The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia v Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland - [2022] FWC 233

[2022] FWC 233

FAIR WORK COMMISSION

reasons for DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

The Association of Professional Engineers, Scientists and Managers, Australia T/A Professionals Australia

Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland

(C2021/619)

DEPUTY PRESIDENT ASBURY

BRISBANE, 15 FEBRUARY 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Construction of enterprise agreement

Overview and background

This decision concerns an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) under s.739 of the Fair Work Act 2009 (FW Act) seeking that the Fair Work Commission (Commission) deal with a dispute under the dispute resolution procedure in the Working at Powerlink 2020 Union Collective Agreement (2020 Agreement) referred to by the parties as the WAPA. The Respondent is Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland (Powerlink). Powerlink is a State Government Owned Corporation, which owns, operates and maintains the electricity transmission network across Queensland and to the New South Wales border.

APESMA, Powerlink and its employees employed in relevant classifications are covered by the 2020 Agreement. The 2020 Agreement was approved by the Fair Work Commission on 16 October 2020 and commenced operation on 23 October 2020.[1] The 2020 Agreement is expressed to replace the Working at Powerlink 2018 Union Collective Agreement (2018 Agreement).[2] At the same time the 2020 Agreement was approved by the Commission, the 2018 Agreement was terminated.[3] The termination took effect on 23 October 2020.

The dispute concerns Mr John Spiteri, an employee of Powerlink and member of APESMA. The background facts which are not contested, are that on 23 June 2020 Mr Spiteri’s position as Team Leader, Layout and Drafting was made redundant, and on 26 June 2020, Mr Spiteri was informed that he would be permanently redeployed into the position of Team Leader Line Layout Design. Mr Spiteri started working in the new role on 6 July 2020.

The dispute centres on clause 8.4 of Schedule 1 of the 2020 Agreement, which relevantly provides that: “Redeployed employees will be eligible for retrenchment benefits if it is found within three months by either themselves of Powerlink that the alternative position is unsatisfactory.”

In short compass, the dispute has arisen because Mr Spiteri asserts that within three months of commencing in the alternative role, he found that role to be unsatisfactory and that this is sufficient to entitle him to retrenchment benefits under the 2020 Agreement. Powerlink contends that whether the alternative position is unsatisfactory is considered objectively, and on this basis, the alternative position is satisfactory, and Mr Spiteri is therefore not entitled to retrenchment benefits under the 2020 Agreement. Powerlink also contends that Mr Spiteri did not notify within three months that he found the alternative position to be unsatisfactory and has therefore not complied with a requirement of the 2020 Agreement.

Conferences of the parties were conducted, and the Commission attempted to conciliate the dispute. The dispute was not resolved by conciliation. While there is some discussion in the submissions concerning whether the dispute is being dealt with under the 2018 or the 2020 Agreement,[4] it is not in dispute that the Commission has the power to deal with the dispute, including by arbitration.[5] The Dispute Resolution Procedure in the 2018 and the 2020 Agreement are identical and provide that where a conciliation proceeding fails to fully resolve a dispute, a party to the dispute may refer the matter to the Commission for arbitration. The parties have agreed that the Commission arbitrate the dispute by answering the following questions:

On a proper construction of clause 8.4 of schedule 1 of the Working at Powerlink 2020 Union Collective Agreement (WAPA):

a) Is the phrase “if it is found within three months by either themselves or Powerlink that the alternative position is unsatisfactory” of clause 8.4 of schedule 1 of the WAPA to be determined subjectively or objectively?

b) If it is found to be determined objectively, is the alternative position unsatisfactory?

c) Does clause 8.4 impose any notification requirements on the employee that they seek the retrenchment benefits pursuant to clause 8.4 of schedule 1 of the WAPA?

d) If so, did the employee satisfy that requirement?

In light of the answers to questions 1(a), (b), (c) and (d) above, is Mr John Spiteri entitled to retrenchment benefits under clause 9 of schedule 1 of the WAPA pursuant to clause 8.4 of Schedule 1of the WAPA?

By decision given ex tempore on 28 May 2021, permission was granted to the Respondent to be represented by a lawyer on the basis that I was satisfied, taking into account the complexity of the matter, that permitting the Respondent to be represented by a lawyer would enable it to be dealt with more efficiently. A hearing was conducted on 23 and 24 July 2021. APESMA was represented by Mr G Hall with Ms S Ding. Powerlink was represented by Ms T Lutvey of Ashurst. Evidence for APESMA was given by Mr Spiteri.[6] Evidence for Powerlink was given by:

Mr Gary Edwards, Executive General Manager Operations and Service Delivery;[7]
Mr Trevor Jacobs, Manager Primary Systems Design;[8] and
Mr Rakesh Solanki, General Manager, Design Solutions.[9]

Mr Edwards was not required for cross-examination. All other witnesses attended the hearing and were cross-examined. On 1 November 2021, I informed the parties of my answers to the questions for arbitration. My reasons and answers to the questions are set out below.

2020 Agreement provisions

While the submissions discussed the 2018 Agreement, the questions for arbitration have been formulated in respect of the 2020 Agreement. I do not understand either party to contend that there is a material difference in the relevant provisions. Consequently, I will consider the terms of the 2020 Agreement and will refer to earlier versions of the Agreement to the extent necessary in the exercise of construing the 2020 Agreement.

The 2020 Agreement states that it:

“…provides a mechanism for Powerlink and its employees to work collaboratively to respond to changes that will continue to develop Powerlink into a competitive and satisfying place to work.”[10]

The 2020 Agreement also states that: it is recognised that people and workplace culture are important,[11] that job roles are broad and will expand;[12] the intent is employees become more capable, confident, and secure;[13] that operating in a competitive environment is characterised by continuous change;[14] that in operating in an environment of continuous change everyone needs to take account of the impact on people and not just financial outcomes for Powerlink;[15] and that the parties will work cooperatively to, amongst other things, increase the competitiveness of Powerlink and enhance career opportunities and job security of employees.[16]

Clause 13 of the 2020 Agreement provides as follows:

“13. Security of Employment
13.1 There will be no forced redundancies for the life of this Agreement.
13.2 The agreement to have no forced redundancies depends upon the employee accepting reasonable retraining and re-deployment to a position which is equivalent in remuneration.
13.3 Employees who may find their positions redundant during the life of this Agreement will, as a minimum, have their salary maintained, without reduction, for the tenure of their employment with Powerlink.
13.4 The Powerlink Redundancy Conditions (Schedule 1) applies to the parties to this agreement.”

Schedule 1 of the 2020 Agreement deals with Powerlink Redundancy Conditions and relevantly provides:

“1. Application and Exclusions
1.1 Subject to the following terms and conditions, this schedule will apply to all employees of Powerlink who are employed either on a permanent (full time or part time) or temporary basis.
1.2 The provisions of this schedule will not apply to an employee who:
a) Is engaged by Powerlink on any other basis than described above
b) Is an apprentice or a trainee under a traineeship
c) Does not have at least one year’s continuous service
d) Is employed on a fixed term basis
e) Unreasonably refuses an offer of suitable alternate employment within Powerlink
f) Terminates employment during the period of notice given under Clause 6 of this Schedule, without Powerlink’s prior approval, unless the approval is unreasonably withheld
g) Is terminated for neglect of duty or serious misconduct warranting summary dismissal
2. Objectives
2.1 The objectives of this Schedule are to:
a) Provide sufficient flexibility to effectively address workforce issues arising from the rationalisation of operations and services from time to time within Powerlink, the changing nature of work and/or the rapidly changing environment within which Powerlink operates
b) Address these issues in an equitable fashion that supports Powerlink’s Corporate Planning Goal of meeting the shareholders’ and the public’s expectations for long term sustainable returns on their investments in this business
c) Maintain employees in employment within Powerlink wherever possible
d) Give preference to redeployment and Voluntary Redundancy where appropriate
e) Provide financial assistance to employees who accept transfers to other locations within Powerlink
f) Pay monetary compensation to employees for whom suitable alternative employment cannot be found and whose employment is to be terminated
3. Definitions
“Redundancy” occurs when Powerlink identifies that the need for work of a particular kind has substantially diminished or ceased.
Changed circumstances or work practices affecting the efficient and economical working of the enterprise will normally highlight where redundancies will occur. Employees will be considered for retrenchment / redeployment on the basis of merit, equity, skills, competencies and length of service where a position is declared redundant. This process will not discriminate on the basis of sex, sexual preference, marital status, pregnancy, family responsibilities, age, race, colour, national origin, impairment, trade union activity, political conviction or on any other ground outlined by all and any relevant legislation.
…
4. Consultation
4.1 Where it appears that a position or positions are likely to become redundant, and prior to formal redundancy notices being issued, Powerlink will provide all relevant details to the employee(s), and if requested, their nominated representative at the earliest possible time. These details will include:
a) The reasons for the position or positions becoming redundant
b) The number, location and other details of the redundant positions
4.2 Powerlink will arrange discussions to take place with the employee’s nominated representative which will include:
a) The method of identifying positions as redundant, having regard to the efficient and
economical working of the enterprise
b) Advice and the timing of that advice to the employees
c) The appropriateness of using voluntary retrenchment
d) Redeployment options
…

5. Dispute Resolution Process
Disputes arising from this agreement will be dealt with in terms accordance with clause 11 (Disputes Resolution Process).
…

7. Voluntary Retrenchment
7.1 The purpose of this section is to enable eligible employees to apply for Voluntary Retrenchment.
7.2 Applications for Voluntary Retrenchment would be called for and accepted, at Powerlink’s discretion.
7.3 Employees whose offer of voluntary retrenchment is accepted will be entitled to receive all eligible retrenchment benefits upon termination in accordance with this agreement. The call for Voluntary Retrenchments may be made after the need for work of a particular kind has substantially diminished or ceased.
8. Redeployment
8.1 Following the consultative steps detailed in Clause 4 of this schedule, all efforts will be made to find suitable alternative employment for employees whose positions are declared redundant. After the processes detailed in Clause 6 of this schedule have occurred, each affected employee will be individually interviewed to determine what options may exist for the management of that employee’s future.
8.2 Employees who may find their positions redundant during the life of this Agreement will, as a minimum, have their salary maintained, without reduction, for the tenure of their employment with Powerlink. The minimum rate will exclude shift allowances unless applicable to the new position.
8.3 Where applicable, payment of redeployment expenses will be in accordance with the Powerlink Relocation Guideline.
8.4 Redeployed employees will be eligible for retrenchment benefits if it is found within three months by either themselves or Powerlink that the alternative position is unsatisfactory.”

Evidence

Mr Spiteri has been an employee of Powerlink for 18 years, commencing in March 2003. Up until 6 July 2020, his role within the Primary System Design (PSD) group, being one of the three teams within the group, was “Team Leader Layout and Drafting”. In this role Mr Spiteri was responsible for the management, supervision and co-ordination of Transmission Line Layout Design and all drafting support to the two PSD Electrical Design and Civil Design engineering teams, with a span of control of 14 direct reports catering for five disciplines:

· Transmission Line Layout Design
· Transmission Line Electrical Drafting
· Transmission Line Structural Drafting
· Substations Electrical Drafting
· Substations Civil Drafting.[17]

From November 2018 to June 2020 a consultation process was undertaken by Powerlink to deliver outcomes and findings to address shortfalls resulting from the previous 2014 and 2016 restructures. The process included workshops, meetings and discussions attended by all PSD staff where information was gathered and communicated across all stakeholders. As a Team Leader, Mr Spiteri provided input for PSD and Powerlink. Options were developed based on collective feedback which led to the preferred outcome being approved and published in the “PSD End State” presentation, received on 23 June 2020 which includes the previous and current structure.

On 22 June 2020, Mr Spiteri attended a meeting with Mr Rakesh Solanki, General Manager of Design Solutions, Ms Joanne Barrett, Employee Relations and Mr Trevor Jacobs, Manager Primary Systems Design where he was advised that his existing position would be made redundant and as an impacted employee he would be considered for direct redeployment into a newly created position. Mr Spiteri said that he stated in response that he wanted voluntary redundancy, rather than the new position. Mr Solanki advised that voluntary redundancy was not an option and should Mr Spiteri not accept the new position, he should consider resigning.

On 23 June 2020, Mr Spiteri received email correspondence stating his existing position “Team Leader, Layout and Drafting” will be made redundant and that he would be “suitable for” the new “Team Leader, Line Layout Design” position. On 26 June 2020, Mr Spiteri received a letter of offer for “Permanent Redeployment”. The new role of Team Leader Layout would be effective 6 July 2020. Mr Spiteri commenced working in the role on 6 July 2021 being the first day of the new structure.

Whilst adapting to the new role with the new accountabilities and responsibilities, Mr Spiteri stated that he continually monitored his satisfaction of the position, his health and his well-being. Mr Spiteri’s view is that the three-month period was a sufficient time to determine whether he was fully satisfied with the new role or not.

Mr Spiteri’s evidence is that during his time at Powerlink he has been involved in previous restructures (for example in 2014 and 2016) where employees who have been redeployed into an alternative role have been able to elect to take retrenchment benefits within three months because they found the alternative role was not working for them. Mr Spiteri stated that this is how he understood clause 8.4 of schedule 1 of the Agreement to work.

On 21 September 2020, Mr Spiteri had a discussion with his manager, Mr Jacobs, regarding his redeployed position. Mr Spiteri stated that he showed Mr Jacobs the Enterprise Agreement referring to clause 8.4 of schedule 1 and told Mr Jacobs that the role was not satisfactory, that he was within the three-month period and that he would like a voluntary redundancy. As directed by Mr Jacobs, Mr Spiteri put his concerns and his request for voluntary redundancy in an email dated 21 September 2020. The following day Mr Spiteri received a response to his email from Mr Solanki, informing him that voluntary redundancy did not apply.

On 29 September 2020, Mr Spiteri met with Mr Solanki to discuss the matter. Mr Spiteri stated that Mr Solanki reiterated that his role had not changed significantly, and that voluntary redundancy does not apply. Mr Spiteri responded stating that he disagreed with this interpretation of the clause, was not satisfied with the role and that both he and Powerlink had three months from date of appointment (6 July 2020) to determine whether the position was satisfactory, and he would subsequently be seeking advice from the Union.

Immediately following the meeting with Mr Solanki, Mr Spiteri took his complaint to the Union and understood that the local Union Representative first discussed his issue with Ms Joanne Barrett at Powerlink around the end of September 2020. The Union wrote to Powerlink on 3 December 2020. On 9 December 2020 there was a meeting between Mr Spiteri, the Union representative, Ms Barrett and Mr Jacobs to discuss this matter.

Mr Spiteri contended that the purpose of the new role, Team Leader Layout Design, is to manage and supervise the Transmission Line Layout Design team for provision of line layout design and associated lines drafting services, consisting of six direct reports. Under the old structure, the team Mr Spiteri led provided all drafting support to the Civil Design and Electrical Design Teams. After the re-structure, these teams were re-modelled and renamed to Substation Design and Transmission Line Design (now functional discipline specific teams). All eight drafters were now under direct control of the Senior Engineers within the two new teams and no longer reported to Mr Spiteri. Although Mr Spiteri’s new role heavily integrates with Transmission Line Design team, he now has very little interaction with the Substation Design team, substantially reducing the level of input and involvement across the Primary System Design group. According to Mr Spiteri, this has reduced his subject matter skills and knowledge.

Mr Spiteri stated that the impact of the restructure is that he is now managing fewer employees (previously 14) and has less responsibility and status as a team leader within the organisation and is now only responsible for a single discipline – Layout Design (previously five), diminishing his level of subject matter expertise and exposure. This is also a reduction in his status and responsibility at work and reduces his chances for advancement.

Mr Spiteri also stated that although his team is currently standalone, it really remains a function of the Transmission Line Design and expressed concern that further improvements and process changes are required to ensure that an appropriate level of cohesion exists across the two teams. Overall, across Primary System Design, improvements to systems, resources, culture and trust are an ongoing work in progress, meaning that there will likely be further changes to Mr Spiteri’s position.

Mr Spiteri’s view is that because of the restructure, the new role can be deemed a step down, having diminished any further career progress. Mr Spiteri stated that the change in role reduced his status and responsibilities including the level of leadership, supervision, management, resource planning, reporting capabilities, works co-ordination, technical knowledge and subject matter input. This reduces his potential for advancement and promotion which would also have an impact on his final salary and defined benefit superannuation pay out. Despite the latest restructure, Mr Spiteri stated that a post implementation review is overdue and further modifications can be expected to ensure it has addressed all concerns, with further developments and structural changes expected.

Mr Spiteri rejected Mr Jacobs’ evidence that he did not raise concerns at the meeting on 22 June 2021 and maintained that he requested a voluntary redundancy rather than accepting the new role. This was rejected by Mr Jacobs. Mr Spiteri also said that contrary to Mr Jacobs’ evidence that the Layout Designer interaction with the Substation Design group has not been affected by the restructure, the new role does not include responsibility associated with day-to-day operational requirements in allocating works and supervising the Substations and Lines drafters, and Mr Spiteri has retained that responsibility for the Layout Design drafter only. While accepting Mr Jacobs’ statement that he had never been responsible for electrical, civil and structural design in both lines and substation disciplines, Mr Spiteri said that the old role was responsible for providing all drafting output for those teams, which he is no longer responsible for. Mr Spiteri also rejected Mr Jacobs’ evidence that his new role is substantially the same as his old role, stating that he has gone from being responsible for five disciplines to one and has lost many managerial tasks.

In relation to Mr Solanki’s evidence about his June 2018 presentation, Mr Spiteri said that it was professionally prepared based on his 45 years’ experience in the engineering supply industry and reflected what would be best for Powerlink rather than what would advantage Mr Spiteri personally. In relation to his assertion to Mr Solanki that the new role had significantly increased, Mr Spiteri said that this was based on a comparison between the new position description and an out-of-date 2014 position description that was the only one available at the time. While the Drafting Process Owner aspect of the new role involves responsibility for drafting procedures, guidelines and standards to ensure that the PSD drafters (now spread across three teams) conform to the same common process, it does not include resourcing, supervising and managing the substations and Lines, Civil and Electrical drafters which are functions that Mr Spiteri had before. In relation to Mr Solanki’s evidence that there are very few differences between his old and new roles, Mr Spiteri said that during the transition the Old Role Position Description was not available to provide a direct comparison.

Mr Spiteri also said that he only supervises one drafter in the new role and that previously he supervised eight and the four associated drafting disciplines have been reduced to a maximum of two: Lines Electrical and Civil Drafting only. Also any additional drafting support provided by his Layout drafter would be subject to availability and priority of works within PSD while under guidance of the Substation Design Engineers. Mr Spiteri maintained that during the meeting on 22 June 2020 he stated to Mr Solanki that he wanted voluntary redundancy and Mr Solanki advised that this was not an option and that if Mr Spiteri did not wish to accept the new position he should consider resigning. Mr Spiteri also maintained that they discussed the specific clause 8.4 of Schedule A of the 2020 Agreement and that he stated that he was entitled to that clause as a redeployee. In having this discussion, Mr Spiteri said that he was following due process in exercising his right under the 2020 Agreement including within the three-month specified period. In relation to the comment attributed to him that the new role had significantly increased key accountabilities, Mr Spiteri said that he made this comment in reference to the new role compared to the old role based on the original 2014 position description which was the only one available to him during the restructure period.

In response to Mr Solanki’s assertion that he is responsible for drafting generally, Mr Spiteri said that that is not correct and as Team Leader Layout Design, he is responsible only for his team’s drafting output. Mr Spiteri also said that the new role has been graded at the lower end of PM3, at a level similar to the old role and considering the responsibilities have been reduced, Mr Spiteri is concerned that the salary will not increase. In oral evidence given at the hearing, Mr Spiteri said that a key accountability of the new role is to provide fit for purpose and itemised technical design, effectively providing a hands-on technical resource to his team. Mr Spiteri said that since he has been in the new role, he has realised that his technical skills have eroded over the past six years and his hands on skill in line design or line layout design has been diminished due to the extent and effort in managing a large multi-discipline team. Mr Spiteri also said that the previous analytical skills that he had developed in operation the essential specialised applications and tools have been dramatically reduced and Mr Spiteri now finds it challenging to return to the same level of technical and subject matter expertise he once had. Further, Mr Spiteri said that he previously had the full respect of peers and management in that role.

Under cross-examination, Mr Spiteri was taken to the presentation he gave to Mr Solanki and Mr Jacobs on 5 June 2018 and agreed that he had made statements in the presentation that:

The intention to streamline the PSD layout and drafting team to 8 direct reports had been unsuccessful due to the fact it consisted of 5 disciplines;
The team standing at 13 direct reports introduced wasteful administrative overheads for the Team Leader in managing, supervising the staff and co-ordinating technical requirements across the 5 disciplines;
The restructure in 2015 had merged all the drafters into one team combined with layout designers and as the outcome did not foresee today’s team of 14 it is now appropriate to review the structure with the intention of reducing the number of direct reports; and
The structure should separate the Layout Designers from the Drafters and replace the existing team with two teams – Layout Design with 5 reports and Lines and Substations Drafting with 8 reports.[18]

Mr Spiteri agreed that the structure that was ultimately implemented in July 2020 was very similar to that he had proposed in his 2018 presentation and that in September 2018 his role had been split as proposed in his presentation.[19] Mr Spiteri also agreed that it had been his suggestion to remove the management, resourcing and coordination of drafting resources from his role.[20] Mr Spiteri was also shown an email that he sent to Mr Solanki on 31 May 2020, commenting on a fact finding process undertaken from November 2018 to December 2019, following an approved business case to split the Layout and Drafting Team into two individual teams and options for revisiting the PSD structure in relation to other issues[21]. The proposition was put to Mr Spiteri that his comments in the email to the effect that the Line Layout Team has a proven history as a standalone team operating across all disciplines, was inconsistent with his evidence in his witness statement[22] where he asserts that the fact he is now only responsible for a single discipline, where previously he had been responsible for 5, had diminished his subject matter expertise and exposure and reduced his status and responsibility at work and his chances for advancement.

Mr Spiteri maintained that the two statements were not about the same topic and that the interacting across the teams described in the email was much less than was previously the case. In relation to this and other propositions of inconsistency, Mr Spiteri said that the email predated him working in the role and related to a proposal while his witness statement was prepared after he had done the job. In response to the proposition that his comment in that email that the accountabilities, knowledge and experience of the new role had increased as a result of the changed structure was an attempt to convince Mr Solanki that the position should be graded at a level higher than PM3, Mr Spiteri said that he was pleased to retain the PM3 level for the status of the new role.

Mr Spiteri was also cross-examined about an email he sent to Mr Solanki and Mr Jacobs on 18 October 2018 setting out a proposal for the creation of a temporary team leader role for the 8 drafters in the layout and drafting team. Mr Spiteri agreed that he had stated that downgrading the roles to PM3 would be questionable and that the number of direct reports had not influenced the grade in the past and should not do so now. Mr Spiteri agreed with the following propositions put to him in cross-examination in relation to the new role:

He has maintained a PM3 grading;
His remuneration is the same although Mr Spiteri is concerned that the chance of future remuneration prospects is impacted;
In terms of status, the new role is a team leader role as was his previous role;
The role reports to the Manager Primary Systems Design as did his previous role;
One of Mr Spiteri’s direct reports in the new role is a design drafter;
Although no longer having accountability for the resourcing of the substations and transmission line drafting, Mr Spiteri has remained the process owner across five disciplines; and
Mr Spiteri continues to interact with the lines and substations teams, albeit from a QA side of things.

In response to the proposition that there had been no significant reduction in his skills, knowledge or expertise, Mr Spiteri said that the skills and expertise had narrowed down to lines layout which was something he had all along. The proposition was also put to Mr Spiteri that he still works across all five disciplines in the new role, to which he responded that he does not get deeply involved in core sub-station design work. Mr Spiteri maintained that the new role was a step down from the old role.

Mr Spiteri maintained that in the meeting of 22 June 2020 when he was told that his previous role was redundant, he stated that he wanted a voluntary redundancy and that this was his preference. In response to the proposition that he decided he wanted redundancy before starting in the new role, Mr Spiteri said that he was considering retrenchment and that he would prefer redundancy over the job. Mr Spiteri also said that he took the job because he was told redundancy was not available and he had no other option. In response to the proposition that at no stage had he stated why he found the new position unsatisfactory, Mr Spiteri said that he was not asked to provide reasons for his view in this regard.

Mr Edwards has been employed by Powerlink as the Executive General Manager Operations and Service Delivery since approximately October 2016. Mr Edwards has been employed by Powerlink for about 42 years. Since commencing his employment in about 1979 with the Queensland Electricity Generating Board (as it then was) as an Apprentice Radio Mechanic, Mr Edwards has moved into a range of leadership roles in the maintenance and field delivery areas up until about 1997. Mr Edwards then took a role in the assessment management group in about 1997, before moving into a range of leadership roles in network operations.

In about April 2016, Mr Edwards moved into the role of Acting Executive General Manager Operations and Service Delivery. He was permanently appointed to that role in about November 2016. Mr Edwards stated that his duties in this position include leading a team of about 430 employees (about half of Powerlink's workforce) to deliver Powerlink's state-wide operations including 24/7 real time operations, all field maintenance, telecommunication services, operational technology, and laboratory and warehousing services.

Mr Edwards recalled that the first collective agreement following Powerlink's formation in 1995 was the Working at Powerlink 1998 Certified Agreement (1998 WAPA). Mr Edwards was not involved in the negotiations for, or development of this Agreement. Schedule 1 of the 1998 WAPA was titled “Powerlink Redundancy Agreement”. Clause 8 of the Schedule dealing with redundancy at Powerlink was drafted in virtually identical terms to the terms in clause 8 of Schedule 1 of the 2020 Agreement. The same provision, with some numbering amendments, appeared in the 2015 and 2018 Agreements. On each occasion that the clause was included in an Agreement, no explanation to employees was included in the information sessions about the Agreement as the clause replicated the terms of the earlier Agreement. Upon review of the material from negotiations for the 2020 Agreement, Mr Edwards recalled that clause 8.4 of Schedule 1 of the 2018 Agreement was not the subject of any discussion or negotiation.

The 2020 Agreement was put to a ballot between about 24 August 2020 to 4 September 2020. In the lead up to the ballot, Powerlink conducted a number of employee information sessions in order to explain in detail to employees who would be covered by the 2020 Agreement the changes between the 2018 Agreement and the 2020 Agreement. Mr Edwards understands that as clause 8.4 of Schedule 1 of the 2020 Agreement was unchanged compared to clause 8 of Schedule 1 of the 2018 Agreement, no explanation was included about this clause in the 2020 Agreement Presentation. Mr Edwards could not recall the origins of the clause but believes that it must have been carried over into the 1998 Agreement as a result of the terms and conditions of employment that applied prior to the corporatisation of Powerlink in 1995.

Mr Jacobs is currently employed Powerlink as the Manager Primary Systems Design and has held this role since 1 March 2014. Mr Jacobs has been employed by Powerlink for about 19 years, having commenced in about 2002 as a Team Leader for Transmission Line Design. He was then appointed to the role of Manager Transmission Line Design on 24 July 2006, after having been acting in this role for some time.

Mr Jacobs stated that in or around 2014 the Substation and Transmission Line Design Teams were combined in a restructure to constitute the Primary Systems Design (PSD) team. Mr Jacobs was appointed as the Manager of this combined team on 1 March 2014. PSD is the team within Powerlink responsible for providing design services to Powerlink's infrastructure delivery. This includes the primary electrical, civil, structural and layout design and associated drafting for transmission lines and substations. There are a number of disciplines which work together to deliver this service (the Disciplines):

Transmission lines layout design;
Transmission lines electrical design and drafting;
Transmission lines structural design and drafting;
Substations electrical design and drafting; and
Substations civil design and drafting

The PSD team is comprised of three teams – Transmission Line Design, Line Layout Design and Substation Design – under which there are a variety of team members. Mr Jacobs explained that as the Manager Primary Systems Design, the Team Leaders of each of these three teams report directly to him. Mr Jacobs has known Mr Spiteri since around the commencement of his employment with Powerlink. Mr Spiteri was initially a peer of Mr Jacobs and began reporting to him when he became the Manager Transmission Line Design on 24 July 2006. Mr Spiteri now reports to Mr Jacobs in his role as Team Leader, Line Layout Design.

Mr Jacobs reports to Mr Solanki, the General Manager Design Solutions. Mr Jacobs has a total of about 40 years’ experience in the electrical power industry. In Mr Jacobs’ view, the structure that was implemented in 2014, while aimed at meeting business needs according to demand, resulted in a number of shortfalls from a practical perspective. In around 2018, consideration was given by the business to a restructure of the Primary Systems Design Team. The intention was to optimise the structure of the team to ensure better project delivery flow and to reduce competing pressures on the respective Team Leaders. This was accomplished by involving the PSD team members in a “Fact Finding” initiative to develop structure options and then to finally embed the preferred option.

Mr Jacobs said that under the 2014 PSD structure, all drafters had been embedded under the Layout and Drafting team, of which Mr Spiteri was the Team Leader. In this role, Mr Spiteri was responsible for allocating drafting resources between the two PSD Electrical Design and Civil Design engineering teams. Mr Jacobs stated that this was difficult in practice, due to competing resourcing requirements and compounded by the fact that very few drafters perform both electrical and civil drafting tasks in both transmission line and substation design.

On or about 5 June 2018, Mr Jacobs attended a meeting with Mr Spiteri and Mr Solanki at which Mr Spiteri gave a presentation outlining his proposed restructure for the PSD team. Mr Spiteri's proposed restructure envisioned a skills-based alignment of the Layout and Drafting team, creating separate teams for Layout Design and Lines and Substation Drafting. This involved splitting his Team Leader, Layout and Drafting position into two Team Leader positions (Team Leader, Layout Design and Team Leader, Lines & Subs Drafting) to head up the two teams.

According to Mr Jacobs, Mr Spiteri's proposed restructure also envisioned a reduction in the number of direct reports to the Team Leaders. At that time, Mr Spiteri had 13 direct reports in his role as Team Leader, Layout and Drafting. He expressed that this number of direct reports was difficult to manage, required him to cover too many Disciplines, and involved managing the competing roles of coordinating with the engineering designers for drafting resources whilst still coordinating line layout design. Mr Spiteri was in effect caught in the middle and found it challenging to juggle the competing priorities imposed on him by senior designers for drafting resources. Under his proposal, the Team Leader, Layout Design would have five direct reports and the Team Leader, Lines & Subs Drafting would have eight direct reports. Mr Jacobs was copied into an email sent by Mr Spiteri to Mr Solanki, attaching his presentation and spreadsheet.

In or about early 2019 a working group was formulated to consider the restructure of the PSD team. 24. Mr Jacobs took a period of long service leave from 1 March 2019 until 11 August 2019 although he was involved in the working group prior to and following his leave period. Mr Jacobs stated that ultimately, a final team structure was recommended by the working group. On about 22 June 2020, Mr Jacobs attended a MS Teams meeting with Mr Solanki and the PSD Team Leaders, including Mr Spiteri. Mr Solanki gave a presentation at the meeting, which set out the final revised PSD structure (the “end state”) and the concerns it addressed. There was also discussion of the positions that would be available under the new PSD structure, including that the Team Leader positions would be retitled Team Leader, Transmission Line Design, Team Leader, Substation Design and Team Leader, Line Layout Design.

Mr Jacobs’ evidence is that under the revised structure, the Team Leader, Transmission Line Design and Team Leader, Substation Design would have more direct reports than under the existing structure (Team Leader, Civil Design and Team Leader, Electrical Design). The Team Leader, Line Layout Design would have fewer reports than under the existing structure (Team Leader, Layout Design and Drafting). This was because the new PSD structure required the functional alignment of resources. As a result, the drafters that previously reported to Mr Spiteri in the Team Leader, Layout and Drafting role became embedded within the respective Transmission Line Design and Substation Design teams. However, the final structure contemplated that a permanent drafter for Line Layout Design would be recruited and report to Mr Spiteri as the Team Leader, Line Layout Design, as this was required to compliment the Line Layout Design team’s work.

Mr Jacobs understood that no significant objections to the proposed structure were raised by any of the Team Leaders. However, the Team Leaders for Substation Design and Transmission Line Design noted that the proposed structure resulted in them both having an increased number of direct reports and the associated additional workload to manage.

Mr Jacobs’ view is that, with the exception of the functional realignment of the drafting resources (instead of creating a fourth PSD team comprising only of drafting resources), the proposed structure outlined in Mr Spiteri's presentation of 5 June 2018 is very similar to the new PSD structure. Importantly, the role of Team Leader, Line Layout Design is virtually identical to Mr Spiteri's proposed “Team Leader, Layout Design” role, save that it now has six permanent direct reports and one recently recruited temporary direct report, rather than the five direct reports Mr Spiteri had proposed (which were based on the resources at that time). Mr Jacobs recalled that Mr Spiteri did not raise any concerns regarding the proposed structure or the proposed Team Leader, Line Layout Design role during the meeting.

Mr Jacobs stated that at some point at a meeting that was attended by Mr Solanki and the Team Leaders (including Mr Spiteri), Mr Solanki clarified that there were not going to be any voluntary redundancies offered as part of the restructure. Mr Jacobs could not precisely recall whether Mr Solanki said words to this effect at the meeting on 22 June 2020 or at another meeting prior to the implementation of the restructure. However, he did recall that it was made clear by Mr Solanki that voluntary redundancies were not available or applicable for this restructure. Mr Jacobs understood that the reason voluntary redundancies were not going to be offered was because the restructure did not involve any headcount reductions and all previously existing roles within the PSD team were still required but were now constituted slightly differently within the revised structure.

Mr Spiteri ultimately accepted the offer of redeployment into the Team Leader, Line Layout Design position and started in this role on 6 July 2020. In Mr Jacobs’ view, based on his experience at Powerlink and as the Manager PSD, Mr Spiteri's new role of Team Leader, Line Layout Design constituted suitable alternate employment.

Mr Jacobs stated that the main differences between Mr Spiteri's previous and new roles are that his number of direct reports reduced from thirteen to six permanent reports. Mr Jacobs noted that since the implementation of the new structure, Mr Spiteri also has one temporary direct report, bringing the total of his direct reports to seven. The other main difference is that his position title changed from Team Leader, Layout and Drafting to Team Leader, Line Layout Design. The differences between Mr Spiteri’s previous and new roles addressed the concerns Mr Spiteri had previously raised in around June 2018 and onwards regarding his team constitution and associated workload demands; namely that Mr Spiteri had too many direct reports and had been required to work across both the lines and substation design disciplines for the allocation of drafting resources in circumstances where he had no direct control over their design priorities and the specific design detail fell outside his role and skillset.

According to Mr Jacobs, Mr Spiteri has similar duties and key accountabilities in his new role as he had in his previous role with respect to the Line Layout Design function and the associated survey work, but without the drafting accountability for the resourcing of Substations and Transmission Lines drafting. Mr Spiteri's status and remuneration remain unchanged, and the role remains graded as Professional Managerial Grade 3. Although some of the drafters that used to report to Mr Spiteri have been realigned under the Substation Design and Transmission Line Design teams, Mr Spiteri has agreed to retain responsibility as the PSD Process Owner for Drafting, based on his former experience as a design drafter. He has also retained one drafter role in his team. He will still be required to coordinate layout design work with the other Disciplines as necessary in this capacity. It has also been agreed with Mr Spiteri that if critical and urgent project delivery demands arise, he will consider providing temporary assistance for drafting support to Substations and Transmission Lines as he has two direct reports that have extensive drafting experience. In Mr Jacobs’ view, the current structure will not erode Mr Spiteri’s skills.

Mr Jacobs stated that once Mr Spiteri commenced in his redeployed role, there was nothing about his performance, demeanour or attitude to suggest that Mr Spiteri had found the role to be unsuitable or unsatisfactory. The redeployed role met his request for a reduction of his previously high direct report numbers, which had led to a demanding workload and associated drafting allocation accountability for the other design disciplines.

On or about 20 September 2020, Mr Jacobs had meeting with Mr Spiteri at his request. Mr Spiteri expressed to Mr Jacobs his intention to seek a voluntary redundancy based upon clause 8.4 of Schedule 1. Mr Jacobs advised Mr Spiteri that he should put his intention in writing. While Mr Jacobs cannot specifically recall the words that Mr Spiteri used, his general recollection is that Mr Spiteri believed he was entitled to a voluntary redundancy based on clause 8.4 of Schedule 1 of the WAPA and that he was raising this within the stated three-month limit. Mr Jacobs’ general recollection is also that Mr Spiteri did not indicate as to why he found the role to be unsatisfactory.

On 21 September 2021, Mr Jacobs received an email from Mr Spiteri, which was copied to Mr Solanki and People and Culture business partner (Anthony Dutton), setting out the text of clause 8.4 of Schedule 1 of the WAPA, requesting “confirmation that this statement is applicable” and requesting an estimate of Mr Spiteri’s VR payout summary as soon as possible. Mr Solanki replied to Mr Spiteri's email on 22 September 2020. Mr Jacobs had no further direct involvement in any following discussions with Mr Spiteri about this matter, as it was left to Mr Solanki and the People and Culture team for resolution.

In response to Mr Spiteri’s statement, Mr Jacobs confirmed that he did not observe anything that gave him any concern for Mr Spiteri’s health and wellbeing as alleged by Mr Spiteri. Mr Jacobs disagreed with Mr Spiteri’s evidence he has very little interaction with the Substation Design team, reducing the level of involvement across the Primary System Design Group. Mr Jacobs further stated that Mr Spiteri still has a drafter that reports to him. Mr Spiteri is also still the Process Owner for Drafting. Mr Spiteri and his team still are involved and interact with the Lines and Substation teams. They are also still required to consider the general arrangement of substations for line layout design alignment and substation connection work and with transmission lines for electrical and structural design. Mr Jacobs does not agree that Mr Spiteri's subject matter skills and knowledge or level of input and involvement across the PSD group has been negatively impacted in the new role, as he never has been responsible for electrical, civil and structural design in both lines and substation disciplines. These are RPEQ functions which he cannot perform.

Mr Jacobs disagreed with Mr Spiteri’s suggestion that the restructure and redeployment have reduced his responsibility, status, and chances for advancement. Mr Jacobs stated that the reduction in Mr Spiteri's direct reports and maintaining Layout Design as a standalone function was contemplated and suggested by Mr Spiteri himself. Moreover, Mr Spiteri recently acted in Mr Jacobs’ position as Manager PSD for a six-week period while he was on leave between 24 May 2021 to 4 July 2021. Mr Spiteri also has not indicated any aspirations for career advancement in his performance plans for the last three years.

Mr Jacobs addressed Mr Spiteri’s concerns regarding the need for a post implementation review following the latest restructure. At the time of making his statement, an implementation review in the form of a teambuilding workshop was to be held on 17 August 2021 to discuss the restructure and to examine what aspects of the restructure are and are not working and how interaction between the teams and processes may be improved. While there may be some finessing and changes around the edges, no changes to the structure of the PSD team or to the Team Leader roles are contemplated.

Mr Jacobs also disagreed that Mr Spiteri's new role is a “step down” from his previous role and said that both the new role and the old role are graded as Professional Managerial Grade 3 at the same pay point. Accordingly, there has been no change to Mr Spiteri's remuneration. His new role is substantially the same as his old role. He is no longer required to manage the work allocation and coordination of Substations and Transmission Lines drafting resources, but this aligns with his own proposed team structure from June 2018 and offers Mr Spiteri the opportunity to focus more on the delivery of Layout Design work, which has evolved to be complex and highly demanding. He has recruited a single drafter for his team to assist with a drafting service which remains an important component in support of Layout Design. Mr Jacobs’ disagreed that the new role is a “step down” or that it has reduced Mr Spiteri’s “status and responsibilities including the level of leadership, supervision, management, resource planning, reporting capabilities, works co- ordination, technical knowledge and subject matter input”.

Under cross-examination, Mr Jacobs accepted that the current structure is different to the one proposed by Mr Spiteri in 2018 but maintained that the differences are not significant. In response to a question about the basis of his assertion that Mr Spiteri was satisfied with his new role, Mr Jacobs said that Mr Spiteri had previously proposed a structure which reduced his direct reports and removed functional discipline drafters from his leadership which is consistent with the current role. Mr Jacobs also said that he has regular interactions with Mr Spiteri who has never mentioned that he was dissatisfied or that the role is unsatisfactory.

In relation to apparent inconsistency between his assertion that there had not been any reduction in Mr Spiteri’s responsibilities including supervision, management and resource planning, and his comment that Mr Spiteri is no longer required to manage the work allocation and coordination of substations and transmission lines drafting resources, Mr Jacobs said that Mr Spiteri is still responsible for resource planning for the layout team. Mr Jacobs also said that Mr Spiteri had found work he was doing previously allocating drafting resources to the substation, transmission and line design team, difficult and challenging. While there is a difference from that perspective, Mr Spiteri’s team still has a degree of work to be done in terms of aligning with the transmission line and substation design team so that the lines they lay out match the requirements of the structural and electrical disciplines.

Mr Jacobs agreed that there is a reduction in the number of drafters that report to Mr Spiteri and that he is no longer required to coordinate substation and transmission line drafting resources. While maintaining that this is consistent with Mr Spiteri’s 2018 proposal to reduce his direct reports and his unhappiness with managing drafters, Mr Jacobs agreed it is a reduction in supervision, management and resource planning. Mr Jacobs said that he did not discuss with Mr Spiteri why he found the role unsatisfactory and asked Mr Spiteri to put his requires for redundancy under clause 8.4 of Schedule 1 of the WAPA in writing. Mr Jacobs agreed that he did not ask Mr Spiteri to provide reasons as to why he found the role unsatisfactory.

Mr Solanki is employed by Powerlink as the General Manager, Design Solutions. Mr Solanki’s portfolio in this role includes responsibility for the three design disciplines being Primary Systems Design (PSD), Secondary Systems Design and Telecomms Systems Design. As these disciplines are interrelated, Mr Solanki also oversees a Design Coordination function to ensure that the design activities are coordinated between the different disciplines. Further, Mr Solanki oversees the Materials Procurement function, which is the support function that purchases assets and materials for projects and spares inventory.

Mr Solanki commenced employment at Powerlink on 23 April 2018 and has been employed as the General Manager, Design Solutions since that time, with the exception of four months (between about October 2020 and about January 2021) when he was acting in the role of Executive General Manager, Delivery and Technical Services.

Mr Solanki stated that the PSD team within Powerlink is responsible for providing design services for Powerlink's infrastructure delivery. This includes the primary electrical, civil, layout and structural design and drafting for transmission lines and substations. There are a number of disciplines which work together to deliver this service. Mr Solanki confirmed that at the time of making his statement, Mr Jacobs was the Manager, PSD. A number of Team Leaders and subject matter experts such as specialist engineers report to the Manager, PSD. Mr Spiteri, as the Team Leader, Line Layout Design, reports to Mr Jacobs.

Based on his experience in his current role at Powerlink, Mr Solanki was aware that historically, there has been restructuring in the substations design and transmission lines design areas. Prior to around 2013, the PSD area comprised of a Substations Design business area and a Transmission Lines Design business area. These areas were separate functions, as the skill set required to deliver transmission design is slightly different to the skill set required for substation design. Mr Solanki stated that at that time, the Transmission Lines area was split between a design function (Layout Design, Electrical Design and Structural Design) and a drafting function (Lines Drafting). Mr Spiteri was at that time the Team Leader, Transmission Line Design, Layout Design, with five direct reports. There was also a separate Team Leader, Transmission Line Design, Lines Drafting, who was also responsible for five direct reports.

Based on his experience in his current role with Powerlink, Mr Solanki understood that at some stage during 2013, a decision was made to essentially merge the Transmission Line Design, Layout Design team with the Transmission Line Design, Lines Drafting team, creating a new Transmission Line Design, Layout and Drafting team. Mr Spiteri became the Team Leader of this team, with about 11 direct reports. The Substations Design business area remained separate and was headed up by two Team Leaders, each with around 7 direct reports

Mr Solanki understands that in about 2014, Powerlink went through a staff reduction exercise and conducted a review of its existing structure to ensure the business was viable and “future proofed” (Structural Review). As a result, a decision was made to merge the Substations Design and Transmission Lines business areas and to instead have a structure that was based on skills. Mr Solanki understood that the purpose of the merger was to allow people skilled in substations the opportunity to up-skill in transmission lines, and vice versa. Underlying this was a need to have a multi-skilled workforce to adjust to a reduced forecasted future workload.

Mr Solanki stated that as a result of this decision, Mr Spiteri was offered the position of Team Leader, Layout and Drafting. Mr Spiteri had about 22 direct reports, covering both Substations Design and Transmission Lines Design drafters, designers and engineers. The positions of Team Leader, Civil Design and Team Leader, Electrical Design were also created in order to cover both Substations Design and Transmission Lines Design within each of the civil and electrical Disciplines.

Mr Solanki also understands that in around late 2015, as a result of a further review of the future workload forecast, a flattening of electricity demand, the emergence of new technologies impacting on Powerlink 's traditional business model and no planned investment in network growth in the near future, the PSD team was reduced. Mr Spiteri remained in the position of Team Leader, Layout and Drafting, but his number of direct reports was reduced from 22 to eight. As a result of this further review and the staff reduction exercise, a number of Powerlink employees were unable to be redeployed into the new structure. He understood that the relevant predecessor to the WAPA also provided that there would be no forced redundancies for the life of the agreement, subject to employees accepting reasonable redeployment and retraining. As there were insufficient redeployment opportunities, a Career Management Group (CMG) was established to accommodate employees whose roles were redundant but who had not taken a voluntary redundancy and who remained employed by Powerlink (but without a role). Mr Solanki understood that the purpose of the CMG was to assist those employees in finding alternative employment and to provide them with job-seeking support.

Mr Solanki’s evidence was that while the forecast in 2014 and 2016 was for a decreased workload, the workload of the PSD teams actually increased as a result of renewable energy connections. This resulted in a number of individuals from the CMG being returned to their original roles, which included four drafters returning to report to Mr Spiteri. By about June 2017, Mr Spiteri had 13 direct reports in his Team Leader, Layout and Design position.

Mr Solanki explained that while conceptually the structure that was implemented in 2014, to align teams by skills as opposed to functions, was a logical way to utilise resources in circumstances where the forecast was for a decreased workload, it caused several issues from a practical perspective. Due to legislative requirements associated with signing off on designs, engineers were apprehensive about signing off on designs (and essentially making themselves personally liable) that were outside of their specialist area. For example, a substations specialist might have felt apprehensive about being asked to sign off on a lines design without having had extensive experience in lines.

Mr Solanki further explained that this meant that in practice, the sharing of resources on a skills basis across the substations and transmission lines disciplines was not achieved and cross-skilling was limited, resulting in teams seeking extra resources to deal with workload peaks in circumstances where underutilised resources already existed within PSD.

Shortly after Mr Solanki’s commencement with Powerlink in April 2018, Mr Spiteri approached him and raised concerns about the structure of the teams within PSD. Mr Solanki stated that he told Mr Spiteri that he would look into it. Mr Solanki subsequently had informal conversations with team members and sought their feedback. The majority of the feedback was that the current structure did not work because in practice, there was no diversification of work and people tended to be allocated the work which they were already skilled in. For example, the lines and substation workload would fluctuate and people who were skilled in one area were hesitant to assist a busy team in an area which they were not familiar with. Things were further complicated because engineers must only practice in the area of engineering they are registered in.

Mr Solanki stated that he moved his desk and sat with the PSD team for approximately seven or eight months so that he could observe and understand the issues they were experiencing. The feedback he received was that people would like to be trained in other skills, but they didn't have time to undertake this or did not have time to train others. Mr Solanki’s evidence was that he considered whether additional resources would assist but decided this would not be a practical solution. He said he realised there were a lot of layers of issues and ultimately determined that consideration of a structural change to the PSD teams was required.

In or around June 2018, Mr Solanki had a meeting with Mr Spiteri and Mr Jacobs in relation to the concerns Mr Spiteri had raised, which were primarily in relation to having too many direct reports. At that time Mr Spiteri had 13 direct reports, and as Mr Solanki was fairly new at Powerlink, he asked Mr Spiteri and Mr Jacobs to come up with some options and put them forward for him to review. On 5 June 2018, Mr Spiteri gave a presentation to Mr Solanki and Mr Jacobs, which set out the history of restructures of the PSD teams and his suggestion for a proposed new structure for PSD.

Mr Solanki understood from this material that Mr Spiteri's main concerns were that he had too many direct reports (13 team members) and was required to cover too many Disciplines. Mr Spiteri also considered that his team was too large to manage efficiently, which he considered introduced wasteful administrative overheads for himself as the Team Leader in managing and supervising staff and coordinating technical requirements across the Disciplines. Mr Spiteri's view, expressed in his presentation, was that a restructure would improve efficiency, reduce stress for both himself as the Team Leader and for his team members, and create effective leadership functioning. Mr Spiteri was also concerned that several internal measures to improve workflow within PSD had been trialled over the past 12 months with little success.

Mr Solanki stated that Mr Spiteri proposed a restructure of the PSD teams which would have resulted in the creation of the following functionally aligned teams, which he proposed would be led by four Team Leaders:

·   Civil Design - Team Leader with five permanent and two temporary direct reports;
·   Electrical Design - Team Leader with eight permanent and two temporary direct reports;
·   Layout - Team Leader with five direct reports; and
·   Drafting - Team Leader with eight direct reports.

Mr Solanki’s evidence was that Mr Spiteri’s spreadsheet illustrated that he had a large number of direct reports compared to other Team Leaders. While Mr Solanki stated that he considered this, in his view, the needs of each team should be considered on their own merits and a comparison by numbers alone does not necessarily mean there is any inequity. In any event, Mr Solanki stated he was aware that there were Team Leaders across the business who had more direct reports than Mr Spiteri, even though these were not included in Mr Spiteri's list.

After the presentation, on 5 June 2018, Mr Spiteri sent an email to Mr Solanki, copied to Mr Jacobs, attaching a copy of the presentation he had given during their meeting, along with spreadsheet he had discussed during the meeting. Mr Solanki tendered the presentation and spreadsheet prepared by Ms Spiteri and the covering email.[23] Upon considering Mr Spiteri's proposed new structure (including the number of direct reports) Mr Solanki realised that it was essentially the same as the structure that had existed prior to the 2013 restructure, save that the pre-2013 structure separated out transmission lines and substations. Prior to the 2013 restructure, Mr Spiteri was the Team Leader, Transmission Line Design, Layout Design with five direct reports. There was another Team Leader, Transmission Line Design, Lines Drafting, also with five direct reports. Under Mr Spiteri’s proposed restructure, there would be a “Team Leader, Layout Design” with five direct reports and a “Team Leader, Lines & Subs Drafting”, which would have eight direct reports. As opposed to only covering the transmission lines function, these roles were proposed to cover both transmission lines and substations.

After reflecting upon Mr Spiteri's proposal and as an interim measure to alleviate his immediate concerns regarding the size of his team and the need to align resources, in about late 2018 or early 2019, Mr Solanki made a decision in consultation with the Manager PSD and Team Leader Civil Design to transfer three of the Design Drafters who had been reporting to Mr Spiteri so that they instead reported to the Team Leader, Civil Design (who at that time had five direct reports). After that time, Mr Spiteri had 10 direct reports.

At around the same time, in about December 2018, Mr Solanki sent out a survey to the entire PSD team. The survey was anonymous and asked team members to identify their key areas of concern. Following receipt of the responses in around January or February 2019, he was able to distil three main themes or areas of concern to the PSD team, which were systems improvement, resourcing and culture and trust. In order to further explore these themes, in early 2019, he established a working group to identify “problem statements” for each theme that could be broken down and worked through to arrive at a solution. Mr Solanki asked for nominations for the working group from within the PSD team.

The working group ultimately narrowed down the themes to a list of 10 problem statements. The working group decided that tackling all 10 problems at once would be overly burdensome, and he agreed with this assessment. As a result, the PSD team members were invited to vote in order to nominate three initial problem statements to be addressed in order of priority. The problem statement with the highest number of votes and to be addressed first was “How can PSD establish a balanced and adequate workforce?”.

In order to explore solutions to address this problem statement, Mr Solanki facilitated workshops with the working group and the PSD teams during the course of 2019. After a number of workshops, the working group were ultimately satisfied that the source of the issue was the structure of the PSD teams and that a restructure would be the first stage towards resolving the issue. The working group then developed a number of possible structures for PSD, which were ultimately narrowed down to two proposed structures:

· Option 1 - This option clearly delineated between the Substations and Transmission Lines functional disciplines, while Layout Design would remain as a standalone team. The structure would involve three Team Leader positions, being Team Leader, Transmission Line Design, Team Leader, Substation Design and Team Leader, Line Layout Design. A group of engineers would sit separately to these three streams; and

· Option 2 - This option also delineated between the Substations and Transmission Lines functional disciplines, but involved embedding the Layout Design team across the PSD teams. The structure would still involve three Team Leader positions, but they would be titled Team Leader, Transmission Line Design Electrical, Team Leader, Substation Design and Team Leader, Transmission Line Design Structural. As with Option 1, a group of engineers would also sit separately to these three streams.

Mr Solanki stated that on about 19 May 2020, a formal consultation process was commenced with PSD employees and the relevant unions regarding the two proposed structures for PSD. This involved, amongst other things, explaining the structural options that had been developed for the proposed new structure for PSD, including the pros and cons of each of the proposed structures. On about 18 May 2020, meetings were held with Team Leaders to inform them of the information that was to be communicated to the entire PSD and to discuss the impact of the two options proposed on their individual circumstances. Following this meeting, on about 19 May 2020, a letter outlining the impact of the two options was issued to each of the Team Leaders. The letter to Mr Spiteri highlighted that his substantive position would remain under Option 1 but with changes to his accountabilities and that his position would be made redundant if Option 2 were implemented. PSD employees were asked to provide feedback on the two proposed structures by 29 May 2020. A dedicated email inbox was set up for this purpose.

At about 6.45 pm on 28 May 2020, Mr Solanki sent an email to Mr Spiteri and the other PSD Team Leaders providing them with copies of the position descriptions for the Team Leader positions for each of the two proposed structures for their consideration as part of the consultation process.[24] Mr Solanki noted in his email that each of the Team Leader roles under both proposed structures had been graded as Professional Managerial Grade 3 (PM3) under the 2020 Agreement, which is the second highest grade in the Professional Managerial stream under the WAPA. Mr Solanki also noted that while the Team Leader, Line Layout Design position under Option 1 was at the bottom of the PM3 pay point range, the other Team Leader roles were on the upper end of the PM3 pay point range. There was no change to the grading for the Team Leader roles and they all remained graded PM3 under the proposed structure.

At about 10.55 am on 29 May 2020, Mr Solanki sent a further email to Mr Spiteri and the other PSD Team Leaders advising them that he would extend the time for their feedback in respect of the position descriptions until 10.00 am on Monday 1 June 2020. At about 9.03 am on 31 May 2020, Mr Solanki received an email from Mr Spiteri, which provided his feedback in respect of the two proposed structures for PSD and the position descriptions he had provided to him and the other PSD Team Leaders by email on 28 May 2020. In that email, tendered by Mr Solanki, Mr Spiteri said that Option 1 would be the best outcome for PSD and that:

“I have also compared the provided Position Description for Option 1’s ‘Team Leader Line Layout Design’ with my current PD, prepared at initial appointment in 2014. Contrary to recent advice, I find that the role has significantly increased in both areas of ‘key accountabilities’ and ‘knowledge and experience’ implying the current Team Leader Layout and drafting position is redundant.”

Mr Solanki understood that Mr Spiteri was suggesting that the proposed Team Leader Line Layout Design role should be graded at a higher pay point compared to his current Team Leader Layout and Drafting role. To the best of Mr Solanki’s recollection, the feedback received as part of the consultation process was primarily related to concerns about cross-skilling opportunities. One of the consequences of implementing Option 1 was that staff would be siloed into functional areas, reducing informal opportunities to up-skill in other functional areas. In response to this feedback, Powerlink committed to offering secondments and other formal upskilling opportunities.

Mr Solanki’s evidence was that ultimately, the overwhelming feedback from the consultation process was in favour of implementing Option 1. On about 16 June 2020, in consultation with the Executive General Manager and other stakeholders in the business, Mr Solanki decided to implement Option 1 as the new structure for PSD with effect from 6 July 2020. A presentation including an organisational chart setting out the “end state structure” was conducted in relation to Option 1. This presentation also outlined the expected benefits of Option 1 including that Layout Design remained as a standalone team to coordinate between substation and line teams delivering a better balance of FTE reporting numbers and the need to operate as a coherent discipline. These expected benefits were in response to the original concerns Mr Spiteri had raised with Mr Solanki in around June 2018 and included that the Team Leader, Line Layout Design would retain the Drafting Process Owner across the PSD disciplines for drafting and related platforms. Additionally, the end state presentation also outlined that there would be a closed recruitment process with the existing PSD Team Leaders for the new Team Leader positions between 23 and 24 June 2020.

Mr Solanki’s evidence was that there are very few differences between Mr Spiteri's Old Role and the New Role:

· The number of direct reports set out in the position description was reduced from 12 (13 as at June 2018) to six, following the June 2018 change whereby Mr Solanki realigned three design drafters to other teams within PSD in order to alleviate Mr Spiteri’s concerns, which reduced his number of direct reports to 10;

· The title of the role has slightly changed from “Team Leader, Layout and Drafting” to “Team Leader, Line Layout Design”; and

· While the substations and transmission line drafters had been realigned under the other Team Leaders, the New Role retained one Design Drafter. The key accountabilities of the New Role included the direct management and supervision and technical leadership of the transmission line layout and associated drafting disciplines to ensure design delivery/approval/certification of line layout designs and the provision of Approved for Construction design documentation and remained the drafting process owner. While “Drafting” no longer appeared in the title of the New Role, accountability for drafting processes remained a key component of the New Role and was a key consideration in the role grading evaluation.

Otherwise, the purpose, key accountabilities, education and qualifications, knowledge and experience required for the New Role are substantially the same as for the Old Role. In Mr Solanki’s view, the reduced number of direct reports in the New Role was not a significant change compared to the Old Role, and the ultimate number of direct reports can fluctuate over time. This is reflected in the position description for the New Role, which states that the number of direct reports is only an approximate headcount. The responsibilities and accountabilities of the New Role remained substantially the same as those of the Old Role, and Mr Solanki also did not consider that there was any change in terms of the status of the New Role compared to the Old Role. The New Role facilitates the resources for the whole of the PSD team and remains the Drafting Process Owner. Accordingly, the other PSD Team Leaders would be required to seek the assistance and expertise of the Team Leader, Line Layout Design to undertake their own duties.

Mr Solanki stated that grading of positions is conducted independently by Powerlink's Human Resources team, using a methodology that facilitates an unbiased, consistent and systematic classification of roles across occupational groups within Powerlink. The grading process determined that there was no change to the grading of the new role compared to the old role. Accordingly, there was also no change in the remuneration or benefits in the new role compared to the old role, as both roles were graded at the bottom end of the PM3 pay point range.

In all the circumstances, Mr Solanki was satisfied that the New Role constituted suitable alternate employment for Mr Spiteri in accordance with clause 8.1 of Schedule 1 of the WAPA. Further, the new PSD Structure and the New Role are very similar to the structure and roles Mr Spiteri had proposed in June 2018 in order to address his concerns regarding being required to work across too many Disciplines and having too many direct reports. Similar to Mr Spiteri’s earlier proposal, the new PSD Structure integrated the majority of the drafting resources under their respective Transmission Line and Substation Design functions (headed by the Team Leader, Transmission Line Design and Team Leader, Substation Design respectively), leaving a standalone Line Layout Design team. The New Role has six direct reports which is very similar to the Team Leader, Layout proposed by Mr Spiteri, proposing five direct reports.

On 22 June 2020, Mr Solanki organised a meeting with all of the substantiative Team Leader position holders in the PSD (including Mr Spiteri) and advised the outcome of the consultation process. This included informing them of the closed recruitment process that would occur for the Team Leader positions in the new structure. This process was that each of the existing Team Leader positions would be “spilled” and each Team Leader would be offered redeployment into one of the new Team Leader positions following conversations with them around their preferences. Accordingly, it was made clear during this meeting that Mr Spiteri was not the only Team Leader affected by the restructure.

At about 10.08 am on 23 June 2020, Mr Solanki said he sent an email to Mr Spiteri attaching a letter which formally advised him that the old Role would be made redundant and that he was suitable to be redeployed into the new role. Mr Solanki met with Mr Spiteri on 24 June 2020 to discuss his proposed redeployment into the new role. Mr Solanki’s evidence was that they discussed the following during the meeting:

· Mr Spiteri told Mr Solanki that he intended to accept the new Role;

· Mr Solanki confirmed that no voluntary redundancies were available or applicable due to the new role matching very closely with the old role and that as a result Mr Spiteri would be directly appointed to the new role .

· Mr Solanki told Mr Spiteri that he was a very experienced staff member with over 40 years’ experience and that Powerlink needed to retain his skills and experience;

· Mr Spiteri stated that his role had increased as a result of the new structure and Mr Solanki considered that this statement was made in an effort to ensure that Mr Spiteri’s PM3 classification in the new role would not be downgraded (or perhaps to seek an increase to his grading and pay point);

· As Mr Spiteri's old role was graded as PM3 and at Salary Point 13.0 or above, his remuneration was calculated on a Total Employment Cost (TEC) basis pursuant to the Alternate Working Conditions under Schedule 6 of the WAPA (also known as a “TEC Contract”). Entering into a TEC Contract is voluntary. Certain provisions of the WAPA do not apply for employees engaged under a TEC Contract. During the meeting, Mr Spiteri indicated that he may not wish to be engaged under a TEC Contract in the New Role. Mr Solanki responded that this would be addressed with him separately, including providing him with a WAPA grade point equivalent;

· Salary maintenance was not applicable to the new role as it had the same grading as the old role; and

· Mr Solanki would provide Mr Spiteri with an appointment letter later that week.

Following their meeting on 24 June 2020, Mr Solanki sent Mr Spiteri an email setting out a meeting summary, with which Mr Spiteri indicated agreement. On 26 June 2020, Mr Solanki provided Mr Spiteri with a letter formally offering him permanent redeployment into the new role, effective from 6 July 2020 and Mr Spiteri commenced in the new role on that date. Mr Solanki’s evidence was that on about 18 September 2020, Mr Spiteri approached him for an informal discussion. During that discussion, Mr Spiteri asked Mr Solanki whether clause 8.4 of Schedule 1 of the WAPA applied to him. Mr Solanki stated that he had not previously given consideration to the clause and told reiterated what Mr Spiteri had been told in previous discussions and correspondence, that the old role and new role are essentially the same and as a result, he is not entitled to any voluntary redundancy or retrenchment benefits.

Mr Solanki stated that he had a good relationship with Mr Spiteri and it was a relaxed and informal conversation during which Mr Spiteri said that he was at the end of his career and was looking to see if he could get a voluntary redundancy and exit so that he could spend more time with his grandchildren. Mr Solanki said that Mr Spiteri was saying in effect that he wanted to try to get a retrenchment benefit, but that if he failed, he was not going to be too fussed about it. Mr Solanki said he informed Mr Spiteri that he could get legal or union advice and then follow the due process should he wish to pursue this further. At no stage during this conversation did Mr Spiteri state why he thought he would be entitled to retrenchment benefits under clause 8.4 of Schedule 1 of the WAPA or give any indication that he considered the new role to be unsatisfactory or that he was unhappy with the new role.

The reasonableness of any redeployment and/or retraining pursuant to clause 13.2 could be disputed by an employee under the Dispute Resolution Process in clause 11 of the 2020 Agreement. It is not in contest that the question of whether redeployment and retraining are reasonable for the purposes of clause 13, is determined objectively, and that this would be the basis upon which a dispute would be determined by the Commission in the event it was required to be arbitrated. Clause 13.4 of the 2020 Agreement states that the Powerlink Redundancy Conditions in Schedule 1 apply to the parties to the agreement. This further supports a construction of item 8.4 of Schedule 1 which has regard to context of that item in the Schedule and the 2020 Agreement as a whole.

The chapeau to Schedule 1, establishes that the provisions of the Schedule, other than those for voluntary redundancy, do not apply until Powerlink has exhausted all the provisions in clause 13 of the 2020 Agreement. Retrenchment Benefits are set out in clause 9 of Schedule 1 and can only be paid where Schedule 1 applies and in accordance with the provisions of the Schedule. Voluntary redundancy is dealt with in clause 7 of Schedule 1, under the heading “Voluntary Retrenchment”. It is sufficient to note that the decision to call for volunteers for retrenchment, in the event of redundancies, is entirely at the discretion of Powerlink, subject only to the consultation requirements in clause 4 of the Schedule.

As previously noted, Schedule 1 applies when the provisions in clause 13 of the 2020 Agreement are exhausted. The provisions in clause 13 would be exhausted where:

An employee accepts reasonable retraining and redeployment to a position which is equivalent in remuneration; or

Powerlink decides not to redeploy an employee whose position is redundant; or

the employee succeeds in establishing that retraining and redeployment to an alternative position is unreasonable, by following the Dispute Resolution Process.

Clause 1.2(e) of Schedule 1 further states that the Schedule “will not apply to an employee who … unreasonably refuses an offer of suitable alternative employment within Powerlink”. It is not necessary to determine whether there is any significance in the use of the term “suitable alternative employment” as distinct from “reasonable retraining and redeployment” in relation to a position. Both terms indicate that consideration of whether a position meets the description, is undertaken objectively.

Clause 8 of Schedule 1 deals with “Redeployment”, which as previously noted, must be in accordance with clause 13 of the 2020 Agreement. Clause 8.1 provides that following the consultative steps in clause 4 of Schedule 1, all efforts will be made to find suitable alternative employment for employees whose positions have been made redundant. Clause 4 of Schedule 1 provides for “discussions” with employees and their nominated representatives, on matters which relevantly include the appropriateness of using voluntary retrenchment and redeployment options. Clause 8.1 of Schedule 1 then requires that “after the processes in clause 6 of this schedule have occurred” that affected employees are individually interviewed to determine what options may exist for the management of their future. Clause 6 of Schedule 1 requires that employees be given six months’ notice of redundancy and provides an option for employees to apply for an Early Separation Incentive Payment. Approval of such payment is at the discretion of Powerlink and applications may be refused if Powerlink considers acceptance would be detrimental to its operations. This further emphasises that voluntary redundancy is entirely at the discretion of Powerlink. Further, clause 6.1 provides that Powerlink can terminate the services of an employee whose position is redundant, where alternative employment has not been found, further emphasising the requirement to exhaust options for redeployment.

Clause 8.2 of Schedule 1 repeats the requirement from clause 13 that employees who may find their positions made redundant during the life of the 2020 Agreement will, as a minimum, have their salary maintained without reduction for the tenure of their employment with Powerlink. As previously noted, this is conditional upon employees having accepted reasonable redeployment and retraining pursuant to clause 13 of the 2020 Agreement, and not having unreasonably refused an offer of suitable alternative employment within Powerlink as required by clause 1.2. Clause 8.3 provides that where applicable, redeployment expenses will be in accordance with the Powerlink relocation program. Clauses 8.1 – 8.3 of Schedule 1 are directed at maintaining the employment of employees whose positions are redundant. Further, earlier provisions of the 2020 Agreement and Schedule 1 indicate that questions relating to redeployment are answered objectively rather than subjectively.

This is also consistent with the Objectives of Schedule 1 set out in clause 2 which include providing sufficient flexibility to address workplace issues arising from rationalisation, the changing nature of work and the environment in which Powerlink operates and maintaining employees in employment wherever possible. A further objective is to give preference to redeployment and voluntary redundancy “wherever possible”. The final objective in item 2.1(f) is telling in that it provides for the payment of monetary compensation to employees for whom suitable alternative employment cannot be found, and whose employment is to be terminated.

Considered as a whole, the provisions of the 2020 Agreement dealing with retrenchment and redundancy, are part of a framework agreed between Powerlink and its employees, which establishes mutual and reciprocal rights and obligations, underpinned by concessions and benefits. The effect of clause 13 of the Agreement is that Powerlink has conceded a right to make employees forcibly redundant throughout the life of the Agreement. That Powerlink retains absolute discretion in relation to voluntary retrenchment offsets the provisions which prevent the Company forcibly retrenching employees. If Powerlink wishes to declare positions redundant for reasons such as changes to production, program, organisation, structure or technology as provided in the Consultation term in clause 9, it is required by clause 13 of the 2020 Agreement to:

Redeploy an employee in a position that has been made redundant to a position with equivalent remuneration, provided redeployment and any necessary retraining is reasonable; or
Maintain the salary of an employee whose position has been made redundant during the life of the 2020 Agreement, without reduction, for the tenure of their employment with Powerlink; and
Only terminate the service of employees whose position is redundant where suitable alternative employment has not been found and after at least six months’ notice of redundancy.

In my view, it is entirely consistent with the context in which clause 8.4 of Schedule 1 is found, that the question of whether an alternative position is satisfactory for the purposes of that clause is also considered objectively. I have reached this conclusion for the following reasons. First, clause 8.4 provides that redeployed employees are “eligible for retrenchment benefits”, rather than “entitled” to such benefits. This indicates that it is not sufficient for a redeployed employee to form a subjective view that an alternative position is unsatisfactory. Rather, the use of the term “eligible” indicates that a redeployed employee has a right to seek retrenchment benefits where the employee finds the position unsuitable, and Powerlink has the right to withhold those benefits where it has a contrary view. Conversely, Powerlink may seek to terminate the employee’s employment and pay retrenchment benefits to the employee, in circumstances where the employer concludes that the position is unsuitable, and the employee may dispute that conclusion. Clause 5 of Schedule 1 provides that any disputes in relation to the Schedule are dealt with in accordance with the Dispute Resolution Process in clause 11 of the 2020 Agreement.

Second, the benefits to which the redeployed employee is entitled if the requirements in clause 8.4 are met, are “retrenchment benefits”. The ordinary meaning of retrenchment is that it relates to the termination of a person’s employment while redundancy relates to the removal of the role or position that was filled by the person and does not, of itself, end employment. Retrenchment benefits are in Schedule 1 and by virtue of clause 1.2(e), Schedule 1 does not apply to an employee who unreasonably refuses an offer of suitable alternative employment within Powerlink. It is inconsistent with these provisions to construe clause 8.4 as providing a unilateral right for a redeployed employee to simply declare that an alternative position is subjectively unsatisfactory, and thereby obtain retrenchment benefits, which the employee would not have been eligible to access if the alternative position was rejected on grounds that were not objectively reasonable.

Third, to construe clause 8.4 as allowing an employee to simply decide, with no reasonable basis, that a position is unsatisfactory, and to be paid retrenchment benefits, would allow that employee to obtain a resignation benefit, contrary to clause 10.1 of Schedule 1. The right in clause 8.4 to find a position unsuitable, is a right which can be exercised by either Powerlink or the redeployed employee. Fourth, if an employee who is redeployed can “find” a position to be unsuitable on a subjective basis, then so can Powerlink. To construe the Agreement in the manner contended for by APESMA would enable Powerlink to restructure a role, redeploy an employee into that role for three months, which could run concurrently with the six months’ notice required to be given by clause 6 of Schedule 1, and simply “find” the role subjectively unsatisfactory, and terminate the employment of the employee on the grounds of redundancy. The effect would be that Powerlink could subvert clause 13 and force a redundancy after the three month period in the new role had elapsed.

Fifth, the fact that an employee or Powerlink may hold a subjective view that a position is unsatisfactory, does not preclude that view being tested on an objective basis by whichever party does not agree with the view. Schedule 1 provides that disputes over its operation are dealt with in accordance with the Dispute Resolution Process in clause 11 of the 2020 Agreement and there is no reason why a dispute about whether a position is unsatisfactory, should not be resolved using that process. Sixth, it is inconsistent with the framework of reciprocal rights and obligations of Powerlink and employees, established by the 2020 Agreement, to construe clause 8.4 of Schedule 1 in the manner contended for by APESMA. Powerlink is prevented from making employees forcibly redundant, and employees are obligated in return to accept reasonable retraining and redeployment to a position equivalent in remuneration. Retrenchment is a last resort and retrenchment benefits are only payable when there is no alternative. That is the bargain represented by the redundancy and retrenchment provisions in the 2020 Agreement and all parties should be held to it.

I also note that my views about the proper construction of the disputed provisions accord with those of Commissioner Bechly in Queensland Services Union v Energex[50] who considered an argument in respect of a substantially identical provision in the QTSC Group of Corporations Redundancy Agreement was to be construed so that the question of whether an alternative position was unsatisfactory, was considered objectively. As Powerlink put the matter in its submissions:

“This construction also operates harmoniously with clause 1.2 (e) of Schedule 1 of the [2020 Agreement] which provides that the provisions of Schedule (including clause 8.4) will not apply to an employee who ‘unreasonably refuses’ an offer of ‘suitable alternative employment’. This necessarily involves an objective assessment. It would be an industrially absurd result if an employee could become entitled to retrenchment benefits by arbitrarily and unilaterally announcing that they subjectively consider the alternate position to which they have already been redeployed to be unsatisfactory, when they would not have been entitled to those benefits had they refused the offer of redeployment.”[51]

I do not accept that Powerlink’s submission misapplies the test for whether a position is unsatisfactory, by conflating it with whether the position is suitable. The term “unsatisfactory” for the purposes of item 8.4 of Schedule 1, is conditioned by the overarching requirement in clause 13 of the 2020 Agreement, repeated in Schedule 1, that redeployment must be to a suitable alternative position.

In relation to question (b) I find that the alternative position to which Mr Spiteri was redeployed, is objectively satisfactory. In this regard, I accept, without reservation, the entirety of the Respondent’s written submissions in relation to this matter. First, there are very few differences between the old and the new role. Both roles are graded at the same level under the 2020 Agreement. While the title has changed, accountability for drafting processes remains a key component and Mr Spiteri retains a Design Drafter in his team and is the drafting process owner. There is no apparent reduction in Mr Spiteri’s status, work duties, responsibilities, or accountabilities nor his professional reputation.

It is also the case that Mr Spiteri’s evidence that redeployment had diminished his chances for advancement was contradicted by Mr Solanki’s evidence (which Mr Spiteri did not dispute) that he had acted in a higher position from 24 May to 4 July 2021. Further, Mr Solanki’s evidence that Mr Spiteri had not indicated any desire to progress his career in performance plans for the past three years, was not contested. Nor was Mr Solanki’s evidence that Mr Spiteri considered that he was nearing the end of his career. I also note that Mr Spiteri asserted that the new role had significantly increased in areas of key accountabilities and knowledge and experience, compared to his previous role when expressing his views about the level that the new role should be graded, and notwithstanding Mr Spiteri’s assertion that these views were expressed in a different context and before he commenced in the new role, they are inconsistent with the views he asserts in these proceedings and I do not accept that Mr Spiteri’s evidence satisfactorily explains the inconsistency.

While the new role has fewer direct reports than Mr Spiteri’s previous role, this is consistent with Mr Spiteri’s proposed restructuring of the role in 2018. Further, the evidence establishes that the numbers of employees who reported to Mr Spiteri had fluctuated over time. It is also the case that Mr Spiteri’s contract of employment specifically contemplates changes of the kind that were implemented in 2020 with respect to his role. There is no inconsistency between Mr Spiteri’s contract of employment and the 2020 Agreement, which specifically provides that workplace change is an ongoing necessity (clause 3.6) and the requirement for employees to accept reasonable retraining and redeployment in return for no forced redundancies (clause 13). When the evidence is considered in totality, Mr Spiteri has not advanced a cogent basis for a finding that the role is objectively unsatisfactory. Indeed, Mr Spiteri’s subjective view did not appear to be anything other than bare assertion with little supporting factual basis.

In relation to question 1(c), I am of the view that item 8.4 of Schedule 1 imposes notification requirements to the extent that a redeployed employee must provide notification sufficient to indicate that retrenchment benefits are sought under that provision. I do not accept that item 8.4 requires an employee notifying that retrenchment benefits are sought, to also specifically assert that the role is unsatisfactory or to provide a basis for that assertion. In the present case, Mr Spiteri sent an email on 21 September 2021, within the three month period after he was redeployed to the new position, requesting confirmation that item 8.4 of Schedule 1 was applicable, and on 29 September 2021 verbally informed Mr Solanki that he was seeing retrenchment benefits. Mr Solanki’s evidence is that he had a discussion with Mr Spiteri in which he stated that the new role did not constitute a significant change, but if Mr Spiteri wished to pursue the matter further he was able to do so. Mr Solanki also stated that Mr Spiteri informed him that he would be pursuing the matter. That was sufficient notification.

It is also not in contest that Mr Spiteri, via APESMA, put the rejection of his request for retrenchment benefits into dispute, and engaged clause 11 of the 2020 Agreement. In this regard, I note that the first step is that an employee raises a grievance with the immediate supervisor. Mr Spiteri did this. The fact Mr Spiteri did not provide an explanation of his reasons for seeking retrenchment benefits does not disentitle him to dispute the matter. In any event, the only basis under item 8.4 upon which retrenchment benefits can be sought is that the employee believes the position is not satisfactory. For these reasons, I am also of the view that Mr Spiteri satisfied notification requirements in relation to the fact that he was pursuing retrenchment benefits.

Conclusion

Accordingly, I answered the questions for arbitration as follows:

a) Is the phrase “if it is found within three months by either themselves or Powerlink that the alternative position is unsatisfactory” of clause 8.4 of Schedule 1 of the WAPA to be determined subjectively or objectively?
The phrase is to be determined objectively.
b) If it is found to be determined objectively, is the alternative position unsatisfactory?
No.
c) Does clause 8.4 impose any notification requirements on the employee that they seek the retrenchment benefits pursuant to clause 8.4 of Schedule 1 of the WAPA?
Yes, clause 8.4 imposes notification requirements to the extent that the employees is required to notify Powerlink that he or she asserts that the position is unsatisfactory and that the employee seeks retrenchment benefits on that basis.
d) If so, did the employee satisfy that requirement?
Yes. Mr Spiteri notified Powerlink to the extent necessary that he was seeking retrenchment benefits on the ground that he asserted that the position was not satisfactory.
2. In light of the answers to questions 1(a), (b), (c) and (d) above, is Mr John Spiteri entitled to retrenchment benefits under clause 9 of Schedule 1 of the WAPA pursuant to clause 8.4 of Schedule 1 of the WAPA?
No. Mr Spiteri is not entitled to retrenchment benefits under clause 9 of Schedule 1 of the WAPA.

DEPUTY PRESIDENT

Appearances:

Mr G Hall for the Applicant.
Ms T Lutvey of Ashurst for the Respondent.

Hearing details:

22, 23 July.
2021.
Brisbane.

[1] [2020] FWCA 5538.

[2] Working at Powerlink Agreement 2020 clause 1.

[3] [2020] FWCA 5539.

[4] Outline of the Respondent’s Submissions at [8] to [14]; Applicant’s Submissions in Reply at [1] to [3].

[5] Outline of the Respondent’s submissions at [8].

[6] Exhibit A1 Statement of John Spiteri; Exhibit A2 Supplementary Statement of John Spiteri.

[7] Exhibit R2.

[8] Exhibit R3.

[9] Exhibit R4.

[10] Clause 3.1.

[11] Clause 3.2.

[12] Clause 3.4.

[13] Clause 3.5.

[14] Clause 3.6.

[15] Clause 3.6.

[16] Clause 3.7.

[17] Exhibit A1, [1] - [3]

[18] Exhibit R 4 Annexure RS – 2.

[19] Transcript PN144.

[20] Transcript PN177.

[21] Exhibit R4 – Annexure RS – 7.

[22] Exhibit A1 at [25].

[23] Exhibit R4 Annexure RS – 2.

[24] Exhibit R4 Annexure RS – 5.

[25] Oceanic Coal Australia Pty Ltd v Parker (2010) 198 IR 455 at [44]-[46]; AMIEU v Golden Cockerel Pty Limited (2014)

245 IR 394; [2014] FWCFB 7447 at [41].

[26] Kucks v CSR Ltd (1996) 66 IR 182 at 184; AMWU v Berri Pty Limited (2017) 268 IR 285; [2017] FWCFB 3005 at [46]

and [114].

[27] Amcor Limited v Construction, Forestry, Mining and Energy CFMEU (2005) 222 CLR 241 at [69]; see also [131].

[28] Amcor Limited v Construction, Forestry, Mining and Energy CFMEU (2005) 222 CLR 241 at [131].

[29] Bowesco Pty Ltd (receiver and manager appointed) v Zohar (2007) 156 FCR 129 at [78]; Construction, Forestry, Mining

and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [94] and Short v F W Hercus Pty Ltd (1993) 40 FCR 511

at 517.

[30] Berri at [106] and [114].

[31] Automotive, Food, Metals, Engineering, Printing and Kindred Industries CFMEU v Skilled Engineering Ltd [2003] FCA

260 at [18].

[32] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-353.

[33] Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 at 419.

[34] Amcor Limited v CFMEU (2005) 222 CLR 241 at [2], [13]; TWU v Coles Supermarkets Australia Pty Limited (2014) 245

IR 449 at [22], [39], [42]; AMIEU v Golden Cockerel Pty Limited (2014) 245 IR 394; [2014] FWCFB 7447 at [41].

[35] (No. D231 of 1997)(16 September 1998).

[36] [2009] FWA 1447. (Energex)

[37] [2021] FWC 1849.

[38] 21 November 2006 PR974699.

[39] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]

[40] [2017] FWCFB 4487.

[41] [2014] NSWCA 184 at [71] – [85].

[42] Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

[43] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

[44] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

[45] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing)

[46] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].

[47] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

[48] Amcor Ltd v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at 270-1 [96]; SDAEA v

Woolworths SA Pty Ltd [2011] FCAFC 67 at [18]; Meatpak Pty Ltd v Moran [2005] FCAFC 111; (2005) 145 IR 248 at 250-1 [11]-[12]; Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184. See also Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297 at 321.

[49] Kucks v CSR Limited (1996) 66 IR 182 at 184.

[50] (No D231 of 1997) 16 December 1998.

[51] Outline of the Respondent’s Submission 9 July 2021.

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