Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd [2016] FWC 3961 (17 June 2016) [2016] FWC 3961 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 —Dispute resolution Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd (C2015/6410) Electrical power industry COMMISSIONER JOHNS MELBOURNE, 17 JUNE 2016 Dispute concerning the operation of clauses 30 and 32.7 under the EnergyAustralia Yallourn Enterprise Agreement 2013 – function of Operations Team Leaders Introduction [1] This decision involves an application brought by the Construction, Forestry, Mining & Energy Union (Mining and Energy Division, Victorian District Branch) ( CFMEU/applicant ) under section 739 of the Fair Work Act 2009 ( FW Act ). [2] The Respondent is EnergyAustralia Yallourn Pty Ltd ( EA/respondent ). [3] The parties are covered by the EnergyAustralia Yallourn Enterprise Agreement 2013 ( Agreement ). The Agreement was approved by the Commission, on 23 November 2013. It has a nominal expiry date of 28 November 2017. [4] It was not contested and I am satisfied that the dispute resolution process in the Agreement was properly invoked and the Commission is invested with jurisdiction to determine this matter by way of arbitration. [5] The dispute: a) is about the role of Unit Controllers/Production Controller 3 ( PC3s ) (collectively, UCs ) and Operations Team Leaders ( OTLs ) in the performance of the role of Outage Coordinator; and b) arises out of the operation of clauses 30 and 32.7 of the Agreement which provide as follows: Clause 30 Roles & Responsibilities The classifications, duties and responsibilities of an employee shall not be changed unless agreed between the employee and the company. Clause 32.7 Outage coordinators with the appropriate skills must be appointed for all outages. An Outage coordinator can be appointed from the UC ranks for outages. Appropriate time off the roster will be given for the coordinator to perform the pre and post outage components of the task. When a unit is being shut down or returned to service, extra manning may be required. The OTL will consult with the Outage Coordinator, and the unit controller on the unit to determine the extra manning required. Where a unit (or units) is OOS then lower manning requirements may be possible, freeing up people to cover for leave. Again the OTL will consult with the unit controller to determine the manning requirements. [6] It is common ground between the parties that no predecessor agreement to the Agreement contained clauses equivalent to clauses 30 and 32.7 of the Agreement. In this regard EA is correct in its submission that “ the parties specifically turned their minds to the working of clauses 30 and 32.7 at the time the Agreement was negotiated. Those clauses reflect the outcomes of those particular negotiations and the compromises that were made by the respective parties. ” 1 [7] UCs are members of the shift operations group. Therefore, it is clear, on a plain and ordinary reading of clause 30, that their “classification, duties and responsibilities … shall not be changed unless agreed between the [UC] and the company.” [8] The classification of UCs is not in issue in the present matter. It is therefore only necessary to understand the “duties and responsibilities” of UCs. [9] Clause 32.20 of the Agreement provides that, Clause 32.20 Operations Role Descriptors External to this Agreement is a document entitled “Operations Role Descriptors” which defines the role and duties of classifications within the Shift Operations Group. The Operations Role Descriptors document cannot be varied during the term of this Agreement except by mutual agreement of the operator’s representatives and the Company. The Operations Role Descriptors document forms part of this Agreement for the purposes of the Dispute Resolution clause. [10] On a plain and ordinary reading of clause 32.20 the Operations Role Descriptors are called up into the Agreement. [11] The Operations Role Descriptors were annexed to the witness statement of CFMEU witness Geoffrey Thomas Aitken ( GTA-4 ). The CFMEU submitted that, Whilst the Operations Role Descriptors do not explicitly refer to Outage Coordination, the Descriptors do provide that Operators from AUC1 level and above are responsible for issuing permits for safe access to plant, including Outages. In turn, the role of the Outage Coordinator incorporates all relevant skills up to UC3 level (which includes the issuing of permits), but also includes specific skills and experience that are peculiar to the Outage Coordinator role. 2 [12] The CFMEU defined the question to be answered by the Commission as follows: Having regard to the terms of the Agreement (and in particular, clause 30 and sub-clause 32.7 therein) is the employer entitled to appoint Operations Team Leaders in the role of Outage Coordinator for minor Outages without the consent of agreement of affected Unit Controllers (inclusive of “grandfathered” PC3s)?” 3 [13] The CFMEU contended that the answer to the question should be “ No ”. 4 [14] EA objected to the characterisation of the question posed by the CFMEU. EA submitted that, “… there is no basis to distinguish between ‘minor outages’ and other outages (e.g. major outages, integrity outages, boiler cleans and forced outages) in relation to the application of the clauses that are the subject of the dispute. Therefore, the issue to be determined by the Commission has broader application than the question articulated by the CFMEU suggests and should be considered in the context of this broader application.” 5 [15] EA further submitted that in relation to outage coordinators: a) the Agreement requires it to appoint an outage coordinator with the appropriate skills in relation to all outages; b) in the case of each outage, EA will identify and appoint an employee as the outage coordinator who is available, has the necessary skills, and is competent to coordinate an outage. This could, for example be a UC or an OTL. The Company’s position is not that it will always appoint OTLs as the outage coordinator to the exclusion of UCs; and c) whomever EA appoints to perform the role of the outage coordinator is a matter of managerial prerogative – there is nothing in the Agreement which precludes EA from appointing an OTL (or other employee who is not covered by the Agreement) to perform the role of outage coordinator. 6 [16] For the reasons below the Commission, as presently constituted, has determined that the better interpretation of the Agreement is the interpretation advanced by the respondent. The hearing [17] The application was listed for hearing on 25 February 2016. [18] At the hearing the CFMEU was represented by Mr A Bukarica. In advance of the hearing the CFMEU filed an Outline of Submissions ( Exhibit C1 ). The CFMEU called the following witnesses: a) Mr Geoffrey Wayne Dyke, who had filed a witness statement ( Exhibit C2 ) and who made himself available for cross-examination; and b) Mr Geoffrey Thomas Aitken who had filed a witness statement ( Exhibit C3 ), a supplementary witness statement ( Exhibit C4 ) and who made himself available for cross-examination. [19] At the hearing the Respondent was represented by Mr B Avallone. In advance of the hearing EA filed an Outline of Submissions ( Exhibit EA3 ). EA called the following witnesses: a) Mr Mark Robert Pearson, who had filed a witness statement ( Exhibit EA2 ) and was not required for cross-examination; and b) Mr Dale Steven Hogarth, who had filed a witness statement ( Exhibit EA4 ) and who made himself available for cross-examination. [20] In coming to this decision the Commission, as presently constituted, has had regard to the written and oral submissions of the parties and evidence of the witnesses who were called and cross-examined. Background [21] The following matters were either common ground between the parties or not otherwise contested: a) EA owns and operates the Yallourn Power Station. The Yallourn Power Station has four coal fired generators (known as Units). b) From time to time Units experience an outage. An outage is the removal of a Unit from service to undertake necessary maintenance works. Outages can be: i. planned/scheduled outages (where a Unit is taken out of service to carry out planned maintenance works); or ii. forced outages (where a Unit is forced out of service due to a defect that prevents the Unit from continuing to operate). c) Planned/scheduled outages can be major outages, integrity outages, minor outages or boiler cleans. d) An Outage Coordinator must be appointed to oversee an outage. So much is apparent from the use of the word “must” in clause 32.7 of the Agreement. e) EA employs operators on a rotating shift to operate the Units. Operators are covered by the Agreement. f) In the Agreement there is no classification for a Production Controller 3 (PC3). However, in accordance with sub-clause 32.18 of the Agreement, “Grandfathered PC3 employees” retained their “pay relativity as long as [they] remained employed with” EA in the Operations Goup ( Exhibit EA1 ). g) Operators perform their duties under the supervision of Operations Team Leaders. OTLs are managerial employees. OTLs are not covered by the Agreement. h) UCs have consistently performed the function of Outage Coordinator. Mr Hogarth conceded the same under cross-examination. 7 However, OTLs: i. commonly act as the Outage Coordinator for unplanned outages; 8 and ii. have acted as the Outage Coordinator in respect of a small number of planned outages. i) On 8 October 2015, Dale Hogarth (EA Operations Leader) advised Geoff Aitken (CFMEU Yallourn Lodge President) that EA intended to appoint an OTL as the Outage Coordinator for an upcoming integrity outage. j) There is some dispute between the parties about exactly what Mr Hogarth said on 8 October 2015. However, it is clear that Mr Aitken understood the message to mean that OTLs would take over the role of Outage Coordinator for all outages. Mr Hogarth and EA deny that is the intent. However, they reserve the right to appoint OTLs as the Outage Coordinator from time to time. The evidence about this issue was overtaken by the express statement made by the respondent in its Outline of Submission to the effect that it does not intend to use OTLs on every occasion when there is an outage 9 . I accept that is the position of the company. Mr Bukarica was content for the Commission to proceed on the basis that EA be held to its submission on this point. 10 Principles of construction of agreements [22] A Full Bench of the Commission has gone to great lengths to set out the relevant principles relevant to the construction of agreements. In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited ( Golden Cockerel ) 11 the Full Bench set out the relevant authorities and summarised the position as follows: Summary [41] From the foregoing, the following principles may be distilled: 1. The AI Act does not apply to the construction of an enterprise agreement made under the Act. 2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. 3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement. 6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include: (a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (b) notorious facts of which knowledge is to be presumed; (c) evidence of matters in common contemplation and constituting a common assumption. 7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose. 8. Context might appear from: (a) the text of the agreement viewed as a whole; (b) the disputed provision’s place and arrangement in the agreement; (c) the legislative context under which the agreement was made and in which it operates. 9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. [23] The principles in Golden Cockerel were applied by another Full Bench of the Commission in CFMEU v Spotless Facility Services Pty Ltd ( Spotless ) . 12 As EA correctly submitted, that Full Bench also held “ that the objects of the FW Act favour a construction of agreements that will operate fairly to both sides and foster a co-operative workplace environment” . 13 [24] The Commission, as presently constituted, adopts the reasoning of the Full Bench in Golden Cockerel, the authorities it refers to and the reasoning in Spotless. Submissions [25] In the present matter there is a dispute between the parties as to the operation of clauses 30 and 32.7 of the Agreement. Applicant [26] The Applicant submitted that: a) Clause 30 of the Agreement, given its ordinary grammatical meaning, prevents the duties and responsibilities of an Operator employee being altered by the employer without the consent of the affected employee. Outage Coordinator duties form an integral part of the duties of UCs. b) Informed by a textual analysis of the entirety of clause 32 “Shift Operations Group”, the purpose of sub-clause 32.7 is consistent with the conclusion that the duty or responsibility of Outage Coordinator is to be undertaken by the UCs and not OTLs. c) Clause 32 is a detailed provision dealing with many operational issues affecting Operators employed at the Yallourn Power Station and its apparent beneficial purpose is to protect the duties and job security of Operators. d) To contend that sub-clause 32.7 is permissive of the ability of the employer to substitute an OTL at the expense of a UC in the Outage Coordinator role is entirely to misconstrue the character and purpose of the sub-clause. e) In the alternative, if it is held that clause 30 or sub-clause 32.7 are ambiguous as to the reservation of Outage Coordinator duties for UCs, then it is permissible to have regard to the relevant extrinsic material to determine whether there is an ambiguity and to resolve such ambiguity. In these circumstances, an important aid in the construction of clause 30 and sub-clause 37.2 is the industrial relations context immediately preceding the making of the Agreement. Respondent [27] The Respondent submitted that. a) Outage coordination is not an exclusive duty or responsibility of UCs. Instead it is a function that is assigned to various employees by EA from time to time as and when the need arises. No employee is considered to have an entitlement to perform the role of Outage Coordinator. b) The assignment of additional work to employees from time to time is consistent with clause 5.5 of the Agreement, which states that ‘employees will perform such work as the company from time to time reasonably requires, including all work they are trained and competent to perform.” The scope of the work that can be assigned to an employee under clause 5.5 clearly extends beyond the specific duties and responsibilities attached to the position in which the employee is employed. In particular, EA considers that the scope of work that can be assigned to employees under clause 5.5 extends to the coordination of all outages – not just minor outages. c) The application of clause 32.7 and clause 5.5 clearly permit the appointment of OTLs to the role of Outage Coordinator. d) The appointment of an OTL to the role of Outage Coordinator does not involve any change to the duties or responsibilities of a UC. They will still be required to perform the role of Outage Coordinator from time to time. Consideration [28] Both parties contend that the Commission should have regard to the plain and ordinary meaning of the words in the Agreement. [29] However, it can be observed that had the parties to the Agreement drafted it with greater precision the present dispute could have been avoided. [30] If the parties intended the Agreement to apply in the manner submitted by the CFMEU, they could have drafted the Agreement as follows: Clause 32.7 Outage coordinators with the appropriate skills must be appointed for all outages. An outage coordinator can must be appointed from the UC ranks for outages. [31] If the parties intended the Agreement to apply in the manner submitted by EA, they could have drafted the Agreement as follows: Clause 32.7 Outage coordinators with the appropriate skills must be appointed for all outages. An outage coordinator can be appointed from the UC ranks for outages or the OTL ranks . [32] However, as is all too often the case with disputes about the application of agreements that come before the Commission the necessary precision in the drafting of the agreement is found wanting. It is necessary therefore to apply the Golden Cockerel principles. 1. The AI Act does not apply to the construction of an enterprise agreement made under the Act. [33] The AI Act is not to be and has not been applied to the Commission’s interpretation of the Agreement. 2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity. [34] As stated above the dispute: c) is about the role of UCs and OTLs in the performance of the role of Outage Coordinator; and d) arises out of the operation of clauses 30 and 32.7 of the Agreement which provide as follows: Clause 30 Roles & Responsibilities The classifications, duties and responsibilities of an employee shall not be changed unless agreed between the employee and the company. Clause 32.7 Outage coordinators with the appropriate skills must be appointed for all outages. An Outage coordinator can be appointed from the UC ranks for outages. Appropriate time off the roster will be given for the coordinator to perform the pre and post outage components of the task. When a unit is being shut down or returned to service, extra manning may be required. The OTL will consult with the Outage Coordinator, and the unit controller on the unit to determine the extra manning required. Where a unit (or units) is OOS then lower manning requirements may be possible, freeing up people to cover for leave. Again the OTL will consult with the unit controller to determine the manning requirements. [35] Turning first to clause 30 it can be observed that, as stated above, the issues here are the: a) duties (or functions); and b) responsibilities (or obligations), of the UCs. In short, what is relevant is the work the UCs are required to do. It is that work that cannot be changed unless by agreement. [36] Clause 30 is a substantive clause and not one that is commonly found in agreements. Rarely do employers agree to accept a veto on their ability to assign duties and responsibilities, but that is what clause 30 does. As has already been observed, clause 30 had no equivalent in predecessor agreements. It must be given real meaning. [37] The CFMEU submitted that “there can be little doubt that planned Outages (other than major planned Outages) is the work of appropriately trained UCs.” 14 The CFMEU then relies upon clause 32.20 and the Operations Role Descriptors that are called up into the Agreement. [38] The CFMEU submitted that, 15 “whilst reference to Outage Coordination is not explicitly stated in the Operations Role Descriptors, it is specifically dealt with in the Role Descriptor of the “grandfathered” role of PC3. The role of PC3 is dealt with in the Agreement in the following terms: 32.18 Grandfathered PC3 Employees As part of the transitional arrangements relating to the new Shift Operations Group classification structure, employees who were previously classified as PC3 will retain their existing pay relativity as long as they remain employed with EnergyAustralia Yallourn Power Station in the Operations Group. This grandfathering arrangement will be reflected in letters to be provided to each affected employee. To be eligible an existing PC3 must: be fully cross-staged trained to UC3 level as detailed in the “Transitional Cross-stage Training Arrangements” above; Must perform the duties of the PC3 role, as per past practice, when requested. [39] The CFMEU then directed the Commission to the Role Descriptor applicable to the PC3 role 16 which provides for the following duties: ● Undertake operations aspects of managing minor projects in two or more of the following: Outage co-ordinator (minor) Assist with development of outage plan for minor outage Undertake plant improvement/modification project Acts a Project Manager. [40] However, in order for clause 30 to be offended by the appointment of an OTL as an Outage Coordinator, it must be that the position of Outage Coordinator is exclusively the role of a UC (otherwise there is no change in their duties or responsibilities if an OTL is appointed). [41] There is nothing in the evidence that satisfies me that the position of Outage Coordinator is exclusively the role of a UC. The CFMEU has put its best foot forward to establish the same, but has fallen short. The concession made by the CFMEU (appropriately) that “the Operations Role Descriptors do not explicitly refer to … Outage Coordination” is telling in this regard. The Outage Coordination role is effectively a project management role which involves the coordinator planning, supervising and coordinating the issue of permits (amongst other things). If it was so integral to the UC duties and responsibilities it would have been expressly stated in the Role Descriptors. It was not. The parties made a definite decision not to include it in the role of the UCs. [42] Further, I am not satisfied that the reference to “Outage co-ordinator (minor)” in the Role Descriptor of the PC3 position is of any practical assistance. Properly construed, what is included in the PC3 Role Descriptor are the minimum skills or experience of a PC3, that is, the basis upon which any relevant employee will qualify for the grandfathered position. It is not a statement of the exclusive duties or responsibilities of the PC3. [43] A plain and ordinary meaning of clause 30 does not assist me in coming to a conclusion that UCs only can be appointed Outage Coordinators. [44] Coming then to clause 32.7. First, it is common ground that EA must appoint an Outage Coordinator. [45] The language of clause 32.7 then changes in the next sentence, An outage coordinator can be appointed from the UC ranks for outages. (my emphasis). [46] The CFMEU submitted that “in construing clause 32.7 there are a number of contextual pointers to its true meaning” 17 as follows: a) “Outage Coordinator” appears to be someone whose terms and conditions of employment are covered by the Agreement. It should not be controversial that OTLs are not persons whose terms and conditions of employment are covered by the Agreement; b) Sub-clause 32.7 appears as one of a large number of highly prescriptive sub-clauses in clause 32 “Shift Operations Group”. Therefore, sub-clause 32.7 can derive colour and meaning from the other clauses that comprise clause 32; c) The other sub-clauses of clause 32 are concerned with various operational matters affecting Operators at the Yallourn Power Station. The clause, in general, is protective of the rights and privileges of Operators covered by the Agreement; and d) In construing clause 32.7, it is important to not lose sight of its essentially beneficial purpose in respect of Operators and to construe the clause accordingly. [47] The CFMEU submitted that, having regard to these factors, “the purposes are strongly suggestive of the fact that the Outage Coordinator is someone drawn from the ranks of [UCs]. If there were no such implication to be drawn from the clause, why then would it be necessary for the Outage Coordinator to consult with the OTL?” 18 It was submitted that the use of the word “can” was “more consistent with the purpose and context of the sub-clause to suggest that the use of the work “can” is intended to broaden the pool from which Outage Coordinators can be drawn from within the Operator group, for example, Assistant Unit Controllers (or AUCs).” 19 [48] The attempt made by the CFMEU to have the word “can” construed other than permissively was valiant, but unpersuasive. As EA correctly submitted, It is well established that the ordinary and well-understood meaning of the term “can” is permissive rather than imperative or mandatory. That this is the case is reinforced by both dictionary definitions and the way that the term has been interpreted in other industrial instruments.” 20 [49] Quite simply there is nothing in the drafting of the Agreement compels me to diverge from the well-understood meaning of the word “can”. Consequently, clause 32.7 operates to allow or permit the appointment of a UC as an Outage Coordinator. It does not mandate it. Under cross-examination Mr Aitken conceded that careful attention was paid to clause 32.7 and its wording during the negotiation of the Agreement. 21 Ultimately, the parties, in drafting the Agreement, used different words in the first and second sentences of clause 32.7 (“must” and “can” respectively). They did so deliberately. So much is so is evident when one traces the development of the Agreement through its various drafts (see DSH-2 – DSH-6 ). Consequently, I should credit the parties with the intelligence of knowing the difference between the two words. They chose two different words which have different meanings. I must not re-write the Agreement and treat them as having intended to use “must” on both occasions. [50] For these reasons, a plain and ordinary meaning of clause 32.7 does not assist me in coming to a conclusion that UCs only can be appointed Outage Coordinators. 3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. [51] Having determined the issue on the plain and ordinary meanings of clauses 30 and 32.7 it has not been necessary for me to have regard to evidence of surrounding circumstances in determining whether an ambiguity exists. I have found that no ambiguity exists. 4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. [52] Because I have found that the agreement has a plain meaning I have not admitted evidence of surrounding circumstances that would contradict the plain language of the Ageement. 5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement. [53] This is not a relevant consideration in the present matter. 6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include: a. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; b. notorious facts of which knowledge is to be presumed; c. evidence of matters in common contemplation and constituting a common assumption. [54] This is not a relevant consideration in the present matter. 7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose. [55] Noting the disputed construction advanced by the parties I have had regard to the context and purpose of the Agreement in deciding upon its plain and ordinary meaning. In particular I have had regard to: a) the text of the Agreement viewed as a whole; b) the place and arrangement of clauses 30 and 32.7 in the Agreement; c) the legislative context under which the Agreement was made and in which it operates. 9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. [56] The Commission, as presently constituted, has not had regard to the subjective intentions or expectations of the parties. It is evident from all the surrounding circumstances that the objective intention of the Agreement was: a) not to not exclusively vest the Outage Coordination role in UCs; and b) to make it only permissible (and not mandatory) that UCs be appointed as Outage Coordinators. 10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. [57] No rewriting of the Agreement has been undertaken in coming to the decision in this matter. The Commission, as presently constituted, has interpreted the agreement produced by the parties that, on 23 November 2013, contained considered and agreed terms in clauses 30 and 32.7. Conclusion [58] Having considered all that has been submitted in these proceedings and the relevant authorities, for the reasons set out above, the Commission, as presently constituted, has determined that the EA is entitled to appoint Operations Team Leaders (who have the appropriate skills) into the role of Outage Coordinator (without limitation) and without the consent or agreement of Unit Controllers (including the grandfathered PC3s). [59] Therefore, the CFMEU’s application for a remedy is dismissed. COMMISSIONER Appearances : Mr A Bukarica for the Construction, Forestry, Mining and Energy Union Mr B Avallone for the respondent Hearing details: Melbourne 25 February, 2016 1 Exhibit “EA3”, para 2.3. 2 Exhibit “C1”, para 31. 3 Exhibit “C1”, para 2. 4 Exhibit “C1”, para 3. 5 Exhibit “EA3”, para 1.4. 6 Exhibit “EA3”, para 1.5. 7 Transcript PN241. 8 Evidence of G Aitken, transcript PN117. 9 Exhibit “EA3”, para 1.5(b). 10 Transcript PN60. 11 [2014] FWCFB 7447 . 12 [2015] FWCFB 1162 at [12]. 13 [2015] FWCFB 1162 at [15]. 14 Exhibit “C1”, para 29. 15 Exhibit “C1”, para 32. 16 GTA-5 to the Witness Statement of Geoffrey Aitken. 17 Exhibit “C1”, para 39. 18 Exhibit “C1”, para 45. 19 Exhibit “C1”, para 46. 20 Exhibit “EA3”, para 4.3. 21 Transcript PN164. Printed by authority of the Commonwealth Government Printer <Price code C, AE405605 PR581775>