DECISION

Fair Work (Registered Organisations) Act 2009
s.94(1) RO Act—Withdrawal from amalgamation

Application by Michael O’Connor for withdrawal from amalgamated organisation
(D2022/11)

Application for withdrawal from amalgamated organisation – Manufacturing Division – Construction, Forestry, Maritime, Mining and Energy Union.

Introduction and historical background

[1] On 27 March 2018, the Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA) were deregistered as part of a scheme of amalgamation (2018 amalgamation) in which the two organisations amalgamated with another organisation, the Construction, Forestry, Mining and Energy Union (CFMEU). The name of the CFMEU was altered to become the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU). The membership of the former MUA was placed in a new Maritime Union of Australia Division of the CFMMEU. The membership of the former TCFUA was merged into the pre-existing Forestry, Furnishing, Building Products and Manufacturing Division (FFPD 1) of the CFMEU, with that Division renamed as the Manufacturing Division of the CFMMEU. Various alterations to the FFPD rules were made to reflect and accommodate the merger of the TCFUA membership into the Division.

[2] Michael O’Connor was, before 27 March 2018, relevantly, the Divisional National Secretary and a member of the Divisional Executive of the FFPD of the CFMEU. From that date and continuing, he was and is the Divisional Secretary and a member of the Divisional Executive of the Manufacturing Division of the CFMMEU. On 15 September 2022 Mr O’Connor applied under s 94 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) for a ballot to be held to decide whether the Manufacturing Division of the CFMMEU should withdraw from that organisation.

[3] The CFMMEU opposes the application and has raised a number of objections. In this decision we deal only with the first objection, which concerns the jurisdiction of the Commission to make an order under s 100 of the RO Act for a ballot to be held. The CFMMEU contends the Manufacturing Division did not become a part of the CFMMEU within the meaning of s 94 of the RO Act on 27 March 2018 and accordingly there is no jurisdiction to make the order sought. The CFMMEU contends that the effect of the amalgamation on 27 March 2018 with, relevantly, the TCFUA was to alter the composition of the Manufacturing Division but was not such that the Division became a part of the CFMMEU as a result of the amalgamation.

[4] Mr O’Connor contends that the Manufacturing Division is a “separately identifiable constituent part” of the CFMMEU within the meaning in paragraph (c) of the definition of that phrase in s 93 of the RO Act. So much is not disputed. Mr O’Connor contends that the Manufacturing Division did not exist prior to the amalgamation in 2018. It owes its existence to the Scheme for Amalgamation and the alterations to the structure, governance, membership and rules of the FFPD, and the merger of the TCFUA into that Division brought about by the scheme. And so, he submits, the Manufacturing Division was formed by the merger of the FFPD Division with the former TCFUA membership, which occurred as part of the amalgamation, with the Manufacturing Division becoming part of the CFMMEU as a result of the amalgamation in 2018.

[5] The legislative history of Chapter 3, Part 3 of the RO Act is set out in Application by Grahame Patrick Kelly (Re Kelly) 2 and in Kelly v Construction, Forestry, Mining, Maritime and Energy Union (Kelly v CFMMEU),3 as was the legislative scheme and proper construction of a number of the provisions of Part 3 of the RO Act.4 We need not set these out here.

[6] Immediately before the amalgamation in 2018 the CFMEU was comprised of three divisions — the Mining and Energy Division, the Construction and General Division and the FFPD. 5 The history of the development of the structure and membership composition of the FFPD requires some analysis. Relevantly, on 23 September 1991, the Building Workers Industrial Union of Australia (BWIU) and the Australian Timber and Allied Industries Union (ATAIU) amalgamated to form the ATAIU and BWIU Amalgamated Union.6 Following the amalgamation, the ATAIU and BWIU Amalgamated Union rules provided for two divisions — the ATAIU Division and the BWIU Division.7 The ATAIU Division had the members allocated to it who were eligible to join the union under rule 2(C), and the BWIU Division had those members allocated to who were eligible under rules 2(A) and (B).8

[7] On 10 February 1992, the ATAIU and BWIU Amalgamated Union amalgamated with the United Mineworkers Federation of Australia to form the CFMEU. 9 Rule 42 was amended to provide for three divisions – the Mining Division, ATAIU Division and BWIU Division.10 Rule 42(iii) of the rules as they then were provided that the existing divisions were to be restructured, with the ATAIU Division to be restructured as the Forestry and Forest, Building Products Manufacturing Division consisting of members eligible under rule 2(C) and, additionally, members eligible under rules 2(A) and (B) employed in the following industry sectors:

•  Forest and forest products industry;

•  Pulp and paper industry;

•  Timber and building related manufacturing industry including joinery/shopfitting, wall frame/roof trusses, furniture, glass window manufacturing and any other sectors of manufacturing activity as agreed to between the ATAIU and the BWIU Divisions of the union. 11

[8] On 23 September 1992, the CFMEU amalgamated with the Federated Engine Drivers’ and Firemen’s Association of Australasia and the Operative Plasterers and Plaster Workers Federation of Australia. 12 Rule 42 was amended to provide for the creation of a new division and renaming of an existing division for the merging unions — the FEDFA Division and BWIU/Plasterers Division — pending the restructuring of these divisions into four divisions of the CFMEU, including the contemplated Forestry and Forest, Building Products Manufacturing Division.13

[9] On 26 March 1993, the CFMEU amalgamated with the Operative Painters and Decorators Union of Australia, The Federated Furnishing Trade Society of Australasia and the Victoria State Building Trades Union. 14 Rule 42 was amended to create a new division — the FFTS Union Division — and the BWIU/Plastering Division became the Building Unions Division.15 The restructure of divisions, including the establishment of the Forestry and Forest, Building Products Manufacturing Division, remained contemplated under rule 42(iii).16

[10] On 19 July 2002, rule 42D was inserted into the CFMEU rules, which provided a timeline for the restructuring of the FFTS Union Division into the Forestry and Forest, Building Products Manufacturing Division (which had evidently come into existence, as previously contemplated), which division was now to become the FFPD. 17 On 26 March 2005, pursuant to rule 42D, the FFTS Division was removed from the CFMEU rules,18 leaving three Divisions — the Mining and Energy Division, the Construction and General Division and the FFPD.

[11] Until the 2018 amalgamation, the FFPD was comprised of members eligible to join the CFMEU under eligibility rules 2(C) and (F). 19

The 2018 amalgamation

[12] The application made under s 44 of the RO Act for a ballot to approve the 2018 amalgamation was accompanied by a “Scheme for Amalgamation” (with annexures) 20 and an “Outline of the Scheme for Amalgamation.”21 So far as is relevant for this application, the Scheme for Amalgamation contained the particulars set out below.

[13] Clause 1 set out the parties to the proposed amalgamation as the CFMEU, MUA and TCFUA. By clause 2:

•  the CFMEU was identified as the proposed amalgamated organisation;

•  the MUA and TCFUA were to be merged with the CFMEU; and

•  upon amalgamation the MUA and TCFUA were to be deregistered.

[14] Clause 6 explains that the amalgamation will be principally effected by:

•  the creation of The Maritime Union of Australia Division (MUA Division) of the Proposed Amalgamated Organisation (clause 6.1);

•  the merger of the TCFUA with the FFPD of the CFMEU which will be renamed as the Manufacturing Division of the Proposed Amalgamated Organisation (clause 6.2);

•  TCFUA members becoming members of the Proposed Amalgamated Organisation and being attached to the Manufacturing Division within the Proposed Amalgamated Organisation (clause 6.6);

•  the current TCFUA Branches being integrated into the Manufacturing Division structures (clause 6.7);

•  the creation of a textile, clothing and footwear sector (TCF Sector) within the Manufacturing Division constituted on the amalgamation day by members of the TCFUA and then by all TCF Sector members (clause 6.8);

•  the establishment of a TCF Sector Council with specific roles and responsibilities in respect of policy and industrial issues relating to the TCF industry (clause 6.9); and

•  the establishment of specific TCF positions and offices in the Proposed Amalgamated Organisation and the Manufacturing Division (clause 6.10).

[15] Clauses 8 to 13 deal with the assets and liabilities of the incoming organisations. Clause 8 relevantly provides that upon amalgamation, the assets and liabilities of the TCFUA will become the assets and liabilities of the Proposed Amalgamated Organisation and that the use of assets and meeting of liabilities of the TCFUA will be subject to the governance processes of the Divisional Rules of the Manufacturing Division and National Rules of the Proposed Amalgamated Organisation. By clause 11, the National Funds of the TCFUA will form part of the Divisional Funds of the Manufacturing Division. Clauses 12 and 13 provide for special arrangements for managing and dealing with the TCF Special Fund and the TCF Mortality Fund.

[16] Clauses 14 to 17 deal with membership eligibility of the Proposed Amalgamated Organisation as follows:

•  eligibility rules of the TCFUA will be incorporated as part of the Proposed Amalgamated Organisation’s eligibility rule (clause 14);

•  all members of the MUA and TCFUA will become members of the Proposed Amalgamated Organisation without payment of entrance fees (clause 15); and

•  TCFUA members who become members of the Proposed Amalgamated Organisation by reason of the amalgamation will be attached to the Manufacturing Division and will have their TCFUA membership recognised as membership of the Proposed Amalgamated Organisation and the Manufacturing Division and the TCF Sector for all purposes under the rules (clause 17).

[17] Clause 19 sets out that the TCFUA will be merged into the CFMEU and will form part of the Manufacturing Division of the Proposed Amalgamated Organisation. Clause 20 deals with the structure of the Proposed Amalgamated Organisation under the rules, consequent on the amalgamation. The structure under the rules, will relevantly provide for:

•  TCFUA representation under the National Rules (clause 20.1);

•  Divisional Rules for the Divisions of the Proposed Amalgamated Organisation and their governing bodies and offices as follows:

•  Mining and Energy Division;

•  Construction and General Division;

•  Manufacturing Division; and

•  The Maritime Union of Australia Division (clause 20.2).

•  No change to the structure and rules of the Mining and Energy Division and the Construction and General Division (clause 20.3).

[18] Clause 24 provides that the rules of the CFMEU are to be altered to give effect to the amalgamation.

[19] Alterations are to be made to the National Rules (clause 24.1), with the eligibility rule of the Proposed Amalgamated Organisation to include those of the MUA and TCFUA in National Rules 2(P) and (Q). The industry rule of the Proposed Amalgamated Organisation is also proposed to be altered, the particulars of which are to be found in Rules 3(K) and (L).

[20] The MUA Divisional Rules are annexed to the scheme (clause 24.2), as are the Manufacturing Divisional Rules which are the product of alterations to the FFPD rules (clause 24.3).

[21] In summary, the Scheme for Amalgamation provided for the MUA and TCFUA to be merged with the CFMEU and for the MUA and TCFUA to be deregistered; for the formation of The Maritime Union of Australia Division and new Divisional Rules; for the merger of the TCFUA membership with the FFPD, with FFPD divisional rules altered to reflect the new name of the division — the Manufacturing Division — and structural changes to accommodate the merged TCFUA membership. The other existing divisions — the Mining and Energy Division and the Construction and General Division — were unaltered in rules or structure.

[22] A marked-up version of the proposed rules of the Manufacturing Division is annexed to the Scheme for Amalgamation. 22 That document shows the proposed alterations to the rules of the then-CFMEU, Forestry, Furnishing, Building Products and Manufacturing Division (i.e. the FFPD) consequent on the 2018 amalgamation taking effect. The FFPD rules were to be altered as set out below:

•  In rule 1 the name of the division was amended as follows: The name of the Division shall be “The Manufacturing Division” “The Forestry, Furnishing, Building Products and Manufacturing Division”. (FFPD).;

•  Rule 2, dealing with the members belonging to the Division was amended to reflect the alteration to the eligibility rule of the National Rules - Rule 2 Sub-Rule (C), (F) and (F)(PR)

•  In rule 3 “the TCF National Secretary” was added to allow that officer, in the absence of the Divisional Secretary, to sign certain documents on behalf of the Division;

•  Some definitions in rule 4 were altered to reflect the change in the name of the Division, and the definition of “Divisional Officers” was amended as follows: “DIVISIONAL OFFICERS” shall mean the Divisional Secretary, the Divisional President, the Divisional Senior Assistant Secretary and two, the TCF National Secretary, the Senior Vice-President (TCF) and three other Divisional Assistant Secretaries one of whom shall be the District Secretary of the PPW District. New definitions were included for terms referable to the TCFUA and its amalgamation with the CFMEU and merger with the division;

•  Rule 5 was amended to recognise that TCF Sector members resident in Queensland would be deemed to be attached to the NSW District;

•  Rules 9 and 13 dealing with the Divisional Executive and the duties of Divisional Officers respectively were amended to increase the number of members of the executive and to cater for incoming new Divisional Officers originating from the TCFUA;

•  A new rule 9A was inserted to create a TCF Sector Council;

•  References to “the TCF National Secretary” are included in rule 14 dealing with funds and property and amendments are made to the subrules dealing with “special funds” to accommodate funds moving from the TCFUA to the CFMMEU;

•  Rule 16 is amended to provide that any rescission, alteration, or amendment of the Divisional Rules which affects in any way the representation of the TCF Sector will not be effective unless endorsed by a resolution of the TCF Sector Council Sub-Committee;

•  Rule 18 which deals with allocation of members of the Division to districts is amended to correspond to amended rule 5;

•  Rule 21 deals with industrial disputes and was amended to provide that where industrial disputes relate to matters affecting the TCF Sector only, the TCF Sector Council and the TCF National Secretary will perform the same functions as the District Executive and the District Secretary;

•  Rule 22 seems only to have been updated to provide for the current address of the Division office rather than being altered because of the merger of the TCFUA into the FFPD;

•  Rule 25 is altered to provide for additional recognition of service other than through life membership;

•  Rules 30 to 33 dealing respectively with District governance, full-time officers, elections and casual vacancies are altered to accommodate new TCF officers;

•  Rule 37 regulating the election, appointment, and the termination of appointment of shop stewards and job delegates is altered;

•  Rule 44 is inserted to deal with the amalgamation of the CFMEU with the TCFUA, the allocation of its members to the Division and to the Districts in the Division, the way its members will be represented in the Division, the allocation of offices and provision for transitional terms of office, elections, and associated matters;

•  Rule 44(xiii) is included and provides:

(xiii) ALL OTHER OFFICES TO CONTINUE

For the avoidance of doubt, other than as provided for in Rule 44(v), on and from amalgamation day all offices within the Division shall be held by the persons holding those offices immediately prior to amalgamation day, and those persons shall continue to hold office for the period that equals the unexpired part of the term of office held by the person immediately before amalgamation day.

[23] It is evident from the above analysis that rule alterations and structural changes made to the FFPD divisional rules and the FFPD were almost entirely brought about to accommodate the merger of the TCFUA membership into the FFPD. Although it must be accepted that the introduction of new members and officers into the division might result in a shift in the power dynamic which, until amalgamation day, existed in the FFPD, no other change to the structure or composition of the FFPD was effected.

Did the Manufacturing Division become part of the CFMMEU as a result of the 2018 amalgamation?

[24] Section 94(1) of the RO Act provides that an application may be made to the Commission for a secret ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation if:

(a) the constituent part became part of the organisation as a result of an amalgamation under Part 2 of the RO Act or a predecessor law;

(b) the amalgamation occurred no less than 2 years prior to the date of the application; and

(c) the application is made before the period of 5 years after the amalgamation occurred has elapsed.

(our emphases)

[25] Mr O’Connor’s application relies on the 2018 amalgamation. There is no dispute that the second and third limbs of s 94(1) of the RO Act are satisfied in respect of that amalgamation.

[26] The term constituent part is defined in s 93 of the RO Act, relevantly, as meaning a separately identifiable constituent part, which in turn is defined, in relation to an amalgamated organisation, to mean:

•  if an organisation de-registered under Part 2 in connection with the formation of the amalgamated organisation remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation — that branch, division or part; or

•  if a State or Territory branch of such a de-registered organisation under its rules as in force immediately before its de-registration remains separately identifiable under the rules of the amalgamated organisation as a branch, division or part of that organisation — that branch, division or part; or

•  any branch, division or part of the amalgamated organisation not covered by paragraph (a) or (b) that is separately identifiable under the rules of the organisation.

[27] There is no dispute, and we accept, that the Manufacturing Division of the CFMMEU is a separately identifiable constituent part within the meaning of subparagraph (c) of the definition in s 93 of the RO Act and so it is a constituent part of an amalgamated organisation, the CFMMEU. The issue requiring determination is whether the Manufacturing Division became a part of the CFMMEU as a result of the 2018 amalgamation for the purpose of s 94(1)(a).

[28] As we earlier noted, Mr O’Connor contends that the Manufacturing Division was formed by the merger of the FFPD and the TCFUA, which occurred as part of the 2018 amalgamation, such that the Manufacturing Division became part of the CFMMEU as a result of the 2018 amalgamation. Mr O’Connor contends that this was manifested in the ways that are identified by reference to the Scheme for the Amalgamation. He says that the changes made to the FFPD because of the amalgamation in 2018 were significant and that the numerous changes, which we have endeavoured to set out above, were substantial and effected a significant restructure of the former FFPD. The changes were to the structure, governance, membership and rules of the FFPD which existed immediately prior to the 2018 amalgamation. And those changes were implemented by changes to the rules of the CFMMEU and the FFPD as part of the amalgamation in 2018.

[29] Further, Mr O’Connor contends that the circumstances of the Manufacturing Division stand in contrast to that of the Mining and Energy Division which were examined in Re Kelly and in Kelly v CFMMEU. He says that that application was rejected because there was no demonstration of any change in the constituent part as a result of the amalgamation; it continued to exist unaltered; and that the position of the Manufacturing Division was relevantly distinguished from that of the Mining and Energy Division by the Full Court in Kelly v CFMMEU which observed:

“The scheme for the 2018 Amalgamation stated that the registered organisations proposing to amalgamate were the CFMEU, the MUA and the TCFUA, The CFMEU was to remain registered and to be the amalgamated organisation. The MUA and the TCFUA were to be deregistered. The name of the CFMEU was to be changed to the CFMMEU. The rules were to be altered, including by creating a new MUA Division and creating a new Manufacturing Division by merging the TCFUA with the Forestry Division. The rules of the M&E Division were not altered. . .

. . . As the M&E Division was already part of the CFMEU and the rules applying to it remained unchanged, it did not “become part of” the CFMEU “as a result of” the 2018 Amalgamation.” 23

[30] Mr O’Connor submits that the contrast with the position of the Manufacturing Division is clear, and he relies on the reasoning of the Commission and the Full Court cited above to contend that, as the precursor of the Manufacturing Division in the CFMEU changed as a result of the 2018 amalgamation to become the constituent part called the Manufacturing Division, the requirement of s 94(1)(a) of the RO Act is met.

[31] We do not consider that the Manufacturing Division became part of the CFMMEU as a result of the 2018 amalgamation for the reasons which follow.

[32] Not every branch, division or part of an amalgamated organisation which falls within the definition of “separately identifiable constituent part” in s 93 of the RO Act will be able to be the subject of an application under s 94(1). This is because of the further conditions in that section and relevantly s 94(1)(a). The phrase “as a result of” the particular amalgamation in s 94(1)(a), connotes the constituent part becoming part of the amalgamated organisation because of or as a consequence of the particular amalgamation. And the requirement that “the constituent part became part of the [amalgamated] organisation” suggests that it is the whole of the constituent part that became part of the organisation as a result of the amalgamation, and not merely some element of the constituent part.

[33] As we have earlier noted, parts of the Manufacturing Division have been a part of the CFMMEU since the initial amalgamation between the BWIU and the ATAIU. Immediately before the amalgamation in 2018, a significant portion of that which is now the Manufacturing Division was known as the FFPD. As a result of the amalgamation in 2018, the TCFUA amalgamated with the CFMEU and its membership was structurally merged with the existing FFPD, which was renamed as the Manufacturing Division. As we have described earlier, some changes to the rules of the FFPD were made to facilitate the merger of the TCFUA.

[34] Clause 6.2 of the Scheme for Amalgamation makes clear that a new division was not being created. Rather, the amalgamation (between the CFMEU, MUA and TCFUA) was to be principally effected, inter alia, by “the merger of the TCFUA with the Forestry, Furnishing, Building Products and Manufacturing Division of the CFMEU which will be renamed as the Manufacturing Division of the Proposed Amalgamated Organisation”. This stands in contradistinction with “the creation of The Maritime Union of Australia Division (MUA Division) of the Proposed Amalgamated Organisation”. The MUA Division became part of the CFMMEU as a result of the 2018 amalgamation whereas, as a result of the same amalgamation, an existing division, the FFPD, had its name changed, its membership and officers expanded, and its structure altered to accommodate the incorporation of the TCFUA membership.

[35] In substance that which occurred “as a result of” the 2018 amalgamation was not the Manufacturing Division “becoming part of” the CFMMEU but rather the allocation of TCFUA members to the FFPD and the renaming of the division, the creation of new officers for the TCFUA officials and the creation of a TCF sector council. The rules changes made to the FFPD rules reflect this such that, on the 2018 amalgamation taking effect, the pre-existing:

•  organisational management structures of the Division such as the Divisional Conference and the Divisional Executive remained, subject to the addition of new officers from the TCFUA; 24

•  districts of the Division remained unchanged, except to include additional TCFUA members; 25

•  governance of the districts remained relevantly unchanged subject to the inclusion of a TCF Assistant Secretary and TCF Full Time Officer for the Victorian District; 26

•  officers of the FFPD continued in their positions, unaffected by the amalgamation; 27

•  duties of the Divisional President and Secretary remained relevantly unchanged; 28

•  election provisions, except for the provisional rules relating to the new TCFUA officers, remained unchanged; 29 and

•  members allocated to the FFPD remained allocated to the division 30 — there is no separate rule allocating or transitioning members of the FFPD to the Manufacturing Division.

[36] Moreover, there is no transitional provision for the transfer of any funds of the FFPD to the Manufacturing Division. The terms of new rule 44(xiii) — which is titled “All other offices continue” (the text of which is earlier set out) — is included in respect of existing FFPD officers “for the avoidance of doubt”. FFPD officers did not transition into new offices of a new division. These officers retained their offices in an existing division, the name of which was changed to the Manufacturing Division.

[37] Mr O’Connor’s reliance on Kelly v CFMMEU earlier noted, does not assist. The passages of the Full Court’s judgment on which reliance is placed are directed to no more than making the point that the Mining and Energy Division was unaffected by the amalgamation in 2018. The Full Court did not give consideration to the nature of the changes, nor the consequences of any changes made to any other division of the CFMMEU as a result of the amalgamation in 2018, and the Court’s reference to “creating a new Manufacturing Division” should be read in that context and not more broadly. It was a statement made by the Court without the benefit of any argument about the proper characterisation of the Scheme for Amalgamation as it concerned the Manufacturing Division.

[38] As our earlier examination of the rules of the Manufacturing Division reveals, while changes were made to accommodate the new TCFUA members and officers, those changes proceeded on the basis that the existence of the FFPD was to continue unaffected, subject to the addition of new members, officers and specific TCF industry arrangements. It was open to those formulating the 2018 amalgamation to have proposed a Scheme for Amalgamation whereby the amalgamation of the CFMEU and the TCFUA occurred through the creation of a new TCFUA division consisting of former members of the TCFUA (as was done with the MUA though the creation of the MUA division), and to propose rules changes to the amalgamated organisation’s rules which would give effect to such an arrangement on and from amalgamation day. A TCFUA Division created in such circumstances would likely have become part of the amalgamated organisation as a result of the amalgamation. Instead, the route chosen was to expand the membership of an existing division of the organisation and to change its name and some of its rules to facilitate the incorporation of the TCFUA membership. And so, while the FFPD was modified and renamed as a result of the 2018 amalgamation, it did not become part of the amalgamated organisation as a result of the 2018 amalgamation because it was already a constituent part of that organisation.

[39] It follows that the application must be dismissed.

Order

[40] The application by Michael O’Connor made under s 94 of the Fair Work (Registered Organisations) Act 2009 is dismissed.

ACTING PRESIDENT

Appearances:

H Borenstein KC with Y Bakri of counsel for Michael O’Connor
C Dowling SC with C Massy of counsel for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

2022.

Melbourne:

12 December.

Printed by authority of the Commonwealth Government Printer

<PR749627>

 1   This is the abbreviated title for the division used in the CFMEU rules.

 2   [2021] FWCFB 6002, 310 IR 270 at [29]-[56]

 3   [2022] FCAFC 130 at [67]-[76]

 4   [2021] FWCFB 6001, 310 IR 270 at [88]-[94] and [115]-[116]; [2022] FCAFC 130 at [87]-[100], [104]-[116] and [121]-[137]

 5   Exhibit 2, Statement of Jessica Dawson-Field dated 21 November 2022 at [9] and annexure JDF-7 (r 42(iii))

 6   Ibid at [4]

 7   Ibid annexure JDF-1 (r 42(i))

 8   Ibid

 9   Ibid at [5]

 10   Ibid annexure JDF-3 (r 42(i))

 11   Ibid annexure JDF-3 (r 42 (iii)(b))

 12   Ibid at [6]

 13   Ibid annexure JDF-4 (r 42)

 14   Ibid at [7]

 15   Ibid annexure JDF-5 (r 42(i))

 16   Ibid annexure JDF-5 (r 42(iii))

 17   Ibid annexure JDF-6

 18   Ibid at [9]

 19   Ibid at [10] and annexure JDF-8

 20   Ibid annexure JDF-10

 21   Exhibit 1, Statement of Geoffrey Borenstein dated 24 October 2022, annexure GB-5

 22   Exhibit 2, Statement of Jessica Dawson-Field dated 21 November 2022 annexure JDF-10 (Annexure G)

 23   [2022] FCAFC 130 at [138]-[139]

 24   Exhibit 2, Statement of Jessica Dawson-Field dated 21 November 2022 annexure JDF-10 (Annexure G), rules 8 and 9

 25   Ibid annexure JDF-10 (Annexure G), rule 18

 26   Ibid annexure JDF-10 (Annexure G), rule 30

 27   Ibid annexure JDF-10 (Annexure G), rule 44 (xiii)

 28   Ibid annexure JDF-10 (Annexure G), rule 13

 29   Ibid annexure JDF-10 (Annexure G), rule 32

 30   Ibid annexure JDF-10 (Annexure G), rules 2 and 44(iii)