Mr Greg McNay v Campbell's Australasia Pty Ltd

[2010] FWA 2945

Note: An appeal pursuant to s.604 (C2010/3746) was lodged against this decision - refer to Full Bench decision dated 11 August 2010 [[2010] FWAFB 6048] for result of appeal.

[2010] FWA 2945

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Greg McNay
v
Campbell's Australasia Pty Ltd
(U2009/10704)

Mr Patrick Humphreys
v
Campbell's Australasia Pty Ltd
(U2009/10706)

COMMISSIONER CRIBB MELBOURNE, 6 MAY 2010

Application for unfair dismissal remedy - alleged harsh, unjust or unreasonable termination of employment - genuine redundancy—redeployment – reinstatement.

[1] This decision concerns two applications, under section 394 of the Fair Work Act 2009 (the Act), by Mr Patrick Humphreys and Mr Greg McNay (the applicants). It is alleged that the termination of their employment by Campbell’s Australasia Pty Ltd (the respondent) was harsh, unjust or unreasonable. The applicants are seeking a remedy in respect of their dismissals.

[2] The applications were subject to conciliation on 10 August 2009 but were not settled. The applicants elected to have the matters arbitrated. The hearing of both applications took place on 11 and 12 November 2009. Written closing submissions on behalf of the applicants were filed on 24 November 2009 and on behalf of the respondent on 3 December 2009. Submissions in reply by the applicants were filed on 14 December 2009.

[3] The applicants were represented by Ms E McGrath from the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) whilst the respondent was represented by Mr R Dalton, of counsel.

[4] Both Mr Humphreys and Mr McNay gave evidence as did Ms R Farrant, a former employee of the respondent and AMWU shop steward. On behalf of the respondent, Mr R Schubert, Human Resources Manager, Mr D Kelly, Manufacturing Co-ordinator and Mr T Sharpe, Plant Manager gave evidence.

EVIDENCE

Ms Farrant

[5] Ms Farrant was the AMWU’s shop steward on afternoon shift at the time the applicants were made redundant. She gave evidence that a lot of people were very concerned about what the clauses in the enterprise agreement meant. It was recalled that she was asked by other workers with short service as to whether they would be terminated eg a forklift driver on afternoon shift. 1

[6] Ms Farrant recalled that she had been asked to attend a meeting with Mr Humphreys in Mr Pearce’s office with Mr Kelly also present. 2 She said that Mr Humphreys was very shocked when he was told that he was being made redundant. This was because of his length of service and also that, because he had worked on the other side of the plant, he believed he had both the skills and the years of service which would have got him through compared with others who had not been a permanent employee for as long as he had.3

[7] Ms Farrant said that the meeting was very brief. She stated that Mr Humphreys had been told that his position on the Kettle line was no longer available and that he was being retrenched. She did not recall Mr Humphreys being told that there were a number of employees who were excess to requirements and that a number of people had volunteered across the site. Ms Farrant did not remember Mr Humphreys being told he did not have the skills and experience they required. Instead, he had been told that his position was no longer there. 4 It was said by Ms Farrant that, when Mr Humphreys raised the issue of last-on/first-off, the company did not want to engage in such a discussion. It was recalled that when she asked a question on Mr Humphreys’ behalf, she was told that she could be present but was not able to say anything.5

[8] Ms Farrant indicated, during cross-examination, that she had worked on the afternoon shift on the Kettle chip line for several years and that she had direct knowledge of what people were doing in her shift and some limited knowledge of what people were doing on day and night shift through handover. 6

[9] Evidence was given that the workers on the Kettle chip line had average levels of skill and were paid on different levels. It was Ms Farrant’s opinion that most of the workers on the floor in this area could transfer quite easily to other areas in the factory with a certain amount of training. 7

[10] It was confirmed by Ms Farrant that, as shop steward, she was familiar with the 2006 Agreement and that clause 6 set out the agreed system for recognising skills and competencies. Further, Part D of the Agreement was an agreed document for assessing the skills and competencies of an employee based on agreed specific tasks which amount to a specific competency. 8

[11] Ms Farrant also agreed that a training committee had been established to oversee the system and that membership of the committee was shared between employee and employer representatives. She confirmed the various responsibilities of the committee. 9

[12] It was Ms Farrant’s view that clause 5.4 of the Agreement, using the Kettle chip line as an example, meant that:

• Once redundancies were going to be offered, the company should ask for volunteers from the Kettle chip line.



• If more than were needed were received, the company could look at the matrix system and decide if a person was not going to be accepted.



• Then, volunteers would be called from the rest of the factory. If there were too many volunteers, the company could use the matrix system and not accept some of the volunteers.



• If there were still redundancies needed, the last-on/first-off approach is adopted (forced redundancies), except where an employee is operating equipment so specialised that, if they were allowed to go, the company would have problems running. In these circumstances, it would not be appropriate to have regard to the skills matrix. However, it was said that it applied to most of the people on the shop floor. 10

[13] It was further explained by Ms Farrant that, with forced redundancies, the last-on/first-off rule still needed to be applied except where a higher specialised skill was required to ensure that the company did not have problems running that specialised equipment. The skills matrix would be applied in this instance but not generally on the floor. 11 There were said to be only three skills which were considered highly specialised at the site which no other worker had the skills to perform and for which an external course was undertaken – retort operator, aseptic filling and aseptic cleaning.12 It was Ms Farrant’s observation that the employees retained by the company did not have particularly specialised skills.13 (EXHIBIT A3 at paragraph 8)

[14] Ms Farrant agreed that the skills matrix would be useful in comparing people’s skills but on the proviso that the skills were being carried out (which they were not necessarily). She agreed that the Agreement contained a provision that said that, if a skill had not been used within the past two years, it would no longer be recognised. 14 However, Ms Farrant disagreed with the self assessment part of clause 6A on the basis that very few self assessments had been implemented by the company. She stated that she had not completed one for four or five years. It was said that employees had to ask for a self assessment and that a short serving employee would not be aware of this. Ms Farrant indicated that it had never been done annually nor was it something that had been pushed by the company. It was her view that if self assessments had not been undertaken within the last two years, the company would not know the skills some of the employees had.15

[15] With respect to the issue regarding Mr Humphreys and his RDO’s, Ms Farrant indicated that she had not been involved in these discussions. Her knowledge came from what Mr Humphreys had told her. 16

[16] In terms of the incident involving Mr McNay and an argument in the canteen over the increase in the cost of vegetables, Ms Farrant stated that she had not been present during the canteen incident. However, she was present during the disciplinary process. It was confirmed that the view of the company was that Mr McNay had abused the canteen man and used foul language. Ms Farrant also agreed that Mr McNay had acknowledged that he had used foul language but that the canteen man had also been quite aggressive and had had scissors in his hand. It was said that both individuals had been aggressive – not just Mr McNay. It was agreed that Mr McNay had been issued with a warning. 17

[17] Ms Farrant was questioned regarding the individuals she cited in her statement who had previously been on the Kettle line but who were not retrenched. Evidence was given regarding Ms Simm, Ms Cox, Mr McCoy and Mr Duncan. 18

[18] Ms Farrant said that she was aware that, in May 2008 at a paid meeting, employees were told of the company’s decision to sell its Salty Snack Food Business to The Real McCoy. This involved the ultimate closure of the Kettle chip line with the company co-packing for The Real McCoy until production was moved to their own factory. She said that employees were given regular updates about the Kettle chips situation and that the union had been part of the meetings with the company regarding the line closure. Ms Farrant indicated that the number of employees to be made redundant was not very clear at the beginning but had been clarified later. 19 She also said that the company had stated that employees would not have an opportunity to re-train as there was not enough time.20

Mr King

[19] Mr King is an organiser with the AMWU and was the Metals Division organiser responsible for this particular factory in conjunction with the Food Division of the union.

[20] It was stated by Mr King that clause 6A was first inserted in the Agreement in either 1995, 1996 or 1998. He said that a long standing practice on the site for Food Division members was that, after volunteers, redundancies would be on a last-on/first-off basis in terms of the length of service with the company. It was recalled that the Site Manager, Mr Miller, raised the last-on/first-off principle during agreement negotiations. He was seeking an exemption to this approach as there could be special circumstances (very limited) where a key operator (a person with special skills which would be hard to replace) could be made redundant. If this occurred, it would be detrimental to the site’s viability. It was said that the only job cited by Mr Miller was the retort operator – a very specialised position. The exemption was agreed to by the union on the basis that it would be limited, if it occurred at all, and that the retort was the only exception to the last-on/first-off principle. Mr King recalled that, prior to the agreement to the exception, the last-on/first-off principle, with no qualifications, had applied at the site. 21

[21] It was also Mr King’s evidence that the clause in question had continued on through the various subsequent agreements with no claim made to vary it by either the company or the union. 22

Mr McNay

[22] Mr McNay gave evidence that he was shocked when he was told that he was going to be made redundant due to his length of service and the knowledge he had gained over that period. He had thought that he was valued by the company and that he would have been there for the remainder of his working life. 23

[23] It was confirmed by Mr McNay that he believed his dismissal was unfair because there were a number of employees in the Kettle chip line with less service than him who had been re-deployed ahead of him. Mr McNay also said that it was not just with respect to the Kettle chip line – it was the whole site. 24

[24] Mr McNay agreed that, in 2004, he had worked on the glass line palletiser but said that it had been for about three months and not a few weeks. 25 He confirmed that, since 1998, he had worked almost exclusively in packing and other general hand roles on the Kettle chip line. Outside of the Kettle line, he had a stint on the palletiser, cleaning in the factory – very occasionally – and filling in for short periods to cover unplanned absences.26 With respect to the cleaning, he stated that he had cleaned the big food drums, the big trolleys and the kettles.27

[25] Mr McNay gave evidence that his duties on the Kettle chip line were:

• Packing packets of chips in boxes (most of the time). 28



• Picking and discarding dodgy chips from the conveyor and shaker (often). 29



• Adding flavours into the drum for dispensing to the product (from time to time). 30



• Monitoring the operation of the deep fryer in which the chips were cooked (occasionally). It was said that, although the deep fryers were fully automated, there was one fryer which needed to be closely watched and dealt with manually, if required. Mr McNay indicated that he did not perform certain other duties which were associated with ensuring the effective operation of the deep fryer. 31



• He had spent a little bit of time on the row bag but was not recognised as competent in this area. 32



• He had a forklift licence which he obtained through the company in the mid 1990’s and also one he obtained privately. He said that he was driving a forklift for three months out the back. 33



• Monitoring the operation of the palletiser in the glass line which would automatically stack boxes on a pallet. Mr McNay said that the sensors did not always work properly and that, when one activated when it should not have, he had to intervene and start the machine again. He indicated that he did not set the palletiser up for different product runs as he took over from the day shift. 34

[26] With respect to the competencies the applicant held as at June 2009, he confirmed that he was competent in Kettle packing chips and Kettle utility. Regarding the fryer, the applicant said that no-one had got back to him about him not being assessed as fully competent. He added that he had still been placed there. 35 He had not worked on the palletiser in Kettle but had done a few shifts on the ro-bag in Kettle. It was confirmed that he had been rated as competent in the canning cleaners area and the applicant said that he was also cleaning the food trolleys. The applicant stated that he had not attempted hand stacking pallets, pallet restacking and the pallet jack operation.36 Mr McNay refuted the contention that he had not operated a retort cooker for over 10 years. He said that he used to operate the microwave retort cooker in the Jenny Craig line whilst he was in the Kettle chip area. He recalled that he would finish off product in the Jenny Craig line so that the operators could go home earlier.37

[27] The applicant indicated that he was aware of the self assessment process by filling out a form – when it was available. He said that no team leader had ever verified his self assessments so that he never got a result regarding his competencies. He recalled that he had not rated himself as competent in retort. This was because the company had always said that if an employee had not worked in a certain area for two years, they were not competent and so he had not bothered to put retort down. It was also stated that, his training on the ro-bag was not consistent with the result that he was not assessed competent. However, the company had still placed him on the row bag. 38 He thought he might have only ever filled out two self assessments. It was his view that no-one worried about doing what the process required.39 With respect to a completed self assessment that was handed to the applicant, Mr McNay did not recall filling it out.40

[28] It was confirmed by the applicant that, since the company announced its decision to sell the Kettle chip business to The Real McCoy, he had stayed in the Kettle chip area. He had been aware that, in the last couple of months, Kettle line employees were being allocated to other areas as fewer people were required on the Kettle line. 41 When asked why he had not sought to be assigned to another part of the plant, the applicant’s response was:

“Why should I seek? That was my job in that area. Why should I seek to go anywhere else?.....That's where I worked. If they wanted me to go somewhere why didn't they ask me?” 42

[29] The applicant suffered a back injury at work in 1989 and in early 2006. He had been on light duties for short periods of time but between 2007 and 2009, he had been able to perform his duties without restrictions. 43

[30] With respect to the conversation he had with Mr Sharpe, the applicant recalled that he had said that they do not want (rather than need) Kettle chips skills. It was said that Mr Sharpe had explained that the last-on/first-off principle was applied subject to the company’s need to retain skills and experience and that Kettle skills were not skills that were required. Mr McNay stated that, a week later, Mr Sharpe had said the opposite – that the company did not want Kettle chip skills. It was said that he thought he had enough skills as well as 29 1/2 years at the company. 44

[31] Mr McNay confirmed that he had been paid his entitlements including a redundancy payment on termination. It was acknowledged that he had been invited to a trade show at the workplace involving several companies from the area and Centrelink. The applicant stated that he had mentioned to Mr Schubert about the retraining allowance who said that he was looking into it. 45

Mr Humphreys

[32] The applicant commenced employment with the respondent in 1995 and he indicated that, prior to 2 February 1999, he supposed that the company had referred to him as a casual employee. Mr Humphreys confirmed that he was appointed to a permanent full time position on the kettle chip line on 2 February 1999. 46

[33] Mr Humphreys stated that, in Kettle, his duties included packaging chips, inspecting chips, the deep fryers and the robotic palletiser. He said that he did not have a forklift licence and that he had worked part-time on the ro-bag where he had his fair share of training but was not kept on it. 47 He indicated that he had also worked in all of the different areas of vegetable preparation. With respect to the packaging machines in the combi area, it was his responsibility to top up the fitment lids and make sure that the packers were running properly. He agreed that he had worked in the packing area for six weeks in 2009 but also said that he had been placed there in 2008.48 Mr Humphreys agreed that he had worked in top loading and on the palletisers in the Kettle line and in the combi area. In retort, he said that he had worked on the baskets but did not have a retort certificate. Also, he had not worked on the pallet rider for more than two years.49

[34] Mr Humphreys evidence was that he was rotated out of the Kettle chip line to other areas of the plant as he could do those tasks and was competent. He said that he undertook temporary short term and long term relief. It was his view that, if someone from the Kettle line was needed to work elsewhere, he was usually the one who was selected, ahead of the other 19 workers on the Kettle chip line. 50

[35] The applicant indicated that his last skills self assessment was in 2007 and that, although management was required to evaluate it and then respond back to the employee, this had not happened. 51

[36] With respect to the issue regarding the timing of his RDO’s, Mr Humphreys explained that Mr Kelly had not wanted him to take his RDO’s on particular days. He recalled that Mr Kelly was annoyed with him during the conversation. 52 He recalled Mr Kelly being abrupt and not interested in hearing what he had to say. Mr Humphreys indicated that, six weeks after he was placed in combi he asked Mr Kelly and Mr Pearce if he could return to Kettle. He explained that he needed to go back to Kettle so that he could take his RDO’s at a time which enabled him to be with his son.53 It was confirmed that Mr Pearce and Mr Kelly had reminded him of the impending closure of the Kettle chip line and had encouraged him to stay in combi. Mr Humphreys denied that the real reason he wanted to return to Kettle was that he preferred the working environment there compared with combi.54

[37] Mr Humphreys recalled the meeting with Mr Pearce and Mr Kelly when he was told that he was being made redundant. He said that he was devastated and wanted to know why he had been selected. He was told that it was based on skills on first-on/last-off but was not satisfied with the answer as there were a lot of people with less service than he had. Mr Humphreys confirmed that the union representative, Ms Farrant, was with him and that, when she tried to speak on his behalf, she was cut off. 55

[38] With respect to the document signed by Mr Knight, 56 Mr Humphreys said that he was not aware that Mr Knight had not been a supervisor since 2007. He stated that he had written it and Mr Knight had signed it.57

[39] It was Mr Humphreys’ evidence that he had applied for about 10 jobs since his redundancy including outside Shepparton. 58

Respondent

Mr Schubert

[40] Mr Schubert explained that he was aware in May 2008 that the Kettle chip business had been sold and that Kettle was going to leave the site. He had been advised that, as a result, 43 full-time employees would need to be made redundant. 59

[41] The Agreement provided a three stage process for redundancies. It was said that the first stage was to call for volunteers which was undertaken from 2 June 2009 onwards. Around 12 June 2009 Mr Schubert said, it was realised that there were not enough volunteers and that there was going to be a need to make some people involuntarily redundant. As there were 35 volunteers, this meant that 8 employees would have to be made redundant. 60

[42] It was Mr Schubert’s role, he said, to ensure that the company adhered to the terms of the Agreement. He said that the senior leadership team (Mr Sharpe, Mr P Pearce, Manufacturing Manager, Mr Kelly, Mr J Blackmore and Mr McClonkey (Manufacturing Co-ordinators) reviewed the competency assessments (completed by the employees) of all of the employees in the plant. An analysis was done of their skill sets and they were evaluated on the basis of who had and who did not have the skills the business needed to go forward. It was further explained that a number of spreadsheets were set up regarding last-on/first-off. Then, based on the competency assessments, skill points were allocated to each employee. The senior leadership team discussed the skills that were needed and this was compared with the last-on/first-off provision. When selecting employees for involuntary redundancy, Mr Schubert explained that the skill sets of employees were reviewed. If both employees had exactly the same level of skills, the last-on/first-off principle would be applied. 61 He indicated that, as per clause 6A of the Agreement, skills not exercised in the preceding two years were not recognised.62

[43] With respect to Mr McNay’s level 1 classification, it was Mr Schubert’s evidence that, in 2003, when a competency model was introduced, employees who had a particular pay rate at that time retained that rate (grandfathered).

[44] In his witness statement, Mr Schubert went into extensive detail regarding the selection process. He explained that points were allocated for the skills and experience of each Kettle line employee who had not volunteered for redundancy. These employees were ranked based on their points. ‘This allowed us to see at a glance which employees had skills and experience that we required in each of the vacant positions.’ 63 The points system enabled the company to rank an employee who operated a highly technical machine higher than an employee who operated less technical machinery.64 Mr Schubert stated that he had not included mention of the last-on/first-off provision in his witness statement as it was well known. He denied that he had mentioned it in his oral evidence due to its increasing importance to him.

[45] Further, in his witness statement, Mr Schubert explained that, once the volunteers had been into account, there were 20 employees on the Kettle line who had not volunteered for redundancy. It was stated that there were 12 vacancies for redeployment which meant that eight people would have to be made involuntarily redundant. The company then looked at which, if any, of the Kettle employees had the skills and experience the company required to fill the 12 vacant positions. 65

[46] Using the process outlined above, Mr Schubert, stated in his witness statement that, of the 20 remaining Kettle line employees, four of them were already filling four of the vacant positions elsewhere in the plant and it was decided to retain them in those vacancies. This resulted in 16 remaining Kettle line employees and 8 vacancies. It was stated that 8 of the 16 employees were redeployed into the vacant positions on the basis that they had the skills and experience to fill those roles. The remaining 8 employees were made redundant. 66

[47] Evidence was given regarding the outplacement services offered on site to the departing employees, during paid time, which included financial advice, interview skills, counselling. A Job Fair was also organised as part of the “Finishing with Pride” activities for exiting employees. The respondent had also obtained Commonwealth funding for each departing employee to assist with re-training. It was recalled that Mr McNay and Mr Humphreys had been invited to attend the Job Fair at 1.00 pm. However, Mr Schubert assumed there had been a miscommunication as they arrived at 4.00 pm, with the Fair finishing at 4.30 pm and so had limited time there. 67

Mr Kelly

[48] Since January 2007, Mr Kelly has been the Manufacturing Co-ordinator on afternoon shift responsible for the kettle line and the canning production line. 68

[49] It was Mr Kelly’s evidence that he had also been the applicants’ team leader prior to becoming Manufacturing Co-ordinator. He stated that the Jenny Craig product had not been produced since July 2004 and explained that Mr McNay may have been asked, once the finisher cooking was done, to shut down and take the product out of the retort. He said that this was a small part of the process. It was also stated that the Jenny Craig microwave retort was the only such retort on site and that Campbell’s used static retorts which was a completely different process. 69

[50] During Mr Kelly’s time in Kettle, he did not recall Mr McNay working on the ro-bag. He said that he had worked on the glass palletiser but for about a month rather than two or three months. It was confirmed that Mr McNay assisted in cooking chips and Mr Kelly indicated that there was a big difference between operating fryers and cooking chips. He said that Mr McNay may have been able to operate the fryers but that he did not know. 70

[51] With respect to forklift licences, Mr Kelly indicated that, for the past five years, the requirement had been for in-house training and assessments only for forklift licences. 71 He was aware that Mr McNay had an OH & S forklift licence. He said he could not say how long it would take for Mr McNay to get a Campbell’s forklift licence as he did know Mr McNay’s skill level. He said it could take a week to train him.72

[52] In terms of the selection process for the redundancies, it was Mr Kelly’s oral evidence that the competency assessment tool was used to determine the points of all of the employees on site. This was then reviewed to ensure that all of the assessments were fair. It was indicated that his role in the selection process had been to look at the skills of the employees on site. 73 Mr Kelly explained that the review of Mr McNay’s and Mr Humphreys’ skills showed that nearly all their skills were on the Kettle line with very few skills in areas outside Kettle. He said that they had very basic skills.

[53] Mr Kelly’s witness statement contained an explanation of the selection process for the involuntary redundancies. It stated that, in order to select employees to be redeployed:

“ … we looked at the skills and experience of each of the remaining Kettle employees and allocated points to the employee based on the skills they had which were current.” 74

The result of this process was said to be that employees with skills outside Kettle accumulated more points than those with Kettle line skills and experience only.

[54] In his witness statement, Mr Kelly also said that the decision as to which of the remaining 16 Kettle employees were redeployed to the 8 vacant positions elsewhere in the plant was stated to have been made by assessing the skills and experience required for each of the 8 vacancies and identifying which of the remaining Kettle employees had the required skills and experience. 75 It was further said that the remaining 8 Kettle employees were not available to be redeployed into the vacant positions because they did not have the skills required. Mr Kelly’s statement indicated that Mr Humphreys had worked almost exclusively on the Kettle line and, although he had worked in other areas of the plant, he had not stayed there long enough to gain other than low level skills and experience.76 With respect to Mr McNay, Mr Kelly, in his statement, indicated that, once the Kettle line opened in 1998, Mr McNay had worked there exclusively. He also said that the reason he was not redeployed was because he did not have the skills and experience the company required.77

[55] Mr Kelly gave evidence regarding a number of other employees, namely, Ms Cox, Ms Blake, Ms Wilson, Mr Duncan and Ms Brassill. 78

Mr Sharpe

[56] Mr Sharpe is the Plant Manager and has been in this position for nine years. 79

[57] Mr Sharpe indicated that the blending tasks Mr Humphreys had described were those of an assistant to the blender and involved weighing product out, moving it around on a trolley and then adding it to the kettle. In terms of Mr Humphreys’ tasks in vegetable preparation, it was stated that this involved washing, dicing and weighing out the vegetables. 80 It was explained by Mr Sharpe that the work that Mr Humphreys was also doing was monitoring or attending to the automated packing machines in the combi area. Mr Sharpe stated that Mr Humphreys had not been assessed as fully competent on the packing machines because he was not able to start up/stop the machines, operate them fully and troubleshoot any problems. In terms of the top loading equipment (basket loader) Mr Sharpe said that he did not think that Mr Humphreys had been assessed as fully competent in this area. He also believed that Mr Humphreys could not set up/change over a palletiser machine but could attend/monitor the performance and stop it if there was a jam and re-start.81

[58] Mr Sharpe stated that the manual loading/unloading of retorts was not a recognised skill and that it was a very low skill which was performed by the assistant to the retort operator. He said that pallet riding was a skill no longer required as conveyors had largely replaced pallets. 82

[59] It was indicated by Mr Sharpe, in his oral evidence, that his role was to lead the closure of the kettle line and to ensure that there was a robust redundancy process. He said that 43 positions had been identified as redundant and confirmed that, early on in the process, the union had disputed the need to reduce 43 positions. Subsequently, he thought that the number had been accepted. He said that all of the food employees’ applications had been accepted with minor impact on the skills and experience needed to be retained. It was confirmed that there was a shortfall in the number of volunteers.

[60] In regard to the selection process for involuntary redundancies, Mr Sharpe stated that, based on the company’s reading of the Agreement, the process was clearly last-on/last-off based on skills. He said that a list of all employees across the site was developed based on their length of service and their skills. The site leadership team then reviewed the list and applied the last-on/first-off principle. Then the skills of these employees were said to have been assessed on the basis of whether the person had skills that were required or were specialist skills that were needed in the plant. If either of those criteria applied, the person stayed and the site leadership team went to the next person who was last on and repeated the process. 83

[61] Mr Sharpe indicated that, through this process, the leadership team did not find anyone outside of Kettle who had a skill set that could be met by those in kettle who had not volunteered for redundancy. This meant that the company was left with the remaining Kettle employees including the applicants. Mr Sharpe stated that the process for selecting the 8 involuntary redundancies from that group was to look at last-on/first-off based on skills. He said that the applicants did not have skills that were transferable or that were of a level which would be useful elsewhere in the plant. 84

[62] In his witness statement, Mr Sharpe stated that he was involved in the process of selecting which the remaining employees would be redeployed. The basis of selection was said to be an assessment of the company’s requirements in terms of skills and experience and an assessment of the current skills and experience of each of the remaining 20 Kettle line employees. It was stated that, for each employee, the Kettle skills which they possessed which were transferable and any other skills they had acquired were assessed. Eight employees were identified, as a result of this process, who did not have the skills and experience, which were required by the company for the future. 85

[63] Further, in his witness statement, Mr Sharpe recounted his discussions with Mr McNay and says that he had explained the last-on/first-off policy except where an employee had skills and experience the company required. He went on to explain that, if there were people with less the service but they had the skills the company required for the future, then they would not be made redundant. However, other employees with longer service who did not have the skills needed would be made redundant. 86

[64] In terms of the meeting held with employees on 2 June 2009, Mr Sharpe recalled that he had gone through the process regarding the selection of redundancies. He stated that he had specifically explained that last-on/first-off based on skills meant that, if an employee had the skills and competencies that the company required in canning, glass and the other operations that were continuing, they would not be made redundant. He denied that he had not explained the last-on/first-off based on skills process to employees. 87

[65] Mr Sharpe explained that he had not mentioned in his witness statement that the last-on/first-off policy had been considered because it was part of the process and he understood that what was being challenged was the skills aspect. From his perspective, skills were not the only issue because skills modified the last-on/first-off principle. Mr Sharpe said that the reason the applicants were made redundant was that they did not have the skills the company required going forward. He could not explain as to why the last-on/first-off principle was not included in his statement. 88

SUBMISSIONS

APPLICANTS

[66] On behalf of the applicants, Ms McGrath submitted that their dismissals were harsh, unjust or unreasonable as they were contrary to the Agreement. It was argued that their dismissals were not genuine redundancies because it would have been reasonable for them to have been re-deployed. 89 The failure to do so was argued to constitute a breach of clause 5.4 of the Agreement. It was said that the respondent had conceded that, if the Agreement required an employee to be re-deployed, then this would fit the exclusion to the definition of genuine redundancy at s.389(2) of the Act. Ms McGrath contended that a plain reading of the Agreement mandated the applicants’ re-deployment.90

Collective Agreement

[67] The applicants submitted that a plain reading of clause 5.4 of the Agreement resulted in:

• The first paragraph allows the company to deny redundancy packages to certain employees where the number of applicants exceeds the number of required redundancies. Selection for redundancy is then based on the skills of the volunteers assessed by application of a plant wide skills matrix. 91



• Paragraph 3 and 5 allow the offer of voluntary redundancy to be extended beyond the particular team to the department then plant wide. It was noted that these paragraphs were largely identical and referred to the process set out in the first paragraph. 92



• The final paragraph covers involuntary redundancies and was said to depart in its language from the first paragraph. There was no longer any reference to a skills matrix but rather to the basis on which employees can be terminated – the last-on/first-off principle. It was stated that, whilst maintaining this principle as the basis of selection, the clause allows for an exception. Ms McGrath said that the exception was when “such an employee(s) has acquired skills/experience which are required by the company and no other employee is available for the designated work.” 93

[68] Ms McGrath discussed the Oxford English Dictionary meaning of the words “such, “require”, “available” and “designate”. On the basis of the Dictionary definitions of these words, it was argued that the exception referred to in paragraph six of clause 5.4 of the Agreement referred to an employee who is a particular employee who has acquired skills that render him capable of completing a specified task that is essential to the running of a plant in circumstances where no other employee is capable of being employed to do the task. Ms McGrath further contended that the clause was drafted to indicate the expectation that generally only one worker would fit into this category with the bracketed (s) after employee indicating the less expected situation where more than one employee had an essential skill. 94

Evidence of Mr King

[69] The union submitted that Mr King’s evidence supported the plain reading of the clause. Mr King’s evidence was said to be that:

• He was the person who drafted paragraph six of clause 5.4.



• Prior to the inclusion of paragraph six, the long standing principle regarding forced redundancies was last-on/first-off.



• The company had sought a very restricted exception to the last-on/first-off principle was where, if a key operator was retrenched, the viability of the site could be put in jeopardy. The only example of this, said to have been given by Mr Miller during the negotiations, was that of retort operator. 95

Breach of clause 5.4 of the Agreement

[70] Ms McGrath argued that the company did not take length of service into account when selecting employees for involuntary redundancy. It was stated that there was no indication in any of the respondent’s written witness statements that length of service had been taken into account. To this end, the written statements by Mr Sharpe, Mr Kelly and Mr Schubert were discussed. Ms McGrath highlighted only one occasion when it was mentioned and then in the context of Mr Sharpe advising Mr McNay that he was not being dismissed in breach of the Agreement. 96

[71] In terms of the oral evidence from the respondent’s witnesses, the union contended that Mr Schubert’s and Mr Sharpe’s evidence regarding the last-on/first-off principle went to the records of length of service – which were not tendered as evidence in this case. Instead, it was said that the respondent sought to table a document containing a record of years of service that was created on the evening of the first day of the hearing. 97

Exception to last-on/first-off principle

[72] It was submitted, in the alternative that, if the Tribunal found that the company had taken the last-on/first-off principle into account, the company had failed to take into account the limited nature of the exception. 98 The union argued that the exception was extremely limited and that the respondent did not apply it in that way. Rather, it was said that the company had adopted an alternative method of selection based on the general skills matrix which was not in accordance with the method set out in paragraph 6. Further, Ms McGrath stated that the skills matrix, which ranked employees on the basis of their skills, was in conflict with a ranking based on years of service. The union argued that paragraph 6 of the Agreement provided for employees to be ranked according to seniority except in exceptional circumstances. It was said that the Agreement did not allow the company to establish its own selection process.99

[73] Further, in the alternative, the union submitted that, if the Tribunal did not accept this argument, it was contended that the company’s method of assessing skills lacked integrity. It was stated that self assessments were rarely undertaken and that management would not know employees’ current skill levels if the self assessments had not been done. 100

[74] The union submitted that clause 5.4 of the Agreement required the applicants be de-deployed so that, therefore, their dismissal was not a genuine redundancy.

[75] It was also contended that there was no valid reason for the applicants’ dismissal. It was stated that Mr McNay was the longest serving employee on the kettle line with Mr Humphreys having worked for the respondent longer than 16 other employees. Given their length of service, the union argued that the applicants should not have been retrenched. As well, it was contended that the company did not allow Mr Humphreys’ union representative to speak on his behalf at his exit interview. The union also submitted that at least three senior managers oversaw the redundancies and that they had the expertise to utilise a selection method which complied with the requirements of the Agreement. 101

[76] With respect to any other matters (s.387(h) of the Act), the union argued that the Tribunal should also take account of:

• the applicants’ prospects of securing full time employment elsewhere are not strong.



• Clause 5.4 of the Agreement is a clause which the employees bargained for as it is important in terms of job security, particularly in country towns.



• The dismissals were harsh because of their special circumstances as rural factory workers.



• The dismissals were unjust because they occurred in breach of the Agreement.



• The dismissals were unreasonable because both applicants could have easily been re-deployed. 102

Remedy

[77] The applicants are seeking reinstatement as it was said to be the most appropriate remedy, based on:

• Reinstatement is the primary remedy under the Act.



• The applicants were long standing employees who could be easily re-trained for re-deployment.



• There is no ill will towards the respondent.



• The workplace is not opposed to their reinstatement.



• The applicants have been unsuccessful in their attempts to mitigate their loss.

[78] In the alternative, if reinstatement is not ordered, compensation in accordance with the relevant principles was sought. 103

Submissions in reply

[79] The applicants, in their submissions in reply to the respondent’s submissions, argued that the “real issue in this case” was not the proper construction of the skills/experience exception but whether the respondent abided by the selection procedure outlined in the last paragraph of clause 5.4 of the Agreement in choosing the employees to be retrenched. 104

[80] It was further contended that the respondent had failed to adequately explain the absence of any mention of the last-on/first-off rule in their written witness statements. 105

[81] The applicants argued that the company viewed the “last-on/first-off” principle as an exception to a ranking based on a skills matrix. It was said that this approach inverted the rule and the exception – the Agreement says that the rule is last-on/first-off and the exception applies after the rule has been followed. 106

RESPONDENT

[82] Mr Dalton, on behalf of the respondent, submitted that the question for the Tribunal was whether, with respect to both of the applicants, it would have been reasonable in all of the circumstances to re-deploy each of them within the meaning of s.389(2) of the Act. Unless the answer was “yes”, the dismissals would be deemed not to be unfair and the applications must therefore be dismissed.

[83] It was contended that, in order to answer this question, the Tribunal would need to:

• Identify the alleged unfairness regarding each dismissal.



• Address the proper construction of s.389, particularly s.389(2).



• Resolve the contest between the parties over the meaning of the skills/experience exception to the last-on/first-off rule in the last paragraph of clause 5.4 of the Agreement. 107

Alleged unfairness

[84] It was said that both of the applicants claimed that, on the basis of the last-on/first-off rule in the Agreement, they should have been re-deployed ahead of a number of other Kettle line employees who had less service than they did. Both employees had provided a list of names of employees whom they believed should not have been re-deployed ahead of them.

[85] Mr Dalton stated that, as the applicants alleged that they should have been re-deployed to one of the vacant positions, their claims of unfairness concern re-deployment to the vacant positions. The respondent summarised the alleged unfairness as the company’s use of the skills/experience exception to the last-on/first-off rule to re-deploy various Kettle line employees into vacant positions ahead of the applicants. It was said that it was the applicants’ argument that the exception was not available and therefore, the applicants’ length of service would have seen them re-deployed to one of the vacant positions. 108 It was also indicated that it had never been disputed by the respondent that, based on seniority alone, the applicants would not have been retrenched.109

[86] With respect to the applicants’ contention that the respondent ignored the last-on/first-off rule when selecting for redundancies, Mr Dalton explained the reason for the scant references to the rule in the respondent’s witnesses’ statements. It was argued that the reason for this was that there was no dispute that, if the rule had been applied without the skills/experience exception, the applicants would not have been dismissed. The respondent submitted that the focus of the case has always been on the use of the skills/experience exception. 110

[87] Secondly, the company argued that, in a practical sense, the skills/experience of employees had to be considered before the last-on/first-off rule was ultimately applied. It was stated that, unless the exception is ignored, selection based on last-on/first-off will only occur when the exception does not apply. 111

[88] The respondent submitted that an inference could not be drawn from the company’s written statements because:

• Both Mr Schubert and Mr Sharpe had given sworn evidence that they took seniority into account and that that evidence was not inconsistent with any other material.



• Mr McNay had acknowledged that the company and Mr Sharpe had made it clear to Kettle line employees that it was going to apply last-on/first-off subject to skills and experience requirements.



• As the seniority of the applicants was not in dispute, the focus of the respondent’s case was therefore on the skills/experience exception. 112

Section 389

[89] With respect to the pertinent parts of the Act, the following observations were made by the respondent:

• The objects of Part 3-2 make it clear that the unfair dismissal framework is designed to strike a balance between the needs of the business and those of employees and that a “fair go all round” is to be afforded to the employer and the employee.



• Ss.385 and 389 of the Act combine to treat redundancies differently from other types of dismissals in that, where it is a genuine redundancy, it is deemed not to be an unfair dismissal. 113

Section 389(1)

[90] The respondent contended that the requirements of s.389(1) have been met as:

• There is no dispute that the applicants’ jobs were no longer required due to the closure of the kettle chips production line.



• The respondent’s consultative obligations under the Agreement have been met. 114

Section 389(2)

[91] It was submitted that both applicants bore the evidentiary onus to establish that “it would have been reasonable in all of the circumstances for (each applicant) to be redeployed…..” Unless the applicants could prove this, it was said that they would, therefore, not be able to establish s.385(d) which would result in their dismissals. 115

Reasonable in all of the circumstances

[92] The respondent submitted that the meaning of “reasonable in all of the circumstances” was fundamentally important. Mr Dalton outlined the contextual backdrop and argued that, considered in context, the preferable construction of s.389(2) is that the reference to “all of the circumstances” requires “reasonable” to be considered in light of any reasonable alternative course taken by the employer. Therefore, it was contended that, to establish the s.389(2) exception, the applicants must demonstrate that, in all of the circumstances, the respondent was reasonably required to de-deploy them. However, if the re-deployment of another person was also a reasonable thing to do, then, it was said, the applicants did not prove the s.389(2) exception. The respondent’s contention was that the redeployment selections it made were reasonable and that the applicants had not shown otherwise. 116

Section 389(2) and clause 5.4 of the Agreement

[93] Mr Dalton stated that, if the applicants could establish that the respondent had not complied with clause 5.4 and, had the respondent done so, the applicants would have been re-deployed, then the applicants could prove the exception in s.389(2) applied. In such circumstances, the applicants could establish that the respondent was reasonably required to redeploy them – that is – it was reasonable in all of the circumstances for the respondent to follow the agreed process. 117

[94] The respondent submitted that the applicants could not demonstrate these things and that the real issue in this matter was the proper construction of the skills/experience exception to the last-on/first-off rule. 118

Last paragraph of clause 5.4 of the Agreement

[95] Critical to the respondent’s case was the proposition that clause 5.4 did not require the respondent to redeploy the applicants ahead of other Kettle line employees who were re-deployed and who had less service than the applicants. 119

[96] Implicit in the opposing propositions from the parties was said to be the disputed meaning of the skills/experience exception to the last-on/first-off rule. It was the respondent’s contention that the applicants’ interpretation of the pertinent words was narrow, artificial and unsustainable. The respondent argued that, if its interpretation was correct and the skills/experience exception was not restricted to highly specialised skills, then the applicants must establish that the exception did not apply. 120

[97] The respondent submitted that, in deciding what the pertinent words mean, the ordinary meaning of the words and their context must be had regard to. A number of authorities were cited in support of the proposition that it was not appropriate to consider evidence of prior negotiations because it gives to much weight to the intentions or expectations of the parties at the expense of the language of the Agreement. 121 It was argued that the ordinary meaning of the words did not support reading down the skills/experience exception and neither did the other parts of clause 5.4 which provided for volunteers to be called for across the entire site.

[98] In terms of the evidence called on behalf of the applicants, the respondent indicated that the evidence of Ms Farrant, on this issue, was not of assistance. Secondly, it was stated that Mr King’s evidence about the enterprise bargaining negotiations fitted into the inappropriate and unhelpful category as set out by the authorities previously discussed by the respondent. Further, it was contended that Mr King’s evidence was vague at times and not particularly specific except with respect to the example given by Mr Miller, the negotiator on behalf of the company at the time. As well, the respondent argued that there was no evidentiary link drawn between what the parties negotiated in the mid to late 1990’s and what was agreed in 2006. 122

Was the skills/experience exception misapplied?

[99] The respondent submitted that it had never been contested that employees with less service than the applicants had been re-deployed. However, it was argued that the applicants had to show that these persons had the skills/experience that the respondent did not require and/or that the applicants were available to do that work. Mr Dalton stated that the reference to skills/experience “which are required by the company” indicated that it was for the respondent to decide subject to being genuinely required. Further, the company argued that there was no requirement that the required skills/experience must match exactly those required in the re-deployed role. Also, the respondent submitted that the gateway in s.389 was not designed to permit a micro level review of the selection process. 123

[100] It was stated that eight of the kettle line employees had the skills/experience that the company required. The respondent argued that the evidence regarding this point was largely unchallenged by the applicants. Further, it was contended that there was not a lot of evidence given to the effect that the applicants had more skill than those who had been re-deployed. 124

Available for the designated work

[101] The respondent argued that employees who had the required skills/experience could not be re-deployed if the applicants were “available for the designated work”. It was presumed that “designated work” meant the work that the respondent required to be done in the position(s) to which an employee might be re-deployed. In this case, the respondent indicated that the work that was required was those positions which became vacant as a result of the acceptance of voluntary redundancies across the plant. 125

[102] The company submitted that the context in which a person was “available” was that that person had the skills and experience required by the employer to perform the designated work. The process was described as:

• The respondent identifies a person as having the skills/experience required by it to fill a position (considering the employee for re-deployment).



• Clause 5.4 permits the employer to re-deploy that person subject to one last assessment ie whether there is anyone of greater seniority who should be redeployed instead on the basis that they are available to do that work. Accordingly, a comparison of the required skills and experiences of the respective employees is required. As well, the comparison was said to take place at the time of the selections and on the basis of the employee’s current skills.

[103] It was stated that the comparison acts as a final check to ensure that, all things being equal, the more senior employee is retained. This was said to be the essence of the last-on/first-off rule. Further, it was argued that the word “available” is not to be read as requiring the respondent to assess whether (and the extent to which) the more senior employee might be trained up into the role. This was because, to do so, would undermine the required skills/experience exception, thereby skewing the respondent’s comparison. 126

[104] The respondent submitted that the applicants, despite being long serving employees, had preferred low level production duties almost exclusively on the Kettle chip line. Their low level and kettle line specific skills and experience was said to not be required by the respondent once the kettle line was closed. It was stated that they had had opportunities to gain skills and experience in other parts of the plant but they had not taken advantage of these. The respondent submitted that the applicants had to establish that, at the relevant time, they were “available” in that they had the required skills and experience at a level equivalent to one or more of the relevant redeployed persons. It was stated that the applicants had not been able to demonstrate this. 127

Other matters

[105] In response to the other matters raised by the applicants, it was contended that, procedurally, the dismissals were handled fairly. The respondent argued further that the alleged economic harshness was not limited to the applicants but to all of the employees on the Kettle line. 128

CONCLUSIONS

[106] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[107] I will deal with each of the matters in turn.

Section 396(a)

[108] The applications were made on 24 July 2009 and the employees had been made redundant on 24 July 2009. Therefore, I find that the applications were made within the period required in subsection 394(2), namely, within 14 days after the dismissal took effect.

Section 396(b)

[109] The terms of the Campbell’s Soup Union Collective Agreement 2006 applied to the applicants in relation to their employment with the respondent. Therefore, I find that the applicants were protected from unfair dismissal within the meaning of s.382 of the Act.

Section 396(c)

[110] This section has no relevance in these matters as the Small Business Fair Dismissal Code is not applicable to the respondent.

Section 396(d)

[111] The Tribunal is required to decide whether the dismissal was a case of genuine redundancy.

[112] “Genuine redundancy” is defined in s.389 of the Act as:

“(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[113] The threshold jurisdictional question in these matters is whether or not the applicants’ redundancies were genuine redundancies.

[114] There was no dispute between the parties that the applicants' jobs were no longer required by the employer due to the closure of the Kettle chips production line. Accordingly, the respondent has met the requirements of s.389(1)(a).

[115] With respect to s.389(1)(b), there was no dispute between the parties that the respondent had met the consultative obligations of the Agreement. Therefore, the requirements of s.389(1)(b) have been met.

[116] The central issue regarding whether or not the applicants’ redundancies were genuine lies in the terms of s.389(2). It was argued by the applicants that, pursuant to s.389(2), their redundancies were not a case of genuine redundancy as it would have been reasonable in all of the circumstances for the applicants to have been re-deployed within the respondent’s site. The applicants contended that the respondent had failed to apply the terms of the Agreement to the applicants with the result that, instead of being re-deployed, they were retrenched. For its part, the respondent submitted that the redundancies were genuine as the Agreement did not require the respondent to re-deploy the applicants ahead of other Kettle line employees who were re-deployed and who had less service than the applicants. The respondent stated that, if the applicants could establish that the respondent had not complied with the relevant clause of the Agreement and that, if it had, the applicants would have been re-deployed, then the applicants could prove s.389(2). 129

[117] Therefore, the issue to be determined, in the first instance, is whether or not the applicants’ redundancies were genuine. To determine this, it is necessary to establish whether the respondent has complied with the terms of the Agreement by making the applicants redundant rather than re-deploying them.

[118] The clause of the Agreement in question is clause 5.4 – Method of Selection. It provides for, as follows:

“CLAUSE 5.4: METHOD OF SELECTION

Employees shall be offered the opportunity to apply for voluntary redundancy initially within the work team where the surplus position exists. Where the number of volunteers exceeds the number of jobs to be lost, those employees departing shall be selected from the pool of volunteers according to their demonstrated skills at the time of the redundancy, based on an assessment according to a plant wide skills matrix.

Where volunteers cannot be differentiated on the basis of demonstrated skills, the employee's past performance shall be used as a basis of selection.

Where there are insufficient volunteers from within the team to match the number of jobs to be lost, the opportunity to apply for voluntary redundancy within the . department where the surplus positions exist shall be offered. The same process as for volunteers from within the team shall apply where the number of volunteers exceeds the number of jobs to be lost.

Where there are insufficient volunteers from within the department to match the number of jobs to be lost, the opportunity to apply for voluntary redundancy shell be offered plant wide. The same process as for volunteers from within the department shell apply where the number of volunteers exceeds the number of jobs to be lost.

Where there are insufficient volunteers from across the plant to match the number of jobs to be lost, employees shall be terminated on the basis of the last on first off principle, except there such an employee(s) has acquired skills/experience which are required by the Company and no other employee is available for the designated Work.”

[119] There was no disagreement between the parties that the voluntary redundancy process contained in clause 5.4 had been followed. Thirty five employees had applied for voluntary redundancy and had been accepted by the company. This had created 12 vacant positions in other parts of the plant and there were 20 remaining employees on the Kettle line who had not applied for voluntary redundancy. Four of the 20 Kettle line employees were working outside of the Kettle line and it was decided by the company that they should remain in those positions, thereby reducing the number of vacant positions to 8. This left 16 remaining employees on the Kettle line with 8 vacancies elsewhere in the plant. This therefore meant that 8 employees would have to be made redundant involuntarily. 130

[120] The dispute between the parties concerns the process of selection of the involuntary redundancies which included the applicants. This process is set out in the last paragraph of clause 5.4. Both parties provided extensive submissions regarding the construction of this paragraph focusing particularly on the skills/experience exception to the last-on/first-off rule. In addition, Mr King gave evidence on behalf of the applicants. Mr King’s evidence was not challenged when he said that he was the person who had drafted the paragraph in dispute. 131 However, with respect to the majority of Mr King’s evidence, I am guided by the principles set out on Codelfa Construction Pty Ltd v State Rail Authority (NSW)132 and Transport Workers’ Union of Australia v Swire Cold Storage Pty Ltd [2008].133

[121] The first paragraph of the clause 5.4 deals with voluntary redundancies initially within the work team where there are the surplus positions. It sets out the selection process when the number of volunteers exceeds the number of jobs to be lost. In these circumstances, employees who will be departing are selected “according to their demonstrated skills at the time of the redundancy based on an assessment according to a plant wide skills matrix”. Therefore, where there are more volunteers within the work team than the number of jobs to go, the successful volunteers are selected on the basis of their demonstrated skills at that time according to the plant wide skills matrix.

[122] The second paragraph states that where the volunteers cannot be determined on the basis of their demonstrated skills, their past performance shall be used as the basis for selection.

[123] The third paragraph deals with the situation where there are not sufficient volunteers within the work team. It provides opportunity for employees from within the department as opposed to the work team to apply for redundancy. “The same process as for volunteers from within the team shall apply where the number of volunteers exceeds the number of jobs to be lost”.

[124] The fourth paragraph is in essentially the same terms as the third paragraph. It provides that where there are insufficient volunteers from within the affected department, the opportunity to apply for voluntary redundancy shall be offered across the plant. “The same process as for volunteers from within the department shall apply where the number of volunteers exceeds the number of jobs to be lost”.

[125] Therefore, the first four paragraphs of clause 5.4 can be summarised as follows:

• First paragraph:

- voluntary redundancy offered within the work team where the surplus position exists.

- where there are more volunteers than the number of jobs to go, the selection process is based on demonstrated skills at the time of the redundancies according to the plant wide skills matrix.

• Second paragraph:

- where volunteers have the same level of demonstrated skills, the selection will be based on their past performance.

• Third paragraph:

- where there are not enough volunteers from within the team, voluntary redundancy will be offered to the department.

- the method of selection is the same as for volunteers from the team, namely, based on demonstrated skills at the time of the redundancies according to the plant wide skills matrix.

- if employees have the same level of demonstrated skills, selection will be based on past performance.

• Fourth Paragraph:

- where there are still not enough volunteers, the opportunity to apply for voluntary redundancy will be offered across the plant.

- the same selection process is set out as applies for volunteers with the work team and within the department.

[126] Therefore, in essence, the process for selection for volunteers, whether from within the work team, department or the plant is based on demonstrated skills at the time of the redundancies according to the plant wide skills matrix. If employees’ demonstrated skills are assessed in the matrix as equal, their past performance will be used as the basis for selection.

[127] The final (fifth) paragraph of the clause deals with the situation where there are insufficient volunteers from across the plant to match the number of jobs to go. It provides that, where there are insufficient volunteers “employees shall be terminated on the basis of the last-on/first-off principle”. There is also an exception provided – “there [where] such an employee(s) has acquired skills/experience which are required by the company and no other employee is available for the designated work”.

[128] On a plain reading of the fifth paragraph, it would seem that, in the case of involuntary redundancies, employees will be made redundant on the basis of the last-on/first-off principle. There is an exception to this which is where an employee has skills and experience which are required by the company and no other employee is available for the designated work. The primary basis of selection is, therefore, last-on/first-off. The only exception to this provided by the clause is where, on the basis of last-on/first-off, an employee who is to be made redundant has skills and experience required by the company and no other employee is available to perform the work that is performed by that employee.

[129] The primary criteria for selection for involuntary redundancy then, is last-on/first-off. An employee’s skills and experience only becomes a factor where, on the basis of last-on/first-off, an employee who is to be made redundant has skills and experience which are required by the company and no other employee has the skills and experience to perform the work of this employee. In this circumstance, the employee would not be made redundant.

[130] There is no mention in the last paragraph of the clause of selection on the basis of demonstrated skills according to a plant wide skills matrix. This selection process is only contained in the clauses pertaining to voluntary redundancies. The last paragraph, as an exception to the last-on/first-off principle, provides for a narrower test regarding skills/experience than set out in the rest of the clause. It is narrower than that which applies to voluntary redundancies because it qualifies the skills/experience by ‘required by the company and [emphasis added] no other employee is available for the designated work.’ The last part of the sentence further narrows the exception in that it indicates that the exception regarding skills/experience relates to skills/experience required by the company and no other employee has the skills/experience to perform at work. The last part of the sentence qualifies the skills and experience required by the company to be that which no other employee has the skills/experience to undertake at work. In these circumstances, only, that employee is not made redundant. Notwithstanding the exception, the primary and first basis for the selection involuntary redundancies is last-on/first-off.

[131] There was a great deal of evidence given by the respondent’s witnesses concerning the selection process for the involuntary redundancies. The oral evidence differed from the company's witnesses’ written statements in that the latter made scant mention of the last-on/first-off principle in the detailed explanations that were provided. In summary, the oral evidence, as given by the company, for example, by Mr Schubert, was that competency assessments for each employee were assembled and the skill sets of each employee were reviewed and then the points from the competency assessment were transferred onto a spreadsheet and then evaluated as to who had or did not have the skills that the business required to go forward. 134 Mr Schubert’s evidence also was that:

“ There was a need for us to consider last-on/first-off. We did that. We set up a number of Excel spreadsheets so we could understand who was the last-on/first-off… We allocated skills – the total amount of points to those individuals….We had discussions in terms of what skills did we need, and we tried to compare that with the last on - last on/first off provisions. That's the process that we designed.” 135

[132] Mr Sharpe’s oral evidence was that the Excel spreadsheet had on it, for all employees across the site, their years of service and their skills. He said that:

“….we went down through the list, so last on/first off was applied….….Then we went to the matter of skills. If a person had skills that we required or they were specialist skills that we needed in the plant, we said that person stays and we went to the next person who was last on and then continued our way through the list.” 136

The written evidence of the respondent’s witnesses described the use of spreadsheets to develop a list of employees based on their length of service and skills. The skills of the employees were assessed on the basis of whether the employee had skills that were required for the business in the future. In assessing which of the 16 remaining Kettle line employees would be redeployed to the eight vacant positions, the selection was on the basis of whether or not the employee had the skills and experience to fulfil those roles. The eight employees who did not have the skills and experience were made redundant.

[133] When comparing the last paragraph of the Agreement with the process undertaken by the respondent, it appears that the company’s process was not in accordance with the provisions of the Agreement. First, the process for selecting involuntary redundancies does not mention use of the skills matrix (which is the method stipulated for voluntary redundancy selection). However, the company made extensive use of a skills matrix and put a great deal of effort into ensuring that the points for each employee were accurate. Second, the Agreement provides that a shorter service person is only passed over (ie. not selected for redundancy) if that person has skills required by the company and there is no one else who could perform that work if that person was made redundant. The test the company seems to have generally applied was whether the employee’s skills were ones the company required for the future and whether the employee had the skills and experience to undertake one of the vacant positions.

[134] The manner in which the respondent’s witnesses gave evidence that the last-on/first-off principle had been applied was not particularly satisfactory. However, despite this, it does appear that the principle was taken account of in the development of the spreadsheets which listed employees based on their length of service and their skills. The principal focus of the company’s selection process was, though, the skills of the employees and whether they possessed the ones that the company needed for the future. In assessing which of the remaining 16 Kettle employees would be redeployed into the eight vacancies, this was done on the basis of who have the skills and experience to fulfill those roles. Those who did not have the necessary skills were made redundant and were employees who did not have skills other than Kettle line skills.

[135] In applying the selection process that the company did, it is my view that it is contrary to the provisions of the Agreement. The skills/experience exception to the last-on/first-off principle is not whether 8 of the 16 remaining employees had the skills/experience required by the company for the future or the skills/experience to undertake one of the vacant positions elsewhere in the plant. The test in the Agreement starts with the shortest serving employee and is whether that employee has skills/experience required by the company and which no other employee has so that they could perform that person's job. If the answer is "yes", that person is not made redundant and the next shortest serving employee is then considered.

[136] The test is also not whether an employee has the skills/experience to be redeployed into an available position. The skills/experience exception applies to employees on the basis of whether there are other employees who have the skills/experience to perform that person's role, if a person was made redundant on the basis of last-on/first-off.

[137] The emphasis in the respondent's evidence was on working out who could be redeployed into the vacancies based on whether their skills/experience matched the requirements of the vacant positions. The process in the Agreement is last-on/first-off with the exception that, if that employee was made redundant, their skills/experience could not be replaced by another employee on site. It could be said that the process used by the company was the reverse of what the Agreement required ie. within a last-on/first-off framework, a person would be made redundant unless their skills/experience could not be replaced in their position versus matching the skills/experience requirements of vacant positions with the skills/experience of the candidates for in voluntary redundancy.

[138] On the basis of the method used by the company, the applicants were made redundant because they did not have the skills and experience required to fill any of the vacant positions in the plant. 137 This was said to be because their skills, being primarily kettle chip skills, were specific to that line and not generally applicable elsewhere in the plant. This, in my view, was not in accordance with the provisions of the Agreement which required employees to be selected on the basis of last-on/first-off except where that employee had skills and experience required by the company and no other employee could perform that person’s work. Had the selection process in the Agreement been applied in accordance with its terms, the applicants would not have been made redundant as there were at least two other employees with shorter service than the applicants who were re-deployed. It was not disputed by the respondent that shorter service employees had been redeployed ahead of the applicants.

[139] Taking into account all of the material before me, I find that the respondent did not comply with clause 5.4 of the Agreement. Secondly, I find that, had the respondent complied with clause 5.4, the applicants would have been de-deployed. Further, I also find that, in all of the circumstances of these matters, it would have been reasonable for the applicants to have been re-deployed within the employer’s enterprise. Accordingly, I am satisfied that the dismissal of the applicants were not a case of genuine redundancy as defined in s.389(2) of the Act.

Section 385

[140] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[141] Section 385(a) and (d) have been met and s.385(c) have no relevance in these matters.

Section 387

[142] In order to declare whether or not the termination of the applicants’ employment was harsh, unjust or unreasonable, FWA is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[143] I will deal with each of these in turn.

Valid reason – s.387(a)

[144] The applicants were dismissed by the respondent on the basis that their positions were redundant due to the closure of the Kettle chip line and because, on application of the Agreement, they were selected for dismissal rather than be re-deployed.

[145] The evidence before the Tribunal has been discussed above in determining whether or not the applicants’ dismissals were genuine redundancies. There is, therefore, no necessity for all of that material to be repeated here.

[146] There was no dispute between the company and the union that they were parties to the Agreement and that it applied at the time of the termination of the applicants’ employment. I have already found that the applicants were dismissed in breach of the Agreement and that they should have been re-deployed instead. Given these circumstances, it is not possible to say that there was a valid reason for the applicants’ dismissal. Therefore, I find that there was not a valid reason for the applicants’ dismissal relating to their capacity.

Notification – s.387(b)

[147] There was no dispute between the union and the company that the consultation process required by the Agreement had been followed. This was set out in Mr Schubert’s witness statement. 138 Accordingly, I find that the applicants were notified of the reason for their dismissal.

Opportunity to respond – s.387(c)

[148] The dismissals of the applicants arose due to closure of the kettle chip line. There is evidence before me from Mr Schubert regarding meetings held with the union, employees (as a group) and with individual employees. 139 Mr Humphreys, accompanied by Ms Farrant, met with Mr Kelly and Mr Pearce, after he had been notified of his redundancy. It was Ms Farrant and Mr Humphreys’ evidence that Ms Farrant had not been allowed to ask questions about why Mr Humphreys’ had been selected for redundancy. Mr Kelly’s evidence was that this was incorrect but that the company was not able to tell Mr Humphreys as to which employees had been kept on.

[149] Evidence was also given of a conversation between Mr McNay and Mr Sharpe. Although there is a dispute between the two gentlemen as to whether or not Mr Sharpe said something in particular, it is apparent that there was an opportunity for Mr McNay to respond to the reason for his dismissal.

[150] It would appear from the material before me that both of the applicants, as part of the general process which included the union, had the opportunity to respond to the reason for their dismissal. It also appears that, to a lesser or greater extent, both of the applicants were given an opportunity to respond to their selection for redundancy on an individual basis.

[151] Therefore, I am satisfied that the applicants were given an opportunity to respond to the reason for their dismissal.

Support person – s.387(d)

[152] Given the nature of the process regarding the closure of the Kettle chip line, this factor is not particularly relevant. Ms Farrant, as a union representative, accompanied Mr Humphreys when he met with Mr Kelly and Mr Pearce. As indicated above, there is a dispute between the parties about whether Ms Farrant was prevented by Mr Pearce from asking questions on behalf of the applicant. Mr Pearce did not give evidence in these matters. It is apparent that the meeting was a short one. However, given that I do not have Mr Pearce’s side of the story before me, I cannot reach a conclusion on this point. I find, therefore, that Mr Humphreys was able to have Ms Farrant attend the meeting with him as a support person. As to the extent to which Ms Farrant was allowed to assist the discussions, I am unable to determine, as there is insufficient material before me.

Warnings regarding performance – s.387(e)

[153] As the termination of the applicants’ employment was not related to unsatisfactory performance, this factor is not relevant.

Size of the employer’s enterprise – s.387(f)

[154] On the basis of the material before me, it may be surmised that the size of the employer’s enterprise would likely have had little impact on the procedures followed in these matters.

Human resource expertise – s.387(g)

[155] It is apparent from the evidence that the respondent’s Human Resources Manager was fully involved in the close down of the Kettle chip line.

Other matters – s.387(h)

[156] The applicants submitted that account should be taken of the fact that both of the applicants had worked for the one employer for a significant number of years. A second factor sought to be taken account of was that the company is situated in a small country town with limited alternative employment options.

[157] Having considered the union’s submissions, I am prepared to take account of these matters.

Harsh, unjust or unreasonable

[158] In all of the circumstances and, having taken account of each of the factors set out in s.387, I have reached the conclusion that the termination of each of the applicants’ employment was harsh, unjust and unreasonable. This is due to the fact that, if the Agreement had been complied with, by the respondent, the applicants’ employment would not have been terminated and the company would have been required to re-deploy them elsewhere in the plant. In addition, the applicants were long serving employees with 20 or more years service for each of them.

REMEDY

[159] The relevant statutory provisions governing any remedy that may be ordered by the Tribunal for unfair dismissal are set out in Division 4 of Chapter 3, Part 3–2 of the Act. When the Tribunal may order a remedy is set out in s.390 of the Act which is as follows:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[160] I turn first to deal with the requirements of s.390(1). Both the applicants are primarily seeking reinstatement to their employment. At the time of the hearing, the applicants had sought alternative employment but had been generally unsuccessful in their attempts to mitigate their loss.

[161] On the basis of the findings in paragraphs 101 and 164, I am satisfied that the requirements of s.390(1)(a) and (b) have been met. As both of the applicants have made an application under s.394 of the Act, I am satisfied that the requirements of s.390(2) have been met.

[162] Section 390(3) provides that FWA must not order payment of compensation unless FWA is satisfied that reinstatement is inappropriate and that compensation is appropriate in all of the circumstances.

[163] Having considered carefully all aspects of these matters, on balance, I am not satisfied that reinstatement of the applicants is inappropriate and that compensation is the appropriate remedy. Given the findings that, if the respondent had complied with the terms of the Agreement the applicants would have been re-deployed, reinstatement would appear to be the logical and appropriate remedy. On the other hand, it is noted that there has been an effluxion of time since the applicants were made redundant. Consideration has also been given to the fact that the applicants were long serving employees. Therefore, after balancing all of these different matters, I am satisfied that reinstatement of the applicants is appropriate in all of the circumstances of the two cases.

Section 391

[164] Section 391 of the Act sets out the requirements to be followed regarding reinstatement. Section 391(1) is as follows:

“(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.”

[165] With respect to s.391(1)(a), the positions in which the applicants were employed immediately before their dismissal are no longer available as the Kettle chip line was closed. Therefore, in these matters, it is s.391(1)(b) that is applicable. It was made clear by the union during the hearing that reinstatement to an associated entity of the employer was not being sought. Therefore, s.391(1A) is not relevant in these matters. Accordingly, FWA must order that the respondent reinstate the applicants by appointing them to another position on terms and conditions no less favourable than those on which the applicants were employed immediately before their dismissals.

Order to maintain continuity

[166] Section 391(2) provides FWA with the discretion to maintain the continuity of the applicants’ employment and the period of their continuous service, if it is considered appropriate to do so. Having considered all of the circumstances of these matters, I consider it appropriate to maintain the applicants’ continuity of employment with the respondent and also their period of continuous service with the respondent.

Order to restore lost pay

[167] Discretion is available to FWA, under s.391(4) of the Act, to make an order, if it is considered appropriate, that the employer pay an amount for the remuneration lost or likely to be lost by the applicants because of their dismissals. In determining an amount, FWA must take into account a number of matters. Having carefully considered all of the material in these matters, I am prepared to exercise my discretion and order that the respondent pay the applicants an amount for the remuneration lost from 25 July 2009 to the date of actual reinstatement. From this amount is to be deducted any remuneration earned by the applicants from employment or other work from the date of dismissal to the date of the order and the amount of remuneration likely to be earned by the applicants between the date of the order and the actual reinstatement. Remuneration earned includes the payments the applicants received at the time of their redundancies.

[168] An order giving effect to all of these matters will be issued separately.

COMMISSIONER

 1   Transcript PN 177 - 186

 2   Ibid PN 363

 3   Ibid PN 224 - 226

 4   Ibid PN 370 - 373

 5   Ibid PN 223 - 233

 6   Ibid PN 235 - 240

 7   Ibid PN 219 - 222

 8   Ibid PN 244 - 245

 9   Ibid N 246 - 266

 10   Ibid PN 294

 11   Ibid PN 302 - 307

 12   Exhibit A4 at paragraph 6

 13   Ibid at paragraph 8

 14   Transcript PN 310 – 313

 15   Ibid PN 442 - 448

 16   Ibid PN 350 - 351

 17   Ibid PN 352 - 357

 18   Ibid PN 384 – 396 and 398 - 402

 19   Ibid PN 411 - 424

 20   Ibid PN 435

 21   Ibid PN 560 - 561

 22   Ibid PN 584 - 586

 23   Ibid PN 597 – 598 and 606 - 608

 24   Ibid PN 612 - 614

 25   Ibid PN 670 - 671

 26   Ibid PN 670 – 677 and 768 - 769

 27   Ibid PN 765 - 767

 28   Ibid PN 678 – 680 and 764

 29   Ibid PN 681 - 683

 30   Ibid PN 684 - 685

 31   Ibid PN 686 - 696

 32   Ibid PN 698

 33   Ibid PN 700 - 702

 34   Ibid PN 703 - 713

 35   Ibid PN 782 - 785

 36   Ibid PN 786 - 795

 37   Ibid PN 722 - 736

 38   Ibid PN 899 - 901

 39   Ibid PN 716 - 721

 40   Ibid PN 740 - 751

 41   Ibid PN 770 - 777

 42   Ibid PN 779 and 781

 43   Ibid PN 796 - 819

 44   Ibid PN 820 - 827

 45   Ibid PN 833 – 853 and 910 - 911

 46   Ibid PN 1081 - 1123

 47   Ibid PN 1127 - 1138

 48   Ibid PN 1207 - 1243

 49   Ibid PN 1244 - 1263

 50   Ibid PN 926 – 938 and 1185 - 1188

 51   Ibid PN 1000 - 1013

 52   Ibid PN 1017 – 1023 and Exhibit A8 at paragraph 4

 53   Ibid PN 1015 - 1018

 54   Ibid PN 1282 - 1292

 55   Ibid PN 1024 – 1039 and Exhibit A8 at paragraph 8

 56   Exhibit A7

 57   Transcript PN 1328 - 1367

 58   Ibid PN 1040 – 1048 and Exhibit A8 at paragraph 9

 59   Ibid PN 1452

 60   Ibid PN 1458

 61   Ibid PN 1487 - 1491

 62   Ibid PN1464 - 1486

 63   Exhibit R5 at paragraph 40

 64   Ibid at paragraphs 38 - 41

 65   Exhibit R8 at paragraphs 32 – 34 and 36 - 41

 66   Ibid at paragraphs 42 - 48

 67   Transcript PN 1494 - 1507

 68   Ibid PN 1574 - 1582

 69   Ibid PN 1585 - 1607

 70   Ibid PN 1683 - 1686

 71   Ibid PN 1612 - 1619

 72   Ibid PN 1665 - 1671

 73   Ibid PN 1619 - 1626

 74   Exhibit R6 at paragraph 12

 75   Ibid at paragraph 25

 76   Ibid at paragraphs 58 - 59

 77   Ibid at paragraphs 69 and 73

 78   Transcript PN 1653 – 1661, 1676 – 1682 and 1687 - 1701

 79   Ibid PN 1773 - 1775

 80   Ibid PN 1801 - 1802

 81   Ibid PN 1803 - 1814

 82   Ibid PN 1815 - 1821

 83   Ibid PN 1921 - 1934

 84   Ibid PN 1935 - 1943

 85   Exhibit R8 at paragraphs 34 - 37

 86   Ibid at paragraph 39

 87   Transcript PN 1953 - 1959

 88   Ibid PN 1967 - 1974

 89   Applicants’ written closing submission, dated 23 November 2009, at page 1, paragraph 1

 90   Ibid at page 2

 91   Ibid at page 3

 92   Ibid

 93   Ibid at pages 3 and 4

 94   Ibid at pages 4 and 5 and Attachment

 95   Ibid at pages 5 and 6

 96   Ibid at pages 6 - 8

 97   Ibid at pages 8 and 9

 98   Ibid at page 9

 99   Ibid at pages 10 - 11

 100   Ibid at pages 11 - 12

 101   Ibid at pages 13 - 14

 102   Ibid at pages 14 - 15

 103   Ibid at pages 15 - 16

 104   Reply to Respondent’s final submissions by the applicants dated 14 December 2009 at paragraph 2

 105   Ibid at paragraph 3

 106   Ibid at paragraph 6

 107   Final written submissions of the respondent dated 3 December 2009 at paragraphs 4 - 6

 108   Ibid at paragraph 15

 109   Ibid at paragraphs 8 - 14

 110   Ibid at paragraphs 17 - 21

 111   Ibid at paragraph 23

 112   Ibid at paragraph 24

 113   Ibid at paragraph 28 - 31

 114   Ibid at paragraph 32

 115   Ibid at paragraphs 34 - 35

 116   Ibid at paragraphs 37 - 47

 117   Ibid at paragraphs 49 - 50

 118   Ibid at paragraphs 52- 54

 119   Ibid at paragraph 57

 120   Ibid at paragraphs 61 - 63

 121   Ibid at paragraphs 64 - 68

 122   Ibid at paragraphs 71 - 75

 123   Ibid at paragraphs 177 - 821

 124   Ibid at paragraphs 83 - 89

 125   Ibid at paragraphs 90 - 92

 126   Ibid at paragraphs 97 - 98

 127   Ibid at paragraphs 99 - 103

 128   Ibid at paragraphs 104 - 105

 129   Ibid at paragraph 49

 130   Ibid at paragraph 53

 131   Exhibit A4 at paragraph 5

 132 (1982) 149 CLR at 352

 133 AIRC FB 397, 174 IR 1 at 32 and 33

 134   Transcript at PN 1482

 135   Ibid PN 1518

 136   Ibid PN 1933 - 1934

 137   Exhibit R5 at paragraph 45

 138   Ibid at paragraphs 6 - 15

 139   Ibid at paragraphs 6 – 15 and Attachments B - H

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