1
Fair Work Act 2009
s.240—Bargaining dispute
Essential Energy; Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia;
Australian Municipal, Administrative, Clerical and Services Union;
Association of Professional Engineers, Scientists and Managers, Australia.
(B2013/1562)
Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 9 MAY 2014
Scope of proposed enterprise agreement
[1] Essential Energy, the Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing & Allied Services Union of Australia (CEPU), the Australian Municipal,
Administrative, Clerical and Services Union (ASU), and the Association of Professional,
Engineers, Scientists and Managers, Australia (APESMA) applied on 11 December 2013 for
the Fair Work Commission to deal with a bargaining dispute concerning the scope of a new
enterprise agreement to replace the Essential Energy Enterprise Agreement 2011 (the 2011
agreement). Other than the issue of scope all the other clauses for a new enterprise agreement
(the proposed agreement) have been agreed by the applicants. The applicants agreed that the
application be made pursuant to section 240(1) of the Fair Work Act 2009 (the Act). The
application was made under the terms of an agreement between the parties. That agreement,
in summary, included the following:
The Commission is to arbitrate by consent the dispute between the applicants as to the
scope of the proposed agreement. The Commission shall decide whether the scope
should be in the terms proposed by Essential Energy, the same as the 2011
agreement, or some other scope the Commission considers appropriate.
For the purposes of arbitrating the dispute the parties acknowledge that the
Commission will, by reference to relevant jurisprudence, have regard to whether each
group of employees to be covered by the proposed agreement are fairly chosen and
whether such proposed scope is reasonable in all the circumstances.
The arbitration shall be determined on its merits, without recourse to jurisdictional,
technical or representational rights arguments.
For the purposes of the arbitration, the CEPU, ASU and APESMA (the unions) will
not argue that Essential Energy has not met, or is not meeting, the good faith
bargaining requirements.
[2014] FWC 3065
DECISION
E AUSTRALIA FairWork Commission
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The decision of the Commission will be binding on the applicants and will not be the
subject of any rights of appeal or review.
[2] Hearings were conducted in Sydney on 16, 17 December 2013, 13, 26 February, 20,
21 March, and 14 April 2014. Extensive written submissions were also provided by both
parties, with the final submissions received on 7 May 2014. Essential Energy was represented
by Mr J Phillips, SC and Mr Y Shariff. The unions were represented by Mr I Taylor, SC and
Ms L Doust. The following gave evidence on behalf of Essential Energy:
Mr Ross Berry (Area Manager);
Mr Brendon Neyland (Regional Manager, North Coast);
Ms Linda Southern (Manager, Internal Audit);
Mr Peter Bereicua (General Manager, Network Operations);
Mr Andrew Thrower (Network Operations Coordinator); and
Mr Peter Smith (Manager, Employee Relations).
[3] The following gave evidence on behalf of the unions:
Mr Gordon Brock (Director, NSW Branch of APESMA);
Mr John Morassutti (Senior Industrial Relations Manager);
Mr Geoffrey Prime (Organiser, CEPU);
Mr Keven Semple (former Executive General Manager, Workplace Relations);
Mr Scott McNamara (Manager, Utilities and Private Sector Branch, ASU);
Mr Bradley Trethewey (Principal Engineer, Network Standards); and
Mr Peter Tree (Senior Protection Engineer).
[4] The classifications covered by the 2011 agreement that would be outside the scope
proposed by Essential Energy are:
Administration Officers at levels AO24-27 (pay points 41-44);
Area Managers levels 1-4 (pay points 37-40)
Technical Officers at levels TO17-20 (pay points 41-44);
Network Operators at level 8 (pay point 44);
Workplace Trainer & Assessors at level 8 (pay point 41);
Managers & Specialists (Band 2) at levels 5-8 (pay points 41-44);
Professional Engineers at levels 13-14 (pay points 41-43); and
Engineering Managers at levels 15-17 (pay points 42-44).
[5] The 2011 agreement covers approximately 4,272 employees.i 117 employees are not
covered by the 2011 agreement.ii These employees occupy the top four levels of the
organisation (the CEO Networks NSW - Mr V Graham, the Chief Operating Officer - Mr G
Humphries, the eight members of the executive and those employees who report directly to
executive members and their evaluated equivalents.iii If Essential Energy’s proposed scope
were to be adopted, an additional approximately 242 employees covered by the 2011
agreement would not be covered by the proposed agreement.iv These employees are mainly at
the fifth and sixth levels of the organisationv. If Essential Energy’s proposed scope were
accepted, around 8% of employees would not be covered by the proposed agreement.vi
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[6] Essential Energy’s proposal is that the cut-off for coverage by the proposed agreement
be at pay point 41 -- with two exceptions: Area Managers (who would be excluded but are
below that level) and Senior Network Operators (who would be included but are at pay point
42).vii
[7] According to Mr Bereicua:
‘Essential Energy considers that by having the managerial and senior employees
(including those with specialist skills) outside the proposed scope of the Proposed
Enterprise Agreement this will:
a) assist in aligning these employees to Essential Energy’s organisational
objectives to be delivered to achieve productivity benefits so as to assist in the
NSW Government reform of the electricity distribution sector;
b) assist these employees to make decisions, implement policies and take
responsibility over matters for which they are accountable, without any actual
or potential conflict of interest or loyalties. Essential Energy considers that
there is a conflict in these employees being covered under the same enterprise
agreement as other employees for which these employees are responsible;
c) otherwise assist to recognise that employees in operationally or
organisationally distinct technical or specialist roles also have specific
responsibilities to achieve organisational objectives in a manner that places
them in a different position to the rest of the workforce; and
d) provide better recognition and reward for individual performance.’viii
[8] At the commencement of proceedings, on 16 December 2013, I outlined certain
factors that I considered would be relevant to my decision. These were:
The history of industrial regulation;
Potential conflicts of interest;
The views of the affected employees;
The arrangements that would exist for employees not covered by the proposed
enterprise agreement;
The arrangements at comparable organisations; and
award coverage.ix
[9] Other relevant factors identified by the parties were:
The nature of the duties of the affected employees;x
Whether each group of employees has been fairly chosen;xi
The scope of the 2011 agreement;xii
Any changes in circumstances since the 2011 agreement.xiii
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[10] Each of these matters is referred to below. There was a very large quantity of evidence
tendered during the hearings, and some witnesses were extensively cross-examined. I have
not sought to provide a complete summary of that evidence; however it has all been taken into
account in reaching this decision.
What would happen to employees excluded from the scope of the proposed agreement?
[11] Essential Energy proposes to offer employees excluded by the enterprise agreement a
written contract of employment. Essential Energy, according to Mr Bereicua, proposes to
align the employment terms and conditions of managerial and senior employees with other
senior leaders in Essential Energy, including through the following:
a) a written contract of employment with a total remuneration package equal to, or better
than, the total remuneration package offered under the proposed agreement;
b) participation in the ‘At Risk’ Reward Plan (bonus plan) which provides an additional
incentive payment for employees who fulfil their individual KPIs;
c) policies and procedures regarding performance management; and
d) policies and procedures regarding succession and promotion.xiv
[12] The contracts would not be for a fixed term.xv It is agreed by the parties that the
employees that would be excluded from the enterprise agreement if Essential Energy’s
preferred scope were to be adopted would be covered by the Electrical Power Industry Award
2010.xvi
[13] A copy of the standard ‘Networks NSW’ contract of employment that would be
offered to employees excluded from the enterprise agreement was tendered as evidence.xvii
The contract states that the employee may be eligible to receive an ‘At Risk Performance
Payment’ in accordance with Essential Energy’s policy as varied from time to time. The
agreed maximum payment, as a percentage of the employee’s TRP is set out in a Schedule.
(In the example given of Mr Trethewey’s proposed contract the percentage was 20%.xviii) The
contract states that the making of any such payment is at the absolute discretion of the
employer. The contract also provides that Essential will review the employee’s total
remuneration not less than once each year; however it states that this will not necessarily lead
to an increase.
[14] Certain post termination restraints are included in the contract. The contract also
provides that the employer may terminate the employee’s employment at any time by
providing four weeks’ notice, plus a payment equivalent to six months total remuneration. In
the case of redundancy there is to be 10 weeks’ notice, plus six months pay. This potentially
contrasts with a provision in the proposed enterprise agreement that binds Essential Energy in
relation to employees covered by that agreement to the employer’s existing policies relating to
redeploymentxix and salary maintenancexx. Those policies, amongst other things, require in
practice that any redundancies are voluntary in nature. There is no equivalent provision in the
Networks NSW contract. The level of redundancy pay is also higher under the policies than
under the contract for some employees with long service.
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[15] While Essential Energy emphasised that employees who would be excluded by the
proposed enterprise agreement would still be covered by the 2011 agreement, it is clearly the
intention that such employees would be employed under the terms of the Networks NSW
contract of employment. One could anticipate that the 2001 agreement may be rescinded at
some point in the future. Even if this were not to occur, with the passage of time its provisions
are likely to become decreasingly relevant - from both the perspective of employees and the
employer. In practice therefore employees excluded from the enterprise agreement are
unlikely to have a realistic alternative to signing up to the Networks NSW contract. Some
provisions of that contract are potentially advantageous to employees (such as access to
performance based pay), while others are potentially disadvantageous (such as the provisions
on termination of employment).
Views of the affected employees
[16] In United Firefighters’ a Full Bench of Fair Work Australia said that ‘weight should
be granted to the views of the employees potentially affected’ in dealing with scope
applications.xxi
[17] A number of employees covered by the 2011 agreement but who would be excluded
from the enterprise agreement under Essential Energy’s proposed scope gave evidence.
[18] Mr Berry’s evidence (Mr Berry is an Area Manager) was that he was very interested in
entering into a contractual arrangement, rather than being covered by the proposed agreement,
for a number of reasons. These included the opportunity to have his total remuneration
package (TRP) annually reviewed and adjusted, and to the ability to participate in Essential
Energy’s performance bonus scheme. He considered this would provide him with an incentive
to fulfil his duties and responsibilities to the highest standard, and would assist in
differentiating him and rewarding him for the greater geographical area and greater number of
employees that he was responsible for.xxii
[19] Mr Thrower (a Network Operations Coordinator) gave evidence that he was interested
in entering a contractual arrangement rather than being covered by the proposed agreement,
provided that the TRP closely aligned with his current remuneration. He saw benefits to
contractual arrangements which included the bonus scheme, and the annual review of his
remuneration. He saw these as incentives to fulfilling his duties and responsibilities to the
highest standard. Not being part of the proposed enterprise agreement would also differentiate
him from the employees he supervised.xxiii
[20] By contrast, Mr Trethewey (Principal Engineer Network Standards) indicated that he
would prefer to remain under the enterprise agreement. He said that he found the concept of
bonus payments for engineers and technical employees such as himself offensive to his
professional standing. He was also concerned that having some members of his technical team
covered by contracts and not others could lead to disharmony. He said:
‘Essential Energy’s intent to place people on contract in my team will impact myself
and my 3 direct reports such that 4 out of the 16 in the team will be on contract. The
problem is that this immediately changes the dynamic of the team. Firstly any initiative
we instigate will be viewed as an attempt to ensure a bonus is achieved. The team will
not operate as a team of peers but will eventually deteriorate into a managerial versus
worker relationship. The implications are clear. Instead of technical collaboration the
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work force will be siloed by an artificial class system being those on contract and those
not on contract, which will have a negative impacts on the performance of the team
and Essential Energy generally.’xxiv
[21] Mr Brock’s evidence was that the issue of scope was one discussed at length with his
members. ‘The members expressed in the meetings that I addressed unanimous support for
remaining under coverage of the agreement. The strong view was that they believe that their
conditions of employment now and in the future would be more secure whilst employed under
the enterprise agreement.’xxv Mr Brock said that there would be 31 engineers affected by
Essential’s proposal. He was confident of having at least 80% density amongst those
engineers potentially excluded.xxvi
[22] No detailed evidence was provided of any survey or petition results from affected
union members (though Mr Brock did refer to a survey of members conducted by APESMA
as part of its ‘normal process of engagement with members prior to making claims for
agreements. And in that survey we ask questions, including questions about their views with
respect to retaining coverage under the agreement.’xxvii) Nor did the employer conduct a
survey of those employees who would be potentially affected. I do not infer from the failure
of the unions to tender any survey evidence that such evidence would be unhelpful to their
position.
[23] Overall there is a paucity of evidence about the views of the potentially affected
employees. It is clear that there are some employees who would like the opportunity to enter
into contractual arrangements with their employer. Equally it is clear that there are others who
would prefer to remain under the enterprise agreement.
Duties of the affected employees
[24] As noted previously, Mr Bereicua described the employees whom Essential Energy
wishes to exclude from the proposed agreement as ‘Managerial and Senior Employees’. He
said that the aim was to align the employment terms and conditions of these employees with
other senior leaders in Essential Energy. He described these employees as ‘the managerial
link between Essential Energy’s executive and the employees covered under the Enterprise
Agreement. They provide strategic and operational input to the executive, and are responsible
for ensuring the implementation of Essential Energy’s policies and procedures at the relevant
level.’xxviii
[25] Mr Bereicua gave evidence about the duties and responsibilities of the positions that
would be excluded from the proposed agreement if Essential Energy’s approach was adopted.
[26] Mr Bereicua described three categories of employees whom Essential Energy did not
consider should be within the scope of the proposed agreement. The first category included
those employees who:
‘are responsible for ensuring that work in their area is carried out in an efficient and
productive manner which ensures overall regional targets are met. Such employees are
members of Leadership Teams which are comprised only of managerial or very senior
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employees. Members of the Leadership Team are responsible for reporting to Essential
Energy on the progress and efficiency of their particular area and their direct reports.’xxix
[27] Mr Bereicua gave Area Managers as an example of this first category of employees.
They are at pay points 37-40 and receive a TRP of approximately $153,659 to $159,581.
Between approximately 32 to 97 employees report to each Area Manager. They have a role in
approving requests from employees in relation to entitlements such as overtime, travel
allowance and leave. They have a level of responsibility for budgets in the order of $15M to
$22M. According to their position descriptions they are required to ‘provide strong
management leadership, direction and support to all employees to ensure they have the
opportunity to gain the skills and motivation required to achieve business indicators and
targets to meet business objectives.’xxx
[28] Mr Berry gave evidence that as an Area Manager he had a range of managerial duties,
including supervising and managing 84 employees (including conducting their performance
reviews and taking disciplinary action if needed) and managing a budget of between $9.4m
and $24.1m. He participated in the regional senior management team, which involved
providing high level strategic and operational advice and support to the Regional General
Manager.xxxi During his cross examination, Mr Berry agreed that the Regional General
Manager actually approved planned overtime, albeit on his recommendation. Moreover,
unplanned overtime was recorded on timesheets which were approved by Resource
Supervisors (who reported to the Area Manager).xxxii
[29] Mr Bereicua described the second category of employees to be excluded from the
proposed agreement as employees who are ‘allied to and closely interwoven with work
performed by Type I employees [the first category of employees proposed to be excluded]
and they are required to implement Essential Energy’s decisions.’xxxiii
[30] Corporate and Regional HR Managers have a TRP of approximately $132,000 to
$157,000. They are responsible for interpreting the terms of applicable industrial instruments
and approve requests from employees in relation to entitlements such as overtime, travel
allowances and leave. They correspond with unions in relation to a number of issues and are
required to resolve disputes concerning matters pertaining to the employment relationship
pursuant to the applicable dispute and grievance resolution procedures under the relevant
industrial instrument. According to their position descriptions Corporate and Regional HR
Managers are required to ‘undertake a strategic position in the research, design, development
and implementation of a modern day HR workforce solutions assisting senior managers of
identified business units or regions to meet organisational and commercial goals.”xxxiv
[31] An example of the second category of employees to be excluded from the proposed
agreement is the Manager, Community Relations. This position is at pay point 42 and receives
a TRP of $148,185. It has one employee reporting to it. The position is ‘responsible for the
management of the region’s customer and stakeholder relationships and to establish, develop
and enhance Essential Energy’s corporate image by promoting a positive profile of the
organisation to the community, customers, stakeholders, and employees.’xxxv An analysis of
the evidence tendered by Mr Bereicua indicates that most positions in this category have no
employees reporting to them.
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[32] The third category of employees proposed to be excluded by Essential Energy is,
according to Mr Bereicua, operationally distinct by way of specialist skills, as well as
organisationally distinct on the basis that they also have senior or managerial roles with
significant responsibilities within the organisation.xxxvi
[33] An example of this third category of employees is the position of Manager Design. It
is at pay point 43-44 and has a TRP of approximately $164,485 to $170,813. There are three
such positions, with between 9 and 15 direct reports. The Manager Design has strategic and
operational responsibility for $2.5M of Essential Energy’s engineering services budget.
According to the position description the Manager Design take responsibility for managing
and leading a team of Design Project Managers and support staff in developing and
implementing a prioritised program of works, ensuring all design projects and
interdependencies meet customer satisfaction and the strategic commercial goals of the
business.xxxvii An analysis of the evidence tendered by Mr Bereicua indicates that most
positions in this third category either have no employees reporting to them, or have between
one and three reports.
[34] Mr Thrower is employed as the Network Operations Coordinator. His evidence was
that he is responsible for almost 100 employees and manages a budget of approximately $18
million.xxxviii He is currently covered by the agreement (as an Administrative Officer) but
would be excluded if Essential Energy’s proposed scope applied. During cross-examination
he agreed that there were five levels of management above him. Despite these he said he
considered himself part of the senior management team.xxxix He did not normally approve
leave.xl Decisions not to appoint or to dismiss network operations officers were made at a
more senior level.xli He was involved with another manager in providing feedback to staff.xlii
[35] The unions prepared an analysis of all the positions that Essential Energy is seeking to
exclude from the enterprise agreement. They found that of these positions most are not
responsible for a budget.xliii Around half of all the employees that Essential Energy is
proposing to exclude have no direct or indirect reports. Many of the others have between one
and five employees that report to them.xliv Most of those who have a significant number of
people who report to them are Area Managers.xlv The largest group of employees Essential
wishes to exclude are at ‘level 6’ within the organisation..xlvi There are other employees, at
levels 5, 6 and 7 who have employees who report to them who would still be included in the
enterprise agreement under Essential’s proposal.xlvii
[36] The positions that Essential Energy wishes to exclude from the enterprise agreement
are no doubt important, and many of them require a high level of technical or professional
expertise. Few if any can however be described as constituting ‘senior management’. ‘Senior
managers’, in my view, would normally:
Have responsibility for making policy and strategic decisions for the organisation
as a whole (or at least an important part of it); and
Have responsibility for managing a significant number of staff, including making
decisions about discipline and hiring and firing of those staff.
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[37] Most of the employees that Essential Energy wishes to ‘scope out’ have either no or
few staff reporting to them. Those that do - primarily Area Managers - are best described as
‘line’ or ‘operational’ managers. Moreover, while some of the relevant staff may be involved
in providing advice about policy or strategic matters, and may have responsibility for
implementing those matters, there is no evidence that they possess substantial decision
making authority about such matters.
Potential for conflicts of interest
[38] Essential Energy submitted that the employees they wish to exclude from coverage of
the proposed agreement are responsible for ensuring the implementation of policies and
procedures on behalf of Essential Energy’s executive. In circumstances where such policies
and procedures affect employees covered by the enterprise agreement, Essential Energy
submitted there is a strong potential for a conflict of interest to arise. Mr Bereicua stated that
this was not to suggest that employees act unethically.xlviii He noted the existence of a Code of
Conduct, which provides a mechanism for resolving any actual or potential conflicts of
interest. However, he noted that:
a) ‘the availability of a mechanism for resolving actual or potential conflicts of interest or
loyalties does not affect the existence of such conflicts, or change the fact that such
conflicts are entrenched;
b) given that such conflicts exist, policies and procedures do not remove the perception
amongst employees of such conflict. In my view, it is of crucial importance that
Managerial and Senior Employees are not perceived to be affected by an actual or
potential conflict of interest or loyalty. The very perception of a conflict, in my view,
is damaging to Essential Energy’s attempts to implement management initiatives; and
c) the Code of Conduct, and other policies and procedures, are primarily used to deal
with employees after they have acted unethically in a position of conflict. In my view,
such policies and procedures are more effective if the conflicts themselves are
removed. I also note that the Code of Conduct requires employees to self-report and
self-manage their conflicts of interest or loyalties to Essential Energy.’xlix
[39] The employees which Essential Energy wish to exclude were described by Mr
Bereicua as the
‘...managerial link between Essential Energy’s executive and the employees covered
under the enterprise agreement. They provide strategic and operational input to the
executive, and are responsible for ensuring the implementation of Essential Energy’s
policies and procedures at the relevant level.’
[40] Mr Thrower’s evidence was that he felt his duties and responsibilities gave rise to a
number of entrenched conflict of interest ‘owing to the fact that I am covered under the same
Enterprise Agreement as employees whom I am responsible for (and identify with).’ For
example, he is required to ensure the most efficient allocation of travel allowances amongst
the employees he is responsible for, which means his decisions could have adverse
consequences for those employees (though he agreed during cross examination that he does
not approve travel allowances - rather he makes recommendations on the approval of the
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travel, which is then approved by another managerl.) Moreover because he is required to
travel as part of his job, he uses the same travel allowances ‘notwithstanding the impact that
might have on my KPI to ensure the efficient distribution of travel allowances.’ He also
pointed out that he was responsible for ensuring a fair and efficient distribution of overtime
amongst his staff. (He conceded during cross examination that he does not have a KPI to
ensure the efficient distribution of overtime.li). Finally, when he has had to temporarily fill a
group manager role, he has had to attend industrial tribunal hearings and give evidence on
behalf of the employer to the detriment of employees for whom he was responsible, even
though he was part of the same union and covered under the same agreement.lii However this
had only occurred once, and the group manager position he was acting in at the time was not
covered by the enterprise agreement.liii
[41] Mr Berry gave evidence that as part of his position as Area Manager (which is covered
by the 2011 agreement) he had to make recommendations in relation to the progression of
employees within the classification bands under the enterprise agreement and was responsible
for approving overtime and on-call arrangements. He said that one of his Key Performance
indicators (KPIs) was to ensure the efficient distribution of such entitlements. He noted that
he was entitled to entitlements under the enterprise agreement, such as overtime, and RDOs;
however as he was responsible for the efficient distribution of such entitlements he did not
personally claim them for himself.liv During cross examination, Mr Berry said that he did his
job to the best of his abilitylv. He said that he reviewed his performance against his KPIs every
six months with his immediate manager.lvi
[42] Mr Neyland gave evidence that in his previous position, as Manager Operational
Performance (which was covered by the enterprise agreement) he had a “foot in both camps”
due to his managerial duties and responsibilities. As an example, he gave the requirement to
approve entitlements for his direct and indirect reports, such as overtime, call-out and travel
allowances, while having a KPI to ensure the efficient distribution of entitlements under the
enterprise agreement. He did not claim certain entitlements, such as overtime and living away
from home allowance, to which he was entitled, because of his KPI to ensure the efficient
distribution of such entitlements. He also said that in some circumstances it was his view as
Manager Operational Performance that Essential Energy should oppose improvements in the
terms and conditions under the enterprise agreement, even though this might have been
adverse to his own entitlements under the agreement.lvii He said that for these reasons he
could not drive ‘real change’ as Manager Operational Performance while being covered under
the same enterprise agreement as the employees whom he was responsible for. ‘Because I
believed that I would perform my role more effectively if I were not covered by the Enterprise
Agreement, I recently accepted a promotion and individual contract of employment.’lviii
During cross examination Mr Neyland said he had no role as Manager Operational
Performance in negotiating the enterprise agreement or in dealing with any claims for
improvements under the agreement.lix
[43] Ms Southern said in her statement that she was involved in the bargaining process for
the proposed agreement. She said that throughout this process she was very conscious of the
‘conflicted position’ in which she found herself in relation to the benefits and entitlements she
received under the enterprise agreement as against her managerial duties and responsibilities.
For example, she said that she was required to represent Essential Energy’s opposition to the
unions’ suggested improvements in terms and conditions of employment under the proposed
agreement. Given her coverage under the enterprise agreement at that time, some of the
opposition was adverse to her personal interests in the role she was then employed. She also
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said that, at least to some extent, in the position in which she was then employed (Manager
Corporate Programs) she identified with employees who would be covered by the proposed
agreement and wished to negotiate in common with them. Despite her identity with such
employees, she was nevertheless required to oppose her own coverage under the proposed
agreement, as well as ignore any loyalties she may have had with such employees. She
considered that this conflict of interest weakened her ability to fulfil her managerial duties and
responsibilities objectively with the organisation’s goals in mind.lx During her cross
examination, Ms Southern indicated that while she was involved in providing relevant
information she was not involved in deciding how to respond to the unions’ claims in relation
to the proposed agreement.lxi She also agreed that any conflicts of interest that arose during
the negotiation process could be dealt with through the presence of very senior levels of
management overseeing the negotiation process.
[44] I have considered the evidence and submissions presented by the parties on the issue
of conflict of interest. It is important to stress that all employees - from the most senior to the
most junior - have obligations to their employer. All employees receive remuneration from
their employer and in return the employer has a right to expect that employees will obey the
employer’s lawful and reasonable directions, perform their work with due care and skill and,
in general terms, serve their employer faithfully. At the same time, employees have certain
rights and interests distinct from those of their employer - for example to enjoy fair rewards
for their contribution to the organisation and to be treated fairly and reasonably. These basic
propositions apply whether an employee is covered by an enterprise agreement or not.
[45] Mr Bereicua asserted that senior employees who are responsible for ensuring the
implementation of policies and procedures on behalf of Essential Energy’s executive that
affect employees covered by the enterprise agreement face a conflict of interest if they are
covered by the same agreement. I am not convinced. For example, it is quite reasonable for
Essential to insist that work is organised in the most efficient and cost effective manner. This
may act to limit the amount of overtime available. Essential Energy can quite reasonably
expect that all employees - whether they are covered by the enterprise agreement or not - or
indeed whether they personally receive overtime or not - will act consistently with such a
requirement. The same logic is applicable to other entitlements such as ‘on-call’, and travel
allowances. Mr Bereicua stated that the creation of the 2011 agreement ‘quickly became
problematic with the realisation that those employees within the organisation who were in
positions of influence and who performed managerial, senior or specialist functions within the
organisation needed to be distinct from other employees to ensure the new and streamlined
objectives of the organisation could be met without these employees potentially favouring
their own interests.’lxii However, no substantive evidence was given during the proceedings of
senior employees covered by the 2011 agreement acting against their employer’s interests
because they stood to receive benefits under the agreement.
[46] Much of the evidence about ‘conflict’ revolved around the stress managers could
potentially be put under when required to implement a policy which might have adverse
consequences for the people they are managing (by, for example, limiting access to
overtime).lxiii However that form of stress is inherent in the role of any employee with
managerial or supervisory responsibilities. Sometimes one has to implement policies that
other people do not like. However, removing these managers from the scope of the agreement
would have no effect on this ‘conflict’.
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[47] There may be a real difficulty if employees who have responsibility for determining
the organisation’s overall policy and direction are covered by the enterprise agreement. This
would most obviously be the case for those employees who have to decide on the
organisation’s approach to negotiating the enterprise agreement. There would be an obvious
conflict of interest if one had the opportunity to decide on one’s own pay rise for example.
However no substantive evidence was given that this applied to any of the employees covered
by the 2011 agreement. It is clear that the negotiating position in relation to enterprise
bargaining was decided by members of the executive and other very senior employees who
report directly to the executive. Other employees (such as Ms Southern) may have played a
role - but this was in a supportive rather than a decision making capacity.
[48] The circumstances of this case need to be contrasted with those dealt with by a Full
Bench in United Firefighterslxiv. In that case, the Full Bench preferred the scope preferred by
the employer, the Metropolitan Fire and Emergency Services Board (MFESB), over that
proposed by the United Firefighters’ Union of Australia (UFUA). The UFUA and the MFESB
disagree on whether the proposed enterprise agreement should include two classifications of
employee, namely: Commander and Assistant Chief Fire Officer (ACFO). The UFUA
contended that the proposed enterprise agreement should cover all operational employees
including Commanders and ACFOs. The MFESB contended that any enterprise agreement
covering operational employees generally should not cover Commanders or ACFOs. It
proposed that, in addition to the enterprise agreement covering operational employees, there
should be two additional enterprise agreements covering Commanders and ACFOs
respectively. The Full Bench stated:
‘The MFESB relied in particular on what it alleged to be a conflict of interest between
management employees and those whom they manage. Speaking generally there can
be no doubt that such a conflict exists. To some extent the workplace relations system
is based on the potential for conflict between employers and employees. In a world of
corporations the employee manager stands in the shoes of the employer for many
purposes including dispute prevention and resolution and the negotiation of terms and
conditions of employment. We accept the potential for an entrenched conflict of
interest to arise based on managerial responsibility if agreement coverage of
operational employees extends into the senior management ranks. We recognise the
potential for such conflict to arise even at the lower levels of management but we have
in mind conflicts of interest of a more substantial character arising at senior
management levels....’lxv
[49] The employees that the Full Bench considered should be excluded from the agreement
covering operational employees were ‘senior management’ at levels equivalent to those
already excluded from the 2011 Essential Energy agreement. They occupied levels 3 and 4 in
the organisational structure. ACFOs were part of the Executive Management, and
Commanders reported to them directly. As already noted, the employees that Essential Energy
wishes to exclude from the proposed agreement cannot properly be characterised as ‘senior
managers’.
[50] My conclusion is that there is no need to alter the scope of the enterprise agreement to
deal with any real or potential conflict of interest.
[2014] FWC 3065
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The history of industrial regulation
[51] In July 2001 Country Energy was created, by amalgamating three organisations: Great
Southern Energy, Advance Energy, and Northpower. Each of these organisations had its own
industrial instrument which covered the employment of the employees. These were: the Great
Southern Energy Enterprise Award 2000, the Advance Energy Enterprise Award 1999, and
the Northpower Rates of Pay and Conditions Award.lxvi
[52] A single award was established to cover employees of the new entity: the Country
Energy Enterprise Award 2001. The classifications in the new award broadly reflected the
classifications which were contained in the Northpower Rates of Pay and Conditions Award.
The classifications of Professional Engineer Grades 4, 5 and 6 which had previously been
contained in the Advance Energy Enterprise Award were not initially incorporated into the
classification structure of the new award. However classification salary points equivalent to
pay points 42 to 44 were included in the subsequent Country Energy Employees Award 2004.
Pay points 42, 43 and 44 reflected rates of pay that had applied to Professional Engineer
Grades 4, 5 and 6 contained in the former Advance Energy Enterprise Award. The coverage
clause of the 2004 award allows employees at levels above pay point 44 who were not on
individual agreements to remain covered by the award. The subsequent Country Energy
Enterprise Award 2005 included a coverage clause which provided as follows:
‘(ii) Existing employees employed in Professional capacity whose rate of pay exceeds
the base rate of pay of a Professional Engineer Grade 8 (as varied under this Award)
who are not employed under an employment agreement or a contract shall continue to
have their terms and conditions of employment prescribed by this Award.’
[53] According to Mr Brock’s statement pay points 42, 43 and 44 in the 2005 award
corresponded with the classifications of Professional Engineer, Grades 6, 7 and 8.lxvii
[54] Around the same time, an agreement was reached (the Country Energy, Managers and
Specialists Enterprise Agreement 2005) which applied to employees in entry-level
management and specialist roles covered by the Country Energy Award 2005. According to
Mr Brock, this agreement provided coverage under a registered collective agreement to this
group of employees whilst at the same time enabling those employees in entry-level manager
and specialist roles transferring from individual contracts to continue working a 10 day
fortnight pattern. Employees covered by the agreement were also required to enter into a
performance agreement based on the achievement of key performance indicators.lxviii Once the
agreement was finalised a transitional process was put in place that allowed the affected
employees to have a choice of transferring to the new managers and specialists enterprise
agreement or remaining on their existing contracts on a ‘Present Occupant Only’ basis.lxix
[55] The managers and specialists agreement included a range of other provisions including
one headed Individual Variations. This included the following:
‘Whilst based upon a collectively bargained Agreement, the Parties to this Agreement
recognise that each of the positions covered by it are and will increasingly become,
individually specialised and that employees have or may have a desire to tailor their
individual employment conditions within the context of this Agreement and the
collective bargaining between the Parties.
[2014] FWC 3065
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As part of this Agreement individuals will have the option to vary their remuneration
and conditions of employment by agreement with the employer once during the term
of this Agreement, provided the employee is not disadvantaged when his or her
remuneration and conditions are viewed as a whole against the unvaried remuneration
and conditions. This shall specifically include that not be limited to variation of hours
of work and entitlements above statutory minimums. (Where it is agreed that the hours
of work will be varied, that variation will not change the requirement that the varied
hours are worked across a 10 day fortnight, Monday to Friday)....’lxx
[56] In his statement, Mr Brock stated that, notwithstanding the terms of the managers and
specialists enterprise agreement, at a local level some Essential Energy managers continued to
engage employees on contracts in terms inconsistent with that agreement. For example, some
contracts were fixed term, some contracts purported to remove fully the entitlement to
recognition of additional hours of work, and some contracts excluded access to other award
entitlements such as allowances, salary progression and annual salary increases. This led to a
dispute being notified by the United Services Union to the New South Wales Industrial
Relations Commission. According to Mr Brock, during the course of that dispute, the parties
agreed to conduct an audit of positions that were covered by the enterprise agreement as well
as those placed on individual contracts. In order to resolve the dispute departures made a
second agreement to cover managers and specialists, the Country Energy Managers and
Specialists Agreement 2009.lxxi
[57] According to Mr Brock, that agreement included an expanded two band pay structure
with progression within each band determined by the achievement of agreed key result
areas/targets and progression between band 1 and band 2 being by appointment, except in the
case of Professional Engineers for whom progression from band 1 to band 2 was deemed to
be part of the progression of an experienced engineer. The inclusion of the two band structure
had the effect of extending the classification structures for Administrative Officers (AOs) and
Technical Officers (TOs) to salary point 44 of the then Country Energy Award 2007.
Previously, those classifications had not had access to salary points greater than 41. The
agreement also established that the threshold point for employment under a contract would be
determined as third tier report level or evaluated equivalent.lxxii
[58] In 2009, the Country Energy Enterprise Agreement 2009 was approved by the New
South Wales Industrial Relations Commission. To accompany the new agreement a manual
titled Country Energy Agreement: Progression Guidelines setting the rates of pay and rules
for progression for each of the classifications covered by the enterprise agreement was
developed.lxxiii
[59] In March 2011 the retail arm of the organisation was transferred to Origin Energy and
Country Energy was renamed Essential Energy. The 2011 agreement was approved by Fair
Work Australia in October 2011. The 2011 agreement consolidated a number of separate
enterprise agreements covering different types and divisions of employees, including the
Country Energy Managers and Specialists Enterprise Agreement 2009. The 2011 agreement
covered all employees (up to pay point 44) regardless of their function or classification and
standardised employment conditions amongst the employees. According to Mr Bereicua, this
was done to achieve administrative efficiency.lxxiv
[2014] FWC 3065
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[60] I conclude that the group of employees sought to be excluded by Essential Energy has
for many years been covered by collective industrial instruments.
Arrangements at Comparable Organisations
[61] There is quite a degree of diversity in the coverage provisions of the various enterprise
agreements belonging to electricity distributors across Australia.
[62] For Essential Energy, approximately 4% of employees are not covered by the 2011
Agreement and are currently employed under individual contracts. The current agreement
applies to employees up to pay point 44 which is $2455.37 per week or $127,679 per annum
before including allowances and other additional payments or is up to about 163,609.40 per
annum on a total remuneration package (TRP) basis. The scope proposed by Essential Energy
would have the proposed agreement only apply to pay point 40 (other than for Network
Operators, where the pay point would extend to pay point 42). Pay point 40 is $2137.56 per
week or $111,580 per annum before including allowances and other additional payments, or is
up to about $147,511 on a TRP basis.lxxv The coverage provisions of the Essential Energy Far
West (Electricity) Enterprise Agreement 2013 is identical to the coverage provisions of the
proposed agreement sought by Essential Energy.lxxvi
[63] At TransGrid (the operator of the high voltage transmission grid in NSW) employees
who are appointed to positions evaluated with a minimum salary point of 35 may be
employed pursuant to an individual employment agreement. Only a limited range of
conditions in the enterprise agreement apply to those employees who have entered into such
an agreement. Salary Point 35 was $2535.89 per week, or $132,221.42 per annum (before
including allowances and other additional payments) as at the first pay period after 1
December 2012. The agreement has a nominal expiry date of 1 December 2013 and its
replacement is currently under negotiation.lxxvii The salary (before allowances etc.) for pay
point 35 at TransGrid is currently therefore around 3% higher than for pay point 44 and
around 18% higher than for pay point 40 at Essential Energy.
[64] At Ausgrid (the operator of the electricity distribution network in Sydney, Central
Coast, Hunter and Newcastle areas of New South Wales) the enterprise agreement covers
employees in the classifications set out in Appendix 1 of the agreement. These include
employees with an annual salary of up to $168,161.52 (and a total remuneration of up to
$205,000).lxxviii This salary is over 30% above the annual salary for pay point 44 at Essential
Energy. The agreement does not apply to an employee employed under a ‘Fair Work Act
compliant contract as a senior manager.’ The term ‘senior manager’ is not defined in the
agreement. Approximately 7% of Ausgrid employees are not covered under the enterprise
agreement and are currently engaged on individual contracts.lxxix
[65] At Endeavour Energy (the operator of the electricity distribution network in Western
Sydney and the Illawarra) the enterprise agreement applies to all employees other than ‘above
Agreement classification positions that are Fair Work Act 2009 compliant contract positions.’
The appendix to the agreement includes common pay points with annual salary rates over
$200,000.
[66] At Powercor and CitiPower (two privately owned Victorian electricity distributors) the
pay rate for the top pay point in the enterprise agreement was $130,474 from 1 July and 1
September 2012 respectively before including allowances and other additional payments -
[2014] FWC 3065
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around 2% above pay point 44 at Essential Energy, and about 17% above pay point 40. Both
agreements allow employees to elect to work pursuant to the terms of an Employment
Agreement. Such agreements shall contain no diminution in wages, conditions or benefits that
would otherwise accrue under the relevant enterprise agreement, and the employee covered by
the agreement is entitled to revert to an agreed classification under the enterprise
agreement.lxxx
[67] SP Ausnet is a privately owned corporation responsible for electricity distribution in
eastern Victoria. The enterprise agreement applies to employees employed in positions at
salary levels up to $135,200 before including allowances and other additional payments. This
is around 6% above pay point 44 at Essential Energy, and about 20% above pay point 40. The
enterprise agreement allows for written arrangements between the employer and employee
covered by the enterprise agreement for Fixed Annual Remuneration in compensation for all
hours of work. Most employees are covered by such arrangements.
[68] The enterprise agreement at Energex (the electricity distributor for south east
Queensland) applies to employees employed in positions at salary levels at $160,000 before
including allowances and other additional payments (about 25% above pay point 44 at
Essential Energy). Employees at Energex may be appointed under the provisions of an
individual alternative employment arrangement. Such appointment shall be by mutual
consent, and prospective employees may not be required to make known whether they choose
to be covered by the enterprise agreement or an alternative employment arrangement until
they have been formally offered a position in writing. Employees may withdraw from the
arrangement by giving one month’s notice. Certain provisions of the enterprise agreement do
not apply to employees covered by an individual alternative employment arrangement.
[69] The enterprise agreement at Ergon Energy (the electricity distributer for the rest of
Queensland) applies to employees employed in positions at salary levels up to $143,000
before including allowances and other additional payments. lxxxi This is more than 20% above
pay point 44 at Essential Energy. The enterprise agreement provides that an Individual
Employment Arrangement (IEA) may be offered to an employee who is paid a salary at or
above salary 11.0 (a salary of around $84,000). Such an IEA is subject to a no-disadvantage
test, and employees may revert to the general provisions of the enterprise agreement by giving
one month’s notice.
[70] Western Power is a state own corporation responsible for electricity distribution and
the south-west of Western Australia. The enterprise agreement applies to employees
employed in positions at salary levels up to $147,532 before including allowances and other
additional payments. The enterprise agreement contains a clause that enables the employer
and an employee to agree to vary the application of certain terms of the agreement through
flexibility agreement. Such a flexibility agreement must result in an employee receiving terms
and conditions of employment that are better off overall than those provided in the agreement.
An employee may terminate the flexibility agreement by giving four weeks notice in writing.
Approximately 70% of employees covered under the Western Power enterprise agreement are
engaged on some type of flexibility agreement or in one or more conditions.lxxxii
[71] The enterprise agreement at Aurora Energy (an electricity distributor and retailer in
Tasmania) applies to employees employed in positions at salary levels up to $130,000 before
including allowances and other additional payments. It does not cover employees in
Classification Bands Middle Management MM1 and MM2 who elect in writing not to be
[2014] FWC 3065
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covered by the agreement and enter into a common law contract. These employees potentially
receive a salary under the agreement of between $86,000 and $130,000 (that is from about
42% below pay point 44 at Essential Energy to slightly above).
[72] The enterprise agreement at ActewAGL (the part privately owned electricity
distributor in the ACT) applies to employees employed in positions at salary levels up to
$162,774 before including allowances and additional payments.lxxxiii It allows a Management
Service Agreement to be offered to employees employed in certain senior positions. The
acceptance by an employee of an offer is voluntary. Such employees are excluded from the
enterprise agreement.
[73] While there is certainly no uniformity, most enterprise agreements at comparable
organisations (whether public or private sector) apply to employees equivalent to those that
Essential Energy is seeking to ‘scope out’ from its enterprise agreement. There is certainly
nothing ‘anomalous’ about such employees being covered by an enterprise agreement - quite
the reverse.
[74] However at most of these organisations the enterprise agreement contains a facilitative
clause that permits individual arrangements between the employer and senior employees
(including those types of employees that Essential Energy is seeking to exclude from
coverage). These arrangements typically vary the effect of many of the provisions of the
enterprise agreement. In a minority of cases they are expressed as removing the coverage of
the agreement altogether. The employee is typically given a free choice whether to accept the
individual arrangement or remain under the provisions of the enterprise agreement. I note that,
while offered in negotiations, Essential Energy has not to date sought to include individual
flexibility arrangements of this kind in its enterprise agreement.
Award coverage
[75] As previously noted, it is accepted by both parties that the employees whom Essential
wishes to exclude from coverage of the enterprise agreement would be covered by the
Electrical Power Industry Award 2010.lxxxiv Under the Fair Work Act 2009, employees who
earn above the high income threshold (currently $129,300) can effectively ‘opt out’ of
modern award coverage - but only by agreement.
Changes in circumstances since the 2011 agreement
[76] Since the 2011 agreement was made, Essential Energy has undergone a number of
changes in the context of the introduction of Networks NSW. These include a new Chief
Executive Officer, a new management operating model, and greater scrutiny of efficiency and
productivity by Essential Energy’s shareholder. There have also been increased expectations
on the part of customers to contain or reduce electricity bill increases, and increased scrutiny
by advisory bodies such as the Productivity Commissionlxxxv. Essential Energy argues that its
proposed change in the scope of the enterprise agreement will allow it to deliver efficiency
and productivity savings by aligning more closely the interests of its managers and senior
leaders with the interests and business objectives of the company. However, despite this
assertion, there was no persuasive evidence given to the Commission during these
proceedings that altering the coverage of the enterprise agreement in the way proposed by
Essential Energy would assist the goals of improved productivity and efficiency.
[2014] FWC 3065
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Whether each group of employees has been fairly chosen
[77] For any enterprise agreement to be approved, the Commission must be satisfied that
the group of employees to be covered by the agreement was fairly chosen, taking into account
whether the group is geographically, operationally or organisationally distinct. I consider that
both the scope proposed by the unions and that proposed by Essential Energy could be
regarded as ‘fairly chosen’ in the sense intended by the Act.
Conclusions
[78] I do not consider there are sufficient grounds to disturb the existing coverage
arrangements for the enterprise agreement at Essential Energy. Accordingly I determine that
the scope of the proposed agreement should be that proposed by the unions.
[79] In particular, I found no convincing evidence that being covered by the enterprise
agreement exposed those employees whom Essential Energy wishes to exclude to any
significant conflict of interest. While I am sure they all perform important roles, none of these
employees can properly be described as senior managers. They are mainly a mix of middle
managers and technical and professional specialists. The evidence is that similar employees in
the rest of the electricity distribution industry are generally covered by their organisation’s
enterprise agreement.
[80] A number of other organisations in the electricity industry have enterprise agreements
that allow, whether by way of an individual flexibility arrangement (IFA) or as a stand-alone
clause, certain employees to reach individual agreements that allow for salary packaging,
performance pay or other arrangements of a like nature.
[81] Indeed, all enterprise agreements approved under the Fair Work Act 2009 must
contain a provision for individual flexibility arrangements (IFAs), enabling the employer and
individual employees to vary the effect of the terms of the enterprise agreement in order to
meet the genuine needs of the employer and employee. Such arrangements have effect as a
term of the enterprise agreement. Arrangements can only be about ‘permitted matters’ and
cannot include unlawful terms. They must be genuinely agreed to by the employer and the
employee and must leave the employee better off overall than the employee would have been
in the absence of the individual flexibility arrangement. Depending on the specific provision
contained in the enterprise agreement, such IFAs could include many of the key features of
the common law contracts that Essential Energy wishes to use in relation to those employees
it is seeking to exclude from coverage - including conditions such as performance-based pay,
and annual salary reviews.
[82] Unfortunately the proposed agreement has been drafted in such a way as to restrict the
capacity to make much use of IFAs. However I would strongly urge the parties - when
negotiating their next enterprise agreement - to give very serious consideration to introducing
the capacity for the employer and senior agreement-covered employees to make their own
individual flexibility arrangements. Such individual arrangements could include many of the
key features that Essential Energy proposed to include in the written contracts they wished to
offer to employees excluded from the enterprise agreement.
[83] In its closing submissions, Essential Energy referred to its managerial prerogative to
manage the organisation as it sees fit. However issues of coverage are not a question of
[2014] FWC 3065
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managerial prerogative but of negotiation and agreement. A key difference between Essential
Energy’s proposal simply to exclude senior staff from the enterprise agreement and creating
the scope for IFAs as I have suggested is that IFAs could only be entered into if genuinely
agreed to by both the employer and the relevant employee. The employee would always have
the option of sticking with the collectively bargained agreement. Because such arrangements
would be voluntary, the ‘fear factor’ would be reduced, and it is more likely that Essential
Energy could achieve the very ‘alignment’ it is seeking.
Decision
[84] I determine that the scope of the proposed enterprise agreement should be the same as
the Essential Energy Enterprise Agreement 2011.
SENIOR DEPUTY PRESIDENT
Appearances:
J Phillips SC and Y Sharif for Essential Energy
I Taylor SC and I Doust for the Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia; Australian Municipal,
Administrative, Clerical and Services Union; Association of Professional Engineers,
Scientists and Managers, Australia
Hearing details:
2013
Sydney
16, 17 December
2014
Sydney
13, 26 February
20, 21 March
14 April
Final written submissions
2014
7 May
Printed by authority of the Commonwealth Government Printer
OF FAIR WORK COMMISSION J. M CO AUSTRALI S THE
[2014] FWC 3065
20
Price code C, PR550429
i Exhibit E7, paragraph 37
ii PN1414
iii Exhibit U3, PN1415
iv Exhibit E7, paragraph 42
v Exhibit U21 and Exhibit E8
vi 117+242/4,389
vii PN1516-1521
viii Exhibit E8, paragraph 10
ix PN10-14
x PN23
xi PN28
xii PN31
xiii PN32
xiv Exhibit E7, paragraph 43
xv PN1552
xvi Statement of Agreed Facts, paragraph 62
xvii Exhibit E7, annexure 3
xviii Exhibit U16
xix Exhibit U22
xx Exhibit E16
xxi [2010] FWAFB 3009 at [53]
xxii Exhibit E1, paragraph 14
xxiii Exhibit E10, paragraphs 13-15
xxiv Exhibit U15, paragraph 44
xxv PN3261
xxvi PN3272
xxvii PN3283
xxviii Exhibit E7, paragraph 46
xxix Exhibit E8, paragraph 28
xxx Exhibit E7, paragraph 47
xxxi Exhibit E1, paragraphs 4-5
xxxii PN170-178
xxxiii Exhibit E8, paragraph 28
xxxiv Exhibit E7, paragraph 49-50
xxxv Exhibit E7, annexure PB2
xxxvi Exhibit E7, paragraph 28
xxxvii Exhibit E7, paragraph 53
xxxviii Exhibit E10, paragraph 3
xxxix PN2922-5
xl PN2930
xli PN2931
xlii PN2935
xliii PN6435
xliv PN6436
[2014] FWC 3065
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xlv PN6811
xlvi PN4637
xlvii PN6834
xlviii Exhibit E9, paragraph 4
xlix Exhibit E9, paragraph 5
l PN2980
li PN2995
lii Exhibit E10, paragraph 9
liii PN3000-30001
liv Exhibit E1, paragraphs 10-11
lv PN211
lvi PN216-7
lvii Exhibit E3, paragraphs 6-7
lviii Exhibit 3, paragraph 8
lix PN551-564
lx Exhibit E5 paragraphs 7-9
lxi PN931-945
lxii Exhibit E8, paragraph 25
lxiii For example, Mr Neyland’s evidence PN506-PN530
lxiv [2010] FWAFB 3009
lxv At [67]
lxvi Exhibit U12, paragraphs 5-6
lxvii Exhibit U12, paragraph 16
lxviii Exhibit U12, paragraph 21
lxix Exhibit U12, paragraph 22
lxx Exhibit U12, attachment GB8
lxxi Exhibit U12, paragraphs 24-28
lxxii Exhibit U12, paragraphs 29-30
lxxiii Exhibit U12, paragraph 32
lxxiv Exhibit E8, paragraph 20
lxxv Agreed Facts, paragraph 25
lxxvi Agreed facts, paragraph 26
lxxvii Agreed Facts, paragraph 40
lxxviii Agreed Facts, paragraph 43
lxxix Agreed facts, paragraph 41-45
lxxx Agreed facts, paragraph 50
lxxxi Agreed facts, paragraph 55
lxxxii Agreed facts, paragraphs 29-34
lxxxiii Agreed facts, paragraph 59
lxxxiv Statement of Agreed Facts, paragraph 62
lxxxv Agreed Facts, paragraph 10
