Lynette Belcher v Monash City Council T/A City of Monash

[2015] FWC 5892

[2015] FWC 5892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Lynette Belcher
v
Monash City Council T/A City of Monash
(C2015/2780)

Local government administration
COMMISSIONER BISSETT	MELBOURNE, 3 SEPTEMBER 2015

Alleged dispute about any matters arising under the enterprise agreement - redeployment options - right to redundancy.

[1] Ms Lynette Belcher is employed by Monash City Council (the Council). She worked in the Family Day Care area. In October 2014, as a result of a restructuring of the area, two administrative staff (Ms Belcher and a colleague) were advised that the total administrative hours in the area would be reduced by an equivalent 1.09 full time equivalent (FTE) from 52 hours to 22 hours per week. Ms Belcher had previously undertaken the administrative work for 30 hours per week in conjunction with another administrative staff member who also worked part time hours. Staff were advised that as a result of the restructure (as well as some changes in the educators area) there may be some redundancies but that the Council’s primary objective was to find suitable redeployment for staff adversely effected by the change.

[2] Ms Belcher says that it has not been possible to find her a suitable position for redeployment and now seeks access to redundancy in accordance with the provisions of the Monash City Council Enterprise Agreement No.7, 2013 (the Agreement).

[3] The matter before the Commission is whether Ms Belcher has access to redundancy because no suitable position is available for her redeployment.

[4] Ms Jardine of Counsel was given permission to represent Ms Belcher. Mr Albert of Counsel was given permission to represent the Council.

[5] Ms Belcher gave evidence on her own behalf. Evidence was given for the Council by Mr Lucas Gosling, Acting Manager, Children, Youth and Family Services; Ms Jennifer Donegan, Coordinator Family Day Care and Mr Frank Rog, Executive Manager Human Resources.

The Agreement

[6] Section 4 of the Agreement sets out arrangements for staff management in redundancy situations. Section 4.2 states:

4.2 Workforce Management

It is the intention of this part to establish a process to provide for the consistent and equitable management of permanent Employees whose positions are no longer required to serve the operational needs of Council and to provide entitlements and benefits for Employees who may subsequently be retrenched.

The parties agree that, having regard to the overall composition of the Council workforce, Council will, in the first instance, assess the opportunity and suitability of any surplus Employee for redeployment, before any decision is taken to effect Retrenchment.

The Monash City Council recognises that on occasions there will be Employees who have special needs and who will require independent specialist assistance to help them reach decisions which are in their best interests. Council accepts its responsibility to such Employees and will accordingly provide the necessary levels of support and encourage representation.

Surplus Employees

A position and its incumbent may be deemed to be surplus to the operational requirements of Council when the role performed by that position is no longer required and Council has informed the Employee in writing of the discontinuation, or intended discontinuation, of the position.

Where Council has advised an Employee of their surplus status, Council will commence work with the Employee prior to the date of discontinuation to examine redeployment and Retrenchment options as well as the need for any specialist support services.

Council will implement Retrenchment, in accordance with the provisions contained within Appendix 1, Part A of this Agreement, immediately a position is declared surplus in circumstances where it considers it unlikely that redeployment may be achieved and/or the skills of the Employee will be required.

Council may defer action to retrench a surplus Employee where it considers that there is a reasonable prospect of that Employee’s skills being applied in a position consistent with the Employees classification level and previous employment profile. An aggregate period of three months will be available to the Council to work with the Employee in examining opportunities for redeployment.

During any period in which an Employee is under assessment for redeployment, the Employee will be assigned temporary duties consistent with their classification level. Pre-existing salary and conditions of employment shall be maintained during this period.

Provided the Council has had the opportunity, where required, to work with the Employee for a period of three months following the date on which he or she became surplus, the Employee shall have a right to redundancy where the Monash City Council has not identified a suitable position for redeployment. A suitable position is one which is consistent with the Employee’s classification level and previous employment profile.

[7] In accordance with the final paragraph of clause 4.2 of the Agreement Ms Belcher says that the Council has not been able to identify a suitable position for redeployment for her and that she is therefore entitled to redundancy.

[8] Council says that it has identified suitable positions consistent with Ms Belcher’s ‘classification level and previous employment profile.’ It says that Ms Belcher has refused the positions offered and that she has no entitlement to redundancy in these circumstances.

Jurisdiction

[9] The issue in dispute is if the positions offered to Ms Belcher are suitable redeployment options, that is, are consistent with her previous employment profile.

[10] I am satisfied that the matter in dispute is a matter arising under the Agreement, in particular under clause 4.2 of the Agreement. Further, I am satisfied that the Resolution of Disputes Procedure at clause 3.3 of the Agreement has been followed.

[11] I therefore find that I have jurisdiction to deal with the dispute.

Approach to the dispute

[12] In resolving the matter in dispute there are three related questions to be answered:

• What does ‘consistent with the Employee’s classification level and previous employment profile’ mean as used in clause 4.2 of the Agreement?



• What was Ms Belcher’s ‘previous employment profile’?



• Were any of the positions offered to her consistent with her previous employment profile?

[13] I deal with each of these issues separately below.

Ms Belcher’s employment

[14] Ms Belcher commenced working for the Council in the Family Day Care area of Council as an administrative officer in 1995.

[15] Ms Belcher’s role also included marketing of family day care services although the extent to which she developed the marketing material as opposed to providing administrative support to the marketing is in dispute.

[16] Sometime after her commencement (a date was not specified but certainly after 2000 and probably before 2008 when Ms Donegan commenced with Council) Ms Belcher commenced assisting with play group, in conjunction with the field worker/educators, on a Thursday of each week except for school holidays. It appears that Ms Belcher was never required to undertake the play group tasks but had requested that she be able to do so. 1

[17] Ms Belcher worked 30 hours per week. She says (although this is not agreed) that she spent about 20 hours a week on administrative tasks and 10 hours per week on playgroup and marketing activities. Ms Belcher says she worked at playgroup on Thursday from 8.30am to 10.00am setting up, from 10.00am to midday physically working with children and from midday packing up, returning to the office by 1.00pm. 2

[18] Of her marketing activities Ms Belcher says she was ‘always searching for new ideas for [her] marketing display,’ that when she had a new theme she would laminate signs and collect resources for the display. She marketed the playgroup activities in Council libraries, at weekend festivals and at immunisation sessions.

[19] As a result of the restructure in 2014 (brought about by changes to government funding of family day care) Ms Belcher’s position (the previous position) became excess to requirements. The other administrative employee remained in Family Day Care working on a part-time basis of 22.5 hours per week.

[20] Ms Belcher was offered redeployment in accordance with clause 4.2 of the Agreement. Two positions were offered to her on 22 April 2015 – a Relief Administrative Support Officer in Home and Community Care Services (HACC) (the Relief Admin position) and an Administrative and Rostering Officer in HACC (the Rostering position). 3

[21] Ms Belcher rejected both of these positions on the grounds that they were not consistent with her previous employment profile. 4

[22] In response to a request from the lawyers for Ms Belcher she was also sent details of a position of Administrative/Customer Service Officer in Waste Services (the Waste Services position). 5 This position was also rejected by Ms Belcher.

[23] At the time her position in Family Day Care was abolished the administrative officer who remained in Family Day Care was injured and unable to attend work. Ms Belcher therefore filled in for this absence for 22.5 hours per week and completed 7.5 hours a week doing administrative relief in HACC.

Consistent with the Employee’s classification level and previous employment profile

[24] There is no dispute about the meaning of ‘classification level’ and it is agreed that the positions offered to Ms Belcher were consistent with her classification level.

[25] The Council says that, prior to resolving the question of what Ms Belcher’s previous employment profile was, the meaning of the phrase must first be resolved.

[26] The Council submits that the principals of interpretation of an agreement dictate that the first consideration should be the natural meaning of the words used, the context within which they are used and then, to a limited degree, judicial consideration of the phrase.

[27] Council correctly points out that the phrase ‘consistent with the employee’s…previous employment profile’ is not defined in the Agreement and has not been previously considered.

[28] Council submits that the meaning of the words ‘consistent with’ is best determined by consideration of the alternative phrases that could have been used by the drafters of the Agreement but weren’t. It says that the drafters did not use definitive phrases such as ‘the same as’ or ‘identical to.’ 6 For this reason Council submits that the words ‘consistent with’ allow for some flexibility when comparing positions offered for redeployment with the previous employment profile.7

[29] The Council further submits that consideration of the words ‘consistent with’ must be undertaken within the context of the Agreement. The motivation of clause 4.2 of the Agreement is the promotion of redeployment and retention of staff. It says this is clear from the wording of the second paragraph of clause 4.2 which states:

Council will, in the first instance, assess the opportunity and suitability of any surplus Employee for redeployment, before any decision is taken to effect Retrenchment.

[30] The Council says that, in determining the meaning of employment profile an ‘objective assessment of the central traits and characteristics of an employee’s previous employment’ 8 is necessary. It says this requires an analysis of the employee’s current position against the proposed redeployment position and a determination of whether, on balance, the positions are consistent.

[31] For this reason the Council submits that the words ‘consistent with the employee’s…previous employment profile’ ought to be read in such a way that provides the greatest chance of redeployment occurring. 9

[32] Relying on the decisions in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd 10, Datamars (Australia) Pty Ltd T/A Datamars11 and Geza Szanto v ISS Facility Services Pty Ltd12 the Council submits that it is apparent that, when determining if positions are sufficiently alike, an objective assessment is required. Whilst these decisions went to a consideration of ‘acceptable alternative employment’ the Council suggests they provide guidance how the task should be undertaken (as opposed to the nature of the task itself). That is, the task of determining if a position is ‘consistent with the employee’s…previous employment profile’ should be undertaken on an objective basis.

[33] Ms Belcher agrees that ‘consistent with’ does not mean ‘exactly the same as’. 13

[34] Ms Belcher says that, in determining whether a position is suitable for redeployment, the use of the phrase ‘previous employment profile’ instead of the more commonly used phrase ‘suitable alternative employment’ suggest an intention that the test of whether a position is suitable for redeployment to be substantially different to that generally imposed.

[35] Ms Belcher says that this phrase ‘consistent with the employee’s…previous employment profile’ operates to confine positions that might otherwise be seen as suitable for redeployment. That is, Ms Belcher says the phrase means that any position need not only be consistent with her classification and terms of employment but must also be ‘consistent with the skills, training, experience, seniority, background and aspirations [of Ms Belcher] as demonstrated by…her history of employment.’  14

[36] Ms Belcher submits that the use of the word ‘previous’ requires a consideration of whether a position is consistent with a person’s history of employment and experience. 15 Further, the word ‘profile’ requires an examination of the traits and characteristics of the previous position as well as of the person. She says this because the phrase speaks of the employee’s profile rather than the profile of the position held.16

[37] Ms Belcher also submits that while the ordinary test of suitability of alternative position requires an objective assessment, the phrase ‘employee’s...previous employment profile’ imports a degree of subjectivity to the assessment insofar as the employee’s previous employment profile also includes the particular employee’s preferences, character traits and career aspiration. 17

[38] Ms Belcher also submits that a ‘position will be a position that is consistent with an employee’s previous employment profile when the position is consistent with the skills, training, experience, seniority, background and aspirations of the particular employee as demonstrated by his or her employment history with the Respondent.’ The position must not only be consistent with the duties performed by an employee during employment but also with the environment and context within which the work was performed. 18

[39] Ms Belcher submits that the phrase ‘consistent with the employee’s…previous employment profile’ means that any position offered to her must reflect the actual duties she was performing in her previous role with Family Day Care. 19 Ms Belcher says that her skill set, qualification and experiences are all inherently linked to the provision of services to children. She says that unless a position offered for redeployment has playgroup work in it then it is not consistent with her previous employment profile.20

Conclusion as to the meaning

[40] I have considered carefully the submissions of the parties in relation to the meaning of the phrase ‘consistent with the employee’s…previous employment profile.’ I am satisfied, given the context within which the phrase is used, that it should not be narrowly construed.

[41] I do not accept Ms Belcher’s submission on the effect of the use of the word ‘profile’. In making her submissions she ignores the context of the word. The phrase talks of the employment profile, not the employee’s profile. These are, in my view, different concepts. One relates to the individual, the other to the work performed.

[42] Consideration of the employee’s employment profile imports a requirement to consider the skills and attributes of the employee as demonstrated through the actual work undertaken by the employee. Whilst it was not an issue in these proceedings I am satisfied that the employment profile considered should only extend to the work undertaken whilst employed by Council unless the employee seeks otherwise (noting that in cases such as this what is being considered is whether a position identified by Council is suitable redeployment).

[43] I also reject Ms Belcher’s submission that the phrase ‘previous employment profile’ allows for a subjective assessment as to the suitability of a position for redeployment. A subjective assessment it seems would override what I accept to be the objective of the Agreement to provide for and maximise the chances of redeployment for employees. Ms Belcher’s submission would place control over access to redundancy and the determination of suitability of positions for redeployment into the hands of employee alone or of Council alone. The Agreement cannot be read as suggesting such an approach.

[44] Further, I do not accept that the phrase means that a position identified for redeployment must be consistent with the training or aspirations of the employee. Whilst I accept that skills are clearly a relevant consideration, an unrestricted requirement to consider training (with no context or necessity for the training suggested), background of the employee (again with no context or relevance specified) or aspirations (which may have little to do with the pervious employment profile) is questionable.

[45] I am satisfied that ‘consistent with’ does not mean ‘the same as’. ‘Consistent with’ however does require some harmony between the characteristics of the position identified for redeployment and the previous employment profile of the employee. To this extent I accept the submissions of Council that some meaning can be given to the wording by a consideration of what words were not used.

[46] I am therefore satisfied that the ordinary meaning of the words ‘consistent with the employee’s…previous employment profile’ requires first a consideration of the skills and attributes of the employee related to (and hence in the context of) his or her employment. The consideration however cannot be so narrow or so broad so as to make the assessment unviable or unrealistic. The approached must be balanced. For this reason alone the assessment must be objective.

[47] The consideration of the context within which the skills or attributes were developed however does not imply that any position for redeployment must replicate or be the same as the previous position held. To this extent I agree that the phrase allows for some flexibility.

[48] How much flexibility should be given to the determination of whether a position identified for redeployment is consistent with the previous employment profile can be determined by considering the intent of clause 4.2 of the Agreement.

[49] Clause 4.2 places an emphasis on maintaining the employment with the Council of employees whose positions are no longer required. I agree with the submission of Council in this regard. The consideration of whether a position offered for redeployment is ‘consistent with the employee’s…previous employment profile’ must be undertaken in this context. A consideration, therefore, of any redeployment opportunities must be done, by all parties, with a view to the capacity to maintain the employee concerned in employment.

[50] No hard and a fast rule can or should be applied to the determination of whether or not any position is ‘consistent with the employee’s…previous employment profile’ save to say that, whilst the views of the effected employee must be given due consideration, the process of determination must be objective, must not be stringent and cannot reject positions because they do not replicate the job previously done.

What was Belcher’s ‘previous employment profile’?

[51] Ms Belcher gives evidence of the functions she performed in her role in Family Day Care. She placed great emphasis on the work she performed in relation to the Thursday playgroup. This included developing ideas and developing ‘experiences’ for the playgroup. Ms Belcher worked on these in time at work (that is not in her own time). 21 That Ms Belcher did design themes for the playgroup and developed the ‘experiences’ for the playgroup and that there was creativity in what she did is not disputed.

[52] Ms Belcher also gives evidence of ‘extensive training’ she undertook which, she says, was focussed on strengthening her skills and knowledge within children’s services. 22

[53] Ms Belcher agrees that she did all that was required in her job 23 and, whilst the playgroup activities were not administrative in nature24 and not agreeing with Council’s view on what portion of her job was administrative, Ms Belcher agrees that her position was administrative in nature.25

[54] As outlined above, Ms Belcher says that her skills, qualifications and experience are all inherently linked to the provision of services to children. The core of her position, she says involved creativity. 26 The creativity aspects of her job were so fundamentally part of her role she says they should not be lost in considering her previous employment profile.27

[55] Ms Belcher worked 30 hours per week. She worked at playgroup for four and one half hours per week during school term time. She also did some developmental work for playgroup and for marketing. Ms Belcher says she spent 10 hours per week on non-administrative activities (ie playgroup and marketing) and 20 hours per week on administrative duties. The Council says she spent about 80% of her time on administrative work and 20% on playgroup.

[56] I do not accept Ms Belcher’s assertion of the amount of time she spent on playgroup and marketing activities. If Ms Belcher was right it means she spent five and a half hours per week, in addition to the time at playgroup on Thursdays, doing creative non-administrative work in relation to playgroup and marketing and that in non-term times she spent 10 hours per week doing creative, non-administrative tasks. For someone employed in an administrative capacity for 30 hours per week this would be remarkable.

[57] If Ms Belcher spent six hours per week every week of the year, including term breaks (when playgroup did not occur) on only the creative aspects of playgroup and marketing activities that still only equates to 20% of her working time being spent on non-administrative tasks. This is not a substantial part of her time.

[58] This is not to suggest that Ms Belcher did not contribute to playgroup – she clearly did. She obviously did it with much passion. Her talent in this area is plain to see from the evidence tendered of playgroup activities 28 and from the accolades given when she ceased doing that work.29 However I cannot, and do not, find that the creativity parts of Ms Belcher’s job were the core of her job or so fundamentally part of her role.

[59] Even on Ms Belcher’s evidence she was employed in an administrative position. After some time and following an increase in her hours to undertake a specific administrative project, Ms Belcher was given some latitude to become involved in the playgroup work. Even on her figures however (20 out of her 30 hour per week) she was substantially engaged in administrative work (approximately 66% of her role in administrative work).

[60] Ms Belcher was fortunate that she could perform her administrative tasks within an area of Council that also met her interest – that is families and children. Although I note, there is nothing before me to say whether the interest in children came because of the area she worked in or if the interest in children existed first and that is why she sought work in that area of Council.

[61] I am not convinced that the training 30 undertaken by Ms Belcher was mandatory training necessary for her to complete her role nor that it adds much to her claim. I accept that the ‘Grandfathering’ course in relation to working with children was important although cannot determine if it was necessary. It seems to me that the other training she participated aligned with her interest and that she was fortunate that Council facilitated her access to these.

[62] Ms Belcher’s evidence is that she also spent time developing marketing displays for the Council libraries. I reject the evidence that the work in the library displays was only administrative in nature. I also reject any sense that none of the marketing role was administrative.

[63] For these reasons I am satisfied that Ms Belcher’s previous employment profile is administrative work with some creative work. That Ms Belcher performed her duties within an environment of families and children and family day care does not alter the employment profile although it does add a contextual element to the position which I do not think can be ignored. I have taken this into account below.

Were any of the positions offered to Ms Belcher consistent with her previous employment profile?

[64] At the conclusion of proceedings each party was given leave to provide to the Commission a table setting out their comparison of the functions of the three positions offered to Ms Belcher and whether or not each considered those functions aligned with Ms Belcher’s current employment profile.

[65] Whilst Ms Belcher agrees that a many of the tasks in the three proposed redeployment positions (Relief Admin, Rostering and Waste Services) were undertaken by her in her previous job, her material suggests that she undertook these tasks in a non-administrative context. I take this to mean that she says she only undertook these tasks in the context of the creative playgroup and marketing work.

[66] The Council submits that the evidence of Ms Belcher is that she has undertaken the tasks identified as relating to the three offered positions (of which there are 34) in her previous role. 31

[67] I have had regard to the material produced by both Ms Belcher and the Council.

[68] I accept that Ms Belcher undertook a number of the tasks in the context of her creative playgroup and/or marketing activities. I do not accept that these tasks were not performed or attributes displayed in her administrative role.

[69] As I have found above, Ms Belcher’s previous employment profile suggests that she substantially undertook administrative work. That some of her skills and attributes or the tasks she undertook were done in the context of playgroup or marketing does not mean they should be discounted in considering if a position offered is consistent with the previous employment profile.

[70] In determining if an offered position is consistent with the previous employment profile is not a ‘like for like’ line by line comparison, nor should it be a numerical exercise (e.g. there are nine characteristics of the offered position that equate to the previous position but 4 characteristics of the previous position not replicated so the position is/is not consistent). Such an exercise would defeat the intent of clause 4.2 of the Agreement. To the extent this was suggested by the Council, I reject this approach.

[71] It is clear that Ms Belcher can work in a team, meet deadlines, that she shows initiative, has communication skills and so on. Even if these skills were demonstrated in the context of playgroup this does not mean she does not have that skill. Clearly she does. She admits as much in a letter she sent to Mr Gosling around November 2014 32 where she says in her previous position she undertook planning and coordination, she was a competent member of her team and she strived to make administrative processes more efficient. Even if these tasks are not ‘specifically administrative in nature’ as suggested by Ms Belcher they are work characteristics required of most positions and certainly are characteristics of the three positions offered to her.

[72] Ms Belcher does not say she does not have the skills or ability to undertake the tasks identified in the three offered positions. Rather she says she does not understand or have knowledge of the specific context within which the work is done.

[73] In determining if any of the offered positions are consistent with Ms Belcher’s previous employment profile context cannot be the overriding factor such that, unless the position is in children’s services, it is deemed to be not consistent. Such a narrow construction is not consistent with clause 4.2 in the Agreement.

[74] Ms Belcher’s evidence is that there are a number of matters particular to each of the positions of which she has no knowledge. This, generally, was not disputed by Mr Rog, although his evidence is that training on specific systems (e.g. Goldcare) would be provided to Ms Belcher when she commenced in a position.

[75] In placing the three possible position to Ms Belcher, Mr Rog agreed that he was not aware if Ms Belcher had any knowledge of Goldcare or understanding of issues relating to older people and people with disabilities; 33 had knowledge or experience or skills in matters relating to ‘person centred practice’, had knowledge of HACC National standards;34 and if she had skills such that she could assess waste materials, apply the Trade Practices Act 1974 or knowledge of waste and recycling services objectives.35

[76] Ms Belcher’s approach to an assessment of the three positions is highly selective in considering the requirements of each of the positions. Her approach did not involve any consideration of whether she had the skills as set out in the ‘Key Responsibility Areas’ of each of the position descriptions but rather consisted of an evaluation of specific items in the position descriptions under selected sub-headings. This selective approach was clearly designed to demonstrate what Ms Belcher does not know and what specific skills she may not have, as opposed to a consideration of the position as a whole and whether it fits with her previous employment profile. In any event the approach adopted by Ms Belcher did no more than show that, on a very small minority of aspects of each of the positions, she did not have direct knowledge of the position. This is hardly surprising in someone who does not occupy or has not previously undertaken the tasks associated with the positions.

[77] It has never been suggested that, for a position to be suitable for redeployment, a person must be able to meet every single requirement of the position. If that was the test very few people would be redeployed. Such an approach is also at odds with the intent of clause 4.2 which attempts to maximise the opportunities for an employee to remain at the Council.

[78] Ms Belcher and the Council both agree that the determination of whether or not a position offered for redeployment is consistent with the previous employment profile is an objective test 36 (although some submissions of Ms Belcher might suggest a contrary view37).

[79] I have considered all of the material and the evidence. I am satisfied, on the basis of the evidence, that the Relief Admin position and the Rostering position are both consistent with Ms Belcher’s previous employment profile. I am satisfied that the context of these positions is also consistent with the context with Ms Belcher’s previous employment profile. Context to this extent is not narrowly defined as having to be in conjunction with day care or playgroup of children’s services. The context of the positions offered is in the broader area of human or community services (Community and Development Services Division of Council). I am satisfied that this is not inconsistent with the context within which Ms Belcher previously worked.

[80] Whilst the Waste Services position should be available for redeployment should Ms Belcher seek it, I am not convinced, given the context of that position, that it could be said to be consistent with her previous employment profile. I note however that this position, as a possibility for redeployment, was provided to Ms Belcher at her request.

Conclusion

[81] For these reasons I conclude that the Relief Admin position and the Rostering position are positions consistent with Ms Belcher’s classification level and previous employment profile.

[82] In accordance with clause 4.2 of the Agreement Ms Belcher therefore does not have a right to redundancy.

COMMISSIONER

Appearances:

G. Jardine of Counsel with S. Platel of McDonald Murholme for the Applicant.

M. Albert of Counsel with S. Cheligoy of Maddocks for the Council.

Hearing details:

2015.

Melbourne:

July 24.

Final written submissions:

Applicant: 29 July 2015.

Respondent: 29 July 2015.

 1   Transcript PN1189-92.

 2   Exhibit A2, paragraph 9.

 3   Exhibit R1, attachment FR-6.

 4   Exhibit A1, attachment LB-12.

 5   Exhibit R1, attachment FR-7.

 6   Transcript, PN 1396.

 7   Transcript PN1399.

 8   Council submissions, paragraph 23.

 9   Transcript PN1403.

 10 (1990) 140 IR 123.

 11   [2015] FWC 1269.

 12   [2013] FWC 3270.

 13   Transcript PN1499.

 14   Applicant’s outline of submissions, paragraph 50.

 15   Applicant’s outline of submissions, paragraph 51.

 16   Applicant’s outline of submissions, paragraph 53.

 17   Applicant’s outline of submissions, paragraph 54.

 18   Applicant’s outline of submissions, paragraph 58.

 19   Transcript PN1383.

 20   Transcript PN1337-38, 1342, 1361-4 and 1383-4.

 21   Transcript PN97, 100.

 22   Exhibit A1, paragraph 9.

 23   Transcript PN166-9.

 24   Transcript PN432.

 25   Transcript PN 440-41.

 26   Transcript PN1518, 1573.

 27   Transcript PN1561.

 28   Exhibit A2, attachment LB-15.

 29   Exhibit A2, attachment LB-14.

 30   Exhibit A1, paragraph 9.

 31   See, generally Transcript PN183-426.

 32   Exhibit A1, attachment LB-6.

 33   See Relief Admin position description, exhibit R1, attachment FR-4, Qualifications and Experience and Key Selection Criteria. See also transcript PN617-6630.

 34   See Rostering position description, Exhibit R1, attach FR-5, Judgement and Decision Making and Specialist Knowledge and Skills. See also transcript PN716-742.

 35   See Waste Services position description, exhibit R1, attachment FR-7, Judgement and Decision Making. See also transcript PN843-856.

 36   Transcript PN1515, and PN475.

 37   Applicant’s outline of submissions, paragraph 54 which suggest a degree of subjectivity is required in making an assessment.

Printed by authority of the Commonwealth Government Printer

<Price code C, AE405146  PR571222>