Police Federation of Australia v Victoria Police/Chief Commissioner of Police
[2022] FWCFB 11
•15 FEBRUARY 2022
| [2022] FWCFB 11 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Police Federation of Australia
v
Victoria Police/Chief Commissioner of Police
(C2021/7937)
| VICE PRESIDENT HATCHER | SYDNEY, 15 FEBRUARY 2022 |
Appeal against decision of Deputy President Masson at Melbourne on 3 November 2021 in matter number C2021/3053.
Introduction and background
The Police Federation of Australia (PFA) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Masson issued on 3 November 2021.[1] The decision concerned an application made by the PFA for the Commission to deal with a dispute with Victoria Police pursuant to s 739 of the Fair Work Act 2009 (FW Act) under the dispute resolution procedure in clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019[2] (Agreement). The dispute concerned whether employees in the Special Operations Group (SOG) of Victoria Police who were deployed interstate on a particular witness protection operation should have been remunerated in accordance with the provisions of clause 54 of the Agreement. Clause 54 provides:
54. Restrictive Work
54.1 This clause does not apply to an employee who is in receipt of a commuted overtime allowance or one-person station allowance.
54.2 For the purpose of this clause, "restrictive work" means where an employee is directed to undertake Witness Protection, Close Personal Protection work or Surveillance which involves:
(a) the requirement for an employee to remain away from the employee's usual place of residence; and
(b) the employee being restricted by operational requirements to the operational site or field of operation for the duration of the operation; and
(c) the employee remaining at the operation site after completion of the rostered hours of work; and
(d) the employee not being relieved from the operation site due to the requirements of the operation.
54.3 The employee will be entitled to payment as follows for all hours of restrictive work:
(a) For the first rostered shift period of restrictive work - at the employee's base hourly rate of pay;
(b) next three hours at one and a half times the employee's base hourly rate of pay;
(c) next five hours at double the employee's base hourly rate of pay;
(d) all remaining hours of the restrictive work are to be paid at one and a quarter times the employee's base hourly rate of pay.
54.4 Payments for restrictive work commence when an employee is recalled to work or, if at work, for the commencement of the employee's rostered hours of work on that day.
54.5 Payments for restrictive work cease when the employee, after being relieved from the restrictive work, leaves the workplace and has returned to their place of employment, residence or berth.
54.6 Where an employee is recalled to work after the completion of their rostered hours, entitlement to payment will commence at sub-clause 54.3(b), sub-clause 54.3 (c) or subclause 54.3(d) as appropriate.
54.7 Where possible, the application of this clause shall occur in a manner whereby necessary rest periods are incorporated on a daily basis.
The PFA’s position in the dispute was that clause 54 did not apply to SOG employees who were deployed on the operation in question and that, as a consequence, the employees were entitled to be paid overtime penalty rates until the completion of duty. Victoria Police’s position was that clause 54 applied and governed the remuneration of the SOG employees while deployed. The Deputy President determined that clause 54 applied. In its appeal, the PFA contends that the Deputy President’s conclusion was in error because neither of the conditions in clause 54.2(b) or clause 54.2(c) was satisfied.
We shall deal with each of the PFA’s contentions of error in turn. Our reasons will be more truncated than they otherwise would have been because of the need to avoid discussing matters which are confidential for operational reasons. In respect of the facts of the operation, it is sufficient to deal with the PFA’s contentions of error to state the following matters, which were not in dispute:
(1)The operation involved employees of the SOG being deployed interstate to assist with the protection of person/s located in a hotel/apartment building.
(2)While deployed, the employees were required to stay in or within the near vicinity of the building at all times (with one exception which is not relevant for present purposes).
(3)The deployment of SOG employees occurred over a period of 11 calendar days in total. Two teams of employees were deployed over this period, with the second team relieving the first so that neither team was engaged on the operation for the entirety of this period.
(4)For each deployment, the daily routine consisted of active duty between specified hours. Outside these hours, the employees rotated between remaining active on watch and resting. The employees resting were required to remain ready to deploy if required.
It is also not in dispute that the entitlements for which clause 54 provides were first established by a decision of the Victorian Public Service Board (PSB) issued on 29 May 1992[3] (1992 Decision), which concerned a claim advanced by the then Police Association for employees engaged in “restrictive duties” to receive additional benefits. In the 1992 Decision, the PSB said that the claim was intended to apply to two types of duty, namely witness protection and some kinds of surveillance work. The PSB said in relation to the claim:
“In both cases the essential feature of the work is that members are required to be in attendance and perform duty over an extended period of time. The intention of the claim is to provide entitlements to members over the whole of the period during which they are engaged in witness protection and surveillance work. The claim needs to be considered in the context of a variety of existing provisions: overtime rates, stand by payments, minimum breaks between shifts, excessive night shift provisions, penalty rates for shift work and recall to duty payments. It is not a ‘special duty’ allowance claim as that term is understood. It is an attempt to translate a number of existing entitlements into a more appropriate form of payment.”
The PSB described in detail the usual circumstances attending witness protection and surveillance operations. This included that “[t]here can be no roster in any meaningful sense” in relation to “an ‘around the clock’ operation spread over a 24 hour period”. The PSB also referred to the then-prevailing method of payment for such operations: “the first 8 hours at ordinary time, the next 6 hours at the appropriate overtime rates and the balance of the day at the ‘on call’ rate” and, in addition, shift payments. The 1992 Decision refers to a critical contest between the parties concerning the claim as to whether employees could be said to be “on duty” while resting but maintaining a state of readiness to return to duty as required during an operation running 24 hours per day. The PSB concluded:
“In the Board's view the determination of the issue of whether or not a member is on duty during particular operations should not only focus on what the members are doing throughout the period concerned. A concentration on what members are doing may give undue emphasis to an hour by hour or minute by minute analysis. Consideration should be given to the freedom or the capacity of members to do other things or to leave the location during times when it might be thought that they are not on active duty. When this aspect is considered it is abundantly clear that members are not able to engage in a whole range of activities because of the demands of the operation of which they are part. Moreover, there is no capacity to leave the operation for recreational, social or domestic purposes and no, or very limited, capacity to even communicate with others outside the operation.
…
Having regard to the evidence and to the respective submissions made by the parties, the Board has concluded that members engaged on witness protection operations and drug surveillance operations are on duty for the whole of the time that they are so engaged and that they should be so regarded by the provisions of the Determination.”
In relation to the provisions it awarded, the PSB said:
“Special provisions will be inserted into the Determination to cover members engaged in ‘witness protection’ and ‘drug surveillance’ operations. These terms will be defined to ensure that they cover the kind of operations which have been referred to in these proceedings. No distinction will be made between those who are provided with accommodation and sleeping amenities and those who are not. The Board has also determined that the relevant provisions should be consolidated and incorporated into an hourly loading which will operate beyond an initial period. Because drug surveillance activities are of uncertain duration and that they may not exceed a reasonable amount of overtime and because the substantial concern of this application is with prolonged operations, the Board has decided that the first 16 hours of such operations shall be paid in accordance with the ordinary provisions of the Determination. This will mean single time for the first eight hours, time and a half for the next 3 hours and double time for the next 5 hours.”
The PSB also said, in accordance with the Police Association’s claim, that the proposed provisions would operate to the exclusion of the various existing award conditions.
Clause 54.2(b)
The PFA’s first contention in its appeal is that clause 54 did not apply because the condition in clause 54.2(b) was not satisfied. It contends that none of the deployed SOG employees was restricted by operational requirements to the operational site or field of operation “for the duration of the operation” because the use of two teams of employees meant that no single employee stayed for the whole period of days during which the SOG employees were deployed on the operation.
The Deputy President rejected this contention in his decision for the following reasons:
“[79] The PFA’s construction would mean that if a team of employees who were deployed on a ‘Witness Protection’ operation that was planned to extend to 14 days, were relieved after 7 days by a new team, then all of the employees deployed at various times on the operation would not fall within the scope of clause 54(2)(b). That is because the employees were not required to remain for the ‘duration of the project’. It would be necessary in this example for the first team of employees to have remained deployed on the operation, without relief, for 14 consecutive days in order to come within the scope of clause 54(2)(b).
[80] The consequence of the above construction is that an employee deployed for only 7 days of the 14 day operation would not be on ‘restrictive work’ and would potentially be entitled to higher penalty (overtime) rates per day under the terms of the Agreement than if they were deployed for the entire 14 day operation. The issue of the higher penalty payments was a concern specifically raised and addressed by the PSB in its 1992 Decision. Moreover, how the construction advanced by the PFA can be reconciled with occupational health and safety obligations owed by Victoria Police to its employees is not readily apparent.
[81] The construction advanced by the PFA is likely to produce illogical and unreasonable outcomes that could not, in my view, have been intended by the drafters of the clause. Nor is there support for such a construction in the 1992 Decision in my view. I consequently reject such a construction. In order to give proper meaning to the clause it is necessary to construe the term ‘duration of the project’ by reference to the period of an employee’s deployment on the operation. To do otherwise would, as I have said, result in absurd outcomes. A construction that produces an absurd outcome is to be avoided.” (footnotes omitted)
The PFA submitted that the above reasoning and conclusion was in error because:
(1)The Deputy President did not apply the words of clause 54.2(b) in accordance with their plain and ordinary meaning. There was no dispute that the SOG operation lasted for 10 days [sic] and that no employee was “restricted by operational requirements to the operational site or field of operation” for that entire period. The Deputy President erred in substituting the “duration of the deployment” or “duration of their operational deployment” for the words “the duration of the operation” actually used in clause 54.2(b).
(2)The Deputy President took into account an irrelevant consideration when he tested the construction advanced by the PFA against the occupational health and safety obligations owed by Victoria Police to its employees. Further, the Deputy President failed to read the clause as a whole, given that clause 54.7 deals with the provision of rest breaks to deployed employees.
(3)The Deputy President engaged in hypothesis and impermissible considerations of what is fair and just when he compared employees deployed for only 7 days of a 14-day operation to employees deployed for the entirety of a 14-day operation.
We do not accept the above submissions, and we consider that the Deputy President was correct to determine that the condition in clause 54.2(b) was satisfied in respect of the circumstances of the dispute before him. The PFA’s case proceeds on the premise that the word “operation” in clause 54.2(b) is, on its plain meaning, referable in this case to the relevant witness protection “Operation” in its entirety. We do not accept this premise. The term “operation” used in clause 54.2(b) is not given any definition in the Agreement and is, on its ordinary meaning, a word of wide import which takes its colour from its context and the subject matter to which it is applied. Generally speaking, it means any act, process or manner by which work, treatment or activity is conducted or performed. That ordinary meaning is capable of application to the particular operational deployment of an employee. The following textual and contextual matters indicate that this is the preferable way to construe “operation” in clause 54.2(b):
(1)The chapeau to clause 54.2 is directed to “restrictive work” consisting of the circumstance where “an employee is directed” to undertake witness protection, close personal protection or surveillance work which bears the characteristics set out in paragraphs (a)-(d). This identifies the subject matter of clause 54.2 as being the particular work (involving witness protection, close personal protection or surveillance) which the employee is directed to undertake, with the analysis being whether the particular work of that employee has the requisite characteristics.
(2)The core condition or prerequisite concerning the work which the employee is directed to undertake which is established by clause 54.2(b) is that “the employee” must be “restricted by operational requirements to the operational site or field of operation”. That is, the relevant operational requirements must be those restricting the employee in relation to the site or field in which the employee is required to operate. These are matters which are required by clause 54.2(b) to apply only to the employee in question, and there is no requirement that any such restrictions also apply to anybody else involved in the relevant work. In this context, the expression “duration of the operation” is most naturally read as also being personal in its application to the employee in question rather than having any wider, more collective scope.
(3)Clause 54.2(d) is equally concerned with the circumstances applicable to the employee in question, namely that the operational requirements prevent that employee being relieved from the operation site. It conveys no requirement that anybody else be subject to the circumstances described.
(4)Clause 54.4 provides that payment for restrictive work starts when the employee in question is recalled to work or commences rostered duty, and clause 54.5 provides that payment for restrictive work cease when the same employee is relieved from such restrictive work and leaves the workplace to return to their normal work or residential location. Again, the focus of these provisions is upon the circumstances of the particular employee in question. There is no requirement in these provisions that the commencement and cessation of payment to the particular employee must coincide with the start and end respectively of the entire witness protection, close personal protection or surveillance activity in which the employee has participated – which there would need to be if the PFA’s construction were to be preferred.
The above construction is consistent with the 1992 Decision of the PSB, of which clause 54.2(b) is an historical product.[4] As the passage from the decision quoted in paragraph [4] above makes clear, the purpose of the claim advanced before the PSB was to provide entitlements to employees “over the whole of the period during which they are engaged in witness protection and surveillance work” – that is, for the period of employees’ deployments on this kind of work. The specific purpose of the prerequisite contained in clause 54.2(b) may be discerned in the passage from the 1992 Decision quoted in paragraph [5] above, in which the PSB identified a critical characteristic of the class of work it intended to address as being that the employee does not have the capacity to “do other things or to leave the location during times when it might be thought that they are not on active duty” or to “leave the operation for recreational, social or domestic purposes” and that employees “are on duty for the whole of the time that they are so engaged”. All these matters are concerned with the particular characteristics of the deployment of any employee on witness protection or surveillance work, and there is no indication whatsoever in the 1992 Decision that the PSB intended that the entitlements it awarded were conditioned upon each employee’s deployment being coterminous with the broader witness protection or surveillance activity being conducted by Victoria Police of which the employee’s deployment forms a part.
We reject the PFA’s submission that the Deputy President impermissibly engaged in hypothesis and took into account the fairness of the clause in its operation when he compared the position of employees deployed for only 7 days of a 14-day operation to employees deployed for the entirety of a 14-day operation. The Deputy President was entitled to test the competing constructions of clause 54.2(b) advanced before him by reference to the practical outcomes which they would produce, since the task of construction of an enterprise agreement is not to be conducted in a vacuum divorced from industrial realities.[5] We agree with the Deputy President that it does not make industrial sense, based on an application of the approach urged by the PFA, that an employee deployed for 14 days of a 14-day witness protection operation would be covered by clause 54 but an employee deployed for only 7 days in the same operation would not be covered by the clause and would receive a higher rate of pay due to the application of the overtime provisions of the Agreement. The PFA was unable to advance any sensible industrial rationale for such an outcome, and for the reasons already stated there is no indication in the 1992 Decision that the PSB intended an outcome of this nature.
Clause 54.2(c)
The PFA’s second contention in its appeal is that the condition for the application of clause 54 in clause 54.2(c) was not satisfied because the employees deployed on the operation had not been assigned rostered hours of work for each day of their deployment in accordance with clause 35. Absent rostered hours of work beyond which an employee may be required to remain at the operation site each day, the PFA contended, the condition in clause 54.2(c) cannot be satisfied.
The Deputy President also rejected this contention in his decision. The Deputy President interpreted clause 54.2(c) in the following way:
“[101] In my view clause 54.2(c) does not require that a formal roster must be in place for the duration of an operation. It merely requires that an employee must remain at the operation site following the completion of their rostered hours of work. In the case of an employee who commenced restrictive work during an ordinary rostered shift, the requirement is that the employees remains at the operation site following the completion of that rostered shift until released from the operation. In the case of an employee that commences the ‘restrictive work’ in a period that they are rostered off, the requirement to remain at the operation site commences immediately upon their recall and deployment to the operation site. Such a construction is consistent with the purpose of clause 54 and the payments provided for at clause 54.3.”
The Deputy President reached this conclusion for the following reasons:
(1)In predecessor instruments/agreements from 1992 until the agreement made in 2007, the equivalent provision to clause 54.2(c) had referred to nominal ordinary hours of work per day. The Victoria Police Workplace Agreement 2007 (2007 Agreement) introduced the current wording (clause 9.1.1(c)).[6] This was significant because the clause does not specify that employees must be rostered for eight (8) ordinary hours each day, which was an unrealistic construct given the nature of the work.[7]
(2)The regime of payment in clauses 54.3-54.6 specifically contemplates that employees may be recalled to undertake restrictive work following the completion of their ordinary hours of work, and the quantum of payments an employee is entitled to receive in the first 24 hours of restrictive work is impacted by whether the employee is required to commence restrictive work during their ordinary hours of work or after they had completed their ordinary hours and were recalled to work.[8]
(3)Whether an employee has rostered hours of work during each day of their deployment or has been recalled to work during an off-duty period does not impact upon the payments they are entitled to receive, save for the first 24 hours. Beyond this point the payment is uniform irrespective of whether an employee is rostered for ordinary hours of work or not.[9]
(4)As observed in the 1992 Decision, the notion of a roster is of limited relevance given the “round the clock” nature of restrictive duties.[10]
(5)The focus of clause 54.2(c) is on compensating employees in circumstances where they are unable to leave the operation site when they are not performing specific duties.[11]
(6)The clause does not require that an employee must have a roster that sets out their hours of work for the duration of their operational deployment. It merely sets out the requirement that they remain at the operation site after completion of the rostered hours of work. In circumstances where an employee has been recalled to work to undertake restrictive work duties that will extend over a period that the employee was rostered off duty, it will be sufficient for the purpose of qualifying under clause 54.2(c) that the employee remains at the operation site until the conclusion of their operational deployment. This construction is consistent with the purpose of clause 54 and the regime of payments provided. To read clause 54.2(c) so narrowly so as to exclude the employee in this example from receiving benefits under clause 54.2(c) simply because they did not have a formal roster during the period of the operation would be contrary to the purpose of the clause.[12]
The PFA submitted that the Deputy President’s reasoning and conclusion was in error because, in resorting to the concept of “notional rostered hours” in the 1992 Decision in preference to the actual words “rostered hours” in clause 54.2(c), the Deputy President failed to consider the words in the context of the Agreement as it currently stands. This, it was submitted, constituted an impermissible reading-down of the provisions of the Agreement on the basis of the regulation of hours of work in 1992. The PFA submitted that clauses 28-38 of the Agreement set out a range of provisions that govern the rostering of hours, including the duration of ordinary hours, how ordinary hours are worked, the posting of rosters and how rostered hours may be altered, and clause 54.2(c) should be construed as referable to these provisions.
We consider that the Deputy President was correct to conclude that the condition in clause 54.2(c) for the application of the clause 54 entitlements was satisfied. We make the opening observation that the construction of clause 54.2(c) advanced by the PFA would substantially defeat the operation of the entire clause, since it is accepted that it is not operationally feasible for rosters of daily working hours to be issued to employees undertaking “round the clock” witness protection, close personal protection or surveillance activities and that such operations will often involve employees being called in during periods when they have been rostered off duty. The creation of the entitlements currently contained in clause 54 by the PSB was undertaken on the express basis that there could not be a roster “in any meaningful sense” applicable to the work the subject of the entitlements. This by itself renders untenable the PFA’s construction.
In the determination made by the PSB in 1992, and the subsequent instruments and agreements made until 2007, the equivalent provision to the current clause 54.2(c) referred to a requirement that the employee remain at the operation site “after completion of the nominal eight (8) hours ordinary time duty”. During this period, the equivalent provision to the current clause 54.4 similarly referred to the commencement of “ordinary hours of work on that day” (rather than the current “rostered hours of work on that day”) and the equivalent to the current clause 54.6 referred to the completion of “ordinary hours of work” (rather than the current “rostered hours of work”). Thus, during this period, there was on any view no requirement for employees subject to the restrictive work provisions to be the subject of a roster specifying hours of work for each day. The reference to “the nominal eight (8) hour ordinary time duty” (underlining added) emphasised, we consider, that it was understood that no actual roster fixing ordinary hours would apply. This is consistent with the reference in the 1992 Decision to there being no rosters in any meaningful sense and the PSB’s conclusion that employees on restrictive duties remain “on duty” even when resting. In this respect, we agree with the Deputy President’s observations in paragraph [86] of the decision that “the purpose of the clause as drafted in 1992 was to confirm the requirement that an employee must remain at the operation site (or within the field of operation) beyond those eight (8) ordinary hours of work the employee would have normally been rostered to work each day” and that “[t]he use of the term ‘nominal’ ordinary hours of work appears to have comprehended ‘restrictive work’ duties falling on the days on which an employee may have been either rostered on or rostered off”.
The introduction of the references to “rostered hours” first occurred in the 2007 Agreement, and has been retained in subsequent agreements. The PFA adduced no extrinsic evidence at first instance to demonstrate that this change effected by the 2007 Agreement was intended to introduce a requirement that employees must be subject to a daily roster of working hours in order for the restrictive work entitlements to apply. There was no evidence of any operational change which might have necessitated this change in drafting and indeed, as the Deputy President observed at paragraph [87] of the decision, “[u]nhelpfully, no evidence was led, nor were submissions advanced by either party that shed any light on the reasons for the change in wording in the 2007 Agreement”.
We are not persuaded that the 2007 Agreement effected any substantive change to the restrictive work provisions by introducing the expression “rostered hours”. This expression, where used in other parts of the 2007 Agreement, appears to bear the meaning “daily ordinary hours for which an employee may be rostered”. This is most apparent in clause 5.2.1 of the 2007 Agreement, which concerns the arrangement of ordinary hours for full-time employees. It relevantly provides:
5.2.1 Full-Time Employees
(a) Rosters
(i) The ordinary hours of work will be eight hours per day except as provided for in sub-clause(iv).
(ii) All rostered hours shall be worked continuously.
(iii) Rosters shall be 80 ordinary hours per fortnight and will be constructed to provide 4 rest days per fortnight.
(iv) Alterations to the roster pattern of a work area may be developed by the Employer in consultation with the affected Employees taking into account service delivery requirements, provision of flexibility to both the Employer and Employees, the ability for Employees to manage work/life balance and OH&S issues. The proposed roster pattern will be subject to the following provisions:
(A) The minimum number of rostered hours in any shift shall be 6 hours.
(B) The maximum number of rostered hours in any shift shall be 12 hours.
. . .
The interchangeability between the terms “ordinary hours” and “rostered hours” may be seen in clauses (i), (ii) and (iv)(A) and (B) of clause 5.2.1. We consider therefore that the best available explanation for the alteration to the restrictive hours provisions effected in the 2007 Agreement is simply that there was a change of terminology in order to achieve perceived consistency with clause 5.2.1. It may also be noted that the reference to a nominal eight [8] hours of ordinary hours may have been perceived to have become obsolete since, as clause 5.2.1(a)(iv) provides, alternate rosters for a minimum of six and a maximum of twelve hours per day had become permissible in prescribed circumstances. This may also explain the change in terminology.
The Deputy President’s interpretation of “rostered hours” in clause 54.2(c) sought to relate that expression to its use in clauses 54.4 and 54.6, so that it is to be understood as concerned with the circumstances that apply during the employee’s first day of deployment. An alternative approach is that, as with the instruments and agreements which operated prior to the 2007 Agreement, the expression simply refers to a notional number of daily hours of work during the deployment of the employee concerned, so that clause 54.2(c) is to be read as conveying that the employee must remain at the operation site notwithstanding that the normal number of hours for which the employee might otherwise have been rostered if on duty have been completed. It is not necessary for us to determine to finality which approach is to be preferred because, on either approach, there is no requirement in clause 54.2(c) for the fixation of a roster of daily working hours. On either view, the deployment of the employees the subject of the dispute satisfied the condition in clause 54.2(c) because the employees stayed at the operation site once deployed on a “round the clock” basis until they were relieved.
For completeness, we reject the PFA’s submission that the Deputy President erred by taking into account the original terminology emanating from the 1992 decision. As earlier explained, the Deputy President was entitled to take into account the context provided by the industrial origin and history of the restrictive work provisions as an aid in the interpretation of the provision in question. That he did so did not represent any departure from the requirement to construe the actual text of clause 54.2(c).
Conclusion
We consider it appropriate to grant permission to appeal given the nature of the issues raised by the appeal. For the reasons given above, we consider that the Deputy President was correct to determine that clause 54 applied to the deployment of the employees the subject of the dispute. Accordingly, the appeal is dismissed.
VICE PRESIDENT
Appearances:
C Kennedy on behalf of the appellant.
M Minucci of counsel on behalf of the respondent.
Hearing details:
2022.
Sydney and Brisbane (via video-link):
3 February.
[1] PR735445. The decision was not published for confidentiality reasons.
[2] AE507544
[3] Public Service Board C34/89, 29 May 1992
[4] See James Cook University v Ridd [2020] FCAFC 123, 278 FCR 566, 298 IR 50 at [65] per Griffiths and SC Derrington JJ; WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536, 280 IR 191 at [197]
[5] Ibid
[6] Decision at [86]-[87]
[7] Ibid at [93]
[8] Ibid at [94]
[9] Ibid at [95]
[10] Ibid at [96]
[11] Ibid at [97]
[12] Ibid at [98]
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