PR933239 PR933239 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Richard Brand and APIR Systems Limited (U2003/1005) COMMISSIONER DEEGAN CANBERRA, 19 JUNE 2003 Termination of employment - jurisdiction. DECISION [1] This matter arises from an application for relief in respect of the termination of employment of Richard Brand (the applicant) by APIR Systems Ltd (the employer). The applicant lodged the application pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) on 21 February 2003. [2] On 27 February 2003 the employer lodged an objection to the Commission exercising jurisdiction in relation to the application pursuant to section 170CC (3) of the Act and Regulation 30B(1)(f) of the Workplace Relations Regulations. [3] Subsection 170CC of the Act relevantly provides: " 170CC Regulations may exclude employees (1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes: (a) ...; (b)...; (c)...; (d)...; (e) employees in relation to whom the operation of the provisions causes or would cause substantial problems because of: (i) their particular conditions of employment; or (ii) the size or nature of the undertakings in which they are employed. (2) Without limiting, by implication, the class of persons that may be prescribed for the purposes of paragraph (1)(e), the regulations may identify as a class of employees for the purposes of that paragraph employees not employed under award conditions and to whom subsection (3) or (4) applies. (3) This subsection applies to an employee if: (a) the employee's remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates; and (b) the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified, or worked out in a manner specified, in the regulations (the specified rate )." [4] 170CD(3) defines the term " employed under award conditions " as follows "(3) For the purposes of this Division, an employee is taken to be employed under award conditions if both wages and conditions of employment of the employee are regulated by awards, certified agreements or AWAs, that bind the employer of the employee." [5] Regulation 30B(1)(f) of the Regulations provides: " 30B. Certain employees excluded from requirements for termination of employment (1) For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act: (a) an employee engaged under a contract of employment for a specified period of time; (b) an employee engaged under a contract of employment for a specified task; (c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either: (i) the period, or the maximum duration, is 3 months or less; or (ii) the period, or the maximum duration: (A) is more than 3 months; and (B) is reasonable, having regard to the nature and circumstances of the employment; (d) until the end of 11 September 2004, a casual employee engaged by a particular employer for a short period, within the meaning of subregulation (3); (e) a trainee whose employment under a traineeship agreement or an approved traineeship: (i) is for a specified period; or (ii) is, for any other reason, limited to the duration of the agreement; (f) an employee: (i) who is not employed under award conditions; and (ii) to whom subsection 170CC (3) or (4) of the Act applies. [NOTE: The expression `employee engaged under a contract of employment for a specified period of time' used in paragraph 30B (1) (a) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital of Children (1995-1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgement of Madgwick J, 12 November 1996, No. WI 1061 of 1996).] " [6] Two witnesses, Mr Riley and Mr Hutchings Bosco gave evidence for the employer, while the applicant gave evidence on his own behalf. BACKGROUND [7] It was common ground between the parties that the applicant's remuneration at the time of the termination of his employment exceeded the rate set by the Regulations for the purposes of section 170CC. The application is outside the jurisdiction of the Commission unless the applicant was " employed under award conditions " at the time of his termination. [8] The applicant claimed, and the employer denied, that the applicant was employed under the conditions of the Information Technology (Professional Employees) Award 2001 1 (the ITI(PE) Award). THE EVIDENCE Andrew Riley [9] A witness statement was filed on behalf of Mr Riley 2 . Mr Riley is an Executive Director of the employer. Mr Riley's evidence went to the origins of the employer company and the manner by which the applicant came to be employed by it. It was Mr Riley's evidence that the applicant, from 15 July 2002 commenced new duties, of a non-technical nature. These duties, for which he received a substantially increased salary, consisted of developing a business plan and " investigating business opportunities in new industry segments ". From late October 2002 his main tasks were preparing submissions for grants. According to Mr Riley these tasks were essentially management and commercial duties. In early December 2002 the applicant was offered amended conditions of employment, at a reduced salary, which he accepted on 9 December 2002. The applicant was given two months notice of termination on 20 December 2002 and left the company on 19 February 2003. [10] The witness was shown a copy of Exhibit G2 which included, on the second page, a list of relevant experience for admission to the Australian Computer Society. He was asked whether the applicant was engaged in performing any of the activities in that list at the time of the termination of his employment. Mr Riley stated that the applicant was not so engaged. [11] Under cross-examination Mr Riley agreed that the applicant had performed technical duties earlier in his employment but that he was not performing these duties at the time he was given notice of his termination. When asked whether in preparing the applications for the government grant or the concessional loan, the applicant would have had recourse to his information technology skills or expertise Mr Riley replied that the applicant had been instructed to receive technical input from other members of the Company. [12] Mr Riley was also asked to read the following section from a reference 3 he had provided for the applicant in January 2003 "During his time here he has filled a senior management position as manager business systems. This position was responsible for the development of a large national on-line reference service for the financial services industry. Richard's extraordinary experience and technical expertise resulted in a technical design that is leading edge. His concepts for integration of complex packages and data architecture meant that the system is able to achieve totally new and unexpected functionality". [13] In reply to a question from Mr Grinsell-Jones, Mr Riley explained that the statement in the reference referred to a period of the applicant's employment prior to August 2002. Andrew Hutchings Bosco [14] Mr Hutchings Bosco is the Managing Director of the employer. He also filed a witness statement 4 . His evidence described the type of work carried on by the company. According to his statement, from 15 July 2002 the Applicant performed a corporate or business development role in the company. He had no technical duties by was engaged in business planning, commercial relationships, licensing marketing and sales planning. From 24 October he was also managing the application process for a government grant and from late November 2002 his duties included managing an application for a Concessional Loan. According to the evidence of Mr Hutchings Bosco, technical input for these applications was provided by another employee. [15] The witness was also shown the list relating to relevant experience for admission to the Australian Computer Society 5 and asked whether the applicant had been performing any of the tasks listed immediately prior to the termination of his employment. He replied in the negative. [16] Mr Hutchings Bosco was also shown two documents. The first, Exhibit G5, was a note addressed to the applicant over the witness's signature dated 28 November 2002 which included the words: "You are therefore notified that your conditions of employment are to return to those at July 2002 and your duties are to be realigned into the technical support, pre sales and sales area within the financial services industry". [17] The second document 6 dated 29 November 2002 contained a copy of an email from the witness to the applicant asking him to " scope the opportunity for a concessional loan " apparently as a response to an email to the witness from a government official dated the same day reporting the announcement the previous day of the reopening of the " R&D Start Program ". [18] Under cross-examination the witness was asked whether at the time of his termination the applicant was required "to perform any technical input into his duties" (sic). The witness replied " No ". The witness conceded that there was technical input into the application prepared by the applicant and stated that it was his understanding that the technical input was provided by Mr Jowsey, another member of the Company. [19] According to Mr Hutchings Bosco the direction concerning the realignment of the applicant's duties contained in Exhibit G5 did not take place given the need for the applicant to be engaged in the preparation of the application referred to in the email at Exhibit G6. THE APPLICANT'S EVIDENCE [20] A witness statement was filed on behalf of the applicant 7 . The evidence contained in the statement went to the manner in which his employment with the Company came about and the reasons for the change to his employment conditions in August 2002. [21] The applicant described his subsequent duties with the company in his statement as follows 8 : "During September and early November 2002, at the explicit request of the executive directors, I developed an ACT Knowledge Fund application. This involved creating, functionally specifying, and costing a new information technology project in order to further the `commercialisation' of the CRS. The application was submitted to the ACT Government on 5 November 2002." On 29 November the executive directors informed me that the Board had not agreed to the change of employment terms. They issued a notice that `there is no basis for progressing the earlier discussions' and that I was "therefore notified that your conditions of employment are to return to those at 1 July 2002" and duties are to be `re-aligned into the technical support, pre sales and sales area". No other written statement of duties was produced. At no subsequent time was I ever asked to perform sales or pre sales duties, apart from providing general advice to a meeting (the advice was ignored)." [22] And further 9 : "During December 2002, at the explicit request of the executive directors, I developed a Concessional Loan Application under AusIndustry's Research and Development Program. This involved creating, functionally specifying, and costing a new information technology project in order to further the `commercialisation' of the CRS. On 20 December, I completed the preparation of the $1.2-million Concessional Loan Application. Once all other staff had left, at about 4:00pm, the executive directors gave me a "Termination of Contract" letter giving two months notice to 19 February 2003 during which I was asked to ensure "that the knowledge transfer to the technical team is complete". I was also thanked for "the work you have done in your time at APIR in the development of the technology that underpins our new systems". No other written or verbal explanation was provided." [23] In January and February he: "...provided technology transfer to the three remaining members of the technical team. The technology discussed included the way the entire system was designed, and the interactions between subsystems. I also reworked the Concessional Loan Application to remove myself from the project, and to remove cost components now covered by the ACT Knowledge Fund Grant." 10 [24] The applicant also set out a substantial list of duties performed by him during his employment with the Company and its predecessors 11 . As these may not be relevant to the issue to be determined I do not repeat them. I have concentrated on the evidence that clearly relates to the period in question. [25] The applicant elaborated in his oral evidence on the matters in his witness statement. According to his evidence about twenty per cent of the technical input into the application for the grant prepared by him was provided by Mr Jowsey, while the remainder was his own creation. 12 [26] According to the applicant he reverted to his original duties on 29 November 2002 and provided technology transfers to the technical team between that date and 20 December 2002 when he received his notice of termination. He also claimed to have spent thirty per cent of his time providing technical transfer during January and February 2003, and one hundred per cent of his time engaged in technical transfer during the final two weeks of his employment. [27] When shown the list of " Relevant Experience " 13 , the applicant stated that these were " relevant " to his employment prior to the termination. He stated that preparation of the Concessional Loan application required systems analysis and design, information systems strategic planning, evaluation of information technologies and contained an IT systems security component. [28] The applicant stated that he had been a member of the Australian Computer Society and it was conceded for the Company that he had the necessary skills and experience to be a member. [29] The applicant was directed to the descriptors of a Professional Information Technology Employee Level 4 at clause 4.4.4 of the ITI(PE) Award and asked whether he performed any of the duties set out in that clause during the period 29 November 2002 to 19 February 2003. [30] He responded: "Paragraph 4.4.4(a), the answer is, yes, because creation of the concessional loan application required all of those duties to be performed with the exception that there was no work program to be coordinated because it was a project that was at its budgetary stage. And, at that stage, the product development had not started, so there was no requirement to take detailed technical responsibility for product development. However, the product development that was required was part of the project plan. Under 4.4.4(b) almost the entire structure of the application was my responsibility. It involved a sum of money of $2.4 million over a two year period. 4.4.4(c) the duties were very broad objectives. We would like you to look at what is required for an application, but I did not directly supervise any staff." 14 [31] Under cross-examination the applicant agreed that after his return from leave in August 2002 he was no longer involved in the project he had previously been developing. He stated that he had negotiated a completely new role within the company 15 . He claimed. however, that he remained involved in providing "technical input to the project team". The applicant " believed " that he was instructed to provide that technical transfer 16 . He defined technical transfer as "taking the knowledge that (he) had of the system and imparting that into other members of the team so that they could continue to function" He described the process as follows: "So if someone asked you a question, you'd obviously answer it. If someone asked you a question about the project which you'd been involved in, you'd answer it?---Yes, and I would look at their proposals, look at their designs and write comments on those designs. Because they asked you to do that, because of your previous experience?---Principally, if they asked me, yes." 17 [32] He also described the process as it occurred in 2003 prior to his employment terminating: "Now, paragraph 23, you refer there to the period between January and February 2003, well, during January and February 2003, providing technology transfer to the remaining members of the team. Is this technical transfer in the same sense as you previously defined it?---Which was to transfer my understanding of the system to those team members. Right?---Yes. I put it to you that you had been answering their questions over a period of time, because of your previous knowledge and experience, that's correct?---That is correct. And that continued during that period in January and February?---That is correct. And that was because you were shortly to leave, people knew you were leaving in February, did they not?---That is correct". 18 [33] In response to a further question the applicant described how he utilised the skills listed in Exhibit G2 when preparing the grant application and the application for the concessional loan. 19 THE SUBMISSIONS [34] It was submitted for the respondent that the matter to be determined was whether the applicant was, prior to the termination of his employment, employed under the conditions of the ITI(PE) Award. The Commission was referred to the following statement of the Full Bench at paragraph [9] of the decision in Carpenter v Corona Manufacturing Pty Limited 20 : "In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. 21 In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award." [35] Essentially the submission of the Company was: · the Company is bound by the ITI(PE) award which is a common rule in the ACT, · the applicant has the necessary qualifications and experience to be admitted as a member of the ACS, · prior to July 2002 the applicant was engaged in a project performing duties which required him to utilise those skills and that experience to the extent that he would have fallen within the award classification, · from August 2002 until the termination of his employment the applicant was engaged in a new role which consisted of marketing and business development and was not a " hands-on information technology role ", · despite the note of 28 November 2002 22 that role did not revert to any other role prior to the termination, and · immediately prior to being given notice of termination on 20 December 2002 the applicant's principal task was " scoping " the opportunity for a concessional loan. [36] Further, the following was put for the Company: "Now, it is our submission that in order to come within the coverage of the award, it is not enough for the employee to establish that his qualifications and experience in relation to computer technology area were of assistance to him in the functions he was required to perform. What the award specifies in order to provide coverage is that those qualifications and experience were required in order for the adequate discharge of those duties. And we say those duties, when they were properly identified, as conceded in his evidence by Mr Brand, was the responsibility for preparing applications to various government bodies. He received technical input from other employees and he may well have re-written some of that technical input relying upon his past experience, but he was not required to have that experience in order to discharge the duty of preparing those submissions. Mr Brand himself in his witness statement identifies a whole range of activities, at paragraph 26, which one would say would be activities which would require - would bring him within the coverage of the award." 23 [37] It was the company position that while the applicant may have performed a " technology transfer " function during the relevant period this was not a function he was " required " to perform. As the applicant was not principally engaged to perform duties which required him to have the skills and experience to be a member of ACS he did not fall within the coverage of the relevant award. As his remuneration was in excess of that prescribed for the purposes of section 170CC the application should be dismissed. [38] The applicant's representative referred to a number of authorities including Logan v Otis Elevator Company Ltd 24 and Albanis v Transfield Pty Ltd 25 in support of his contention that the applicant's duties were such that he should be found to be employed under the provisions of the ITI(PE) Award. [39] It was argued that on the applicant's evidence the function performed by the applicant, in particular preparing the loan application, required the exercise and utilisation of information technology skills. It was the submission of the applicant that the "inherent requirements of the job required IT input" and that this was "precisely what (the applicant) provided". 26 CONCLUSION [40] It is common ground that the remuneration received by the applicant exceeded the statutory limit set by the relevant Regulation. The only issue that remains for determination is whether the applicant was a person "not employed under award conditions" . If the applicant was employed under award conditions then the application lodged pursuant to section 170CE of the Act is within jurisdiction. [41] The applicant claims that he is employed under the ITI(PE) Award. This award is a common rule in the ACT. The award contains the following clause concerning coverage: " 6. INCIDENCE OF AWARD 6.1 Subject to clause 8 - Relationship with other awards, this award applies to Professional Engineers (as defined) and Professional Information Technology Employees (as defined) employed by the employers who are respondent to this award and who are performing professional engineering duties (as defined) or Professional Information Technology duties (as defined) in the Information Technology Industry (as defined). 6.2 The Information Technology Industry is defined as: 6.2.1 the design and manufacture of computers and computer peripherals; 6.2.2 the design and manufacture of telecommunications equipment; 6.2.3 the design and manufacture of computer software; 6.2.4 computer system installation , repair and maintenance; 6.2.5 computer consultancy services; 6.2.6 computer programming; and 6.2.7 systems analysis services. 6.2.8 activities which are incidental, ancillary or complimentary to the activities set out in 6.2. 6.3 This award applies throughout the Commonwealth of Australia, including the Territories." [42] The definitions of Professional Information Technology employees and professional information technology duties are found at clause 4 - DEFINITIONS of the award: " 4.3 Professional Information Technology Employees (Other than Professional Engineers) Steam (sic)" 4.3.1 Professional information technology duties shall mean duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to: 4.3.1(a) hold a University Degree with an Information Technology Major (three, four or five year course) accredited by the Australian Computer Society at professional level; or 4.3.1(b) have sufficient qualifications and experience to be eligible for admission as a Member of the Australian Computer Society. 4.3.2 Professional Information Technology Employee shall mean an adult person qualified o (sic) carry out professional information technology duties as above defined. The term `Professional Information Technology Employee' shall embrace and include `Graduate Information Technology Employee' and `Experienced Information Technology Employee' as hereinafter defined." [43] The classification definitions for classifications covered by the award are found in Clause 4.4. According to the applicant's representative the applicant fell within the classification of Professional Information Technology Employee - Level 4 which has the following definition: " 4.4.4 Professional Engineer - Level 4 Professional Information Technology Employee - Level 4 4.4.4(a) An employee at this level performs professional work involving considerable independence in approach, demanding a considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for, example, acts as his/her organisation's technical reference authority) in, a particular field of professional engineering or professional information technology field. An employee at this level: initiates or participates in short or long range planning and makes independent decisions on professional engineering or professional information technology policies and procedures within an overall program; gives technical advice to management and operating departments; may take detailed technical responsibility for product development and provision of specialised professional engineering or professional information technology systems, facilities and functions; coordinates work programs; and directs or advises on the use of equipment and materials. 4.4.4(b) An employee at this level makes responsible decisions not usually subject to technical review, decides courses of action necessary to expedite the successful accomplishment of assigned projects, and may make recommendations involving large sums or long range objectives. 4.4.4(c) Duties are assigned only in terms of broad objectives, and are reviewed for policy, soundness of approach, accomplishment and general effectiveness. 4.4.4(d) The employee supervises a group or groups including Professional Engineers or Professional Information Technology Employees and other staff, or exercises authority and technical control over a group of professional staff. In both instances, he/she is engaged in complex professional engineering or professional information technology applications." [44] The applicant held a senior position with the Company. Until his salary was reduced (by $25,000 per annum) early in December 2002 he earned almost three times the award wage for a Professional Information Technology Employee Level 4. The fact that an employee receives remuneration in excess of award rates does not, of itself, preclude the operation of the award 27 . [45] Whether an employee is employed under award conditions is a question of fact in each case, requiring an examination of the terms of the award and the employee's tasks and responsibilities. [46] The Full Bench in Carpenter v Corona Manufacturing Pty Ltd 28 dealt with the correct approach to determining whether a particular award applies to an applicant's employment. The matter before that bench was similar, in many respects, to the circumstances of this matter. The Full Bench considered the nature of the work performed by the applicant in the matter on appeal and then set out the manner in which the determination of the question should be approached: "[8] At the time of the termination of his employment, the appellant was employed by the respondent as National Sales Manager. The agreement under which he was employed stated that the "function and responsibilities of the employee will involve sales and management duties throughout Australia". The appellant's job description identified his duties in a way that, in our view, can only be described as principally managerial in nature. The Commissioner found that the tasks for which the appellant was employed were those set out in the job description. We agree. Whilst the appellant may, on occasion, have performed tasks that might fall under the headings of "soliciting orders", "obtaining sales leads" or "promoting sales", such tasks formed a minor part of the work he was required to perform. [9] In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed . 29 In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award." (my emphasis added) [47] Applying this approach to the work performed by the applicant it is clear, on the evidence, that he was principally engaged, at the time he was given notice that his employment would terminate, in the preparation of applications for funding relating to concessional loans or grants. He may have utilised technical expertise in the performance of this task but I accept the evidence of the witnesses for the respondent that technical input to the task was provided by another staff member. I have no doubt that the applicant possessed the necessary skills and experience to provide much of the technical input required but I find that the duties of his principal task (that is, preparation of applications for funding and general corporate planning and business development) could have been adequately discharged without the possession of the qualifications and experience referred to in the definition of " professional information technology duties " on examination of Clause 4.3.1(b) of the award. [48] Having considered the definition of the classification of Professional Information Technology Employee - Level 4 at clause 4.4.4 of the award I have reached the conclusion that the position responsibilities of the role performed by the applicant were of a less " hands -on " technical nature than those of a Level 4 employee. I accept the evidence of Mr Hutchings Brosco that the role taken on by the applicant from August 2002 was " a corporate or business development role " and not " a technical role " 30 . I also accept the evidence that the applicant was still performing this role at 20 December 2002. [49] I accept the applicant's evidence that he performed a " technology transfer " function post August 2002 passing on his technical knowledge of the system he had been involved in developing to the staff who continued to work on it. I also accept that this role intensified immediately prior to his leaving his employment, at the request of his employer. I do not, however, find that this technology transfer function was the principal purpose for which the applicant was employed at the time notice was given of his termination. The applicant's principal purpose was the development of the business of the company including business planning marketing and sales planning. The applicant's role also was one that went far beyond the responsibilities of a Professional Information Technology Employee Level 4. It was his evidence that from August 2002 he was to be part of a four member executive committee for the company - although that committee never met 31 . [50] It was also his evidence that his duties included promotion of information technology (already developed) to other markets and development of business plans. The applicant's role, as described by all three witnesses, does not fall within the classification definition of a Level 4 employee (or any other classification) in the award, as claimed on the applicant's behalf. [51] The case of employees with technical expertise moving on to management or similar positions is not unusual. Whelan C had occasion to consider whether an employee in a similar position to the applicant was employed under award conditions and reached the following conclusion: "In my view these areas of responsibility surpass the requirements of a principal technical officer which relate primarily to a capacity for original and highly sophisticated technical work, an ability to be responsible for projects and the co-ordination of projects and the necessity to guide other employees performing technical work. Mr Richards was employed to both manage a department which was responsible for technical development and compliance and also to play a significant part in the company's future business development and ongoing reputation as an innovative developer of new and quality products. He was part of a management team, which required a role beyond the technical requirements of testing and developing products." 32 [52] Having taken into account all the evidence presented and the submissions put to me I determine that the applicant is an employee of the kind excluded by the operation of the relevant provisions of the Act by Regulation 30B(1)(f) of the Regulations. [53] An order dismissing the application for want of jurisdiction is attached. BY THE COMMISSION: COMMISSIONER Appearances : Mr Grinsell-Jones, with leave, for the employer Mr Long for the applicant. Hearing details: 2003. Canberra: March 18. Printed by authority of the Commonwealth Government Printer <Price code E> 1 [AW812692CRA] 2 [Exhibit G3] 3 [Exhibit L1] 4 [Exhibit G4] 5 [Exhibit G2 second page] 6 [Exhibit G6] 7 [Exhibit L2] 8 [paragraph 13 & 14, Exhibit L2] 9 [paragraphs 18 and 19 of Exhibit L2] 10 [paragraph 23, Exhibit L2] 11 [paragraph 26 of Exhibit L2] 12 [Transcript PN 151] 13 [second page of Exhibit G2] 14 [Transcript PN 20] 15 [Transcript PN226] 16 [Transcript PN230] 17 [Transcript PN233 & PN232] 18 [Transcript PN240-PN244] 19 [Transcript PN 274 - PN285] 20 [PR925731] 21 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 (Sheldon J); Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99, 101-102 (Ludeke J); Robinson v Roxburgh & Alexander Pty Ltd t/as Power Price (1988) 25 IR 1, 5-7 (Miller CIM); Re The Australian Workers' Union Construction, Maintenance and Services (W.A. Government) Award 1987 1991/12 CAR 68, Print K0748 (Peterson J, Keogh DP and Johnson C); Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 (Maidment J); Logan v Otis Elevator Co Pty Ltd , Unreported, Industrial Relations Court of Australia (Moore J), 20 June 1997. 22 [Exhibit G5] 23 [Transcript PN312 -313] 24 [IRCA 200/97] 25 [PR912075] 26 [Transcript PN 345] 27 [ Christie v Qantas Airways Ltd (60 IR 17)] 28 [PR925731] 29 Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 (Sheldon J); Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd (1973) 150 CAR 99, 101-102 (Ludeke J); Robinson v Roxburgh & Alexander Pty Ltd t/as Power Price (1988) 25 IR 1, 5-7 (Miller CIM); Re The Australian Workers' Union Construction, Maintenance and Services (W.A. Government) Award 1987 1991/12 CAR 68, Print K0748 (Peterson J, Keogh DP and Johnson C); Comdox (No. 272) Pty Ltd t/as Ronald Stead Golf v Dawson (1993) 49 IR 458 (Maidment J); Logan v Otis Elevator Co Pty Ltd , Unreported, Industrial Relations Court of Australia (Moore J), 20 June 1997. 30 [Exhibit G4 paragraph 7] 31 [Exhibit L2 paragraph 13] 32 [Whelan C, Richards v Backwell IXL Pty Ltd, Print Q4620 , 6 August 1998]