iiNet Limited

[2011] FWA 1282

[2011] FWA 1282

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

iiNet Limited
(AG2011/5545)

COMMISSIONER ROE MELBOURNE, 1 MARCH 2011

Application to terminate collective agreement-based transitional instrument.

Background

[1] This is an application under Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) for termination of a collective agreement based transitional instrument. The applicant is iiNet Limited (iiNet). The transitional instrument subject of the application is the Netspace Employee Collective Agreement 2008-2013 (the Agreement). The application was made on 3 February 2011.

[2] The Agreement subject of these proceedings was made under Section 327 of the Workplace Relations Act 1996 (the WR Act). The Agreement came into force seven days after it was approved by the Workplace Authority and remained in force for five years from that date. I am satisfied that the Agreement was approved by the Workplace Authority in 2008. The parties to the Agreement are Netspace Online Systems Pty Ltd and associated companies (Netspace) and those employees employed in the classifications contained in the Agreement.

[3] It is not contested and I accept that iiNet Limited acquired Netspace Online Systems Pty Ltd in 2010. I take it that as a result of this acquisition there was a succession, transmission or assignment of the business of Netspace to iiNet. By virtue of Part 2-8 of the Act, iiNet was bound by the Agreement on transmission of the business or part of the business, and continues to be bound by the Agreement. As a result I am satisfied that iiNet is a “person covered by the Agreement” that is sought to be terminated and hence can make the application to terminate under Section 222 of the Act.

[4] It is not contested and I accept that in the event that the application to terminate the Agreement was successful, the employees to whom the Agreement applies would, as result of the termination, then be covered by the iiNet Employee Partnership Agreement for Customer Service Staff 2010 (the iiNet Agreement). That agreement was approved on 12 October 2010 by Commissioner Cloghan to operate from 19 October 2010 with a nominal expiry date of 18 October 2014.

[5] On 16 February 2011 I requested some further information from iiNet. In response to this iiNet provided some further submissions and information on 21 February 2011. 1 The matter was heard on 22 February 2011. iiNet was represented at the hearing by Mr David Ward, HR Advisor employed by iiNet and also by Ms M Lo of Clayton Utz. I granted leave for Ms Lo to appear.

Submissions and supporting material

[6] Two statutory declarations of Mr D Ward, HR Advisor of iiNet Limited were filed in support of the Application. 2 As a result of the statutory declarations and the submissions made during proceedings I am satisfied that:

• 49 of iiNet’s employees are employed pursuant to the Agreement. A number of other employees who transferred from Netspace to iiNet were covered by AWAs which have now been terminated. As a result those employees are now covered by the iiNet Agreement. The consultation about the termination of the AWAs and the consultation about the termination of the Agreement occurred at the same time and as part of the same process.



• On 13 January 2011 the affected staff were advised by email that iiNet wished to terminate the Agreement, how they could access the iiNet Agreement for comparison purposes, and that employees would “be required to vote for termination of your existing agreement in order to be covered by the iiNet” agreement.



• Information sessions with affected staff were held between 17 and 20 January 2011. A presentation was made by management. 3 Employees had the opportunity to ask questions and were also advised about the voting process and that voting by email closed on 31 January 2011. Copies of the communications and paperwork were sent by express post mail to the 7 employees who were on leave.



• On 20 January 2011 employees were asked by email to return a “voting” form by email no later than 31 January 2011. That advice stated that “by completing this you are opting to terminate your current agreement and be employed under the iiNet Employee Partnership Agreement. You are under no duress to change agreements however if you wish to change to the new agreement please print and sign the bottom section.....”



• 42 out of the 49 affected employees voted in favour of terminating the Agreement. 7 employees abstained from voting.



• Employees were advised by Mr Ward at the meetings held between 17 and 20 January to the effect that “If your salary is not increased as a result of the EPA, iiNet will ensure that, regardless of the provisions of the EPA, your salary is not reduced. No employee will have their salary cut by the implementation of the EPA.” 4



• Employees were advised by Mr Ward at the meetings held between 17 and 20 January to the effect that: “if the majority of the staff who are covered by the Netspace Agreement agree to terminate the Agreement, then the Agreement will be terminated, and the EPA will apply to your employment.” 5

[7] At the conclusion of the proceedings I gave iiNet the opportunity to make any further submissions they might wish to make by 25 February 2011. On that date iiNet provided further submissions and a further statutory declaration from Mr David Ward. I will refer to this supplementary material as Exhibit ii5.

Legislation

[8] Item 15 of Schedule 3 of the Transitional Act provides that Subdivision C of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Subdivision C of Division 7 of Part 2-4 of the Act deals with termination of agreements by employers and employees. Section 219(1) provides that where an agreement covers a single employer, the employer and the employees may jointly agree to terminate it. By virtue of s.219(2) the termination has no effect unless it is approved by Fair Work Australia (FWA) under s.223. Procedural matters are set out in sections 220 to 222. Essentially, the relevant procedural requirements are as follows:

• An employer covered by an agreement may request employees to approve a proposed termination of the agreement by voting for it – s.220(1);



• The employer must take all reasonable steps to notify employees of the time and place of the vote and the voting method, and must give the employees a reasonable opportunity to decide whether they want to approve the proposed termination – s.220(2);



• The termination of a single-enterprise agreement is agreed to when a majority of employees who cast a valid vote approve the termination – s.221(1);



• If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA to terminate the Agreement – s.222(1); and



• The application must be made within fourteen days after the termination is agreed to, or within a further date, if FWA considers it fair to extend that period – s.222(3).

[9] I am satisfied that the Application has been made within 14 days and that iiNet is a person covered by the Agreement and is able to make the application. The requirements to make an application under Section 222 have been met.

[10] Section 223 provides as follows:

“When FWA 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, FWA must approve the termination if:

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

(d) FWA 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.”

[11] Section 220 provides as follows:

“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.”

General Conclusions

[12] There is no employee organisation covered by the Agreement.

[13] Save for two matters dealt with below the evidence referred to earlier establishes that the requirements set out in Section 223 have been met.

[14] The first matter which I have some concerns about is whether or not Section 220(2)(b) has been complied with as required by Section 223(a). That is did the employer give the employees a reasonable opportunity to decide whether they want to approve the proposed termination? The second matter which I have concerns about is whether or not Section 223(c) has been complied with. That is are there other reasonable grounds for believing that the employees have not agreed to the termination?

Did the employer give the employees a reasonable opportunity to decide whether they wanted to approve the proposed termination and or are there other reasonable grounds for believing that employees have not agreed to the termination?

[15] There is clearly no requirement in the legislation that employees must be better off overall as a result of the termination. However, it would be unusual for employees to vote to terminate an agreement if as a result of that termination they were significantly worse off. I formed the view on an examination of the Agreement and the iiNet Agreement that employees may be significantly worse off. For this reason I asked for more information about the opportunity given to employees to decide if they wanted to approve the termination. That is I requested more information about what employees were told in the process leading up to the vote.

[16] In my view if the employees were given inaccurate or incomplete information about the decision making process or about the effect of the vote or decision to terminate then this could constitute grounds for finding that employees did not have a reasonable opportunity to decide. In serious cases it could also form the basis for a conclusion that there are reasonable grounds for believing that employees have not agreed to the termination. It is clear that the word “agreement” implies informed and genuine consent. An agreement achieved by coercion or deception or in the absence of critical information cannot be an agreement.

[17] iiNet appears to support the position that the term “agreement” must be read as meaning “genuine agreement”. In the outline of submissions 6 iiNet argues that the evidence suggests that the employees have genuinely agreed and that there is no evidence to suggest otherwise.

[18] The legislation clearly envisages that there are circumstances where Section 221(1) and Section 223(b) have been complied with, that is where a majority of employees have cast a vote to approve the termination, but where there are reasonable grounds for believing that the employees have not agreed to the termination. If this were not the case then Section 223(c) would have no work to do. Essentially Section 221(1) sets out what level of agreement constitutes agreement. That is not every employee must agree but a majority of those voting is sufficient to constitute agreement. Section 223(c) may be activated where the common law requirements that agreement must be real not just apparent are relevant. To draw a conclusion that employees have not agreed to the termination when a majority have voted in favour of it would require evidence that the agreement was apparent but was not real. For example if the electorate was manipulated or artificial in some manner or if there was some inappropriate threat or coercion or if the employees were given false, misleading or inadequate information. The problem would have to be significant to be able to draw the conclusion that employees had not agreed to the termination.

[19] A situation where employees were given false, misleading or inadequate information could also lead to a conclusion that employees were not given a reasonable opportunity to make a decision as required by Section 223(a) and 220(2)(b).

[20] I identified upon a brief examination sixteen matters where it appeared that the iiNet Agreement disadvantaged employees when compared to the Agreement. I outlined these matters to the applicant. The matters can be summarised as follows:

ISSUE	NETSPACE AGREEMENT	IINET AGREEMENT
Ordinary Hours	38 hours	40 hours
Rest breaks	Two paid 15 mins breaks per day	No Provision
Averaging of ordinary hours	Agreed between company and employee	Over 12 month period
Overtime Penalty	50% first three hours 100% thereafter	Zero in respect to voluntary overtime. 50% in respect to all other overtime.
Shift penalties	Work after 8pm 15% loading	Some work after 8pm 10% loading
Saturday work	50% loading for most Saturday work	25% loading
Public Holiday work	100% loading	50% loading
Redundancy payment	16 weeks pay after 10 years	12 weeks pay after 10 years
Termination without notice	Confined to serious misconduct	Applies to a much wider range of matters
Evidence for personal sick leave	More stringent requirements than under Netspace Agreement
Annual Leave loading	17.5%	Nil
Disputes settlement	Arbitration available to either party to settle disputes	Arbitration not available to a party
Higher Duties Pay	After one day in higher role	No provision
Allowances	First Aid, Motor, & Telephone allowances detailed	No provision
Part Time additional hours	Silent. Additional hours receive overtime penalty.	Additional hours up to 38 at ordinary rates
Minimum salary rates	Customer Contact Officer $37,000 to $41,500 (approx) (46 of the 49 employees)	Customer Service Representative level $37,000 (46 of the 49 employees)

[21] I identified two matters where employees may be advantaged by the iiNet Agreement when compared to the Netspace Agreement. The iiNet Agreement provides for long service leave after 5 years instead of 7 years. The iiNet Agreement provides for some employees to be potentially classified as Customer Service Manager or Senior Customer Service Manager which are paid at a higher level than the Team Leader classification provided for in the Netspace Agreement.

[22] The presentation used by Mr Ward in the information sessions held with employees 7 only refers to one matter, annual leave loading, where employees might be disadvantaged. The presentation refers to the long service leave advantage I indentified above but also to the opportunity to access reward and recognition payments where certain targets are met, service payments, and the ability to cash out more annual leave. Mr Ward confirmed that the bonus and reward and recognition payments are not something which all employees are guaranteed of receiving as they are dependent upon meeting specified performance.8 The presentation also refers to the opportunity for promotion at some future date to Senior Customer Service Representative Classification.

[23] Mr Ward has given evidence that he told employees that

“Although the EPA contains different salary provisions to the Netscape Agreement, in most cases employee salaries will be increased under the Netspace Agreement. If your salary is not increased under the EPA, iiNet will ensure that, regardless of the provisions of the EPA, your salary is not reduced.” 9

[24] The EPA is a reference to the iiNet Agreement. It is clear from this and from the answers given to my questions during the proceedings that Mr Ward did not advise employees that the undertaking he had given that salaries will not be reduced upon transfer to the iiNet Agreement was not contained in the iiNet Agreement and hence was not enforceable or preserved from change by future management decision in the same manner as the entitlements in the Netspace Agreement. Furthermore, Mr Ward did not advise employees that the service payments and the reward and recognition payments are not part of the iiNet Agreement and hence are not enforceable or preserved from change by future management decision in the same manner as entitlements in the Netspace Agreement.

[25] Mr Ward attached a spreadsheet to his declaration 10 which he described as follows:

“a spreadsheet of the salaries that: (a) apply to employees under the Netspace Agreement (see column titled “Base Salary”); and (b) that would apply to employees under the EPA (see column titled “New Salary”).”

[26] It is clear, and was confirmed by iiNet in answer to my questions in proceedings, that the rates in the column titled “New Salary” are not the rates specified in the iiNet Agreement for the relevant classification but in fact contain additional service payments of up to $3,000 which are not specified in the iiNet Agreement. These higher, over agreement rates, were also the rates shown in the presentations given to employees by Mr Ward. 11

[27] An examination of the Base Salary rates which Mr Ward says applied to the affected employees under the Agreement shown in the spreadsheet 12 shows that 21 of the 46 affected employees (that is the total number of affected employees excluding the three classified as team leaders) were earning more under the Agreement than they would be entitled to as a minimum rate under the iiNet Agreement. In contrast, the spreadsheet provided by Mr Ward and the information he provided during proceedings suggested that only two employees were affected by the verbal commitment he gave employees that their salary would not be decreased. That is there were two employees who would have to rely on a commitment to pay more than required by the iiNet Agreement. In fact the commitment applied to almost half of the employees on the figures provided by iiNet. For reasons I discuss in the next paragraph the number earning more under the Agreement may in fact be considerably more than half of the affected employees.

[28] The “Base Rates” under the Agreement shown in the spreadsheet provided by Mr Ward are puzzling. Under the Agreement the rates are to be adjusted annually having regard to the Federal Minimum Wage adjustments. The lowest classification rate shown in the Agreement as at 2008 is $36,000. There have been at least two annual adjustments since the Agreement was made which would be likely to increase this rate above the $37,000 minimum rate in the iiNet Agreement. Yet there are rates shown for some affected employees in the spreadsheet provided by Mr Ward which are as low as $32,604. Some 22 employees are shown as having a Base Rate of less than $36,000.

[29] The spreadsheet provided by Mr Ward suggested that these 22 employees would receive a significant wage increase which is shown on the spreadsheet in a column under the heading “difference”. iiNet made it clear that this was the meaning of the column during the proceedings. 13 There seems little doubt that the spreadsheet greatly overstates the wage increases these 22 employees would entitled to as a result of the transfer to the iiNet Agreement. In most cases there would be no increase at all and in some cases there may be a decrease. The spreadsheet also overstates the increases even if the service payments outside the iiNet Agreement are taken into account.

[30] Looking at all of the evidence, including the copy of the presentation made, 14 I conclude that when Mr Ward made the following statement to employees at the information sessions he was referring to the rates shown on the spreadsheet not the actual rates shown in the Agreement:

“Although the EPA contains different salary provisions to the Netscape Agreement, in most cases employee salaries will be increased under the Netspace Agreement.” 15

[31] In the proceedings there were a number of statements made which reinforced this conclusion. 16

[32] In the statutory declaration provided by Mr Ward subsequent to the hearing of this matter, 17 Mr Ward states that: “At no stage during any of the January Meetings did I ever state that the salaries contained in the Power Point presentation form part of the terms of the EPA”. However, based on an examination of all the material before me it is probable that the affected employees would have had the impression that the salaries contained in the Power Point presentation were either part of the terms of the iiNet Agreement or that they would be enforceable and have the same status as the rates under their current Agreement in the event that they voted to terminate the Agreement.

[33] Overall I conclude that it is likely that employees were given information concerning the impact of the termination of the Agreement on salaries which was incomplete, or inaccurate, or misleading in significant respects.

[34] I do not know whether the commitments to service payments, reward and recognition payments and the guarantee of no decrease in base pay as a result of transfer to the iiNet Agreement have been made in writing or whether they form a part of the contract of employment of the affected employees. However, even if this were the case these conditions would not be preserved or be enforceable in the same manner as provisions in a collective enterprise agreement.

[35] I am satisfied that the affected employees were advised how to access the iiNet Agreement on the internet. There is no evidence that they were provided copies of or advised how to access the Netspace Agreement. When Mr Ward originally advised affected employees that iiNet wished to terminate the Agreement in an email sent on 13 January 2011 18 he also encouraged employees to compare the two agreements.

[36] Despite this it appears to me that employees did not receive adequate information about the extent to which they might be disadvantaged by the move to the iiNet Agreement. All except one of the significant disadvantages of the move were excluded from the presentation given to employees whilst all of the potential advantages were included. The different legal status and the capacity to alter some of the critical potentially beneficial conditions does not appear to have been explained to employees. The information concerning the affect on guaranteed minimum base salaries does not appear to have been accurate.

[37] iiNet drew my attention to an affidavit of Caitriona Hayes dated 23 September 2010 which was provided to FWA in support of the application for approval of the iiNet Agreement. I have read that affidavit and it confirms that:

• the service payments and reward and recognition payments are not a part of the iiNet Agreement,



• the reward and recognition payments average about $1000 per annum per customer service employee and that the payments actually received vary widely from zero to $6,000 depending upon performance,



• that my summary of the iiNet Agreement conditions in the earlier table is consistent with the view of iiNet in respect to ordinary hours, minimum rate for customer service representatives, public holiday penalties, shift penalties, and overtime penalties.

[38] In the supplementary material provided after the hearing 19 Mr Ward says that he encouraged employees to make their own comparison and analysis between the two agreements. He also says that there were queries raised by affected employees about some of the conditions matters which I have identified as disadvantaging employees and in particular there were queries about Saturday penalties, public holiday penalties, annual leave loading, evening loadings, and absence of first aid allowance. Mr Ward does not suggest that these queries were raised at every meeting. I have no reason to doubt that Mr Ward answered these queries accurately.

[39] iiNet in its submission stated that “staff were informed of the key differences between the Collective Agreement and the terms and conditions of employment which would apply to staff in if the Collective Agreement was terminated” at the January meetings. 20 I am satisfied from considering the evidence given in the proceedings that the presentation21 was the main way in which that was communicated. I am satisfied that this presentation did not provide employees with an accurate comparison. The inaccuracy was so significant that it could be described as misleading. The supplementary statement of Mr Ward made since the proceedings suggests that employees did raise some queries, the answers to which may have improved employees’ understanding. However, this information was not sufficiently comprehensive to enable me to draw the conclusion that employees were provided with an accurate comparison. I conclude that employees were provided with information that was in important material aspects misleading, or inaccurate, or incomplete. This may have affected the outcome of the voting process.

[40] The effect of the termination of the Agreement is not a consideration that is required of FWA under Part 2-4 Chapter 7 Subdivision C of the Act. I am only concerned here about whether or not employees had a reasonable opportunity to decide about the termination and or whether I have reasonable grounds for believing that employees have not agreed to the termination.

[41] When there is an application for the approval of a new agreement under the Act the Act sets out a number of requirements which have to be met including consideration as to whether or not employees will be Better Off Overall, whether or not there is genuine agreement and whether or not certain specific requirements in respect to the information and explanation available to employees prior to voting have been met. The provisions for the termination of an agreement do not include such detailed requirements.

[42] I do not read into the Act and I have not assumed that there is any specific requirement about the particular information which must be provided to employees prior to making a decision to terminate the agreement. However, the absence of such specific requirements does not mean that there are no requirements at all. I must be satisfied that the employer gave the employees a reasonable opportunity to decide whether they want to approve the proposed termination. If employees were given information which to a significant extent was misleading or inaccurate or inadequate this might be grounds for finding that there was not a reasonable opportunity to decide. Given the lack of any statutory requirement about the nature of the information given any deficiencies would have to be significant and not simply matters of detail. I also need to be satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination. I would be unlikely to be satisfied of this if the agreement was not genuine agreement or informed consent. Again in the absence of any statutory requirement any deficiencies in this regard would have to be significant.

[43] I consider that the evidence I have considered so far in this matter is insufficient for me to draw the conclusion that the inaccuracy and or inadequacy of the information provided to employees was so serious that employees were not given a reasonable opportunity to decide or alternatively that there was no agreement.

[44] It is conceivable that employees were aware of the relevant information and weighed up the issues and made a decision that the assurances given by the employer about the benefits outside the agreement in respect to pay maintenance, service payments and recognition and reward payments were sufficient to satisfy them, notwithstanding the different legal status of those matters. If this were the case then I would be satisfied that employees had been provided with a reasonable opportunity to decide and that there was a genuine agreement notwithstanding my finding that the information provided by the employer was inadequate or incomplete or misleading. The evidence of Mr Ward that employees asked questions about the matters where they would be disadvantaged supports this possibility.

[45] On the other hand, if I had sufficient direct evidence from employees that employees were influenced by the information given by the employer and would have considered voting differently if they had been given more complete and accurate information then I would have reached the conclusion that the termination should not be approved on the grounds that employees did not have a reasonable opportunity to decide and/or that they had not agreed to the termination. However, I have no such evidence. For the reasons set out earlier I do have sufficient evidence to have strong concerns as to whether or not there was informed consent and a reasonable opportunity to decide but I have insufficient evidence to draw a conclusion.

[46] In the submissions provided by iiNet following the hearing of this matter, 22 iiNet correctly observe that “not one employee has indicated to the Applicant or the Court that the employee was misled by the Applicant in relation to the casting of votes.” Mr Ward states in his additional statutory declaration provided following the hearing of this matter23 that “no employee has indicated to me that the employee felt misled by the conduct of iiNet in relation to the termination of the Netspace Agreement”.

[47] I did not require notice of the hearing of this matter to be provided to the affected employees. I am not satisfied that they were aware of the hearing. I have decided that it is appropriate that the affected employees be given the opportunity to make representations in this matter should they wish to do so.

[48] In the event that I receive no such representations then I will issue a decision to the following effect:

Section 220(2)(b) has been complied with as required by Section 223(a). That is the employer gave the employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. Further that Section 223(c) has been complied with in that there no other reasonable grounds for believing that the employees have not agreed to the termination. In these circumstances I would therefore approve the termination of the Agreement operative from the date of the decision and would order accordingly.

[49] In the event that I do receive representations from affected employees I would intend to call the matter on for further hearing prior to issuing a final decision in this matter.

[50] I will therefore issue directions in this matter that iiNet distribute a copy of this decision together with a covering letter from myself to each of the 49 affected employees within three days of this decision. Such material may be distributed by email or express post where email is not available. The covering letter will advise the affected employees that they have an opportunity within seven days of the date of the email or express post distribution to contact me confidentially by return email or post if they now have any concerns about the termination of the Agreement and also requesting them to outline the nature of those concerns.

[51] I publish these directions separately.

COMMISSIONER

Appearances:

Ms M Lo of Clayton Utz and Mr D Ward, HR Advisor employed by iiNet for the Respondent.

Hearing details:

2011

Melbourne

22 February

 1   Exhibit ii2.

 2   Exhibit ii3 and Exhibit ii4.

 3   Exhibit ii1.

 4   Exhibit ii4 at point 3.

 5   Exhibit ii4 at paragraph 3.

 6   Exhibit ii2 at paragraph 18 and 19.

 7   Exhibit ii1.

 8   PN161 to PN169.

 9   Exhibit ii4 at paragraph 3.

 10   Exhibit ii4.

 11   Exhibit ii1.

 12   Exhibit ii4.

 13   PN12 to PN14.

 14   Exhibit ii1.

 15   Exhibit ii4 at paragraph 3.

 16   For example PN12 where Ms Lo for iiNet states that “the new salary is that... applies under the EPA agreement” and PN 13 “you will see from the figures that bar two employees there is an increase in the base salary...there is an undertaking that has been made to employees that they would not be... any reduction in pay in going across to the EPA.”

 17   Exhibit ii5 at paragraph 13.

 18   Attachment to Exhibit ii3.

 19   Exhibit ii5.

 20   Exhibit ii2 at paragraph 12(b).

 21   Exhibit ii1.

 22   Exhibit ii5 at paragraph 12(c).

 23   Exhibit ii5.

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