[2018] FWCFB 6980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – plain language re-drafting – Clerks—Private Sector Award 2010
(AM2016/15, AM2014/219)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER HUNT

MELBOURNE, 15 NOVEMBER 2018

4 yearly review of modern awards – plain language re-drafting – Clerks—Private Sector Award 2010.

[1] This decision finalises the plain language re-drafting of the Clerks—Private Sector Award 2010 (the current award).

[2] On 1 December 2017 the Commission published a plain language exposure draft (PLED) which was updated to reflect a conference held on 17 September 2017 (the September 2017 conference). On 19 January 2018, a Statement 1 was issued (the January 2018 Statement) that outlined outstanding items and invited interested parties to make submissions. A decision was published on 6 September 20182 (the September 2018 decision) which resolved the majority of items in relation to the PLED and invited submissions on the remaining outstanding items.

[3] A further revised PLED (revised PLED) was published on 14 September 2018.

[4] Submissions on outstanding items were received from:

• Australian Services Union (ASU);

• Australian Industry Group (Ai Group);

• Australian Business Industrial and NSW Business Chamber (ABI); and

• Motor Traders’ Association of NSW (MTA).

[5] This Decision deals with the remaining outstanding items in relation to the revised PLED.

Clause 2 – definitions - ‘minimum hourly rate’

[6] At [13] of the September 2018 decision we proposed moving the Supported Wage System (SWS) and National Training Wage (NTW) clauses back into clause 16 (minimum wages) as subclauses to resolve the concern with the definition of ‘minimum hourly rate’. 3

[7] ASU, Ai Group and ABI do not oppose this proposed solution. 4 We confirm that the SWS and NTW clauses will be re-located to new subclauses within clause 16.

Part-time employment – First aid allowance

[8] At [52] of the September 2018 decision, the Commission invited submissions about how the first aid allowance in clause 19.2 of the revised PLED applies to part-time and casual employees. 5

[9] The ASU submits that the first aid allowance is currently a weekly allowance and continues to support the weekly allowance being paid to part-time employees and casual employees. 6 In support of its position, ASU submits the allowance was set as a weekly allowance by the original award modernisation Full Bench and the ASU is not aware of the issue being raised as a substantive issue previously. The ASU also notes that first aid allowances are expressed as weekly allowances in the majority of modern awards which contain them. The ASU submits the Full Bench should not reduce an allowance just because an employee is employed in a casual or part-time capacity.7

[10] Ai Group submitted that part-time employees are entitled to a proportion of the first aid allowance calculated on a pro-rata basis. Ai Group submit the amount due is referable to the number of ordinary hours required to be worked by the part-time employee in a week, as a proportion of 38 ordinary hours. Ai Group submit clause 19.2 of the revised PLED should be amended to reflect this. 8

[11] The ASU strongly oppose Ai Group’s submission and maintain their position at [9]. 9 ASU submit it is not appropriate to amend a provision to reduce an employee entitlement where this is not supported by submissions, evidence or other material.10

[12] The first aid allowance entitlement in clause 19.6 of the current award is expressed as a requirement to pay ‘a weekly allowance of 1.5% of the standard rate’. The allowance is not expressed as being confined to full-time employees, nor is any distinction made in its application between full-time, part-time and casual employees. The expression ‘standard rate’ is defined in clause 3.1 to mean the ‘minimum weekly wage for a Level 2, Year 1 in clause 16 - Minimum weekly wages’. The wage rates in clause 16 are expressed as weekly amounts. Plainly therefore the current allowance is a weekly amount for all employees who qualify for the allowance. With respect to part-time employees, we do not consider that the position is altered by clause 11.2, which provides that ‘Part-time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full-time employees’, when read against clause 19.6. As already stated, clause 19.6 is not expressed as an allowance applicable to full-time employees only such that clause 11.2 could be said to serve the function of extending its application on a pro-rata basis to part-time employees.

[13] The entitlement to a weekly allowance for all employees who qualify is explicable by the nature of the qualification for the allowance. The qualification has three elements: first, that the employee has been ‘trained to render first aid’; second, that the employee is the ‘current holder of appropriate first aid qualifications such as a certificate from St John Ambulance Australia or a similar body’; and third that the employee is appointed by the employer to perform first aid duty. The requirements to be trained and to hold a current first aid qualification do not relate to the number of hours worked per week, and justify the payment of a flat weekly amount. The employer must appoint the person, and thus controls who becomes eligible for the allowance.

[14] In our view, if the first aid allowance was not intended to be expressed as a weekly allowance payable, and it was payable on a pro rata basis, it would have been broken into a weekly payment for full-time employees, and a per shift payment for part-time or casual employees in the same way that the laundry allowance has been at clause 19.2(c). We are not satisfied therefore that there is any merit basis to change the current entitlement. It will remain expressed as a weekly amount in the form contained in clause 19.2 of the revised PLED.

Rostered days off

[15] At [87] to [89] of the September 2018 decision we proposed amendments to clauses 14.6(d) and (f) of the revised PLED to clarify the ‘banking rostered days off’ provisions. 11

[16] ABI did not oppose the proposed amendments and made no further submissions in respect of this clause. 12 The ASU made no further submissions on proposed clauses 14.6(d) and (f).

[17] In relation to the provisional view of clause 14.6(d) the ASU submitted that ‘there is a need to ensure employees working on a rostered day off are still paid overtime if they work outside the normal spread of hours or more than 10 hours in any one day as per clause 13’. 13

[18] The ASU did not propose any particular amendment to address its concern and accordingly we confirm that the proposed amendments at [87] to [89] of the September 2018 decision will be adopted.

Penalties – Sunday rates

[19] MTA raised an issue in relation to clauses 23.3(c) and 24.4(c), about payment for overtime. At [117] – [118] of the September 2018 decision we proposed amendments to clauses 23.3(c) and 24.4(c) and invited interested parties to make submissions. 14 In particular at [117] of the September 2018 decision we proposed to amend clauses 23.3(c) (now 21.3(c)) and 24.4(c) (now 22.4(c)):

‘[117] The minimum engagement for both ordinary hours and overtime worked on a Sunday in clauses 23.3(c) and 24.4(c) of the revised PLED reflect clause 27.2(c) of the current award. We are satisfied that clauses 23.3(c) and 24.4(c) reflect the provisions of the current award. However, we consider that the retention in both provisions of the condition that the employee is “available to work 4 hours” is likely to have little practical work to do and may lead to disputation concerning the circumstances in which an employee may be said to be “available”. We also consider that the drafting of clause 24.4(c) could be simplified. Accordingly we have reached the provisional view that clauses 23.3(c) and 24.4(c) should be amended to read as follows:

‘23.3(c) An employee required to work ordinary hours on a Sunday is entitled to not less than 4 hours’ pay.

. . .

24.4(c) An employee required to work overtime hours on a Sunday is entitled to not less than 4 hours’ pay (inclusive of ordinary hours worked).’ 15

[20] ABI do not oppose the amendments proposed by the Commission. 16 ASU did not make further submissions.17

[21] Ai Group opposed the amendments and referred to their 28 February 2017 submissions, which relevantly stated:

‘Clause 22.4(c) – Payment for working overtime

364. Clause 27.2(c) of the Award provides for a minimum payment where an employee works on a Sunday in the following terms: (emphasis added)

(c) An employee required to work on a Sunday is entitled to not less than four hours’ pay at penalty rates provided the employee is available for work for four hours.

365. Importantly, the requirement to pay an employee for a minimum of four hours applies only if the employee is available to work for four hours. If, for instance, an employer requests an employee to perform 4 hours of work however the employee indicates that the employee is only available to perform three hours of work and the employee is accordingly so rostered, the employer is not required to make four hours of payment.

366. Clause 22.4(c) of the Exposure Draft deviates from this, as it does not contain the aforementioned qualifier. It states:

(c) An employer must pay an employee who is required to work overtime on a Sunday for a minimum of 4 hours.

367. In the circumstances described above, the employee would be entitled to a minimum four hour payment under the above clause. Quite clearly the legal effect of the clause is different to the Award provision.

368. Accordingly, clause 22.4(c) of the Exposure Draft should be amended as follows:

(c) An employer must pay an employee who is required to work overtime on a Sunday for a minimum of 4 hours, provided the employee is available to work for 4 hours.’ (emphasis added)

[22] Ai Group noted that their proposed changes were incorporated into previous versions of the PLED until the September 2018 decision was handed down. Ai Group submit the legal effect of the relevant current provisions will be altered if the requirement that the employee must be available for work for four hours in order to be entitled to a four hour minimum payment is deleted from clauses 21.3(c) and 22.4(c). 18 Ai Group further submits that in the context of plain language proceedings which are directed at re-writing the award in ‘plain language’ without changing the substantive meaning of current award terms, and submit that it is not appropriate for provisions to be amended in a way that enhances employee entitlements where this is not supported by submissions, evidence or other material.19 Ai Group reiterates and continues to rely on their February 2017 submissions as set out at [20].

[23] In its reply submissions, the ASU opposes Ai Group’s submissions in relation to clauses 21.3(c) and 22.4(c), and supports the provisional decision to remove the requirement that an employee must be available to work for 4 hours on a Sunday on the basis it has little practical impact and can lead to disputation about when an employee is available. 20

[24] We do not accept Ai Group’s characterisation of this issue as one not pertaining to the plain language drafting of the clause. Where a current clause is expressed in an ambiguous or uncertain way and lacks any demonstrable reasonable or practical application, it calls for consideration in this part of the 4 yearly review. The current clause 27.2(c) is a provision of this nature. The proviso that ‘the employee is available for work for four hours’ does not provide any guidance as to when an employee may be said to be ‘available’, whether this is to be determined subjectively (by reference to the stated position of the employee) or objectively (by reference to facts which are independently established), or how the employee’s personal ‘availability’ is to be reconciled with the employer’s requirement to perform work on a Sunday. The clause, read literally, has unreasonable outcomes, so that an employee who for example is ‘available’ for four hours but actually works for only one hour receives four hours’ pay, but an employee who is only ‘available’ for three hours and actually works for three hours receives only three hours’ pay. It is difficult to contemplate that the clause has any practical work to do: its effect is to establish an entitlement to four hours’ pay for those employees who are actually required to perform less than four hours’ work, so whether the employee is actually ‘available’ to perform four hours’ work would appear to be an academic question. Accordingly we will give effect to the provisional view expressed in the September 2018 decision.

Rest period after overtime

[25] At [129] – [130] of the September 2018 decision we proposed amendments to clauses 25.3 and 25.4 to address the concerns of ABI and Ai Group. The changes proposed were:

‘25.3 Despite clause 25.2 but subject to clause 25.4, where an employee, due to overtime worked, would be required to start working their ordinary rostered hours without having had 10 consecutive hours off duty ~~since last working ordinary hours~~:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 10 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary rostered hours ~~not worked~~ that the employee did not work as a result of being released from duty in accordance with paragraph (a).

25.4 If, at the direction of the employer, an employee continues work or resumes ~~work~~ working ordinary rostered hours ~~or continues work~~ without having at least 10 consecutive hours off duty in accordance with clause 25.3 all of the following apply:

(a) the employer must pay the employee at 200% of the employee’s minimum hourly rate until such time as the employee is released from duty; and

(b) the employer must release the employee from duty until the employee has had 10 consecutive hours off duty; and

(c) the employee must not suffer any loss of pay for any ordinary rostered hours ~~not worked~~ that the employee did not work as a result of being released from duty in accordance with paragraph (b).’

[26] These clauses were renumbered as clause 24.3 and 24.4 in the revised PLED.

[27] ASU did not make further submissions. 21 ABI support the proposed amendments.22

[28] Ai Group opposes the proposed amendments because the amendments introduce a notion of ‘rostered hours’. Ai Group submits this is problematic because the current award does not contemplate the preparation of rosters for employees covered by it – that is, the award does not require that employees be ‘rostered’. 23

[29] Ai Group submits that the notion of ‘rostering’ is inconsistent with the practical operation of the current award. Ai Group submits full-time employees covered by the award are commonly told their usual starting and finishing times upon commencement of employment (as a term in their contract of employment or otherwise) and those hours form their ordinary hours of work. There is no ‘roster’ that is prepared or provided in a such circumstance. 24

[30] For these reasons Ai Group submits the notion of ‘rostering’ in clause 23 is potentially confusing and at odds with the practical operation of the award. 25

[31] Ai Group also submit the amendments do away with the notion that the clause applies where an employee performs overtime between two periods of ordinary hours worked on consecutive days. The clause does not apply where an employee performed work on a particular day that wholly constitutes overtime and on the following day, the employee is required to perform ordinary hours of work. Ai Group submit this is clear from the test in clause 27.3(b):

‘(b) An employee (other than a casual employee) who works so much overtime between the termination of the employee’s ordinary work on one day and the commencement of the employee’s ordinary work on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to this clause, be released after completion of such overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.’ 26 (Ai Group’s emphasis)

[32] Ai Group submits that by removing express reference to this notion, the practical application of subclauses (a) and (b) is unclear and confusing. Ai Group propose the following amendments to clauses 24.3 and 24.4 to address their concerns: 27

‘24.3 Despite clause 23.2 but subject to clause 23.4, where an employee, due to overtime worked, would be required to start working their ordinary ~~rostered~~ hours without having had 10 consecutive hours off duty since the cessation of the employee’s ordinary hours of work on the previous day:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 10 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary ~~rostered~~ hours that the employee would otherwise have been required to work by the employer but that the employee did not work as a result of being released from duty in accordance with paragraph (a).

. . .

23.4 If, at the direction of the employer, an employee continues work or resumes working ordinary ~~rostered~~ hours without having at least 10 consecutive hours off duty in accordance with clause 23.3 all of the following apply:

(a) the employee must pay the employee 200% of the minimum hourly rate until such time as the employee is released from duty; and

(b) the employer must release the employee from duty until the employee has had 10 consecutive hours off duty; and

(c) the employee must not suffer any loss of pay for any ordinary ~~rostered~~ hours that the employee would otherwise have been required to work by the employer but that the employee did not work as a result of being released from duty in accordance with paragraph (b).’

[33] ASU opposes Ai Group’s proposed amendments to clauses 23.3 and 23.4 on the basis that they create confusion to the application of the traditional entitlement of a rest period after working overtime. 28

[34] We accept Ai Group’s submission that the addition of references to ‘rostered’ ordinary hours may be confusing in circumstances where the current award establishes no requirement for an employee’s ordinary hours of work to be identified on a roster (except perhaps implicitly where the employer agrees to apply the 38 hour week pursuant to an agreed roster cycle and/or by way of a system of rostered days off pursuant to clause 25). We do not accept Ai Group’s proposed amendment to clause 24.3 to add the words ‘since the cessation of the employee’s ordinary hours of work on the previous day’, since this may be read as meaning that the 10 hour break is to be measured from the cessation of ordinary hours, which is obviously not the case. We do not consider that there is a proper rationale for the proposed amendments to clause 24.3(b) and 24.4(c) (apart from the deletion of ‘rostered’ in each case). Accordingly clauses 24.4 and 24.4 will provide as follows:

‘25.3 Despite clause 25.2 but subject to clause 25.4, where an employee, due to overtime worked, would be required to start working their ordinary hours without having had 10 consecutive hours off duty ~~since last working ordinary hours~~:

(a) the employer must release the employee from duty after finishing the overtime until the employee has had 10 consecutive hours off duty; and

(b) the employee must not suffer any loss of pay for any ordinary hours that the employee did not work as a result of being released from duty in accordance with paragraph (a).

25.4 If, at the direction of the employer, an employee continues work or resumes working ordinary hours without having at least 10 consecutive hours off duty in accordance with clause 25.3 all of the following apply:

(c) the employer must pay the employee at 200% of the employee’s minimum hourly rate until such time as the employee is released from duty; and

(d) the employer must release the employee from duty until the employee has had 10 consecutive hours off duty; and

(e) the employee must not suffer any loss of pay for any ordinary rostered hours that the employee did not work as a result of being released from duty in accordance with paragraph (b).’

Shiftwork issues

[35] At [140] of the September 2018 decision, the Commission declined to adopt Ai Group’s proposed amendment to clause 25.1 regarding the application of Part 6—Shiftwork. 29 Ai Group was invited to file any further submissions on a number of other items it had raised which related to shiftwork. Clause 25.1 of the revised PLED states:

‘25.1 Part 6 applies to employees who are required to work their ordinary hours on any of the following shifts’.

[36] Ai Group remain concerned about the drafting of clause 25.1 and reiterate their original submission that clause 25.1 should be amended as follows:

‘25.1 Part 6 applies to employees ~~who are~~ when required to work their ordinary hours on any of the following shifts’. 30

[37] Ai Group submits that it is common for employees covered by the Award to perform ‘day work’ and ‘shiftwork’ and that the award does not prohibit such an arrangement. Ai Group refer to their 20 February 2018 submissions at 50 – 53.

[38] Ai Group submitted as follows:

‘26. The Full Bench stated in the Decision that “if an employee is working on one of the defined shifts [in clause 25.1 of the Exposure Draft], the employee is not working day work by definition”. In a temporal sense, this must of course be so. That is, at a particular point in time, an employee cannot simultaneously be performing daywork and on a shift defined at clause 25.1 of the Exposure Draft).

27. However, over time, an employee may perform both daywork and shiftwork. Under the Award, when an employee performs shiftwork, the provisions pertaining to shiftwork apply to them and when the employee performs daywork, the provisions pertaining to daywork apply to them. Provisions concerning shiftwork do not apply to an employee whilst performing daywork.

28. We are concerned that as presently drafted, the Exposure Draft deviates from the current Award substantively.

29. Clause 2 defines a ‘shiftworker’ as an employee to whom Part 6 applies. By virtue of clause 25.1, Part 6 applies to an employee “who [is] required to work their ordinary hours on any of” the shifts defined at subclauses (a) – (c). There is no temporal limitation contained in clause 25.1. It is cast such that Part 6 potentially applies to an employee who is, at any time during their employment, required to work their ordinary hours on any of the defined shifts.

30. Accordingly, under the Exposure Draft, a ‘shiftworker’ is an employee “who is required to work their ordinary hours on any of” the shifts defined at subclauses (a) – (c) at any stage during the course of their employment.’ 31

[39] Ai Group submit the PLED deviates from the current award provision and to demonstrate this, provided the following example:

• “Take a full-time employee is required to work their ordinary hours on an afternoon shift as defined by clause 25.1(a) over a period of three months.

• By virtue of clause 25.1, Part 6 applies to the employee during the performance of such work and the employee satisfies the definition of ‘shiftworker’ under clause 2.

• After that three month period, the employee is directed to perform ordinary hours that do not satisfy any of the shift definitions at clause 25.1(a) – (c), however they fall within the parameters set for the performance of ordinary hours by dayworkers under clause 13.

• Clause 13 is headed “Ordinary hours of work (employees other than shiftworkers)”. Clause 13.1 states that “clause 13 applies to employees other than shiftworkers”.

• If the definition of ‘shiftworker’ is read in the manner we have outlined above, clause 13 ostensibly does not apply to the employee, even if they are not performing hours of work in accordance with any of the shift definitions at clause 25.1. The same can be said of, for instance:

• Clause 14 (rostered days off);

• Clause 15 (breaks); and

• Part 5 (penalty rates and overtime).” 32

[40] Ai Group submitted that if Part 6 continues to apply to an employee in the circumstances described above, the employee would be entitled to, for instance, paid rest breaks under clause 27.3 of the PLED – which is an entitlement that would not otherwise be afforded to an employee performing ‘day work’. 33 Ai Group note that many employers covered by the current award require employees to perform both day work and shiftwork and consider that if left unaddressed, the application of the exposure draft is unclear and potentially problematic and disruptive to existing practices.

[41] Ai Group submit further consideration should be given to this issue and that resolution of the identified items at paragraph [142] – [143] of the decision are directly related to the outcome of this issue. 34 Ai Group seeks an opportunity to make further submissions about items 3, 27, 45, 66, 84 and 110.35 We note that the September 2018 decision listed item 66 (which does not relate to shiftwork) and should have listed item 77.

[42] The ASU rejects the notion of mixing shiftwork and day work. ASU submit an employee is either a shiftworker or they are not and the two types of employment should not be conflated. 36 ASU submits that over time employers have increasingly attempted to re-define shiftwork so as shift hours of work during the ordinary spread of hours are not recognised as shiftwork. ASU rejects the notion that an employee may perform day work and shiftwork at the same time and award provisions should not enable this practise.37

[43] We do not consider that Ai Group’s further submissions have raised any new matter which would cause us to depart from the provisional view expressed in paragraph [140] of the September 2018 decision. If an employee ceases to be required to perform their ordinary hours on any of the identified shifts, then Part 6 will cease to apply to them. We accept that it is possible that an employee may be moved to and from shiftwork over time, but we do not consider that clause 25.1 in the form appearing in the revised PLED could be read as meaning that a person remains a ‘shiftworker’ for the purpose of any provision of the award once they have ceased performing shift work. Items 3, 27, 45, 77, 84 and 110 are determined consistent with this conclusion.

Wage tables – Schedule B

[44] At [219] of the September 2018 decision interested parties were invited to make additional submissions in relation to specific errors in the rates (other than errors related to rounding). 38

[45] MTA acknowledged the Commission’s decision about the approach used to calculate the rates of pay in Schedule B, but made a submission in relation to the minimum weekly rate provided for in Table 3 and the lack of clarity as to which rate is the minimum rate of pay an employer is required to pay under the current award. 39

[46] MTA provided two examples based on Table 3. Firstly, in the case of a Level 1, Year 1 employee Table 3 contains the minimum weekly rate of ‘$764.70’ and the minimum hourly rate of ‘$20.12’, and pointed out that $20.12 x 38 equals $764.56. This results in a discrepancy of 14 cents. Secondly, the Level 2, Year 1 employee weekly rate is ‘$837.40’ and the minimum hourly rate is ‘$22.04’, while $22.04 x 38 equals $837.52. This results in a discrepancy of 12 cents. 40

[47] MTA submit that these differences raise confusion among employers as to their obligations when paying employees for their 38 hour week. 41 MTA refer to the September 2018 decision which states that the hourly rates are for the purpose of part-time and casual employees covered by awards and to calculate loadings, penalty rates and overtime. MTA take this to mean that the published weekly rates are for full-time employees. MTA submits this means the hourly rate for ordinary hours of work for such weekly employees will effectively be determined by the weekly rate divided by 38 which will not then equate with the published rounded hourly rate in awards applicable to part-time workers. MTA submit this conflict in the approach to different types of employees creates uncertainty as to the correct rate.42

[48] MTA submits that minimum weekly rates of pay that are rounded to the nearest 10 cents (Column 2) in Table 3 in clause 16.1 should be removed. 43 MTA submit that where the minimum weekly rate is required this can be achieved by multiplying the minimum hourly rate by 38 hours and this approach will remove any discrepancy or inconsistency between the equivalent rates and provide greater clarity.44 MTA also note that a summary of hourly rates of pay schedules are to be included in all modern awards and that a common approach should be adopted. It seeks the opportunity for all parties to express their views on this issue.45

[49] The ASU acknowledge MTA’s submission and submit that if the issue is to be dealt with, it should be done so as a common issue rather than specifically in relation to this award. 46

[50] We do not propose to remove the weekly rates of pay from Table 3 in clause 16.1. The issue raised by the MTA will be resolved by adding the words ‘(full-time employee)’ to the heading in column 2 of the table, which will serve to clarify that these are the weekly rates applicable to full-time employees. The rounding rules for weekly and hourly rates of pay are as determined in the Annual Wage Review 2017-18 decision 47 and are not the subject of consideration in the 4 yearly review.

Next steps

[51] This decision finalises the plain language re-drafting of the Clerks award. A further revised PLED incorporating changes arising from this decision will be published shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 411.

2 [2018] FWCFB 5553.

3 [2018] FWCFB 5553 at [13].

4 ASU submission, 21 September 2018, paragraph 2; Ai Group submission, 24 September 2018, paragraphs 5 – 6; ABI submission, 26 September 2018 at 1.1.

5 [2018] FWCFB 5553 at [52].

6 ASU submission, 21 September 2018, paragraph 3.

7 ASU submission, 21 September 2018, paragraphs 4 – 5.

8 Ai Group submission, 24 September 2018, paragraphs 7 – 9.

9 ASU reply submission, 27 September 2017, paragraph 4.

10 ASU reply submission, 27 September 2017, paragraph 5.