Queensland Services, Industrial Union of Employees v Ergon Energy Corporation Limited

[2013] FWC 7025

[2013] FWC 7025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Queensland Services, Industrial Union of Employees
v
Ergon Energy Corporation Limited
(C2012/6151)

DEPUTY PRESIDENT ASBURY BRISBANE, 16 SEPTEMBER 2013

Application to deal with a dispute - salary maintenance and redundancy provisions - Accrued rights from agreement that has ceased operation - Case law - Finding that right extinguished when agreement ceased operating - No jurisdiction to deal with dispute - Application dismissed.

BACKGROUND

[1] The Queensland Services Industrial Union of Employees (QSU) applies under s.739 of the Fair Work Act 2009 (the Act) on behalf of Mr Leon Hawley, for the Fair Work Commission to deal with a dispute with Ergon Energy Corporation Limited (Ergon) under the dispute procedure in the Ergon Energy Union Collective Agreement 2011.

[2] Throughout the period of Mr Hawley’s employment relevant to the dispute, he was employed under a series of Agreements as follows:

● The Ergon Energy - Certified Agreement 2005 approved by the Queensland Industrial Relations Commission under the Industrial Relations Act 1999 which operated from 30 May 2005 until 15 February 2008 virtue of clause 1.3.

● The Ergon Energy Union Collective Agreement 2008 approved by the former Workplace Authority under the Workplace Relations Act 1996 which operated from 22 September 2008 until its nominal expiry date on 22 September 2011.
● The Ergon Energy Union Collective Agreement 2011 which was approved pursuant to the Act and operates from 22 March 2012 until its nominal expiry date of 1 October 2014.

[3] For ease of reference these are referred to as the 2005 Agreement, the 2008 Agreement and the 2011 Agreement.

[4] Mr Hawley was notified on 24 April 2007 that his substantive role was to be made redundant effective on or around 1 January 2008. Mr Hawley was required to indicate whether he wished to accept redundancy or to make himself available for redeployment, “within 14 days of 1 July 2007”. That date was subsequently extended to 16 July 2010.

[5] At the time he received the notification of redundancy, Mr Hawley’s terms and conditions of employment were determined by the 2005 Agreement which provided that employees made redundant throughout the life of that Agreement would have their salary maintained, without reduction including future enterprise bargaining increases, for the tenure of their employment with Ergon.

[6] By the time Mr Hawley opted for redeployment, the 2005 Agreement had ceased to operate and had been replaced by the the 2008 Agreement. The provisions in relation to salary maintenance were qualified and narrowed in the 2008 Agreement, so that salary maintenance was limited to employees made redundant and redeployed, or who prior to redeployment, attained another position through a recruitment and selection process. Salary maintenance ceased to apply to employees who, following redeployment, attained another position through a recruitment and selection process. In those cases, the salary attaching to the new position applies. The provisions in relation to salary maintenance introduced in the 2008 Agreement were continued in the 2011 Agreement.

[7] Mr Hawley contends that notwithstanding the narrowing of the salary maintenance provisions in the 2008 Agreement, he has an unqualified right accrued under the 2005 Agreement to have his salary maintained including increases, for the tenure of his employment with Ergon. Mr Hawley further contends that the Commission has jurisdiction under the dispute procedure in the 2011 Agreement, to deal with a dispute about a right accrued under the 2005 Agreement.

[8] Ergon contends that any right to salary maintenance Mr Hawley may have had under the 2005 Agreement was extinguished when that Agreement ceased to operate upon the approval of the 2008 Agreement and that the Commission does not have jurisdiction to deal with the dispute.

[9] According to Ergon Mr Hawley, is redeployed to a position, and can choose to continue to be considered for redeployment and have his salary maintained in accordance with the 2011 Agreement. If Mr Hawley chooses to apply for a position and to undergo a recruitment and selection process, and his application is successful, Mr Hawley will no longer be redeployed and will be entitled to the salary attaching to that position, regardless of whether the salary is higher or lower than the level at which his salary is maintained.

[10] The issue for determination is whether Mr Hawley has an accrued right to salary maintenance under clause 1.10 of the 2005 Agreement, or whether that right was extinguished and replaced by the narrower qualified right in the 2008 Agreement. A further issue for determination is whether the Commission has jurisdiction under the dispute procedure in the 2011 Agreement to deal with the dispute as articulated on behalf of Mr Hawley.

THE LEGISLATIVE FRAMEWORK

[11] The legislative framework relevant to the matters in dispute can be briefly summarised. As previously stated, the 2005 Agreement was certified by the Queensland Industrial Relations Commission as provided in the Industrial Relations Act 1999 (Qld). On the commencement of the “Work Choices” amendments to the then Workplace Relations Act 1996 (the WR Act) on 27 March 2006, Ergon as a constitutional corporation, became subject to the WR Act.

[12] The 2005 Agreement was a “State employment agreement” and with effect from 27 March 2006, became a “preserved collective State agreement” in accordance with item 10 of Schedule 8, Part 2, Division 2 Subdivision A of the WR Act. Item 15G, Division 2A of Schedule 8 of the WR Act, provided that a preserved State agreement ceases to operate in relation to an employee when a workplace agreement or workplace determination comes into operation in relation to an employee, even if the nominal expiry date of the preserved State agreement had not passed.

[13] That item further provided that if a preserved State Agreement has ceased operating in relation to an employee because a workplace agreement or determination cam into operation, the preserved State Agreement can never operate again in relation to that employee

[14] The 2008 Agreement was a workplace agreement under the WR Act and accordingly, by virtue of the provisions of the WR Act, the 2005 Agreement ceased to operate when the 2008 Agreement was approved, and can never operate again in relation to an employee. Ergon submits that this consequence is also clear from the express terms of the 2008 Agreement, in relation to the grandfathering of redundancy provisions.

[15] Given that the matters in dispute concern the relationship between the 2005 and 2008 Agreements, it is not necessary to consider the legislative framework relevant to the relationship between the 2008 and 2011 Agreements. It is sufficient to note that the 2011 Agreement was approved under the Act and operates pursuant to its provisions, including those relevant to the dispute settlement provisions of the Agreement.

AGREEMENT PROVISIONS

The 2005 Agreement

[16] The 2005 Agreement relevantly provided as follows:

“Clause 1.10 Employment Security

There will be no forced redundancies for the life of the Agreement.

The Agreement to have no forced redundancies depends upon the employee accepting reasonable retraining and redeployment to a position which is equivalent in status and remuneration within their current locality to the extent that would not require a move of residence or travel further than fifty kilometre radius of their original work location.

Employees who may find their positions redundant during the life of this Agreement will have their salary maintained, without reduction including future EBA increases, for the tenure of their employment with Ergon Energy.”

The 2008 Agreement

[17] Relevant provisions of the 2008 Agreement are as follows:

“1.1 Title

...

This Agreement replaces the Ergon Energy Certified Agreement 2005...

However the provisions of the preserved State Agreements in respect of redundancy have been grandfathered by being preserved and continued in Schedule 3 Redundancy Provisions of this Agreement.

1.11 Salary Maintenance

An employee whose position is made redundant during the life of this Agreement and is redeployed into a suitable alternative position will have their salary maintained without reduction, including future Agreement increases.

Where an employee is redeployed, their salary for superannuation purposes will exclude shift allowances unless applicable to the new position with the exception of an employee on aggregated salary arrangements who will maintain their aggregated salary.

If, following notice of their position being made redundant and prior to being redeployed, an employee is successful in attaining another position through a recruitment and selection process their salary will be maintained without reduction including future Agreement increases.

If, following redeployment, an employee is successful in attaining another position through a recruitment and selection process the salary, terms and conditions of their new position will apply.”

The 2011 Agreement

[18] The 2011 Agreement states at clause 1.1 that it replaces the 2008 Agreement. Redundancy provisions in virtually identical terms are still found in Schedule 3 of the 2011 Agreement but there is no reference to those provisions being grandfathered. Clause 1.11 of the 2011 Agreement is in identical terms to clause 1.11 of the 2008 Agreement.

[19] It is notable that the 2008 Agreement and the 2011 Agreement did not include the unqualified right to salary maintenance found in the 2005 Agreement. Clause 2.11 of the 2011 Agreement contains a Grievance and Dispute Settlement Procedure which provides that:

“The matters to be dealt with in this procedure include all grievances or disputes between an employee(s) and Ergon Energy in respect to this Agreement, the National Employment Standards and any other employment matters...”

[20] The procedure also provides for conciliation and arbitration of disputes.

EVIDENCE

[21] Mr Hawley gave evidence on his own behalf. Mr Hawley was notified that his position was redundant by letter dated 24 April 2007. 1 That letter also informed him that he had a 14 day period, “from 1 July 2007”, in which to advise of his intention to apply for redundancy and exit employment or to express his intention to be redeployed to suitable alternative employment. By further letter of 29 June 2007, the 14 day period by which Mr Hawley was required to advise of his intentions was extended to a date to be notified, when certain recruitment and selection activities had been finalised.2 Mr Hawley said that he verbally confirmed to his manager that he wished to be redeployed.

[22] At the time Mr Hawley received this letter he was seconded to a position, and continued to be seconded to a series of positions up until September 2011. On each occasion Mr Hawley was seconded or had a period of secondment extended, he was told that upon expiration of the secondment his redundancy provisions would continue to apply. 3

[23] Mr Hawley received further notice of redundancy by letter dated 1 July 2010 which referred to the earlier advice of 24 April 2007. Mr Hawley was given six months notice that his “normal” position was redundant and informed that he had fourteen days to submit an application to participate in an early separation incentive and cease employment, or express an intention to be redeployed to suitable alternative employment. 4

[24] Mr Hawley said that he was suspicious when he received the letter of 1 July 2010 because he had already been notified in 2007 that his position was redundant. Mr Hawley was advised by Ergon’s Industrial Relations Manager Mr Glover that this was another opportunity for him to take redundancy; that he was protected; and that similar alternative employment meant:

● suitable to both parties;
● similar in status; and
● fitting to his skills and experience.

[25] On the basis of that advice, Mr Hawley signed a letter on 12 July 2010, re-confirming his intention to stay and to seek suitable alternative employment. Ergon confirmed receipt of this advice by letter dated 28 July 2010. On 19 September 2011, Egon sought to permanently redeploy Mr Hawley to the position of Senior Regulatory Analyst.

[26] A dispute arose between Mr Hawley and Ergon about whether the role of Senior Regulatory Analyst was suitable alternative employment. Mr Hawley said that in July 2011 he was told by Ergon’s then Senior Industrial Advisor Mr Montgomery, that Ergon had decided that the position was suitable and that his only options were to take it or leave. Mr Hawley said that he was not able to question the decision.

[27] Mr Hawley and his representative from the QSU corresponded with Mr Glover who subsequently advised by email of 21 December 2011 that he did not have the authority to make changes being sought by Mr Hawley and that the primary obligation was for Ergon to redeploy Mr Hawley and maintain his salary with future pay increases, while he remained in the role. Mr Glover further advised that there was no option for Mr Hawley to remain on secondment or in the redeployment pool, and preserve the right to open ended redundancy.

[28] Mr Hawley then formally commenced a dispute process under the 2011 Agreement. At the point this matter was heard, Mr Hawley continued to be redeployed to the position of Senior Regulatory Analyst.

[29] Evidence on behalf of Ergon was given by Mr Brad Montgomery, Principal Industrial Relations Advisor. Mr Montgomery was involved in the negotiation of the 2008 Agreement, and said that the process was protracted and difficult. Mr Montgomery detailed the discussions and information provided to employees about the terms of the 2008 Agreement and said that it was made clear that the 2008 Agreement would replace the 2005 Agreement. The 2008 Agreement was approved by a majority of employees who cast a valid vote in a ballot conducted by the Australian Electoral Commission.

[30] Mr Montgomery said that he did have a discussion with Mr Hawley about redeployment, after Mr Hawley had been consulted about the particular position and before the redeployment. In that discussion, Mr Montgomery told Mr Hawley that once he was redeployed to a position, if within three months he was of the view that the position was unsatisfactory, he could elect to take voluntary retrenchment. Mr Montgomery also told Mr Hawley that at this point, he did not have the option to elect to be redeployed again. Mr Montgomery denied that he told Mr Hawley that his only option was to take the position or leave, or that Mr Hawley was not able to question Ergon’s decision about the suitability of the position.

SUBMISSIONS

[31] The QSU submits on behalf of Mr Hawley that this dispute turns on the differences between the 2005 and the 2008 Agreements. The obligations that arose during the course of the 2005 Agreement continue, despite any termination or cessation of the Agreement, and the 2008 Agreement has no effect on events that occurred prior to its existence. The 2005 and the 2008 Agreements are clear and the terms of each can only extend to those employees who were made redundant during the life of each agreement.

[32] According to the QSU there should only be one set of provisions applying to an employee whose position is made redundant - those contained in the Agreement that was in effect when the employee was declared redundant. Subsequently, the provisions of the 2008 agreement could not apply as Mr Hawley had accrued rights from the 2005 agreement.

[33] The QSU submits that the current matter can be distinguished from a decision of a Full Bench of the Commission in Matthew Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) 5 (‘Stephenson’) where it was held that no accrued right was created by a terminated agreement. The basis for distinguishing the current case is said to be that in Stephenson the Full Bench determined that there was not an accrued right to have a dispute dealt with under the terms of an expired Agreement, because of s.170LX of the Workplace Relations Act 1996. In the present case, the matter is argued under the dispute procedure in the 2011 Agreement and is an “employment related matter” for the purpose of that procedure.

[34] The QSU also submitted that Stephenson was decided on the basis that the Commission did not have jurisdiction to deal with the matter rather than that the decision of member who dealt with it at first instance was wrong. The QSU pointed to the view expressed in the decision at first instance that:

“If the legislature had intended that the termination of an agreement would have the effect of completely extinguishing all rights, employees or employers may have had as a consequence of the agreement in my view a more explicit statement to this effect would be required. I do not accept the argument that the parties would need to provide for such situations in the terms of a new agreement. In my view such provisions would be necessary only if the legislation explicitly removed all rights and liabilities under terminated agreements. In such circumstances the parties would be alerted to the need for savings provisions.” 6

[35] Ergon submits that if the QSU’s argument is accepted, an enterprise agreement that has ceased to operate by force of statute would apply to the exclusion of current or future agreements. With respect to the Full Bench decision in Stephenson,Ergon argued that the provisions of the WRAct considered in that case are in relevantly identical terms to those in the current case. Ergon further submitted that the principle established in Stephenson which is relevant and cannot be distinguished, is that in the absence of something special in the new agreement, no concept of accrued rights or no accrued rights arise on the cessation of the old agreement.

[36] Ergon also pointed to the fact that Stephenson was subsequently followed by a Full Bench in Pulle v Commonwealth of Australia acting through the Department of Parliamentary Services (the Pulle appeal), 7 and in other decisions of single members of the Commission including Wills v Merriwa Industries Limited,8 Pik v Commonwealth Scientific and Industrial Research Organisation t/as CSIRO,9and CPSU, the Community and Public Sector Union v Australian Bureau of Statistics,10 and remains binding precedent.

[37] Ergon submitted that while Stephenson and the Pulle appeal considered different legislative provisions, those relevant in the current matter are in essentially the same terms. Further, it was submitted that to permit agreements which have been replaced and ceased to operate, to continue to have some lingering indeterminate operation is contrary to the legislative provisions and would create a situation of significant uncertainty and opportunity for unfair outcomes.

[38] Parties negotiate new agreements on the basis that they completely replace the existing agreement, unless the new agreement expressly preserves something from the old agreement. This is apparent from the terms of the 2008 Agreement which provides at clause 1.1 that the 2008 Agreement replaces the terms of the 2005 Agreement other than redundancy provisions grandfathered in Schedule 3, and clause 1.8 that indicates that the 2008 Agreement consolidates conditions of employment for Ergon employees. Ergon maintained that these provisions would not have been necessary if the 2005 Agreement continued to operate.

[39] Ergon contended that the QSU was directly involved in the negotiations for the 2008 Agreement, and should have known that it was replacing the 2005 Agreement. As an employee eligible to vote for the 2008 Agreement, and a member of the QSU, Mr Hawley was provided with a copy of the proposed terms, together with briefing material, which made this consequence clear.

[40] Further, Ergon maintained that the principles established in Stephenson were relevant notwithstanding that the dispute procedure in the 2011 Agreement was relied on and regardless of when Mr Hawley’s redundancy took effect.

CONSIDERATION

[41] The decision of a Full Bench of the Commission in Stephenson established that if a certified agreement made under the former WR Act empowering the Commission to settle disputes over its application, ceased to operate under the terms of the Act, then the Commission no longer had jurisdiction to exercise a private arbitration power under the dispute settlement procedure in the agreement.

[42] It was further held in that case that the power to arbitrate a dispute under a certified agreement ended when the particular agreement ceased to operate, in circumstances where a replacement agreement did not contain a provision consistent with the provision in relation to which the dispute arose.

[43] The facts in Stephenson were that an agreement certified under the Workplace Relations Act 1996, provided for employees to be classified at a higher level, at the discretion of the Minister for State. The Minister refused to exercise the discretion in respect of Mr Stephenson and a dispute was notified to the Commission under the dispute settlement procedure in the agreement. That procedure empowered the Commission to settle matters in dispute that were covered by the agreement.

[44] The agreement under which the dispute was notified ceased to operate and was replaced by a new agreement, prior to the determination of the dispute. The new agreement did not contain a provision allowing for the exercise discretion to classify employees at a higher level or in similar terms to the provision in relation to which the dispute related.

[45] Section 170LX of the 1996 Act provided that an agreement ceased to operate if it had passed its nominal expiry date or was replaced by another agreement, or an application had been made to terminate it in various circumstances. At first instance, the Commission held that the fact an agreement had ceased to operate meant that it did not continue to determine the rights and obligations when the new agreement commenced, but that the superseded agreement continued to provide for the rights and obligations of the parties in respect of the period for which it was in operation.

[46] The Full Bench, upholding an appeal, held that the power to arbitrate the dispute ceased when the replacement agreement came into effect because that agreement only provided for the Commission to settle disputes over its application, and did not contain a provision equivalent to the discretionary reclassification provision in the superseded agreement. Further, the Full Bench held that there was no accrued right for the dispute to be dealt with because the agreement under which it was notified had ceased to operate and the replacement agreement did not contain an equivalent provision. 11

[47] In the Pulle appeal a Full Bench of the Commission dealt with a challenge to the exercise of discretion in relation to refusal to pay an allowance, under an agreement which had ceased to operate. A dispute had been notified under the superseded agreement, and at first instance, the Commission held that, consistent with the decision in Stephenson, absent any saving provision in a replacement agreement, all rights under the superseded agreement are extinguished and no accrued right to have the dispute determined survived.

[48] In the appeal, the Full Bench held that the decision at first instance was based squarely and properly on Full Bench authority in Stephenson and it was not appropriate to re-examine that case. The Full Bench also noted that the appellant Mr Pulle had an avenue of redress under the replacement agreement, which contained an identical provision to the provision in the superseded agreement, with respect to which the dispute had arisen. 12

[49] Mr Pulle subsequently notified a further dispute under the dispute settlement provisions of the new agreement, which was dealt with by Vice President Lawler in Pulle v Commonwealth of Australia Acting through the Secretary of the Department of Parliamentary Services 13(the Pulle Arbitration) Mr Pulle’s claim was for the payment of an allowance from 2002, in circumstances where a series of agreements spanning a period from 2000 to 2011, all provided that the payment of that allowance was at the discretion of the Secretary of the Department. The Department argued that Mr Pulle was claiming entitlements under agreements that had ceased to operate, and that consistent with the Full Bench decision in Stephenson, the Commission had no jurisdiction to deal with such a dispute.

[50] Vice President Lawler held that it was incorrect to characterise what Mr Pulle sought as “entitlements” because until it was granted, the allowance that Mr Pulle sought was a matter of discretion. His Honour also held that the clause providing for the exercise of discretion to grant the allowance, referred to exceptional circumstances, and there was nothing in the language of the clause confining exceptional circumstances to the period of operation of the current agreement. The clause in the current agreement did not prevent Mr Pulle from seeking during the life of that agreement, an exercise of discretion to correct an inequity that had arisen from circumstances that existed while the superseded agreements were in effect. 14

[51] In reaching this conclusion, His Honour said that the effect of Stephenson is that, in the absence of express words in the successor agreement preserving the operation of the predecessor agreement, in relation to disputes where the dispute resolution process has started but not finished, jurisdiction in relation to such “part heard” disputes is extinguished upon the commencement of the successor agreement. After expressing reservations about the correctness of Stephenson his Honour indicated that he was bound by that decision.

[52] However, his Honour went on to find that he had jurisdiction to award an allowance for the entire period claimed by Mr Pulle on the basis that the dispute was about the proper exercise of discretion conferred by the current agreement which did not lose its character because the allowance sought extended to compensation for periods during the currency of the predecessor agreements. 15 The failure to pay the allowance to Mr Pulle was found to be unjust and unreasonable, and it was determined that an allowance should be paid for the entire period of the claim.

[53] The principles set down in the cases are that:

● Absent a savings provision in either the legislation dealing with an agreement ceasing to operate or in the successor agreement, or a provision in relation to the same matter in a successor agreement, a right does not survive the cessation of an agreement.
● Where a dispute clause in an agreement empowers the Commission to settle a dispute in relation to that agreement, and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or the legislation preserves rights in this respect.
● Where a series of agreements contains the same provision, the Commission may have jurisdiction to deal with a dispute about that provision in accordance with a dispute procedure in a current agreement, notwithstanding that the dispute also relates to a period of time where predecessor agreements containing the same or a similar provision, operated.
● The terms of a dispute procedure, including whether it is expressed to apply to all disputes or those arising under the current agreement, are critical, and may limit the jurisdiction of the Commission to deal with a dispute that relates to a provision that has been included in both the current and predecessor agreements.

CONCLUSIONS

[54] I am unable to accept in the present case that Mr Hawley has an accrued right to have his salary maintained in accordance with the 2005 Agreement. In my view, the essential facts in this case are indistinguishable from the factual scenario in Stephenson. Although there have been some reservations about Stephenson, it remains a binding precedent. I am also of the view that the grounds upon which reservations about that case have been expressed, do not apply in the present case.

[55] The entitlement that Mr Hawley is pursuing was found in an agreement that has ceased to operate and can never operate again with respect to Mr Hawley. That entitlement was extinguished when the 2008 Agreement came into effect.

[56] On the authority established in Stephenson, the entitlement Mr Hawley had to salary maintenance would have been extinguished even if he had notified the dispute during the currency of the 2005 Agreement, and the dispute had been partly dealt with at the point the 2008 Agreement came into effect. This was one of the grounds upon which Vice President Lawler expressed reservations about Stephenson in the Pulle Arbitration. The present case can be distinguished from the Pulle Arbitration because in that case the matter was put into dispute in the currency of an Agreement in which the disputed clause was found, and that clause was also in successor agreements.

[57] That the dispute notification by which Mr Hawley is attempting to pursue his claim was made pursuant to the current 2011 Agreement, does not alter the situation. Mr Hawley’s claim is for an entitlement in the future based on a right he had under the 2005 Agreement. The clause which provided the entitlement ceased to operate with the rest of the provisions of the 2005 Agreement, when the 2008 Agreement came into effect, other than those provisions of the 2005 Agreement relating to redundancy, which were preserved in Schedule 3 of the 2008 Agreement.

[58] It is also the case that the purported entitlement will not be triggered until Mr Hawley chooses to apply for a position with a lower salary and is successful with that application, following a recruitment and selection process, and may not be triggered at all.

[59] In the Pulle Arbitration the provision in dispute was in relation to an exercise of discretion to grant an allowance, and was found in all of the agreements covering the period over which the non-payment of the allowance was in dispute. It was held that the provision was not limited to the period of currency of the relevant agreement. The present case can be distinguished on the basis that the provision on which Mr Hawley grounds his claim is not found in the 2011 Agreement, under which he has notified the dispute, or the 2008 Agreement which preceded the 2011 Agreement.

[60] Notifying the dispute under the 2011 Agreement cannot revive a provision of the 2005 Agreement. The fact that the dispute procedure in the present case is not limited to matters arising under the 2011 Agreement does not empower the Commission to declare that Mr Hawley has a right based on the provision of the 2005 Agreement that ceased to operate in 2008.

[61] For these reasons, the Commission does not have jurisdiction to deal with the application and it is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms R. Girard, Mr L. Hawley and Mr R. Dixon on behalf of the Applicant.

Mr M. Osborne, Mr D. Newman and Mr B. Montgomery on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

March 18.

 1   Exhibit 1 - Statement of Leon Thomas Hawley “LTH1”.

 2   Exhibit 1 - Statement of Leon Thomas Hawley “LTH2”.

 3   Exhibit 1 - Statement of Leon Thomas Hawley “LTH3” and “LTH4”.

 4   Exhibit 1 - Statement of Leon Thomas Hawley “LTH5”.

 5   [2004] AIRC 1059.

 6   PR945876 at [56].

 7   [2009] FWAFB 901.

 8   [2011] FWA 6911.

 9   [2011] FWA 3202.

 10   PR953849 [2004] AIRC 1204.

 11   Ibid [49] - [54].

 12   Ibid at [14] - [15].

 13   Bernard Terence Bastian Pulle v Commonwealth of Australia acting through the Secretary of the Department of Parliamentary Services [2011] FWA 7462.

 14 Ibid at [36].

 15   Ibid at [38], [41].

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