ADANT Services Group Pty Ltd T/A Australian Wind and Solar

[2019] FWC 6232

[2019] FWC 6232

The attached document wholly replaces the document previously issued with the code [2019] FWCA 5316 on 6 September 2019 to correct document referencing.

Chambers to Deputy President Masson

6 September 2019

[2019] FWC 6232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

ADANT Services Group Pty Ltd T/A Australian Wind and Solar
(AG2019/1616)

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 SEPTEMBER 2019

Application for termination of the ADANT Services Group Pty Ltd (Australian Wind and Solar) and ETU Enterprise Agreement 2018-2021.

[1] ADANT Services Group Pty Ltd T/A Australian Wind and Solar (the Applicant) has applied, pursuant to s 222 of the Fair Work Act 2009 (Act), to terminate the ADANT Services Group Pty Ltd (Australian Wind and Solar) and ETU Enterprise Agreement 2018-2021 1 (the Agreement). The Agreement is a single enterprise agreement made pursuant to s 185 of the Act and its nominal expiry date is 31 March 2021.

[2] The Agreement is expressed to cover ADANT Services Group Pty Ltd and its employees employed in any of the classifications within the Agreement that are ordinarily based in Victoria and the Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU).

[3] The application was filed by Mr Adam Falzon, Director of ADANT Services Pty Ltd, who provided a statutory declaration in support of the Application.

[4] As the ETU is an organisation covered by the Agreement my Chambers sent correspondence to the ETU on the 22 May 2019 seeking advice as to whether it objects to the Application. In correspondence to my Chambers on 28 May, 2019, the ETU advised that it opposes the application, and wished to be heard.

[5] The application was listed for hearing on 22 July and 15 August 2019. Mr Falzon appeared on behalf of the Applicant and gave evidence along with Ms Stephanie Morris. Mr Scott Riches appeared for the ETU and called evidence from a former employee of the Applicant, Mr Bruce McIlroy. Mr Christian Lavilla, a current employee of the Applicant, was ordered by the Commission to appear and give evidence in relation to the application.

Evidence and submission

[6] The Applicant is a small business based in Melbourne and is engaged in the electrical contracting industry in service, maintenance, installation and construction activities including the supply and installation of solar panel systems.

[7] As stated above, the Applicant is party to the Agreement which came into operation on 17 January 2019 and has a nominal expiry date of 31 March 2021. Mr Falzon states that the Applicant entered into the Agreement with the ETU with an expectation that other solar contracting companies, with which the Applicant competes, would also be required to enter into similar agreements with the ETU thus creating a level playing field of rates and conditions in the residential solar contracting sector.

[8] Mr Falzon went on to state in his evidence that no other solar companies are paying ‘EBA rates’ which makes the Applicant uncompetitive in its tenders in the residential solar retailer and installers market. 2 The Applicant determined that in order to remain competitive it would need to terminate the operation of the Agreement and revert to the rates and conditions provided by the Electrical, Electronic and Communications Contracting Award 20103 (the Award).

[9] On 1 April 2019 Mr Falzon wrote to Mr Ivan Balta, who is the Assistant Secretary of the ETU, and advised him of the difficult competitive position the Applicant faced due to the Agreement’s operation, and foreshadowed the conduct of a ballot of employees to terminate the Agreement. 4

[10] On 3 April 2019 Mr Falzon sent an email to employees covered by the Agreement to which was attached a letter advising of a ballot to be conducted on 29 April 2019 on the termination of the Agreement. The email also advised employees of a meeting to be held on 4 April 2019 to discuss the implications of terminating the Agreement and reverting to the Award. A copy of the Award was also provided to employees in that correspondence. 5

[11] On 29 April 2019 a vote was conducted at a meeting at which Mr Falzon and three of the four employees covered by the Agreement attended. The ballot, the circumstances and conduct of which were contested, resulted in two employees voting in favour of termination of the Agreement. One employee, Mr McIlroy, voted against termination of the Agreement. Following the conduct of the vote, Mr McIlroy’s employment with the Applicant ceased, the circumstances surrounding which were also in contest.

[12] The application to terminate the Agreement was subsequently filed on 16 May 2019.

[13] It is necessary to detail the evidence of each the three witnesses in respect of the contested events surrounding the conduct of the ballot, as those events are central to the ETU’s objection to the application to terminate the Agreement.

Evidence of Mr Bruce McIlroy

[14] Mr McIlroy commenced employment with the Applicant on 24 September 2018 as an electrician. He confirmed receipt of Mr Falzon’s email of 3 April 2019 and also the receipt of proposed pay rates from Ms Elizabeth Falzon on 17 April 2019 that would apply if the Agreement were terminated. Mr McIlroy confirmed that the day after receiving the proposed pay rates from Ms Falzon, he met with the three other employees covered by the Agreement and that during discussion of the new proposed pay rates they agreed to vote against termination of the Agreement. 6 Mr McIlroy clarified during his aural evidence that he conferred with his colleagues regarding their voting intentions in advance of the vote on 29 August 2019, but there was not a ‘plan’ to all vote a particular way7.

[15] Mr McIlroy states that on 29 April 2019 he attended the meeting scheduled to vote on termination of the Agreement and when asked by Mr Falzon to vote, he advised ‘no’ and that he would not work for Award rates. He further states that Mr Falzon responded to him by saying ‘then you finish up today’, and instructed him to go and see the secretary Ms Stephanie Morris to finalise his pay. Following this exchange Mr McIlroy states that Mr Falzon then asked one of the other employees Mr Hook ‘what about you, are you leaving today’. 8

[16] Mr McIlroy states that he left the meeting prior to completion of the vote and was not certain of whether the other employees present supported termination of the Agreement. 9 He states that he went to see Ms Morris but that she did not have the authority to sort out his pay.10 Later that morning after getting a taxi home from work he emailed Ms Falzon advising her that he had been asked to leave and requested his final pay and separation certificate be processed.11 Ms Falzon responded in an email dated 30 April 2019 agreeing to the requests.12

[17] At 10.16 am on 7 May 2019 Ms Falzon sent an email 13 to Mr McIlroy to which was attached a Separation Certificate.14 The Separation Certificate stated that the reason for the separation was that Mr McIlroy ‘Did not want to change from EBA to Award’. The email also advised Mr McIlroy that his final entitlements included a deduction of one week’s pay for notice not worked. Mr McIlroy responded to Ms Falzon at 1.03pm on the same day in the following terms;

‘Hi there Lis, there seems to be some confusion in regards to my termination of employment.

Immediately after rejecting the request to vote ‘yes’ to exit from the current EBA, I was told ‘you will be finishing today then’.

My offer to work on that day was refused and Adam made it clear I was to finish immediately.

I therefore believe that the company owes me a weeks notice pay after asking me to leave.

………..’ 15

[18] A subsequent email exchange then occurred between Mr McIlroy and Ms Falzon as to Mr McIlroy’s entitlement to a week’s pay in lieu of notice, which McIlroy asserted he was entitled to having been dismissed by Mr Falzon. Ms Falzon offered Mr McIlroy the opportunity to work out the weeks’ notice. 16 That offer did not result in Mr McIlroy working out the week’s notice.

[19] Mr McIlroy was adamant during cross-examination by Mr Falzon that he had been dismissed by Mr Falzon as a consequence of his expressed attitude to working under Award rates of pay and resisted the proposition put that he had in fact resigned.

Evidence of Mr Adam Falzon

[20] Mr Falzon stated in his evidence that the meeting conducted on 29 April 2019 involved himself and three employees, Messrs McIlroy, Lavilla and Hook. Mr Falzon’s recollection of the ballot process was that after he had made some preliminary remarks he then requested a show of hands from the three employees. Mr Falzon said in his witness statement that the vote was conducted by way of a show of hands 17 but clarified in his aural evidence that Mr McIlroy stated his position rather than voting by show of hands.18 He further states that when the two other employees indicated support for termination of the Agreement, Mr McIlroy stated that he was opposed to the Agreement’s termination and would not work for Award rates, following which statement Mr McIlroy left the meeting.19 Mr Falzon was of the view that Mr McIlroy had resigned as a consequence of the vote outcome.

[21] In relation to events that occurred subsequent to the ballot, Mr Falzon states that the Applicant did not engage with Mr McIlroy’s claims made in various emails that he had been dismissed. This decision not to engage was made for the reason that the Applicant did not want to debate the circumstances of Mr McIlroy’s employment termination and ‘fuel that fire’. That decision not to formally rebut Mr McIlroy’s claims, save for the Separation Certificate provided, was not an admission or concession by the Applicant to the claims of dismissal made by Mr McIlroy. 20

Evidence of Ms Stephanie Morris

[22] Ms Morris states that she was present on the day of the meeting on 29 April 2019. She did not participate in the meeting. She states that Mr McIlroy came and saw her following his participation in the meeting to say goodbye to her. According to Ms Morris, Mr McIlroy did not disclose to her the reasons for his leaving the employment of the Applicant on that day. 21

Evidence of Mr Christian Lavilla

[23] Mr Lavilla is an electrical apprentice employed by the Applicant. He confirmed in his evidence that he received the email from Mr Falzon on 3 April 2019 and also confirmed his participation in a meeting on 4 April 2019 at which the termination of the Agreement was discussed. 22

[24] Mr Lavilla states that while not told or pressured by anyone as to how to vote, Mr McIlroy spoke to all of the employees covered by the Agreement in the lead up to the vote on the 29 April 2019, and encouraged them to each vote against the termination of the Agreement. 23 Mr Lavilla, while initially planning to vote against termination of the Agreement changed his mind when he became aware of the pay rates that would apply to him.24

[25] Mr Lavilla states that during the meeting held on 29 April 2019 the three employees present were asked by Mr Falzon to indicate whether they voted for or against termination of the Agreement. According to Mr Lavilla he voted first and in doing so voted in favour of terminating the Agreement. Mr McIlroy then voted ‘no’ and in doing so stated that he was ‘not going to work for those rates’ to which Mr Falzon then replied ‘you could be finishing up today’. According to Mr Lavilla, Mr McIlroy then left the meeting following which the remaining employee Mr Hook voted in favour of termination of the Agreement. 25

[26] When pressed by Mr Riches as to the exchange that took place between Mr McIlroy and Mr Falzon during the meeting on 29 April 2019, Mr Lavilla confirmed that his recollection was that Mr Falzon said ‘you could be finishing today’ and not ‘you can finish today’ as stated by Mr McIlroy. 26

ETU Submissions

[27] The ETU submit that the ballot on 29 April 2019 was conducted in a manner that applied duress to employees. This ‘duress and threat’ arose from the alleged termination of Mr McIlroy following his expression of opposition to the termination of the Agreement during the meeting held on 29 April 2019. The ETU submit that in circumstances where the agreement of employees to the termination of the agreement was secured by threat of termination of employment it cannot be said that they ‘genuinely agreed’ to the termination of agreement. Consequently, the Commission cannot be satisfied that the requirements of ss220 and 221 of the Act have been met.

[28] It is further submitted by the ETU that in light of the circumstances of the ballot conducted on 29 April 2019, the Commission cannot be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination of the agreement per s223(c) of the Act. The ETU finally submit that in the circumstances under which employees cast their vote it cannot be said that it is appropriate to approve the termination of the Agreement as required by s 223(d) of the Act.

Applicant Submissions

[29] The Applicant submits that the statutory requirements were met in that employees were notified of the ballot details in correspondence dated 3 April 2019, were provided with a copy of the Award, were given details of pay rates that would apply following termination of the Agreement and were given an opportunity to meet and discuss the implications of the proposed change during a meeting held on 4 April 2019. They also had time to consider the proposal to terminate the Agreement in the weeks prior to the vote held on 29 April 2019.

[30] The Applicant outlined the challenging competitive position it faced as a result of entering into the Agreement and claimed that none of its competitors were applying ‘EBA rates’. This placed the Applicant at a competitive disadvantage when bidding against companies applying Award rates and conditions. This information was, according to the Applicant, provided to employees as part of the communication regarding the proposed termination of the Agreement. The Applicant further submits that it did not pressure employees to vote in a particular manner, and that if Mr McIlroy felt under any pressure or duress in the lead up to the vote on 29 April 2019 he could have sought assistance from the ETU.

[31] The Applicant rejects the ETU submission that the manner in which the ballot was conducted had the effect of applying any ‘duress or threat’ to employees or that Mr McIlroy was terminated during the meeting on 29 April 2019. Rather, he became upset and elected to resign when confronted with the prospect that his rates and conditions would revert to the Award. The Applicant referred in particular to the evidence of Mr Lavilla as to the exchange that occurred between Mr Falzon and Mr McIlroy. The Applicant submits that they accepted Mr McIlroy’s statement during the meeting as a resignation and treated it as such as evidenced by the Separation Certificate.

[32] The Applicant also refers to the unreliability of Mr McIlroy’s evidence and uses the example of the alleged instruction given by Mr Falzon to Mr McIlroy during the meeting on 29 April 2019 that he go and see Ms Morris to have his termination pay sorted out. The Applicant submits that Ms Morris is not authorised to process pays and as such no instruction to that effect would have been given by Mr Falzon.

Statutory Provisions

[33] The relevant provisions of the Act are as follows:

“220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221  When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2)  If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration

[34] I now deal with each of the relevant statutory provisions.

Section 222(1) Application for approval

[35] The application has been made by the Applicant. This entity was the employer of employees covered by the Agreement. It is a party to the Agreement, has standing to make the application, and has done so. I am satisfied that s 222(1) has been complied with.

Section 222(2) Material to accompany application

[36] As required by rule 26 of the Fair Work Commission Rules 2013, the application has been accompanied by a statutory declaration in the approved form by Mr Falzon as an officer or authorised employee of the applicant setting out the basis on which the Commission can be satisfied that the requirements of section 223 of the FW Act have been met. I am satisfied that s 222(2) has been complied with.

Section 222(3) When application must be made

[37] The application was made on 16 May 2019. The evidence of Mr Falzon, which I accept, was that the termination was agreed to on 29 April 2019. The application has consequently not been made within 14 days after the termination was agreed. To have complied with the requirements of Section 222(3)(a) would have required the application to have been filed on or by 14 May 2019.

[38] Having regard to the fact that the Applicant is a small business and that it has limited understanding of Commission procedures, and noting that no objection was raised by the ETU on this point, I consider it fair in all the circumstances to extend the period within which the application may be made to 16 May 2019. I am satisfied that the requirements of s 222(3) are met.

Section 223(a) Reasonable opportunity to decide

[39] On the material before me, and in particular the evidence of Mr Falzon and Mr Lavilla, it is clear that employees were notified of the voting arrangements in correspondence from the Applicant on 3 April 2019, that employees were provided with all relevant materials, that a meeting was held on 4 April 2019 at which the proposal to terminate the Agreement was discussed with employees and that employees had a reasonable period prior to the vote on 29 April 2019 to consider the proposed termination of the Agreement.

[40] I am consequently satisfied that the employer complied with the requirements of s 223(a).

Section 223(b) and (c) Agreement by employees

[41] It is not in issue that the actual result of the vote on the termination of the Agreement conducted on 29 April 2019 was that of 2:1 in favour of its termination. Rather, it is the manner in which the ballot was conducted that the ETU has put in issue. It contends that the vote was conducted in a manner that applied duress to the participants which led to the particular outcome. The ETU specifically contends that Mr McIlroy was dismissed as a consequence of indicating his opposition to the Agreement’s termination and that such dismissal influenced the outcome of the vote.

[42] It is consequently necessary for me to determine whether the vote was conducted in a manner that prejudiced the ultimate result. If I am satisfied that the manner in which the vote was conducted prejudiced the result than it cannot be said in my view that; employees ‘agreed’ to the termination of the Agreement; or that there were no other reasonable grounds for believing that employees had not agreed to the termination of the Agreement.

[43] The evidence from each of the three relevant witnesses, Messrs Falzon, McIlroy and Lavilla was far from consistent. Mr Falzon for example stated that his recollection was that the three employees voted at the same time, two of the employees voting by a show of hands while Mr McIlroy verbalised his opposition to the Agreement termination. Following the vote result, according to Mr Falzon, Mr McIlroy became agitated, indicated that he would not work for the Award rates, resigned and left the meeting.

[44] Mr McIlroy’s version of events strongly contrasts with Mr Falzon’s version in that he says he voted first against the termination of the Agreement, indicated his unwillingness to work for Award rates at which point he states Mr Falzon said ‘then you finish up today’ which Mr McIlroy took as a dismissal. He further states that he was unaware of the vote result at the point he left the meeting.

[45] As for Mr Lavilla, his recollection is different again. He recalls that he voted first in favour of termination of the Agreement following which Mr McIlroy indicated his position of opposing termination of the Agreement and his unwillingness to work for the Award rates of pay. This according to Mr Lavilla led to the exchange between Mr McIlroy and Mr Falzon in which Mr Falzon stated to Mr McIlroy ‘then you could be finishing today’. Following this exchange, according to Mr Lavilla, Mr McIlroy left the meeting prior to Mr Hook voting in support of the termination of the Agreement.

[46] I find Mr Falzon’s recollection of events to be less reliable as it differs from both Mr Lavilla’s and Mr McIlroy’s versions in one key respect and that is the timing of Mr McIlroy’s departure from the meeting relative to completion of the vote. On Mr Lavilla’s aural evidence, which I found to be credible, Mr Hook was yet to vote at the point Mr McIlroy left the meeting. This accords with Mr McIlroy’s version as to the vote having not been completed at the point he left the meeting. By contrast Mr Falzon states that Mr McIlroy left the meeting after the vote was completed. I prefer the evidence of Mr Lavilla and Mr McIlroy, at least to the extent that their evidence aligned as to Mr McIlroy having left the meeting before the vote had been completed.

[47] As regards the exchange that occurred between Mr Falzon and Mr McIlroy during the meeting, Mr McIlroy gave evidence of various statements made by Mr Falzon including the following words directed to Mr McIlroy, ‘then you finish up today’, which followed Mr McIlroy’s stating his unwillingness to work for Award rates of pay. Mr Lavilla’s evidence, which I prefer, indicated a slightly different exchange in that he recalled Mr Falzon stating to Mr McIlroy that ‘you could be finishing today’ and not ‘you can finish today’.

[48] The evidence of Mr McIlroy’s conduct after the ballot in terms of his email exchanges with Ms Falzon is supportive of his evidence as to his belief that he was dismissed by Mr Falzon. That belief does not however mean that the dismissal was at Mr Falzon’s initiative which Mr Falzon strongly denied. Ultimately however for reasons that follow it is not necessary, nor is it appropriate, for me to resolve the contest over whether Mr McIlroy was dismissed by Mr Falzon or resigned.

[49] Having considered the evidence I am satisfied that in conducting the vote at the meeting of 29 April 2019 Mr Falzon invited employees to vote for or against termination of the Agreement. I am further satisfied on the evidence of Mr Lavilla, which I have no reason to doubt, that following his voting in favour of termination of the Agreement, Mr McIlroy then voted against the termination. In doing so Mr McIlroy expressed a strong view that he was unwilling to work for Award rates. There followed an exchange between Mr Falzon and Mr McIlroy during which Mr Falzon indicated that if Mr McIlroy was unwilling to work for Award rates he “could be finishing today’. As to the balance of the exchange between Mr Falzon and Mr McIlroy, Mr Lavilla did not support Mr McIlroy’s evidence that Mr Falzon then questioned Mr Hook as to whether he also ‘wanted to finish up that day’. I found this aspect of Mr McIlroy’s evidence unconvincing along with his statement that he had been directed by Mr Falzon to see Ms Morris to have his termination pay made up.

[50] There is significant doubt as to whether the phrase used by Mr Falzon to Mr McIlroythat he ‘could be finishing today’ was intended to effect Mr McIlroy’s dismissal. Without formally determining the issue I am prepared to accept a more benign interpretation of the exchange. That is, Mr Falzon’s statement to Mr McIlroy in the heat of the meeting clumsily sought to communicate that depending on the vote outcome a choice was available to him as to whether he worked for Award rates or resigned. This interpretation is more consistent with the exchange having occurred prior to completion of rather than following the outcome of the vote.

[51] I am further satisfied that following the above-referred exchange Mr McIlroy left the meeting prior to Mr Hook casting his vote, spoke briefly with Ms Morris, and then left the site by taxi. Following Mr McIlroy’s departure from the meeting Mr Hook cast his vote in favour of termination of the Agreement.

[52] Having considered the evidence, much of it in conflict, I am satisfied that the meeting held to vote for termination of the Agreement was infected by an untidy exchange between Mr McIlroy and Mr Falzon. Even if it is accepted that the words of Mr Falzon were not intended to effect Mr McIlroy’s dismissal there is a reasonable basis to conclude that the exchange may have prejudiced the outcome of the vote, given that Mr Hook had not yet cast his vote at the point Mr McIlroy left the meeting. In these circumstances I do not accept that the vote was cast in an atmosphere free of pressure.

[53] As Mr Hook did not give evidence in the proceedings no findings can be made as to what impact the exchange between Mr Falzon and Mr McIlroy had on his vote. That is not the point however. The vote should have been conducted in a manner that was free of emotion or pressure. I am not satisfied that occurred. Having reached this conclusion I am consequently not satisfied that employees ‘agreed’ to the termination of the Agreement; or that there were no other reasonable grounds for believing that employees had not agreed to the termination of the Agreement.

[54] Having reached this conclusion I am not satisfied that the requirements of ss 223(b) and (c) are met.

Section 223(d) Whether appropriate to terminate the Agreement

[55] Having reached my conclusion in relation to the statutory requirements of ss 223(b) and (c) not having been met it is unnecessary for me to deal with s 223(d).

Conclusion

[56] For the reasons outlined above the application to terminate the Agreement is dismissed. An order giving effect to this decision is separately issued in PR712085.

DEPUTY PRESIDENT

Appearances:

A. Falzon for the Applicant.

S. Riches for the ETU.

Hearing details:

2019
Melbourne
22 July & 15 August

Printed by authority of the Commonwealth Government Printer

<AE501357  PR712102>

 1   PR703914

 2   ExhibitA1, Witness Statement of Mr. Adam Falzon, dated 27 June 2019, paragraph 6

 3   MA000025

 4   Exhibit A2, Email to Mr Ivan Balta, dated 1 April 2019

 5   Exhibit R1, Witness Statement of Mr Bruce McIlroy, dated 21 June 2019, Attachment BM1

 6   Exhibit R1, paragraph 8

 7   Transcript at PN445

 8   Ibid, paragraph 9 -10, Transcript at PN462

 9   Transcript at PN458

 10   Transcript at PN462-PN466

 11   Ibid, Attachment BM3, Email to Ms Falzon dated 29 April 2019,

 12   Ibid, Attachment BM4, Email from Ms Falzon dated 30 April 2019

 13   Ibid, Attachment BM5 Emails exchanged between Mr McIlroy and Ms Falzon

 14   Ibid, Attachment BM5 Separation Certificate

 15   Ibid, Attachment BM5 Emails exchanged between Mr McIlroy and Ms Falzon

 16   Ibid

 17   Exhibit A1 at paragraph 8

 18   Transcript at PN203

 19   Ibid

 20   Transcript at PN209-PN218

 21   Ibid at PN293

 22   Exhibit A4, Witness Statement of Mr Christian Lavilla, dated 31 July 2019, paragraph 3-4

 23   Ibid, paragraph 5-6

 24   Ibid, paragraph 7

 25   Transcript of 15 August 2019 at PN66-PN 69, PN86-PN94

 26   Ibid at PN75-PN76