Ms Elizabeth Webber v Foxtel Management Pty Ltd T/A Foxtel TV

[2017] FWC 5053

[2017] FWC 5053

FAIR WORK COMMISSION

DECISION

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

Ms Elizabeth Webber
v
Foxtel Management Pty Ltd T/A Foxtel TV
(U2017/4015)

COMMISSIONER HUNT BRISBANE, 21 NOVEMBER 2017

Application for an unfair dismissal remedy – whether dismissal was a genuine redundancy – redeployment with associated entity not considered – insufficient evidence available on redeployment opportunities within associated entities.

[1] Ms Elizabeth Webber has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Foxtel Management Pty Ltd T/A Foxtel TV (Foxtel) was harsh, unjust or unreasonable.

[2] Ms Webber commenced employment with Foxtel on 7 December 2011. Her employment ended on 31 March 2017. At the time of her dismissal Ms Webber was employed as a Team Leader in Foxtel’s ‘Telstra Change’ Department.

[3] Foxtel raised a jurisdictional objection to the application, submitting that the dismissal was a case of genuine redundancy.

[4] The matter was listed for jurisdiction and merits hearing in Brisbane on 31 July 2017. Ms Webber filed a witness statement and represented herself. Foxtel was represented by Mr Steve Parrish, People & Culture Business Partner of Foxtel.

[5] The following people gave evidence, with some witnesses required for cross-examination:

•  Ms Webber;

•  Ms Wendy Flower, Foxtel employee;

•  Ms Karen Corden, former Foxtel employee (not required for cross-examination);

•  Ms Shannon Bennett, People and Culture Consultant;

•  Ms Rachel Hutt, Customer Experience Manager;

•  Ms Alexandra Yacoub, Head of Customer Resolutions Team;

•  Ms Lesley Portwain, Director of Customer Experience; and

•  Mr Parrish.

Foxtel

[6] Foxtel is a corporation owned equally by Sky Cable Pty Ltd and Telstra Media Pty Ltd; that is, each company has a 50% shareholding of Foxtel. Sky Cable Pty Ltd is a joint venture of Consolidated Media Holdings Limited and News Corporation.

[7] The Foxtel Board consists of three Telstra Directors, three News Corp (or News Ltd) Directors, together with two Foxtel Company Secretaries and the Foxtel CEO.

Foxtel and Telstra

[8] The Telstra Change Department where Ms Webber worked is a ring-fenced department within Foxtel servicing Telstra customers who have subscribed to Foxtel from Telstra. Foxtel had been working with Telstra on an important project to improve the ‘Foxtel from Telstra’ customer experience, including removing situations where customers are transferred back and forth between Foxtel and Telstra.

[9] Foxtel customers who had accepted a three month trial offer for free as part of a particular Foxtel package needed to speak to both Telstra and Foxtel to make a package change. It was determined by Telstra that the best customer experience would be for Telstra to move the entire bundled customer calls offshore, and in doing so, it would eliminate the need for customers to talk to both Telstra and Foxtel when making a change to their package.

[10] As a result of the changes required by Telstra, Foxtel’s Telstra Change Department did not require as many employees. It was considered that the loss of positions would be 20 Agents and three Team Leaders. 1

Relevant Legislation

[11] Section 389 of the Act states:

‘389 Meaning of genuine redundancy

(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.’

[12] Relevant to the consideration required pursuant to s.389(1)(b), Ms Webber’s employment was subject to the Clerks – Private Sector Award 2010. The relevant consultation provision within the modern award is reproduced below:

‘8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.’

[13] Relevant to the consideration required pursuant to s.389(2)(b), it is necessary to determine if there are any associated entities of Foxtel. Given the corporate structure briefly addressed in [6], it is necessary for the Commission to consider this later in this decision.

[14] If the Commission determines that Ms Webber’s dismissal was a case of genuine redundancy, the application must be dismissed. If the dismissal was not a case of genuine redundancy, consideration must then be given to whether the dismissal was unfair on the basis that it was harsh, unjust or unreasonable.

Overview of Ms Webber’s evidence

[15] On 14 March 2017, Ms Webber and five other Team Leaders attended a meeting with Mr Parrish, Ms Marnie Duffin, Contact Centre Manager and Ms Lesley Portwain, Director of Customer Experience. It was Ms Webber’s evidence that at the meeting, she and the five other Team Leaders were advised that the Telstra Change Department was restructuring. She was informed that three Team Leaders and 20 full time Agents would be made redundant.
[16] Following the meeting, Ms Duffin distributed the following email, relevant parts reproduced below:

‘Dear [names],

Thank you for meeting with us today.

…………

With the drive to provide Foxtel from Telstra customers with the best customer experience, Telstra has made the decision to take all of the Foxtel from Telstra bundled customer calls………

While we have identified some suitable positions for redeployment it does mean there is the potential for redundancy. To be clear, no decisions have been made pertaining to who will be affected and how……..

Redeployment opportunities

The following opportunity has been identified as suitable redeployment:

•  Accounts Management Team Leader (Advanced Billing and Collections) x 1

•  Social Team Leader (Customer resolutions) x1 (3 month secondment)

Expression of interest

You will be given the opportunity to outline your preference of employment through an expression of interest process. Your preferences are based on considerations in the following areas:

1. Whether you wish to redeploy into one of the above areas:

2. Remain in the Telstra Change department

3. Potential redundancy

To express your interest you will be required to send me an email by 5pm Thursday 16 March 2017 outlining your preference. You will not be required to complete a job application or provide your resume (expressions containing additional information will not be looked upon more favourably than others).

If you decide to express interest in redeployment you will not be forfeiting your opportunity to stay within the Telstra Change department (in the case you are not successful in redeployment). Similarly by expressing interest in any of the three options above, you are not guaranteed to receive your preference……….’

[17] Ms Webber responded to Ms Duffin on 16 March 2017 as follows:

‘Hi Marnie,

I would like to Remain in the Telstra Change department.

My heart, passion and drive is sales, but my biggest strength is developing agents and helping them reach their full potential! I make coming to work enjoyable for everyone and I love what I do.’

[18] It was Ms Webber’s evidence that she interpreted Ms Duffin’s email requiring a preference to be a single preference. Ms Webber contended that if she had known she needed to prioritise her preference (for example 2, 1, 3) she would have done so. 2

Meeting on 21 March 2017

[19] On 21 March 2017, Ms Webber attended a meeting with Mr Parrish and Ms Duffin. Ms Webber was advised her role was being made redundant. Ms Webber’s evidence was that Ms Duffin advised her that the decision to make Ms Webber’s role redundant involved a consideration of skills, capability and behaviour. Ms Duffin also advised Ms Webber that she had been chosen because she had been issued a verbal warning in December 2016, and that she was the only Team Leader who was on performance management. 3

[20] Ms Webber sought clarification of what key performance indicators (KPI’s) had been used in regards to her skills, capabilities and behaviour, to which she was advised by Ms Duffin that KPI’s regarding quarter time, end of year reviews, average revenue per unit, adherence and quality for 2015 and 2016 had been considered.

[21] It was Ms Webber’s evidence that Ms Duffin told her that the decision to make her redundant ultimately came down to her prior verbal warning, and that Mr Parrish told her that the fact she was on performance management had a higher weighting over the other considerations, which was the deciding factor. At the end of the meeting, Ms Webber advised Ms Duffin and Mr Parrish that she would need the following day off to care for her son who was unwell.

[22] Ms Webber stated that she was not offered the opportunity to have a support person attend the meeting with her, and as she was inexperienced in meetings of that nature, assumed this was normal practice.

[23] Ms Webber was issued with a letter dated 21 March 2017, relevant parts reproduced below:

‘Dear Elizabeth,

I refer to my email on Tuesday, 14 March 2017 regarding the structure changes in Telstra Change.

We asked you to let us know of any feedback or questions regarding the redundancy proposal during the consultation period. You did not provide any feedback for us to consider, other than your response to the Expression of Interest process. As a result of the changes discussed, your role of Team Leader will no longer be required and will become redundant on 31 March 2017……..’

22 and 23 March 2017

[24] On 22 March 2017, Ms Duffin held a meeting with the Telstra Change Department employees. Ms Webber was on carer’s leave, attending to her ill son. Ms Duffin announced to the Telstra Change Department that Ms Webber and another employee were two Team Leaders who were going to be made redundant.

[25] Ms Duffin then announced that Ms Webber would be away from work for a few days and would return when she felt better. When Ms Webber became aware of this statement of Ms Duffin, she considered that it portrayed her to be emotionally unstable, when in fact Ms Duffin and other employees knew that Ms Webber was caring for her ill son. Early in March 2017, Ms Webber had pre-booked herself off work on 23 March 2017 to attend a medical assessment with her son, which would account for the next day’s non-attendance at work.

[26] On 23 March 2017, Ms Duffin sent the following email to the Telstra Change Department, relevant parts reproduced below:

‘Hi Everyone,

I wanted to give you [an] update, on where we are:

•  I still have approx.. 5 agents to speak with about their personal outcomes, as there have been some complexities or difficulty contacting them (as they are out of the business), so thank you for your patience & understanding.

•  As you know, Elizabeth Webber (Bee) & [name] have unfortunately been made redundant. I know this is a really difficult & sad time for them & their teams, & we naturally will continue to show them support & respect during this time…….’

[27] Ms Webber considered the email, naming her and the other Team Leader as the employees who were to be made redundant to be demeaning. It was her evidence that with all of the redundancies Foxtel had been involved in over the previous 12-16 months, the names of the employees who had been made redundant were not broadcast to the other employees. 4

Meeting on 29 March 2017

[28] Ms Webber attended a meeting with Ms Hutt and Ms Duffin. It was Ms Webber’s evidence that Ms Hutt offered her a redeployment opportunity, in the billing team of Viva, a department within Foxtel. The role was a temporary position of Inventory Administration Assistant on the same base salary as the Team Leader role on a month-to-month basis. 5

[29] Ms Webber responded that she needed to consult her partner due to the difference in income the position offered as a result in the loss of commission. Ms Webber’s evidence was that her partner worked in a call centre and was unable to receive personal phone calls during work time. Ms Webber felt pressured to make a decision on her own, and asked if she could communicate her answer the following morning.

[30] Ms Webber’s evidence was that Ms Duffin explained that she required an answer as soon possible because if she didn’t accept it, they would need to act quickly and secure another person for the role. Ms Webber denies that she was informed that Foxtel needed an answer from her by 3.00pm that day. It was Ms Webber’s evidence that if that had been said, she would have made every effort to contact her partner to urgently discuss the potential for redeployment.

[31] At 11.04am, Ms Webber emailed Ms Hutt the following:

‘Hi Rachel,

Thanks for meeting with me today. I appreciate you taking the time to consider me for this temporary role.

If you are willing to pay me average commission while I assist your department on a month to month basis, I will be more than happy to start effective Monday 03/04/17.

If you are unable to meet my terms, I understand and I will still finish this Friday 31/03/17.

Again, thanks for thinking of me Rachel.’

[32] Ms Hutt responded at 12.22pm as follows:

‘Hi Elizabeth, thank you for getting back to me so quickly.

Unfortunately we are unable to pay an average commission for this task.

It was nice meeting you today, I wish [you all] the best in your new endeavours.’

[33] It was Ms Webber’s evidence that she discussed the offer with her partner that evening, who told her she should take it as an interim position while she looked for other employment.

Conversation on 30 March 2017

[34] Ms Webber attended a team meeting on the morning of 30 March 2017. The office was impacted by the arrival of Cyclone Debbie. Following the team meeting, Ms Webber asked Ms Hutt if the billing role was still available and informed her that she would like to accept the role. Ms Hutt advised her she would have to get back to her, as the role had been accepted by someone else. Following the meeting, all employees were advised to leave the office due to the extreme weather caused by the cyclone.

[35] It was Ms Webber’s evidence that later that day at 4:09pm, she received the following text message from Ms Duffin:

‘Bee, Rachel emailed below not sure if she called you too?

Hi Elizabeth, sorry I have not got back you sooner after you spoke with me this morning.

Unfortunately we have obtained additional staff to help with this role as a result of your response yesterday, so no longer have this option available to offer you.

Regards

Rachel’

[36] Ms Duffin also informed Ms Webber by text that the office would not be open on 31 March 2017 due to the cyclone. This date was to be her final day of employment. Ms Webber sent Ms Duffin the following text, and the reply follows:

‘Marnie, FYI – providing its safe, I’m going to come in tomorrow & pick up the rest of my stuff & drop off my security pass. I’ll leave with security.’

‘Hi Bree, hope your safe, the office is closed, you will nee to wait till Saturday as Security are under ‘lockdown’ processes. Crazy right! M’

‘Ok’

[37] Following her employment ending on 31 March 2017, it was Ms Webber’s evidence that she became aware that the Social Media role was still available when she saw it advertised on Seek and on Foxtel’s intranet on 11 April 2017.

Cross-examination of Ms Webber

[38] In cross-examination, Ms Webber agreed that as a Team Leader she had often met with Foxtel’s People and Culture (P&C) team to discuss any issues she had with any team members. She had consulted with the P&C team relevant to a pay inquiry, and had a good relationship with Ms Shannon Bennett of the P&C team.

[39] Ms Webber conceded that she had not been aware that some roles were available at a location in Robina because she had not visited Foxtel’s careers page to review opportunities for redeployment. It was her evidence that she did not recall being informed about the Foxtel careers page, however she acknowledged that it was referred to in the redundancy letter issued to her, together with the Frequently Asked Questions attached to the redundancy letter.

Mitigation

[40] On 29 May 2017, Ms Webber commenced alternative employment, earning $50,000 per annum, plus a vehicle. She had applied for numerous roles.

[41] Ms Webber’s base salary with Foxtel was approximately $57,000 per annum, however with commission payments, her remuneration was typically around $92,000 per annum. Ms Webber gave evidence at hearing that had she known the Social Media Team Leader temporary role was paying a base salary of $70,000 per annum, she would not have hesitated in expressing an interest in the role. 6

Ms Webber’s submissions

[42] Ms Webber submitted that her dismissal was not a case of genuine redundancy in accordance with s.389 of the Act. Ms Webber does not dispute that Foxtel no longer required her role to be performed because of changes in the operational requirements of Foxtel’s enterprise. Accordingly, Ms Webber does not quibble with Foxtel relevant to s.389(1)(a) of the Act.

[43] Ms Webber submitted that her dismissal was not a genuine redundancy, as Foxtel failed to comply with its obligation to consult with her about the redundancy, as required by the Clerks – Private Sector Award 2010. Ms Webber submitted that Foxtel failed to meet its consultation obligations for the following reasons;

•  Foxtel did not consult with her regarding the Social Media role, except for the expression of interest email on 14 March 2017;

•  Foxtel did not allow her a reasonable amount of time to consider the offered billing role; and

•  Foxtel advised her that the billing role had been given to another agent, and it is Ms Webber’s evidence the role was then not filled until May 2017. 7

[44] Ms Webber relied on the decision of Catanzariti VP in Piper v Pacific Coast Contractors Pty Ltd T/A Hope Estate Wine Group where it was held that merely informing the employee of their redundancy did not amount to consultation as required by the relevant award. 8

[45] Ms Webber submitted that there were several roles in which she could have been redeployed, both within Foxtel or the enterprise of an associated entity. Ms Webber submitted that there were suitable vacant positions that she could have been deployed into, including an Outbound Sales Team Leader, a Social Media Role, and the billing role which Ms Webber argues she was not given a reasonable amount of time to consider. Ms Webber stated the Outbound Sales Team Leader role was available when she was notified of potential redundancies on 14 March 2017, but was never communicated as an available position, and was later backfilled by another employee.

[46] It was submitted that it had been unfair to allow Ms Webber only a small number of hours to consider if she could accept the month-to-month billing role, when she had made it clear she wished to consult overnight with her partner. The employee who was that very day offered the role and accepted the role held an advantage over Ms Webber in that the other employee was at home with her husband when she was telephoned, and was able to immediately consult with her husband and accept the role.

[47] Ms Webber further submitted there were redeployment opportunities within the enterprise of an associated entity, including opportunities within Telstra’s Gold Coast Call Centre or Telstra’s retail stores, and that Foxtel never sought any redeployment opportunities in any of their associated entities. Ms Webber considered she was capable of fulfilling any of those positions.

[48] Ms Webber submitted that given her dismissal was not a case of genuine redundancy, the dismissal was harsh, unjust and unreasonable.

Overview of Foxtel’s evidence

Evidence of Mr Steve Parrish

[49] Mr Parrish gave evidence that the business gained approval for carrying out the restructure on 3 March 2017, and that he, along with Ms Portwain had sought out redeployment opportunities to reduce the amount of redundancies. Mr Parrish stated this process included structure changes and creating new roles in other departments. 9

[50] It was Mr Parrish’s evidence that he attended the meeting with Ms Duffin and Ms Webber on 21 March 2017, where they communicated to Ms Webber that her role was to be made redundant.

[51] Regarding the 21 March 2017 meeting, Mr Parrish’s evidence was that Ms Duffin informed Ms Webber her position was being made redundant, and explained that the decision involved a consideration of behavioural and performance based criteria including disciplinary history. Mr Parrish stated that Ms Webber was particularly concerned that her disciplinary history was taken into consideration.

[52] It was Mr Parrish’s evidence that in response to questioning from Ms Webber that the fact she had a verbal warning was the reason she was assessed unfavourably, he had advised Ms Webber how the scoring had worked, and confirmed her verbal warning was a factor in being selected for redundancy.

[53] Mr Parrish further stated that Ms Webber was directed to Ms Bennett should she have further questions about the process, and that Ms Webber did not express interest in the Social Media Role, or other interest in redeployment at the meeting.

[54] On 28 March 2017, Ms Hutt approached Mr Parrish to find a suitable person to fulfil a temporary role; the billing role. She stated that she was looking for a person with VIVA experience. Mr Parrish nominated Ms Webber and encouraged Ms Hutt to offer to Ms Webber the role.

[55] Prior to approaching Ms Webber to offer to her the role, Ms Hutt obtained approval to offer to Ms Webber the same amount as her base salary for the role in which she was employed. This amount was more than what Foxtel had wanted to pay for the role.

[56] Mr Parrish was informed on 29 March 2017 that Ms Webber had been offered the role but had declined it as she wanted her average commissions to be included on top of the base salary.

[57] Relevant to the Social Media Team Leader role, at the hearing evidence was lead that because none of the individuals who were provided with the letter dated 14 March 2017 had expressed an interest in the role, Foxtel made other arrangements for the role. Mr Parrish’s evidence was that the role was an important one, and Foxtel needed to act swiftly. When no interest was shown in the role, Mr Nick Kingsman absorbed the role into his primary role of Communities Manager.

[58] Relevant to any redeployment Foxtel undertakes with employees who are to be made redundant, Mr Parrish acknowledged that recently 140 or so Foxtel employees were to be made redundant. The employees were working within Foxtel kiosks in shopping centres. Inquiries were made of Telstra management as to whether the employees could be redeployed. Mr Parrish’s evidence was that this was done because both the Foxtel kiosks and the Telstra work was retail work. 10

[59] At the hearing, Mr Parrish was unsure if Foxtel is an associated entity of Telstra Media Pty Ltd and/or Sky Cable Pty Ltd.

Evidence of Ms Shannon Bennett

[60] Ms Bennett’s evidence was that she supported Ms Duffin in completing the assessment and selection process of who would be made redundant.

[61] Ms Bennett’s evidence was that Mr Parrish approached her following the meeting of 21 March 2017 with Ms Webber, and notified her that he had advised Ms Webber to reach out to her if she had any further queries after being informed of her redundancy. Ms Bennett’s evidence was that Ms Webber did not reach out to her following the meeting.

Evidence of Ms Rachel Hutt

[62] It was Ms Hutt’s evidence that on 22 March 2017 she was tasked with filling a project role ‘Supply Chain’ within Foxtel. On 28 March 2017, Mr Parrish advised her that Ms Webber required redeployment.

[63] Ms Hutt and Ms Duffin met with Ms Webber on 29 March 2017 and offered Ms Webber a temporary Inventory Administration Assistant role; the billing role. It was Ms Hutt’s evidence that Ms Webber responded to the offer saying that she was unsure whether she was interested in the role. Ms Hutt then told Ms Webber that they needed to fill the positions urgently, and asked Ms Webber to commit to coming back to her by 3:00pm that afternoon as to whether she would accept the position.

[64] Ms Hutt had two roles to fill, and following the meeting with Ms Webber, she offered another employee one of the roles. When the other employee accepted the role later that day at the commencement of her shift, she exclaimed that she was very excited to be given the opportunity.

[65] Ms Webber sent to Ms Hutt the email at [31], and Ms Hutt responded at [32]. Understanding that Ms Webber was not interested in the role unless average commission could be paid (which it could not), Ms Hutt then offered the remaining role to another employee. The other employee accepted the position on the afternoon of 29 March 2017.

[66] Ms Webber briefly spoke with Ms Hutt on 30 March 2017 advising that she had changed her mind about wanting to receive commission with the offered role. Ms Hutt advised her that since receiving her email the temporary role was no longer available as both of the roles she had been tasked to fill had by then been filled.

[67] Ms Hutt undertook to learn if a third role was required, and she made relevant inquiries. She was informed that only two roles were required, and they had been filled.

Evidence of Ms Alexandra Yacoub

[68] Ms Yacoub gave evidence that Foxtel’s social media team reports into her. The incumbent Social Media Team Leader finished with Foxtel on 17 March 2017. Expressions of interests for the role were sought between 14 and 16 March 2017.

[69] Ms Yacoub stated the following in evidence: 11

‘No one had also approached me to ask me any questions about the role or any questions about, you know, what the requirements of the role was. There was no indication that anyone was interested at the time.’

[70] When no interest was shown, on a date between 17 March and 23 March 2017, Ms Yacoub approached Mr Kingsman to take on the responsibility of the role, together with his existing role. Ms Yacoub stated that Mr Kingsman agreed on-the-spot to taking on the additional duties, and then took annual leave until 4 April 2017.

Evidence of Ms Lesley Portwain

[71] Ms Portwain gave evidence that Foxtel does not consult with Telstra or News Corp regarding changes to workplaces, including redundancies. When Foxtel is considering making employees redundant, opportunities are explored across Foxtel, with inquiries to the People & Culture team.

[72] Ms Portwain conceded that inquiries were not made of Telstra in the circumstances of Ms Webber’s dismissal. The work that Ms Webber and her colleagues were performing at Foxtel for Telstra was being sent offshore to the Philippines.

Overview of Foxtel’s case

[73] It was Foxtel’s submission that Ms Webber’s dismissal was a case of genuine redundancy, and that Foxtel has met its obligations in regards to consultation about the redundancy pursuant to the modern award, and considered all relevant redeployment opportunities available within their enterprise.

[74] Ms Webber does not dispute that Foxtel no longer required her role to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[75] Foxtel submitted that Ms Webber was notified of changes to Telstra Change department on 14 March 2017, and that Ms Webber confirmed she attended two meetings regarding the restructure on 14 March 2017 and received written communication confirming the proposed structure changes and the potential impacts.

[76] Foxtel submitted Ms Webber was afforded many opportunities to consult regarding the operational changes, including the following occasions 12;

‘a) 14 March 2017 - During the leadership meeting

b) 14 March 2017 - During the department floor meeting

c) 14 March 2017 - Upon receipt of email to Team Leaders outlining proposed changes

d) 15 March 2017 - Upon receipt of email to entire department outlining frequently asked questions

e) 16 March 2017 - In email response to the Expression of Interest process

f) 21 March 2017 - During the meeting delivering the outcome of redundancy

g) 21 March 2017 - The Applicant was offered to arrange a meeting with Ms Bennett, People & Culture Consultant to discuss the Assessment and Selection process

h) 22 March 2017 - When Ms Duffin phoned the Applicant

i) 29 March 2017 - When Ms Duffin and Ms Hutt met with the Applicant to discuss temporary redeployment opportunity

j) 31 March 2017 - When Ms Duffin [attempted to] phone the Applicant’

[77] Foxtel submitted that consultation is a two-way obligation, and it is not clear why Ms Webber did not seek out Ms Duffin, Mr Parrish or Ms Bennett if she had further questions or inquiries during the period 14 March – 30 March 2017.

[78] It was submitted that Ms Webber did not seek opportunities on Foxtel’s career page, contrary to what she had been instructed to do both verbally and in writing.

Social Team Leader role

[79] Relevant to the Social Team Leader role, Foxtel submitted that Ms Yacoub gave evidence during the hearing that the role was an interim position while Foxtel recruited for a senior management role. The incumbent of the temporary role had resigned and was finishing her employment on 17 March 2017.

[80] Ms Webber and the other affected Team Leaders had been given until 16 March 2017 to express an interest in the role, which would then be considered by Foxtel. Ms Webber and other colleagues did not express an interest in the role. Given there was no interest from affected employees, and urgently requiring the duties to be performed, Foxtel’s Communities Manager was approached regarding taking on the additional role.

[81] The Communities Manager was approached relevant to this request on or about 17 March 2017, and he verbally accepted this on the same day.

[82] Ms Webber was then notified on 21 March 2017 that she had been selected for redundancy. By this date the role was no longer available, and she had earlier declined an interest in the role.

Outbound Sales Team Leader role

[83] Foxtel submitted that the Outbound Sales Team Leader role was not available at the time Ms Webber was informed her role was to be made redundant.

[84] It had been established at the relevant time that the role would not be replaced as a Team Leader role due to budget constraints.

Inventory Administrator (billing) role

[85] It was Foxtel’s submission that the fact that Ms Webber was offered the role on 29 March 2017, shortly after the role had been identified, demonstrated that Foxtel continued to seek redeployment opportunities for affected staff throughout the notification period.

[86] The budgets for the roles were less than what Ms Webber and other Team Leaders were being paid, but approval was given to increase the rate in order to offer the role to Ms Webber.

[87] Foxtel submitted that Ms Webber was given until 3.00pm to consider whether she would accept the role, and given she had been aware since 21 March 2017 that she was going to be made redundant on 31 March 2017, time was of the essence.

[88] Ms Webber was being asked if she wished to accept the temporary, month-to-month role without it affecting her rights to a severance payment when the temporary role expired.

[89] Shortly after Ms Webber declined the role offered, it was accepted by another employee, and accordingly, when Ms Webber sought to accept the offer on 30 March 2017, it was no longer available.

[90] Foxtel submitted that the second employee who accepted the role, Ms B, was on a secondment which was due to finish in April. The manager who wished for Ms B to take on the billing role was comfortable to wait for the secondment to be completed, and in any event, Ms B was on a lower base salary than Ms Webber would have been if she had accepted the role.

[91] In April 2017, Ms B’s secondment was extended to allow her to finish projects assigned to her during the secondment, and she then didn’t commence in the billing role until May 2017. The duties of the role in April were redistributed, and no person was employed in the role until Ms B commenced in May 2017.

[92] Foxtel submitted that it had complied with s.389(2)(a) in that it had done all that was necessary to make diligent and suitable inquiries to determine if Ms Webber could be redeployed within Foxtel.

Associated entities of Foxtel

[93] During the hearing it became apparent that Foxtel had not given consideration to whether Foxtel had any associated entities relevant to the examination required in s.389(2)(b).

[94] Section 12 of the Act defines ‘associated entity’ as follows:

‘associated entity has the meaning given by section 50AAA of the Corporations Act 2001.’

[95] Sections 50AAA and 50AA of the Corporations Act 2001 (Corporations Act) provide as follows:

‘50AAA Associated entities

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(4) This subsection is satisfied if:

(a) the associate controls the principal; and

(b) the operations, resources or affairs of the principal are material to the associate.

(5) This subsection is satisfied if:

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(c) the interest is material to the associate.

(6) This subsection is satisfied if:

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(c) the interest is material to the principal.

(7) This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

50AA Control

(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(2) In determining whether the first entity has this capacity:

(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

(4) If the first entity:

(a) has the capacity to influence decisions about the second entity’s financial and operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.’

[96] At the conclusion of the hearing I provided the parties with an opportunity to make written submissions relevant to whether Foxtel has any associated entities, and if so, the consideration required relevant to s.389(2)(a). I also directed the parties to file written submissions relevant to s.387 in the event the Commission did not find the dismissal was the case of a genuine redundancy. The parties also filed material relevant to remedy.

[97] Foxtel initially filed submissions relevant to s.50AA of the Corporations Act, relevant to whether Telstra Media Pty Ltd or Sky Cable Pty Ltd could exercise control over Foxtel, considering they each own a 50% shareholding. The Commission requested the parties address the Commission relevant to s.50AAA, and on 15 November 2017, further submissions were filed by Foxtel.

[98] Foxtel conceded that s.50AAA(6) of the Corporations Act had been met, when consideration is given to s.50AAA(8). Foxtel accepted that each of Sky Cable Pty Ltd and Telstra Media Pty Ltd have an asset that is an investment in Foxtel, being each of their 50% shareholdings, consistent with the definition of ‘investment’ in the Corporations Act. 13

[99] The examination in s.50AAA(8) is whether (a) or (b) is met. Foxtel has conceded that subsection (a) has been met. Further, Foxtel conceded that subsection (b) has also been met. The Commission has previously held that where two companies who each hold 50% shareholding of a third company, and who each appoint half of the directors of the board of the third company, each of the two companies has a ‘significant influence’ over the third. 14

[100] Foxtel submitted that s.50AAA(5) also applied, however I disagree that Foxtel as the associate has a qualifying investment in the principal (Telstra and Sky Cable). Foxtel does not have significant influence over the principal (Telstra and Sky Cable).

[101] Foxtel conceded, and I agree that Telstra Media Pty Ltd and Sky Cable Pty Ltd are associated entities of Foxtel.

Reasonable in all the circumstances

[102] Foxtel relied on a Full Bench decision in Ulan Coal Mines v Honeysett and others 15 where the Full Bench said:

‘[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical questions which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.’

[103] Foxtel also relied on the Full Bench authorities in Stickley & Ors v Kestrel Coal Pty Ltd 16 the Full Bench upheld the decisions of Spencer C, determining in those four matters that the respondent employer could not influence the recruitment decisions of other entities within the parent organisation.

[104] It was Foxtel’s contention that relevant to [27] of the Ulan decision, managerial integration between the different entities is a likely consideration, and regard should be had to Foxtel’s operation as an autonomous business with its own board and management structure. It was submitted that Foxtel does not have power to influence the recruitment decisions of either Sky Cable Pty Ltd and Telstra Media Pty Ltd.

[105] The Full Bench in Ulan made the following observations in relation to s.389(2)(b) of the Act: 17

‘[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[35] Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.’

Consideration

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s.389(1)(a))

[106] Ms Webber does not contest that Foxtel no longer required her job to be performed by anyone else because of changes in the operational requirements of Foxtel. It is clear and I am satisfied this criteria has been met; the work was destined to be performed in the Philippines.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s.389(1)(b))

[107] There is no dispute between the parties and I am satisfied that Ms Webber was covered by the Clerks – Private Sector Award 2010 during her employment with Foxtel.

[108] I am satisfied on the evidence that Foxtel made a definite decision by no later than 3 March 2017 to introduce major changes in organisation or structure that were likely to have significant effects on employees. The communication to Ms Webber on 14 March 2017 was in writing, and invited Ms Webber to inform Foxtel of her expression of interest in being considered for other roles, staying in the department, or being made redundant.

[109] The communication to Ms Webber on 14 March 2017 included an invitation to consider applying for the interim Social Media Team Leader role. Ms Webber did not express an interest to be considered for the role, and by 17 March 2017, Foxtel had decided to absorb the duties of the role into the work performed by another manager.

[110] Ms Webber was advised in writing and in person on 21 March 2017 that she had been selected to be made redundant. The concerns raised by Ms Webber as to the fairness of Foxtel’s decision relevant to her disciplinary are not matters that need be taken into consideration in the requirement to consult.

[111] Ms Webber submitted that Foxtel should have consulted further with her relevant to there being no expressions of interest made in the Social Media Team Leader role by 16 March 2017. It was her contention that if there had been further consultation with her in relation to this role, redundancy would have been avoided in all the circumstances.

[112] At the time the temporary role was flagged to Ms Webber on 14 March 2017, she did not know that she was to be selected to be made redundant. There was no evidence before the Commission that at 16 March 2017, the date the expression of interest closed, Ms Webber was an employee selected to have been made redundant.

[113] The Social Media Team Leader role was no longer available by 17 March 2017 when Mr Kingsman accepted the role into his other duties. On 21 March 2017 when Ms Webber was informed her role was redundant, the role did not exist, and there was nothing further to consult with Ms Webber relevant to that role.

[114] There was a period between 14 March 2017 and 21 March 2017 when Foxtel consulted with Ms Webber. In the circumstances, I am satisfied this was a suitable period of time for meaningful consultation to occur.

[115] At the time the decision was made by 21 March 2017 to make Ms Webber redundant, I am satisfied Foxtel complied with the obligations in the Clerks – Private Sector Award 2010 to consult with Ms Webber about the redundancy of her job.

Was it reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer (s.389(2))

[116] For the purposes of s.389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. The Full Bench in Technical and Further Education Commission T/A TAFE NSW v Pykett 18 determined that there must be an appropriate evidentiary basis for such a finding:

‘[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee’.

[117] As has been determined in Ulan, it is necessary to assess the reasonableness of redeployment in all the circumstances.

[118] The Full Bench in Pykett had regard to the tense used in s.389(2), which states:

‘...if it would have been reasonable in all the circumstances for the person to be redeployed within...the employer’s enterprise.’ (emphasis added)

[119] The Full Bench further stated at [24]:

‘The use of the past tense in this expression directs attention to the circumstances which pertained at the time the person was dismissed.’

[120] In relation to Foxtel’s attempts to redeploy Ms Webber within Foxtel, the following facts are clear:

(a) Before Ms Webber was informed her employment was redundant she was given the opportunity to express an interest in the Social Media Team Leader role;

(b) Ms Webber did not express an interest in the Social Media Team Leader role; in fact nobody did;

(c) The expression of interest was available to Ms Webber until 16 March 2017. On 17 March 2017, another manager was informed, and agreed to the Social Media Team Leader duties being absorbed into his duties;

(d) After Ms Webber was informed of the redundancy of her role on 21 March 2017, she was informed she could consult the Foxtel career page on the intranet. Between 13 March 2017 and 27 March 2017 only three roles were available, including the temporary Social Media Team Leader role, and a Social Media Manager. Ms Webber did not review the Foxtel career page;

(e) On 29 March 2017, Ms Webber was offered a temporary billing role on a month-by-month basis, which if she accepted, would not affect her right to be paid severance at the conclusion of the temporary assignment;

(f) Ms Webber informed Foxtel she would only accept the role if Foxtel agreed to pay average commission, and if Foxtel could not meet those terms, she understood she would be made redundant;

(g) Foxtel promptly replied to say regretfully that term could not be agreed to;

(h) Ms Webber reconsidered her position, and after consulting with her partner, informed Foxtel on 30 March 2017 she would like to accept the temporary role;

(i) At the time Ms Webber informed Foxtel of this decision, the role had been filled by another person, and on further inquiries being made, an additional role could not be made to accommodate Ms Webber.

[121] I am satisfied it would not have been reasonable in all the circumstances for Ms Webber to have been redeployed in the role of Social Media Manager. The role was well beyond her experience and pay grade.

[122] The Social Media Team Leader role was not available when Ms Webber was informed her role was to be made redundant. It can also be said that she could have expressed an interest in the role when it was contemplated on 14 March 2017.

[123] As to whether Ms Webber could have been redeployed into the Outbound Sales Team Leader role, on the evidence before the Commission, this was backfilled by a more junior employee on or around 13 March 2017. It was not a role that was available between 14 March 2017 when Ms Webber was consulted about potential redundancies, and 31 March 2017 when her employment ended.

[124] As to Ms Webber’s submission that it was unfair to allow a colleague the opportunity to consult with her partner in consideration of the month-to-month billing role, and only allow herself a few hours to consider it, Ms Webber provided a clear statement that she did not consider the role to be a suitable alternative role. She chose not to accept the role offered without additional payment. She made that decision as a mature adult. On reflection, and after discussing with her partner overnight, she informed Foxtel she would accept the temporary role. It was not, however, available at this time.

[125] I do not consider that Foxtel did anything inappropriate in relation to these inquiries of Ms Webber. Ms Hutt made suitable inquiries, and it is clear that Mr Parrish had Ms Webber in his mind when he suggested to Ms Hutt to inquire of Ms Webber if she would like the role. Ms Hutt even made inquiries and obtained approval to offer to Ms Webber an increased salary than Foxtel wished to pay for the role.

[126] Quite simply, Ms Hutt offered the role to Ms Webber, and upon Ms Webber’s failure to accept the temporary role, Ms Hutt offered it to another employee who fortunately had the opportunity to consider the decision with her husband’s input. There was no obligation on Foxtel to await Ms Webber’s answer until she had the opportunity to discuss the offer with her partner.

[127] For the reasons above, I am satisfied that Foxtel undertook all appropriate and relevant considerations to redeploy Ms Webber within Foxtel. Accordingly, I find that on this consideration, Ms Webber’s dismissal was a case of genuine redundancy.

[128] As to Foxtel’s consideration of informing itself if it a) had any associated entities, and b) those associated entities had redeployment opportunities, it is clear on Foxtel’s evidence that it did not know it had any associated entities within the meaning of the Corporations Act, and therefore did not make inquiries of them.

[129] Foxtel submitted that even if it was aware of the Act’s obligation to consider in all the circumstances if redeployment was reasonable into Telstra Media Pty Ltd or Sky Cable Pty Ltd, it would not have been able to do so because Foxtel does not have any decision making power within the parent entities.

[130] On matters of jurisdictional objections by respondents, it is necessary for the respondent to satisfy the Commission of the objection. Having regard to the authorities in Ulan, Kestrel and Pykett, it is incumbent on Foxtel to demonstrate in the form of evidence that it would not have been reasonable in all the circumstances for Ms Webber to be redeployed within Telstra Media Pty Ltd or Sky Cable Pty Ltd.

[131] Foxtel has supplied insufficient evidence before the Commission for a determination to be made relevant to s.389(2)(b). It is clear, and I am satisfied that both Telstra Media Pty Ltd and Sky Cable Pty Ltd are associated entities of Foxtel, in that those two companies are the principals relevant to s.50AAA of the Corporations Act, and Foxtel is the associate.

[132] On review of the Telstra Group’s annual report, Telstra Corporation Limited appears to be the principal entity, with approximately 48 controlled entities. Telstra Corporation Limited owns 100% of Telstra Media Pty Ltd.

[133] The following is noted in the Telstra Group annual report: 19

‘(b) Foxtel joint venture Our joint venture Foxtel includes Foxtel Partnerships and its controlled entities, Foxtel Television Partnership, Customer Services Pty Ltd, Foxtel Cable Television Pty Ltd and Foxtel Management Pty Ltd and its controlled entities. Foxtel is not a publicly listed entity. Telstra has a strategic partnership with Foxtel primarily delivering subscription television services over cable, satellite and broadband to our customers in Australian regional and metropolitan areas.’

[134] The only evidence at the hearing was given by Mr Parrish and by Ms Portwain that consideration was not given to ‘Telstra or to Newscorp’ as to whether Ms Webber could be redeployed in those associated entities.

[135] Ms Webber submitted that there might be a Telstra call centre located nearby on the Gold Coast, and this is run by Stellar.

[136] I have determined that there is insufficient evidence before the Commission relevant to the consideration necessary at s.389(2)(b). On the evidence before the Commission it is not possible to determine if it would have been reasonable in all the circumstances for Ms Webber to have been redeployed within Telstra Media Pty Ltd or Sky Cable Pty Ltd (or any further associated entities of those organisations).

Conclusion

[137] I accept Foxtel’s jurisdictional objection relevant to s.389(1). Ms Webber’s dismissal was a case of genuine redundancy pursuant to s.389(1) (a) and (b).

[138] I accept Foxtel’s jurisdictional objection relevant to s.389(2)(a). Foxtel has demonstrated that all reasonable efforts were made to redeploy Ms Webber within Foxtel, and I am satisfied that it would not have been reasonable in all the circumstances for Ms Webber to be redeployed within Foxtel.

[139] With respect to s.389(2)(b), I am not satisfied that there is sufficient evidence before the Commission to determine if it would have been reasonable in all the circumstances for Ms Webber to be redeployed within the enterprise of an associated entity of Foxtel.

[140] Directions will be set for the filing of material relevant to Telstra Media Pty Ltd and Sky Cable Pty Ltd, and all available roles at the time of the dismissal that Ms Webber could have been considered for redeployment.

[141] The parties, together with Telstra Media Pty Ltd and Sky Cable Pty Ltd will be at liberty to address the Commission relevant to the degree of managerial integration between the different entities, and any other relevant considerations.

[142] The parties are encouraged to give consideration to further conciliation of this matter. If requested, the Commission will make itself available to assist in that regard.

COMMISSIONER

 1   Foxtel Management Pty Ltd Outline of Submissions at [4b].

 2 Witness statement of Ms Webber at [5].

 3 Ibid at [8].

 4 Ibid at [13].

 5 Ibid at [24].

 6   PN349.

 7   Final Submission of Elizabeth Webber Under section 389 filed 7 August 2017.

 8   Piper v Pacific Coast Contractors Pty Ltd T/A Hope Estate Wine Group[2014] FWC 2891.

 9   Statement of Steve Parrish filed 5 June 2017.

 10   PN623.

 11   PN899.

 12   Foxtel Management Pty Ltd Outline of Closing Submissions filed 15 August 2017.

 13 Definition of ‘investment’, Section 9 of the Corporations Act which includes a share in a company as an investment in a company.

 14   Michael Smith v Alice Car Centre Pty Ltd T/A Peter Kittle Motor Company[2013] FWC 9093 at [30].

 15   Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578.

 16   [2015] FWCFB 4760.

 17   Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578.

 18   [2014] FWCFB 714.

 19   Telstra Group annual report page 138.

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