Sonic HealthPlus Pty Ltd T/A Sonic HealthPlus

[2015] FWC 6460

[2015] FWC 6460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Sonic HealthPlus Pty Ltd T/A Sonic HealthPlus
(AG2015/4290)

COMMISSIONER CRIBB MELBOURNE, 21 SEPTEMBER 2015

Application for an order relating to instruments covering new employer and transferring employees.

[1] Sonic HealthPlus Pty Ltd (the new employer, the company, the Applicant, SHP) made an application on 11 August 2015, under section 318(1)(a) of the Fair Work Act 2009 (the Act), that the Medibank Health Solutions Enterprise Agreement 2012 (Medibank Agreement) not cover SHP or the transferring employees who will perform, or are likely to perform, the transferring work for SHP.

[2] A further order is sought by SHP, under section 318(1)(b) of the Act, that the Sonic HealthPlus National Enterprise Agreement 2013 - 2016 and the Sonic HealthPlus National Site Service and Projects Enterprise Agreement 2013 - 2016 (the SHP Agreements) will cover the transferring employees.

[3] The Australian Nursing and Midwifery Federation (ANMF), an employee organisation bargaining representative which is covered by the Medibank Agreement, opposed the application. Another employee organisation bargaining representative, the Community and Public Sector Union (CPSU), advised the Commission, by letter dated 26 August 2015, that it would not be making a submission to oppose the application on the grounds that the CPSU will not have coverage of the transferred employees to Sonic HealthPlus Pty Ltd.

[4] On 2 October 2015, SHP will acquire the assets and undertakings that comprise Medibank Private Limited’s (Medibank) Workplace Health and Travel Doctor businesses (TravelDoctor). From, or shortly after, 2 October 2015, SHP will become the employing entity (new employer) of the transferring employees.

[5] The transferring employees are currently covered by the Medibank Agreement, the nominal expiry date of which is 30 September 2015. The transferring employees will perform work for the new employer which is the same or substantially the same as the work performed for Medibank (old employer).

[6] There are currently 359 employees employed in Medibank’s Workplace Health business and 154 employees in TravelDoctor. This totals 513 employees. 1 It was Ms Neill’s estimate that somewhere in the vicinity of 300 - 400 employees will be made redundant by Medibank. This is partly due to SHP not taking on particular roles eg doctors and allied health professionals.2 In addition, SHP proposes to merge some Workplace Health and SHP clinics, of which, 3 Workplace Health clinics would remain open after the merger whilst 8 would close. In addition, the Bibra Lakes Workplace Health clinic would merge with an existing SHP clinic and close.3 In relation to the TravelDoctor business, all of the clinics would directly transition to SHP, two clinics would amalgamate and offers of employment would be made to the majority of TravelDoctor employees. There would be changes and some redundancies.4

[7] If the orders sought are made, SHP stated that the number of employees who would be made offers would be 159. If the application is not granted, it was said that 60 employees would be offered positions by SHP. 5

[8] The application was heard on Tuesday, 15 September 2015. On behalf of Medibank, evidence was given by Ms Virginia Neill, Head of Workplace Relations. Mr Gregory Hutchinson, Chief Executive Officer of Sonic HealthPlus Pty Ltd, gave evidence on behalf of the Applicant. On behalf of the ANMF, a witness statement from Ms Deborah Richards, Industrial Research Officer with the ANMF Federal Office, was tendered into evidence. 6

1. The legislation

[9] Section 318 of the Fair Work Act 2009 provides that:

“318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.”

[10] In relation to section 318(2), the Applicant is likely to be the new employer and is able to make the application (section 318(2)(a)).

[11] With respect to the factors set out in section 318(3), which the Commission must take into account, I will deal with each of these in turn.

2. The evidence and submissions

Section 318(3)(a)(i) - the views of the likely new employer

[12] SHP submitted that the orders sought would enable a more streamlined integration of the businesses, reduce the costs of the acquisition and enable SHP to make a larger number of offers of employment to affected employees. 7 The company also contended that not granting the orders would have a negative impact on productivity in the workplace.8 These factors, with the exception of the second one, will be considered in more detail later in the decision.

[13] In relation to the company’s contention that granting the application will reduce the costs of the acquisition,it was Mr Hutchinson’s evidence that:

• Prior to submitting an expression of interest, the company was very aware of the differences between the agreements and the impact that might have. Considerable, detailed discussion was had on this issue. 9



• This included consideration that it was open to the company to seek to have the agreement terminated (make this application). This was said to have been the preferred option. 10



• The investment analysis was done on the basis that SHP would be able to operate under the existing SHP agreements and not under both the Medibank and SHP Agreements. This assumption was based on the company’s previous experience. 11



• The difference between the agreements was a point of consternation within SHP and there was a point where it was determined that SHP would not buy the business. However, the company turned that decision around. 12



• As the CEO of the company, he was aware that SHP would be seeking to offer positions to some Medibank staff who are covered by the Medibank Agreement and that, in purchasing the business, he made the decision that the company would make an application to have the Medibank Agreement terminated. 13



• The Medibank Agreement has been a business killer in that it has killed the Medibank businesses financially in terms of jobs. 14



• Mr Hutchinson agreed that the company has made the application for the Commission to reduce the cost base for those transferring employees on the basis that the agreement that applies to the transferring employees pays in excess of SHP’s current employees. 15

[14] The ANMF stated that there is no misunderstanding that the view of the new employer is that it is seeking that the Commission terminate the Medibank Agreement and that all of the transferring employees, who are made offers, will be employed under the SHP agreements. 16

[15] The company’s purpose in making the section 318 application is to reduce the cost base of the transferring employees. This weighs in favour of making the orders.

Section 318(3)(a)(ii) - the views of the employees

(a) The evidence

[16] It was common ground between the parties that there had been extensive consultation with the affected Medibank employees. This included meetings, conference calls, roadshows involving SHP management representatives, weekly updates to employees, FAQ’s and a comparison document showing the differences between the Medibank and SHP Agreements on the Medibank intranet, and a dedicated email address. 17

[17] It was Mr Hutchinson’s evidence that, during the roadshow presentations to the clinics that were staying open, he discussed the two SHP Agreements and advised that SHP would be seeking an order from the Fair Work Commission that the Medibank Agreement not transfer. It was explained that, if successful, this meant that transferring employees would be covered by one of the two SHP Agreements. 18

[18] Ms Neill gave evidence that only 27 responses had been received from employees who have indicated that they are not in favour of the section 318 application. 19 Ms Neill explained that, as recently as the last two - three weeks, she had been given to understand from her colleagues that, in informing employees that their roles have been made redundant, there had been very little mention of the section 318 application. Rather, employees were said to have been asking when they will hear whether they were going to be made an offer. Employees were also said to have wanted to know what their salary would be and whether they will be full-time, part-time etc.

[19] There were said, by Ms Neill, to have been at least 400 separate questions from employees sent about particular pieces of information. A lot of those questions were confirmation around the different terms and conditions. It was very clear to Medibank that employees were comparing the SHP Agreements to the Medibank Agreement and were seeking confirmation as to what their terms and conditions would be. 20

[20] It was stated by Ms Neill that SHP had been very transparent right from the beginning by indicating to employees that it intended on making a section 318 application. Therefore, a colleague of Ms Neill’s and herself, specifically travelled to, or spoke to, the clinics that were staying open, where there was a higher chance of employees being offered positions, to inform them what the section 318 application actually meant so that they understood it. 21

(b) Submissions

[21] SHP submitted that the affected Medibank employees had been extensively consulted about the impending acquisition and, in particular, the proposed section 318 application. In addition, it was stated that employees have been provided with information regarding the similarities and differences in the terms and conditions of the Medibank Agreement compared with the SHP Agreements. 22

[22] A dedicated email address was established by Medibank to answer questions from employees and it was said that Ms Neill’s evidence was that employees had been extensively encouraged to submit their views on the section 318 application. 23 It was stated that only 27 responses had been received by Medibank from employees who indicated that they were not in favour of the section 318 application.24 SHP argued that, given the extent of the consultation and the number of opportunities affected employees had to put forward their views, the Commission should take this into account when considering this matter.25

[23] It was further contended that, the fact that only 27 employees out of a possible 378 employees notified Medibank of their concerns about the application, should be a factor for consideration, particularly as the consultation process invited such responses. 26 The fact that not all affected employees agree with or support the section 318 application should be weighed against the considerations set out above. In support of this contention, the Commission was referred to the decision in Two Plus Two Enterprises Pty Ltd27 in which not all transferring employees expressed a wish to be covered by the transferring instrument.28

[24] The ANMF argued that ANMF members have a strong and accurate view that they will suffer a substantial loss of terms and conditions of employment if the Medibank Agreement does not transfer with the transferring employees. The ANMF stated that the views of Medibank employees cannot be determined by the process and results as argued by SHP. It was said that it cannot be assumed that employees who did not respond by email are in favour of the section 318 application. 29

[25] Reference was made to the fact that only 27 responses have been received from employees indicating that they are not in favour of the section 318 application. It was stated that there is effectively no other evidence before the Commission as to the views of the balance of the employees. Therefore, it was submitted that the Commission cannot be satisfied about the views of the employees. The union indicated that it has fielded numerous concerns, expressed by nurses who are affected by the transfer, as to the terms and conditions of the transfer. The nurses have were also said to have been concerned about what their entitlements will be, in the event that they are offered positions with SHP. 30

Section 318(3)(b) - would any employees be disadvantaged

[26] It was common ground that there are differences between the terms and conditions of the Medibank Agreement and the SHP Agreements. It was also not disputed that the terms and conditions of the Medibank Agreement are more beneficial than the SHP Agreements. The parties differed as to the extent of the differences.

(a) The evidence

[27] It was Mr Hutchinson’s evidence 31 that SHP is prepared to match the annualised base salary that the transferring employees currently receive.32 Mr Hutchinson stated that in general, the wage rates of Medibank employees are significantly higher than those paid to SHP employees. SHP was said to have managed to isolate those who are outside of SHP’s bandings so that, whilst SHP would have liked to have taken some of those people, the company is unable to because they are outside of the bandings. Mr Hutchinson agreed that the company’s undertaking is qualified by this consideration.33 It was also confirmed by Mr Hutchinson that the company has offered to recognise employees’ prior service.34

(b) Submissions

[28] SHP submitted that the more beneficial terms and conditions of the Medibank Agreement can be largely attributed to the fact that Medibank was, until recently, operating in a public sector environment. It was stated that certain conditions in the public sector are more generous than those in the private sector and that it was not uncommon for public sector entities to have more favourable terms and conditions. SHP argued that it does not have the resources to sustain public sector terms and conditions and to do so, would result in a significant economic disadvantage to the Applicant. 35 It was stated that the historical public sector arrangements that are embedded in the Medibank Agreement, make it incredibly hard to operate in a private sector context. Moving from a public sector employer to a private sector employer is a situation which was said to warrant legitimate consideration.36

[29] In light of the differences, SHP is prepared to enter into an undertaking that all transferring employees, who have an annualised base salary which is higher under the Medibank Agreement, will have the same annualised base salary if they accept employment with SHP. Further, it was stated that SHP will make offers of employment which recognise transferring employees’ prior service with Medibank in relation to the calculation of all service based entitlements including redundancy, notice and annual leave. 37

[30] It was also submitted that there are benefits and entitlements which the transferring employees will receive by transferring to the SHP Agreements. These include ceremonial leave; education assistance; reimbursement of approved business expenses; Sunday overtime rates at double time; more beneficial provisions relation relating to casuals and cashing out of leave and a guaranteed pay rise in 2016 of 2.5% with an additional increase available depending on performance of between 1.5% and 2.5%. 38

[31] In addition, it was stated that SHP provides corporate membership of a fitness centre, promotes flexible rostering, job share, part-time positions, a 9 day fortnight and working from home opportunities, where the position permits. 39

[32] On the other hand, the ANMF submitted that transferring employees will already lose the benefit of a number of conditions referred to under clause 7.2 of the Medibank Agreement as policies which do not form part of the Agreement. These policies, which are listed in the Agreement, include the community service leave policy; education assistance policy; income protection scheme plan; private health insurance subsidy policy; salary sacrifice policy; health and wellbeing policy providing up to $150 per annum and travel policy. 40

[33] Further, it was contended by the ANMF that transferring employees will suffer a reduction or loss in relation to several other entitlements. These included:

• an increase in hours of work from 37.5 to 38 hours per week



• an increase in the span of ordinary hours from 7am-6pm to 7am-8pm



• loss of a shift allowance of 15% for hours worked between 6pm and midnight



• loss of payment of time and a half for ordinary hours worked on a Saturday



• no minimum number of hours for part-time employees and the minimum payment for casual employees is reduced from 3 hours to 2 hours



• overtime is no longer payable for additional hours beyond the employee’s rostered hours on any one day but rather after 10 hours excluding meal breaks



• employees who currently qualify for 5 weeks annual leave will only receive 4 weeks under the SHP Agreements



• employees working an evening shift will no longer receive 5 weeks annual leave



• employees entitled to 5 weeks annual leave will no longer receive a 20% leave loading



• a reduction in compassionate leave from 5 days per occasion to up to 2 per occasion



• a reduction in paid parental leave and paid paternity leave from 14 weeks paid maternity leave and 2 weeks paid paternity leave to 6 weeks paid maternity leave with 2 weeks return to work bonus



• an additional day off per year (Good Health day) is no longer provided



• a reduction in the quantum of long service leave except in South Australia and the Northern Territory together with other long service leave components



• a reduction in redundancy entitlements except for clinic employees engaged prior to 20 December 2012



• a reduction in superannuation contributions from 10% to 9.5%. 41

[34] In addition, the ANMF rejected the view that the differences between the Medibank Agreement and the SHP Agreements are related to the fact that Medibank was previously a public sector organisation. Ms Richards’ affidavit was referred to where it was said that, in relation to nursing staff, the terms and conditions that apply in the Medibank Agreement are commonly found in enterprise agreements between nurses and their employers. 42

Section 318(3)(c) - nominal expiry date of the agreement

(a) The evidence

[35] Mr Hutchinson confirmed that he was aware that the Medibank Agreement has a nominal expiry date of 30 September 2015. It was stated that the company’s intentions had not yet been determined as the company wanted to await the outcome of this application. Once the outcome is known, the company will make an informed decision about whether or not it will allow the Medibank Agreement to continue into the future or will seek to replace it and perhaps align the new agreement with the SHP Agreements. It was stated that it is the company’s intention to replace the current SHP Agreements when they expire. 43

(b) Submissions

[36] SHP stated that, in contrast to the nominal expiry date of the Medibank Agreement being 30 September 2015, the SHP Agreements operate until 31 December 2016. Employees under the SHP Agreements will be eligible to receive a pay rise on 4 July 2016. 44

[37] It was submitted by SHP that there is an industrial uncertainty for both the transferring employees and SHP in accepting an expired agreement as there is no guarantee that the current terms and conditions under the existing agreement will be maintained if a new agreement is negotiated. It was stated that there is also no guarantee that employees coming across will have the benefit of any wage increases that would otherwise be payable under an enterprise agreement that is still within its nominal expiry date. The Commission was referred to the decision in Catalina Country Club 45 in this regard.46

[38] It was further argued by SHP that, the fact that the Medibank Agreement reaches its nominal expiry date prior to any transfer taking effect will mean that, if the orders are not granted, transferring employees will be worse off unless and until a new enterprise agreement is negotiated. It was contended that, if the orders are made, all employees will have the benefit of a further pay increase under the relevant SHP Agreement (minimum 2.5% and up to 5%). 47

[39] SHP contended that the transfer of an expired enterprise agreement, with all the uncertainty this brings, should weigh heavily in favour of the orders being made. This is because the orders will provide the transferring employees with certainty around their transition to SHP including certainty as to their terms and conditions for a period of 14 months. This was said to provide a reasonable period for transferring employees to settle in whilst still providing eligible transferring employees with the certainty of a further pay rise in July 2016. 48

[40] Finally, with respect to the ANMF’s suggestion that SHP could seek to terminate the Medibank Agreement once it becomes an agreement binding SHP, it was stated that to do so would require essentially the same process that applies in relation to the current application. Further, in relation to the negotiation of a new agreement, there were said to be potential issues around scope. 49

[41] The ANMF submitted that the expiry of the Medibank Agreement, on 30 September 2015, provides an opportunity for SHP and the transferring employees to reach agreement on terms and conditions of employment should they wish to. It was stated that the expiry date also provides SHP with the option to make application, under section 225 of the Act, to terminate the Medibank Agreement. 50

[42] Further, it was contended by the ANMF, that transferring employees face much uncertainty as a result of the acquisition of the businesses by SHP, whether or not the Medibank Agreement transfers. It was stated that the continuation of their current terms and conditions provides transferring employees with a degree of certainty for a period of time and an opportunity to have an input into future arrangements. 51

[43] The ANMF also argued that it is normal practice that, once an agreement expires, the employer would sit down with the relevant employees and seek to arrange appropriate future industrial conditions through a revised enterprise agreement. The union stated that it does not endorse a situation where an employer, without due reason, should be able to come to the Fair Work Commission and effectively seek to terminate the agreement. 52

Section 318(3)(d) - negative impact on the productivity of SHP’s workplace

(a) The evidence

[44] Mr Hutchinson stated that it was a very big concern of his, equal to the financial concerns, in relation to the different sets of entitlement, rather than just the salaries. The company was said to have worked very hard to drive a consistent message and a consistent culture. It was stated that the company has a very strong culture based on equality and fairness. Mr Hutchinson’s concern was that, if there are two employees essentially doing the same job sitting side-by-side but on different industrial instruments, that could undermine the culture that has been built. 53

[45] It was acknowledged that there are currently two agreements applying to SHP employees. However those employees were said to never work side-by-side. 54 The expectation was that people will work the same hours for the same job for a similar reward. People were said, by Mr Hutchinson, to not like to think that somebody else has entitlements which are perhaps better than what they are afforded.55 A transferring employee, being on a 37.5 hour week as opposed to a 38 hour week, has the potential to cause confusion and potentially upset the culture of the existing business model. There were logistical issues in terms of rostering but there was also stated to be a sense of fairness or unfairness. Mr Hutchinson indicated that this was difficult to explain to people who are otherwise performing exactly the same role.56

(b) Submissions

[46] It was submitted by SHP that the transfer of the Medibank Agreement would create significant administrative difficulties for SHP. This is because the terms of the Medibank Agreement, being the product of the public sector environment, do not align with SHP’s operations, being a private sector employer. 57

[47] SHP contended that the disparity in terms and conditions will need to be managed and that, particularly in clinics which have less than 25 staff, the differences will potentially be more apparent. In addition, it was stated that, having two different enterprise agreements operating side-by-side in workplaces that a relatively small, will create more complexity in staff communications and involve a higher degree of staff management. Further, SHP submitted that there is a greater likelihood of SHP employees becoming disenfranchised. SHP was said to be concerned that these issues will impact significantly on productivity throughout the business. It was stated that there is also the potential for workplace conflict where employees perform the same work at the same site but on different terms and conditions. 58 Mr Hutchinson’s evidence, in relation to his concerns about staff working side-by-side on different terms and conditions (not just salary) was also highlighted.59

[48] For the ANMF’s part, the ANMF did not agree that the transfer of the Medibank Agreement would create significant administrative difficulties. It was stated that the decision by SHP to purchase the two businesses was clearly a commercial one that has been made with full knowledge of the existing enterprise agreement arrangements. The decision to purchase the businesses was made independently of this application and could not have been made with any certainty that the application would be successful. 60

[49] It was argued by the ANMF, that it is not unusual for more than one industrial instrument to operate in a workplace. It was also said that this may not be the case necessarily in the long term. The ANF contended that it was standard practice in workplaces for some conditions to apply to one set of employees as opposed to others, due to various circumstances. The Medibank Agreement was referred to as an example of an agreement with some “grandfathered” conditions. This was described as commonplace and not a barrier, particularly in circumstances such as this, where employees are transferring from an existing business. 61 Finally, the ANMF contended that it is common in Fair Work Commission decisions relating to section 318 applications, for undertakings to have been made to transferring employees to preserve certain entitlements under the instrument that will not be transferring with the employees.62

Section 318(3)(e) - whether SHP would incur significant economic disadvantage

(a) The evidence

[50] It was Mr Hutchinson’s evidence that the cost to SHP of continuing to pay Medibank employees’ current base salary rates is approximately $10.2 million per annum and $1,333,194.00 for 15 months (October 2015 to December 2016). 63 This was said to represent a significant financial investment from SHP. It was described as the most generous offer that the company can make to transferring employees, in terms of additional costs to SHP, without significantly impacting the viability of the SHP business.64

[51] If the Medibank Agreement was to transfer, Mr Hutchinson stated that SHP would need to significantly reduce the headcount of transferring employees in order to offset the additional costs due to the numerous entitlements within the Medibank Agreement which sit above those in the SHP Agreements. 65

[52] It was Mr Hutchinson’s view that the company would be commercially disadvantaged if the application is not granted. He stated that, if the Medibank Agreement is set aside, then the costs will be brought in line with the company’s current profile and cost base. 66

[53] Mr Hutchinson also stated that there will be additional costs associated with implementing and managing compliance with an additional industrial instrument should the Medibank Agreement transfer. Mr Hutchinson indicated that he had been informed that SHP will be required to hire an additional two staff members (a Human Resources Advisor and Payroll Officer) at an annual cost of approximately $170,000 in order to manage the integration of the Medibank Agreement into SHP’s payroll system and manage compliance. 67

(b) Submissions

[54] SHP highlighted Mr Hutchinson’s evidence that there were added costs to the business of having to employ additional people to manage the integration of the Medibank Agreement as well as the costs of the more beneficial conditions. These were said to be in the vicinity of $605,000 for the additional entitlements and $170,000 for the integration of the Medibank Agreement. It was noted that Mr Hutchinson’s evidence indicated that SHP was prepared to give an undertaking, which will cost approximately $1.33 million (the cost of the undertaking over 15 months), which would be absorbed by the business. 68

[55] The ANMF stated that the evidence before the Commission goes to the fact that SHP was well aware of its potential obligations under the Medibank Agreement prior to submitting an expression of interest. The company went ahead and purchased the two businesses on the basis that it was a prudent acquisition. It was recalled that Mr Hutchinson’s evidence was that the purchase would lead to opportunities to expand the business in relation to its current work but also in a new business model of providing workplace health and travel doctor services. 69 The ANMF argued that the company had therefore bought the businesses in the clear knowledge and understanding that there was an Agreement in place. Having regard to that, it was said that SHP still thought it was a prudent acquisition. It was submitted that SHP should not be able to come to the Commission and essentially ask the Commission to provide them a leg-up in terms of the cost of acquiring that business.70

[56] It was contended by the ANMF that the transfer of the Medibank Agreement would not amount to significant economic disadvantage to SHP. The ANMF stated that SHP is part of the Sonic Healthcare group which is listed on the Australian Securities Exchange. Sonic Healthcare was said to have reported a net profit for the year to 30 June 2015 of $363 million on revenues of $4,201 million. 71

[57] The ANMF also submitted that the costs relating to the Medibank Agreement, as identified by SHP, are commercial realities reflecting the costs of doing business. It was stated that this known cost is one of a range of expenses associated with the decision to expand business operations. It was submitted that there is no evidence that SHP will incur significant economic disadvantage. The ANMF argued that a distinction should be made between the costs incurred in acquiring a business and significant economic disadvantage. It was contended that one must assume that there are economic benefits to be gained by SHP through the purchase of the two businesses. Reference was made to SHP’s agreement to continue the current Medibank Agreement wages and conditions for some nurses (those working on the Gorgon Project site on Barrow Island). This was said to be another decision based on commercial considerations. 72

Section 318(3)(f) - the degree of business synergy between the agreements

(a) The evidence

[58] Mr Hutchinson stated that SHP has run a successful business over a prolonged period of time. There were said to be a number of efficiencies that could be gained simply by merging the two businesses. 73 It was explained thatthere are some similarities between the two Medibank businesses and SHP’s current business model.74

(b) Submissions

[59] In its submissions, SHP acknowledged that there is a great deal/high degree of business synergy between the Workplace Health and Travel Doctor businesses and the Sonic Health business. However, it was said that there was far less synergy in relation to the operation of the industrial instruments. 75 It was indicated that the SHP agreements are broad enough in scope to cover all of the transferring employees.76

[60] The Medibank Agreement was said to have been described by Mr Hutchinson as a public sector industrial instrument, the nature of which was partly attributable to its public sector history. As a result, there were conditions of employment in the Medibank Agreement which do not align with the private health and diagnostics industry. It was recalled that Mr Hutchinson’s view was that the conditions of employment are overly generous compared with what would be seen more normally in the company’s market space. This space was said to be one where, in his experience, most employers relied on the award. 77

[61] The ANMF contended that the evidence suggests that there is a high degree of synergy between the services that SHP are currently delivering and the businesses they have acquired from Medibank. It was said that the services will be similar and that the staff will be working at the same premises but with a different employer. It was also submitted that there is not that much difference between the terms and conditions of the types of occupations that are covered by the Medibank Agreement and the two SHP Agreements. Therefore, there is a degree of synergy that the Commission should have regard to. 78

[62] Further, it was argued that the Medibank Agreement does not contain provisions that are unworkable or inoperable in the context of SHP workplaces. It was stated that the enterprise agreements cover clinical and administrative staff and that transferring employees, for the most part, will be employed by SHP to undertake duties and responsibilities similar to those they performed for Medibank. In some cases, it was stated that the transferring employees will work from the same location. 79

Section 318(3)(g) - public interest

(a) The evidence

[63] Mr Hutchinson gave evidence that SHP’s purchase of the two Medibank businesses will provide security of employment for a significant number of Medibank employees who would otherwise be made redundant. 80 It was his view that Medibank had made it very clear, including to employees, that the cost base of the Medibank businesses was not sustainable and that a reduction in employees would likely have needed to have occur, if SHP had not acquired the business.81 Mr Hutchinson stated that SHP is buying a business that is not profitable.82

(b) Submissions

[64] It was submitted by SHP that it is in the public interest that the orders be made. If the orders are not made, it was stated that SHP considers that it will not be able to afford to extend offers of employment to the maximum number of Medibank employees that it would like to offer employment to. If the orders are made, the number of offers of employment would increase from approximately 60 to approximately 159. 83

[65] Further, because the two Medibank businesses are spread across the country, including in regional areas where alternative employment may be harder to secure, it was argued that the ability to offer secure employment to as many affected Medibank employees in those regions, falls clearly within the public interest discretion which the Commission must consider under section 318(3)(g). 84

[66] In addition, SHP submitted that, if the orders are made and an offer of employment is declined by the prospective Medibank employee because it is less favourable overall, that employee will be eligible to receive redundancy, notwithstanding these orders. 85 It was acknowledged that this will be the same regardless of whether SHP makes offers of employment to 60 or to 159 Medibank employees. The ability of SHP to maximise the number of offers of employment was said to be squarely in the interests and welfare of the community.86

[67] SHP, in response to the ANMF’s submission that the weight of disadvantage to transferring employees far exceeds the claims concerning the impact on the business if the orders are not made, argued that “public interest” should not be read narrowly to limit consideration to only the interests of the employees and the employer who are immediately concerned. 87 It was contended that “public interest” concerns more than just the interests of the parties immediately concerned and the Commission was referred to the decision of Justice Munro in Joy Mining Machinery (Moss Vale site) Certified Agreement 1998/1999.88 SHP relied on His Honour’s observations which included:

“The most fundamental considerations relevant to the public interest must be those which have most substance to what are perceived to be the interests and welfare of the community.”  89

[68] SHP submitted that the ongoing viability of a national business which provides important health services to the community and which can offer continuing employment to over 150 employees across the country is, at its highest, in the interests and welfare of the community. 90

[69] The ANMF submitted that it is in the public interest that transferring employees continue to receive their terms and conditions of employment under the Medibank Agreement. The objects of Part 2–8 of the Act (s.309) were said to recognise that such entitlement should continue subject to an order under s.318(1)(a) and (b). 91 It was contended that the weight of disadvantage to transferring employees far exceeds the claims put by SHP concerning the impact on the business.92

[70] It was argued that SHP has not identified significant public interest issues that impact on a broader scale. The claims made relating to employment numbers are not certainties that can be relied on. The comments of Mr Hutchinson were noted where he said that it would be “likely” that the company would be required to reduce the number of Medibank employees offered employment. 93

[71] Further, the union contended that the public interest should not be defined, in these circumstances, as a direct interest of either the business or the employees. Rather, it is what is in the interests of the general community and whether or not the Commission should uphold an application to terminate an enterprise agreement in respect to employees and transfer their terms and conditions of employment to another enterprise agreement. The ANMF stated that the public interest factors are that transferring employees should be able to continue the benefits of those terms and conditions of employment set out in their enterprise agreement. This was said to be particularly so in circumstances where, through no involvement of their own, there has been a business decision to sell the business they are employed in and to transfer them to another business entity. 94

[72] The ANMF also argued that the unchallenged evidence was that, throughout all of the consideration about whether or not the two Medibank businesses would be bought by SHP, SHP had full regard to the fact that there was an industrial instrument in place and that the terms and conditions of that industrial instrument were different to the terms and conditions of the instrument that currently applies to the SHP business. 95

[73] It was therefore said to be in the public interest, that the Medibank Agreement continue and that it transfer with the employment of the employees who transfer from Medibank to SHP. At the conclusion of the Agreement, it was contended that the new employer can sit down with their employees and negotiate a new agreement. If this cannot be achieved, there were said to be a number of options available for the employer. These included making an application to terminate the agreement or to take other actions to change the arrangements. 96

[74] Finally, it was the ANMF’s view that the transferring employees should not bear the brunt of SHP’s decision, taken in full knowledge of the facts (including that the acquisition brought with it additional costs) to acquire the two Medibank businesses. 97

3. Considerations and conclusions

[75] The Explanatory Memoranda to the Fair Work Bill 2008 states that clause 313 (Transferring employees and new employer covered by transferable instrument):

“sets the default rules that apply to the coverage of transferable instruments when a transfer of business occurs. The effect of subclause 313(1) is that a transferable instrument that covered an old employer and a transferring employee immediately before that employees employment was terminated covers the new employer and the transferring employee in relation to the transferring work:….”. 98

[76] In explaining subclause 318(1)(a), the Explanatory Memoranda indicates that the effect of this subclause is that it to replaces the general rule in paragraph 313(1)(a) that a transferable instrument covers the new employer and a transferring employee. 99

[77] Subclause 318(3) sets out the factors/matters that must be taken into account when deciding whether to make an order under subclause 318(1). The Explanatory Memoranda states that:

“These factors, which must be read having regard to the objects of the Part, are intended to enable FWA to balance appropriately the protection of employees’ entitlements under certain instruments with the need for some flexibility to depart from the default rules about coverage of instruments following a transfer of business. They recognise that in some circumstances, having regard to matters such as the views of the persons covered by the instruments and the public interest, there may be good reason for an alternative instrument to cover the transferring employees.”  100

[78] The issuing of an order under s.318(1) is a discretionary decision. In exercising that discretion, the Commission is required to take into account, and to balance, all of the factors set out in s.318(3) of the Act. The outcome of the weighing up of all of the factors is that the Commission must be persuaded to exercise its discretion.

[79] I will deal with each of the factors in turn.

Section 318(3)(a)(i) - the views of SHP

[80] The Commission had the benefit of evidence from the Chief Executive Officer of SHP, Mr Hutchinson, who was intimately involved in the internal company decision-making processes in relation to the acquisition of the two Medibank businesses by SHP. The evidence, from Mr Hutchinson, was that SHP made the decision to acquire the Medibank businesses on the grounds that there was good business synergy between SHP and the Medibank businesses. It was stated that the acquisition will allow SHP access into geographic markets where it is currently not operating and will enhance SHP’s ability to access onshore and offshore government contracts. 101

[81] In addition, it was Mr Hutchinson’s evidence that the company was very aware of the differences between the Medibank Agreement and the SHP Agreements and the impact that would have. The company, in deciding to purchase the Medibank businesses, also made the decision to make the present application. It was agreed by Mr Hutchinson that the company had made the application to reduce the cost base of those employees who transfer from Medibank to SHP.

[82] It was also the company’s view that it would incur significant economic disadvantage if the orders are not made. This would be due to the cost of integrating a new agreement into the payroll system and monitoring compliance. This was in addition to the cost of the undertaking to maintain the existing annualised base salaries of the transferring employees. The company stated that, as well, there would be a negative impact on SHP’s productivity if the orders are not granted. This would occur where employees are working side-by-side on different terms and conditions particularly.

[83] Further, the company explained that if the order sought was granted, approximately 159 employees will be made offers of employment with SHP. If the order is not granted, 60 employees would be made offers of employment.

Section 318(3)(a)(ii) - the views of the employees

[84] Having considered carefully the evidence before me, in relation to the views of the employees, I conclude that:

● there was extensive consultation with employees about the acquisition.
● as part of the consultation, employees were advised that SHP would be making a section 318 application and the potential ramifications of that application.
● employees were provided with information on the differences in the terms and conditions of the Medibank Agreement and the SHP Agreements.
● There were over 400 questions from employees about the acquisition.
● 27 employees (out of 378) emailed the Medibank dedicated email advising that they were opposed to the application.
● employees were concerned about when they would hear if they were going to be made an offer and what their salary and hours would be.

[85] As can be seen from the paragraph above, the evidence about the views of the employees was very general. The only detailed and firm evidence was that 27 employees had advised Medibank, in writing, that they were opposed to the section 318 application.

[86] With respect to general evidence, Ms Neill recounted that her colleagues’ feedback was that, when informing employees that their roles had been made redundant, there had been very little mention of the section 318 application. Employees were said to have been asking about when they would hear if they were going to be made an offer and what that offer might look like.

[87] On the other hand, the ANMF, through Ms Richard’s witness statement, stated that the union had been contacted by members concerned about many aspects of the transfer of business. In particular, members were concerned that they will lose a number of existing terms and conditions of employment if the Medibank Agreement does not transfer. 102

[88] It was common ground between the parties that there was extensive consultation with affected employees. This included by SHP as well as by Medibank. It is apparent from the evidence that the section 318 application was discussed with affected employees as part of the consultation process. It would seem from the number of questions asked by Medibank employees that there was a high degree of interest in what their future terms and conditions, amongst other issues, would be.

[89] Taking all of this into account, it can be concluded that some of the affected employees oppose the application. With respect to the views of the balance of affected employees, it is probable that they did not necessarily oppose the application, being primarily concerned about their future job security. Therefore, this factor weighs slightly in favour of granting the application.

Section 318(3)(b) - would any employees be disadvantaged

[90] There was no dispute between the company and the ANMF that there are differences between the Medibank Agreement and the SHP Agreements. It was acknowledged by the company that the wages and conditions in the Medibank Agreement are more beneficial than those provided for in the SHP Agreements. In this regard, it is noted that the company is prepared to give an undertaking that the current annualised base salaries of the transferring employees will be maintained. In addition, the company is prepared to give an undertaking that the prior service of transferring employees will be recognised.

[91] In light of the proposed undertakings by the company the key area of consideration, in relation to this factor, are the differences in the terms and conditions between the Agreements. It is my view that these differences are substantial. They include an increase in the hours of work from 37.5 hours per week to 38 hours per week; a reduction of .5% in superannuation contributions by the employer; the loss of one week’s annual leave for employees who currently receive 5 weeks, together with the loss of a 20% leave loading; a reduction in compassionate leave from 5 days to 2 days per occasion; a reduction of 8 weeks paid maternity leave and 2 weeks paid paternity leave; a reduction of the quantum of long service leave (except in South Australia and the Northern Territory) and a reduction in redundancy entitlements (except for clinic employees engaged prior to 20 December 2012).

[92] On the other hand, SHP listed a number of benefits and entitlements which the transferring employees would receive by transferring to the SHP Agreements. These included ceremonial leave; education assistance; reimbursement of approved business expenses; overtime at double time on Sunday and more beneficial casual provisions and cashing out of leave provisions. 103 It was stated that SHP also promotes flexible rostering; job share; a 9 day fortnight and working from home opportunities where the position permits.104

[93] In addition, it was stated that, under the SHP Agreements, employees will receive a minimum wage increase of 2.5% from 4 July 2016. This was said to be in contrast to the Medibank Agreement which will not provide a future wage increase because it has expired. The company argued that, if the orders sought are not made, the transferring employees will not receive a wage increase in 2016.

[94] It is a matter of fact that, if the application is granted, transferring employees will receive a wage increase, in July 2016, of a minimum of 2.5%. However, the converse of this (that the transferring employees will not receive a wage increase in 2016) is not necessarily the case, at this point in time. This is because the company’s position is that it has not yet determined how it will deal with the expired Medibank Agreement, in the event that the orders sought are not made.

[95] Balancing all of this, it is my view that there would still be a net and considerable reduction in the entitlements of the transferring employees, if they become cover covered by the SHP Agreements. The reduction of .5% in superannuation contributions; the increase in weekly working hours of half an hour per week; the reductions in long service leave, redundancy entitlements, paid parental leave, and overtime and the increase in the span of hours, for example, are in relation to core entitlements. Therefore these reductions will have an impact on all of the transferring employees. It is unlikely that a 2.5% minimum wage increase (in the event that the parties do not reach agreement on an alternative option) would offset, to a great degree, the considerable disadvantage that will flow to all transferring employees if the orders are granted. This factor weighs considerably against granting the orders.

Section 318(3)(c) - nominal expiry date of the agreement

[96] That the Medibank Agreement, will have expired by the date of acquisition, is as an advantage for the new employer. This is because there will not be an agreement, which transferred with the employees, which will be in place for a long time. The new employer, therefore, has a range of options for dealing with this situation. Mr Hutchinson, in his evidence, outlined what some of those options may be for the company.

[97] Therefore, the fact that the Medibank Agreement will have expired by the date of acquisition does not weigh in favour of granting the orders.

Section 318(3)(d) - negative impact on the productivity of SHP’s workplace

[98] It was argued strongly by the company that having two people working side-by-side, performing the same work but on different sets of entitlements, would have a negative impact on productivity in the workplace. This was because of the company’s strong culture based on equality and fairness. It was also submitted that, if the orders are not made, the company would have to actively manage the disparity in conditions between employees. This was said to impact significantly on productivity.

[99] The ANMF argued that it was not unusual for there to be more than one industrial instrument operating in a workplace and for enterprise agreements to contain “grandfathered” conditions.

[100] While it is unusual for different conditions to apply to employees performing the same work, there is little concrete evidence, apart from opinion evidence, to show how the differing conditions that apply to how the work is performed, will have a negative impact on productivity. In this case, it is difficult to place great weight on this contention.

[101] The context in which this application is being made is the acquisition of the Medibank businesses by SHP and a resulting restructure of the new combined businesses by SHP. Given this environment, different conditions in the workplace, applying to employees performing the same work, would not have a negative impact on productivity. This issue would be only one element of broader changes which the company will have to manage as a result of its decision to acquire the Medibank businesses. I have not been persuaded that, in the context of SHP’s acquisition of the Medibank businesses and the consequential restructuring, the transfer of the Medibank Agreement will have a negative impact on the productivity of SHP’s workplace. This factor weighs against issuing the orders sought.

Section 318(3)(e) - whether SHP would incur significant economic disadvantage

[102] Mr Hutchinson’s evidence was that the cost of SHP’s undertaking to pay the current Medibank Agreement annualised base salaries of the transferring employees (one of the undertakings) was $10.2 million per year. The cost to SHP of employing additional people to implement and manage compliance with the Medibank Agreement was stated to be $170,000 per annum. Further costs, the more beneficial/additional entitlements, were costed at $605,000 per annum.

[103] The evidence shows that the Medibank businesses were acquired by SHP in the full knowledge that the Medibank Agreement was more beneficial, for employees, than the SHP Agreements. A business decision has evidently been made by the company to provide an undertaking to the Commission that will cost SHP $10.2 million for one year. The company has also made it clear that, if the orders are not issued, the number of employees made offers will be reduced. In other words, the company will adjust its financials so that it does not face additional costs, over and above those already planned for and agreed internally, in relation to the acquisition.

[104] The cost of integrating a new agreement and ensuring compliance, together with the cost of the difference in entitlements, is not, in my view, of such a magnitude which would result in significant economic disadvantage to the company. Therefore, I have not been persuaded that the company will incur significant economic disadvantage if the orders are not made. This weighs against issuing the orders sought.

Section 318(3)(f) - the degree of business synergy between the agreements

[105] The company was clear in its view that there is a high degree of synergy between the two businesses (the Medibank businesses and SHP). The company was also clear that there was less business synergy between the Agreements. One of the principal grounds for this argument was that the Medibank Agreement was a public sector agreement whilst the SHP Agreements were private sector agreements.

[106] For its part, the ANMF contended that nurses in other (non-public-sector) areas were in receipt of terms and conditions on par with those in the Medibank Agreement.

[107] All enterprise agreements reflect the history of the employer and the industry in which the employer operates. I have not been convinced that the fact that the Agreements do not share a common background is germane to this factor. The differences between the Agreements relate mainly to the quantum of the entitlements. However, each of the Agreements do contain entitlements that the other Agreement does not. Whatever the historical genesis of the differences, I have been persuaded that there is not a great deal of business synergy between the Medibank Agreement and the SHP Agreements. This factor weighs in favour of issuing the orders sought.

Section 318(3)(g) - public interest

[108] With respect to what the term “public interest” means, I concur with Justice Munro’s observations which the Commission was referred to by the applicant, namely, that public interest means “in the interests and welfare of the community”.

[109] SHP contended that it was in the interests and welfare of the community for the application to be granted. This was on the basis that, if the application is granted, the company could offer continuing employment to over 150 employees, some of whom are in regional areas. If the orders are not made, the company stated that it would offer 60 Medibank employees a position with SHP.

[110] On the other hand, the ANMF submitted that the public interest factors are that transferring employees should be able to continue to receive the benefits of their existing agreement when, through no involvement of their own, there was a business decision to sell the business they were employed in and to transfer them to another business entity. As SHP made the decision to acquire the Medibank businesses, in the full knowledge of the differences between the Agreements, it was said to not be in the public interest for the orders to be granted which will reduce the entitlements of the transferring employees.

[111] It was SHP’s main contention that it was in the public interest for the company to be able to maximise the number of offers of secure employment it made to Medibank employees. As some of the affected employees are in regional areas, granting the application was also said to be in the public interest. This was because alternative employment may be harder to obtain in regional areas.

[112] SHP acknowledged that, whether or not the orders are made and whether or not the maximum number of job offers was made, the affected Medibank employees would be eligible to receive redundancy. This was on the basis that, either no offer was made by SHP or an offer was declined, because it was less favourable overall.

[113] There were no details provided about which regional areas were being referred to or the number of employees in regional areas who would be affected in this regard.

[114] Regardless of the outcome of the application, SHP has stated that it will be making job offers to affected Medibank employees. However, if the orders are made, the number of offers will increase from 60 to 159. That the company could offer more jobs is, in general, “in the interests and welfare of the community”. Therefore, this factor weighs slightly in favour of making the orders sought.

Conclusions

[115] In balancing up each of the factors set out in section 318(3), on the one hand, favouring the making of the orders are the views of the likely new employer; the views of the employees (slightly); the little business synergy between the Agreements and the public interest (slightly).

[116] On the other hand, those factors weighing against the making of the orders are that all of the transferring employees would be considerably disadvantage; the nominal expiry date of the Medibank Agreement; the lack of a negative impact on the productivity of the workplace and that the company would not incur significant economic disadvantage.

[117] Having regard to all of these factors, on balance, I have not been persuaded to exercise my discretion and issue the orders sought by the Applicant. It is my view that those factors weighing against the making of the orders outweigh those in favour. In balancing the protection of employees’ terms and conditions and the interests of employers in running their enterprises efficiently, if there is a transfer of business (section 309 - Object of this Part), I have not been persuaded to exercise my discretion and issue the orders sought.

[118] Accordingly, the application is dismissed.

Appearances:

Ms C Lenard of K & L Gates for the Applicant

Mr N Blake for the Australian Nursing and Midwifery Federation

Hearing details:

2015.

Melbourne:

September 15.

 1   Exhibit A3 at paragraphs 8 - 9 and Transcript PN 97 - 513

 2   Ibid PN 107 - 110

 3   Ibid PN 120 - 127 and Exhibit A3 at paragraph 17

 4   Exhibit A3 at paragraph 19

 5   Exhibit A4 at paragraph 53

 6   Exhibit R2

 7   Exhibit A1 at paragraph 3.4

 8   Ibid at paragraph 6

 9   Transcript PN 327 - 331

 10   Ibid PN 332 - 333

 11   Ibid PN 335 - 338

 12   Ibid PN 343

 13   Ibid PN 340 - 341 and 346

 14   Ibid PN 420

 15   Ibid PN 421

 16   Ibid PN 693

 17   Exhibit A3 at paragraphs 17 - 34 and Exhibit A4 at paragraphs 38 - 42

 18   Exhibit A4 at paragraph 39 and Transcript PN 435

 19   Exhibit A3 at paragraph 33 and ibid PN 134

 20   Ibid PN 168 - 173

 21   Ibid 135 - 136

 22   Ibid PN 614 and Exhibit A1 at paragraph 3

 23   Ibid PN 615, ibid at paragraph 3 and Exhibit A2 at paragraph 2.5

 24   Ibid PN 616, ibid at paragraph 3 and ibid at paragraph 2.5

 25   Exhibit A1 at paragraph 3

 26   Exhibit A2 at paragraph 2.5

 27   [2014] FWC 2596

 28   Exhibit A2 at paragraph 2.6

 29   Exhibit R1 at paragraphs 2.1 and 2.4

 30   Transcript PN 699

 31   Exhibit A4 at paragraph 25

 32   Transcript PN 347

 33   Ibid PN 423 - 428

 34   Ibid PN 429 and Exhibit A4 at paragraph 27

 35   Exhibit A2 at paragraph 3.1 and exhibit A1 at paragraph 4

 36   Transcript PN 642 - 646

 37   Exhibit A1 at paragraph 4

 38   Exhibit A2 at paragraph 3.2

 39   Ibid at paragraph 3.3

 40   Exhibit R1 at paragraph 3.1 - 3.2

 41   Exhibit R1 at paragraph 3.3

 42   Transcript PN 700

 43   Ibid PN 465 - 470

 44   Exhibit A1 at paragraph 5.2

 45   [2013] FWCA 2005

 46   Transcript PN 619 - 620, Exhibit A2 at paragraph 4 and Exhibit A1 at paragraph 5

 47   Exhibit A1 at paragraph 5.2 and Exhibit A2 at paragraph 4.2

 48   Ibid at paragraph 5.4 and Transcript PN 624

 49   Ibid PN 625

 50   Exhibit R1 at paragraph 4.1

 51   Ibid at paragraph 4.2

 52   Transcript PN 701

 53   Ibid PN 353 - 355 and 408 and Exhibit A4 at paragraph 43

 54   Ibid PN 357

 55   Ibid PN 414

 56   Ibid PN 408 - 411

 57   Exhibit A1 at paragraph 6.1

 58   Ibid at paragraphs 6.1 - 6.3

 59   Transcript PN 626

 60   Exhibit R1 at paragraphs 5.1 - 5.2

 61   Ibid at paragraph 5.3

 62   Ibid at paragraph 5.4

 63   Exhibit A4 at paragraph 48 and Transcript PN 455 - 463

 64   Ibid at paragraph 48

 65   Ibid at paragraph 49

 66   Transcript PN 455 - 462

 67   Exhibit A4 at paragraph 52

 68   Exhibit A1 at paragraphs 7.1 – 7.2 and Transcript PN 627

 69   Exhibit R1 at paragraph 6.4 and ibid PN 702

 70   Ibid PN 703

 71   Exhibit R1 at paragraphs 6.1 - 6.3

 72   Ibid at paragraphs 6.5 - 6.6

 73   Transcript PN 313

 74   Ibid PN 430 and Exhibit A4 at paragraph 39

 75   Ibid PN 630 and 703 - 705 and Exhibit A1 at paragraph 8.1

 76   Ibid at paragraph 8.2

 77   Exhibit A4 at paragraph 45 and Transcript PN 439 - 451 and 477

 78   Ibid PN 703 - 705

 79   Exhibit R1 at paragraph 7.1

 80   Exhibit A4 at paragraph 15 and Transcript PN 297

 81   Ibid PN 296 - 298

 82   Ibid PN 312

 83   Exhibit A1 at paragraph 9.1

 84  Ibid at paragraph 9.2 and Exhibit A2 at paragraph 5.6

 85   Ibid at paragraph 9.3 and ibid at paragraph 5.7

 86   Exhibit A2 at paragraph 5.8

 87   Ibid at paragraph 5

 88   Print T1133

 89   Ibid at [38], Exhibit A2 at paragraph 5.4 and Transcript PN 713 - 717

 90   Ibid at paragraph 5.5 and Ibid PN 718

 91   Exhibit R1 at paragraph 8.1

 92   Ibid at paragraph 8.2

 93   Ibid at paragraph 8.3

 94   Transcript PN 705 - 707

 95   Ibid PN 707

 96   Ibid PN 708

 97   Ibid PN 709

 98   Explanatory Memoranda to the Fair Work Bill 2008 at paragraph 1231 on page 196

 99  Ibid at paragraph 1256 at page 201

 100   Ibid at paragraph 1259 on pages 201 - 202

 101   Exhibit A4 at paragraphs 9 - 11

 102   Exhibit R2 at paragraph 3

 103   Exhibit A2 at paragraph 3.2

 104   Ibid at paragraph 3.3

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