.193

 98   Ibid at p.194

 99   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150

 100   Ibid

 101   ibid



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